ABDUR REHMAN Versus BARKAT ALI

1. SHAFIUR RAHMAN, J.‑‑The petitioner, a complainant in a case registered under section 302/34, P.P. C: seeks leave to appeal against the judgment of the Lahore High Court, dated the 24th March, 1981 whereby the two respondents were acquitted of the offence.

2. The dead body of Rehmat, a brother of the complainant, was found in the fields in village Sohawa, Police Station Satrah, District Sialkot. The dead body had a number of incised wounds which appeared to have been caused by hatchet. A report about it was lodged at 10‑40 a.m. In the report the suspicion was shown against Barkat and his two sons Bashir and Amin and the reason given for the suspicion was that the deceased was suspected of maintaining illicit relations with Mst. Shah Bibi, wife of Barkat, respondent.

3. Muhammad Ismail (P.W.7) produced them before the police on the 3rd of January, 1978 stating that the three of them had come to him, made a confession about having caused the death of Rehmat and had stayed at his house for the night and in the morning he had taken them to the police. It was found that similar confession had been made to Sohnde (P.W.8). Diwan Ali (P.W.9) also reported about a confession having been made by Barkat, respondent.

4. At the trial, the accused denied their participation in the crime and alleged false implication. The trial Court believed the statement of Abdul Aziz (P.W. 12), a chance witness followed by confession of Barkat and Bashir and held that the offence was proved against them but it was not known as to which of these two had caused the fatal injuries, sentenced them to life imprisonment and a fine of Rs.1,000 each or in default to suffer three months' R.I. each. Amin was given the benefit of doubt.

5. On appeal, the High Court reppraised the evidence. The recovery of the weapon attributed to Barkat and Bashir was disbelieved, the extra‑judicial confession attributed to these respondents was also found to be uninspiring and being a joint confession, according to the prosecution version itself, it had little evidentiary value. The High Court concluded that 'it is highly unsafe to base a conviction on the kind of indirect evidence produced against the appellants.' Hence it ordered their acquittal.

6. Ch. Muhammad Farooq, the learned counsel for the petitioner, has taken us through the evidence with a view to demonstrate that the witnesses are all disinterested, that the respondents had made a confession before them and they being truthful reproduced the confession and like any other case depending on the circumstantial evidence coupled with the recoveries of incriminating articles which were found to be blood‑stained, the evidence on record was sufficient for maintaining their conviction under section 302/34, P.P. C.

7. This being a case of unwitnessed crime, the circumstantial evidence had to be scrutinised with care in order to establish the necessary link beyond reasonable doubt. The trial Court has excluded the confession allegedly made before Muhammad Ismail (P.W.7) who happened to be a Lambardar. The confession made before others was accepted, corroboration for it was sought and obtained in the recovery of blood‑stained articles at the instance of Barkat and Bashir and not in the case of Amin.

8. The other witness before whom the confession was made is Sondhi Khan (P.W.8). He admits that the accused had never visited him before and that he was not in a position to help them and had given them no help. He had appeared before the police to make a statement to that effect after thirteen or fourteen days of the extra?judicial confession having been made.

9. Diwan Ali (P.W.9) is a neighbour of Major Mohammad Din who was stated to be prosecuting the case against the respondent relentlessly. He speaks of a chance meeting with Bashir on the bus stand. He did not make any effort to get the accused arrested or produced before the police. He also admitted that he was a poor man having small holding and the poeple did not expect any help from him and that Barkat and Bashir had never before visited him.

10. The High Court was justified in considering the evidence of such extra‑judicial confession to be uninspiring on a capital charge and if such is the finding the recovery by itself would not be of any assistance in proving the offence. The acquittal of the respondents is based on principles well‑recognised for safe administration of criminal justice. There is no merit in the petition and leave to appeal is refused.

11. M . B . A . / A‑133/ S ?????????????????????????????????????? Leave to appeal refused