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Criminal Appeal No. 187 of 1981, decided on 8th February, 1983.

‑‑‑Ss. 148, 302, 323 & 404/149‑‑Extra‑judicial confession‑ ‑Deceased asleep near heap of paddy in open field‑‑Occurrence during night No eye‑witness‑‑Motive not certain or established‑‑Accused not named it F.I.R. nor any suspicion shown on them‑‑Extra‑ judicial confession allegedly made after ten days of occurrence to witnesses closely related and connected to deceased‑‑Recoveries of Dandas and bags of paddy not connecting accused with crime‑‑ Extra‑judicial confession retracted at trial‑‑Evidence of extra‑judicial confession, held, would not by itself be sufficient to sustain conviction‑‑Accused acquitted in circumstances.

Mian Nazir Akhtar for Appellants.

S.M. Zubair, Asstt. A.‑G. for the State.

Date of hearing: 8th February, 1983.

Muhammad Yaqub son of Muhammad Shafi, aged 19, armed with Danda, Abdul Majid son of Ilam Din, aged 22, armed with Danda, Ehsan Ullah son of Sardar Muhammad, aged 23, empty handed, Muhammad Irshad son of Miran Bakhsh, aged 21, armed with Danda and Liaqat Ali son of Sardar Muhammad, aged 20, empty handed, have been convicted and sentenced as follows vide judgment of the Additional Sessions Judge, Gujranwala, dated 17‑3‑1981: Abdul Majid was convicted under section 302, P.P.C. for the murder of Ibrahim, aged 65, and was sentenced to life imprisonment plus fine of Rs.4,000 or in default to undergo two years' rigorous imprisonment. He is also convicted under section 404/149, P.P.C. for stealing the paddy of the deceased and was sentenced to three years rigorous imprisonment plus fine of Rs.1,000 or in default to undergo six months' rigorous imprisonment. Muhammad Yaqub, Ehsan Ullah, Muhammad Irshad and Liaqat Ali were convicted under section 404/149, P.P.C. for stealing the paddy of the deceased and were sentenced to three years' rigorous imprisonment each plus fine of Rs.1,000 or in default to undergo six months' rigorous imprisonment each. Muhammad Yaqub and Muhammad Irshad were further convicted under section 323, P.P.C. for causing simple injuries to the deceased and each of them was sentenced to one year's rigorous imprisonment plus fine of Rs.1,000 or in default to undergo three months' rigorous imprisonment. All of them were Convicted under section 148, P.P.C. and each of them was sentenced to one year's rigorous imprisonment plus fine of Rs.1,000 or in default to undergo six months' rigorous imprisonment. The sentences of imprisonment awarded to the convicts were to run consecutively. Out of the fine, if realized, 1/3rd was to be paid as compensation to the heirs of the deceased.

Abdul Majid appellant is maternal‑uncle of Muhammad Yaqub appellant but the other three convicts are not related to them and do not even belong to their caste. The appeal of the convicts is being disposed of by this judgment.

2. The occurrence took place on the night between 14/15th November, 1976, in an open field within the area of village Opal Jageer at a distance of eight miles from Police Station Saddar, Gujranwala. Statement (Exh.P.G.) was made by Muhammad Siddiq (since deceased), nephew of the deceased, at 9 a.m. on 15‑11‑1976, while on his way to the police station, before Muhammad Yusuf A.S.I. (P.W.10) who was on patrol duty and happened to meet the complainant near Rajbah Talwandi Musa Khan and he got his statement recorded. On the basis of the aforesaid statement formal F.I.R. (Exh. P.G./1) was registered at the police station at 11 a.m. on the same day by Muhammad Salim A.S.I. (P.W.6). It may be pointed out at this stage that the names of the appellants do not figure in the F.I.R.

3. The motive for crime is not stated in the F.I.R., but as advanced in the course of trial, was that the appellants intended to steal the paddy lying in a heap where the deceased was asleep in the open field to guard the same.

4. There is no eye‑witness of the occurrence.

5. In the F.I.R. it is stated by Muhammad Siddiq, nephew of the deceased, that in the morning when he went to the spot and he found that the deceased was still asleep, he got suspicious and on an attempt to wake him up, found out that the deceased was lying dead on his cot covered with a quilt. Consequently he reported the matter to the police stating that at night time someone had murdered the deceased by strangulating him.

6. As it has already been pointed out, there is no eye‑witness of the occurrence. However, the case of the prosecution is based firstly on the evidence of extra‑judicial confessions stated to have been made by each of the appellants separately on 25‑11‑1976 i.e. ten days after the occurrence, in the presence of separate witnesses. Secondly, on the arrest of the appellants certain recoveries were stated to have been made at their instance. The appellants were arrested by Mirza Izzat Beg S.I. (P.W.12) on 25‑11‑1976 i.e. on the same day when they are stated to have made extra -judicial confessions. Ehsan Ullah appellant made extra‑judicial confession before Ghulam Rasul (P.W.3), first cousin of Muhammad Siddiq complainant who was nephew of the deceased; Abdul Majid appellant made extra‑judicial confession before Ali Muhammad (P.W.4), father‑in‑law of Ghulam Rasul P.W, mentioned above; Liaqat Ali appellant made extra‑judicial confession before Muhammad Bashir (P.W.5), younger brother of Muhammad Siddiq complainant; Muhammad Irshad appellant made extra‑ judicial confession before Muhammad Ramzan son of Diwan (P.W.7), whose sister was married to Muhammad Siddiq complainant, and Muhammad Yaqub appellant made extra‑judicial confession before Muhammad Ramzan son of Ali Muhammad (P.W.8) who is Sala of the brother of Ghulam Rasul P.W. Thus, it is evident that extra -judicial confessions are stated to have been made by all the appellant separately before separate witnesses who all happen to be closely related to Muhammad Siddiq complainant who was nephew of the deceased. The recoveries, in the instant case, were Dandas (Exhs. P. 5, P.6 and P.7) which were stated to have been recovered at the instance of Muhammad Irshad, Abdul Majid and Muhammad Yaqub appellants, respectively. But it may be pointed out that none of these Dandas were blood‑stained and, therefore, these articles had not been sent for chemical examination, since the Dandas in question were not found to be blood‑stained, they have no corroborative value and are of no importance even if they had been taken into possession by the police in the course of investigation Then there is recovery of three bags and one small bag of paddy at the instance of Ehsar. Ullah appellant from the shop of one Rafiq Lohar. This recovery is also of little consequence and has no corroborative value. It may further be pointed out that the attesting witnesses of the aforesaid recoveries were Ghulam Rasul (P.W.3) and Muhammad Siddiq complainant besides the police officer. Thus, the recovery witnesses from public were also not independent but those who were connected with the deceased by relationship and who cannot be considered as absolutely reliable witnesses. It may also be noted that this Rafiq Lohar from whose possession the said bags of paddy had been recovered had never been made an accused person in the instant case, nor was he produced as a witness.

7. The appellants, in their statements before the trial Court, totally denied having participated in the occurrence. Those from whom Dandas were recovered, they disowned the same. They even denied having made extra‑judicial confessions, but each of them stated that he had been falsely implicated due to suspicion. In the cross‑examination of the witnesses before whom extra‑judicial confessions were alleged to have been made, the trend was that even the complainant and other relatives of the deceased were considered as suspects, in the instant case, as the deceased was a petty land‑owner and his relatives had a chance to inherit his land as he was issueless.

8. Dr. Shah Nawaz (P.W.11) conducted the post‑mortem examination on the dead body of the deceased on 16‑11‑1976 and found on his person a swelling on the left side of head, abrasion over the left ear, abrasion over the top of right shoulder, ecchymosis of left upper lid and lacerated wound on the lower part of left leg. On internal examination he found that the skull bone had been fractured. In his opinion all the injuries found on the person of the deceased had been caused with blunt weapon and they were ante‑mortem. Death was due to shock and haemorrhage as a result of the first injury which had been the result of blow on the head. The duration between the injuries and death was sudden and the time between death and post‑mortem examination was from 24 to 36 hours. The head injury on the person of the deceased was fatal, whereas the other injuries were simple in nature. The second injury could be the result of the blow which resulted in the first injury and the 4th injury was also the result of the first injury. There was no external bleeding from the first injury.

9. I have heard learned counsel for the parties and carefully perused the record. Evidently the occurrence took place on the night between 14/15th November, 1976. The deceased is stated to have owned a small piece of land and he was asleep in the open field in order to guard the paddy which was lying in the form of a heap near the place where he was asleep. It is an unwitnessed occurrence because no one knows who came at night and gave a blow to him on the head or caused other injuries to him which led to his death as the occurrence was an unwitnessed one. Even the motive is not certain and established. The time of death could not be ascertained because it was only in the morning when Muhammad Siddiq complainant, nephew of the deceased, went to the spot and found him lying dead on the cot under his quilt. Muhammad Siddiq complainant had stated in the F.I.R. that his uncle i.e. the deceased, owned some land and he was issueless. He and sons of his other uncle could inherit him if he had died. But in his statement made before the police, he did not give the names of any culprits who might have committed the crime. He did not even mention that the motive could have possibly been the stealing of paddy.

The case of the prosecution is based on the extra‑judicial confessions alleged to have been made by each of the appellants before one witness or the other. It seems that when the case was registered, the police held some persons as suspects in the instant case and for ten days no one had been arrested. On the tenth day after the occurrence the appellants were arrested and out of these appellants Muhammad Yaqub and Abdul Majid are related in the sense that Abdul maternal‑uncle of Muhammad Yaqub appellant and they have identical caste, whereas the other three appellants are neither related inter se nor related with the aforesaid appellants, nor have they identical caste. After the lapse of ten days they are stated to have made extra‑judicial confessions before a set of five witnesses, namely, Ghulam Rasul, Ali Muhammad, Muhammad Bashir, Muhammad Ramzan son of Diwan and Muhammad Ramzan son of Ali Muhammad P.Ws. who are all related or closely connected with the deceased. The version in the extra‑judicial confessions is that they had come to steal paddy. They saw the deceased asleep on the cot under a quilt guarding the paddy. Abdul Majid appellant gave him blow on the head and the rest gave him blows with their Dandas while he was under the quilt and thus murdered him. Thereafter, they stole the paddy by putting it in the bags which were lying close by and then took it to Rafiq Lohar who was already waiting for them according to the programme. Then on the basis of these extra‑judicial confessions they were arrested and on the same day three Dandas as well as three bags and one small bag of paddy were recovered. These recoveries are alleged to have been made at the instance of four out of five appellants, namely, Muhammad Irshad. Abdul Majid, Muhammad Yaqub and Eshan Ullah. The recoveries are of no consequence as they do not connect the appellants with the commission of crime. The attesting witnesses of these recoveries are also closely connected persons with the deceased. If the recoveries are not taken into consideration as they are of doubtful nature, then one is left only with the extra‑judicial confessions' evidence which in itself is not sufficient to sustain convictions and sentences in the instant case. Learned Assistant Advocate‑General has attempted to argue that the witnesses before whom extra‑judicial confessions were made, had no hostility or animosity with the members of the accused party. May be that is correct but they certainly could have suspected them for having committed the crime and that may be the whole case as against the appellants was fabricated out of suspicion. Learned counsel for the appellants vehemently argued that it is an unwitnessed occurrence and that the appellants might have been involved in this case merely on suspicion and that furthermore the extra‑judicial confessions might have been fabricated and in the light of the extra‑judicial confessions the recoveries might have also been faked as against them. I am of the view that the arguments of learned counsel for the appellants have force. In the light of what has been discussed above, the case of the prosecution as against the appellants was of a doubtful nature. Their conviction in the circumstances as well as sentences awarded to them were not proper They should have been given the benefit of doubt which I hereby give to them. The result is that the convictions as well as sentences awarded to the appellants are hereby set aside and they are acquitted. Their appeal is accepted. Muhammad Yaqub, Ehsan Ullah, Muhammad Irshad and Liaqat Ali appellants are already on bail vide order of this Court, dated 17‑6‑1981. Their bail bonds shall stand discharged. Abdul Majid appellant shall be released from jail forthwith if not wanted in any other case.

S.A. /M‑116/L Appeal accepted.

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