' GHULAM MUJADDID MIRZA, J.-Saifullah son of Ahmad, aged 23 years Old by caste, resident of village Pilowal, District Jhang, was tried for the murder of Moosa. The trial Judge, by judgment, dated 29th October, 1980 found him guilty. He was sentenced to death and a fine of Rs, 5,000 or in default two years' R.I. The fine, if recovered, Rs, 3,000 were to be paid to the legal heirs of the deceased.
2. The convict has appealed to this Court. Reference for confirmation of death sentence is also before us. Both the matters shall be decided by this judgment.
3. Case was registered on the statement of Nek Muhammad son of Imam Din (Exh. P.B.). It was recorded by Ch. Sardar Ali, Sub-Inspector, Police Station Shorkot on 29th November, 1977.
4. According to Nek Muhammad, his brother Moosa was residing in Chak No, 16 Gagh alongwith his family. He used to sell cloth. In addition to this business, he owned 8 Acres of land. It was barren.
Only one Killa was under cultivation.
5. On 26th November, 1977 at about 3 p.m., Moosa left his house. He told his wife Mst. Haleema that he was going to recover the price of the cloth which had been sold on credit. Thereafter, Moosa never returned. Search was made. Nek Muhammad was also informed. He too looked for Moosa but there was no news of him.
6. On 29th November, 1977 at 4 p. m., Muhammad son of Fazil told Mst. Haleema that dead body of Moosa was lying in the forest. On this information Nek Muhammad left for that place. There he found the dead body of his brother lying in the bushes. It was three four acres away from the village. The dead body had sharp-edged injuries. Moosa seemed to have been killed by some unknown person.
' Mst. Haleema told Nek Muhammad that the deceased had three thousand rupees with him when he left. He used to keep the money with him because it was not safe to keep it in the house. The cash was also missing.
8. There was a rumour in the village that Moosa had left to collect honey from the forest. He was accompanied by Saifullah. Both were seen going together to the forest, It was also suspected that someone out of those who owned money to the deceased might have killed, otherwise, Moosa had no enemy.
9. This was the report on which the case was registered and investigation commenced.
10. It is a case of circumstantial evidence. Nobody saw who, when and how Moosa was murdered.
11. Mst. Haleema widow of Moosa deposed that Saifullah used to come to their house and live with them. He was the son of her brother. Saifullah's brother was also married to her daughter.
12. Before the occurrence Mst. Haleema left for Shorkot. When she returned, she did not find her husband. She said that her husband used to keep his money with him in a Theli and Saifullah only knew.
13. She further deposed that she was told by Shamir and Fazil that deceased and the appellant left at about Peshiwela. They went towards the forest. The accused had a hatchet with him. She was also told that the deceased had a silver jug because he wanted to collect honey from the forest.
She said that her husband was killed because he had money with him.
14. Shamir said that he knew the family of Moosa. He did not know whether Haleema lived at the Dhari but his Dhari was situated at a distance of two-three Acres from their Dhari. The accused was on visiting terms with Moosa. There was a thick forest at a distance of four Acres towards the East from his Dhari. This belonged to the Government. It covered a large area.
15. Any one going from the Dhari of Moosa to the forest had to pass in front of Shamir's Dhari. At about Peshiwela while he was present at his Dhari, he saw Saifullah and Moosa together. They went towards the forest. Moosa had a silver jug ; the accused a hatchet. Moosa was also wearing a leather cap. Within his sight, they entered the forest.
16. On the next morning, Mst. Haleema came. She asked about her husband. He told her that previous evening he had seen her husband going with Saifullah. She was asked to make further enquiries from Saifullah. On this she said that Saifullah was with her that night and left in the early hours. Shamir searched for Moosa but he did not find any trace. Eventually, on the 3rd day, dead body of Moosa was found lying in the forest.
17. Fazil also saw the two going to the forest. The deceased had a jug ; the appellant a hatchet.
Moosa shook hands with him. Fazil asked where were they going. He were told that they were out to collect some honey and went in the forest. The same evening, the witness saw only Saifullah returning from the forest. He noticed that bottom of the trousers of Saifullah had been washed.
Those had been turned up. Saifullah then went to the Dhari of Moosa. On the next day Haleema came to Fazil. He told her what he had seen a day earlier.
18. Abdul Ghani was Lambardar of village Gagh. He deposed about the extra-judicial confession. He also attested the recoveries,
19. About the extra-judicial confession his evidence was that after having met the appellant he took him into confidence and worked very hard to convince him for all available help. It was then that he came out with the truth and told him that he had murdered Moosa with hatchet. He was alleged to have further confessed that the murder was committed to rob the money.
20. Abdul Ghani attested the recovery memos. Exh. P.F. P.G. P.H. & P.J. By mean of which blood- stained earth pair of shoes P-6/1-2, knife P-7, bundle of grass P.1, cap P-9, Theli containing Rs, 1,700 P-10, Shalwar P-11 Shirt P-12, and hatchet P-5, were taken into possession.
21. The investigation was conducted by Ch. Sardar Ali, Sub-Inspector in the first instance from whom Ch. Sultan Ali, Sub-Inspector, took over. He arrested the appellant on 9th December, 1977. He was searched and from his person he found a brown coloured belt containing currency notes.
22. On 1st December 1977, Dr. Munawar Hussain, Medical Officer, D.H.Q. Hospital Jhang conducted the post-mortem examination. He found nine injuries in all. Eight were incised wounds oblique in direction 11 cm x 1.5 cm x bone deep on the right side of head ; 3 cm x8 cm x scalp deep on the right side of head ; 3 cm x 8 cm x scalp deep on the right side of head ; 13 cm x 2 cm x bone deep on the right forehead ; 13 cm x 2 cm x bone deep on right of forehead 1.5 cm over the above injury ; 2 cm x 5 cm bone deep on the right side of forehead 1.5 cm behind injury No, 3; 18 cm x 3 cm X bone deep on the front of face starting from the right side of face in which nasal bone at its root, right maxila and left eye-ball were cut ' 5 cm x 5 cm x bone deep on the right side of nose and 3 cm x 5 cm x bone deep on the left side of head, 1.5 cm above the left ear. The 9th injury was the cut of tip of nose.
23. In the opinion of the doctor cause of death was shock and haemorrhage due to injuries Nos. 1, 3, 4, 5 and 6. These injuries were sufficient to cause death in the ordinary course of nature individually as well as collectively.
24. The appellant in his statement under section 342, Cr. P.C. Admitted his relationship with Moosa deceased inasmuch as Mst. Haleema was his father's sister and that Ramzan his brother was married to Mst. Allah Rakhi daughter of the deceased. He said that when he visited the house of the deceased he had gone to sell the cloth and was not at home. He denied all the allegations and disowned the recoveries. In reply to question, "Why this case against you?", he said :- "Nek Muhammad P. W. Was inimical towards us as the deceased had married his daughter to my real brother whereas Nek Muhammad wanted her hand for his own son. Nek Muhammad P. W.
Involved me in this false case due to suspicion and enmity. My brother divorced the daughter of the deceased after this case and for that reason Mst. Haleema is now under the influence of Nek Muhammad P. W. I was a kid of 14/15 years of age at the time of the occurrence. It was on this ground that I was released on bail in this case."
He professed his innocence and declined to produce evidence in defence.
25. The appellant filed this appeal through jail. He is represented by a counsel at the State expense.
We have heard him as well as the counsel appearing on behalf of the State.
26. After taking into consideration the entire evidence, we are of the view that it is not possible to uphold the conviction. The evidence does not inspire confidence. For instance, Nek Muhammad in his statement did not at all mention about the silver jug as well as hatchet. Even, otherwise, his evidence is discrepant. The testimony of Abdul Ghani about the extra-judicial confession hardly deserves any consideration because it is his own admission that he had to work hard to extract confession from the appellant. This type of confession law does not permit to be used against an accused. Even otherwise, the circumstantial evidence is not so strong so as to exclude all the hypothesis of innocence of the appellant. The conviction cannot be upheld only on the last seen evidence. The chain of events is not complete. There are missing links. The prosecution has not been able to prove its case beyond reasonable doubt. The appellant is given the benefit of doubt.
He is acquitted. He shall be set free, forthwith, if not required in any other case.