SHER BAHADUR KHAN, J.--The to appellants, Sumra and Dinu, are real brothers. They are sons of Nur Muhammad, caste Chaungali Baloch, residents of Kacha Malik and have been convicted under section 302/34, P. P. C. And sentenced to transportation for life each for the murder of Khawand Bakhslr in furtherance of their common intention on 2nd February 1966, at Isha-wela the in the area of Mauza Kacha Malik, and they have also been convicted and sentenced to six months' R.
1. Etch under section 323/34, P. P. C. For causing injuries to Mst. Sakipa (P. W. 6) at the same the and place in furtherance of their common intention.
2. The motive, as furnished by the prosecution, is that Mst. Sakina (P. W. 6), daughter of Manglu, who is the niece of the appellant, was suspected to have illicit connection with the deceased.
3. The prosecution version, as given in the first information report was that on 2nd February 1966 at Isha-wela the Khawand Bakhsh deceased was called by the to appellants from iris house. Murad Bakhsh (P. W. 3) father of Khawand Bakhsh deceased, and Mst. Gul Khatoon (P. W. 4) mother of the deceased, were present in the house. The to appellants, then started beating the deceased with sotis and the outcries raised by him attracted to the spot his parents, namely, Murad Bakhsh (P. W.
3) and Mst. Gul Khatoon (P. W. 4). They both saw the beating and the deceased was so badly injured that he fell at the spot. The eye-witnesses, Murad Bakhsh and Mst. Gul Khatoon also stated that Mst. Sakina (P. W. 6), who was suspected of having illicit connection with the deceased, was also given beating by the to appellants.
4. It is the prosecution case that soon after the occurrence Nur Muhammad, father of the appellants, and the appellants themselves, came to the house of Murad Bakhsh (P. W.3), father of the deceased (who, was then alive) and begged of him not to report the matter to the police, and they also offered to bear the medical expenses. The injured man was, however, taken on a camel by Murad Bakhsh (P. W. 3), towards his home village, Basti Chandia. He died on the way. Murad Bakhsh then went to Muhammad Akram (P. W. 5) Kardar of Makhdum---ul-Mulk, where he reached in the middle of the night and he was informed that some "Dastis" had killed his, son at Isha wela.
Akram P. W. Made a note of what he was told by Murad Bakhsh and wrote in the shape of ruqqa (Exh. P. A.) and sent the same to Police Station Bhung in District Rahimyar Khan in the jurisdiction of which police station the deceased had breathed his last.
5. On receipt of information, Abdul Karim S. H. O. Police Station Bhung, came to the spot, prepared the injury statement (Exh. P. M.) and inquest report (Exh. P. N.) of the deceased and sent the dead body for post-mortem examination. The place where Khawand Bakhsh died was situated in the area of Police Station Bhung, but the place of occurrence was located in the limits of Police Station Rojhan anti Police Post Banglow Ichha, in the District of Dera Ghazi Khan. In fact, Police Post Banglow Ichha was situated from the place of occurrence at a distance of once square, but no report was made at that Post. The Sub-Inspector forwarded the ruqqa (Exh. P. A.) to Police Post Banglow Ichha for further investigation of the case.
6. Abdul Hamid (P. W. 16) A. S. I. Incharge Police Post Banglow Ichha, sent the ruqqa to the police station for registration of the case on which the formal F. I. R. (Exh. P. A-1) was prepared. He went to the spot and prepared the injury statement (Exh. P. B.) of Mst. Sakina (P. W. 6) and sent her for medical examination. Blood-stained earth was collected from the spot and ` the same was sealed into a parcel vide memo. Exh P. H.
7. Both the appellants were produced before Abdul Hameed A. S. I. By Nur Muhammad Kardar P. W.
And Allah Jawaya P. W. Along with the sticks (Exhs. P. 1 and P. 2). These sticks were taken into possession vide memos. Exhs. P. J. And P. K.
8. It is also the prosecution case that on 5th February 1966, both the appellants went to Nur Muhammad Kardar (P. W. 7) along with the sticks (Exhs. P. 1 and P. 2) and confessed in his presence and in the presence of Allah Jawaya (P. W. 14) that they had killed Khawand Bakhsh (deceased).
9. The autopsy on the dead body of Khawand Bakhsh was performed by Dr. Sheikh Ahmad Bakhsh (P. W. 1) on 4th February 1966 at 9 a. m. Who found the following injuries.
(1) A lacerated wound, --" x --" x bone deep, on the left side front to parietal region with fracture of the underlying bone.
(2) A lacerated wound, 1" x --" x bone deep, on the left parietal region with fracture of the underlying bone.
(3) A contusion 4' x 1' with the abrasion --" x --", on front of it on the left side forehead with swelling all around.
(4) An abrasion 2" x 1/6" on the left side of the chest.
(5) A contusion 4 --" x 1", on the front of upper part of left thigh.
(6) A contusion, 2" x 1--" on the front scyotum.
Death, in the opinion of the Doctor, was due to shock and haemorrhage and damage to the brain, as a result of injuries Nos. 1, 2 and 3, which were grievous and were ante-mortem.
10. Mst. Sakina (P. W. 6) was examined by Dr. Mrs. Nasreen A. Rana, (P. W. 2) on 4th February 1966, at 9 a.m. She found the following injuries on her person.
(1) Swelling and oedoma of the left eye.
(2) A lacerated wound 1" x --" over the left temple just near the eye-brew.
(3) A contusion 3" x 1' on the left side of back just below the scapula.
(4) A contusion 4" x 3" over the left side of back just below injury No. 3.
(5) A lacerated wound 1" x 2" over the left side of back near the axilla.
(6) A contusion, 1" x 1" on the left upper arm on back side.
Her age was given out as 10-11 years. No semen was found on her person and the hymen was intact. The lady doctor also found that the breast of Mst. Sakina was not developed and no pubic or axillary hair were found on her private parts.
11. The prosecution examined Murad Bakhsh (P. W. 3) and Mst. Gut Khatoon (P. W. 4) who gave the ocular account of the tragedy. Murad Bakhsh is the father of the deceased, while Mst. Gul Khatoon is his mother. The; first said that the deceased was tailed out by the to appellants, and that on the outcries raised by the deceased they were attracted to the spot and they saw that the appellants gave danda blows to their son who fell down unconscious Mst. Sakina (P. W. 6) was also examined, but she did not support the prosecution case and said nothing against the appellants. Nur Muhammad (P. W. 7) and Allah Jawaya (P. W. 14) were produced to show that the appellants, had come to them and had made extra-judicial confession before them saying that they had killed the man and they had produced the longs (Exhs. P. 1 and P. 2) which were found stained with blood.
12. The learned Sessions Judge took the view that the to eye-witnesses, Murad Bakhsh and lust. Gul Khatoon, the parents of the deceased, were closely-related to the appellants and they were won over, and therefore, they resiled from their statements which they had made before the committing Magistrate. The statement of Mst. Gul Khatoon made by her before the commit--ting Magistrate was transferred to the Sessions file under sec--tion 288 of the Criminal Procedure - Code. As regards the relationship between the eye-witnesses and the appellants, all that was stated was that the brother of the appellants was married to the sister of the deceased. As regard Mst. Sakina (P. W. 6) it was stated that she was the niece of the appellants, and therefore, she did not support the prosecution case.
13. Now we know that the motive furnished by the prosecution was a very weak one inasmuch as the prosecution case was that the deceased was done to death because he was suspected of having illicit connection with Mst. Sakina (P. W. 6). This witness was examined by the lady Doctor, and she found her only 10-11 years of age. Her hymen was found intact and she had not attained majority as her breast was not found developed. It was, therefore, sheer embroidery on the part of the prosecution to show that the deceased was suspected of having illicit connection with Mst.
Sakina. Here, it will be useful to refer to the statement of Murad Bakhsh, father of the deceased, wherein he stated, "I had no real suspicion about the illicit intimacy of the deceased with Mst.
Sakina but I had only seen them playing together. Hence I say that the accused sus--pected the deceased of that."
14. Having said that the prosecution failed to prove beyond all reasonable doubt that there was a good motive for the appellants to kill the deceased, we have to go through the evidence of the to important eye-witnesses, in the case. They were Murad Bakhsh (P. W. 3) and Mst. Gul Khatoon (P. W.
1) father and mother of the deceased respectively. There is no reason as to why these witnesses should have made concession in favour of the appellants. When the entire evidence of these to witnesses is read together, it clearly shows that they did not hear the appellants, calling out the deceased and that they did not identify the assailants in the darkness of the night. Murad Bakhsh clearly stated to the Court, question "I did not see them I heard their voice and identified them by their voice. My son did not inform me that he was going with the accused." He also, stated, "the assailants had muffled their faces." It was also in the evidence of both the eye-witnesses that "the night was dark and cloudy one."
15. This is not all. Even taking the original statements, of the to eye-witnesses, which they made before the committing Magistrate as true one, still one finds that the version given by them before the committing Magistrate was not what had actually happened. They had stated before the committing Magistrate that the appellants, had called out their son, and he went out and was done to death and they also stated that on the outcries raised by their son they went out. In such a case.
It was but natural that Murad Bakhsh must have got himself armed with a view to rescuing his son.
He did nothing of the sort. Again, we know, according to the eye-witnesses, that the to appellants, were armed only with ordinary sticks. It is un-believe-able that the father and mother stood as silent spectators while, their son was being done to death by the appellants. It is but natural that the parents must have intervened with a view to saving their son and in this process they must have suffered injuries. However, nothing of the sort had happened.
16. The next piece of evidence which appears against the appellants is that they made extra judicial confession before Nur Muhammad (P. W. 7) and Allah Jawaya, (P. W. 14). As regards Nur Muhammad, he admitted that uncle of the appellants Gul Beg had made a report against him about embezzlement and he was discharged from service, by Sardar Ashiq Muhammad Khan Mazari. Allah Jawaya also admitted that one year prior to the occurrence the appellants, had altercated with him when he had gone to them to receive some grains. Thus both the witnesses are inimical towards the appellants.
17. As regards the extra judicial confession we know that such evidence ought to be received with great caution and care.
Monir in his "Principles and Digest of the Law of Evidence" 4th Edition at page 164 quoting Taylor says: "Not only does considerable danger of mistake arise from the misapprehension or malice of witnesses, the misuse of words, the failure of the party to express his own meaning and the infirmity of memory, but the zeal which generally prevails to detect offenders, especially in cases of aggravated guilt, and the strong disposition which is often displayed by persons engaged in pursuit of evidence to magnify slight grounds of suspicion into sufficient proof, together with the character of the witnesses, who are sometimes necessarily called in cases of secret and atrocious crime all tend to impair the value of this kind of evidence, and sometimes lead to its rejection, there, in civil actions, it would have been received."
Further quoting, from Macaulay, History of England, Volume 1, Ch. 5, page 583; Monir says: "Words may easily be understood by an honest man. They may easily be misconstrued by a knave.
What was spoken mataphorically may be apprehended literally. What was spoken ludicrously may be apprehended seriously. A participle, a tense, a mood, an emphasis may make the whole difference between guilt and innocence. Where an oral confession is sought to be proved against a prisoner, the actual words uttered by him should be given; a mere general statement that a prisoner confessed is insufficient. Since it is difficult to ascertain the exact words used, oral extra- judicial confession do not carry much weight."
18. For the foregoing reasons, we find that the eye--witnesses who are closely related to the deceased and who had no reason to have given false statements in saving the murderer of their son, that the motive furnished by the prosecution was not established and that the extra-judicial confession was allegedly made before to persons who are biased against the appellants and on the top of all this the fact that Police Post Bangalow Ichha was situated at a distance of only one square from the spot, the first information A was riot lodged there but the injured man was taken to a far of place at a distance of fifteen miles where Akram (P. W. 5) was consulted and he lodged the report after consultation; we feel that tee present is a case where no judicial case has been establish--ed against the appellants, and we accordingly set aside their conviction and sentence and accept the appeal. The appellants are already on bail. They are released of the obligation under the bail bond. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.