Shana, Jahana, Allah Ditta and Bashir Ahmad were tried by an Additional Sessions Judge of Gujrat under section 420/302/201/34, P.P.C. For 'the murder of Muhammad Nawaz, deceased, for cheating the said deceased and depriving him of his gold ornaments and for disposing of the dead body of the said deceased with a view to causing the disappearance of the evidence of his murder. The learned trial Judge, by his judgment, dated 29-11-1981, convicted Shana, accused, under the said three sections and sentenced him under section 302, P. P. C. To imprisonment for life and to pay a fine of Rs.500 or in default thereof to undergo further rigorous imprisonment for six months, under section 420, P.P.C. To three years' rigorous imprisonment with a fine of Rs.500 or in default thereof to undergo further rigorous imprisonment for six months and under section 205, P.P.C. To three years' rigorous imprisonment and a fine of Rs.500 or in default thereof to undergo further rigorous imprisonment for six months. All the sentences were ordered to run concurrently. Half of the fine, if realised, was ordered to be paid to the legal heirs of Muhammad Nawaz, deceased. Jahana, Allah Ditta and Bashir Ahmad, accused, were acquitted. The jail appeal of Shana, convict, is now before me for disposal.
2. The brief facts of the case are that Shana, accused, and Muhammad Nawaz, deceased, were friendly with each other and they were on visiting terms. One day, Muhammad Nawaz, deceased, told Shana, accused, that he wished to go abroad, on which Shana, accused, promised to arrange his visit to Iran. Shana, accused, started visiting the house of the deceased frequently. On 30-10- 1980 at about 3-00 p.m. Shana, accused, visited the house of Muhammad Nawaz deceased, in the presence of Inayat and Ghulam Rasool P.Ws. Shana accused, informed the deceased that he had made arrangements for this visit to Iran and he asked him to make necessary arrangements.
Muhammad Nawaz deceased, had no money, so he took one gold bangle, a pair of geed ear-rings and a gold ring with him and he accompanied Shana, used. The complainant after 3/4 days went to enquire about his son from Shana, accused, but Shana, accused was not available Subsequently, the complainant again approached Shana at his house and there he found all the four accused present and on his enquiry Shana, accused, informed him that Muhammad Nawaz had left for Iran and that he would receive a letter from the deceased Nawaz within, few days. The other accused corroborated Shana, accused. The complainant returned to his house, but he got suspicious, because Muhammad Nawaz had, taken gold ornaments with him and they complainant suspected that the accused might have murdered the deceased to secure the ornaments. Because of the suspicion, the complainant lodged report only to the effect that his son had been taken away with a view to being murdered and robbed later, of ornaments. During investigation the police found that Shana accused, after taking away Muhammad Nawaz, deceased had kept him for two days with him and all the for accused then joined hands and took the deceased to the brick where the accused used to work. The deceased was then taken to a hotel in the area of Shahana Lok and there made to take tea, in which they had surreptitiously, mixed insecticide tablets meant for killing rats. Thereafter, the deceased was taken by all the accused towards the bank of the Lower Jhelum Canal. Near the bridge of the canal at Nawaz Lok, the stomach of the deceased got swollen and he fall on the ground. There, as conspired by the accused, the deceased was done to death with a hatchet and his arms and legs were cut and thrown into the canal, alongwith the hatchet. The ornaments were taken by Shana, accused, and were sold to Muhammad Saeed Goldsmith. Subsequently, when Shana, accused, visited the canal bank to verify whether the dead body of the deceased had been carried away by the water in the canal, he found that a leg and an arm were till there near the bank near Bungalow Ahla, whereupon he took out both the limbs and buried them in the nearby bushes. On 11-1-1981, all the accused approached Ghulam Rasul P.W.8, his residence, where they admitted having killed Muhammad Nawaz, deceased. The said extra-- judicial confession was made in the presence of Ghulam Qadir P.W.12. Shana, accused was produced by them before the police the same day. He also made an extra-judicial confession at the police station in the presence of the Thanedar and Shah Muhammad P.W. On 14-1--1.981, Jahana, Allah Ditta and Bashir Ahmad, accused, were arrested. On 14-1-1981 Shana, accused, led, to the recovery of the right leg and right arm of Muhammad Nawaz, deceased, from underneath the bushes near the canal bank, which were taken into possession vide memo. Exh.P.A. In the presence of Ghulam Rasool P.W.4, Ghulam Muhammad P.W.5 and Anwar Hussain S.I. P.W.11. On 17-1-1981 Shana, accused, led to the shop of Muhammad Saeed P.W.9, goldsmith, from where a pair of gold ear-rings P 1/1-2 and a gold ring P.2, belonging to the deceased's were and which were taken by him when he last left his house, were taken into possession, vide memo. Exh.P.B., in the presence of Ghulam Rasool P.W.4, Ghulam Muhammad P.W.5 and Anwar Hussain S.I. P.W.11.
3. This is a jail appeal. Mr. Ali Zafar, Advocate, appears for the State. With the assistance of the learned counsel for the State, the evidence has been read.
4. This is a case of circumstantial evidence. The learned trial Judge found the following circumstances as standing established against Shana, appellant, namely, the deceased being last seen with. Shana, appellant on 30-10-1980, the extra-judicial confession made by Shana, appellant, before Ghulam Rasool P.W.8 and Ghulam Qadir P.W.12, the recovery of the ornaments of the deceased's were and the recovery of the two limbs of the deceased at the instance of Shana, appellant.
5. The evidence of Muhammad Nawaz, deceased, being last seen with Shana, appellant, on 30-10- 1980, at about 3-00 p.m., is furnished by Ghulam Rasool P.W.2 and Ghulam Muhammad P.W.6.
According to Ghulam Rasool P.W.2, he and Inayat had gone to the house of Ghulam Muhammad P.W.6, the father of the deceased, on 30-10-1980, when he found Shana, appellant, there, who, in his presence, told Muhammad Nawaz, deceased, that he would be taking him to Iran. Ghulam Muhammad P.W.6 and Muhammad Nawaz, deceased, then expressed the fact that they had no money for the expenses to be incurred, whereafter they delivered a pair of gold ear-rings, s gold ring and a gold bangle to the appellant, whereafter the deceased and the appellant left alongwith the ornaments. In cross-examination, that Ghulam Muhammad P.W.6, the father of the deceased, had delivered the said ornaments to Muhammad Nawaz, deceased, and that neither of them had handed over the ornaments to the appellant, in his presence. Ghulam Muhammad P.W.6, whilst affirming the same facts, also stated that had handed over Rs. 4^0 in cash in addition to the gold ornaments to the deceased, in the presence of Ghulam Rasool P.W.2 and Inayat (won over P.W), but could not explain why the said facts were not recorded in his F.I.R. Exh.P.C. The evidence of these two witnesses is contradictory, for the first does not mention anything about Rs.4,000 being also taken by the deceased with him, whereas the latter clearly submits that the same were delivered to the deceased with the gold ornaments in the presence of the former and his friend Inayat (won over P.W). Even otherwise, assuming, for the sake of argument, that the evidence is true, the same cannot be an incriminatory piece of evidence against Shana, appellant, as the dead body. Of Muhammad Nawaz, deceased, was never found and there is nothing on the record to clearly show when the deceased was done to death., The evidence of last seen can only be safely used in a case where the time between the date and time of death of the deceased and the date and time of his being last seen, is so close or short that a presumption can be safely drawn that the accused has committed -the murder, unless he can lead evidence to the contrary to dispel the presumption. In the absence of clear cut evidence to show the date and time of the deceased's actual murder, the evidence of last seen cannot be safely pressed into service. I, therefore, cannot safely, treat the evidence of last seen as an incriminatory piece of evidence against the appellant.
6. Ghulam Rasool P.W.8 and Ghulam Qadir P.W.12 have furnished evidence with regard to the extra- judicial confession made by Shana, appellant, about the murder in question. According to Ghulam Rasool P.W., when he and Ghulam Qadir P.W.12 were present at the Dera of their village, Shana, appellant, arrived there running and disclosed to them that hp had murdered the nephew of Ghulam Rasool Kumhar of village Kathiala Syedan with the aid of his brother and two brothers-in-- -law. Shana further disclosed that he had enticed the deceased under the pretext of taking him to Saudi Arabia. He, Ghulam Rasul P. W. Then directed Shana to go to the police station and inform the police. He did not mention that Shana had informed him that the deceased had taken with him gold ornaments or any cash, when leaving his house. He also did not mention that he or his colleagues had cut of the dead body into pieces and thrown the pieces into the canal. He also did not mention that he had sold the gold ornaments to any goldsmith. Cross-examination he denied the fact that he had told the police the Shana, appellant, had come to his house when he had made the extra judicial confession, with which statement Exh.D.B. He was confronted Ghulam Qadir P.W.12, however, mentioned in his evidence that Shah;:, appellant, and the other three acquitted accused all had come to residence of Ghulam Rasool P.W.8 and all had confessed before the that they had administered a poison meant for killing rats to the deceased, whereupon his stomach had swelled and they had taken hi-,--to the bridge near Nawan Lok on the canal known as Mona Wali Nehr. He also stated that all the four accused confessed that all the had cut of the dead body into pieces and thrown them into the canal. He also stated that all of them requested them to help them and save them from the offence, whereupon they took all the four accused to Raja Anwar, S.H.0, Police Station Mandi Baha-ud-Din, and handed them over to him, after narrating to him the story. In cross-examination, he was confronted with his statement Exh.D.D, where he had not mentioned that all the four accused had visited the house of Ghulam Rasool P.W.8, where they had made their confession, giving the detailed facts as submitted by him and that they had produced all the four accused before Raja Anwar, S.H.O. Ghulam Qadir P.W.12 in his examination-in-chief also stated that all the four accused had confessed their guilt individually and collectively. The evidence of both these witnesses is contradictory. Though they may not be inimical to the appellant, their evidence being highly contradictory, cannot be accepted with safety at all. I have, therefore, no hesitation in rejecting the same on this account.
7. The sale of the gold ornaments belonging to Muhammad Nawaz. Deceased, by Shana, appellant, to Muhammad Saeed P.W.9, is proved by the said witness himself and Muhammad Ashraf P.W.7 and its subsequent recovery at the instance of Shana, appellant, is proved by Ghulam Rasool P.W.4, Ghulam Muhammad P.W.5, Anwar Hussain S.I. D P.W.11 and the said goldsmith himself. In the first instance, the sold ornaments are not of any unusual kind. It is stated that they were taken and given to the deceased on the day he left the house with the appellant. It has further come on the record that the ornaments were got prepared by the deceased's were and the brother of Ghulam Muhammad P.W.8 from a goldsmith. However, the deceased's were was not produced to identify the ornaments nor the goldsmith, who made them; was produced to give evidence. Muhammad Ashraf P.W.7, who worked at the shop of Muhammad Saeed goldsmith P.W.9, stated in his evidence that the pair of gold ear-rings P 1/1-2 and the gold ring P.2 were sold by Shana, appellant, to Muhammad Saeed goldsmith P.W.9 for Rs.2,090. In cross-examination, he admitted that they had prepared a receipt in respect of the sale of the said ornaments by the appellant, which receipt was handed over to the police by Muhammad Saeed goldsmith P.W.9. He affirmed that this receipt had been written by him. He also admitted in cross-examination that they had sold the gold ornaments, which were purchased from the appellant, to certain -customers on the very same day they had purchased the same from the appellant. He F also admitted that the police had asked them to make a pair of ear-rings and a ring which they had done and which they had handed over to them. Muhammad Saeed goldsmith P.W.9 confirmed the purchase of the gold-ornaments from Shana, appellant, for Rs.2,090. In cross-examination, he admitted that he had obtained a receipt in respect of the sale of the ornaments from Shana, appellant, on his register, the entry of which receipt was incorporated by Muhammad Ashraf P.W. He denied the suggestion that the original ornaments, which he had purchased from the appellant, he had melted and had produced new ornaments for the police, which he had prepared on the directions of the Investigating Officer.
Anwar Hussain S.I. P.W.11 admitted in cross--examination that he had taken into possession the note book containing the receipts regarding the purchase of ornaments by Muhammad Saeed p.W.9 from Shana, appellant, but could not remember whether any recovery memo was prepared in respect of taking into possession of this note book. He admitted that neither was the note book on the file nor on the police file nor was there any reference of the same in any of the proceedings recorded during the investigation in the police diary. It appears that the note book containing the alleged entry of the sale of the gold ornaments by the appellant to Muhammad Saeed goldsmith p.W.9 has been surreptitiously kept back. The best evidence should have been produced of the goldsmith's book containing receipts from their customers, when purchasing ornaments from them to protect themselves against criminal action. In the absence of the note book, the evidence of purchase of gold ornaments by Muhammad Saeed goldsmith p.W.9 from Shana, appellant, cannot be accepted with any safety. As regards the recovery of the said ornaments at the instance of Shana, appellant, I need not labour on his matter any further, as Muhammad Ashraf P.W.7 has clearly stated that the original ornaments which were purchased were sold to another customer and that what was delivered later to the police were the fresh ones prepared by them. The recovered ornaments P.1/1-2 and P.2 are thus not the original gold ornaments H allegedly sold by the appellant to the goldsmith. The evidence as regards the recovery of the ornaments, therefore, cannot be accepted with any degree of safety.
8. Ghulam Rasool P.W.4, Ghulam Muhammad P.W.5 and Anwar Hussain S.I. P.W.11 have furnished evidence with regard to the recovery of the right arm and leg of Muhammad Nawaz, deceased, at the instance of Shana, appellant, on 14-1-1981. Shah Muhammad P.W.3 in his evidence stated that Shana, appellant, whilst in police custody, disclosed the place where he and his colleagues had thrown the pieces of the dead body of the deceased in the canal. According to the Zimini, this was on 12-1-1981. The appellant was arrested on 11-1-1981. Shah Muhammad P.W.3 did not state that Shana, appellant, also had mentioned at that time that he had buried the right leg and arm of the deceased under some bushes near village Ahla Lok at a later date. The recovery, I therefore, of the two limbs on 14-1-1981 appears to be trumped up piece of evidence. Mat. Rabia Bibi P.W.10, in her evidence, identified the two limbs on the basis of a childhood fracture which had occurred on the right arm of the deceased and a Kehl injury on the right leg of the deceased. According to her evidence, she identified these on the basis of some "marks" appearing on these limbs. It is not her case that the underlying fracture bones were visible and she saw the fracture and injury marks on the bones. It is not possible to decipher what marks she saw which were visible exteriorly from which she could unequivocally identify the two bones. The memo. Exh.P.A, does not disclose these marks. The said two limbs were sent to A.B.S. Hospital Gujrat and from there to Aziz Bhatti Shaheed Hospital, Gujrat, for inquiry as to their origin and whether they were that of a male or a female and the age of the person concerned and the probable time when they had been severed. The result of the inquiry was not brought, on the record nor proved. It cannot, therefore, be said with an, certainty whether the said limbs were even of human origin. The recover, even appears to be shady. I would, therefore, reject this evidence.
9. The upshot of the above discussion is that there is no sat -evidence of any sort against the appellant to convict him. He appeal to have been improperly convicted and sentenced.
10. For the foregoing reasons, this appeal is accepted and the --conviction and sentence of Shana, appellant, is set aside. He shall be set at liberty forthwith, if not required in any other case. The fine if any recovered from him, shall be refunded to him.