1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of a learned Single Judge of the erstwhile High Court of West Pakistan, Lahore, dismissing the appellant's revisional application and. Refusing to interfere with his conviction and sentence under section 500 of the Pakistan Penal Code. Of the four other persons who had been tried along with the appellant under the said section three were discharged by the trying Magistrate and one was acquitted on appeal by the Sessions Judge.
2. The prosecution case against the appellant is that on 21 December 1966, at night he was seen along with four persons by P. W. 3 Sideman, a Mali of Government I1igh School, Sahiwal, near the Nala bridge 200 yards from the School. On inquiry the appellant told the witness that they had gone to meet one Talib Hussain at his house. On the following morning P. W. Suleman found some defamatory writings against P. W. 1, Muhammad Iqbal, Headmaster of the said School, and P. W. 2, Sufi Ghulam Hussain, a teacher of the School, on the boundary walls, pillars of the gate and verandah of the School. P. W. Suleman reported the matter to the headmaster and the latter having seen the writings himself sent a report to the Station House Officer, Police Station, Sahiwal oil the same day, i. e., 22-12-1966, charging the appellant and four other persons for having defamed the headmaster and the said teacher. The headmaster also stated in his report that one Nawazish Ali had informed -the former that Muhammad Ramzan Jamat (P. W. 6) could shed more light and furnish direct evidence against the appellant and his companions. On receipt of the complaint the Sub. Inspector of Police sought legal advice and on receipt of it 'a case was registered against the appellant and his four com--panions on the 30th December 1966. The accused persons werest ultimately tried, and it culminated in the conviction of the appellant and another. On appeal, however, only the appellant's conviction was maintained and the other person was acquitted.
3. The appellant pleaded not guilty to the charge. He stated that on the night in question he was present at Normal School, Shahpur where he worked and was on his duty on 22-12-1966 till 3-45 p. m. His further defence was that he had been falsely implicated because his wife's brother, Allah Bakhsh, who too was a teacher in Sahiwal School, had strained relations with P. W. Soofi Ghulam Hussain.
4. Prosecution relied on the following evidence to prove its case against the appellant
(i) Evidence of motive deposed to by P. W, 1, Muhammad Iqbal, Headmaster, P. W. 2, SOORG Ghulam Hussain, and P. W. 8, Ehsanul Haq Sulemani, Inspector of Schools.
(ii) Statement of P. W. 3, Suleman, having seen the appellant along with four other persons in the vicinity of the School on the night preceding the discovery of the defamatory writings in the morning.
(iii) Extra-judicial confession of the appellant before P. W. 4 Meter Ghulam Rasul.
5. It must be mentioned here that the said Muhammad Ramzan (P. W. 6), the alleged eye-witness did not support the prosecution case and was declared hostile and the said Nawazish Ali, who was alleged to have disclosed the name of the appellant to the headmaster was not produced by the prosecution.
6. The trying Magistrate, having relied oil these evidence found that the charge was proved against the appellant and another. It is important to mention here that the learned Magistrate while considering the extra judicial confession entirely failed to consider that the confession had been retracted.
7. On appeal the learned Sessions Judge did not advert to the confession at all but having merely relied on the evidence of motive and the evidence of P. W. Suleman that the appellant had been seen in the vicinity of the School along with four other persons on the night preceding the discovery of the defamatory writings maintained the conviction and sentence of the appellant alone. The learned Judge; however, gave the benefit of doubt to the co-accused Muhammad Shafi and acquitted him.'
8. The learned Judge of the High Court proceeded on the footing that the direct ocular evidence of the offence com--mitted by the appellant is furnished by P. W. Suleman who had himself seen the appellant and four other persons at a distance of 200 yards from the School on the preceding night. This evidence coupled with the evidence of motive and considered in the light of the extra- judicial confession were sufficient to bring home the offence to the appellant. The learned Judge used the confession by way of corroborating the evidence of P. W. Suleman.
9. It may have been noticed from the foregoing that none of the Courts approached the case correctly. It is quite evident that the circumstantial evidence viz. The existence of motive and the appellant with four other persons having been seen in the vicinity of the School, the previous night, are hardly enough to prove the complicity of the appellant in the crime even if they are accepted in their entirety. They may raise suspicion against the appellant, but certainly they are not incompatible with the innocence of the appellant. The evidence of P. W. 8, Ehsanul Haq, Deputy Educational Advisor, Government of West Pakistan, Lahore, discloses that there were at least two other persons namely, Muhammad Hanif and Mahmood Shah, a teacher who appear to be inimical to Soofi Ghulam Hussain. It was on the application of said Muhammad Hanif that P. W.
10. Ehsanul Haq had conducted an enquiry against the appellant and P. W. Soofi Ghulam Hussain. The report of the enquiry was that the allegations against Soofi Ghulam Hussain were maliciously false.
11. As regards the evidence of P. W. Suleman, it appears that of the five persons seen in the vicinity of the School, he could only identify the appellant and co-accused Muhammad Shafi. He could not identify the other persons as they had muffled their fates. Muhammad Hanif was an accused in the case but was discharged.
12. It is thus evident that some other persons also may have a motive to write the defamatory writings and some other persons, including co-accused Muhammad Hanif were seen along with the appellant in the vicinity of the School.
13. The circumstantial evidence being wholly insufficient to prove the charge against the appellant corroboration of such evidence was immaterial and did not advance the prosecution case any further.
14. The correct position, however, was that the extra judicial confession, if it was voluntary and true, could form the basis of conviction. The confession, however, required corroboration inasmuch as it had been retracted. This aspect of the case was completely missed by the High Court is well as the Courts below with the result that there was a miscarriage of justice. The only witness who has spoken about the con--fession is P. W. Mehr Ghulam Rasool. He has admitted that he did not know much about the appellant. It is improbable that the appellant would make such confession to a person who seemed -to know the former but a little.
15. On behalf of the state it has been contended that the confession should be accepted and that it has been corroborated by the evidence of motive and the evidence of P . W, Suleman that the appellant had been seen in the vicinity of the School the previous night. The question is how far these evidences, which as I have noticed already, give rise to the possibility that other persons besides the appellant may have reasons to write the defamatory statements, can be used to corro--borate the confession.
16. We have two courses open now. Either the case should be retried on the evidence on record or this Court should itself reassess the evidence to examine whether the conviction of the appellant can be sustained on the present evidence. Leave to appeal having been granted merely to consider the question whether the circumstantial evidence in the case is incompatible with the innocence of the appellant, it is not desirable to adopt the second course. Besides such evidence of corroboration as is available on record are not sufficient, in our opinion, to corroborate the retracted extra judicial confession. We have already noticed that it was improbable for the appellant to have confessed before a person who the former knew but a little. The evidence of motive shows that other persons might also have reasons to write the questioned writings. The pro--secution failed to get the writings examined by a Handwriting Expert, as is usual in such a case. The evidence that the appellant had been seen in the vicinity of the School the previous night also discloses that other persons, too, were also seen there at the same time. It is thus evident that our re-assessm ent of the evidence is against the prosecution and the maintenance of the conviction of the appellant. As regards the first course, regard having had ad to the distance of time that leas elapsed between date of occurrence, i.e., 21/22-12-1966 and now, we do not think it in the interest of e justice that a retrial should he ordered. The appellant has already suffered on account of the unduly prolonged proceedings s and the: ends of justice do not demand that he should be subjected to further proceeding. It is for no fault of his that the trial has proved fruitless.
17. The appeal is accordingly allowed and the conviction and sentence of the appellant are .Set aside, he is directed to be dis--charged from his bail bond.