1. QAISIR KHAN, J.-Gulab A.I atlas Gulabu son of Sher Muhammad alias Shera, Allah Ditta son of Allah Bakhsh alias Bakhsha and Mangu son of Sikandar residents of Chak No. 326/HR of the Marot Police Station of Bahawalnagar District were tried by the Sessions Judge, Bahawalnagar on charges under section 302/34 of the Pakistan Penal Code (two counts) and 201/34 of the Pakistan Penal Code. By his judgment dated the 10th of July 1971 the learned Sessions Judge acquitted them of the charge under section 20 1 /34 of the Pakistan Penal Code but convicted them under sec--petition 302/3; of the Pakistan Penal Code on both the counts. Allah Ditta was sentenced to death on both the counts while the other two were sentenced .To transportation for life on both the counts.
2. The three convicts jointly appealed to the High Court against the order of their convictions and sentences and the death sentences of Allah Ditta were also referred to the High Court for confirmation The High Court by its judgment dated the 6th of April 1973 acquitted Mangu accused and dismissed the appeal of the other two confirming the death sentences of Allah Ditta.
3. Allah Ditta alone filed petition for special leave to appeal against the order of his conviction and sentences through Jail and leave to appeal was granted on the 1st of February 1974 in the following words :--- "As it is a case of unwitnessed murder and conviction is based on certain recoveries, it will be in the interest of justice to re-examine the evidence in the case."
4. The facts of this case are as follows: On the 26th August 1969 at noon time Allah Yar a resident of Chak No. 341/HR was irrigating his field when the flow of water decreased. He went up to the outlet in the canal and found that a hip joint with thighs up to the knees and a bundle containing pieces of a human body had stuck up in the outlet. Allah Yar rushed to his uhak distant 1--miles from there and conveyed the information to Sher Muhammad Lumbardar where Rehmat A.I, Allah Wasaya, Muhammad Amin and Muhammad Bakhsh were also present. Skier Muhammad in the company of the others went to the outlet and after verifying the information given by Allah Yar deputed Allah Ditta Chaukidar to go to the police station distant 9 miles away for reporting the matter. Allah Ditta while going to the police station met Nur Muhammad S. H. O. Who was on beat in the Illeqa at the canal bridge near Chak No. 317/HR and reported the matter to him at 6-30 p m This report was sent by the Sub-Inspector through Bashir Ahmad, Foot Constable, to the police station on the basis of which Muhammad Bakhsh, A. S. I., P. W. 6 registered a case under section 3022/34 of the Pakistan Penal Code at 7 p. m.
5. Nur Ahmad, Sub-Inspector, went to the spot and after preparing the injury sheets and inquest report sent the pieces of the dead bodies to the hospital at Fort Abbas through Muhammad Hussain Foot Constable P. W. 4 for post-mortem examination. There were some clothes in the bundle containing the pieces of human body and these were also sent to the hospi--tal with the dead bodies. These clothes Exh. P. 1 to P. 6 were however later on taken into possession by the Sub- Inspector vide memo. Exh P. E. When Muhammad Hussain Foot Constable brought them back from the hospital. On the 5th of September 1969 the Sub-Inspector arrested Allah Ditta accused when he was produced to him by Kamun Khan P. `Vv.
17. On the 6th of September 1969 at the instance of Allah Ditta accused the Sub-Inspector recovered a pair of Zanana shoes and a German silver cup buried in sand under some bushes which he took into possession vide memo. Exh. P. C. The same day at the instance of Allah Ditta the: Sub-Inspector recovered some blood-stained earth, some hair and a piece of burnt clots from the place where the deceased had allegedly been done to death and took these into possession vide memo. Exh. P. D. The Sub-Inspector could not find Mangu accused and got warrant of arrest issued against him. Mangu was arrested by the Sahiwal police on the 8th of October 1969 and sent to Bahawalnager Police on the 10th of October 1969. On the 13th of October 1969 at the instance of Mangu accused the Sub-Inspector recovered an empty tin from some bushes which he took into possession vide memo. Exh. P. G. He also got prepared the site plan through the Patwaris.
6. Gulab A.I accused was arrested by Hamidul Haq Inspector P. W. 26 on the 2nd of September 1969 and on the 7th of September at his instance the Inspector recovered a watch from Muhammad Share P. W. 18 shopkeeper of Haroonabad which he took into possession vide memo P. D. On the 8th of September 1919 the Inspector at the instance of Gulab A.I accused also recovered a blood- stained Toka buried under a Keekar tree and took it into possession vide memo. P. F. After the completion of the investigation the three accused were challaned to the Court of the local Magistrate from where they were committed to the Court of Session for trial and where they were convicted and sentenced as mentioned above.
7. The learned trial Judge placed reliance for the conviction on the following pieces of evidence :-
(i) The retracted extra-judicial confession of Allah Ditta accused deposed to by Kamun Khan P. W.
8. 17 ;
(ii) Motive for the offence deposed to by Punnu P. W. 24 and Sbahu P. W. 25 ;
(iii) The two deceased were last seen with the accused as deposed to by Amin P. W. 21, Muhammad Sadiq P. W. 22 and Umar Din P. W. 23 ;
(iv) The recoveries made at the instance of the accused deposed to by Muhammad Shafi P. W. 10, Karam Ilahi P. W. 13, Abdur Rabim P. W. 14, Abdullah P. W. 15, Safdar A.I P. W. 16, Hamidul Haq Inspec-- tor P. W. 26 and Nur Muhammad S. 1. (whose statement before the committing Magistrate was read as evidence) and identified by Mumtaz A.I P. W. 11, Muhammad Sadiq P. W. 22, Umar Din P. W. 23, Punnu P. W. 24 and Shahu P. W. 25.
9. The learned Judges in the High Court also relied upon the aforesaid evidence. They however did not accept the evidence regarding the recovery made at the instance of Mangu accused as genuine and though he had absconded for some time after the occurrence, he was given the benefit of doubt and acquitted.
10. Mr. Inayat Hussain, learned Advocate on Record for the appellant and Mr. Muhammad Hanif Bhatti, learned counsel appearing on behalf of the State respondent heard.
11. I now proceed to take up and discuss these pieces of evidence one by one.
12. So far as the extra judicial confession is concerned the only evidence with respect to it is the statement of Kamun Khan P. W.
17. This witness has admitted that he was neither Lambardar nor a B. D. Member. He has also submitted that he did not know the accused. He does not belong to the village of the accused and it is therefore not understood as to how did it strike the accused to approach this gentleman who could be of no help to him with the police and when Lumbardars were available in his own village and in the village of this witness. According to this witness he and the accused went to the Police Station on bicycles and despite the fact that they did reach the Police Station it is very strange that neither was the accused produced to any police officer nor his statement recorded by any one in the Police Station. The assertion of the P. W. That the S. H. O. Was not in the Police, Station did not mean that there was no other official in the Police Station. The Muharrir must have been there and the accused could easily be produced before him. The assertion of the P. W. To the effect that not finding the S. H O. In the Police Station he and the accused left for Haroonabad in a bus therefore does not stand to reason. It is again very strange that the P. W. Conveniently noticed the S. H. O. On the v-ay when he was going in a jeep and produced the accused to him. Strangely enough it has not been explained by the P. W. As to what happened to the cycle of the accused because neither he nor the S. H. O. Made any mention of any cycle of the accused. It is again not understood as to why did the S. H. O. Not get the confession of the accused recorded through a Magistrate when he had a jeep and could easily take the accused to Haroonabad where'll Magistrate was available 1t is not the case of the prosecution that the 3ecused at once went back over his confession as according to the S. I. The recoveries were made at his instance the next day. The confession of the accused deposed to by this P. W. Shows that it was the accused who had concealed the Toka but it is very strange that the said Toka was allegedly recovered at the instance of Gulab A.I accused and then two days after the recoveries had been made at the instance of the accused. It is not under--stood as to why did the accused not lead the police to the recovery of the Toka when he led it to all the other recoveries. It is also very strange that ill the details of the occurrence were given by the accused to this witness but he did not state anything as to the heads of the deceased from which the dead bodies could have been easily identified. After all why did the accused seep this as a secret. In view of all the above I am therefore of the opinion hat no reliance could be placed on the statement of this witness. The assertion that he had no motive for falsely charging the accused has no substance is he belongs to quite a different village and the accused could not be expect--ed to know what type of man he was and as to why and at whose instance he was deposing against him.
13. So far as the motive is concerned there is no dispute that the parties were very much on inimical terms with each other. Allah Ditta and Gulab A.I accused are the sons of the aunt of Mangu accused and the sister of Mangu accused that is to say Mst. Sardaran deceased had been enticed by Shahu. Sikandar fathar of Mangu had charged Shahu and his brother for dacoity Ditta, Gulab A.I, a brother of Mangu alongwith Fateh Slier and his brother Nausher had allegedly attacked Shahu in Court precincts while he was under arrest in the case. Shahu and Punnu were arrested for the murder of the said Fateh Slier and Gulab A.I and Mangu accused were P. Ws against them in the said murder. There was therefore apparently a for the accused to murder the deceased but then motive itself is a double--edged weapon and if it could be the reason for the murder it could equally be the reason for a false charge on suspicion. Motive by itself therefore does not prove anything and it has to be considered in conjunction with the other evidence.
14. Now coming to the statements of Amin P. W. 21, Muhammad Sadiq P. W. 22 and Umar Din P. W. 23 regarding their h tying seen the two deceased in the company of the accused a few days before the occurrence I am of the opinion that these statements were not true and could not be relied upon. Umar Din P. W. 23 was disbelieved by the learned Judges in the High Court and in my opinion rightly too because he did not know the accused and was examined by the police two months after his alleged meeting with the accused. So far as Amin P. W. 21 is concerned his statement is nothing but a cock and bull story. His village is about 40 miles from the village of the accused and he could not have known the accused. His assertion that Mangu used to come to his chak for grazing cattle is simply ridiculous. He has admitted that Mangu was not related to him, that he was not on visiting terms with him and that he never went to his house. Under these circumstances it was not possible for Mangu or the deceased to have come to the house of this witness and then to stay there for nights. The story put forth by the witness itself shows that it was nothing but false.
15. Gulab A.I accused cores to his house. Then Mangu and the two deceased come there and then go to a chak distant 2 miles for purchases but come back without purchases. Then they stay there for the night. In the morning Mangu goes away leaving the two deceased there and then Allah Ditta and Mangu again reach there and again spend a night there and then leave together. This does not stand to reason unless this witness was in league with the accused for the murder, which according to him was not the case. It has also not at all been explained as to where did Gulab A.I go when he did riot accompany the others. Besides according to this P. W. He identifies the clothes of the deceased a month after the accused and the deceased had left his house and since these clothes were allegedly recovered 3 or 4 days after the murders the seeing of the accused with the deceased by the P. W. Can be of no value as the accused were not seen with the deceased just before the murders, and the accused could not have been taking the deceased from one place to anther for a month to murder them. Furthermore the identification of the clothes of the deceased by the P. W. Is of no value as then was no proper identification parade by a Magistrate and it was not deposed to even by the S I. Besides I shall presently be snowing it in the discussion of the recoveries that the two shirts etc. Were not recovered at all with the bodies.
16. Now coming to the statement of Sadiq P. W. 22 it too could not be relied upon. His statement is full of contradictions of mid-statements. He stated at the trial that he met the accused at the distance of 1 -- mils from his chak but before the committing Magistrate he stated that he met them at a distance of 7 miles from his chak. He stated that he could identify and, did identify the clothes of the deceased but in cross-examination admitted that Mst. Sardaran had covered herself and that her clothes were not visible.
17. At the trial he stated that he knew Mangu but before the committing Magis--trate he had stated that lie knew only Allah Ditta. It is very strange that Mangu and Allah Ditta had the intention of committing murders and still they gave every detail to the witness, even their waiting for Gulab A.I.
18. It is again very strange that Gulab A.I also arrived just at the time the other accused gave this information to the witness. The fact that he also introduced in his statement the tin which was allegedly brought by Gulab A.I clearly shows that he was prepared to go to any extent to tell lies.
19. Though there was no proper identification by him of the clothes of the two deceased yet his reference to the identification of the clothes also shows that he was bent upon telling lies to any extent because I shall presently show in the discussion o: the recoveries that no shits at all were found with the dead bodies. He is however belied by his own statement when he says that he identified the tin, and clothes 4 or 5 days after seeing the accused and the deceased, because the tin was recovered about 20 days after the occurrence and if he identified the tin and clothes together then he identified the clothes more than 15 days after the alleged recovery. In view of all the above no reliance could be placed on his statement as well.
20. Before dealing with the recoveries I would like to remark here that the learned Judges In the High Court have held and in my opinion rightly that if the evidence regarding the recoveries is not believed then it could not be said that the charges had been brought home to the accused beyond a reason? Able doubt.
21. There is no doubt that only two recoveries had been made at the instance of the appellant but I shall deal with all the recoveries made at the instance of all the accused for finding out as to whether the investigating agency had been honest in the matter of recoveries or not. Since according to the extra---judicial confession of Allah Ditta deposed to by Kamun Khan P. W. 17 there was an attempt to set the dead bodies on fire a tin containing a little kerosene oil was recovered at the instance of Mangu accused Muhammad Ismail P. W. 12 was produced to prove that the tin had been sold by him to Mangu accused who had also purchased kerosene oil and taken it away in the tin. Now the statement of this witness Muhammad Ismail shows that the tin was got identified through him 8 or 9 days after it had been sold by him to the accused. This recovery was made on the 13th of October 1969 and it was therefore sold to the accused round about the 4th or 5th of October whereas the dead bodies had been recovered on the 26th of September 1969. Now irrespective of the fact as to whether Muhammad Ismail P. W. Could identify the tin or not or as to whether he could remember a stranger to whom-he bad sold a tin the recovery speaks for itself. It clearly shows that it was a fake recovery and the learned Judges in the High Court rightly did trot rely on it.
22. Now coming to the recoveries made at the instance of Gulab A.I accused the statement of Muhammad Shafi P. W. 10 shows that the watch was not recovered from his shop at the instance of accused Gulab A.I. His statement shows that a police officer came to his shop and told him to produce the watch, that he took it to the police station and gave it to the police officer when the accused was in lock-up and that the police did not prepare any recovery memo regarding the watch. Again irrespective of the fact as to whether the watch belonged to the accused or not what value such a type of recovery can have. The only evidence regarding the ownership of watch is the statement of Shahu P. W. 25 who has stated that it belonged to him, and that he gave it to his wife when he was arrested. The statement of this witness can have no value whatsoever as he is very much inimical towards the accused and besides no effort was made to get the watch identified through him. The mere claiming of the watch before the police to be belonging to him has no value whatsoever especially when the police officer has not even deposed to that effect. For proper identification the watch should have been placed with similar watches and got identified through him in a regular identification parade before a Magistrate. His own statement shows that after his arrest he was in Bahawalnagar Jail and when his brother Punnu who was also under arrest returned from Haroonabad where he had been taken he told him That his wife with others had met Punnu. This clearly shows that Mst. Sardaran bad allegedly been given the watch by the witness in his house and it is not understood why Mst. Sardaran apparently an illiterate woman was taking with her the watch of a male while going out with the accused from her house to Zoonabad. It is therefore abundantly clear that the recovery of the watch was also a fake recovery.
23. Now coming to the recovery of Toka at the instance of Gulab A.I accused Murntaz A.I P. W. 11 had been produced to prove that the Toka in question was sold by hint to Gulab A.I accused. This witness has admitted that it was a Toka of an ordinary type and it is not understood as to how was be able to identify it because no proper identification parade of the Toka was held before a Magistrate by placing it with other Tokas. Even the investigating officer has not stated anything with respect to the identification of the Toka by this witness. Furthermore the statement of this P. W.
24. Shows that he identified the Toka 7/8 days after he sold it to Gulab A.I. Now this Toka was recovered on the Nth of September 1969 and in this way it was sold to the accused on the 1st or 2nd of September but the dead bodies had already been recovered on the 26th of August 1969 which were apparently 3 or 4 days old. The murders bad therefore taken place round about the 23rd or the 24th of August and in this way how could then the Toka be connected with the murder and what else can such a recovery be called except fake.
25. Now coming to the clothes allegedly of the two deceased recovered with the dead bodies I shall first deal with the manner in which the report was lodged. According to Allah Yar P. W. 8 he was irrigating his field at about noon time when he saw the dead bodies. It is also in the statements of Allah Ditta P. W. 19 and Sher Muhammad P. W. 20 that Allah Yar infor--med than at about noon time. As it was the month of August, the informa--petition in the circumstances must have been conveyed by Allah Yar at 12 noon. Since Sher Muhammad and his companions went to spot distant l -- miles and then reputed Allah Ditta for report. Allah Ditta at the latest must have left for the Police Station at 1 p m. It has not been clarified from him as to by what means did he go to the Police Station, but even if it be assumed that he went on foot it could not have taken him 5 -- hours to cover a distance of 7 or 8 miles as he did not reach the Police Station distant 9 miles. The strangest thing however in this respect is this that from that place, which took Allah Ditta 5 -- hours to reach and where he reported the matter to the Sub-inspector at 6-30 p. m., the S. I. Reached the spot in half an hour and the constable who took the report to the Police Station also reached the Police Station in half an hour. This is evident from the fact that the F. I R. Was recorded at 6 p. m.
26. And the S I. Also reached the spot with the reporter at 7 p. m. As is clear from the state--ments of Allah Yar P. W. 18, Allah Ditta P. W. 19 and Sher Muhammad P. W.
20. This clearly suggests that the reporter did go to the Police Station early that his report was not recorded there and that the S. I.
27. Came to the spot and after carrying out preliminary investigation recorded the report.
28. Be that as it may the report lodged by Allah Ditta shows that the handle had been opened otherwise how could he state in his report that it contained pieces of dead bodies, and if the bundle had been opened and it contained clothes then he would certainly have mentioned the clothes in his report which in fact he did not. Sher Muhammad P. W. 20 has stated that the bundle contained clothes but that these clothes did not saver the dad bodies and that these were taken into possession by the S. I. The statement of the S. I. And the memo. Exh. P. E. However show that the S. I. Did not take the clothes into possession before sending the dead bodies for post-mortem examination but took these into possession after these were brought up in the hospital with the post-mortem report. This would clearly suggest that the clothes were on the dead bodies otherwise there was no sense in sending them to the hospital with the dead bodies, On the other hand if these were on the dead bodies then these could not be complete shirts and sheets as the dead bodies had been cut into pieces and there could only have been pieces of clothes. In this respect the statement of Allah Dittta Chaukidar and Sher Muhammad Lambardar who were present with the investigating officer on the spot are very much material. The statement of Sher Muham--mad before the committing Magistrate with which he was confronted shows that the bundle was not opened in his presence and that he did not see any clothes, He bas also admitted that he trunks of the dead bodies dead no clothes and that the could clot identify the clothes.
29. Similarly the statement of Allah Ditta before the committing Magistrate with which he wasp confronted also show that lie did not see the clothes recovered. He has also stated that he could not identify the clothes. Over and above this the prosecution case is that an effort was made to burn the dead bodies as a burnt piece of cloth was allegedly recovered at the instance of the appellant and the clothes allegedly found with the dead bodies also had a piece of burnt cloth, Now it does not stand to reason that if the accused had procured kerosene oil, and had tried to burn the dead bodies then any clothes could have been found with the dead bodies or on the dead bodies. The clothes must have been the first thing to be set on fire for burning the dead bodies. In these circumstances the question of the recovery of clothes with the dead bodies does not at all arise. Thy recovery of the clothes of the deceased with the dead bodies could not therefore he relied upon.
30. Now I take up the recovery of the shoes, cup, hair, piece of burnt cloth and bloodstained earth at the instance of the appellant. If all the material recoveries made in this case were fake then it could safely be assumed that these recoveries too were fake and if Abdullah P. W, could falsely depose to the other recoveries he could also falsely depose to these recoveries. But even if it be assumed that these articles were recovered at the instance of the appellant then where is the evidence connecting these articles with the dead bodies. No proper identification parade of the shoes or cup was held, before a Magistrate. As a matter of fact no identification at all was held because none has deposed to by Nur Muhammad S. I. In his statement.
31. Muhammad Sadiq P. W. 22 has stated that the cup was with the child but be did not state that he identified it in any identification parade before .Any official. His statement which has already been disbelieved shows that the Piali (cup) with the child could be of a smaller size than the one recovered. The rest of the evidence consists of the statements of Punnu P. W. 24 and Bhahu P. W. 25.
32. Their statements can have no value whatsoever as they were very much interested witnesses and besides the coming of the deceased with the accused to them while they were in detention is nothing but fabrica--petition. I shall not deal with their statements in this respect in detail but it is sufficient to state that it wag not only improbable but impossible for the deceased to have accompanied the three accused to Haroonabad or to Bahawalnagar to see the taro P. Ws. The deceased had been enticed by Shahu. Her father had charged Shabu for dacoity and in that- case when Shahu was produced in Sessions Court where Mat. Sardaran was also present the accused and others including Falak Sher attacked Shahu and Mst. Sardaran in Court premises. Soon after the said Falak Sher was murdered and Sbahu and Punnu were charged for the murder. In this murder case Mangu and Gulab A.I accused were prosecution witnesses against Shahu and Punnu and they is fact did appear against the two in the Court of Sessions in the said murder case. In these circumstances it was not possible for the deceased to have accompanied the accused and for the accused to have come to the two prosecution witnesses in Jail. Shahu has admitted in his statement that he had left his village and that her mother lived in Chak No. 101. His wife, the deceased, must naturally have been living with her and the mother was not produced to depose that the accused had taken the deceased from her house on some pretext. As a matter of fact there is no evidence whatsoever on the file to show as to where was the deceased living and as to in whose presence she was taken away by the accused on some pretext from there.
33. The upshot of the above discussion is that there is no evidence whatsoever worth the name to connect the accused appellant with the murders and I would therefore accept this appeal, set aside the convictions and sentences of the accused and acquit him.
34. ANWARUL HAQ, J. -I agree MUHAMMAD HALEEM, J.-I agree.