SARDAR MUHAMMAD DOGAR, J.--F.I.R. (Exh. P.D.) was recorded at Police Station Bhagtanwala, district Sargodha, by Muhammad Saleem, S.I. (P.W.5), on the statement of Moris Mash (P.W.10), brother of Yunus deceased, under section 302, P.P.C., on 7-1-1983, at 1 a.m. (during night of 6th/7th of January, 1983).
2. The complainant, who used to cultivate the land of Ch. Majid Ahmad along with his deceased brother, had gone to the village, leaving the deceased at the Dera of Ch. Majid, in the area of Chak No. 37/Janubi, in the evening of 6th of January, 1983. When he returned to the Dera along with Hidayat, his maternal uncle with meals for the deceased, he found him lying dead on the cot with throat cut. He mentioned the same facts in the F.I.R. And stated that some unknown person had murdered his brother. He also stated that he did not suspect any person.
3. Muhammad Saleem, S.I., after recording the F.I.R. Visited the spot. After preparing necessary papers, he despatched the dead body for post--mortem examination. He also took into possession blood-stained bedding clothes on the cot, on which the deceased was found lying murdered.
During investigation of the case, Yunus Masih son of Allah Ditta was produced before him on 27-2- 1983 by Nasim Ahmad (P.W.11), Zafarullah (P.W.12) and given up P.W. Hidayat Masih.
On the same day, after arrest, the accused led to the recovery of his blood-stained shirt (P.9), and Chadar (P.10), from the sugarcane field, in Sq. No. 13 of Chak No. 42/SB. They were taken into possession, vide memo. Exh. P.J. Same day, he led to the recovery of blood-stained Kulhari (P.11) also from the same sugarcane field. It was taken into possession, vide memo. Exh. P.K. Both the memos. Were attested by Nasim Ahmad (P.W.11), Zafarullah (P.W.12) and given up P.W. Hidayat Masih, apart from the S.I. After completion of necessary investigation, the challan was put to Court.
4. At the trial prosecution produced evidence of motive, evidence of recovery of blood-stained clothes of the accused at his instance, evidence of recovery of blood-stained hatchet, at the instance of the accused and the evidence of extra-judicial confession, said to have been made by him before Nasim Ahmad (P.W.11) and Zafarullah (P.W.12), to prove the charge against him. Positive report from the office of the Chemical Examiner and from the office of the Serologist, were also tendered in evidence to prove that the blood-stained clothes and the hatchet recovered at the instance of the accused, were stained with human blood.
5. The prosecution had examined twelve witnesses in all.
6. Dr. Muhammad Saeed, who had performed the post-mortem, appeared as P.W.1. He noted the following injuries on the body of the deceased:--
(1) Incised wound, 7" x 5", bone cut, muscles, blood vessels, tracheae, oesophagus, first cervical vertebra also cut on front of neck, starting below chin, more on left side.
(2) Incised wound 6" x 1" on front of neckbone cut, on right lower mandible, adjacent to injury No. 1, but more on right side.
(3) Incised wound, 2" x 1/2" bone deep, on right side of neck, below injury No. 2.
On dissection, he had found tracheae, oesophagus, muscles, blood vessels and first cervical vertebra cut. Pieces of bones from lower mandible on right and left side were also found cut. Semi- digested food was found in the stomach.
The doctor opined that death had resulted due to haemorrhage and shock, resulting from injuries 1, 2 and 3, which-were sufficient to cause the death in the ordinary course of nature.
6. Moris Masih complainant, who appeared as P.W.10, stated that on the night of occurrence, he had found his brother Yunus lying murdered on the cot in the Dera of Zamindar, when he had returned from the village along with Hidayat, with meals for the deceased. He added that Yunus accused had developed illicit relations with Mst. Seeman, wife of the deceased. He also made an improvement by stating that they had come to know on the following day of occurrence that the accused had murdered the deceased. In cross-examination, he stated that when he returned to the spot with the police, after lodging the report, the wife of the deceased was present along with other family members and she was interrogated by the police. He also stated that she was kept at the police station for 5/6 days and was also given beating. In answer to another question, he stated that he did not know about the illicit relations of the accused with the wife of the deceased before the occurrence. According to him, this fact was not known to the deceased also.
7. Zafarullah (P.W. 12). Stated that the accused came to his Dera, some time before evening prayer time when Nasim Ahmad and Hidayat Masih P.Ws. Were sitting with him. According to him, the accused made a confession before them that he had illicit relations with Mst. Seeman, wife of the deceased, and he had murdered the deceased with hatchet on that account. According to him, the accused, on inquiry, had told them that he had hidden his clothes and hatchet in the sugarcane field belonging to Abdul Majid. He stated that he directed the accused to come on the following day. The accused again came to him on the following day at Peshiwela, whereafter, he was produced by him before the police at the Adda of Pucca road, along with Nasim Ahmad and Hidayat Masih. He also stated about having witnessed the recoveries of blood-stained shirt (P.9), Chadar (P.10) and hatchet (P.11), from the sugarcane field, at the pointing out of the accused, and attested the recovery memos. (Exhs. P.J. And P.K). During cross-examination, he denied that Moris and Hidayat P.Ws. Were his tenants. However, he admitted that now (at the time of trial), Moris was cultivating his land. In answer to another question, he stated that the Lambardar had not accompanied them at the time of recoveries. He admitted that place of recoveries was surrounded by Deras and was accessible. In answer to another question, he stated that he had not talked to any person in the village about the confession of the accused, for the reason that the accused had promised to come back on the following day. He denied the suggestion that the accused had neither confessed before him, nor had led to the recoveries.
8. Nasim Ahmad, who appeared as P.W.11, corroborated the statement made by Zafarullah P.W. Lie admitted that Zafarullah P.W. Was his uncle. Like Zafarullah, he also stated of not having disclosed the fact of confession of the accused to any body in the village till next day when the accused was produced before the police. He denied the suggestion that he had made false statement. He also denied that Moris complainant wastheir uncle.
9. The accused during his statement under section 342, Cr.P.C., denied the prosecution case as a whole. He denied that he had led to the recoveries of blood-stained clothes or the hatchet. In answer to the question, "Why this case against you? And why the P.Ws. Have deposed against you?
He stated as follows:-- "Complainant and the deceased were the personal servant of Zafarullah and Nasim Ahmad P.Ws.
Mst. Siman has murdered her husband. I was arrested by the police on the third day of the murder.
I was kept in custody for more than a month and a ultimately made a scape-goat at the instance of the complainant."
Although he opted to produce defence, but later declined to do so.
10. The learned Additional Sessions Judge, Sargodha, who tried the accused, held him guilty under section 302, P.P.C. Convicted him accordingly and sentenced him to death, plus a fine of Rs.15,000, in default whereof, to undergo R.I. For five years. A sum of Rs.10,000, out of the fine, on realization, has been directed to be paid as compensation to the legal heirs of the deceased.
11. The convict has filed appeal. The learned trial Judge has made reference for confirmation of sentence of death. Both the matters are being disposed of by one judgment.
12. Arguments heard. It is a case of circumstantial evidence. There is no eye-witness account. The case against the appellant rests on the extra-- judicial confession, said to have been made by him before P.Ws. 11 and 12 and the recoveries of weapon of offence and the blood-stained clothes, belonging to the appellant, at his instance, apart, of course, from the medical evidence.
13. According to the depositions of Nasim Ahmad (P.W.11) and Zafarullah (P.W.12), the appellant had come to them on the evening of 26- 2- 1983 and made confession of having murdered the deceased. He is also stated to have informed them that he had hidden his blood-stained clothes and the blood-stained hatchet, in a sugarcane field, which he can lead to recover. They stated that on their direction, the accused went away and appeared on the next day afternoon, when he was produced before the police.
This stance of the prosecution is contradictory to the statement made by Moris Masih (P:W.10), brother of the deceased, who explicitly stated that he had come to know on the next day of occurrence that the accused present in Court had murdered the deceased and that the accused had developed illicit relations with Mst. Seeman, wife of the deceased. In cross-examination, he disclosed that wife of the deceased was taken into custody by the police. She was kept in custody for 5/6 days and was given beating by the police. According to him, she had told the police that the appellant had committed the murder. He also stated that the appellant had appeared before the police in their village on the next day of the occurrence. He explained that the appellant was produced at the bridge of Chak No. 36/S.B., by the parents of the appellant, and the police after arresting him, had taken him to Chak No. 42/S.B. If that was so, how could the appellant have appeared before P.Ws. 11 and 12 some 46 days after the occurrence at their Dera? The conduct of these witnesses in not taking the appellant into custody and in not producing him before the police on the same day and instead allowing him to go away, with the direction to come back on the next day, also appears unwholesome and doubtful. Investigation of blind murder of their co-villager was underway, how could they have in such circumstances let off the accused, if they had come to know of that, just on the hope that he will appear before them again to repeat the confession. It is admitted by them that Moris complainant was a Mueen of the village and was cultivating their land.
There is no evidence on record that blood-stained shirt (P.9) and Chadar (P.10) belong to appellant, except the statement said to have been made by the appellant before leading to the recovery of these clothes. Nobody stated at the trial that he had ever seen him wearing those clothes. At the trial appellant not only denied to have got the clothes recovered, but also denied that the clothes belong to him.
The evidence of recovery of blood-stained hatchet and clothes from the sugarcane field at the instance of the appellant, appears to be doubtful, in view of the positive reports received from the offices of the Chemical Examiner and that of the Serologist. Had the articles remained lying in the sugarcane field for such a long time, without being buried, unwrapped and uncovered with anything, the blood would have disintegrated because of seasonal effects and as a result of watering of field, which normally would have been done within that span, as it was the season of the growth of the sugarcane crop---------The recoveries, even otherwise, have not been attested by the persons belonging to the vicinity of the place of occurrence.
The motive for which the appellant is stated to have committed the murder, also seems to be without substance, in view of the statement made by Moris (P.W.10), that his brother's wife was living with them. He had denied the suggestion that she had gone to Sind to live with her parents. If she had been the cause of murder, brother of the deceased and other family members would not have tolerated her in their house.
13. After carefully sifting the prosecution evidence, we are of the view, that the prosecution has not been able to prove its case beyond reasonable shadow of doubts. The conviction is not sustainable. This appeal is, therefore, accepted. The appellant shall be released forthwith, if not required for any other case.