P L D 1963 (W (PLP)

3. The various pieces of evidence against the appellant may now be considered (i) Extra judicial Confession : This was made before P. W.

8. Sardar Khan who lives in Kubro village which is about 10 minutes walk from the village of the parties. Sardar Khan says that he was called out from his house. On coming out, he found the two appellants who‑ both fell on his feet, and on being questioned, why they did so, the appellants told him "that they had murdered Ghulam Mustafa as he was suspected with Mst. Alma". They begged the witness to save them. He thereafter asked them to wait in his otak. Thereafter in the otak came g. W.

7. Yar Muhammad father of the deceased with Holy Quran in his hands. Yar Muhammad made inquiries from Sardar Khan about his son. Sardar Khan then informed him about the appellants having confessed to him of having murdered Ghulam Mustafa. P. W. 7 Yar Muhammad corroborates his going to Sardar Khan with Holy Quran in search of his son and having informed Sardar Khan accordingly. He says that the two appellants were already present there. Sardar Khan informed him that they had confessed to him of having murdered his son. Sardar Khan after an hour brought the appellants before the S. H. O. about whose presence at the complainant's village he had learnt after the appellants had confessed to him. According to Sardar Khan he had handed over the appellants to the police at about 11 a.m. Yar Muhammad also stated that he had met Sardar Khan between 11 a.m. and 12 noon that day.

4. The above testimony does not appear to be true and is not a reliable piece of evidence. Sardar Khan admits that the appellants were not his heirs ; they did not belong to his caste ; he had nothing to do with them. He does not visit their village. The appellants came to him for the first time that day. There are other zamindars bigger than Sardar Khan in the village. Sardar Khan admitted that he was accused in murder case of one Ghulam Ali. He, however, did not know if the appellants were Ghulam Ali's friends. The evidence of P. W. Yar Muhammad is equally worthless. He learnt about the missing of his son at Sukkur on the previous evening. He came to complainant's village that very day i.e., 15th January 1962 and took the Holy Quran and went in search of his son in different villages. He then ultimately reached Sardar Khan's village between 11 a.m. and 12 noon. He could not name any village that he visited nor any person he approached and made inquiries about his son. He did not know Sardar Khan before. The first report was filed at 1 a.m. at Naudero about 4 miles away from the village of the com plainant. It is difficult to believe when Sardar Khan brought the appellants to the village of the complainant, the police would be already there, at about 11 a.m. It is not the prosecution case that the police had visited the village before the report was lodged at 1. p.m. with them. 5. (ii) The second piece of evidence against the appellants is that they were seen together with the deceased on the 13th January 1962 on the bank of Khan‑wah 1 miles away from the place where the dead body of the deceased Ghulam Mustafa was found later on. P. W. 3 Ghulam Ali stated that he and his brother (not examined) had taken their sheep for grazing, when at about 11 a.m. they saw the two appellants sitting with Ghulam Mustafa on the bank of Khanwah. Appellant Akkan and deceased Ghulam Mustafa had hatchets while appellant Misri was empty handed. Ghulam Ali says he returned to the village in the evening but informed his mother at 9 p.m. about having seen the appellants with the deceased Ghulam Ali does not say that the information was given to the mother in consequence of their coming to know about the missing of the deceased. The evidence of Ghulam Ali, however, is not reliable. He admits that they had settled for the grazing purposes about a call's distance from the village, some 7 or 8 days prior to this incident. Ghulam Ali admits that he did not know anybody from the village before the incident. In the examination- in‑chief Ghulam Ali said that he knew the deceased and the appellants in Court. He did not say that he knew the appellants before the incident. There was no identification test of the appellants from this witness. In cross‑examination Ghulam AU stated that he had shown the place where he had seen the appellants and the deceased on the bank of Khan‑wan. The S.H.O., however, does not speak about this. No Mashirnama has also been produced by the prosecution. If the place had been shown such Mashirnama must have been prepared. P. W. 4 Mst. Darya Khatoon stated that her sons had informed her at about 9 p.m. that they had seen the appellants with Ghulam Mustafa. She, however, does not state at what place they said, they had seen the appellants and Ghulam Mustafa. She, however, stated in her evidence that she was informed "because we had heard that Ghulam Mustafa was reported to be missing". She says that she informed Muhammad Bux next morning who called her sons and they also told Muhammad Bux the same thing. The cause of the information given by the sons, according to Mst. Darya Khatoon, was that the fact of deceased's missing was in the air and, there fore, they gave this information to her. However, she did not state this fact in the committal Court. We are of the view that the evidence about the appellants being seen along with the deceased cannot be accepted. Even otherwise this piece of evidence would not connect the appellants with the crime. The dead body was found on the 3rd day, 1 miles away and as such the evidenciary value of this piece of testimony will not be much. 6. (iii) The third piece of evidence against the appellants is that, while in police custody, they led the police to the bed of Chharwah and in the presence of Mashirs Sardar Khan and Ghulam Sarwar pointed out the dead body of Ghulam Mustafa lying there with hatchet injuries. Two blood‑stained hatchets Articles A and B were also lying there. The corresponding Mashirnama is Exh. I L‑A. Misri Appellant had shown the dead body first and thereafter appellant Akkan had also shown the same to the police. P. W. Juwan, though not a Mashir, also deposes that the appellants were produced by Sardar Khan before the police in his presence. The appellants said that they would show the dead body. Thereafter Misri appellant led the police to the bed of Chharwah and pointed out the dead body of Ghulam Mustafa. The two blood‑stained hatchets were also there. Appellant Akkan had also taken the police, while in custody, and pointed out the dead body in the bed of Chharwah. Juwan did not state before the committing Magistrate or the police that the appellants had made a statement of their readiness to point out the place where the dead body was. It has already been pointed out that Sardar Khan had produced the appellants before the police at 11 a.m. or 12 noon. P. W. 3 Ghulam Ali and his mother P. W. 4 Darya Khatoon's evidence shows that after they had informed Muhammad Bux complainant, when called by him, about seeing the deceased and the appellant together, Muhammad Bux had taken the two brothers and Mst. Darya Khatoon to the Police Station. Both Ghulam Ali and Darya Khatoon state that they found the appellants in police custody at the `thana'. This was on 14th January 1962. Ghulam Ali specifically stated that on the 3rd day (of the incident) the police came to the village with the appellants. If the above evidence is correct then evidence of extra‑judicial confession on the following day i.e., on the 15th morning will be under a heavy cloud. Again, if the appellants were produced by Sardar Khan at 11 a.m. after confession how is it that the dead body was not found till late in the evening that day.

7. Before the dead body was found admittedly a search had been made for missing Ghulam Mustafa. The dead body was found in the bed of Chhar‑wan where it was not concealed. It was found about 25 paces away from cart track. P. W. 8 Sardar Khan does not state that the bed could not be visible from the bank or the cart track. P. W. Juwan also does not say so. The S. H. O., however, does state that the dead body was not visible till one reached the bed. He, however, admits that it was not concealed. It, therefore, cannot be said that the dead body could not be seen by persons who may pass by the Chharwah bank or by its bed. All we can say about the discovery of the dead body made by the appellants is, that the circumstances surrounding the discovery of the dead body do not induce us unhesitatingly to accept the evidence that it was on the pointing out of the appellant Misri that the dead body was found ; it may or may not have been so found. Appellant Akkan's subsequent pointing out of the dead body will not be admissible in evidence against appellant Akkan since the fact of the body being there had already been known to the police. 8, (iv) The fourth piece of evidence is the discovery of the blood‑stained clothes. P. W. 8 Sardar Khan states that appellant Misri, while in custody, told the police that he would produce the blood‑stained clothes and then took the police and the Mashirs to his house and from an earthen pot fixed in the ground he produced the blood‑stained shirt, loin‑cloth and angocha Articles C, D and E. The corroborating Mashirnama is Exh. I 1‑C. Thereafter appellant Akkan made a similar statement and took the police to his house and from underneath the rubbish heap of cattle he produced the shirt and loin‑cloth Articles F and G, both stained with blood. The corroborating Mashirnama is Exh. 11‑D. The Chemical Analyser's report Exh. 15‑A shows that Articles C, D, E and F were found stained with human blood, while the origin of blood on Article G could not be determined. The appellants have denied the fact of making the discovery of the respective blood‑stained articles from their respective houses. They also denied the truth of other prosecution evidence discussed against them above. There is no ground for us not to believe the evidence of discovery of the blood‑stained clothes made by the appellants. The fact that Sardar Khan is not believed on the question extra‑judicial confes sion or that his evidence about the discovery of the dead body has not been found free from doubt, cannot be sufficient to reject Sardar Khan's evidence in respect of the recovery of the blood stained clothes also.

9. The evidence against the appellants brought by the Prose cution is the discovery of the dead body made by appellant Misri. This we have already held to be not free from doubt. The other piece of evidence against both the appellants Misri and Akkan is the discovery, made by them, of blood‑stained clothes. The extent of blood on each article is not pointed out in the evidence in Court either from Sardar Khan or from the S H. O. The chemical report also does not show the extent of the blood on the articles found by the Chemical Analyser nor the number of samples taken by the Chemical Analyser which were detected by him to contain human blood. In the absence of such data, the telling effect of the prosecution evidence is very much watered down. In our opinion the discovery of the blood‑stained clothes concealed in their houses by the appellants, is a piece of the evidence, which does give rise to grave suspicion against them, but would not by B itself be suffcient for their conviction under section 302, P. P. C. The circumstantial evidence against the appellants has to be com plete and incompatible with their innocence. 10. (v) There is no sufficient motive established. P. W. 2 Muhammad Bux informant says that accused had a grudge against Ghulam Mustafa deceased and they had asked him not to allow Ghulam Mustafa to remain in the village, as he was an undesirable person, being of bad character. Muhammad Bux says that he refused this. No further details are shown as to when this had happened. P. W. 6 Mst. Alma has been examined. She states that about 15 days before the murder she had gone to fetch water from the village well and the deceased had also brought his bul locks to water them. Appellant Misri came there and asked her why she was at the well and that she was in toe with the Ghulam Mustafa ; and that he (Misri) would see them both. She went back to her house where Misri also came and threatened her again. Alma denied any relationship with the appellants who are cousins (Masat) inter se. P. W. 5 Juwan is her father Juwan stated that Gahno, a brother of appellant Misri is married to one of his daughters. Mst. Zuhra a sister of Juwan's wife is daughter of sister of Misri's father. Alma has her husband and other relations. The relationship of the appellants with Mst. Alma is not of such a close nature as would ordinarily be a sufficient motive for murdering the deceased, only because he was seen at the well watering his bullocks where Mst. Alma also happened to be.

11. We find that the offence has not been established against the appellants beyond reasonable doubt. We give them the bene fit of that doubt and acquit both of them. They shall be released forthwith. K. B. A. Appeal accepted.