K. M. A. SAMDANI, J.-This judgment will dispose of Murder Reference No. 128 of 1971, Criminal Appeal No. 235 of 1971, and Criminal Appeal No. 576 of 1971; all arising from the judgment dated 9th March 1971, of Mr. Hassan Nawab Chaudhry, Additional Sessions Judge, Sargodha, whereby he convicted the appellant in Criminal Appeal No. 235, namely Ahmad Khan aged 43, under section 302, P. P. C.
And sentenced him to death for the murder of his younger brother Ghulam Hussain aged 25 while acquitting Haq Nawaz and Muhammad Akbar, respondents in Criminal Appeal No. 516, who bad been tried along with Ahmad Khan appellant on the same charge. Criminal Appeal No. 576 is by the State against the acquittal of the said respondents. Needless to say that Criminal Appeal No. 235 is directed against the conviction and sentence of Ahmad Khan appellant while the reference is under section 374, Cr. P. C. For the confirmation of the sentence of death.
2. The prosecution case is as follows:- Ahmad Khan appellant sought the band of Mst. Shahran P. W. In marriage but was turned down by her father. She was then married by her father to Ghulam Hussain deceased, the younger brother of Ahmad Khan appellant. This, according to the prosecution, created bad blood between the two brothers. Subsequent to this marriage, the father of Mst. Shahran died and his property devolved upon Mst. Fazian his widow, Mst. Shahran his daughters, and Allah Ditta his son. However, Allah Ditta, the brother of Mst. Shaman, being a blind man, he and his mother both transferred their own shares to Mst. Shahran P. W. The devolution of property on Mst. Shahran added further to the appellant's sense of deprivation. So, about two years after Mst. Shahran's marriage, Ahmad Khan appellant killed Ghulam Hussain deceased with the help of Haq Nawaz and Muhammad Akbar co- accused on the 9th of December 1969, by taking him to a nearby forest from the village on the pretext of cutting wood for fuel. It has further been alleged that since the relations between Ahmad Khan appellant and Ghulam Hussain deceased were strained. The former lived in the house of Haq Nawaz respondent to whom his sister was married rather than in the house of his brother Ghulam Hussain deceased. It may be mentioned here that they are all residents of village Kucher in the District of Sargodha which is 14 miles from the Police Station Katha Sagbral. The three accused did not only kill the deceased, according to the prosecution, but also back the dead body into pieces.
Then they wrapped it into the bundles and disposed of it.
When the deceased failed to return home in the evening of the 9th of December 1969, and also on the days following, Mst. Shahran suspected foul play and ultimately reported the matter to the police at the Police Station Katha Saghral on the 12th of December 1960, suspecting the three accused, namely, Ahmad Khan, Haq Nawaz and Muhammad Akbar .Of having committed the murder of her husband. 1n the course of the investigation that ensued, Ahmad Khan appellant is said to have led to the recovery of the bundles containing the remains of the deceased and Haq Nawaz and Muhammad Akbar are said to have confessed to the commission of the crime and also to have led to the recovery of the weapons of offence.
The accused pleaded not guilty to the charge of murder, denied any involvement in the murder of Ghulam Hussain deceased and stated that since Fazal Khan, the Lambardar of the village, had an eye on the land that came to be owned by Mst. Shahran P. W. He managed to eliminate Ghulam Hussain deceased somehow and got them falsely implicated to this case in order to have 'free access' to the land. The accused, however, led no evidence in defence.
3. As there is no direct evidence in this case, the prosecution case rests entirely on circumstantial evidence. The circumstances which, according to the prosecution, establish the guilt of the three accused persons are that Ahmad Khan appellant had a motive to kill the deceased, he and the co- accused were the persons seen last in the company of the deceased, the dead body was recovered at the appellant's behest, Haq Nawaz and Muhammad Akbar respondents made extra judicial confessions fully implicat--ing themselves as well as Ahmad Khan appellant and also led to the recovery of the weapons of offence.
4. The most important circumstance in this case; in our opinion, is that Haq Nawaz and Muhammad Akbar respondents allegedly made extra---judicial confessions which disclosed the manner in which the crime was committed. The witness to the confession of Haq Nawaz respondent is Haitam Khan P. W. 11 and the witness to the confession of Muhammad Akbar respondent is Fazal Khan (P. W. 13) the Lambardar of the village. These two witnesses unhesitatingly stated before the trial Court that the two respondents made a clean breast of themselves by confessing to their partici--pation in the commission of the crime and giving all the details thereof.
But it is to be noted that either witness admitted to mention this important fact before the Inquiry Court. There is no explanation whatsoever on record of this material omission. Therefore, the only inference that can be drawn from this circumstance is that the story of confessions was introduced as an afterthought only at the stage of trial and Haitam Khan and Fazal Khan witnesses readily agreed to falsely testify in that respect. This shows that the two witnesses are either so unscrupulous that they do not think much of fabricating false evidence even in a criminal case which entails capital punishment or they are for one reason or another interested in sending the appellant as well as the co-accused to gallows by hook or by crook. In either case their testimony, even in respect of the other circumstances of the case will have to be rejected altogether.
Now, these two persons ate the only witnesses examined by the prosecution, besides of course the Sub-Inspector who investigated' this case, to prove that it was Ahmad Khan appellant who pointed out the scene of the crime and the site where the pieces of the dead body had been concealed, and that it was Haq Nawaz and Muhammad Akbar respondents who led to the recovery of the weapons of offence. Therefore, the recoveries are all doubtful. The doubt is further confirmed by the fact that while according to the Sub-Inspector (P. W. 12) and Haitam Khan and Fazal Khan P. Ws, 11 and 13 it was Allah Jowaya Shah P. W. Who had produced Ahmad Khan appellant before the police for arrest on the day following the registration of the case, Mst. Shahran (P. W. 10) admitted before the committing Magistrate that Ahmad Khan had appeared before the police at the police station right at the time she had gone there with Fazal Khan Lambardar to make the first information report and .That the said Lambardar had there and then charged Ahmad Khan appellant with the murder of the deceased. Although Mst. Shabran went back upon this statement, when examined at the trial, she had no explanation to offer for the inconsistency in her testimony.
We are, therefore, satisfied that the testimony relating to the recoveries of the dead body and the weapons of offence as well as to the extra-judicial confessions is worthy of no credit. Thus we are left only with the evidence indicating that the accused were the persons last seen with the deceased and that at least Ahmad Khan appellant had a grudge against the deceased which motivated the murder.
5. Now, the witnesses who deposed having seen the deceased in the company of the accused before his disappearance are Sahib Khan (P. W. 91 and Mst. Shahran (P. W. 10). As for the latter, she admitted in the course of her cross-examination at the trial that when Haq Nawaz and Muhammad Akbar respondents came to her house to call the deceased on the fateful day, she identified them by their voices alone as she was inside the kotha at that time, and subsequently, as they were going towards the forest and Ahmad Khan appellant had also joined them, she identified all the three accused bi, merely looking at their backs from a distance of half a bigha as only their backs were towards her when she came out of the village abadi to fetch water from the spring situated to the North of the village. Such identification in our view is too insufficient to carry conviction.
As for Sahib Khan (P. W. 9) he is admittedly a nephew of Fazal Khan Lambardar whose morbid interest in securing the conviction of the accused has been already demonstrated above. And besides, this witness appears to be as unscrupulous as his uncle. He stated before the committing Magistrate that the police had arrived in the village in connection with this case on the 12th December 1969, but before the trial Court denied all knowledge of that fact as according to him, he had gone to village Jaba on that day. He was unable to reconcile the two statements when confronted therewith. Further, he explained to the committing Magistrate his failure to appear before the police on the 12th and 13th December 1969, by stating that he had not been summoned by the police before the 14th December and he did not deem it necessary to go to the police voluntarily in connection with the case. But when examined by the trial Court he completely denied having so stated before the committing Magistrate and tried to explain his failure to appear before the police promptly by stating that be had gone away from the village. It is thus clear that no reliance can be placed on the testimony of this witness either. Further, the last seen evidence can at best serve as a place of corroboratory evidence but cannot, by itself, form the basis of conviction.
6. As to the motive, we are of the opinion that there was none. If the appellant (Ahmad Khan) was to kill his younger brother on account of Mst. Shahran's marriage, to the latter, there was no reason for him to wait for two long years particularly when both of them lived in the same village. And there could be no dispute between the two brothers with regard to the property of the father-in- law of the deceased in the presence of a surviving son of the proposition even if it be assumed that the father-in-law of the deceased was a collateral of the appellant. It was also admitted by Mst.
Shahran P. W. That during the two years of her marriage the appellant neither teased her ever nor assaulted her husband. Fazal Khan Lambardar, however, tried to introduce at a rather late stage another dispute between the brothers namely one over the property left behind by their own father.
But it is unbelievable that the appellant should, for the first time, demand a share in his father's property from his brother 15 or 16 years after the father's death.
We, therefore, hold that Ahmad Khan appellant did not bear a grudge of the kind against the deceased that would prompt him to commit the murder of the latter. At any rate, mere existence of motive to commit a came does not prove the commission thereof.
7. In our opining, therefore, the conviction of Ahmad Khan appellant is not maintainable and Haq Nawaz and Muhammad Akbar respondents were rightly acquitted. The State appeal accordingly fails and the appeal of Ahmad Khan succeeds. Consequently we reject the State appeal, accept the appeal of Ahmad Khan appellant, decline to confirm the sentence of death passed on him, set aside his conviction and sentence and acquit him.