1969 PLP 542 (SCMR)

MUHAMMAD SHARIF, J.‑This is an appeal by our special leave against the judgment and order of the High Court of West Pakistan, Lahore, dated the 11th of April 1956, by which the conviction of Sardar Ali appellant was maintained under section 302, Pakistan Penal Code, and the sentence of death passed upon him was confirmed. His brother Said, who was also convicted by the trial Court, was, however, acquitted. The charge relates to the murder of one Anwar, son of Ghulam Qadir and paternal cousin of the appellant. It is alleged that on the evening of 14th of May 1955, the appellant and his acquitted brother, Said, came and took away Anwar from his jhuggi in the area of Tibbi Salabat to sleep at the pirr which is common to the parties. Anwar did not return in the morning and on an enquiry by his mother, Mst. Mona, she was informed by her other son, Mansha, that Anwar had probably gone to cut wood. Later, a person was sent to "L" plot (at a distance of about 7 miles), where the father of Anwar was residing, to ascertain if Anwar was there. The father and other persons came to Tibbi Salabat and told the mother and Jalal Din (P. W. 2) that Anwar had not gone there. It also appeared that on the previous night i.e. on the evening of the 13th May Anwar had similarly gone out to the pirr in the company of the appellant. The appellant and his brother were asked to explain as to what had happened to Anwar who had gone in their company. They denied all knowledge about him. Some tracks of footprints were found to be leading from the jhuggis of the accused to the riverside and there were also discovered near the bushes some marks of a bundle having been placed there. The tracks seemed to return from the riverside to the pirr and led further to the huts occupied by the accused. The appellant and his brother were suspected of having done away with Anwar. A further enquiry elicited no further clue about Anwar. On this, Ghulam Qadir, the father of Anwar, said openly that he was convinced that the appellant and his brother had killed his son: Ghulam Qadir was then sent to the Police Station Chuchak where a report was lodged at 12 noon on the 16th of May 1955. The prosecution story goes on the say that after Ghulam Qadir had left for the Police Station at about rotiwela, when Jalal Din and Nur were sitting in the jhuggi of the former, the appellant and his brother came there. Jalal Din is the real brother of the grandfather of the accused and of Anwar deceased. Both the accused stated that they had killed Anwar and sought the help of Jalal Din, their grandfather, to save them. It was further mentioned that they had strangulated Anwar while he was asleep. The body was then tied in a bundle and taken to the riverside and after it had been cut into pieces was thrown into the river. The toka, with which the body had been cut, was asked to be produced. Sardar Ali went to his own jhuggi, brought it and handed it over to Jalal Din. Both the accused were coaxed to keep sitting at the jhuggi of Jalal Din till the police arrived at peshiwella. The toka as well as the accused were then made over to the police. The appellant took the police officer towards the riverside, but nothing incriminating could be found. Later, he produced a shirt from his hut. This was taken into possession and there was a stain of blood on it. It was sent for chemical examination. The stain was faint and of human blood. On the question of motive, the prosecution case is that the sister of the appellant was married to the deceased and in return, the sister of the deceased was married to the appellant. Only the nikah had been performed, but the wives did not go to live with their husbands. This was three or four years before the dis appearance of Anwar. About two years ago, the deceased and his brother Mansha had quarrelled with the appellant and his brother Said over the removal of manure and some injuries were caused to Said by Anwar. The matter was not reported to the police and it was compromised. Shortly after this incident, both the marriages were dissolved by divorces on both sides. It was admitted, however, that in spite of the divorces, the parties continued to mix with each other and, as mentioned earlier, their threshing‑floor in the village was a joint one and on the 14th of May 1955 Anwar had not gone out with the accused for the first time. The body of Anwar was not recovered, nor was there any circumstance to indicate that it had been cut into pieces. The toka, said to have been used for the purpose, was free of any mark of blood or dent. The footprints noticed round about the pirr and the jhuggi were not identified and, according to the Sub- Inspector (P. W. 13), it was not possible to identify them. As a matter of fact, if the alleged confession be kept apart, it cannot be asserted with confidence that Anwar has been murdered. Dealing with the case of the appellant, the learned Judges of the High Court observed that "he bad a motive to kill the deceased, that he took the deceased with him on the evening of the 14th of May 1955, after which the deceased was not seen alive and that he made a confession to Jalal Din (P. W. 2) and Noor (P. W. 4) that he had murdered Anwar. In addition there is the fact that the appellant, produced his shirt which, when subjected to chemical examination by the Serologist to the Government of Pakistan, was found to be stained with human blood. The above pieces of evidence, in our view, prove conclusively that Sardar Ali appellant was responsible for causing the death of Anwar." The learned counsel for the appellant contended that the so -called extra‑judicial confession upon which the conviction was primarily based and rendered highly doubtful by certain features which were not taken into account and was for that reason wholly insufficient to hold the charge proved. It was also urged that the other "pieces of evidence" did no more than create a suspicion which could not take the place of proof. The evidence as to the confession was given by Jalal Din (P. W. 2) and Nur (P. W. 4). In his examination‑in‑chief P. W. 2 unambiguously referred to the appellant and his brother both having stated that "they had killed Anwar and I should save them." It was then clearly mentioned that "I made the two accused sit at my jhuggi till the arrival of the Police. Police arrived at peshiwela". In cross‑examination, however, the statement was considerably modified in that: "It was Sardar accused who made the confessional statement before me in the presence of Said co‑accused, who also kept on entreating me to stop Ghulam Qadir P. W. from going to the thana. The two accused were beseeching me for one hour." But Ghulam Qadir had already left for the thana and it was no use entreating P. W. 2 to "stop Ghulam Qadir from going to the thana." There prevails a good deal of confusion as to the place where the accused were sitting at the time of the arrival of the police. Prosecution witness No. 2 was positive in saying in examination- in‑chief that "it was at his jhuggi that the two accused were made to sit". This was changed in cross‑examination and P. W. 2 and his companion Nur (P. W. 4) "were sitting with the accused in the jhuggi of Ghulam Qadir when the Thanedar arrived." Prosecution witness No. 4 similarly stated that it was at the jhuggi of Jalal that the accused came and confessed and remained there till the arrival of the police. It was there that they were given to the custody of the police. In reply to a question in cross-examination, the accused were said to have been taken "to the jhuggi of Shahadat. The police was to sit there on charpoys". According to the Sub‑Inspector (P. W. 13), the two accused with Jalal and Nur (P. Ws.) were sitting at the jhuggi of Shahadat. Mansha (P. W. 10), brother of Anwar deceased, supports the Sub‑Inspector (P. W. 13) and said that he saw Nur P. W. at the jhuggi of Shahadat two hours before the arrival of the police. Abdur Rahman (P. W. 11) gave a wholly different version in a statement before the committing Magistrate with which he was duly confronted. He had stated there that "when the police arrived at the jhuggi, Sardar Ali and Said accused were present in their jhuggi with their father, Faiz Ali." It is not known how far the jhuggi of Shahadat was from that of Jalal (P. W. 2), but the jhuggi of the accused was admitted to be at a distance of about 2 killas. If the accused were in their own jhuggis when the police reached the village, as described by P. W. 12, the story for the prosecution, that the accused went to Jalal (P. W. 2) and confessed their crime in the presence of Nur (P. W. 4), becomes extremely doubtful. Any visit to Jalal is denied by the appellant. The learned Judges of the High Court attached the greatest weight to the testimony of P. W. 2 and P. W. 4, as they were nearly related to the accused and they could think of "no reason why they should have concocted the story of confession". It seems to have been overlooked that Jalal is not so disinterested as he was thought to be. He had three brothers, two of whom Sadiq and Muttali died issueless. and the third brother had two sons, i.e. Ghulam Qadir, the father of Anwar deceased, and Faiz Ali, the father of the appellant. On the death of Sadiq, his entire share was taken by Jalal (P. W. 2) to the exclusion of the living descendants of the other brother and he would have us believe that by way of compensation for the part not given out of the inheritance of Sadiq, the entire share of Muttali was given to the fathers of the accused and the deceased. This is wholly incorrect. Prosecution witness No. 11 Abdur Rahman tells us that the share of Muttali was mutated in favour of his two widows and as regards Sadiq's property from which the accused', father and the deceased's father were excluded, a suit was instituted by Faiz Ali, father of the appellant, and is still pending. Under the circum stances, Jalal (P. W. 2), whose elevated relationship appeared to invest him with extra respect and importance, was not a disinterested person and had the double object of depriving both the parties of their share in the property left behind by Sadiq by helping the one and condemning the other. Nur (P. W. 4) is the other witness to the confession. He happened to come by chance to Tibbi Salabat to meet his sister. He learnt there that Anwar was missing. He found Jalal (P. W. 2) sitting in front of his but and sat there for a talk. Faiz Ali, the father of the accused, is his mother's sister's son and Anwar's mother is his first cousin, being the daughter of a paternal uncle. It cannot be ascertained from the record as to which relationship had better claims upon him, but it is curious that if he wanted to get any information about the whereabouts of Anwar, he should not have gone to the father of Anwar who was also present in the village. If the evidence of Jalal (P. W. 2) be considered as not free from suspicion, it would not be safe to rely upon the testimony of P. W. 4 alone in proof of the confession having been made by the appellant. It has already been shown that his account of where the accused were sitting at the time of the arrival of the police is inconsistent with that given by P. W. 2 or P. W.

11. On the question of motive, the evidence consists of the statements of Jalal Din (P. W. 2), Mansha (P. W. 10) and Ghulam Qadir (P. W. 12) that a year before the occurrence, Said, the brother of the appellant, was beaten by the deceased and his brother Mansha, and this ultimately led to divorces to the sisters of the appellant and Anwar. The beating was said to have been given over the removal of namure. A reference to the first information report lodged by Ghulam Qadir (P. W. 12) would show that no mention whatsoever was made of a quarrel about the removal of manure. On the other hand, it was stated that about two years before, Mst. Bakhat Bhari, the sister of Anwar, was attempted to be kidnapped by Sardar appellant and his brother Said. Anwar reprimanded them for the act and on this, there was a fight in the course of which Said was injured by Anwar and his brother Mansha. The motive whatever it was whether the quarrel took place over the manure or the attempted taking away of Mst. Bakhat Bhari, it could not by itself be a circumstance in proof of the charge of murder against the appellant and more so where happy relations between the parties had been restored and they continued to meet each other and visit each other. Motive may be useful in appreciating and evaluating the evidence in a case, but by itself it is no proof of the crime charged. The fact that Anwar went out with the appellant on the evening of 14th of May 1955, and was not seen or heard of subsequently would at the worst raise a suspicion against the appellant, weakened to some extent by the other fact that Anwar himself had told his brother Mansha in the morning, that he would go to cut more wood. He might have left the appellant for that purpose. In any case, the disappearance of Anwar after the evening of 14th of May could not by itself be sufficient to prove that Anwar had been put to death by the appellant. The production by the appellant of his shirt, which contained a faint stain of human blood, would be no evidence of a murder having been committed. The stain might be of his own blood due to a scratch or a mosquito bite during the summer. The result of the above discussion is that if the confession alleged to have been made to Jalal (P. W. 2) and Nur (P. W. 4) be considered not free from suspicion, as it is not in view of the circumstances described above, the "other pieces of evidence" wholly fail to connect the appellant with the murder. We would, therefore, give the benefit of doubt to the appellant, accept his appeal and acquit him. Appeal accepted.