1995 PLP 664 (MLD)

(iii) motive; and (iv) the evidence of recoveries.

3. The evidence of extra‑judicial confession consists of Ch. Lal Din (P.W.2) and Muhammad Hussain (P.W.3). Both these witnesses also deposed that in fact they produced the accused before tile police. They are witnesses of recovery as well. Muhammad Jahangir (P.W.61 deposed that during the fateful night, Aslam accused came to him and asked for a cot as he wanted to sleep. He further submitted that the accused was carrying a Kassi with him at that time. Muhammad Jahangir P.W. is also a witness of motive. The motive alleged in this case is that the accused had obtained a fruit garden on lease of Rs.1,400 out of which Rs.700 had been paid and the remaining amount was outstanding. The grievance of the accused was that Ataullah deceased (father of Muhammad Jahangir P.W.6) did not irrigate the garden which was on lease with the accused. Yet another motive alleged was that the deceased had got cancelled the marriage settlement of accused with the daughter of one Abdul Aziz. This testimony of P.W.6 qua motive was further corroborated by Naeemullah (P.W.7). The evidence of last seen was furnished by Muhammad Shat (P.W.8) who deposed that on the night of occurrence he came across the accused in a rather perplexed condition going rather quickly towards the Chakki. On the following morning he got to know that Ataullah deceased had been murdered. Similarly Abdul Malik (P.W.9) stated that at 4‑00 a.m., the following morning, he saw Aslam accused coming from the side of saw‑mill belonging to Ataullah deceased. The recoveries of blood‑stained clothes of accused i.e. shirt (P‑8) and Shalwar (P‑9) were secured through memo. Exh.PF and P.W.2 and P.W.3 are the marginal witnesses.

4. The learned counsel for the appellant praying acquittal of the accused has made following submissions:‑‑‑ (i) That there is no eye‑witness of the recoveries; (ii) That in the F.I.R. Exh. PA lodged by Muhammad Saleem son of the deceased neither any accused was nominated nor even a suspicion expressed against anyone; (iii) That the implication of the appellant after almost more than a week of the lodging of the F.I.R. is an afterthought and does , not inspire confidence; (iv) That the evidence of extra‑judicial confession is furnished by Muhammad Hussain (P.W.3) who is brother of the deceased and P.W.2 who is not known to the accused prior to the date ‑of the alleged extra‑judicial confession i.e. 31‑8‑1987; (v) That it does not appeal to commonsense that the appellant would make such a confession before a real brother of the deceased and before a stranger; (vi) That P.W.2 has stated in Court that he suspected the appellant right from the first day but there is no justifiable reason as to why did he keep mum for eight days; (vii) That the evidence of recovery of the blood‑stained clothes of the appellant do not inspire confidence as there is no earthly treason as to why should the appellant kept the incriminating evidence of blood stained clothes with him for eight days. (viii) That the evidence of recovery is violative of section 103, Cr.P.C. as no respectable of the locality was associated with the same; (ix) That the evidence of last seen furnished by P.W.8 and P.W.9 is not credible inasmuch as both the witnesses withheld this information for a couple of days; and (x) That P.W.9 who saw the appellant in the early hours of the following morning did not notice any blood stains on the clothes of the appellant.

5. The learned State Counsel as well as the learned counsel for the complainant have submitted that there are minor discrepancies which are not vital to the prosecution case; that people generally do not come forward as witnesses and, therefore, the violation of section 103 of the Cr.P.C. is of no help to the appellant; that the evidence of extra‑judicial confession inspires confidence as the same is corroborated by the evidence of recoveries and that there is no reason as to why the witnesses should falsely implicate the appellant.

6. I have heard the learned counsel for the parties and have also gone through the evidence.

7. The edifice of prosecution story has been raised on the extra‑judicial confession. The extra‑judicial confession is generally a weak piece of evidence and has to be received with caution. It can only be worthy of credit if (a) it comes from an unimpeachable source and (b) it is corroborated by any piece of credible evidence.

8. One of the eye‑witnesses of extra‑judicial confession is not known to the appellant and was in no position to help the accused. It is repellant to commonsense that the appellant should come to him and make the confession. The evidence of such a witness, therefore, cannot form a valid basis for conviction. This view finds support from a judgment of the Hon'ble Supreme Court reported as 1977 SCMR

251. The other witness, namely, P.W.3 is an interested witness as he is closely related to the deceased. Even otherwise the inexplainable delay with which they joined the Police investigation and the inter se discrepancies of their statements make them unsafe for reliance. The evidence of recovery of blood‑stained clothes from the appellant is tainted with doubt as the appellant cannot go out of his senses to retain such clothes for a period of eight days for safe production before the Police. The so‑called witnesses of last seen evidence smack of falsehood as, if they were truthful witnesses they would have laid information to the complainant the very morning when the F.I.R. was lodged.

9. For aforementioned reasons, I am afraid the conviction of the appellant cannot be sustained on the basis of the evidence which has been laid in this case. Resultantly, the impugned judgment dated 3‑4‑1990 passed by the learned Additional Sessions Judge, Rahim Yar Khan is set aside and the appellant shall be released forthwith if he is not required to be detained in any other case. N.H.Q./M‑1915/L Appeal accepted.