Mushtaq, aged 25 years, has appealed from jail against his conviction under section .302 of the Pakistan Penal Code and sentence of transportation for life for causing the death of his own brother Ishaq on the night of 19/20-4-1968.
2. The prosecution case is that the' appellant had developed illicit relations with Mst. Irshad Begum, the wife of his brother Ishaq. They were surprised, a week before the occurrence by Muhammad Nawaz (P. W. 7), and Khadim (P. W. 8). They, however, begged for pardon and were excused. On the night of 19/20-4-1968, Ishaq, while asleep, was killed. Sultan Muhammad Lambardar (P. W, 9) was informed of it. He started for reporting the occurrence to the police. On the way Muhammad Nawaz (P. W. 7) met him and informed him as to who could be the assailant of Ishaq. He, in that context, named the appellant and also mentioned the incident of a week before when he was found with the wife of the deceased. Sultan Muhammad wrote a ruga, Exh. P. A. Addressed to the Station House Officer, Police Station Saddar, Wazirabad, informing him of the occurrence and expressing suspicion on Mushtaq, appellant, who was reported to have disappeared from the village. The First Information Report was recorded by Ch. Sultan Ali who went to the spot, attended to the dead body, and sent it to the mortuary. He got prepared the site plan and also effected recoveries of the blood-stained articles. The appellant was produced before the investigating officer the next day, he having made an extra-judicial confession before Sultan Muhammad (P. W. 9) and one Ahmad Bakhsh (not produced). He led to the recovery of blood-stained toka, Exh.P.11, from a heep of rubbish. It was found to be stained with human blood.
3. Doctor Aftab Ahmad performed the post-mortem of Ishaq and found:
(1) An incised wound 3' x 2' x bone deep on the neck cutting, trachea, oesophagus and right artery and vein.
(2) An incised wound 1--' x 1" x 1 /2' x bone deep on the front and middle part of left clavical.
According to the Doctor, injury No. 1 was sufficient to cause' death in the ordinary course.
4. The appellant when examined at the trial, denied having' committed the crime. He also denied having maintained illicit --relations with Mst. Irshad Begum or to have been found making indecent overtures by Muhammad Nawaz and khadim. He denied-- having led to the recovery of the toka or to have confessed before' Sultan Muhammad. He stated that he had been implicated in the, case because of enmity of the prosecution witnesses.
5. The learned trial, Judge arrived at the guilt of the appellant an the basis of ,evidence with regard to motiVts fur iti tht' extrajudicial confession about it, and the recovery of the toka which wasstained with human blood at the instance. Of the appellant.
6. I find that it is not possible at all to maintain the con--viction of the appellant because the defects in the prosecution case are glaring.
7. In the first place none of the natural witnesses to the occurrence has been produced. The occurrence had taken place during the night while the deceased was asleep. Near about him there were at least six persons who were sleeping, one of them being the appellant himself. Though all these persons were examined by the Investigating Officer yet none of them has been produced.
Instead the witnesses produced are all interested and highly inimical to the appellant. Sultan Muhammad admits that A during his elections he was opposed by the appellant and his family.
Muhammad Nawaz. (P. W. 7) the witness of motive related to Sultan Muhammad (P. W. 9) and Khadim (P.W. 8) is his friend. Fazal Elahi, the witness of recovery, is a close friend of Sultan Muhammad, while Qazi Mustansar Hussain (P. W. 11), another witness of recovery, was interested in his ejectment. With such interested evidence to the exclusion of witnesses who could normally be competent to state about the occurrence, the prosecution case cannot be said to be free from doubt.
8. The implication and the credibility of Sultan Muhammad (P. W. 9) can be judged from this fact that he was informed at his dera early in the morning of the murder of the deceased but he did not remember and was not prepared to disclose the name of the person who brought this important information to him on which he started acting as if he himself was the Police Officer charged with the responsibility of finding out the culprit. His first act in discharge of such a self-imposed responsibility was to establish contact with Muhammad Nawaz and to equip himself with the- motive. Next he joined a gathering where the possible culprit was being located and it is revealing to study the process which was gone through by this witness and others before the ruqa, Exh. P. A.
Was written. At the trial, Sultan Muhammad (P. W. 9) stated as follows: - "...The respectables and the beradari were sitting in an open space near the Adda. They were trying to locate the murderer. There were about ten or fifteen persons. Two or four were from the respectables and the rest were from the brotherhood. Barkat Ali contractor and Rashid a Thaikedar were out of the respectables. The names of others I do not remember. Qutab Rabbani, Chairman, Union Council, and Master Allah Ditta from their beradari were also there. I do not remember the names of other. Barkat Ali, Rashid, Qutab Rabbani and Master Allah Ditta are alive and are residing in village Sodhra. When I reached them they had not come to any conclusion who are the actual assailants in this case. I did not enquire from them about any assailant. They, however, were not up to that time pointing any man who would be responsible for the occurrence. When I told them what I hall learned from Nawaz then, the respectable and the brotherhood joined their heads to come to some positive conclusion. I wrote this ruqa after half an hour after reaching there. During the struggle the delibera--tions continued..."
As regards the motive itself, it is not the case of Muhammad --Nawaz (P. W. 7) or Khadim (P. W. 8) that they disclosed to any one what they had seen. Besides that they stated in the first instance before the police to have seen was not what they said at the trial. Therefore the chance evidence of such a motive has also to be rejected outright.
9. As regards the extra judicial confession, one witness to it, namely. Ahmad Bakhsh, has not been produced on the ground that he was produced in the commitment Court and was declared hostile.
The credentials of Sultan Muhammad being what they are he cannot at all be accepted as a truthful witness about the motive.
10. We are left therefore with the evidence of recovery. The Investigating Officer's work, it appears, was done in the case by Sultan Muhammad. The place of recovery was out in the open accessible to the public a heap of rubbish lying near the well. From there the toka was picked up. The recovery is discredited by the statement of Fazal Elahi who stated that he voluntarily and the investigation on the first day but was asked by the office Officer to turn up again the next morning as if the recovery of the toka had been timed.
11. I find that the prosecution case is unworthy of any credit whatsoever. Accepting the appeal, I set aside the conviction and sentence of the appellant and acquit him of the charge. He shall be released from the prison forthwith unless his detention is required in some other case.