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, S. 302-Murder-Evidence Recovery of human blood on baan of cot and on phahora, only cor roborative price of evidence-No ocular evidence to show as to who murdered deceased-Presence of human blood on two articles would not, in circumstances of case, link accused with offence.

, S. 24-Confession-Extra judicial confession-Accused first denying that they had committed murder but on promise of help by witness admitting offence Extra-judicial confession, held, rightly rejected by trial Court.

, S. 24-Confession-Extra judlcial confession-Oral confession of accused can be proved only by reproducing exact words used by him.

Dr. Tasaddaq Hussain for Appellant.

Saeed-ur-Rehman far the State.

.-Nasar Ali (28/29), son of Waryam was tried under section 302, P. P. C., whereas Nasar Ali and Samanda (45), son of Hasta were both tried under section 201/34, P. P. C. .The learned Sessions Judge, Lyallpur, by his order, dated 21-5-65 acquitted Nasar Ali and Samanda of the charge under section 201/34; P. P. C. and convicted Nasar Ali under section 302, P. P. C. and sentenced him to transportation for life and a fine of Rs. 500, or in default to one year's further R. I. The convict has come in appeal against his conviction and sentences.

2. The prosecution story briefly, as disclosed at the trial is that the appellant and the acquitted accused are cousins inter se. Mst. Alo deceased, sister of the appellant Nasar Ali, was the wife of Sarwar who died about six months before the occurrence. It is alleged that the appellant wanted Mst. Alo to marry Ghulam, a brother of her deceased husband Sarwar, but Mst. Alo de ceased did not wish to marry him and wanted .to marry Nazir (P. W. 7), a nephew of Ghulam and Sarwar, with whom she has developed illicit connection. Nasar Ali appellant had left the village with a view to see his Pir'. On the night of occurrence at about midnight, Nazir P. W. met Mst. Alo deceased at a distance of about three killas from the house of Nasar Ali appellant under a Shisham tree. At that time, Nasar appellant was heard by them singing while returning to his dhari. On Gearing the appellant singing, Mst. Alo,, deceased left for the dhari of the appellant where she lived, but the appellant had reached the dhari before her. On seeing her coming to the house, the appellant is said to have asked her as to where she had gone to and she informed him that she had gone out to urinate. At this the appellant gave a dang blow to the deceased, hitting her on the head. The occurrence was witnessed by Nazir (P. W. 7) and Khan Muhammad (P. W. 12), son of Kamir who bad gone in search of his missing mare, and on reaching the dhari of Waryam he had seen Nasar appellant, along with Mst. Alo, standing there and within his sight the appellant gave her a dang blow on her head.

3. After killing Mst. Alo, Nasar appellant and Samanda, acquitted accused are alleged to have thrown the dead body of the deceased in Jhang Branch Canal and while proceeding on a mare along with the bundle, containing the dead body, they were seen by Khan Muhammad (P. W. 8), son of Wali Muhammad and Abdul Majid (P: W. 10) at about midnight, who were returning from Hinduana Bungalow, where they had gone to see the Zaaildar. The mare on which the appellant and the acquitted accused were carrying the bundle, belonged to Ikblas. About 8-9 days after the disappearance of Mst. Alo, Karam Ali (P. W. 6) was on his way to Police Station, Chak Jhumra, but he met Kafait Husain S. H. O. (P. W. 13) in Chak No. 129 J B who was on patrol duty who recorded his report on 28-9-1964 at 12 noon and sent it to the Police Station for the registration of the case, where it was incorporated in the F. I. R. (Exh. P.A.). The S. I. went to the spot and called the villagers. Nasar Ali appellant was not available and it was stated that he had abscond. On 1-10-1964 in the morning, the appellant and the acquitted accused appeared before Muhammad Khan (P. W. 11), son of Khizar, telling him that they had murdered Mst. Alo and requested hits to produce them before the Police. They further informed him that they had thrown the dead body of the deceased in Canal after cutting it into pieces. The witness produced the appellant and the acquitted accused in Chak No. 129 J B before Kafayat Hussain S. I. (P. W. 13) and he took them into custody. On interrogation, Nasar appellant on that very day produced a cot (Exh. P. 1) from the room of his Dhari, which was blood stained. The S. I. cut the bloodstained bean from the cot and made it into a parcel per recovery Memo. Exh. P. C. From another room in the dhari the appellant from the heap of Bhoosa recovered and produced before the S. I. bloodstained Phahora (Exh.P.2) which was taken into possession per recovery Memo. Exh. P. IJ. The bean and phahora were found to be stained with human blood by the Serologist. Nasar appellant led the S. I. to Jhang Branch Canal, where a place was pointed out to him from where pieces of bones Exh. P. 3 to P. 6 were recovered. He also recovered three pieces of Paranda Exh. P. 7 to P. 9 and he took these into possession per recovery Memo. Exh. P. E. The bones were sent to the Medical Superintendent, Lyallpur, -hose report is Exh. P. D. B. The Sub-inspector had inspected the spot and had prepared the site plan Exh. P. F.

4. The appellant when examined pleaded not guilty and stated that he was innocent and falsely charged n account of his enmity with the prosecution witnesses. He further denied having made the extra judicial confession and -denied having pointed out the place from where bones and paranda were recovered. He also denied having produced the cot Exh. P. 1 and Phahora (Exh. P. 2).

5. The prosecution in support of its case relied upon the statements of Nazir (P. W. 7) and Khan Muhammad (P.W. 121 as eye-witnesses. The human blood on the baan Exh. 1'. 1 and Phabora (Exh. P. 2), recovered at the instance of the appellant was also relied upon by the prosecution as corroborative piece of evidence. Lastly, the extra judicial confession, allegedly made by the appellant was relied upon by the prosecution.

6. The learned counsel for the, appellant urged that none of the two eye-witnesses had witnessed the occurrence and they seem to have come forward in support of the prosecution story on account of their spite for the appellant. Nazir (P. W. 7) deposed that Sarwar, husband of Mst. Alo was his paternal uncle who died about six months before the occurrence and after the death of her husband, she fell in love with him and wanted to marry him. The appellant wanted her to marry Ghulam, a brother of Sarwar, and so the appellant suspected Mst. Alo of having illicit connection with him (witness). On the night of occurrence, Nazir P. W. met Mst. Alo under a Shisham tree at a distance of about three killas from the house of the appellant, where she was residing. At about midnight they heard the appellant singing, while returning to the house, and so Mst. Alo left for the house of her brother, but the appellant had reached the house before her and on seeing her coming he asked her as to where she had gone, and then he picked up a Bang and dealt a blow with it on her head. The statement of this witness has not impressed us, because according to his own version he was at a distance of three Killas from the house of the appellant, and had not seen the appellant dealing a dang blow to the deceased on the head, as they were, not visible to him, but had heard the sound produced by the striking of the dang. Nazir P. W. admitted in, cross-examination that Mst. Alo was residing in the house of her deceased husband at the time of the occurrence, and therefore, the prosecution evidence that on hearing her brother singing, while returning to his house she also hurried to the house and reached after the appellant cannot be accepted, because she had no reason to go to the house of her brother when she in fact was residing along with her children in the house of her deceased husband, and this story that she returned to the house of her brother was introduced with a view to show that it was the appellant who had killed her. Nazir P. W. did not see the appellant hitting the deceased on the head, and therefore, his statement that the deceased was hit on the head by the appellant cannot be accepted, and so we have no hesitation in rejecting his statement. Khan Muhammad (P. W. 12), son of Kamir also does not appear to be a natural witness. He deposed that he had set out in search of his mare and at about midnight he came to a place near the dhari of the appellant and witnessed the occurrence. He seems to be a chance witness. Furthermore, he has enmity with the appellant, as he has admitted in cross-examination that Khan; an uncle of Nasar appellant had lodged a report against him with the police and his brother Sohrab, alleging they had beaten a Tehsil peon who had come to realize land revenue. Khan bad also appeared as prosecution witness against him. They were convicted and sentenced to pay a fine of Rs. 20. He admitted that ever since their relations are strained with the appellant. Moreover, this P. W. also did not actually see the appellant, hitting the deceased, and so is these circumstances we reject his statement. Furthermore, although Nazir (P. W. 7) and Khan Muhammad (P. W. 12) had witnessed the occurrence as alleged by the prosecution, yet their presence as eye-witnesses was not mentioned by Karam Ali (P. W. 6) in his report (Exh. P. A.), and so on this ground too their statements cannot be relied upon. Lastly, they are alleged to have witnessed the occurrence, and yet for about 5/6 days they did not tell anyone in the village that the deceased had been killed by Nasar Ali appellant.

7. The recovery of human blood on the baan (Exh. P. 1) and Phahora (Exh. P. 2) is only corroborative piece of evidence, and since there is no ocular evidence to show as to who had murdered the deceased, the presence of human blood on these two article would not link the appellant with the offence. Again, the recovery of these articles at the instance of the appellant is not free from doubt. According to Karam Ali P. W., the S. 1. had arrived on the spot at about noon time who sent a constable to fetch Nasar Ali appellant and Samanda acquitted accused, and they accompanied the said constable and appeared before the Sub-Inspector for the first time. It is, therefore, obvious that it was on the 28th of September 1964, that the accused had appeared before the Sub-Inspector on the spot, and the fact that they were brought before the S. I. by Muhammad Khan (P. W. 11), son of Khizar on the 1st of October 1964 does not seem to be convincing. It is also interesting to note that so far the dead body of the deceased has not been traced and it has not been proved that she has been killed. Karam Ali P. W. admitted that Mst. Alo bad disappeared once or twice before her final disappearance, bat returned some time after a year and six months. Nazir (P. W. 7) also admitted that before the occurrence, Mst. Alo had disappeared twice and had returned once after a year and again after six months. Moreover, the recovery of the bones Exhs. P. 3 to P. 6 from the bed of .he Canal does not link the appellant with the commission of the offence. The bones were sent to the Medical Superintendent, whose report (Exh. D. B.) shows that he was unable to state as to whether they were of human or animal origin and also as to whether they belonged to a male or female, and so the recovery of the bones does not show that the bones recovered were of human origin. The statements of Khan Muhammad (P. W. 8), son of Wall Muhammad and Abdul Majid (P. W. 1O), saying that while returning from Hinduana Bungalow at about midnight they, had seen the appellant along with the acquitted accused carrying a bundle on a mare do not inspire confidence, and in our opinion, they happen to be chance witnesses. These two witnesses had gone to Hinduana Bungalow to meet the Zaildar, although he had not summoned them, but they had gone there with a view to make an application to him, but did not make the application. It is surprising that the two P. Ws. went to Hinduana Bungalow to make an application to the Zaildar after covering a distance of seven kos, but failed to make an application. Furthermore, Khan Muhammad (P. W. 8) has enmity with the appellant. He admit ted that his cousin Agra was murdered by the nephew of Majid. Another nephew of his also named Agra, was murdered by one Mokhi and Bhai Khan who were also his nephews. Khan, an uncle of Nasar appellant had appeared as a witness against his nephews Bhai Khan and Mokhi, and ever since the relations between them were strained. Furthermore, this P. W. had allegedly seen the appellant and the acquitted accused riding the mare, but was unable to see as to who was sitting on the front and who was sitting on the back, and so his statement does not show that he had seen the appellant along with the acquitted accused with a bundle riding a mare. Abdul Majid P. W. was declared hostile and his statement recorded by the Enquiry Magistrate was transferred to the Sessions file under section 288, Cr. P. C. ' Although this witness bad seen the appellant and the acquitted accused on a horse back, yet he elected to keep his lips sealed without informing any body as to what had happened till he was examined by the Police, and so in these circumstances we hold that the appellant was not seen by these two witnesses along with the acquitted accused riding a mare, carrying a bundle on their way to Jhang Branch Canal.

8. The prosecution also relied upon the extra-judicial confession, allegedly made by the appellant before Muhammad Khan (P. W. 11). This P. W. stated that on the 1st of October 1964 in the morning Nasar Ali appellant, accompanied by Samanda acquitted accused came and told him that they had murdered Mst. Alo and requested him to produce them before the Police. They further informed him that after cutting the dead body into pieces they had thrown it in a canal. Nasar Ali was the first to give him the above-mentioned information. He accordingly produced them before the Police. He admitted in cross-examination that the Police had arrived in the village a few days before he produced the accused and had asked him as well as the respectables of the locality to produce the accused. He admitted in cross-examination that it was correct that when he first asked the accused as to whether they had murdered Mst. Alo, they denied it. Then he told them that he would help them and on this they confessed. Both the accused had gone together to him and had stated simultaneously that they had murdered the deceased and had thrown her dead body in the canal after cutting it into pieces. This extra judicial confession made by the appellant and the acquitted accused was rightly rejected by the learned Sessions Judge. The record shows that the witness was directed by the Police to set out in search of the accused persons and produce them before him. The appellant and the, acquitted accused When they appeared before him, had declined to make a confession and the alleged extra judicial confession was made only after the witness had held out a promise that he would help them. Furthermore, the appellant and the acquitted accused had simultaneously stated that they had killed the deceased and had thrown her dead body in the canal. It, therefore, follows that this witness deposes only about the simultaneous statements made by the two accused. The oral confession of an accused person can be proved only by reproducing the exact words used by him-, but it was not done so in the instant case, and so the learned Sessions Judge was right in rejecting the confession.

9. The prosecution has failed to prove its case against the appellant, and so as a result of the foregoing discussion, we accept this appeal, set aside the conviction and sentences of the appellant and acquit him. The fine, if paid, is to be refunded to him.

Appeal accepted.

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