' KHALILUR RAHMAN, J.-Appellants Umaid Ali son of Haleem Khan aged 25 years and Umar Wadda, Noor Muhammad and Rahim Bakhsh, sons of Haji Jindwadda, residents of Chak No, 4-Mithra, Police Station Dirawar, District Bahawalpur, were put on their trial on charges under sections 302/201 and 302/109, P. P. C. Respectively, for committing the murder of Pir Bakhsh son of Qaim Din aged 24 years, resident of Toba Hungwala before the learned Sessions Judge, Bahawalpur. By the judgment dated 1st April, 1977, the latter three were acquitted while appellant Umaid Ali has been convicted and sentenced to death and a fine of Rs, 5,000 or in default to undergo further rigorous imprisonment for two years, under section 302, P. P. C. And to five years' R. I. Under section 201, P. P.
C. He has been directed to pay a sum of Rs, 5,000 by way of compensation under section 544-A, Cr.
P. C. Or in default to suffer further six months' R. I. The convict has submitted a petition of appeal under section 420, Cr. P. C. Through Jail. The case has also been referred to us under section 374, Cr. P. C. For the confirmation of the sentence of death. We propose to dispose of both these matters by a single judgment.
2. Pir Bakhsh deceased was the younger brother of Allah Yar P. W. 9, complainant in the case. Both were residents of village Toba Hungwala. The deceased was married to Mst. Mahmooda, daughter of Allah Diwaya, a resident of village Lakhewala. She was not living with her husband but was residing with her parents in their village. A few days before the occurrence, the complainant had gone to Mandi Yazman for purchasing wheat. From Mandi Yazman, he proceeded to Chak No, 116, D. B. To the house of his sister Mst. Jewani. Saleh Muhammad alias Salehya P.W. 8, informed him there that his brother had been murdered by Umaid Ali appellant. He contacted Muhammad Ibrahim P. W. 6 of Chak No, 118 D. B. And taking him alongwith himself, he came to his house in Toba Hungwala. His wife Mst. Bhinno informed him that the deceased had gone to village Lakhewala to meet his wife there. The complainant alongwith Muhammad Ibrahim P. W., then proceeded to village Lakhewala. Wife of the deceased Mst. Mahmooda, told them that Pir Bakhsh had come to her house at noon time on Sunday and remained for the night there. On the morning of Monday, he was talking with Muhammad Ramzan P. W. 5 and Nasir (given up) when Umaid Ali appellant came and informed the deceased that his brother Allah Yar complainant had fallen ill in Chak No, 116 D. B.
When the deceased was preparing himself for going to Chak No, 116 D. B., the appellant Umaid Ali suggested that he would also accompany him. The deceased and Umaid Ali appellant got a camel from Dilawar P. W. 7 and went towards the abadi. The appellant was armed with a hatchet.
The complainant then alongwith Muhammad Ibrahim P. W. Went to Dilawar P. W. Who stated that he had given a camel to the deceased and Umaid Ali appellant and both had left together on the camel back. On the same day at about Isha prayer time Umaid Ali appellant returned alone and also brought the camel with him. His hands were smeared with blood, on an enquiry by Dilawar P.
W. He confessed before Dilawar that at the instigation of Umar Wadda, Rahim Bakhsh and Noor Muhammad (acquitted accused), he had murdered Pir Bakhsh. He left the camel and ran away. He also stated that he had given this information to Saleh Muhammad P. W. To be further conveyed to the complainant. With this information, the complainant then proceeded to Police Station, Dirawar and F. I. R. Exh. P. A. Was lodged there on 27-11-1975 et about 6-30 p. m., disclosing that the occurrence took place on Monday, the 24th November, 1975. As regards the motive of the crime, it was indicated in the F. I. R. That the three acquitted accused were not happy over the marriage of the deceased with Mst. Mahmooda and had demanded divorce. The F. I. R. Was recorded by Muhammad Abdul Aziz A. S. I. P. W.
10.
3. The A. S. I., after recording the F. I. R. Proceeded to village Lakhewala. He arrested Umaid Ali appellant on 29-11-1975. He led to the place where he had committed the murder of Pir Bakhsh. This was in Cholistan area near Chah Kaura. He also got recovered the dead body of the deceased from Chah Kaura. The recovery of the dead body was effected vide memo Exh. P. C. On the recovery of dead body he prepared injury statement Exh. P. N. And inquest report Exh. P.
0. He took into possession bloodstained earth from the place of occurrence and made it into a sealed parcel vide memo. Exh. P. D. The appellant then led to the recovery of hatchet P. 4 from a phot bush near Chah Kaura. It was taken into possession vide memo Exh. P. E. He then led to the recovery of his blood-stained clothes-shirt P. 2, gindi P. 3 and chaddar P. 4 from a phog bush. They were made into a sealed parcel vide memo. Exh. P. F. Lastly, he got recovered bloodstained clothes of the deceased i. e. Turban P. 6, a pair of shoes P. 5/1-2. These articles were taken into possession vide memo Exh. P. G. The A. S. I. Had also taken into possession camel from Dilawar P.W. Vide memo Exh. P. J. He got site-plan Exh. P. B. And its duplicate Exh. P. B. 1, of the place of occurrence prepared from Lal Khan P. W.
4. He des-patched the dead body of the deceased to the mortuary for post-mortem examination.
4. Dr. Ahmad Nawaz Khan Bhatti, P. W. 1 conducted the post-mortem examination on the dead body. He found the following injuries on his person :-
(1) A cut wound on the back of the neck. The third cervical vertebra was cut.
(2) A cut wound on the right shoulder 2' x 1 x muscle deep.
' The body was decomposed. The eyes, lips and nose were missing and eaten up by germs. The deceased was wearing white shirt and kachha. Most of the parts of the dead body were missing and had been eaten up by the germs. The death, in the opinion of the doctor, occurred due to shock and hemorrhage as a result of the injury on the neck. This injury was sufficient to cause death in the ordinary course of nature. The death might have occurred eight days before the examination.
5. The appellant when examined at the trial, pleaded innocence and denied his participation in the occurrence. He also denied the recoveries at his instance. He stated :- "Dilawar P. W. Suspected that I had illicit intimacy with his mother. This suspicion was, however, incorrect. About 2/3 years back Dilawar P. W. Obstructed me from visiting his house. For this reason I have been falsely involved in this case. I have been working as labourer with Nawab Khan a zamindar for nine years but he had not paid me the wages. I left his service. Dilawar P. W. Belongs to his party. For this reason I have been involved in this case."
6. The prosecution, at the trial, did not lead any evidence regarding the involvement of the acquitted accused in the occurrence, in any manner. Learned trial Judge, therefore, found no difficulty in acquitting them. Their case is not before us. As against the appellant, the prosecution case rests mainly on the circumstantial evidence-(i) last seen ; (ii) recoveries ; (iii) extra-judicial confession- ; and (iv) the motive.
7. The learned trial Judge excluded from consideration that part of the statement of Muhammad Ramzan P. W. Which related to the extrajudicial confession made by the appellant before him and Dilawar P. W. He however, accepted the statement of Dilawar P. W. On this aspect. He also accepted the statement of Muhammad Ramzan P. W. As regards the fact that the deceased was last seen in the company of the appellant. He also accepted the recoveries made at the instance of the appellant. As regards motive he accepted the statement of Allah Yar P. W. 9 at the trial where he disclosed that Umaid Ali appellant had illicit relations with the wife of the deceased who was the cousin of the appellant. This motive was not mentioned in the F. I. R. But the learned trial Judge accepted the explanation of Allah Yar P. W. 9 that this aspect of the case came to his knowledge after the registration of the case.
8. Learned counsel appearing in support of this appeal, argued that the case against the appellant has not been established beyond reasonable doubt. Muhammad Ramzan P. W. Obviously attempted to improve upon his statement at the trial. If his statement at the trial is accepted, the appellant had already disclosed to them that he had thrown the dead body in Chah Kaura and therefore, the prosecution case that the dead body was recovered at the instance of the appellant, is rendered doubtful. He also leveled some criticism against the recovery witnesses. He argued that the observation of the learned trial Judge that the, contention of the appellant that Dilawar P. W.
Was inimically disposed towards him as he had (the witness) suspected that the appellant had illicit relations with his m r her, is an "afterthought' because the same was not put to Dilawar P. W , is based on misreading of the record. This suggestion, according to the learned counsel, was put to the witness. He referred to the following portion of the statement of this witness "I had no enmity with Umaid Ali accused, nor I bad any suspicion against him."
' He criticised the aspect of the prosecution case that the hands of the appellant when he came to return the camel to Dilawar P. W. Were still bloodstained. He contended that it being in evidence (P.
W. 10, line 30, page 21 of the Paper Book) that the place of occurrence is at a distance of 14/15 miles from Toba Lakhewala and therefore, it was most unlikely that the appellant after committing the murder, would return with blood on his hands This element, which is ex facie highly unnatural, has been introduced to afford reasons to the prosecution of the appellant having made extrajudicial confession before Dilawar P. W. If this element is excluded there was no occasion for the appellant to make extra-judicial confession before Dilawar P. W. His (Dilawar's) anxiety therefore to introduce a false element in support of the prosecution case, would bring him to the category of interested witnesses and his evidence, therefore, is worthy of no credit. The important aspect of the prosecution case that the deceased was last seen in the company of the appellant, merits rejection. The entire prosecution case against the appellant, accordingly becomes highly doubtful.
9. The learned State counsel, on the other hand, argued that the prosecution has been able to bring home guilt to the appellant beyond reasonable doubt. He reiterated the reasoning of the learned trial Judge and highlighted them to some extent. He argued that the defence has not been able to show that any of the witnesses had any motive to falsely implicate the appellant in the case. The witnesses belong to different villages and it would be difficult to assume that all had conspired to make the appellant a scapegoat in an occurrence in which no ocular testimony, admittedly, is available. No exception, in law, can be taken to the conviction of the appellant on the basis of circumstantial evidence alone.
10. We have considered the arguments of the learned counsel for the parties and have gone through the record carefully. In cases where the prosecution case rests mainly on circumstantial evidence, there has been cleavage in the views both in the matter of the standard of proof required to establish the guilt of the offender and in the matter of onus of proof. If the deceased was last seen in the company of the offender, Courts in some cases had recorded conviction on this piece of evidence in case the accused was not able to explain away the death. In such cases the view taken was that where the deceased was last seen alive in the company of the accused it may lead to a reasonable presumption against the latter and he may, justifiably, be expected to give explanation and the onus of displacing the presumption of guilt shall shift on the accused and he shall be under an obligation to furnish a reasonable explanation as to how the deceased met his death. Reference can be made to Munshi and another v. The State (1) Reliance in this case was placed on a Federal Court judgment reported as Fazal Elahi alias Sajawal v. The Crown (2).
Supreme Court has considered both these aspects in a recent judgment in Rehmat v. The State (3).
Muhammad Yaqub Ali, C. J. (as his Lordship then was) has, formulated the rule thus :--- "On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of the accused is not by itself sufficient to sustain the charge of murder.
Further evidence is required to link the accused with the murder of his companion. Such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person who was last seen alive in his company."
' Muhammad Akram, J., has highlighted it further. It has been observed :- "The two last mentioned authorities discussed above go to show that there can be no hard and fast rule and that the evidence of last seen carries weight depending upon the varying degree of probity and the facts and circumstances in each case, remembering always the golden rule applicable where in the absence of direct evidence, the conviction is based solely on the circumstantial evidence. Before the guilt of the accused can be inferred merely from exculpatory circumstances, these circumstances must be found to be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt.
(See State v. Manzoor Ahmad). All the cases discussed in the final analysis rest on the application of this rule which is the only safe guide for the disposal of such like cases."
' The view taken by this Court in the matter of onus of proof in Munshi's case has not been approved. If has been laid down :- "Needless to emphasize that in spite of section 106 of the Evidence Act
(2) PLD 1953 FC 214
(3) PLD 1977 SC 515 ' In a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the inability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by prod of some facts within his special knowledge. If however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
' With these principles in view, we may now examine the evidence in this case.
11. In support of the plea that the deceased was last seen in the company of the appellant, the prosecution has relied on the evidence of Muhammad Ramzan P. W. 5, Muhammad Ibrahim P. W. 6, Dilawar P. W. 7 and Allah Yar complainant P. W.
9. They also stated about the extra-judicial confession. Muhammad Ibrahim and Allah Yar P. Ws.
Had stated that after receiving information from Saleh Muhammad P. W. 8 that Pic Bakhsh had been killed, they came to Toba Lakhewala. They were informed by Mst. Mahmooda, wife of the deceased that the appellant had taken the deceased out on a camel on the pretext that Allah Yar had fallen ill. Mst. Mahmooda has not been examined. The evidence of Muhammad Ibrahim and Allah Yar P. Ws. Therefore, on this aspect, cannot be taken into consideration. Muhammad Ramzan P. W. Has stated that he, alongwith Dilwar P. W. And Nasir (not produced) was present in Toba Lakhewala with the deceased. The appellant came there and informed him that his brother Allah Yar P. W. Was ill in the Chak and that the deceased should accompany him. He came on a camel and had a hatchet with him. The deceased then went in the company of the appellant on the camel, one pehr after sun rise. At about Isha prayer time, the appellant came back on the camel.
His hands were smeared with blood. He, Dilawar P. W. And Nasir were sitting at the Toba Lakhewala.
On their enquiry the appellant confessed that he had killed Pir Bakhsh deceased and thrown his dead body in Chab Kaura. He (Muhammad Ramzan P. W.) made considerable improvement on his statement Exh. D. A. Before the police with which he was duly confronted. He stated in the cross- examination that the house of Allah Diwaya is 3/4 squares away from Toba Lakhewala. Dilawar P.
W. 7 stated that he, Muhammad Ramzan P. W. And Nasir (not produced) were present in Toba Lakhewala and the appellant came and told the deceased that his brother was ill. He asked for a camel from the witness Umaid Ali appellant and the deceased then went away. In the evening the appellant came back to return the camel. His hands were smeared with blood. He confessed his guilt before the witness on his asking as to how his hands were stained with blood. He denied the suggestion that he had any enmity with the appellant.
' Both these P. Ws. Are agreed only on one aspect of the case and that is that when the appellant left Toba Lakhewala in the morning on a camel, the deceased had gone with him. With regard to the confession that the appellant made before these witnesses, when he came back at Isha prayer time to return the camel, there is material contradiction in the evidence of these witnesses. Dilawar P. W. Has not stated that Muhammad Ramzan P. W. Or Nasir was present with him at that time.
There was no occasion for the appellant to make confession before Dilawar P. W. Or as stated by Muhammad Ramzan before them. With a view to establish the plausibility of the confession the witnesses have introduced an element that the hands of the appellant were blood-stained and this gave them the occasion to ask him as to why his hands were so smeared with blood. Chah Kaura from where the dead body was recovered is at a distance of about 14/15 miles from the place of occurrence. The appeal ant must have taken quite some hours to travel back. It does not stand to any sense of wisdom that the appellant returned with blood on his hands. We are therefore, convinced that there was no occasion for the appellant to make confession of his guilt before Dilawar and Muhammad Ramzan P. Ws. It is the prosecution's own case that the blood- stained clothes and blood-stained hatchet of the A appellant were recovered from near Chah Kaura. If we accept these recoveries, one thing looks obvious that the appellant tried to rid of the articles which could have given any clue of the crime. It, therefore, appears highly illogical that the appellant would carry blood-stains on his hands so as to provide an occasion to the witnesses to question about it. We are therefore, not prepared to rely on these witnesses with regard to the alleged extrajudicial confession made by the appellant before them. There is however, no reason to disbelieve these witnesses on the aspect of the case that the appellant and the deceased had gone together on a camel.
12. There are a number of recoveries of incriminating articles at the instance of the accused. All the recoveries were effected from within the area of Chah Kaura. Although there is no sufficient material on the record, yet we feel that Chah Kaura is in Cholistan area. It does not appear inhabited place. Besides the police witness, the recoveries were witnessed by Muhammad Ramzan and Muhammad Ibrahim P. Ws. Muhammad Ibrahim P. W. Is a resident of Chak No, 188 D. B.
Although he has taken interest in the investigation of the case since the very beginning, it has not been shown that he had any particular interest in the complainant party. It has not even been suggested that he had any enmity with the appellant or any other motive to falsely depose against him. Muhammad Ramzan P. W., no doubt, attempted to improve upon his earlier statement at the trial, yet even in his case it has not been shown that he had any motive to depose falsely against the appellant. We have already disbelieved that part of his statement that the appellant confessed before him that he had thrown the dead body in Chah Kaura. The argument that the police already knew that the dead body had been thrown in Chah Kaura, cannot be accepted. We are therefore, constrained to hold that the prosecution has been able to establish that the various recoveries were made at the instance of the appellant. B It will however be difficult to accept that the hatchet recovered at the instance of the appellant was the same hatchet that he was carrying when he left in the company of the deceased.
13. This brings us to the last item of proof i. e. The motive. In the F. I. R. The motive alleged was that the appellant had committed the murder at the instance of the three acquitted accused who were not happy over the marriage of the deceased with Mst. Mahmooda and had demanded divorce.
This motive, however, was not pursued any further and during the trial another motive was introduced. Allah Yar P. W. 9 stated that the appellant is the cousin of Mst. Mahmooda and that after the death of Pir Bakhsh he learnt that the appellant had illicit relations with the wife of the deceased. He had not disclosed the source of his information. Perusal of the F. I. R. Would show that the complainant before lodging the F. I. R. Had been making efforts on his own to trace out the circumstances which led to the death of Pir Bakhsh. After receiving information from Saleh Muhammad P. W. In Chak No, 116/B. D. He did not proceed to the Police Station to lodge the report.
He went to his own house and enquired from his wife as to where the deceased had gone. His house is in Toba Hungwala. From there he then proceeded to Toba Lakhewala. He enquired from the wife of the deceased about the whereabouts of the deceased. He also contacted Dilawar P. W.
To find out if, in fact, the deceased had taken camel from him and had gone with the appellant.
Such a liaison as suggested by Allah Yar P. W. At the trial, is generally notoriously known to people in the locality and particularly in small villages. It would therefore, be difficult to believe that if the appellant had any such liaison with the wife of the deceased it had not become known to the complainant before lodging the F. I. R. No other motive has been suggested against the appellant.
We are therefore, constrained to observe that the prosecution has not been able to establish motive for this crime against the appellant.
14. We are therefore, left only with two pieces of evidence i. e. (1) that the deceased was last seen in the company of the appellant on the morning of Monday when they left Toba Lakhewala on a camel together and (ii) that the recoveries have been made at the instance of the appellant. The question to be examined therefore, will be if on this evidence it cannot be said that the prosecution has been able to establish its case against the appellant. To examine this aspect, we will have to keep in mind that as laid down in Rehmat's case the appellant is under no obligation to explain away the murder nor is the prosecution relieved of its duty to prove its case against the appellant.
Similarly, before accepting that these two circumstances are sufficient to infer the guilt of the appellant, we will have to examine that these circumstances are "incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt." The distance between Toba Lakhewala and Chah Kaura from where the dead body was recovered, is 14/15 miles. It must have taken quite some hours to cover this distance. The exact time of the death cannot be pin-pointed. We will have to give benefit on this aspect to the accused. It can therefore, be safely presumed that quite some hours had passed when the deceased and the appellant were last seen together and when he was murdered. There is no evidence that after the deceased and the appellant had left Toba Lakhewala, they were seen together near about the place immediately before the murder. Three more persons were doubted in the F. I. R. From Toba Lakhewala to the place of murder and during this interval spreading over a couple of hours, the appellant's innocence car be explained away on many hypothesis. The hypothesis that the deceased was murdered by someone else who had nothing to do with the appellant is a reasonable possibility telling upon the innocence of the appellant. The case of Gulab Khan v. The State (1) has been noticed with approval it Rehmat's case. In this case, under somewhat similar circumstances, it was held :- "The conviction of appellant Ali Akbar rests on the circumstantial evidence of Mst. Namoi and her husband Gulab alias Motan, the judicial confession and his pointation of the place from where the dead body was dug up. The testimony of Mst. Namoi and Gulal alias Motan is to the effect that at tipahri time the deceased has (1) PLD 1971 Kai. 299 accompanied Ali Akbar from their house of village Kohri. This is an incriminating circumstance, upon which the prosecution relies to establish that the deceased was last seen alive in the company of appellant Ali Akbar, Village Kohari is about 3 miles away from Ratodero. The prosecution has not collected any evidence to show that the deceased after leaving the house was seen alongwith the appellant Ali Akbar either in Ratodero town or on the way leading to that village. The possibility of Ali Akbar having separated from the deceased soon after leaving the house has not been altogether excluded. Even though this appellant has denied having visited Ratodero and has accordingly not explained this piece of circumstantial evidence against him yet the onus is still on the prosecution to exclude all doubts.
On an examination of this piece circumstantial evidence we are inclined to feel that the plausibility of an innocent possibility such as the one pointed out above has not been excluded. For this reason not much weight can be attached to this piece of evidence."
' The proximity of time when the accused and the deceased were last seen together and the time when the deceased was killed, to infer the guilt of the accused, should be of the nature as suggested by the Federal Court in the case of Fazal Elahi alias Safawal. It was observed :-- "For, while the fact of an accused person being the only person in the company of the deceased, within a very short time of his death may be almost conclusive, in the absence of explanation from the accused, for holding him to be responsible for the death, should it have been the result of violence, prolongation of the interval generally tends to weaken the inference very greatly. In certain circumstances, as much as an hour's extension may suffice to avoid even the duty of furnishing an explanation. This is the more so if there be no reason shown which would oblige the two men to remain in each other's company."
15. For all that has been stated above, we are of the view that the prosecution has not been able to establish its case against the appellant under section 302, P. P. C. Beyond reasonable doubt.
However we have believed the recovery of the dead body at the instance of the appellant, his conviction under section 201, P. P. C. Is not open to any exception.
16. The result is that the appeal of Umaid Ali appellant is partly allowed, His conviction and sentences under section 302, P. P. C. Are set aside and he is acquitted of this charge. His conviction and sentences under section 201, P. P. C. Are however, maintained. The sentence of death is not confirmed.