1985 P Cr (PLP)

MUHAMMAD MUNIR KHAN, J.‑‑ This Criminal Appeal No.294/81 and the connected Murder Reference No. 76 arise from the judgment of learned Additional Sessions Judge, Faisalabad whereby he on 18‑3‑1981 convicted Ali Muhammad appellant aged 30 years under section

302. P.P.C. for causing the death of Eisa and sentenced him to death and a fine of Rs. 1,000 in default thereof one year's R.I. The appellant was also directed to pay Rs.5,000 as compensation to the legal heirs of the deceased, in default thereof 6 months' R.I.

2. The occurrence took place on 17‑10‑1977 at 6.00 p.m. on canal bank in the area of Chak No. 450‑G.B. of Tandlianwala. The distance between place of occurrence and the police station is 10 miles. The F.I.R. Exh. P.G. was lodged by Allah Yar Lambardar P.W. 11 on 19‑10‑197 7 at 9.00 p.m. and was recorded by Tajammal Hussain, S . I . P.W.15.

3. On 19‑10‑1977 Alim Khan and Ghulam Muhammad alias Munshi both not produced came to Allah Yar Lambardar, P.W. 11 in Chak No. 450‑G.B. and told him that a dead body of a young man was lying near the water‑course in square No.

13. The Lambardar alongwith Allah Ditta Chaukidar P.W. 5, Maulvi Abdul Qadir P.W. 14 and others went to the place where the dead body was lying. Maulvi Abdul Qadir identified the dead body as that of Eisa, son‑in‑law of Noor Samand P.W.

12. The Lambardar sent for Noor Samand who on reaching there confirmed that the dead body was of Eisa with whom he had married his daughter Mst. Nasiran two weeks earlier. The Lambardar then lodged report Exh. P.G. wherein Ali Muhammad appellant, the sister's brother of Noor Samand and Muhammad Arif son of Noor Samand who allegedly were annoyed over the marriage of Mst. Nasiran with the deceased, were suspected. Tajammal Hussain, S.I. P.W. 15 came to the spot and took into possession blood‑stained earth from there and despatched the dead body for post‑mortem examination.

4. On the same day at 4‑45 p.m. Dr. Ahmad Saeed P.W. 1 conducted post‑mortem examination on the dead body of Eisa and found as many as 15 stab and incised wounds on his neck, chest, upper arms, palms and the abdomen. All injuries were caused by sharp‑edged pointed weapon. Out of 15 injuries found on the person of the deceased, 7 injuries were grievous in nature. In the opinion of the doctor, the death was due to shock and haemorrhage caused by the grievous injuries. The death was immediate and the time between death and post‑mortem was from 24 to 72 hours. 5. 5/6 days after the registration of the case Ali Muhammad appellant came to the Dera of Allah Yar Lambardar. Maulvi Abdul Qadir P.W. 14, Amanat Ali and Ahmadyar were present there. In the presence of these persons, the appellant while confessing the murder of Eisa by him stated that he had brought Eisa deceased from his house in villge Pira Maitala of district Bahawalnagar. They reached Samundri at 4‑00 p.m, from where he alongwith the deceased proceeded towards Chak No. 450‑G.B. On the way they met Abdul Khaliq and Soni P.Ws and on their inquiry he (appellant) told them that his companion was Eisa, the son‑in‑law of Noor Samand. The appellant further stated that he had asked Eisa deceased to wash his face at the water‑course as they were about to reach the destination. On this Eisa started washing his face at the water‑course, when the appellant caused several injuries on his person resulting in his death. The appellant also admitted to have removed the wrist watch, pair of shoes, a handkerchief, a piece of cloth, a Chadar and a hand bag belonging to Eisa deceased. While disclosing the motive, the appellant stated before the Lambardar and others that he was annoyed over Eisa's marriage with Mst. Nasiran as the hand of Mst. Nasiran had to be given in exchange for his marriage promised by Noor Samand P.W. Tajammal Hussain S.I. in search of he appellant, came to Chak No. 450‑G.B. where Allah Yar Lambardar Maulvi Abdul Qadir P.W. 14 produced the appellant before him on the same day, the appellant led to the recovery of blood‑stained knife Exh. P.4. from his residential Kotha; which wa, taken in to possession vide recovery memo. Exh. P.C. attested by Habib P.W. 6 and Muhammad Tufail not produced. On the same day, the appellant also got recovered hand bag Exh. P.5. wrist watch Exh. P.6, Chadar Exh. P.7, towel Exh. P.8, a piece of sloth Exh. P.9, a handkerchief Exh. P.10 and pair of shoes Exh. P.11/1‑2 belonging to the deceased which were taken into possession vide recovery memo. Exh. P.D. attested by the same witness.

6. To prove its case prosecution examined 15 witnesses. No one saw the appellant causing injuries to the deceased. The prosecution relied on extra‑judicial confession supported by Allah Yar Lambadar P.W. 11 and Ghulam Qadir P.W.

14. To prove last seen of the deceased with the appellant, prosecution produced Mst. Irshad P.W. 7, Ahmad Ali P.W. 8, Binyamin P.W. 9 and Muhammad Akram P.W.

13. Mst. Irshad P.W. 7 stated that after some days of the marriage of Mst. Nasiran, the daughter of Noor Samand with Eisa deceased, the appellant Ali Muhammad came to their village Pira Maitla of District Bahawalnagar stating that he had come to take Eisa with him as the latter was not acquainted with the route to Chak No. 450‑G.B. and that he took away the deceased with him on the following day. Ahmad Ali P.W. 8, Binyamin P.W. 9 made almost similar statement. Muhammad Akram P.W. 13 stated that on his way to his Chak No. 449‑G.B, he had met the deceased and that after his arrest the appellant had got recovered blood‑stained knife Exh. P.4 and articles Exh. P.5 to P.11/1‑2 which were taken into possession vide memos. Exh. P.C. & P.D. Noor Samand P.W. 12 stated that he had given Mst. Nasiran in marriage to Eisa deceased a week or 10 days before the occurrence. The witness also stated that he had promised with the appellant that he will arrange his marriage in exchange of the hand of Mst. Nasiran and that when he married Mst. Nasiran to Eisa deceased, he told the appellant that he would give the hand of his other daughter in exchange of his marriage and that the appellant apparently did not protest. Mst. Irshad P.W. 7 identified the articles Exh. P.5 to P. 11/1‑2 as of the deceased. The rest of the evidence is of formal nature.

7. When examined under section 342, Cr.P.C., the appellant denied all incriminating circumstances. He raised the plea of false implication. In defence he produced no witness.

8. Learned counsel for the appellant submitted that the prosecution has failed to prove fits case beyond reasonable doubt; that the appellant never made any confession before Allah Yar Lambardar and Maulvi Abdul Qadir P.Ws. and that the alleged recoveries are fake Conversely, the learned counsel for the State supported the judgment of the trial Court.

9. Keeping in mind the guiding principles laid down by the Superior Courts for the appreciation of extra‑judicial confession and the circumstantial evidence that; Extra judicial confession is at the best a weak type of evidence and utmost care and caution is to be exercised to placing reliance on this piece of evidence which requires 3‑fold proof, firstly that in fact it was made; secondly, that it was voluntarily made; thirdly, it was true and that the circumstantial evidence should be strong enough to exclude all the hypothesis of the innocence of the accused and should lead to one and only one conclusion that the appellant and none else has committed the crime. We proceed to evaluate and assess the evidence of extra‑judicial confession, which to our mind, is the main pillar of the structure of the prosecution. Coming to the first test, we find that Allah Yar, Lambardar was not related to the deceased and since no one had seen the appellant committing the murder of Eisa, therefore, his appearance before the Lambardar and making of voluntarily confession is not plausible. It does not appeal to reason that the appellant while making the confession would have made a detailed statement relatable to motive, His being last seen with the deceased by the witnesses, the removal of each and every article belonging to the deceased, the number of the injuries and the weapon used by him. Allah Yar, Lambardar P.W.11 stated that the appellant had made confession before him and Ghulam Qadir after 3/4 days of the recovery of the dead body whereas Abdul Qadir P.W 14 stated that 5/6 days after the recovery of the dead body, the appellant had come to the Dera of Lambardar. Tajammal Hussain, S.I., P.W.15, stated that the appellant was produced before him by the Lambardar and Abdul Qadir on 25‑10‑1977. Allah Yar, Lambardar being the first informant of the case was naturally interested in the progress of the investigation. This part of the confession that the appellant had removed articles Exhs. P.5 to P.11/1‑2 does not inspire any confidence, inasmuch as, in the circumstances of the case, there was no occasion or any necessity to remove articles of the deceased particularly the pair of shoes Exh. P.ll/1‑2 and took the same with him after the commission of the murder, because the possession of these documents could lead to his arrest for the murder of the deceased. In the ordinary course of events the culprit would not have taken away with him articles like Chadar, towel, handkerchief and piece of cloth, etc. For all these reasons, we very much doubt the appearance of the appellant before the Lambardar and Abdul Qadir, his having made confession before them. The alleged confession also does not appear to have been truly made because the removal of articles Exhs. P.5 to P.11/1‑2 as confessed by the appellant, runs counter to natural probabilities. We are convinced that the story of the detailed confession has been concocted to use motive and the recovery of knife and articles r to corroborate the extra‑judicial confession. The evidence of extra‑judicial confession thus fails to qualify the test and has to be excluded from consideration. Since the murder was committed on the bank of the canal where the water was flowing, the appellant could not have taken blood‑stained knife to his house. He could have easily thrown the knife in the canal or washed the blood on the knife.

10. This brings us to the evidence of "last seen". The evidence of Mst. Irshad P.W.7, Ahmad Ali P.W.8 and Binyamin P.W.9 can hardly be termed as evidence of "last seen", inasmuch as, after their departure from village Pira Maitla of District Bahawalnagar, the appellant and the deceased were seen alive in Faisalabad district. As far alleged "last seen" by Muhammad Akram P.W.13, he has not given the exact date when he saw the deceased and the appellant together. Eisa deceased was not previously known to him. He had not seen the dead body, therefore, it cannot be said that the person whom he saw with the appellant was, in fact, Eisa deceased. The circumstantial evidence thus tails to exclude the hypothesis of the innocence of the appellant.

11. The upshot of the above discussion is that there is no satisfactory basis, whatsoever, for upholding the conviction of the appellant and while giving him the benefit of doubt, we acquit him of the charge. He shall be released forthwith, if not required in any other case. M. A. K. Appeal accepted.