1. SAJJAD AHMAD, J.--Dr. Muhammad Bashir, the appellant herein, was tried, along with his brother, Muhammad Munir, and a relation, Muhammad Saeed, on charges of entering into a criminal conspiracy, robbing and murdering one, Fazal Muhammad, and causing the evidence of the murder to disappear in furtherance of their common intention (sections 120-B, 395/34, 302/34 and 201/34, P. P. C.). The trial Judge (Additional Sessions Judge, Lyallpur) found the prosecution evidence to be insufficient to sustain the charges other than that of murder against the appellant alone, who was held guilty and sentenced to death, and to pay a fine of Rs, 10,000, or, in default of payment, to suffer two years' rigorous imprisonment. The appellant's appeal in the High Court has failed, and his sentence of death has been confirmed.
2. There is no ocular evidence in the case. The appellant's conviction has been based primarily on the accomplice testimony of P. W. Ata Muhammad, who was granted pardon and turned an approver.
3. His testimony was sought to be supported by some items of corroborative evidence, which will be examined hereafter.
4. The relevant facts of this episode, as alleged by the prosecution, are as follows:-- The deceased was a partner of the aforesaid Ata Muhammad in a commission agency business.
5. Ata Muhammad had picked up intimate relations with the appellant. He took Fazal Muhammad to the house of the appellant at 3-30 p.m. on the 21st of August 1964, in latter's car No, NF-7838 in response to the appellant's message that they should come to meet the S. D. 0., Telephones to pursue their application for a telephone in their business premises. Later, Ata Muhammad returned to the shop in the same car and took away a sum of Rs, 15,000 from inside the safe, of which the keys were kept by the deceased. The deceased did not return that night and on the following day, when his brother, Khushi Muhammad, asked Ata Muhammad about him, he was told that he would be in the appellant's house. Neither the deceased nor Ata Muhammad came back to the shop again. Khushi Muhammad contacted the appellant and inquired about his brother. The appellant denied that the deceased had visited his house. Later on, on information imparted by P. W. Sardar Muhammad to Khushi Muhammad that he had seen the deceased with the approver in the house of the appellant, Khushi Muhammad felt apprehensive that the deceased had been the victim of a foul-play. He went to the Police Station, Gulberg. (Lyallpur), and lodged a report at 6-15 a.m. on the 23rd of August 1964, wherein, besides mentioning the facts given above, he expressed his firm belief that the deceased had been done to death by Ata Muhammad and the appellant, in order to misappropriate the sum of Rs, 15,000. On this report, the Police arrested the appellant on the 23rd of August 1964. On the 24th of August 1964, while in Police custody, the appellant is said to have led the Police party on the Sargodha Road past Chiniot and beyond the two bridges of river Chenab, where he pointed to a cliff near the right bank, in the area of Rabwa. Some 50 feet. below that cliff, the dead body of Fazal Muhammad was recovered lying on the rock about 8 feet above the water level. The body was brought to the left bank of the river in a boat with the help of Ali Muhammad and Nawab Din, boatmen.
6. The post-mortem examination of the dead body of Fazal Muhammad was conducted by Dr. Abdul Wahid Khan on the 25th of August 1964, at 4-50 p.m. It was in an advanced stage of decomposition. The various viscerae were taken out from the dead body and sealed into three different bottles for despatch to the Chemical Examiner, West Pakistan, for the detection of morphia or any other poisonous drug. The Chemical Examiner detected opium as well as morphia in all the three bottles. Dr. Abdul Wahid Khan, stated at the trial that the morphia injection is a form of liquid alkaloid of opium, the extracts of which are available in various liquid forms and can be administered to a person by mixing the same in tea, milk etc. After opium or morphia is detected in the viscerae, no one can say whether it was administered by an injection, muscular or intervenus, or was given by mouth. However, opium, in its original form, cannot be given by injection. To a Court question, the doctor stated that under the circumstances of the present case, the death of Fazal Muhammad was caused by the administration of morphia as well as opium to him. This opinion was based on the Chemical Examiner's report, according to which the viscerae taken out from the dead body contained morphia as well as opium. The stomach of the deceased was empty at the time of the post-mortem examination and no tea or any other liquid was seen therein.. There was no sign on the dead body to show that it had been folded up and tied into a bundle. The doctor also stated that opium could not have been injected in the body except in the: form of its alkaloids.
7. As already stated above, the mainstay of the prosecution case is the testimony of the approver, Ata Muhammad. The items of corroborative evidence in support thereof are, firstly, that the deceased was seen leaving his shop with the approver for the bungalow of the appellant in the latter's car, on the afternoon of the fateful day, i.e 21st August 1964. The evidence for this was supplied by a set of four witnesses, namely, Khushi Muhammad, P. W. 9, Muhammad Tufail, P. W. 10, Ghulam Muhammad P. W. 11 and All Ahmad, P. W.
12. The second piece of corroborative evidence is the return of the approver in the same car to take away the sum of Rs, 15,000 from the safe of the partnership firm, which, again, is supported by the same set of witnesses. The third is that P. W.
8. Sardar Muhammad had last seen the deceased with the appellant at the latter's house where, according to Das, P. W. 18, who was a domestic servant of the appellant, a syringe was prepared at the instance of the appellant for giving injections to the persons present there. Fourthly, there was the evidence of the recovery of some currency notes from the appellant, his co-accused Munir as well as from the approver, which were allegedly the same that had been removed from the safe of the deceased by Ata Muhammad. Finally, there is the evidence of the recovery of the dead body at the instance of the appellant, of which Fateh Muhammad, P. W. 17, Wali Muhammad, P. W. 27, Head Constable Abdul Hafeez. P. W. 20 and Ejaz Ahmad, P. W. 21, were the witnesses. Before considering whether the Courts below were right in holding the appellant guilty of the murder of Fazal Muhammad on the evidence mentioned above, it is necessary to deal with a preliminary argument, which was unsuccessfully put forward by Mr. M. Salim, the learned counsel for the appellant in the High Court, and which has been repeated before us. The argument is that after the acquittal of the accused, as well as of his co accused, on charges of criminal conspiracy, robbery and the causing of the disappearance of the evidence of murder, by rejecting the evidence, which was led in proof of those charges, it was not legally correct to act on the same evidence, even by way of corroboration, in proof of the charge of murder against the appellant. In other words, the argument is that the evidence, which had been disbelieved against the accused and his co- accused in respect of the other charges, was not admissible in respect of the murder charge against the appellant. Reliance was placed principally on the observations of the Judicial Committee of the House of Lords in the case of Sambasivam v. Public Prosecutor, Federation of Malaya , which were followed in the case of Pritam Singh v. The State of Punjab , decided by the Indian Supreme Court. In the first-mentioned case, which was before their Lordships of the Judicial Committee in an appeal from a judgment of the Supreme Court of the Federation of Malaya, the appellant, Sambasivam, was tried on charges of carrying fire-arms, and being found in possession of ammunition in violation of the emergency regulation of 1948. He was acquitted of the second charge, but a fresh trial was ordered as regards the first, owing to a difference of opinion between the assessors and the Judge on that charge. In the fresh trial which was held by the Sessions Judge, with the aid of a fresh set of assessors, the appellant was found guilty and sentenced to death. The assessors, at the second trial, were not informed that the appellant was found not guilty in the first trial, on the charge of being in possession of the ammunition. How much this information would have affected their judgment was a matter of conjecture. Their Lordships of the Judicial Committee set aside the conviction and sentence of the appellant. Dealing with the effect on the case of the acquittal of the appellant (Sambasivam) of the second charge in the first trial, they observed as follows:-- "The effect of a verdict of acquittal pronounced by a competent Court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication. The maxim `res judicata pro veritate accipitur' is no less applicable to criminal than to civil proceedings. Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and was precluded from taking any step to challenge it at the second trial. And the appellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence. That it was not conclusive of his innocence on the fire-arm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other."
9. There was also a retracted confession in this case covering both the charges. It was disbelieved with regard to the second charge at the first trial, and their Lordships remarked that it could not have been severed satisfactorily, as on its face value, it proved him guilty of both the charges. It was really anomalous that while it was rejected on the second charge in the first trial, it should have been accepted on the first charge in the second trial.
10. In the second case from the Indian jurisdiction, referred to above, the accused Pritam Singh was1 2 tried for murder, which took place at a place near Amritsar on the 2nd of June 1953. He was arrested at Faridkot on the 9th of June 1953 and led to the recovery of two revolvers, for which a separate case under the Arms Act was started against him in Faridkot. He was ultimately acquitted of the Arms Act case on appeal by the Additional Sessions Judge, Faridkot. The Additional Sessions Judge, Amritsar, who held his trial in the murder case, did not place reliance on Pritam Singh's acquittal in the Arms Act case, and held that the recovery of the revolvers from him was acceptable as a corroborative piece of evidence in proof of the murder charge irrespective o of his acquittal in the Arms Act case. The High Court, on appeal, relying on Sambasivam's case held that as the evidence in the Arms Act case against Pritam Singh had been disbelieved by the Courts in that case, it could not be taken into consideration against him on the murder charge.
11. However, his conviction for murder was upheld on the other evidence available on the record. On the matter coming up Pritam the Supreme Court, it was held that the acquittal of Pritam Singh of the charge under the Arms Act amounted to a finding that the prosecution had failed to establish the possession Saiiad of the revolvers by him, and that a divergent view on that point Ahmad, I could not have been taken on the same evidence in the murder trial.
12. In an earlier case, reported as Malak Khan v. Emperor , the Privy Council, dealing with the same question, had observed as follows:-- "Where in a trial for murder and robbery, the accused is convicted of murder but acquitted of robbery, and an appeal is preferred from the conviction for murder, the High Court is entitled to accept the evidence, which has been disbelieved by the trial Court on the charge of robbery as corroborative evidence of murder. An acquittal from an offence of theft no doubt entitles the accused to plead autrefois acquit, if again charged with the same offence, but it would not prevent a civil action being brought against him for the return of the things stolen or for their value upon the same evidence. Such evidence cannot be objected to as evidence in another case, criminal or civil, though no doubt its weight would be diminished."
13. In the case of Connelly v. D. P. P. , the Judicial Committee examined the dictum in Sambasivam's case, and confined it to its limited effect. In the concluding portion of his judgment, Lord Morris expressed his views as follows: "It was submitted on behalf of the appellant that it was not open to the prosecution at the second trial to adduce evidence in support of the robbery charge, which had been first adduced at the first trial in support of the charge of murder. The weight of long accepted authority tells against the submission. Quite apart from this, it does not seem to me that either principles of fairness or the requirement of justice compel its acceptance."
14. The cases decided by the Judicial Committee and noted above had proceeded on the common law principle of `autrefois acquit or autrefois convict, which protects an accused person from `double jeopardy', so that he is not put to the peril of being tried again for an offence for which he has been acquitted by a Court of competent jurisdiction on the merits of the prosecution case.
15. Similarly, where a person has already been tried and convicted for an offence by a competent Court, he cannot be tried and convicted for the same offence over again. In our country, this principle is embodied in section 403 of the Criminal Procedure Code. To my mind, it is irrelevant to the facts of the present case. The objection here is not to a fresh trial on the same charge on which the appellant was acquitted, but relates to the admissibility of certain pieces of evidence in proof of the charge of murder against him, which have been found to be insufficient for his conviction on the other charges of criminal conspiracy, robbery and causing the disappearance of the evidence of murder, resulting in his acquittal of those charges in the same trial. On the point of admissibility of these pieces of evidence on the murder charge, it may be stated that the learned trial Judge had not positively disbelieved them on those charges, but merely found them to be insufficient and inconclusive for convicting him and his co-accused on those charges. The observations of the trial3 4 Judge, as contained in para. 14 of his judgment, on this aspect of the case are to the following effect:-- "There is no other evidence except that of the approver about the criminal conspiracy between the three accused. So the charge under section 120-B must fail against all the accused. As regards the participation of Munir and Saeed accused in the offence of murder of Fazal Muhammad, I do not find any conclusive evidence in this case, as none but Ata Muhammad approver, had implicated them in the case. Sardar Muhammad, P. W., had also named them as persons in the doctor's house at the time of his visit for medicine, but their mere presence in the house, under these circumstances, was not sufficient to prove that they had shared the common intention of their brother, Dr. Muhammad Bashir, and Ata Muhammad, approver, in this crime."
16. A piece of evidence, which is weak enough by its own force to sustain a particular charge, may yet provide a link in the chain of evidence that may be available on the other charge or charges. So long as the link holds the chain, its weakness notwithstanding, it cannot be totally discarded as useless evidence. What support it can impart to the whole chain will, of course, depend on its own inherent strength. I, therefore, consider that the learned trial Judge and the learned Judges in the High Court have rightly repelled the appellant's contention that the evidence, which was found to be insufficient against him in respect of the charges of robbery, criminal conspiracy and concealment of the evidence of murder, could not, for that reason, be used in support of the murder charge against him. But the question, which really matters is what is the other evidence on that charge and how far the pieces of corroborative evidence, described above, can, on a correct analysis, sustain the murder charge against the appellant. The only direct evidence against him on the murder charge is that of the approver, Ata Muhammad, which has, of necessity, to be examined very carefully in the light of the circumstances, in which it came to be recorded. As a rule of prudence, which has almost hardened into a rule of law, it is dangerous to act on the uncorroborated testimony of an approver, who is a self-confessed criminal, having betrayed his former associates under the temptation of saving his own skin. Suffering from this stigma and marked depravity of character, an approver's evidence cannot be viewed without natural reaction of distrust and incredulity. His evidence must first be tested on its basic probabilities or improbabilities like the evidence of any other witness, and more strictly so in his case, because it is the statement of a person of suspicious credentials. His evidence needs corroboration for the simple reason that it cannot be accepted without mental reservation and distrust, and it must, therefore, gather support from other sources to induce faith in its veracity. The corroboration, which is, thus, needed, must confirm in material particulars not only that the crime has been committed, as alleged by the approver, but also that the accused concerned has, or have, committed it. The type of corroboration needed must differ with different cases, but such corroboration, although not required to be adequate and sufficient by itself to prove the charge, must tend to show a strong, link between the crime and its perpetrators, as alleged by the approver. It often happens that an approver, who has polluted his own hands in the crime, is ready with an imaginative or tutored story to explain the crime owned by him, and substitutes an innocent person to shield the really guilty for his own ulterior interest. Basically, therefore, the intrinsic worth of the approver's testimony must first be judged. Before the Court reaches the stage of considering the question of corroboration, the first and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver, then there is an end of the matter. An approver's evidence has to satisfy a double test. His evidence must first show that he is a reliable witness. If this test is satisfied, then the second test has to be applied, namely. as to whether it has received sufficient corroboration. The latter is a special test, which has to be applied in the case of tainted evidence like that of an approver. In the present case, after reading and re-reading the approver's testimony, my own reaction is that it would be dangerous to place any reliance on it for the conviction of the appellant on the capital charge. To begin with, the motive, as alleged by him for the complicity of the appellant in this crime, is fantastic. According to his story, he had developed intimate relations with the appellant, and they were companions in drinking bouts. The appellant had borrowed Rs, 13,000 from him some time before the occurrence, which he had duly paid back. On this occasion, the appellant had demanded money from him for the purchase of some land, but he expressed his inability to produce it, as the keys of the safe, where the partnership money was lying, were with Fazal Muhammad, deceased. The appellant suggested that the deceased should be brought to his house on the pretext that the S. D. 0., Telephones, would be there to help in the installation of the telephone for the business premises for which an application had been made by them. In the house, a morphine injection would be administered to Fazal Muhammad to pass off as an anti-malaria injection as an immunity against the prevalent malaria epidemic in the city. It was planned that after the death of Fazal Muhammad thus caused by the morphine injection, Ata Muhammad could safely take away the keys and bring the money from the safe. The appellant promised to transfer a square of land in Kamalia town to Ata Muhammad as his reward for this diabolical crime. The approver readily agreed to execute the job without even bothering to know as to when and how the promised square of land would be transferred to him. The fabric of his story, as far as this part is concerned,. is immediately snapped when he states in the next breath that after the crime was perpetrated, and a sum of Rs, 15,000 had been brought from the safe, the appellant immediately parted with a sum of Rs, 5,000 and gave it to him, which was subsequently produced by him before the police. The incredulity of the story is heightened when it is considered in retrospect that the whole conspiracy was hatched within a few moments, and Ata Muhammad at once agreed to join hands to put his partner to death on the promise of a certain gain without ensuring that it would ever be fulfilled. Why did he resort to this conspiracy in killing his partner for getting Rs, 15,000 out of the safe is not understandable. He was a major partner in the business, having invested more capital in the partnership than the other partner. He was also maintaining the accounts, and I do not see why he could not have had access to the partnership money. As already stated, on a previous occasion, he was able to advance Rs, 13,000 to the appellant himself, on his own admission, which was refunded to him, and he has not said why he could not advance the money on this occasion, particularly as it was available. There was no reason why Fazal Muhammad should have carried the keys of the safe on his person all the time day and night, and it was a hypothetical anticipation on the part of the appellant and the approver to think that Fazal Muhammad, when coming to the house of the appellant to fall into their trap, would bring the keys of the safe with him.
17. The time chosen for the execution of the conspiracy again induces a feeling of distrust. While the conspiracy was finalised in a few minutes, its execution came about the same afternoon. The approver brought the money from the shop where the witnesses were present, and the death of Fazal Muhammad was caused by a morphine injection in the house of the appellant at a time when there was every chance of the visitors coming there. One feature of the story given by the approver is that the appellant's own car was utilised for bringing the deceased to the house of the appellant and then in taking back Ata Muhammad to the shop to bring the money, but when it came to the carrying away of the dead body for its disposal, a taxi belonging to one, Ghulam Nabi, was summoned. The dead body was wrapped in a carpet and a khes and made into a rolled bedding, and put into the taxi driven by Ghulam Nabi, driver, accompanied by Boote Shah, cleaner.
18. The appellant and Kisco-accused went in it but the approver himself remained in the house of the appellant and slept there. He awaited the return of the appellant and the co-accused till the next morning, took his breakfast with them and then left for the shop at about 9 or 10 a.m. where he met Khushi Muhammad, P. W., who asked him about the deceased, and he replied that he would be in the house of the appellant. Thereafter, Ata Muhammad slipped away and loitered about in the town for two days and returned to his house on the night between the 24th and 25th of August 1964, and placed Rs, 5,000, which he had taken from the appellant, in the folds of a quilt. However, he found the burden of his crime unbearable, and the very next day he took into confidence one, Amir Shah, and informed him about what had happened. Amir Shah took him to the Police. He was arrested, but he did not produce the money that he had taken from the appellant till the 28th of August 1964, and it was not until the 12th of September 1964, that he offered to accept pardon and make a statement, which was recorded by a Magistrate on the 12th of September 1964.
19. This story does not induce confidence on account of its improbability and unnaturalness. It is not easy to believe that after having been a privy to this dastardly crime while his co-accused took away the dead body of his partner, he himself went to sleep with easy mind in the house of the appellant with Rs, 5,000 in his pocket as his gain out of this bargain. He loitered about in the town for the next two days and then found the burden of his guilt too heavy to bear, which he decided to unload. To my mind, the whole story is unnatural, and the quarters from which support has been sought for its corroboration do not advance its value or utility in any manner so far as the complicity of the appellant in the murder of Fazal Muhammad is concerned. The first item of corroborative evidence, as already stated above, is the evidence of witnesses, who had seen the deceased and the approver going together in Car No NF 7838 belonging to the appellant. The driver of the car, Abdur Rashid, has not been produced, nor was the car produced at the trial.
20. According to the prosecution case, it was found to be in disrepair during the investigation and was in a workshop of one, Mistry Hassan Din. It is a strange coincidence that the same witnesses were present when the approver returned to the shop in the same car unaccompanied by the deceased, and took away the money from the safe. The next piece of evidence is that the deceased was la t seen in the house of the appellant by P. W. 14, Sardar Muhammad, along with his co-accused and the approver. Sardar Muhammad, P. W., stated that he had gone to the house of the appellant owing to a stomach-ache. There he had met the appellant, the deceased, the approver and others. It is curious that he was readily admitted into the doctor's presence and that of his victim just when the appellant, along with his co-accused, was in the process of going through a gruesome conspiracy. His reason for imparting this information to Khushi Muhammad leaves the impression that he is a padding witness. According to him, he had casually passed Khushi Muhammad on a scooter, and seeing him worried got down to know the reason, when Khushi Muhammad told him that his brother was missing, and the witness gave him the information that he had seen his brother in the house of the appellant.
21. According to the medical evidence based on the report of the Chemical Examiner, morphine and opium were found in the viscerae of the deceased. This shows that the deceased had died only because of the administration of morphine but that opium, was additionally administered to him or taken by him.
22. According to the approver, only a morphine injection was given to the deceased, and there is no explanation for the presence of opium in the viscerae of the deceased. This fact leaves a significant vacuum in the prosecution case resulting in a conjecture that after the morphine injection, opium, which could not be injected, was also somehow orally given to the deceased, which brought about his death. Who gave him this opium and how did it enter his body remains an unexplained mystery, and the approver's statement., despite its lengthy detail, falls short of that explanation. The learned Judges of the Division Bench of High Court have noted this hurdle in the prosecution case, and have commented:-- Be that as it may, we do not consider the detection of opium in addition to morphine in the viscerae of the deceased as an insurmountable hurdle, and in all probability the appellant had administered opium to him in some form in the absence of the approver when he had gone to the shop to fetch the money."
23. With all respect, it was not right to cross this hurdle on a mere surmise, and pronounce the appellant's guilt. The approver, in all likelihood, would not have left the place to fetch the money without being sure that the victim of the conspiracy was no more alive to call him to account.
24. Another item of evidence from which support was sought by the prosecution, is the testimony of P.
25. W. Das, a domestic servant of the appellant. His evidence is that he had prepared tea for the doctor and 5/6 other persons on one occasion two and three quarters of a year before he was making his statement at the trial. He was unable to say who those persons were. He also said that he had boiled a syringe on that occasion, but this leads nowhere, as the boiling of a syringe must ordinarily have been his routine duty almost every day, being a servant in a doctor's clinic. His evidence, to my mind, is absolutely useless.
26. The evidence of the recovery of the money from the appellant, his co-accused and the approver has been disbelieved by the trial Judge as well as by the High Court. According to the appellant, his father was forced to produce Rs, 3,000 by the Police in an effort to prove that this was a part of the booty, which the doctor had obtained in this crime. This evidence was rightly rejected by the Courts below, and it need not detain us.
27. I would only add that this endeavor on the part of the prosecution to trace a part of the money, allegedly involved in the crime, to the appellant shows the extent to which the prosecution had gone in bolstering up its case against the appellant.
28. Finally, there is the recovery of the dead body at the instance of the appellant, on which a lot of store was set by the prosecution, and which, as stated in the judgment of the High Court, constituted the most important piece of evidence available to the prosecution against the appellant. The recovery of the dead body may be considered along with its transportation by the appellant, as alleged by the prosecution. Ghulam Nabi, who was the driver of the taxi car, in which the dead body was allegedly transported, did not support the prosecution case, and was declared hostile. Boote Shah, 'the cleaner of the taxi, who was the other witness about this transportation according to his statement before the committing Court, did not know any of the persons who had travelled in the car. He was not put on an identification parade to test his recognition of the appellant, as claimed by him at the trial. The luggage, which was carried in the taxi, was allegedly the dead body of the deceased, having been rolled into a bedding. According to the medical evidence there was no sign on the dead body of its having been rolled.
29. About the actual recovery of the dead body, the prosecution has relied mainly on P. W. Fateh Muhammad, whose statement is that the appellant offered to take the Police to the place where the dead body had been thrown. When he and the Police party went to a place near a cliff beyond Chenab bridge, Wali Muhammad and Amin Shah went down and called out that the dead body had been recovered. Amin Shah was not examined as a witness, as he had died. Wali Muhammad, P. W., had also died after he made a statement before the committing Court, which was transferred at the trial under section 33 of the Evidence Act. In that statement, he had supported his attestation of the recovery memo. of the dead body. His state-ment has not convinced me to bear with the prosecution case that the dead body was recovered at the instance of the appellant. The two boatmen, namely, Nawab Din and Ali Muhammad, who were commissioned by the Police to search for the dead body, were given up by the prosecution, as they were said to have been won. Over one of them, Ali Muhammad, appeared as a P. W., and stated that while he saw Ata Muhammad with the Police party at the time, the appellant was not seen by him there. From the evidence and circumstances regarding the alleged recovery of the dead body at the instance of the appellant, I am unable to shed my impression that the clue to the dead body had already been obtained by the Police, and its recovery at the instance of the appellant was just a managed stage show. Its clue may well have been given by the approver himself, and it was for this reason that the approver, in his statement, deliberately asserted that he had remained behind in the appellant's house to sleep there, when the dead body was taken away for disposal by his accomplices.
30. Giving an anxious consideration to the whole case, I am unable to hold that the guilt of the appellant has been proved beyond a reasonable doubt. The evidence of the approver is wholly unworthy of credit, not only because of its legal infirmity as the accomplice's testimony, but also because of its inherent improbabilities. The corroborative pieces of evidence, which Have been used in support of it, as described above, individually or collectively, do not at all, to my mind, serve to advance the approver's testimony and to strengthen the prosecution case in any manner. In the circumstances, I feel constrained to give the benefit of doubt to the appellant, and accept his appeal. I, therefore, set aside his conviction and sentence, and direct that he be released forthwith, if not wanted in any other case.
31. HAMOODUR RAHMAN, C. J.--I agree. M. R. KHAN, J.--I agree.
32. WAHEEDUDDIN AHMAD, J.--I agree. 1950 A C 458 L R (H L) PLD 1957 S (Ind.) 1 AIR 1946 P C 16 1964 All E L R 401