1. HAMOODUR RAHMAN, C. J.-This appeal, by special leave, arises out of a judgment of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore Seat upholding in appeal the conviction and sentence of the appellant under section 302 of the Pakistan Penal Code.
2. The appellant, who was at the relevant time a temporary relieving "Token man" at Kaulwal Railway Station, was charged for the murder of one Muhammad Ramzan, a permanent Points-- man employed at the same Railway Station, at about 3-05 a.m. Or soon thereafter of the 4th of March 1963.
3. The prosecution case against the appellant was that he and tile deceased were both posted on night duty oil this particular night in connection with the clearance of trains. The duty of tile appellant was to pass the token (iron ring) to the engine drivers who passed through the station with their trains. The duty of the deceased was to set the points for the trains to pass. The turn of duty of both started at midnight. The deceased was to continue on duty till 8 a.m. Of the 4th of March 1963 and the appellant's duty was to last till 12 noon. During their turn of duty, the Chenab Express passed through the station at 2-57 a.m. And a Goods train, No. 451 Up, departed from the station at 3-05 a.m. The appellant had given the token to the engine driver of the Goods train and the deceased had set the points for it while another pointsman called Muhammad Din had backed the signals after the departure of the Goods train. The Assistant Station Master, Ata Ullah (P. W. 12), who was on duty at the station platform, went inside his office with Pointsman Muhammad Din after the Goods train had passed but at 3-25 a.m. They were attracted by the cries of the appellant. They -came out of the office and found the appellant weeping and wailing. As they came towards him, he fell down on the stairs which lead from the railway line to the office anal asked for water. After he had been given water, he told the Assistant Station Master that three persons had chased hint and two persons had taken away the deceased pointsman. The witness then roused the other Assistant Station Master, Ghulam Sarwar, and other members of the staff.
4. They all went in search of the deceased. Near the point at which the deceased was posted they found two keys and a lamp, which were carried by the deceased, but no trace of the deceased was available. They, accordingly, returned to the station at about 3-50 a.m.
5. Ghulam Sarwar (P. W. 13), while returning from his walk next morning was joined by pointsman Maula Bakhsh on the way and when they came near the place from where the lamp and the keys had been recovered earlier in the morning, Maula Bakhsh pointed towards some bluish thing in the north. They both went towards it and found it to be the dead body of Muhammad Ramzan, the pointsman. The bluish thing was the uniform he was wearing. He was lying at a distance of about 200 yards from the railway line.
6. After the recovery of the dead body, intimation was given to the Railway Police and to S. H. O., Dina Police Station. Investi--gation was taken up but no clue could be obtained of the culprit until the 6th of March 1963 when, it is said, the appellant contacted Mr. Muhammad Fazil (P. W. 16), a retired School Teacher, at the latter's baithak at about 7-30 a.m. And made an extra-judicial confession admitting the killing of the deceased pointsman because the latter had been appointed to a permanent vacancy a month earlier, even though he was an outsider, superseding the claims of the appellant who had been working at the Kaluwat Railway Station as a relieving pointsman since September 1962. Muhammad Fazil, on hearing this, called his neighbour Lal Hussain (P. W. 17), who was also a School Teacher as well as a Lambardar. The appellant repeated the story before him also. Muhammad Fazil and Lal Hussain then took the appellant to the baithak of Ghulam Din Lambardar where the Investigating Police were putting up. The Police interrogated him and during the interrogation the appellant produced a key of a quarter which was taken possession of by the Sub-Inspector of Police. The appellant then took the Police, to the quarter of Muhammad Din, pointsman, which he was then sharing with Muhammad Din, as no quarter had been allotted to him, a temporary relieving pointsman. The Sub-Inspector of Police opened the lock of the quarter with the key supplied by the appellant and op the pointing out of the appellant seized from under the cot a broken handle of an a pair of chappals, a dholi, a khes and a- shirt. These were subsequently found by the Serologist to be stained with human blood.
7. The Police, it is said, had also recovered from the place where the dead body had been found a blood-stained axe with a broken handle, five stones and some blood-stained earth. The stones were not sent for chemical examination but the hatchet too was found to be stained with human blood.
8. Three lacerated wounds were found on the forehead and back of the head of the deceased. The blows had been struck with such force that the bones underneath were fractured into pieces and the brain matter was oozing out. Both the parietal and occipital bones were fractured in multiple pieces and the doctor was of the view that each one of these injuries, which had been caused by a heavy blunt weapon was sufficient in the ordinary course of nature to cause death. The dead body was found clothed by the doctor and the clothes were made over to the Investigating Agency.
9. On this evidence, the appellant was sent up for trial. He denied that he had committed the murder as also denied the recoveries and the extra judicial confessions. His case, was as he had stated before the Assistant Station Master, that when they were returning to the station after the Goods train had passed, five persons waylaid them. Two succeeded in catching hold of Muhammad Ramzan and dragging him away from there and three chased him but he managed to escape to the railway station. The reason given by him for this interception was that the pointsmen at the railway station were often employed by the Station Master, who was keeping a she-buffalo, to steal fodder for his buffalo from the neighbouring village.
10. He was tried with the aid of three assessors by the Sessions Judge of Jhelum.
11. There was no eye-witness in this case but the conviction was sought to be based on the circumstantial evidence of the extra--judicial confession, the recoveries and the fact that the deceased was last seen alive in the company of the appellant.
12. The trial Court disbelieved the extra-judicial confession but accepted the prosecution version with regard to the motive and the recoveries and convicted the appellant under section 302 of the Pakistan Penal Code but gave him a sentence of transportation for life only.
13. On appeal, the High Court agreed that the extra judicial confession could not be relied upon as the evidence of Muhammad Fazil and Lal Hussain was not trustworthy but upheld the conviction holding that the motive alleged by the prosecution had been established and was sufficient. The deceased was last seen alive with the appellant and that the recoveries fully brought home the guilt to him.
14. Leave was granted in this case because firstly, the motive alleged by .The prosecution appeared to be extremely extraordinary. It was considered unlikely for a public servant to want to kill another merely for the sake of getting his place. Secondly, the recoveries were suspect, because, they were delayed by two days and the evidence did not disclose that the appellant had sufficient time to go to his quarters, change his clothes and than come to the station to report the missing of the deceased. Thirdly, there was no evidence to show that these clothes belonged either to the deceased or to the appellant.
15. We have now examined the evidence with care. As for the motive, we find that the evidence of the Station Master, Muhammad Sadiq (P. W. 15), completely demolished the prosecution case, for according to him : "If there had been a permanent vacancy of a pointsman at Railway Station Kaulwal and the only reliev--ing hand was that of the accused, even then it would have been necessary to retain him to work in that vacancy." "A relieving pointsman is not entitled", according to him, "to serve on a main line as a permanent hand unless he has completed three years of service." The appellant had only been serving at Kaulwal Station, after completing his training, for six months since I-9-1962. The prosecution story that the murder had been committed because the deceased bad been appointed in a permanent vacancy by ignoring the claims of the appellant, who was to be put off duty from 6-3-1963, was not, therefore, supported by the Station Master. We are unable, as such, to accept that the motive had been established by the prosecution. The High Court totally ignored this material piece of evidence.
16. So far as the recoveries are concerned, we are again not satisfied that the Courts below have applied their minds correctly to the facts of the case. Even assuming that the articles were discovered from the quarter alleged by the prosecution and the door of the quarter was opened by the key supplied by the appellant, the fact still remains that this quarter was officially allotted to Muhammad Din, pointsman, and there is not an iota of evidence on the record to show as to who was the owner of these articles. They were clearly not the clothes of deceased, for the dead body of the deceased was found wearing a blue uniform and this uniform was taken off his body at the post-mortem examination for being made over to the Police. There is no evidence that these clothes belonged to the appellant nor is it possible that within the time available to him, namely, twenty minutes, he would have been in a position to go to the quarter, change his clothes and then come back to the station.
17. The evidence of the Station staff is that the Goods train was cleared at 3-05 a.m. And by 3-25 a.m.
18. The appellant was found weeping and wailing outside the Station office. Could it have been possible for the appellant during this short period of time to have induced, as alleged by the prosecu--petition, the deceased to go with him to a place 200 yards away from the railway line, murder him there, and then to go back to his quarter, wash, change his clothes and return to the station office within 20 minutes.
19. The only damaging piece of evidence was the recovery of a bro--ken handle of a hatchet from the quarter concerned at the pointing out of the appellant and of a hatchet with a broken handle from the place of the incident, but there is no evidence to show that any hatchet blow was at all caused to the deceased. The deceased, as already pointed out, had only three lacerated wounds which, according to the doctor, had been caused by a heavy blunt weapon struck with force. There is no evidence to show that the blunt side of the hatchet was used. Even in the extra-judicial confession, all that was stated was that a hatchet blow was caused on the back of the head of the deceased.
20. There is also no evidence that appellant was carrying a hatchet when he went on duty.
21. It is unfortunate that these features of the evidence were not noticed by the High Court. If the extra judicial confessions are disbelieved, and the recoveries are not connected with the crime in question, then it is clear that, in a case of this nature, where the motive is of an extremely weak nature, no conviction can be based merely on the evidence of the fact that the deceased was last seen together with the appellant In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused. In the present case, this test is by no means satisfied. The circumstances by themselves are neither sufficient to bring home the guilt to the accused nor are they of such a nature as to carry conviction.
22. The result, therefore, is that this appeal must be allowed and the conviction and sentence of the appellant set aside. He must be set at liberty forthwith, if not required in any other case, as already directed by the short order issued on 10-12-1971.