Mian Muhammad son of Sher Muhammad caste Qasab resident of Chak No. 104, N. B., Teshil Sargodha has come up against the judgment and order of the learned Sessions Judge, Sargodha, dated 3-12-1969, whereby he convicted him under section 302, P. P. C. And sentenced him to transportation for life for the murder of one Muhammad Amir son of Jeewan Lohar.
2. The facts of the prosecution case are that Muhammad Amir deceased was a loose-character and was carrying on with Mst. Fateh Bibi (P. W. 12) wife of Ahmad Tarkhan. According to prosecution, the accused had also illicit relations with the same woman and on the night of occurrence when the deceased was sitting in the house of Mst. Fateh Bibi the appellant came there. The two paramours got excited and there took place an exchange of hot words between them. Both of them then left that place and went away. Soon thereafter, there was heard a shot of fire-arm. Next morning, it transpired that Muhammad Amir lay killed near a heap of rubbish outside the village which was noticed by Mammun (given up P. W.) who informed Ahmad (P. W. 13) a brother of the deceased about the same. The occurrence took place on the night between 2.5/26- 2-1968. No body went to lodge F. I. R. About the same. Per chance Muhammad Siddiq (P. W. 14)
Additional S. H. O. Of Police Station Sargodha Sadar carne to this Chak for investigating a theft case at 8 a.m. At that time, Ahmad son of Jeewan (P. W. 13) met the Additional S. H. O. And made a statement Exh. P. A. Which was remitted to the Police Station through F. C. Atta Muhammad where Syed Fazal Hussain Shah S. H. O. (P. W. 6) prepared the formal F'. I. R. (Exh. P. A./1) at 8-45 a. m. The distance between the place of occurrence and the Police Station was eight miles. In the statement (Exh. P. A.) all that was stated by Ahmad (P. W. 13) was that his deceased brother lived in his neighbourhood along with his wife Mst. Bibi and mother Mst. Sardaran. The deceased had been listening radio till 9-10 p. m. Whereafter the entire family went to sleep. This information was gathered by Ahmad (P. W. 13) from Mst. Bibi wife of the deceased. Thereafter in the morning, Mammun Mussali informed them of the dead body lying outside the village which was identified by them to be of Muhammad Amir deceased. In Exh. P. A. It was further stated that Muhammad Amir had a loose character and had illicit relations with Mst. Mehtab Bibi Maikeni wife of Ahmad, Mst.
Dhammi wife of Muhammad Shafi and many other women of his village. It was suggested in the F.
I. R. That these women have either themselves murdered Muhammad Amir or got him murdered through some persons. Sub-Inspector Muhammad Siddiq went to the spot, prepared an injury statement and inquest report of the deceased and sent the dead body to mortuary for post- mortem examination. He also took into possession the blood-stained earth from the spot and conducted the other investigation. He arrested the accused on 6-3-1968, while he was carrying gun (Exh. P. 5) and took it into possession vide memo. Exh. P. E. The witnesses for the recovery are Manzuor Hussain (P. W. 10) ; Allah Bakhsh (given up) and S. I. Muhammad Sadiq (P. W. 14). A challan was filed against the accused and on trial he was convicted and sentenced as herein--before mentioned.
3. The prosecution relied upon- the following pieces of evi--dence in the case :----
(1) Medical evidence ;
(2) Motive ;
(3) extra judicial confession made by the accused before Muhammad Sarwar (P. W. 13) on 6-3- 1968 ; and
(4) recovery of a gun Exh. P. 5.
4. From the medical evidence produced in the case, it appears that the deceased had various gunshot injuries on his person. It is not necessary to give the details of the same because it is acommon-ground that the deceased died as a result of assault and injuries by fire-arm.
5. From what has been written above it will be evident that there are no eye-witnesses in the case, and the matter rests entirely on circumstantial evidence.
6. Taking up the motive, this is the prosecution's own case that the deceased was of a bad.
Character and had illicit relations with many women in the village. To connect the accused with the present crime, however, the prosecution put in Mss. Fateh Bibi(P. W. 12) to depose about the motive behind the present occur--rence. She also stated that the Police had interrogated five women, namely, Mst. Walian; Mst. Dhammi, Mst. Mehtaban, Mst. Bhawan and Mst. Bhallah in the village and then let them off after receiving illicit remunerations from them. She, according to her, was the sixth to be interrogated by the Police and as sire had no brother or parents, therefore, the police after mercilessly beating or otherwise coercing her falsely cited her as a witness. In the very nature of things, according to the prosecution itself, Mst. Fateh Bibi is a woman of loose character. She made con--tradictory statement, in the committing Court and in the Court of Session Her character and status, in these circumstances, cannot obviously inspire confidence and it cannot be held with certainty as to which of her statements can be considered as a gospel truth. In these circumstances, I would rule out totally the deposition of this witness from consideration.
7. Coming to the extra-judicial confession and the recovery of the shot-gun (Exh. P. 5), both of these can be taken up together. The extra-judicial confession is alleged to have been made before Muhammad Sarwar (P. W. 11). It is to state that he is a Sarbarah Lambardar of Chak No. 104/N. B., which is situated at a distance of one mile from Chak No. 94/N. B., where the occurrence had taken place. The witness deposed that on 6-3-1968, he was sitting in the company of Mian Muhammad Arif (not produced) at his baithak adjacent to his residential house in Chak No. 104 at about 6-30 a.m. According to this witness, the accused at that time approached him for help and stated that on account of his illicit relations with Mst. Fateh Bibi Tarkhani of Chak No. 94/N. B., he had killed Muhammad Amir over a heap of rubbish at about 10 p.m. Because earlier he had seen the said Muhammad Amir in the house of Mst. Fateh Bibi with whom he had illicit relations. The witness did not apprehend the accused and let him off saying that he would help him. The witness then went to Chak No. 94/N. B., and informed the police which came to the Chak of the witnesses, namely, Chak No. 104/N. B. The accused, as already stated, bad left in the meantime. According to the prosecution case, as put for--ward through another witness Manzoor Hussain (P. W. 10) the accused was seen passing near the house of Dr. Nasrullah of Chak No. 104/N. B. Shortly, thereafter a police party came and enquired about the accused. P. W. 10 and another person told the police that they had seen the accused passing from that place. Then they accompanied the police and when they reached near Chak No. 103/N. B., the accused was pointed out to them by some other persons whereupon the police arrested him and recovered the shot-gun (Exh. P. 5) from his person.
This witness, namely, Manzoor Hussain belongs to Chak No. 107/N. B. According to him he had come to Chak No. 104/N. B. The distance between these two Chaks is of four miles. He deposed that he had taken a patient from Chak No. 107/N. B. To one Dr. Nasrullah and it was in that connection that he was present at his house. When the witness noticed the accused passing by the side of the house of Dr. Nasrullah, he did not notice any shot-gun in his hand. The conduct of the witness is very strange, inasmuch as, when the police party came he left the patient whom he had brought to the doctor as unattended and went away with the police. If the accused was really carrying any shot-gun then it must have been noticed by this witness at ii or 9 a.m., when the accused passed in his view. In the committing Court, Muhammad Sarwar (P. W. 11) admitted that the confession was procured by him from the accused on the promise of help. He admitted that he had appeared earlier also in two police cases.
8. Continuing with the discussion of the statements of these two witnesses, namely, Manzoor Hussain (P. W. 10) and Muhammad Sarwar (P. W. 11), together, I must say that they have not inspired my confidence. So far as Manzoor Hussain (P. W. 10) is concerned, the doctor, namely, Dr. Nasrullah, to whom he had gone, has not been produced. The prosecution also has not produced the patient whom Manzoor Hussain (P. W. 10) allegedly brought with him to Dr. Nasrullah. The story that the accused passed in front of his view cannot be believed, because if later on the accused was found carrying a gun with him, then at that time also the gun should have been with him. He states that two other persons of Chak No. 103/N. B. Had also come there but they again have not been produced. The second recovery witness in whose presence the gun was taken from the person of the accused has also not been produced. Similar is the conduct of Muhammad Sarwar (P. W. 11). He is a stock police witness and his conduct seems to be quite unnatural. For the various reasons hereinbefore mentioned, I would not like to rely upon their testimonies.
9. The upshot of the above discussion is that this is a case of total lack of evidence, and conviction of the accused, in these circumstances, cannot be based on mere surmises and conjectures. There are grave doubts, the benefits of which must obviously be given to the accused and not the prosecution. The result is that the appeal is accepted ; the conviction and sentence of the appel-- lant are set aside and it is directed that he should be set at liberty forthwith if not required in any other case in accordance with law.