P (PLP)

The learned Sessions judge had come to the conclusion that the deceased was taken away by the accused on the pretext to help them to put their crop; that he was seen before murder by Gaman (P. W. 9) in the company of the convicts and that the evidence of Gaman which was of a truthful witness corroborates the extra‑judicial confessions of the appellants and consequently their guilt was established. However he disbelieved the story that the appellants were seen by Allah Ditta and Hayat bathing and washing their blood smeared clothes the same night in the canal. He also held that the evidence of motive was very flimsy and meagre. We hard the counsel at a sufficient length and we are of opinion that the evidence on the file is insufficient to bring the guilt home to the accused. The first link in the chain of the evidence is that Sarwar was taken away by Diwaya and Mahmood from his house in the presence of Mst. 7ohran his mother and Ghulam Hussain his brother. If we carefully scrutinize the evidence of Ghulam Hussain, then we would notice certain discrepancies therein as regards the time at which Sarwar was taken away from the house by the appellants Diwaya and Mahmood. But we would treat these discrepancies not very material because we are of opinion that the statement of Mst. Zohran is very consistent and explicit out this point. We are therefore at one with the learned Sessions judge that the prosecution had succeeded to establish that Sarwar had gone with Diwaya and Mahmood to help him and his brother to cut the crop. But that fact alone does not end the difficulty of the prosecution. The next question is the credibility of the statement of Gamin, and if accepted as credible, the effect thereof on the case of the prosecution. In the first instance we doubt very much whether Gaman had actually gone to the field where the deceased and his so‑called murderers were present. Gaman's own conduct raises considerable suspicion against his veracity. He had admitted in his statement during the trial that after the occurrence, though he had been working in his field till the evening of the following day, yet he had not brought that fact to the notice of any person. The fact of the murder of Sarwar was told by Ghulam Hussain to several persons in the village. The report was dictated and was sent to the police station. The accused were said to have appeared before several persons, consequently it is run believable that Gaman was ignorant of those facts. There were no reasons for him thus to keep silence and not to impart his own knowledge connected with the murder of Sarwar to any person. Assuming for the sake of argument, that Gaman had seen the deceased in the company of the appellants then does that fact connect the appellants with the commission of the crime ? The reply to this question would be in the negative. According to Gaman the cries of Sarwar attracted him to the pace of occurrence, where the deceased anti his murderer were present. He had deposed that the deceased had complained to him That he was being beaten by Ali and his two' companions. If Sarwar was serious in his complaint and he had really cried, because lie was being beaten, then it was expected from him in the natural course of business to get out of the clutches of his assailant and to walk away with Gaman. If that 'was not the fact then two circumstances arise, firstly that Gaman did not hear any cries of Sarwar and consequently did not go there. Secondly, if he did go there, and attracted by the cries, then the deceased was only feigning and not genuinely crying. If that was the circumstance then the conclusion would be that there was no sinister motive at that time on the part of the appellants to cause the death of Sarwar. We are left at the best with the fact that, some time before murder the deceased was seen in the company of the appellant. That fact indeed is insufficient to connect the appellant with the commission of the crime. The leaned counsel for the accused had referred us to 1932 Lah, P 243 in the connection where the Division‑Bench had observed that :‑ "The burden of establishing guilt of the accused is throughout on the prosecution and they must prove every link in the chant of evidence against him from the beginning to the end. When two persons are seen together and shortly afterwards one of them is found to have been murdered no onus rests on the survivor to give an explanation as to how the deceased met his death. It may be kept in view in this connection that the evidence of Allah Ditta (P. W. 10) and Hayat (P. W. 11) had been disbelieved. The evidence of Gaman to our mind is not the evidence of a true witness, and secondly, at ifs face value too it affords no assistance to the case of the prosecution. All that it leads to, to put it briefly, is that he had seen the deceased in the company of the appellant and nothing beyond that. The next piece of evidence against the accused is that of extra‑judicial confessions. It is in the evidence of the prosecution that the accused were promised to be saved if they made a con fession. We are, therefore, of opinion that such a confession cats not be treated as not having been obtained the inducement. Besides this, there is inherent lacuna in the evidence of the prosecution. There are. three witnesses on this point, Ramzan (P. W. 141, Jind Wadda, son of Faiz Bakhsh (P, W. 19) and Jind Wadda, son of Gaman (P. W. 18). Rahim Bakhsh‑Numberdar's presence was also deposed at the time. Now with the exception of Jind Wadda, (P. W. 19) all the witnesses on this point attribute a joint confession to the appellants. It was only Jind Wadda (P. W. 19) who held deposed that Ali had stated that he had intended to cut only the nose of Sarwar but they had killed him. Diwaya said that it was correct. There are no reasons why Wadda (P. W: 19)'s statement should be accepted and not of the other witnesses. There remains no hesitation for us to conclude that tie prosecu tion attributes a joint confession to the appellant. Such an evidence regarding extra judicial Confession is always condemned, We refer in this connection 7 Punjab Record` 1916, where the observations of Straight, Judge, appearing in the All. 509 are repro duced:‑ "I have wore than once pointed out, that it is not a proper course, where two persons are being tried, to allow a witness to state `they said this' or 'they said that', or, the 'prisoners then said'. It is certainly not at all likely that both the persons should speak at once, and it is the ,right of etch of them to have the, witness required to depose as nearly as possible to the exact words he individually used". In the present case the so‑called confessions carry this defect. It may also be observed here, that the law has laid down certain formalities which are to be strictly observed, when a confession of an accused is to be recorded, by a responsible witness of the position of a Magistrate. In the absence of the compliance of those formalities, the confession of an accused person reduced to writing by a Magistrate is always treated defective anal cannot form the basis of a conviction. It would, therefore, be unjust, if the conviction of an accused is recorded on an. extra judicial confession in which the exact‑ and clear words attributed to an accused are not placed by a witness, coming to prove such an extra‑judicial confession, before the Court: It means, therefore. that the Court should be more on guard when making air extra judicial confession as the basis of the conviction of an accused person. In the present case we are of opinion that the evidence relating to extra‑judicial confession of the accused is absolutely defective, and consequently no importance can be attached to it. To put it briefly, the statements of the witnesses on this point have no legal evidentiary value. We, therefore, reject the evidence relating to the extra‑judicial confession of the accused. We are left with no other evidence on the file which needs our consideration. In the end the may observe that it was urged before us that Sarwar carried the notoriety of stealing the crops of other persons. The dead body was not found in the field of Ali and Diwaya, but in the field of Qadir Bakhsh A bundle of cut crop was also found in the same field lying by the dead body. According to the story of the prosecution Sarwar was taken by Diwaya and Mahmood to cut their prop and not to steal of others. When the dead body was found in the field of Qadir Bakhsh and a bundle of cut crop was also found in that field, then can it not be argued that Sarwar and his companions went to steel the crop of another person and Sarwar was caught and killed while the other escaped. After all it is not an improbability which can arise from the aforesaid circumstances. The prosecution had failed to explain how Sarwar went to the field of Qadir Bakhsh and how his death took place. If Gaman's statement be accepted as correct, which was to the effect that he had met Sarwar and his companions in the field of Qadir Bakhsh then it leads to the conclusion that it was a wrong story that Sarwar was taken by his companions to cut their crop. They had gone there from the start with a sinister motive to commit theft of the crop of a third person. Sarwar may have met death as stated above in those circumstances, at the hand of some unknown person, To our mind the mystery of his death has remained unravelled. We are not, therefore, prepared to maintain the conviction of the appellants. Consequently we accept their appeal and set aside their conviction and sentence and acquit them. They shall be released, Announced. DIN MUHAMMAD, C. J.‑

I agree that this appeal be appeal be allowed and sentence of death imposed on the appellants be quashed. A.H. Appeal accepted.