' Muhammad Aslam (14/15) was tried by learned Sessions Judge, Mianwali under section 302, P.P.C.
For the murder of Fateh Khan (35 years) a brother of Muhammad Khan complainant (P.W.6) and vide judgment, dated 11-3-1993 convicted and sentenced to imprisonment for life and a fine of Rs,5,000 or in default thereof 2 years' R.I. He was also ordered to pay a compensation of Rs,5,000 to the heirs of the deceased. He has appealed.
2. Muhammad Khan complainant P.W.6 lodged the F.I.R. (Exh.P.E.) with Muhammad Ashraf, Sub- Inspector/S.H.O. (P.W.9) at Police Station Chakrala at a distance of 14 miles from the spot in the forest of village Jabba on 21-8-1992 at 8-05 a.m., the occurrence having taken place on 16-8-1992.
3. The case given in the F.I.R. Was that Muhammad Khan complainant was a tenant of Malik Abdul Sattar in village Gallan Khel while his elder brother Fateh Khan (deceased) was employed with the Nawabzadgan of Kala Bagh for grazing their cattle in village Jabba. On 16-8-1992 the complainant and his uncle Oliya Khan (given up) went to village Jabba to see Fateh Khan who was not present there nor any information with regard to him could be gathered. They started the search of their own and on the day of report (21-8-1992) had found the dead body with throat cut by some sharp- edged weapon with face destroyed, eye-balls and ears missing, lying in the dried bed of hill torrent in the bushes about 1-1/2 miles in the North of village Jabba.
4. It is also in the F.I.R. That Muhammad Aslam appellant was also a cattle grazer and was missing, suspicion was expressed that due to some unknown reason the accused/appellant had murdered the deceased.
5. The post-mortem examination on the dead body was performed by Dr. Muhammad Asif Raza (P.W.1) on 21-8-1992 at 3-00 p.m. It was a decomposed and putrefied dead body of an adult male, hair fallen, darkish discolouration, skin peeldcd off at different places, eye-balls missing and face not identifiable. It was swollen, upper and lower jaws were visible, bones on the right hand and fore-arm were also visible due to eating by animals. Both the ears had been eaten by animals.
Pelvis bones were visible due to putrefaction. Maggots were present all over the body. It was clad in a Malashia coloured shirt and Shalwar. There was big cut on the front of the neck measuring 9 c.m. x 4 c.m. With damage to the underlying organs.
' In the opinion of the doctor the shirt seemed to be stained with blood and so further opinion was given that the death seemed to be due to ante-mortem sharp-edged injury cutting the neck. The time between death and post-mortem was stated to be about one week. Specimens of hair, bones, brain, heart, lungs and liver were taken for histopathology and on the receipt of the report of the Chemical Examiner reported that it was a case of non-poison.
6. Muhammad Ashraf, S.H.O. (P.W.9) Sub-Inspector, after recording the F.I.R. Reached the place of occurrence, prepared injury statement and inquest report (Exhs.P.H. And PJ.) and sent the dead body for post-mortem examination. He searched for the accused who was not traceable. In cross- examination he told that he visited the place of occurrence at 10-30 a.m. And received the result of post-mortem examination on 22-8-1992. He also admitted that Nawabzadgan of Kala Bagh had enmity with Bani Afghan and score of people of both sides had been killed. He also admitted that the accused hailed from village Jamrah which was located in the estate of Nawabzadgan and was now lying deserted. He could not say if the father and brothers of the appellant were living in Bani Afghan.
7. Muhammad Aslam, Inspector (P.W.10) also investigated the case and arrested the appellant on 2-9-1992. He got recovered hatchet (P.9) from his house which was taken into possession vide memo. (Exh.P.G.) and sealed into a parcel. In cross-examination he admitted that the accused was 14/15 years of age.
8. In his statement at the close of the trial the appellant pleaded that learning about the occurrence on 2-9-1992 he himself appeared before the police. Nawabzadgan of Kala Bagh had asked him and his family to work for them, his parents refused and this annoyed Nawabzadgan.
The dead body of Fateh Muhammad deceased was traced in a Nalla of village Jabba and perhaps was murdered by Bani Afghan. The relatives of the deceased were informed by Nawabzadgan and at their instance he had been falsely involved.
9. Learned counsel for the appellant has contended that it is a case of no evidence, the learned trial Judge had relied upon the extra-judicial confession allegedly made by the appellant to Noor Muhammad and Zamurd Khan (P.Ws. 7 and 8) and the recovery of alleged blood-stained hatchet stated to by Muhammad Khan complainant and Zamurd Khan (P.Ws. 6 and 8) which was tainted, interested and not believable and so the appellant deserved acquittal.
10. After hearing him and learned counsel for the State and going through the record, there is much force in the contention.
11. Admittedly Noor Muhammad and Zamurd Khan are close relatives of the complainant and the deceased. They hail from far away place from village Jabba. According to Muhammad Khan complainant he and Oliya Khan had reached village Jabba on 16-8-1992, the deceased was learnt to have left with the cattle in the morning and did not return. This would mean that the murder took place if at all it was murder, on or after 16-8-1992. The condition of the dead body as noted above as per the statement of the doctor indicates that the death was perhaps since more than a week, i,e. Before 16th of August. It is in the statement of the complainant that on finding the dead body by chance in the hill torrent he reached the police station and when he returned to the spot with the police Noor Muhammad and Zamurd Khan P.Ws. Were present there and then he got the case registered. This would mean that the F.I.R. Was recorded after preliminary investigation. If Noor Muhammad and Zamurd were present there, then the story of extra-judicial confession should have been there in the F.I.R. But it is not the case. Noor Muhammad P.W.7 stated that the appellant met him and Zamurd P.W. For about 4/5 minutes and told that he had murdered Fateh Khan and they should get the matter patched up. He then slipped away. In cross-examination he admitted that about 20 persons from the side of Nawabzadgan and the same number from the side of Bani Afghan were put to death as there was dispute between them. The people of village Jhamra and other villages had become destitute out of fear of Bani Afghan who had launched an attack by using rocket launchers etc. Upon the villages including Jabba wherefrom 5 persons were abducted and put to death. He also told that he came to search the missing deceased 10 days prior to the finding of the dead body. This would mean that the deceased was missing since 10th or 11th of August and so the statement of the complainant that he came to see his brother on 16th on which date he did not return in the evening seems to be false. Noor Muhammad (P.W.7) claimed that he had stated to the police that the accused disclosed that the dead body was lying in Jabba hill- torrent and pointed out the same to them and that the appellant slipped away on the pretext of drinking water and that they had gone to the place pointed out by the accused and found the dead body whereafter they informed Muhammad Khan complainant about the confessional statement of the accused. This he had not done and was properly confronted and contradicted.
12. Zamurd Khan (P.W.8) deposed that on 21-8-1992 the appellant met him and Noor Muhammad P.W. While on way to village Jabba and admitted that he had committed the murder of Fateh Khan by mistake. After making statement, the appellant disappeared. It is not believable that a boy of 14/15 years having admitted the murder of the close relative of the two witnesses would have been allowed to slip away like this. He goes on to tell that when they assured the appellant of compromise, he pointed out the direction where the dead body was lying. They proceeded to that direction, found the dead body lying in the bed of hill-torrent, Oliya was sitting there, they also sat there and after a while police reached there alongwith Muhammad Khan complainant and they narrated the incident to Muhammad Khan. Had it been so the extra-judicial confession must have found mention in the F.I.R. In cross-examination he admitted that his village was 50 miles from the place of occurrence. He claims to have reached village Jabba on 20-8-1992 and started the search for the first time on 21-8-1992. According to him the deceased was missing 10/12 days prior to the recovery of the dead body. This sort of extrajudicial confession deposed to by the two witnesses cannot be believed unless there is very strong corroboration. The corroboration has been sought from the recovery of hatchet at the instance of the appellant but the recovery evidence is provided by Muhammad Khan complainant and Aslam Inspector. The complainant, as discussed above, is not believable and so the sole statement of the Inspector also cannot be relied upon. In any case the evidence of recovery is not of unimpeachable character.
13. The upshot is that the contention raised by the learned counsel for the appellant is upheld. The appeal is accepted. The conviction and the sentence of the appellant are hereby set aside and he is acquitted. He be set at liberty forthwith if not required to be detained in any other case.