' JAVID IOBAL, J.-Gul Muhammad alias Guloo son of Qaim Din, aged 38 years, alongwith 10 others namely, Muhammad Din, Yasin, Yaqub, Muhammad Alam, Fazal Ahmad, Rehmat Ali, Nazir, Manzoor, Tufail and Yusaf were tried for the murder of Muhammad Ibrahim, but vide judgment dated the 9th of September 1972, of the Sessions Judge, Sialkot. Gul Muhammad was convicted under section 302, P. P. C. For the murder of Muhammad Ibrahim and sentenced to death. He was also convicted under section 201, P. P. C. For disposing of the dead body of Muhammad Ibrahim and sentenced to five years' R. I. The sentence of imprisonment was ordered to run concurrently with any other sentence if death sentence was not confirmed. The other accused persons were acquitted. The appeal of Gul Muhammad as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
2. The occurrence took place 20/22 days prior to the registration of the case on the 21st of November 1967, at 4-15 p.m. On the report (Exh. P. A.) of Ghulam Din (P. W. 11) brother-in-law of the deceased, which was recorded by Iftikhar Hussain S. I. (P. W. 23) at Police Station Shakkar Garh, District Sialkot. According to the prosecution, the place of occurrence was near the quarters Kharak Thal, bank of Upper Bari Chenab Canal, District Gujranwala.
' It may be noted that the dead body of Muhammad Ibrahim was not found. Consequently, there is no medical evidence in this case. Further, there is also no eye-witness of the occurrence.
3. There are numerous motives which have been set up by the prosecution in this case. These are: -
(i) That the brother of the appellant, namely, Fazal Ahmad acquitted co-accused had owed some money to the deceased. Likewise, the appellant owed some money to the deceased. On the pretext of repaying him those amounts the deceased was taken away by the appellant from his house in Mauza malakpur to Sheikhuprura, and, therefore, he was done to death by the appellant and the acquitted co-accused. (This motive had been disbelieved by the trial Court for the reasons given in para. 6 of the judgment at page 120 of the paper book).
(ii) It is stated that a no-confidence motion had been moved against Faqir Khan (P. W. 12), Chairman of the Union Council. Rehmat Ali acquitted co-accused paid a sum of Rs, 1,000.00 to the deceased so that he may vote against Faqir Khan P. W. But despite the payment he had received, the deceased voted in favour of Faqir Khan P. W. And as a result he was murdered by the appellant and the acquitted co-accused. (This motive had also been disbelieved by the trial Court).
(iii) Fazal Ahmad (P. W. 6) had stated that the deceased and Mst. Masooma Bibi had jointly purchased land worth Rs, 9,000. Mst. Masooma Bibi was niece of Fazal Ahmad acquitted co- accused and it was said in the village that the deceased had illicit relations with her. This annoyed the appellant and the acquitted co-accused and led to the occurrence. Muhammad Khan (P. W.
17) and Muhammad Siddique (P. W. 19) had stated that the appellant was a hired killer who was to be paid Rs, 5,000.00 by the acquitted co-accused including Tufail for committing the murder of the deceased and that these two witnesses had over-heard the talk about this conspiracy while standing outside the house of Tufail acquitted co-accused.
4. The conviction and sentence of the appellant are based on circumstantial evidence which is based on the following:-
(1) Evidence of the deceased having been last seen in the company of the appellant by Mst. Allah Bibi (P. W. 10), wife of the deceased, Ghulam Din (P. W. 11), brother-in-law of the deceased and Muhammad Shafi (P. W. 13), cousin of the deceased. In their narrative Ghulam Din and Muhammad Shafi P. Ws. Had stated that the deceased was seen in the company of the appellant also by Mushtaq but this witness was not produced. Similarly, they had stated that Ghulam Haider had seen them together in Sheikhupura but this witness did not support the prosecution case, and therefore, was given up as having been won over.
(2) Evidence of extra-judicial confession having been made by the appellant in the presence of Abdul Majid (P. W. 14), Dost Muhammad Headman (P. W. 15) and Muhammad Shafi (P. W. 18). In this respect, the trial Court had disbelieved the testimony of Abdul Majid and Muhammad Shafi P. Ws.
But had relied upon the testimony of Dost Muhammad P. W.
(3) Evidence of the making of the conspiracy in the house of Tufail acquitted co-accused whereunder the appellant was hired for committing the murder of the deceased by the acquitted co-accused and while the arrangement was being made, it was overheard by Muhammad Khan (P. W. 17) and Muhammad Siddique (P. W. 19). The trial Court had not relied upon the evidence of these witnesses.
5. According to the prosecution, the appellant was arrested on the 26th of November 1967, by Iftikhar Hussain Jafri, Inspector Special Police (P. W. 23). He is stated to have led to the following recoveries:-
(i) Recovery of key P. 9 from his person at the time of his arrest which was taken into possession vide memo. Exh. P. C., dated the 26th of November 1967. The names of the attesting witnesses mentioned on this memo. Are of Dost Muhammad (P. W. 15), and Muhammad Shafi (P. W. 13). But they have neither signed nor thumb-marked this recovery memo.
(ii) At the instance of the appellant steel trunk P. 10, which was locked, was recovered from Bashir Ahmad (P. W. 7), who had stated that the appellant had kept the said trunk with him as an atnanat.
The lock of the said trunk was opened with key P. 9 and from it came out revolver P. 7 stated to be belonging to the deceased, bandolier P. 8, licence of revolver P. 13, shirt of the deceased P. 14, telunad P. 15, turban P. 6, and Khasis P. 17 as well as cloth Latha P.
16. These were taken into possession vide memo. Exh. P. B., dated the 27th of November 1967. The names of the attesting witnesses of this memo stated therein are Muhammad Shafi (P. W. 13), Abdul Ghafoor (P. W. 16) (he turned hostile) and the investigating officer Muhammad Anwar Butt S. I. (P. W. 22). It may be pointed out that none except Muhammad Anwar Butt S. I., P. W. Has signed this recovery memo. The other attesting witnesses whose names are written on the recovery memo. Did neither sign nor thumb-mark the same. Further, Bashir Ahmad from whose possession the said trunk was recovered, and who appeared as a P. W., also did not sign or thumb-mark the aforesaid recovery memo.
(iii) Recovery of blood-stained earth from the alleged place of occurrence at the instance of the appellant and taken into possession vide memo. Exh. P. D. Dated the 29th of November 1967. The attesting witnesses of this recovery are Muhammad Anwar and Muhammad Hussain who were not produced.
(iv) Recovery of blood-stained cot arm (sairoo) P. 19 and ban P. 20 at the pointing out of the appellant and taken into possession vide memo. Exh. P. E., dated the 29th of November 1967. The attesting witnesses of this recovery, namely, Muhammad Anwar and Muhammad Hussain were not produced.
(v) Recovery of blood-stained piece of wood at the instance of the appellant from the place of occurrence and taken into possession vide memo. Exh. P. F., dated the 29th of November 1967. The attesting witnesses of this recovery had also not been produced.
(vi) Recovery of blood-stained earth and blood-stained grass at the instance of the appellant and taken into possession vide memo. Exh. P. G., dated the 29th of November 1967. The attesting witnesses of this recovery were also not produced.
' There were other recoveries stated to have been made at the instance of the acquitted co- accused but these had been disbelieved by the trial Court.
6. The appellant in his statement before the trial Court totally denied having participated in the occurrence. He stated that he had been falsely implicated due to enmity.
7. We have heard learned counsel for both the sides and carefully perused the record.
Commenting on the evidence of the deceased having been last seen in the company of the appellant, learned counsel points out that it was observed in para. 6 of the judgment of the trial Court at page 120 of the paper book that there was no evidence of the fact that the appellant was sent to bring the deceased by Fazal Ahmad acquitted co-accused. It is submitted that in this connection the witnesses produced by the prosecution, namely, Mst. Allah Bibi, Ghulam Din and Muhammad Shah P. Ws. Were closely related to the deceased, and further that disinterested witnesses e. g., Mushtaq and Ghulam Haider were not produced. Ghulam Haider was given up because he had not supported the case of the prosecution in this respect before the committing Magistrate. It is also submitted that it was stated by Ghulam Din P. W. In the F. I. R. That the appellant told the deceased in his presence that he had been sent to him by Fazal Ahmad acquitted co-accused so that he could bring the deceased to Sheikhupura in order to receive the amount given by him to Fazal Ahmad acquitted co-accused and further for also receiving Rs, 2000.00 which the deceased had given to the appellant and that it was for this reason that the deceased went away with the appellant. On the other hand, learned counsel points out that Ghulam Din P. W. Had stated in his statement before the trial Court that the deceased asked the appellant as to when would the appellant pay back the amount loaned to him and on this the appellant kept quiet and returned stealthily, coming again to the house of the deceased next morning when he took the deceased along with him. It is submitted that the discrepancy in the statements of this witness was material. It is further submitted that according to the aforementioned witnesses 20/22 days prior to the occurrence the deceased went away from his house in the company of the appellant. Consequently, the possibility of the deceased having separated from the appellant during this period, even if he had left with him, could not be altogether excluded, and therefore, this could not be considered as an incriminating circumstance against the appellant. Reliance was placed on Gulab Khan and another v. The State (1). The argument of learned counsel has force. We note that on this point the prosecution has only produced such witnesses which are very closely related to the deceased. Ghulam Haider who appeared to be a disinterested witness and was stated to have seen the deceased in the company of the appellant at Sheikhupura did not support the case of the prosecution. Even according to the version of the witnesses produced, the deceased was last seen in the company of the appellant 20/22 days prior to the occurrence and during this period, even if he was in fact seen with the appellant, the possibility could not be excluded that they might have separated. Therefore, in our view, it would not be safe to rely on the testimony of the P. Ws. Respecting this aspect of the case. {{FOOT NOTE}}
(I) PLD 1971 Kar. 299 {{FOOT NOTE}} ' It is then submitted that the appellant was stated to have made an extra,' judicial confession about murdering of the deceased before three witnesses namely, Abdul Majid (P. W. 14), Dost Muhammad (P. W. 15) and Muhammad Shafi (P. W. 18). But the trial Court had disbelieved the testimony of Abdul Majid and Muhammad Shafi P. Ws. It is pointed out that the statement of Dost Muhammad P. W. Which had been relied upon by the trial Court clearly indicated that the extra- judicial confession was made by the appellant in the presence of the three of them. It is further pointed out that according to Iftikhar Hussain Inspector, Special Police (P. W. 23), Dost Muhammad P. W. Was a headman who had been asked by the police to produce the appellant. It is submitted that in the circumstances even if such an extra-judicial confession had been made, it would be inadmissible, although it was doubtful if such an extra-judicial confession was in fact made by the appellant. Here again we agree with learned counsel. After the perusal of the statement of Dost Muhammad P. W. We are of the view that it was doubtful if the appellant made any extra-judicial confession before him. Consequently, in our view the evidence produced by the prosecution in this respect was not reliable.
' It is next submitted that the evidence of making or the conspiracy in the house of Tufail acquitted co-accused had already been disbelieved by the trial Court. In our opinion, the trial Court had rightly disbelieved this evidence for it is difficult to accept that two chance witnesses like Muhammad Khan (P. W. 17) and Muhammad Siddique (P. W. 19) would go to the house of Tufail and overhear the talk respecting the conspiracy where-under the appellant was hired for committing the murder of the deceased.
' About the recovery evidence, we note that according to the prosecution, key P. 9 was recovered from the person of the appellant on his arrest and was taken into possession vide memo. Exh. P. C.
This memo. Is neither signed nor thumb-marked by the public attesting witnesses, namely, Dost Muhammad (P. W. 15) and Muhammad Shafi (P. W. 13). Again recovery memo. Exh. P. B. By which trunk P. 10, revolver P. 7, bandolier P. 8, licence of revolver P. 13 and clothes of the deceased were recovered, has neither been signed nor thumb-marked by the attesting witnesses, namely, Muhammad Shafi (P. W. 13) and Abdul Ghafoor (P. W. 16). Abdul Ghafoor P. W. Turned hostile and did not support the prosecution case. Even Bashir Ahmad P. W. To whom the trunk in question had been stated to be given as an arrzanat by the appellant did not sign the aforesaid Memo. It is strange that although the other recovery memo. Had been thumb-marked by the attesting witnesses, memos. Exh. P. B. And P. C. Were not. Memo. Exh. P. C. Does not even have the description or number of the case on its top. Further, Bashir Ahmad P. W. Had stated that at the time when trunk P. 10 was recovered from his house, no other witness had come with the police. On the other hand, Muhammad Anwar Butt S. I., P. W. Investigating officer deposed that the recovery in question was made in the presence of the attesting witnesses. There are other material discrepancies also which should be taken note of. The case of the prosecution is that the revolver and clothes recovered from the trunk in question belonged to the deceased and the clothes were those which he was wearing when he disappeared. But the description, colour etc. Of the clothes recovered from the trunk do not tally with the description, colour etc. Given of the same in the F. I. R. Further, it is strange that in the F. I. R. It was stated by Ghulam Din P. W. That the deceased at the time of his disappearance had taken his licensed revolver No, 43-A along with his licence. We fail to understand how would Ghulam Din P. W. Know the number of the revolver of the deceased.
Revolver P. 7 recovered from trunk P. 10 bore the number 43-A. It, therefore, appears that the number of revolver was already known to the prosecuting agency. Keeping this background in view, we doubt if this recovery was genuine. It is probable that items of this recovery were planted or deliberately placed in the trunk.
' Then it is the case of the prosecution that after the aforementioned recoveries, the appellant in custody led the police to the alleged place of occurrence and blood-stained earth therefrom was taken into possession vide memo. Exh. P. D. At his instance. Similarly, blood-stained cot-arm and ban was taken into possession at the pointing out of the appellant vide memo. Exh. P. E. Blood- stained piece of wood was picked up from the place of occurrence at the instance of the appellant and taken into possession vide memo. Exh. P. F. Further, blood-stained earth and blood-stained grass was picked up at the instance of the appellant and taken into possession vide memo. Exh. P.
G. But the attesting witnesses of these recoveries, namely, Muhammad Anwar and Muhammad Hussain were not produced by the prosecution. Consequently, in our view, these recoveries are also doubtful.
' It was laid down in Fazal Elahi alias Sajawal v. The Crown (1) that in cases which rested entirely on circumstantial evidence it was of the utmost importance that such a circumstance should be ascertained with minute care, before any conclusion or inference adverse to the accused person was drawn. There were indications of design in the preparation of a case resting on circumstantial evidence, the Court should be on its guard against the possibility of being deliberately misled into false inference.
In the light of the above discussion, we are of the considered opinion that the circumstances adduced in the present case fall far short of when was required to raise an inference of guilt of the appellant. Consequently in our view, the convictions and sentences of the appellant, in the circumstances, were not proper and they are accordingly set aside. His appeal is accepted. The appellant shall be released from jail forthwith if not wanted in any other case.
8. The death sentence awarded to the appellant is not confirmed. {{FOOT NOTE}}
(1) PLD 1953 FC 214 {{FOOT NOTE}}