1984 P Cr (PLP)

At the instance of Anwar Masih appellant blood-stained dagger (Exh. P. 9) was recovered and it was taken into possession, vide Memo. Exh. P. G. Blood-stained clothes of Anwar Masih appellant, namely, kurta (Exh. P. 7) and shalwar (Exh. P. 8) were got removed from his person at the time of his arrest and taken into possession, vide Memo. Exh. P. F. Similarly, blood-stained dholi (Exh. P. 5) and pyjama (Exh. P. 6) belonging to Lazar Masih, acquitted co-accused, were got removed from his person at the time of his arrest and were taken into possession, vide Memo. Exh. P. E. These recoveries were made on 16th March, 1977 and they have been attested by Danial (P. W. 7), Muhammad Sadiq S. I. (P. W. 11) and Allah Rakha (not produced). According to the report of the Serologist (Exh. P. M.) all the above-mentioned articles were found to have been stained with human blood.

7. The appellant in his statement before the trial Court denied having participated in the occurrence, disowned the recoveries and stated that be had been falsely implicated for the reason because he did not cast vote in favour of Bashir Ahmad P. W. and that, therefore, he got him falsely implicated in this case. The acquitted co-accused also denied having participated in the occurrence. He too disowned the recoveries and stated that he had been falsely implicated due to enmity of Bashir Ahmad P. W. According to him, his grandfather had agreed to sell their ancestral house to Bashir Ahmad P. W. He and his father had objected to it. After the occurrence the sale was got registered. But they were in occupation of a portion of the said house and a civil suit was sub judice between the parties in that respect. He stated that he was innocent but he did not produce any defence.

8. Dr. Gulzar Ahmad (P. W. 3) conducted post-mortem examination on the dead body of the deceased on 9th March, 1977 at 11 a. m. He noted that the eyes were open and burnt, mouth closed, upper half of chest, face and arms were burnt. Intestines were coming out of the abdomen. He noted the following injuries on his person :- (1) Superficial burn in area of right side, face and forehead and ears. (2) Burn superficial in area of both sides of neck and chest. (3) Burn over the left hand. (4) Incised wound 1/2" x 1/4" x going deep towards chest at left side of it from above downward. (5) Incised wound 3/4" x 1/4" x going deep in chest, cavity, 1/2" behind injury No. 4 from above downward. (6) Incised wound 1/2" x 1/4" x going deep towards chest, cavity, 3" behind injury No. 5. (7) Incised wound 3/4" x 1/4" x going deep at left side of chest, 3" behind injury No. 6. (8) Incised wound 3/4" x 1/4" x going deep 1" below and behind injury No. 7. (9) Incised wound 3/4'' x 1/4" x going deep at left side of waist. (10) Incised wound 11" x 8" cutting the whole thickness of the abdominal wall with cutting of the intestines and spleen. Some portion of the intestines was also burnt. (11) Incised wound 1/4" x 1/4" x going deep at right side of the chest. Injuries Nos. 4 to 11 were caused by sharp-edged weapon. In his opinion the burns were post-mortem, while injuries were ante- mortem. The death was due to shock and haemorrhage as a result of injury No. 10 which was sufficient to cause death in the ordinary course of nature. Time that elapsed between injuries and death was immediate and between death and post-mortem examination about 30 hours. In the cross-examination he stated that injury No. 10 on the person of the deceased could not be caused by direct stabbing by a chhuri or knife but it could be caused by a chhuri or knife if the same was stretched after penetration. It may be noted that all the injuries on the person of the deceased were incised wounds and, therefore, caused by sharp-edged weapon. Injury No. 10 was a wound extending 11" x 8" with cutting thickness of the abdominal wall. The first three injuries were caused because of burns. Thus, according to the medical evidence the deceased was first stabbed in the belly by a sharp-edged weapon and then he received other incised injuries and on his death his face and other parts of the body were burnt.

9. I have heard learned counsel for the parties. It is an unwitnessed occurrence and the names of the assailants do not figure in the F. I. R. The dead body of the deceased was found on 8th. March, 1977 at about 10 a. m. near the brick-kiln of the village and the matter was reported to the police by the brother of' the deceased namely, George Masih P. W. He had stated in the F. I. R. that some unknown assailants had murdered the deceased during the preceding night. He himself had seen the deceased earlier in the evening of 7th March, 1977 while standing near the women's polling station as these were election days. He did not return to his house on that night and on the next day it was found out that he had been murdered. No motive is given in the F. I. R. but subsequently the prosecution case about the motive is that some quarrel took place between the deceased and the accused-party over boys (mondas). There is no eye-witness of the occurrence. Even the complainant George Masih P. W. had not seen the deceased in the company of the accused-party on the previous evening. Anyway, the matter was reported to the police at 11 a. m. on 8th March, 1977, and until the next nine days i.e. 16th March 1977, there is nothing on the record, as to what had happened. On 16th March, 1977 Bashir Ahmad (P. W. 9) comes forward and produces both the appellant and the acquitted co-accused before Muhammad Sadiq S.-I. (p. W. 11) as culprits in the murder case of the deceased on the basis for their having made extra-judicial confession before him and Muhammad Sharif Butt (not produced). The version of Bashir Ahmad P. W. is that while he and Muhammad Sharif Butt (not produced) were sitting in his baithak on 16th March, 1977; at about 9 a. m., the appellant and the acquitted co-accused came there. The appellant told them that he and the acquitted co-accused had murdered the deceased. He also told them that they took the deceased on the other side of the brick-kiln and in the early hours of the morning the acquitted co-accused secured him and the appellant gave him dagger blows. Thereafter they burnt his face and came back to their houses. The appellant also told them that on account of mondas (boys) a quarrel took place between him and the deceased and in order to avenge the insult, they murdered the deceased. After the appellant finished his story, then the acquitted co-accused also told them the said story in the same manner. It may be noted that there is only this one sentence about the acquitted co-accused but Bashir Ahmad P. W. has not given any narration as to what was the extra-judicial confessional statement of the acquitted co-accused. He stated in the cross-examination that thereafter he produced the appellant and the acquitted co-accused before the thanedar. He admitted in the cross-examination that the father of the acquitted co-accused had filed a civil suit against them and that half portion of the house was in possession of the father of the acquitted co-accused. He further stated that he had known the members of the accused-party since their childhood. He was Exh. B. D. member and at present Chairman of the Zakat Committee of the Illaqa. He was one of the respectable of the village and that, therefore, people came to him. He denied the allegation that father of Anwar Masih appellant bad cast vote against him and, therefore, he had falsely implicated the appellant or that he had implicated the appellant due to enmity towards him. Learned counsel for the appellant has raised numerous arguments. Firstly it is argued that the evidence pertaining to extra-judicial confession only comes from Bashir Ahmad P. W. and it is to be considered as to whether the said extra-judicial confession having been made by the appel lant is proved or not. The reasoning proceeds that it is alleged to have been made by the appellant as well as by the acquitted co-accused eight days after the occurrence. Bashir Ahmad P. W. claims himself to be a respectable of the village. He is an Ex-B. D. member and Chairman of the Zakat Committee of the Illaqa. If he is a respectable and on that basis is considered as a person commanding influence and authority in the village, then any extra-judicial confession made by any accused person before him would be inadmissible under the Evidence Act. Then this aspect is also to be considered that extra-judicial confession having been made is attributed only to the appellant but in respect of the acquitted co-accused no words or statements of the acquitted co-accused are given and it is stated by the witness that he also made an identical statement like the appellant. The other witness of extra-judicial confession, naively, Muhammad Sharif Butt, has conveniently not been produced. It is also admitted by Bashir Ahmad P. W. that there is some litigation going on between the father of the acquitted co-accused and himself. On the basis of these flaws learned counsel argues that when the extra-judicial confes sion is being made after eight days of the occurrence before this witness and no reason is shown as to why it should be made by the appellant before him, the extra-judicial confession made by the appellant is not proved. Learned counsel further argued that it was only on the basis of this alleged extra-judicial confession that the appellant and the acquitted co-accused were arrested. The extra-judicial confession made by the appellant is also not proved for the reason when the acquitted co-accused having made identical statement, according to this witness, was given the benefit of doubt and acquitted despite the fact that human blood-stained clothes were recovered from him. Learned counsel argues that if the extra-judicial confession evidence was of no value and is discarded altogether, then we are left only with the recovery evidence which by itself cannot sustain the conviction. He next argued that the recoveries made, in the instant case, of human blood-stained dagger (Exh. P. 9) as well as human blood-stained clothes. of the appellant and the acquitted co-accused were made eight days after the occurrence when the appellant had sufficient time to wash away if there were any blood-stains on the dagger or on his clothes. According to the prosecution version eight days after the occurrence when the appellant was arrested, the Investigating Officer removed the so-called human blood-stained clothes from his person and even that of the acquitted co-accused. Learned counsel argues that after so many days the appellant and the acquitted co-accused could not have possibly been going about wearing human blood-stained clothes. Finally, learned counsel argues that extra-judicial confession was not put to the appellant under section 342, Cr. P. C. and that, therefore, it could not be used against him. In support of this argument he has placed reliance on Abdul Latif v. Crown (P L D 1952 F C 113), in which it was laid down that failure under section

342. Cr. P. C. to draw the attention of the appellant to his confes sion in order to give him a chance to explain his position had seriously prejudiced the defence. In Muhammad Siddique etc. v. The State (1974 P Cr. L J 180), it was held that extra-judicial confessional evidence was the weakest form of evidence and if such confession was not put to an accused, person dur ing examination under section 342, Cr. P. C., it cannot be used as against him. In Khanzada Mir v. The State (P L D 1979 Pesh. 215), it was laid down that if confes sion was not put to the accused under section 342, Cr. P. C. then it cannot be used as against him. In the present case, while the appellant as well as the acquitted co-accused made their statements before the trial ~ Court under section 342, Cr. P. C., the extra-judicial confession having been made by the appellant was not put to him. It was argued by learned counsel that for that reason also the conviction and sentence awarded to the appellant were liable to be set aside. Finally he argued that it was an unwitnessed occurrence and the dead body of the deceased was found on the following day. No one knows as to what was the motive for the commission of crime. George Masih P. W. complainant, brother of the deceased, even did not see the deceased in the company of the appellant and the acquitted co-accused on the evening preceding the occurrence. He has clearly stated that he saw the deceased standing near the women's polling station all alone. Motive for crime as well as the way how it was committed is all included in the alleged extra-judicial confession which is not reliable. There is force in the argument of learned counsel. It is an unwitnessed occurrence and the assailants are not named in the F. I. R. In the light of the above discussion, the extra-judicial confession having been made by the appellant is not proved. The recovery evidence, in the instant case, is not reliable and by itself it would not be sufficient to sustain the conviction. Besides that the extra-judicial confession was not put to the appellant under section 342, Cr. P. C. and for that reason also it cannot be used as against him. In that view of the matter, in my con sidered opinion the prosecution did not succeed in establishing its case a against the appellant beyond any shadow of doubt and in the circum stances his conviction as well as the sentence awarded to the appellant were not proper and they are hereby set aside. The result is that the appeal of the appellant is accepted and he is acquitted. He shall be released from jail forthwith if not wanted in any other case. M. Y. H. Appeal accepted.