P (PLP)

ABDUL AZIZ, C. J.‑‑It is a very unfortunate case in which a convict in the Central Jail Bahawalpur was murdered on the night between 6th and 7th June, 1947 and the murderer was not traced, and the present convict appellant named Ghafoora whose conviction was recorded by the learned Sessions judge under section 332 Pakistan Penal Code, and who was sentenced to death is to escape the penalty of law. The case of the prosecution to put it briefly, is, that two or three days before the occurrence Bahar and Noor Muhammad who were also tried with Ghafoora and who were first discharged by the Committing Magistrate but were subsequently committed to the Sessions under the orders of the learned Sessions judge and were acquitted went to Central Jail Bahawalpur to have an interview with Ghafoora appellant. Mst. Sabbal a relative of those two persons was abducted by one Khuda Bakhsh real maternal uncle of the deceased. Khuda Bakhsh had absconded and was not traced. During their interview with Ghafoora they instigated him either to cut the nose of Dadla deceased or to put him to death. Faiz Muhammad. P. W. 13 a warder who was on duty at 10‑30 p.m. and was near the ward No. 2 of barrack No. 10 found Dadla, deceased lying in a pool of blood. Faiz Muhammad at once informed Din Muhammad, Head Warder, who informed the Superintendent of Jail who reached the spot. Dadla was removed to the Jail Hospital "and died at 3 a. m. the same night. Ruhka was sent by Superintendent of Jail to Ch. Zahoor Mohyud Din Sub‑Inspector of Police to inform him that Dadla a convict was found injured. Sub‑Inspector of Police went to the spot and saw that the deceased bad expired in the Hospital. He prepared the inquest report Ex. PB and arrested Ghafoora. His other two alleged companions were subsequently arrested. The case of the prosecution depends on the motive for the crime, the testimony of Ghularn Nabi P. W. 12, Faiz Muhammad Warder P. W. 13 and Khawad Bakhsh convict P. W. 15 and orb the medical evidence of Dr. Mafooz Ali P. W.

1. The story of motive is not believed by the learned Sessions Judge as he had acquitted Bahar and Noor Muhammad. The question remains of the value of the so called eye‑witnesses. It is a fact as established from the testimony of those witnesses that they failed to disclose the true story immediately after the occurrence. The names of these persons appear in the inquest report but they had made no statement about the occurrence as no statement was ascribed to them in that documents. Their evidence was recorded on the next day and they had admitted that till their examination they had not disclosed to any person what was seen by them. Warder P. W. 13 had clearly admitted in his statement that after he had seen the occurrence he had informed Ali Muhammad Head Warder, the compounder of the Hospital, the Superintendent of Jail and the Medical Officer. They all reached there immediately but he did not inform any' of them what he had seen because he was not questioned about the affair. When the Sub‑Inspector came he refused to make the statement. He first made the statement to the Superintendent Jail and then to the Sub Inspector Police. The second witness is P. W. 12, Ghulam Nabi. He is the cousin of the deceased: In a statement before the Sessions judge he had deposed that he had seen the occurrence and had given an information of it to the Superintendent of Jail, compounder of the Hospital and to a Warder, but‑ in his statement before the Committing Magistrate he had stated that as he had treated the occurrence an ordinary one consequently he had failed to give them any information and kept silent. Khawad Bakhsh P.W. 15 though deposed that he had seen the occurrence but had admitted that he 'had given no information of the occurrence to the Jail officials because he was afraid of convicts. The statement of Ghulam Nabi is the statement of a close relative of the deceased, and is self contradictory and is of no value. The evidence of Khawad Bakhsh and of the Warder Faiz Muhammad also looses its evidenciary value when they admit that they failed to make statements to their officers immediately after the occur rence. It is stated by the witnesses that the accused had used the upper part of the grinding stone in his Cell in causing the injuries found on the body of the deceased. The upper part of the mill‑stone was not produced in the Court. On the other hand the lower part was produced. It is in the evidence of the prosecution that the lower part of the mill‑stone was fixed. There is no evidence on the file whether the indications of the removal of the lower part from its place were seen and found. The lower part produced before the Court admittedly had no blood stains and the absence of the blood stain was explained by the witnesses by stating that the accused had taken a bath over it. We cannot understand why the lower part of the grinding stone was exhibited in the Court when according to the case of the prosecution its upper part was used. The learned Sessions judge had treated it a confusion of the prosecution but he did not try to clear this confusion but accepted its story. The evidence of the witnesses who had failed to make statements immediately after the occurrence can have little value in the eye of law. This fact was admitted by the learned Crown counsel. The value of this evidence is further shattered as it is in direct conflict with the medical evidence. According that the medical evidence three injuries were found on the person of the deceased.

1. A contused wound 3" long 1" wide going down to the bone starting on 1 " above the right ear going obliquely backwards and slightly upwards.

2. A contused wound " long " wide skin deep " above the outer end of the right eye brow.

3. The right eye and upper and lower lids were blue. Nose full of congealed blood. The witness further states that if this mill‑stone would have struck the head of the deceased then in his opinion the skull would have been crushed into pieces but if only the edge of this stone had struck the deceased then injury No. 1 could be possible. In cross‑examination he states that injury 'No. 1 could be caused by a heavy dang. The three injuries which were present could not be the result of one blow. Injury No. 2 could not be caused by this mill‑stone present in the Court room. From this evidence of the Doctor it is evidently clear that the stone was not used in causing the three injuries on the person of the deceased. The evidence, therefore, is directly in conflict with the evidence of the so called eye‑witnesses. The eye witnesses having failed to give the correct version of the story at the earliest moment and their evidence being in conflict with the medical evidence could not be believed. From the medical evidence it transpires that the weapon used by the murderer was in all probability a dang. If the use of the dang is accepted and that of mill‑stone is excluded then the entire story of the prosecution breaks. The learned Sessions judge's judgment shows that lie himself was not certain in his conclusions and both the Assessors had held the accused not guilty. To us it appears that it is definitely proved that the grind stone was not used by the murderer in causing the death of the deceased: That the weapon of offence in all probability according to the medical evidence was a lathi. Whoever caused the death of the deceased succeeded to secure a lathi through the interven tion of some Jail employee. As this was in itself an offence under the Jail Rules and the entry of a lathi in the Jail premises was likely to cause a reflection on the Jail adminis tration, consequently the right story was supressed and a false story was substituted for it so it resulted in ‑the destruction of the prosecution case. It was also pointed out to us that from the evidence of Abdul Hameed Head Warder P. W. 6 it was proved that the chain of one Muhammad Alam convict was found broken during that night and Muhammad Alam was found free in his move ments. It was, therefore, contended that the possibility of the murder having been committed by that convict could not be excluded. However it is a conjecture and a conjecture cannot be substituted for a proof. The plain facts are that one of the three eye‑witnesses is closely related to the deceased and his evidence is self con tradictory. The other two witnesses had supressed the facts of the occurrence at the earliest moment and opened their mouths late in the next day. They could not therefore be treated as independent witnesses. Moreover their evidence stands con tradicted by the medical evidence and the evidence of the medical witness takes the foundation out‑ of the case of the prosecution. In these circumstances we are constrained to disagree with the findings of the learned Sessions judge which to him also were not clear and hold that the prosecution had failed to bring the guilt home to the accused. With this conclusion the learned Crown counsel also agrees. We, therefore, accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released provided he is not wanted in any other case. The petition for revision as a matter of course fails and is dismissed. Guhzar, father of the appellant and Gindwada petitioner were present. Announced. K.M.A Appeal accepted.