Syed Yahya Zahid Gilani, J.--Sulaiman was convicted and sentenced to life imprisonment under Section 302(b) P.P.C. He has preferred this appeal for setting aside his conviction on the ground that the case against him hay not been proved according to the settled principles of administration of criminal justice.
2. He was charged for qatl-i-amd of Muslim Shah son of Rahim Khan, who was untraced since a day before and his dead body was discovered on 14.9.2005, in sugarcane crop. His father reported the incident to police, charging none. Usual investigation took place and on seventh day of the recovery of dead body, Rahim Khan father of the deceased got his statement recorded under Section 164 Cr.P.C. wherein he charged the convict appellant Sulaiman for committing Qatl-i-amd of his son Muslim Shah on account of demand of Rs, 35,000/-, allegedly loaned by the deceased to convict appellant. Challan was thus submitted and the convict appellant Sulaiman was tried in Juvenile Court of Additional Sessions Judge-II, Mardan at Takht Bhai being under the age of eighteen years at the time of occurrence.
3. The prosecution examined eleven P.Ws. coupled with the documentary evidence and then closed its case. The convict appellant was examined under Section 342 Cr.P.C. who pleaded innocence, but he neither produced defence evidence, nor did he opt to be examined in his defence on oath. After hearing arguments, Mr. Mohammad Sabir, learned Additional Sessions Judge-II, Mardan at Takht Bhai, empowered as Juvenile Court, convicted and sentenced the accused as mentioned above.
4. We have heard arguments of Mr. Muzammil Khan, Advocate, for convict appellant, Mr. Yousaf Shah, Advocate, for complainant and Mr. Ishtiaq Ibrahim, AAG, for. State. Record has been thoroughly gone through.
5. This is an admitted fact that in this case there is no eyewitness of the occurrence of qatl-i-amd.
There is no evidence of the deceased having been last seen in the company of accused. There is no judicial or extra-judicial confessional statement of the convict appellant. Father of deceased Rahim Khan was examined as P.W.9, who had arraigned the convict appellant after seven days of recovery of dead body, said that he charged the convict appellant after getting satisfied that he was the person who murdered his son. But, he failed to bring on record the source of his satisfaction.
6. The criminal cases are decided on evidence providing proof beyond doubt. The evidence is tested on different touchstones before reliance thereon for conviction. If there is some evidence to satisfy some one that some other person is guilty and that evidence is not disclosed to Court, the obvious result would be that the Court would presume it to be "non-existent'. Therefore, keeping the source of information secret, P.W.9 Rahim Khan has deprived the prosecution from proving its case against the convict appellant through that source which could be relevant and tangible evidence.
7. The trial Court has convicted the appellant on the basis of evidence of motive, recovery of crime pistol at his pointation, matching of four empties recovered from the spot of occurrence with the crime pistol recovered at his pointation and his leading the I.O. to the place of occurrence wherefrom the dead body was recovered.
8. The above-mentioned pieces of evidence are corroborative in nature and it is cardinal principle of law that in administration of criminal justice, corroborative pieces of evidence are useful only to corroborate substantive evidence. When substantive evidence itself is wanting, in a case, the only corroborative evidence would not be able to prove the guilt of convict appellant beyond shadow of doubt.
9. Classic propound and application of this theory reflects in the following passage of the judgment in the "Dhunde vs. The Crown" (ILR 16 (Lah.) 995) followed in "Yousaf vs. State", PLD 1963 (W.P) Lahore 274: "The only point remains as to whether the evidence of the recovery from Dhunde's house of a blood-stained chopper and a blood-stained chadar is enough by itself to justify the conviction of Dhunde, We do not think it is. This is circumstantial evidence the value of which is very great when used to corroborate other evidence. It can not by itself prove the case for- the Crown. It is possible to imagine many an occasion where the mere discovery of a blood-stained weapon or blood- stained clothes was due to something other than murder, for instance, concealing a dead body or receiving from the real murderer a blood-stained weapon in order to hide it and so assist the murderer. It is impossible 'to say that the discovery of a blood-stained article is enough by itself to justify a conviction for murder. This being our view we have to accept the appeal and set aside the conviction and sentence of death."
10.However, still it would be in the interest of justice to analyze aforementioned evidence on which the learned trial Court relied to convict the appellant.
11.Motive for the occurrence was disclosed after seven days of recovery of dead body. It has been stated that the deceased had loaned Rs, 35,000/- to convict appellant. Since the deceased was demanding the loaned amount, the convict appellant did him away to get rid of the demand. In cross-examination, he stated that at the time of report, he did not know about the loan nor some body had told him to this effect. Later on he was told by Akbar Khan and Masood Shah that the murder was the result of demand of loaned amount. Akbar Khan was not produced in witness box but Masood Shah was examined as P.W.10. He is the real brother of the deceased and son of complainant P.W.9. He stated in examination-in-chief that 5-6 months prior to the occurrence ' the convict appellant Sulaiman had come to their house to request loan of Rs, 35,000/- from his brother Muslim Shah with .a promise to return it within two months, but it was not returned in spite of repeated demands. In cross-examination he stated that the money was belonging to deceased, therefore, he did not ask for permission of his father to loan the amount. He categorically stated that when he entered in the house, he disclosed this fact to his father. Meaning thereby, that P.W.
Masood Shah well knew the alleged factum of loan and his father also knew it for having been told.
In this state of affair, when the brother and father of the deceased knew prior to the report of occurrence that amount of Rs, 35,000/- was loaned to convict appellant and he was not paying back the money in spite of demands, omission of this fact in the F.I.R. shroud the prosecution case related to motive with smoke of doubt.
12. The next comes the pointation of place of occurrence by the convict appellant. To this effect memo Ex.P.W. 4/2 has been prepared.
This type of evidence created by an accused before police, becomes relevant under exception contained in Article-40 of Qanun-e-Shahadat, 1984, inspite of general embargo contained in its Article-38. However, this pointation is of a place which was already known to police, and every body, as the place of occurrence. Therefore, the pointation did not lead to any unknown fresh discovery. Similarly nothing new incriminating was recovered from the place of occurrence on the pointation of convict appellant and as such the pointation did not lead to any recovery. When nothing new was discovered or recovered on pointation of an accused, showing only the place of occurrence, which was already known, amounts to a statement before the police and hence not admissible in evidence due to bar under Article-38, because the case is not falling under Article-40 (ibid). As such this piece of evidence is not admissible and not beneficial to prosecution.
13. The next and very important piece of evidence is the recovery of alleged crime weapon on pointation of convict appellant. The recovery memo Ex.P.W. 2/2 has been prepared to prove that the convict appellant led the police to a room at his home, and then up to a box wherefrom he took out 30 bore pistol Ex.P.1 along with a missed round and delivered it to police, saying that with the same pistol he had committed the qatl-i-amd of Muslim Shah deceased. We feel that this recovery is not without doubt because both the witnesses of the recovery memo are police officials. The I.O. failed to procure attendance of at least two respectable inhabitants of the locality to witness the recovery in compliance with the mandate of Section 103 Cr.P.C. and also failed to furnish plausible explanation therefor. In the peculiar facts and circumstances of the matter when the case was already short of direct evidence, this recovery creating circumstantial evidence should have been authenticated by strict compliance of Section 103 Cr.P.C. No reason has been disclosed that why two respectable inhabitants could not be associated for the purpose. P.W.2 Jumarat Khan ASI who recovered the pistol at the pointation of convict appellant admitted in the cross-examination that when they entered the house of convict appellant, the pistol was lying in a box and the box was lying inside the room on a table. The box was locked. The key was with the wife of the brother of the accused. She was called by the accused and he demanded key, which she delivered. This admission clearly indicates that the box, which was duly locked, and the things lying therein, were not in exclusive possession of the convict appellant. Rather they were in possession of some one else. It was an unlicensed pistol. There is no evidence at all to prove that this pistol was owned or in past possessed by the convict/appellant. Even if it is believed for the sake of arguments that this was the pistol of the convict appellant and the test bullets fired from it matched with the empties recovered from the spot as per FLS report Ex.PZ/1, still there is heap of doubt existing around this piece of evidence, because, although four empties were recovered from the spot on the day of recovery of dead body vide recovery memo Ex.PW 7/2, but these emptied were not actually sent to FSL for safe custody and they were lying in the police station till the recovery of pistol. There is a deceiving application Ex. PW 11/3 whereby the aforesaid four empties of 30 bore were sent to FSL on. 15.9.2005, but the FSL report Ex.PZ/1 brings the truth to surface wherein it is clearly mentioned that the four empties contained in parcel No, 2 were also received in FSL on 10.10.2005 along with .30 bore pistol. When the empties recovered from the spot were sent to FSL along with pistol and two deceitful applications Ex.PW 11/3 and Ex.PW 7/3 were exhibited to give impression that the four empties were sent to FSL on 15.9.2005 for safe custody, it leads to the inference that the I.0 and prosecution thereby tried to hoodwink the trial Court and succeeded in endeavor. In this state of affair, we cannot rule out, with certainty, the possibility of replacement of four empties recovered from the spot to procure a positive matching result from FSL. In existence of this extreme doubt, the alleged recovery of pistol at the pointation of convict/appellant and the crime empties from the spot collapse to none.
14. There is no other evidence available on record to connect the appellant with the crime and the available evidence, as discussed above, is not without taint of doubt. We, therefore, decide to extend benefit of doubt to convict/appellant to which he is entitled. Consequently his appeal is accepted, the impugned conviction and sentence is set aside and he is directed to be set at liberty forthwith if not required in any other case.