' Muhammad Akram son of Salehun Muhammad, aged 26/27 years, was tried by Mr. Kazim Ali Malik, Additional Sessions Judge, Bhalwal District Sargodha, for the murder of Muhammad Nazir. Vide judgment, dated 29-3-1992, he was sentenced to imprisonment for life as Ta'zir under section 302(b) of P.P.C. With benefit of section 382-B, Cr.P.C. Against the judgment and conviction the appellant has filed appeal in this Court.
2. The prosecution story as unfolded in the F.I.R. Exh.P.F. Recorded on the statement of Ghulam Haider P.W.7, drafted by Muhammad Feroze, S.I. P.W.12, at 6-15 a.m. On 4-8-1991, the complainant stated in the F.I.R. That the father of Muhammad Nazir deceased, died 2/3 months before the birth of the deceased and the deceased was brought up by him. On 3-8-1991 in the evening the deceased left his house for sleeping at the Behk as usual. On 4-8-1991 in the morning he learnt that the deceased had been killed at the Behk. After receiving this information, he alongwith Ahmad Yar and Afzal reached the spot and found the deceased lying dead on a cot and that the deceased was killed by unknown accused. The complainant left Ahmad Yar and Afzal with the dead body, went to the police station and lodged the report. Muhammad Feroze S.I./Investigating Officer P.W.12, after recording the statement of the complainant at police station reached the spot. He inspected the spot, collected blood-stained earth vide memo. Exh.P.D., blood-stained cot P.2 vide memo.
Exh.P.E. Prepared injury statement Exh.P.H. And inquest report Exh.P.I. Of the ' deceased and despatched the dead body to the mortuary at Kot Momin through F.C. Muhammad Riaz P.W.1.
3. After post-mortem examination Muhammad Riaz, F.C. Produced Chaddar P.1. Of the deceased, given to him by the doctor, which was taken into possession vide memo. Exh.P.A. On 5-8-1991 and 6-8-1991, the Investigating Officer collected evidence of motive, Wajtakker and extra-judicial confession against Muhammad Akram accused. He also got prepared site plans, Exhs.P.C. And P.C./1 from Muhammad Aslam, Revenue Patwari P.W.4.
4. Muhammad Akram accused was arrested on 30-8-1991. The same day, he led to the recovery of blood-stained hatchet P.3 from his residential house from underneath the beddings of a cot. Parcel was sealed vide memo. Exh.P.G. The recovery was witnessed by Muhammad Afzal P.W.11 and Ahmad (not produced). The parcels of blood-stained earth and blood-stained hatchet were handed over by the Investigating Officer to Muhammad Mumtaz, Mohurrer/ Head Constable P.W.2.
These parcels were handed over on 20-8-1991 and 30-8-1991 respectively to Muhammad Riaz, F.C.
For onward transmission to the office of the Chemical Examiner.
5. The post-mortem examination was conducted by Dr. Riaz Ahmad Awan P.W.3 and he observed:- - "an incised wound 14 c.m. x 15 c.m. x cutting the skin, muscle, right clavicle, right scapula and two upper ribs completely on the back and right side of neck extending upto right shoulder making visible upper lobe of right lung."
' In his opinion, death had occurred due to haemorrhage and shock under injury No,1, which was sufficient to cause death in ordinary course of nature. Injury No,1 was ante-mortem, inflicted with sharp-edged weapon. The time that elapsed between injury and death was immediate whereas between death and post-mortem examination was about 11 to 12 hours.
6. The prosecution produced 12 witnesses in all. The prosecution produced in evidence reports of the Chemical Examiner and Serologist regarding blood-stained earth, Exh.P.J. And Exh.P.J./1. The prosecution also produced reports of the Chemical Examiner about the hatchet Exh.P.K. And of the Serologist, Exh.P.K./1. According to the reports the earth and hatchet were stained with human blood.
7. In his statement under section 342, Cr.P.C., the accused denied the charge and pleaded innocence. In response to the question as to why this case was made against him the accused replied:-- "It was a blind murder. Ghulam Haider, complainant, bore a grudge against me as I had broken the engagement of my sister with a son of Ghulam Haider P.W. And he put up false witnesses against me during investigation, on account of the said grudge, and in order to save Mohri, the real murderer, with whom he patched up. Ghulam Haider also misguided Mst. Rehmon in this matter.
The P.Ws. Have deposed falsely against me at the instance of Ghulam Haider."
' No witness was examined in defence nor the accused made statement on oath in disproof of the allegations.
8. The prosecution case rests on the following pieces of circumstantial evidence:--
(1) Motive.--- Mst. Rehmon P.W.9, mother of Muhammad Nazir deceased, deposed about the motive that prior to this incident the accused suspected illicit intimacy of his brother's wife Mst.
Amina with the deceased.
(2) Wajtakker.--- Muhammad Aslam P.W.8 deposed that at midnight he and Muhammad Aslam, son of Sultan (given up P.W.) had seen Muhammad Akram, accused, near the spot of murder while running with a hatchet.
(3) Extra-judicial confession.--- Mubarik Ali P.W.10 deposed that on 6-8-1991, Muhammad Akram accused came to him and disclosed that he had killed Muhammad Nazir with a hatchet on the night between 3/4-8-1991, on account of his illicit relations with his brother's wife.
(4) Recovery of hatchet.--- Muhammad Afzal P.W.11 and Muhammad Feroz, S.I. P.W.12, deposed that on 30-8-1991, Muhammad Akram accused while in police custody, led to the recovery of blood- stained hatchet P.3, from his residential house. The hatchet was stained with human blood as reported by the Chemical Examiner and the Serologist.
(5) Medical evidence.--- Dr. Riaz Ahmad P.W.3, conducted post-mortem examination on the dead body of Muhammad Nazir deceased and vide his post-mortem report Exh.P.B. That deceased received an incised wound with sharp-edged weapon, resulting in his death.
9. The learned trial Court relied on the statement of Mst. Rehmon P.W.9, with regard to motive of the crime. The trial Court also accepted the testimony of Muhammad Aslam P.W.8 regarding the fact that on the night of the occurrence he saw the accused with a hatchet near the Behk of the deceased. And also relied upon the testimony of Mubarik Ali P.W.10 regarding confession of guilt by the accused before him. The Court also relied upon the recovery of the blood-stained hatchet at the instance of the accused.
10. I have heard the learned counsel for the parties and have perused the record. The prosecution case rests upon circumstantial evidence i,e, the motive, Wajtakkar evidence, extra-judicial confession, the recovery and the medical evidence. Mst. Rehmon P.W.9 has stated about the motive of murder. She stated that the accused suspected illicit intimacy of the deceased with Mst.
Amina. She stated that when she learnt about this fact she enquired from her son who repudiated the allegations. She further stated that she and Ghulam Haider, complainant, assured the accused on oath about the innocence of her son. To the contrary, Muhammad Feroz P.W.12 admitted in cross-examination that it came to his notice during investigation that the deceased had illicit intimacy with the wife of Mohri and that he had fled to Village Miana Gondal and remained there for one month. The evidence regarding the motive is very week and inconsistent and cannot be relied upon. Muhammad Aslam P.W.8 stated that at about midnight he happened to pass near the Dera of the deceased and saw Muhammad Akram accused armed with a hatchet going to Village Chahuwal. Muhammad Aslam is a son-in-law of Ghulam Haider, complainant. He stated that he was going to the Dera of other Muhammad Aslam P.W. (not produced) from the village but in his statement under section 161, Cr.P.C. He stated that he and other Muhammad Aslam were going to his own Dera from the village. It is significant that it is mentioned in the F.I.R. That the Behk of the deceased was towards the north of the village while the Dera of Muhammad Aslam, P.W.8, was towards the south of the village. He tried to improve his statement in Court but of no avail. Moreso if his own Dera is towards the south of the village there is no worldly reason for him for going towards the north of the village at midnight. His evidence does not inspire confidence and I reject the same as unreliable.
11. Mubarik All P.W.10 stated that he is a resident of Village Rawana three miles away from Village Chahuwal. On the third day of the occurrence, he was sitting in his house with Tawakal P.W. When the accused came and disclosed that due to suspicion of illicit intimacy between him and Mst.
Amina, he killed the deceased with a hatchet. The witness admitted in his statement that sister of Mst. Rehmon P.W. Is his brother's wife.
12. Evidence of extra-judicial confession is of a weak specie. It is not believable that the accused after committing the murder without being witnessed by any person, would visit the village of Mubarik on the third day to confess his guilt. It is unbelievable that Mubarik and Tawakal being near relatives of the deceased did not apprehend the accused and produce him before the police.
According to the witness the accused was let off and was arrested as late as on 30-8-1991. I am not inclined to believe this witness and reject the same as being untrustworthy.
13. Muhammad Afzal P.W.11 and Muhammad Feroz, S.I. P.W.12, have deposed about the recovery of a blood-stained hatchet on 30-8-1991 from the residential house of the accused. It is not believable that after committing the murder, the accused would not throw away the hatchet at the spot or in the fields and take it all the way to his residential Kotha. The accused and his family members live jointly in the house. The Investigating Officer failed to search the house for so many days and then after the arrest of the accused, he recovered the weapon of offence which remained blood- stained. The evidence appears to be concocted and is not worthy of any reliance.
14. In a case based on circumstantial evidence, the prosecution is expected to produce a chain of circumstantial evidence around the accused, leading to the only hypothesis of the guilt and nothing else. I quote an illustrious leading principle laid down in a well-known case reported in PLD 1956 FSC 123. "In dealing with the question of sufficiency of circumstantial evidence to sustain a conviction, it has to be borne in mind that if, on the facts proved, no hypothesis consistent with the innocence of the appellant can be suggested, the conviction must be upheld. If, however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the appellant, the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed. This is the guiding principle laid down by Mr. Justice Muhammad Munir, Chief Justice of Federal Court, in case Siraj v. The Crown PLD 1956 FC 123.
14. In view of the reasons given by me I accept this appeal and set aside the conviction against the appellant. He shall be immediately released if not required in any other case.