Aish Bahadur and his real brother Muhammad Zakariya sons of Rehmatullah, aged 36 and 31 years, respectively, Rajput by case cultivators of village Okhh Mohala, Police Station Gunjial, have been convicted under sections 304, Part I and 201, P. P. C., and sentenced to undergo five years' rigorous imprisonment in each case, by the learned Additional Sessions Judge, Sargodha, vide his order dated the 24th of June 1972. The sentences were ordered to run concurrently. In this appeal, both the appellants have challenged the order of the learned Additional Sessions Judge.
2. The first information report (Exh. P. A.) was lodged on the 22nd of August 1970, at about 7-30 p.m.
By Mian Muhammad son of Ghulam Khawaja. Mirasi by case, resident of Dera Muhammad Hayat, at Police Station Gunjial, with regard to an occurrence which is alleged to have taken place a month prior to the registration of the first information report. Abdul Rashid A. S. I. (P. W. 14) recorded the statement. Mian Muhammad P. W. In the first information report stated that he was cultivating the land of Muhammad Hayat resident of Utra as a tenant for the last 4/5 years, his son Ghaus Muhammad aged 30/32, was working as a mistri at the Flour Mill of Aish Bahadur. Ghaus Muhammad used to come after every 4/5 days to Dera Muhammad Hayat to see his family. It was about a month ago that Ghaus Muhammad came to the Dera for the last time and then he did not turn up for about eight days. The complainant then went to Okhli Mohla at the Flour Mill of Aish Bahadur. He did not find his son there and on enquiry from Aish Bahadur the complainant was informed that his son Ghaus Muhammad had left the Flour Mill eight days before after having been paid his wages. The complainant searched for his son at every possible place but did not find any trace of him. Four days prior to the lodging of the first information report the complainant along with his eldest son Ata Muhammad and Fateh Sher son of Muhammad Sher, second time went to the Flour Mill of Aish Bahadur and again enquired from him abut Ghaus Muhammad. Aish Bahadur became very perturbed and told them that Ghaus Muhammad had been finished and could not be traced. The party then returned, both the complainant and his son Ata Muhammad went on enquiring from different Zamindars according to the custom of the locality and finally went to Haji Dost Muhammad. The complainant and his son Ata Muhammad and Fateh Muhammad then came to Utra and informed Haji Dost Muhammad of the facts, on which Haji Dost Muhammad sent for Aish. Bahadur and Zakraya. Haji Dost Muhammad enquired about the details from them. Both of them while confessing their guilt told that the deceased Ghaus Muhammad had illicit relations with Msst. Ghulam Fatima daughter of Muhammad Ishaq, who was tile niece of Aish Bahadur and Muhammad Zakaraya. It was on account of this that both the appellants killed Ghaus Muhammad, cut him to pieces, placed the dead body in two drums and threw it in a deserted well nearby. Both Aish Bahadur and Muhammad Zakarya tendered an apology for their sin. The complainant concluded the first information report by stating that his son Ghana Muhammad had a transistor which he used to keep always with him and was very fond of listening to songs. The complainant, his son Ata Muhammad and Mst. Rasulan, wife of the deceased, could easily recognise the transistor.
3. On the above-mentioned allegations made in the first information report both the appellants were hauled up for the murder of Ghaus Muhammad and were also charged under section 201, P. P.
C.
4. The prosecution in support of its case relied on the testimony of Mian Muhammad P. W. 9, Fateh Sher P. W.
12. And Ata Muhammad P. W. 13, who deposed with regard to the extra judicial confession made by the appellants before them, as well as that of Ahmad Sher P. W. 10, and Falak Sher P. W. 11 who are the recovery witnesses of the dead body of the deceased and hatchet P. W, which-is alleged to be the weapon of offence in this casa. The other evidence is that of Dr. Abdul Ghafoor, who performed the post-mortem examination of the dead body of Ghaus Muhammad and that of Ibrahim P. W. 7 who identified the dead body at the time of post---mortem examination and who is the deceased's sister's husband.
5. There is no ocular evidence with regard to the alleged occurrence. Therefore, the point for consideration is whether the evidence of extra---judicial confession coupled with that of recovery of the dead body as well as that of hatchet at the instance of the appellants provides such a solid and reliable evidence that their convictions and sentences could be upheld.
6. Mian Muhammad P. W. 9's evidence before the committing Court was transferred under section 33 of the Evidence Act to the file of Sessions bemuse he died before the commencement of the trial. This witness deposed that the deceased Ghaus Muhammad was his son and then narrated the version as given in the first information report, which has been reproduced above. However, one thing is very significant in his examination-in-chief, when he deposed that the appellants begged for forgiveness but as her did not accede to this request Haji Dost Muhammad directed him to report the matter to the police and allowed the appellants to go. In cross---examination he denied the suggestion that the deceased had abducted the wife of Ghani Muslim Sheikh and was caught red-handed. The witness further deposed that his son remained in the service of Mehr Khan and Aish Bahadur accused, but denied the suggestion that his son was of loose character and that nobody was prepared to employ him and that wife of the deceased had not cordial relations with him. This witness said that it was incorrect that at the time of occurrence wife of the deceased was living with her parents.
7. The other two witnesses with regard to the extra judicial confession are Fateh Sher and Ata Muhammad, Fateh Sher was requested by the father of the deceased, Mian Muhammad and his brother Ata Muhammad to accompany them to enquire from Aish Bahadur with regard to the where--abouts of the deceased. According to the evidence of Fateh Sher P. W. When they contacted Aish Bahadur he found him to be very much non-pulsed and told them that they would not be able to find the deceased. According to this witness two days thereafter the party then approached Haji Dost Muhammad. Haji Dost Muhammad sent for the appellants and it was then that both the appellants confessed about the murder of Ghaus Muhammad, which they had committed with a hatchet and then after putting the dead body in two drums threw the same in a deserted well. In cross-examination the witness admitted that Noor Muhammad, a brother of the deceased Ghaus Muhammad was his servant and that he did not go to the police station on that day or even on the following day for according to the witness it was for Mian Muhammad and Ata Muhammad to have reported the matter to the police. He did not even enquire from Mian Muhammad and Ata Muhammad` whether or not they had made any report to the police and admitted in cross-examination that the main purpose of contracting Haji-Dost Muhammad was to seek his help in getting a case registered with the police. He also admitted the fact that many other persons were present with Haji Dost Muhammad at that time and that Haji Dost Muhammad had taken away the appellants in 'the rear of his shop, whereas the witness and others remained sitting in the shop. Nevertheless he emphasised this fact that the accused had also made the confession in the presence of the witness as well as others. He admitted that Haji Dost Muhammad was his friend but Ahmad Sher and Falak Sher P. Ws. Were only his acquaintances. The last witness in this sequence is Ata Muhammad, who is the real brother of the deceased. The story given by this witness is exactly the same as that of Mian Muhammad, his father. In cross---examination he stated that Haji Dost Muhammad made enquiry from the accused inside his shop and not behind it. He deposed that be did not state before the committing Magistrate that Haji Dost Muhammad took the accused separately behind the shop while the rest remained in the shop When confronted with his statement before the police it was found that he had stated so.
8. Mian Muhammad P. W. 9 as observed above, was the father of the deceased, Ata Muhammad P.
W. 13, real brother of the deceased and Fateh Sher P. W. 12 admitted that Noor Muhammad, a brother of Ghaus Muhammad deceased, has been his servant. In view of very close relationship of the two witnesses with the deceased and the fact that Noor Muhammad, a real brother of the deceased, was once a servant of Fateh Sher P. W. Their testimony deserves to be thoroughly scrutinised before the same could form the basis-for the conviction of the appellants. The most useful material, and natural witness in this case would have been Haji Dos Muhammad, on whose intervention the complainant party came to know for the first time the murder; of Ghaus Muhammad, but I find from the statement of the Additional Public Prosecutor that his witness was given up as having been won over by the accused. Nevertheless, if that was so, the prosecution could pave easily produced some other reliable independent witness to depose about the extra- judicial confession of the appellants, because Fateh Sher P. W. In his cross examination admitted that many other persons were present along with Haji most Muhammad. This very witness in cross- examination stated that Haji Dost Muhammad had taken away the appellants in the rear of his shops whereas the others remained sitting in the shop, his clearly implies that, if at all, a confession was made that might have been done before Haji Dost Muhammad, although this particular witness in the next sentence said that the appellants had made a confession in their presence as well but when his evidence is compared with that, of the real brother of the deceased Ata Muhammad P. W., it is to be found that Ata Muhammad P. W. Was quite clear in stating that Haji Dost Muhammad made the enquiry from the accused inside the shop and not behind it. These contradictions are very material and cannot be lightly taken especially where question of genuineness of the extra-judicial confession is to be, examined. Ata Muhammad P. W. Admitted that some other persons were also present at the shop of Haji Dost Muhammad, but they were not known to the witness. Another important fact to be noted in the evidence of this witness is when he stated that, their purpose of going to Haji Dost Muhammad was to make enquiry from the accused.
When this evidence is taken along with the evi--dence: of Fateh Sher P. W. Who deposed that their purpose in contacting Haji Dost Muhammad was to elicit his support in getting, a case registered with the police, it leaves no room for any doubt that Haji Dost Muhammad being an influential person of the locality was instrumental in getting a case registered against the appellants.
9. In my view the evidence of these three witnesses is of such a type which does not inspire any confidence and the same, therefore, in the absence of very strong corroborative evidence, would not be sufficient in law to form the basis of conviction of the appellants.
10. So far as the recovery of dead body as the hatchet is concerned, Ahmad Sher P. W. 10, who joined the investigation of the case and attested the recovery memos. Exhs. P. B./ 2 and P. C. With regard to the dead body and the hatchet was declared hostile, and his statement made before the committing Magistrate was transferred to the file of Sessions under section 288 of the Code of Criminal Procedure. Although no reason is given for the transfer of this witness's statement made before the commit--ting Magistrate to the Sessions file, nevertheless I am of the view this piece of evidence does not help the prosecution in proving the two recoveries. Falak Sher P. W. 11 in cross- examination deposed that he (the witness) and Ahmad Sher P. Ws. Were called by the Lambardar to the police station to become witnesses in this- case. They had gone to the place of recovery in a motor-car and Zakaraya and Aish Bahadur accused were present at the police station. The witness further deposed that the deserted well was at a distance of 8/10 killas from the Dora of the accused. The recovery took place in the evening after sunset.
11. With regard to the recovery of hatchet, this very witness in cross---examination deposed that he and Ahmad Sher were present at the police sta--petition and that the police had instructed them on the day of recovery of the dead body to come to the police station on the fourth day. The witness also deposed that the kotha from where the alleged hatchet was recovered was situated along the eastern wall of the haveli and that there were 6/7 other kothas in that haveli. He admitted that the kotha, from where the hatchet was recovered was jointly possessed by the accused and their two other brothers. The witness further Omitted that there were two parties, the accused belonged to the party to Khauda Yar whereas he (the witness) was the partisan of Haji Ghulam Muhammad Lambardar. The evidence of this witness stands materially contradicted when compared with the testimony of the Investigating Officer Muratab A.I, Sub-Inspector (P. W. 15), because the Investigating Officer in clear words deposed that Ahmad Sher and Falak Sher P. Ws.
Were present with him near the dera of the accused when Aish Bahadur accused appeared and got the hatchet recovered. The Sub-Inspector further deposed that these witnesses had themselves come there and that be had not sum--moned them. The Investigating Officer then stated that the kotha from where Aish Bahadur got the hatchet recovered was not a residential one and that it had only one opening toward its east and had no shutters. Falak Sher P. W. Cannot also be relied for another reason because he was sure that the deserted well was at a distance of about 8/10 killas from the dera of the accused whereas Ghulam Murtaza Patwari (P. W. 6) who prepared the site-plan, stated that the dera of the accused was at a distance of 22 karams from the deserted well.
12. No useful purpose would be served in discussing the evidence of Doctor Abdul Ghafoor P. W.
Who performed the post-mortem examination of the dead body of Ghaus Muhammad, because I am not convinced with regard to the evidence of extra judicial confession and recoveries.
13. The appellants in their statements before the trial Court admitted that they were real brothers and that Ghulam Fatima was their niece. They else admitted that the deceased was an employee at their Flour machine. The rest of the allegations made against them were denied by them. When asked why have they been implicated in this case, they said that it was on account of enmity with the prosecution witnesses.. Aish Bahadur appellant stated that Ghaus Muhammad had left his service one and a quarter months before the registration of the case and has gone away to his house and he did not know anything about him thereafter.
14. In paragraph 9 of the judgment I find that the learned Additional Sessions Judge has held that it could be fairly presumed that something happened all of a sudden and the accused killed the deceased under some grave provocation. It was further held that what appeared probable was that the deceased might have been seen in objectionable position with the niece of the accused and therefore he was killed under grave and sudden provocation. I find from the entire evidence on record that there is not the slightest possible indication to justify this finding. The finding, as such is based on mere conjectures and cannot be upheld. Otherwise too, to the light of the above discussion I am of the view that the evidence with regard to the extra-judicial confession as well as that of recovery is not at all reliable and, therefore, it is not safe to base the conviction on this evidence.
15. The upshot of the whole discussion is that I am of the view that the prosecution has not been able to prove its case beyond reasonable doubt. This appeal, is therefore, allowed. The convictions and sentences of the ap--pellants are set aside. They shall be set at liberty provided that their detention is not required in any other case.