SARDAR MUHAMMAD, J.-Appellants Zafar Abbas (28), Muhammad Iqbal (25) have filed Criminal Appeal No, 700 of 1979 against the judgment dated 29th May, 1979 of Additional Sessions Judge, Gujrat, whereby the learned Additional Sessions Judge convicted both the appellants under section 302, P. P. C. For having committed the murder of Salabat deceased and sentenced both of them to death. Each one of them has also been sentenced to pay a fine of Rs, 3,000 in default of payment of fine, to further undergo R. I. For one year. Murder Reference No, 179 of 1979 is also before us. As both the matters arise out of the same judgment, they are being disposed of by this judgment.
2. The occurrence in this case took place on 14th March, 1975 at Kuftanwela on the bank of Lower Jhelum Canal, in the area of Chak Raib, Police Station Malakwal, District Gujrat.
F. I. R. (Exh. P. N.) was recorded by Muhammad Latif, S.-1. (P. W. 20) on the statement of Muhammad Husain (P. W. 17), real brother of the deceased, at the police station on 18th March, 1975 at 1 p. m.
3. The prosecution case is that the appellants visited the dera of Salabat deceased at about degarwela on 14th March, 1975, wherefrom Salabat deceased accompanied the appellants on his cycle after Zafar Abbas appellant had some conversation with the deceased in privacy. At that time Muhammad Hussain (P. W. 17) and Mst. Sardaran (P. W. 15), wife of the deceased were present at the dera. Two days later, Muhammad Hussain (P. W. 17) went to the dera of Salabat and he was told by Mst. Sardaran P. W. That Salabat had not returned since after he had accompanied the appellants. She also told him that Salabat deceased was a Mureed of Zafar Abbas and two months ago he had taken a pair of Maggars weighing 4! Tolas saying that he will get it doubled from Zafar Abbas by performing a ChiIla. Muhammad Husain P. W. Went to Zafar Abbas, who on query told him that Salabat had gone to Chak Raib to see one of his ailing friend and that he will return. On 18th March, 1975, Muhammad Husain P. W. Again went to the dera of Salabat. When he learnt that Salabat had not returned, he felt worried. He went to Zafar Abbas appellant alongwith Sardar Khan (P. W. 18) and given up P. Ws. Muhammad son of Mutalli and Manak son of Fazal. They asked the whereabouts of Salabat and also about the fact of doubling the gold from Zafar Abbas, who after some hesitation told them that two months ago he had taken 4 tolas of gold in the shape of Maggars on the pretext of doubling the gold, which he later sold. He further told them that Salabat was pressing for the return of the Maggars. Feeling apprehensive that if the story of his having received the gold with a promise to double it is leaked out, his credit as a Pir will have adverse affect, he chalked out a programme in complicity with appellant Muhammad Iqbal with a promise to pay him something and that in pursuance of this programme both of them brought Salabat from his dera on 14th March, 1975 telling him that tonight they will double the gold by performing Chilla on the canal bank. He further told them that at about Kuftanwe/a when Salabat was in Sajda in pursuance to the instructions given by him, lie struck a Kulhari blow on his neck. Salabat tried to run but he was caught by both of them and after felling him on the ground he gave Kulhari blows on the body of Salabat deceased while Iqbal appellant gave knife blows on the throat of the deceased, as a result of which Salabat died, whereafter both of them threw his dead body in the canal. When Zafar Abbas had made this statement, Muhammad Iqbal appellant was also present with him. After this disclosure Muhammad Husain (P. W. 17), Sardar Khan (P. W. 18) alongwith their two companions took both the appellants into custody and brought them to Police Station, Malakwal, where Muhammad Latif, S.-I. (P. W. 20) recorded the statement of Muhammad Husain P.
W. And arrested the appellants, who were produced before him by the complainant and his companions.
4. The Sub-Inspector then proceeded to the spot, and collected bloodstained earth, vide memo.
Exh. P.F. On the same day Muhammad Walayat Lambardar produced cycle (P. 7) before the S.-I, which was taken into possession, vide memo. Exh. P. G. Muhammad Walayat Lambardar was not produced. However, Muhammad Nazir (P. W. 12) and Muhammad ' Latif, S.-I. (P. W. 20), who attested the recovery memos. Had deposed about the recoveries.
On 19th March, 1975, Zafar Abbas appellant led to the recovery of Chadar (P. 9) and Kurta (P. 10), which although had been washed, bore stains of blood, which were taken into possession, vide memo. Exh. P. H. On the same day he led to the recovery of turban (P. 5). Chadar (P. 6) and a pair of shoes (P. 4/1-2), alleged to be the clothes of the deceased, which were taken into possession, vide memo. Exh. P. K. He also led to the recovery of knife (P. 11), on the same day, which was taken into possession vide memo. Exh. P. J.
Muhammad Iqbal appellant, on the same day, led to the recovery of hatchet (P. 4), which was taken into possession, vide memo. Exh. P. M. He also got recovered Dhoti (P. 12), Kurta (P. 13) which were taken into possession vide memo. Exh. P. L. All these memos. Were attested by Muhammad Aslam (P. W. 16), Muhammad Latif, S,-1. (P. W. 20) and given up P. W. Malhi.
On 28th March, 1975, Zafar Abbas appellant got recovered a pair of Maggars (P. 8/1-2), which were taken into possession vide memo. Exh. P. 0, attested by Muhammad Hayat (P. W. 19). Muhammad Latif, (P. W. 20) and given up P. W. Jewan Khan.
On 7th April, 1975, Mamraiz Khan, S.-I. (P. W. 7) on receiving information, took into possession the dead body of Salabat deceased from within the Lower Jhelum Canal He despatched the dead body for post-mortem examination after preparing inquest report (Exh. P. E.).
5. The post-mortem examination of Salabat deceased was conducted by Dr. Nazir Ahmad Anwar (P. W. 1) on 8th April, 1975 at 7 a. m. And found the following injuries
(1) An incised wound, 5" x2" x 2", in front of neck. All the sructurcs in the wound were clean cut.
(2) An incised wound, 8" x 4" x 1/2" extending from right side of chest to the right axilla.
(3) Two penetrating incised wounds, I" x 1/2" x 2, and x 1/2" x 1 1/2", over the posterior side of neck.
(4) An incised wound, 1" x 1/4" x 114". Over the nose.
(5) An incised wound, 3" x 1/2" x 12" over the front of left thigh.
(6) An incised wound, 6" x 1" x 2" over the lateral side of left thigh.
(7) An incised wound, 3" x 1/2" x l'', over the lateral side of left wrist, bones underneath were found cut.
According to the opinion of the doctor, death was due to heamorrhage and shock, as a result of injuries 1 to 7. According to him, probable time between death and post-mortem examination was 20 to 30 days and between death and injuries was 10 to 20 minutes.
6. At the trial the prosecution in all produced 20 witnesses. The prosecution evidence consists of evidence of last seen, which consists of the statements of Muhammad Husain (P. W. 17) and Mst.
Sardaran (P. W. 15). Evidence of extra-judicial confession, which has come in the statements of Muhammad Husain (P. W. 17) and Sardar Khan (P. W. 18), evidence of recoveries of clothes of the deceased, golden Maggars and of weapons of offence recovered from each of the appellants and the blood-stained earth and blood-stained clothes said to have been worn by them at the time of occurrence.
7. The appellants in th statements under section 342, Cr. P. C. Have denied all the allegations. They have pleaded that they have been falsely involved by the P. Ws. Who are related to the deceased and also inter-related. During cross-examination of Mst. Sardaran (P. W. 15), wife of the deceased, it was suggested to her that her brother had murdered Salabat in collusion with her. The suggestion was denied but the witness admitted that Lala, father of Salabat deceased, was murdered. In reply to another question, she stated that she was not aware that her brother Shah Muhammad alongwith others was challaned, but she admitted that a cornpromise was effected in the murder case of Lala and she was married to Salabat in consideration for the said compromise.
8. We have considered the arguments of the learned counsel for the appellants in the context of the evidence. In addition to the discrepancies pointed out by the learned counsel in the statements of the P. Ws. Before whom Zafar Abbas appellant is stated to have made extra-judicial confession, the evidence of extra-judicial confession stands contradicted by the medical evidence. According to the version of the extra-judicial confession given in the F. I. R. And the statements of the P. Ws. In the Court, Zafar Abbas appellant had given a hatchet blow on the neck of the deceased when he was in Sajda. But there is no injury on the back of the neck of the deceased. In fact, there is no injury on any part of the back of the deceased. Injury No, 3, which is on the posterior side of the neck, is a penetrating incised wound and obviously not an injury caused by a sharp-edged weapon like Kulhari. According to the doctor also this injury was caused by a sharp-pointed weapon. The dimension of injury No, 1, which is on the front of the neck does not seem to have been caused by a hatchet. The proposition of law that extra-judicial confession by itself is a weak nature of evidence is well settled. In this case apart from the fact that extra-judicial confession was retracted at the trial, the same also stand contradicted by the medical evidence. None of the P. Ws. Has stated that appellant Muhammad Iqbal, who was also present at the time when Zafar Abbas is alleged to have made the extra-judicial confession said anything. The conduct of the witnesses not to have made any query from him regarding his having played any part does not seem to be reasonable. In the circumstances, the evidence of extra-judicial confession does not inspire confidence.
The evidence of recovery of the clothes of the deceased at the pointing out of Zafar Abbas appellant, recovery of his own blood-stained clothes and the alleged recovery of knife (P. 11) at his instance, has been furnished by Muhammad Aslam (P. W. 16). The same witness has given evidence regarding appellant Muhammad Iqbal having got recovered his own blood-stained clothes and the hatchet. The daughter of Muhammad Aslam P. W. Is married to a son of Sardar Khan (P. W. 18), who has appeared as a witness of extra-judieial confession. Although his evidence has been corroborated by Muhammad Latif, S.-I. (P. W. 20), but the strange thing is that according to the prosecution version Zafar Abbas had used the hatchet at the time of infliction of injuries but he had got recovered knife, while Muhammad Iqbal is alleged to have used the knife but he has got recovered hatchet. There appears to be no sense for them to have changed the weapons for hiding them. It is not mentioned in the recovery memo. (Exh. P. K.) that turban and the woollen Chadar of the deceased were stained with blood still when they were sent to the office of the Chemical Examiner they were found to have been stained with blood ! Then the shoes of the deceased have been found w be bloodstained. It is common knowledge that prayers are performed after putting off the shoes. It could not be expected of the deceased to have been wearing the shoes when he was performing Chilla and was in Sajda at the time of occurrence. How the shoes were found blood stained is again a mystery. In view of this and also in view of the fact that recovery witness Muhammad Aslam is related to the other witness, no reliance can be placed on the evidence of recoveries of these articles. The evidence of recovery of golden Maggars also seems to be doubtful. S.-I. Muhammad Latif (P. W. 20), during whose custody Zafar Abbas appellant had got recovered Maggars on 28th March, 1975, had accompanied Zafar Abbas to his house on 19th March, 1975 for recovery of clothes and weapon of offence from his house. If Zafar Abbas was keeping the Maggars in his house, he would have disclosed this fact on 19th March, 1975. Moreover, since the Sub-Inspector had gone inside the house of Zafar Abbas appellant, he could have also made a search to trace the ornament. Yet the other fact is that according to the F. I. R. Zafar Abbas appellant had told P. Ws. Muhammad Husain and Sardar Khan that he had sold away the Maggars and that the deceased was pressing for return after doubling them. In these circumstances, no reliance can be placed on the evidence of recovery of Maggars.
In view of the fact that we have disbelieved the evidence of extrajudicial confession, and evidence of recoveries, we do not think that the evidence of Mst. Sardaran P. W. And Muhammad Husain (P.
W. 17), who are wife and brother of the deceased, can advance the case of the prosecution in any manner in so far as their claim of having seen the deceased last in the company of the appellants.
Both of them are closely related to C the deceased. The statement of Muhammad Husain P. W.
Regarding extra-judicial confession said to have been made by Zafar Abbas appellant has been disbelieved. His testimony, therefore, has become doubtful. The appellants were residing at a distance of 1 miles from the dera of Mst. Sardaran. Had the appellants taken away the deceased from his dera in the presence of Mst. Sardaran and Muhammad Husain P. Ws. They would not have waited for four days. Their evidence is not worth reliance.
9. For the reasons enumerated above, a doubt is created in our mind regarding the appellants having taken away the deceased or having murdered him. They are given the benefit of doubt and acquitted of the charge. They shall be released forthwith if not required in any other case. The sentence of death is not confirmed.