1984 P Cr (PLP)

10. It is a case of circumstantial evidence. Nobody saw who, when and how Moosa was murdered.

11. Mst. Haleema widow of Moosa deposed that Saifullah used to come to their house and live with them. He was the son of her brother. Saifullah's brother was also married to her daughter.

12. Before the occurrence Mst. Haleema left for Shorkot. When she returned, she did not find her husband. She said that her husband used to keep his money with him in a Theli and Saifullah only knew.

13. She further deposed that she was told by Shamir and Fazil that deceased and the appellant left at about Peshiwela. They went towards the forest. The accused had a hatchet with him. She was also told that the deceased had a silver jug because he wanted to collect honey from the forest. She said that her husband was killed because he had money with him.

14. Shamir said that he knew the family of Moosa. He did not know whether Haleema lived at the Dhari but his Dhari was situated at a distance of two-three Acres from their Dhari. The accused was on visiting terms with Moosa. There was a thick forest at a distance of four Acres towards the East from his Dhari. This belonged to the Government. It covered a large area.

15. Any one going from the Dhari of Moosa to the forest had to pass in front of Shamir's Dhari. At about Peshiwela while he was present at his Dhari, he saw Saifullah and Moosa together. They went towards the forest. Moosa had a silver jug; the accused a hatchet. Moosa was also wearing a leather cap. Within his sight, they entered the forest.

16. On the next morning, Mst. Haleema came. She asked about her husband. He told her that previous evening he had seen her husband going with Saifullah. She was asked to make further enquiries from Saifullah. On, this she said that Saifullah was with her that night and left in the early hours. Shamir searched for Moosa but he did not find any trace. Eventually, on the 3rd day, dead body of Moosa was found lying in the forest.

17. Fazil also saw the two going to the forest. The deceased bad a jug; the appellant a hatchet. Moosa shook hands with him. Fazil asked where were they going. He was told that they were out to collect some honey and went in the forest. The same evening, the witness saw only Saifullah returning from the forest. He noticed that bottom of the trousers of Saifullah had been washed. Those had been turned up. Saifullah then went to the Dhari of Moosa. On the next day Haleema came to Fazil. He told her what he had seen a day earlier.

18. Abdul Ghani was Lambardar of village Gagh. He deposed about the extra-judicial confession. He also attested the recoveries.

19. About the extra-judicial confession his evidence was that after having met the appellant he took him into confidence and worked very hard to convince him for all available help. It was then that he came out with the truth and told him that he had murdered Moosa with hatchet. He was alleged to have further confessed that the murder was committed to rob the money.

20. Abdul Ghani attested the recovery memos. Exh. P.F. P.G. P. H. & P.J. by mean of which blood-stained earth pair of shoes P-6/1-2, knife P-7, bundle of grass P.1, cap P-9, Theli containing Rs. 1,700 P-10, Shalwar P-11 Shirt P-12, and hatchet P-5, were taken into possession.

21. The investigation was conducted by Ch. Sardar Ali, Sub. Inspector in the first instance from whom Ch. Sultan Ali, Sub-Inspector, took over. He arrested the appellant on 9th December, 1977. He was searched and from his person he found a brown coloured belt containing currency notes.

22. On 1st December 1977, Dr. Munawar Hussain, Medical Officer, D,H.Q. Hospital Jhang conducted the post-mortem examination. He found nine injuries in all. Eight were incised wounds oblique in direction 11 cm x 1.5 cm x bone deep on the right side of head; 3 cm x 8 cm x scalp deep on the right side of head; 3 cm x 8 cm x scalp deep on the right side of head; 13 cm x 2 cm x bone deep on the right forehead; 13 cm x 2 cm x bone deep on right of forehead 1.5 cm over the above injury ; 2 cm x 5 cm bone deep on the right side of forehead 1.5 cm behind injury No. 3; 18 cm x 3 cm x bone deep on the front of face starting from the right side of face in which nasal bone at its root, right maxila and left eye-ball were cut ; 5 cm x 5 cm x bone deep on the right side of nose and 3 cm x 5 cm x bone deep on the left side of head, 1.5 cm above the left ear. The 9th injury was the cut of tip of nose.

23. In the opinion of the doctor cause of death was shock and haemorrhage due to injuries Nos. 1, 3, 4, 5 and

6. These injuries were sufficient to cause death in the ordinary course of nature individually as well as collectively.

24. The appellant in his statement under section 342, Cr. P.C. admitted his relationship with Moosa deceased inasmuch as Mst. Haleema was his father's sister and that Ramzan his brother was married to Mst. Allah Rakhi daughter of the deceased. He said that when he visited the house of the deceased he had gone to sell the cloth and was not at home. He denied all the allegations and disowned the recoveries. In reply to question, "Why this case against you?", he said:- "Nek Muhammad P. W. was inimical towards us as the deceased had married his daughter to my real brother whereas Nek Muhammad wanted her hand for his own son. Nek Muhammad P. W. involved me in this false case due to suspicion and enmity. My brother divorced the daughter of the deceased after this case and for that reason Mst. Haleema is now under the influence of Nek Muhammad P. W. I was a kid of 14/15 years of age at the time of the occurrence. It was on this ground that I was released on bail in this case." He professed his innocence and declined to produce evidence in defence.

25. The appellant filed this appeal through jail. He is represented by a counsel at the State expense. We have heard him as well as the counsel appearing on behalf of the State.

26. After taking into consideration the entire evidence, we are of the view that it is not possible to uphold the conviction. The evidence does not inspire confidence. For instance, Nek Muhammad in his state ment did not at all mention about the silver jug as well as hatchet. Even, otherwise, his evidence is discrepant. The testimony of Abdul Ghani about the extra-judicial confession hardly deserves any consideration because it is his own admission that he had to work hard to extract con fession from the appellant. This type of confession law does not permit to be used against an accused. Even otherwise, the circumstantial evidence is not so strong so as to exclude all the hypothesis of innocence of the appellant. The conviction cannot be upheld only on the last seen evidence. The chain of events is not complete. There are missing links. The prosecution has not been able to prove its case beyond reasonable doubt. The appellant is given the benefit of doubt. He is acquitted. He shall be set free, forthwith, if not required in any other case. S. G. D. Appeal accepted.