' Anwar son of Noor Muhammad, aged 23 years and Akhtar son of Sher Muhammad, aged 22 years, were convicted under section 380/460/302/34, P. P. C. On 28th November 1974 by Raja Muhammad Khurshid, then Additional Sessions Judge, Lahore, who sentenced them as under (1) Under section 380, P. P. C. Rigorous imprisonment for three years each ;
(ii) Under section 460, P. P. C. Rigorous imprisonment for ten years with a fine of Rs, 100 each ; (iii; Under section 302/34, P. P. C. Imprisonment for life with a fine of Rs, 500 each."
2. The incident involving the theft of a buffalo with murder by a fire shot of its owner Gongla (deceased) took place on the night between 17th and 18th of November 1971 in his cattle shed in village Chakokl as reported by his brother Saleh Muhammad (P. W. 6) at Police Post, Changa Manga to Sub-Inspector Rafi Ullah Khan (P. W. 13) at 4-00 a.m. The next morning who recorded his statement Exh. P. G. And forwarded the same to Police Station, Pattoki for the registration of the case; Exh. P. G/1 being the formal F. I. R.
3. As will appear from this report there was no eye-witness of this brutal offence as some unknown persons had entered his cattieshed at dead light and succeeded in decamping with his buffalo after firing a shot at his neck. His brother Saleh Muhammad (P. W. 6), his nephew Mumeraiz (P. W. 5) and some other residents of the locality were attracted to the spot by the report of this shot end found him lying dead under his quilt on the Charpoy near the entrance of this shed. Leaving others at the spot Saleh Muhammad (P. W. 6) accompanied by Subhan Khan (P. W. 9) and Muhammad Ramzan (not produced) hastened to inform the local police about it. They did not even express any suspicion against any one in this report. Sub-Inspector Raft Ullah Khan (P. W. 13) on reaching the spot took into possession five wads (P. 7/1-5) from the head side of the deceased and made the same into a sealed parcel vide Exh. P. A. The blood-stained earth was secured vide Exh. P. B. The Sub-Inspector also recovered five pellets (P. 8/1-5) from the wall and made the same into parcels vide Exh. P. B/1. He then despatched the dead body along with inquest report Exh. P. J. And injury statement Exh. P. J/2. He picked up three moulds, prepared by Sardar Khan and Ghulam Muhammad alias Gama Trackers, from near the cot vide Exh. P. C. On the same day Souraj Khan (given up P. W.) produced before the Sub-Inspector the stolen buffalo vide Exh. P. E.
' The cot with quilt etc. Brought back from the mortuary by Foot Constable Sardar Khan along with last worn clothes were produced before the Sub-Inspector vide Exh. P. F.
Draftsman Abdul Aziz (P. W. 2) prepared the site plan (Exh. P. H) with Its duplicate (hail. P. H/1 which bear in red ink the notes and signatures of the Sub-Inspector as a token of its correctness.
' On 30th November 1971 Subeiar Saeed Ahmed (P. W. 10). Shukarullah Khan (P. W. 11) produced Akhtar appellant before the police who was taken into custody after his shoe (P. 9/1-2) were taken into possession and made into a parcel vide Exh. P. D. He was alleged to have made an extrajudicial confession before them giving a clue to this murder. ' appellant was arrested later on 11th December 1971 and the foot prints of the appellants were Identified by the two Trackers at a test parade held in Jail under the supervision of Mr. Altaf Hussain Tehsilder (P. W. 16).
4. There was thus the evidence of extra-judicial confession and the tracks alone to connect the appellants with the alleged offence which was always treated as of the weakest type for a correct decision, but in the present case its credibility was impaired altogether by Saleh Muhammad P. W.
Himself by disclosing that he had seen the two appellants in the custody of the police on 5th or 61 day of the occurrence which concession had cut at the roots of the entire case.
5. Even the extra-judicial confession attributed to Akhtar appellant was almost exculpatory so far as he was concerned but he inculpated Anwar only in respect of the use of his pistol on the deceased. There being no confessional statement from Anwar appellant the disclosure made by Akhtar appellant could not be used against him.
6. There was no incriminating recovery from either of them to corroborate the alleged confessional statement.
7. The evidence of the two Trackers was challenged by the Public Prosecutor himself who cross- examined them, it was, therefore, unworthy of any credence at all,
8. The fact that the presence of the tracks on the spot was neither mentioned in the F. I. R. (Exh. P.
G.) or the inquest report (Exh. P. J) was enough to discard it although it had been later demolished by the complainant himself along with the date of their arrest negating any such disclosure before Subedar Saeed Ahmad and Shukar Ullah P. Ws. So many days thereafter.
9. As a result of this discussion I accept this appeal and setting asid their convictions and sentences direct that both the appellants shall be set at liberty forthwith, if not required in any other case by the police.