1. ' SARDAR MUHAMMAD SHARIF KHAN, C. J.-The accused-appellant was tried by the District Criminal Court, Mirpur for the offences under section 397/302, P. C. And conclusively was convicted thereunder and sentenced to six months' rigorous imprisonment and a fine of Rs, 50 for the offence committed, under section 397, P. C. And in default of payment of fine to a _ simple imprisonment for a month and for the offence of murder he was sentenced to `Diyyat' amounting to Rs, 1,16,645.
2. ' On report Exh. PA/2, a case under sections 397/34, P. C. Was registered by the police to which, on death of Ghulam Hussain, the person injured, who succumbed to the fatal injury, section 302, P. C.
3. Was added thereafter.
4. ' The investigation was started and two persons namely Ghulam Rasool convict and Muhammad Yusuf, approver, were arrested by the police for the commission of the offences of robbery and murder. During the investigation, both the accused persons made confessional statements vide Exhs. P A and PS/6 before a Magistrate Ist Class at Bhirnber on 12-7-1976 after their having remained in police custody for about 9 days.
5. ' It was alleged that the prior conduct of both the accused was not fair. They were habitual in committing offences of theft and robbery, etc. Ghulam Rasool's bad reputation led the police to look for him in relation to the commission of the said offences. In order to prove the previous conduct some boys namely Ghulam Hussain, Pervaiz, _Mahboob and Rashid were produced by the prosecution so also three adult male persons Ramzan, Beerbal and Rehmat.
6. ' Before going to the circumstances of the commission of the offences of robbery and murder allegedly committed by the convict and his co-accused who is now a witness of the prosecution as an approver, let us see their prior conduct to which effect the evidence affects the very offences alleged.
7. ' After having carefully examined the witnesses on the previous conduct of the accused persons brought before the Court, I find that the evidence on their previous conduct is not trustworthy.
8. Ghulam Hussain, the by stated that it was in the 3rd month i. e. March prior to the occurrence that he was robbed of some of his belongings by Ghulam Rasool convict who took him to a house as well from where the food was also served to them. Before the Court, he does not name the person in whose house the convict and the approver took the by in order to take meals. In the statement under section 161, Cr. P. C. The by mentioned the name of that person as Beerbal P. W. The by further stated before the Court that after the accused left the house of Beerbal, the latter was told by him that he was deprived of some of his articles namely pen, money and a watch by the accused. But Beerbal P. W. Totally refused to support him as such. In the statement before the police this incident in respect of the by was disclosed having taken place l months earlier which falls in the month of May. The statements of Ghulam Hussain and Beerbal P. Ws. Materially differ with one another. Their close perusal clearly indicates concoction and fabrication on their part by the police. So is the case with the evidence of Pervaiz and Mahboob both. Both these boys were taking the goats of Iqbal butcher who is father of Pervaiz P. W. To the house of one Ashiq All for meat where Iqbal had also gone to supply meat in a marriage party, according to the statement of his son, but Mahboob who knew him very well, is of the say that Iqbal was not there at the house of Ashiq Ali as deposed to by the said Pervaiz. Both Pervaiz and Mahboob alongwith one Nazar Hussain P. W. Were taken to Bhimber by the police to identify the accused. Identification Form Exh. PK/2 read with statement of Raja Fazal-ur-Rehman, Inspector of Police a prosecution witness before the Court, we find that this identification was just a farce. It was held in presence of Mr. Amanullah Cheema, a Magistrate who took no active and a legal part in conducting the identification parade. It was Fazal-ur-Rehman, Inspector of Police who did all in respect of the identification parade. Nazar Hussain P. W. According to this identification parade recognized Muhammad Yusuf, approver but he did not say anything with regard to Ghulam Rasool convict who was also standing in the line of the persons ready for the identification parade to be held. This was probably at the instance of the police that he did not point out Ghulam Rasool as, according to the police, he was already known to him. But when he appeared before the Court as the witness, he totally refused to know him as such, that is to say, Ghulam Rasool was not known to him before. According to the statements of the witnesses concerned which were recorded by the police under section 161, Cr. P. C. Vide Exhs. EA, DB, DC, DD, DE and DF, the appearance {{URDU TEXT}}'at:I..' of the stranger involved in the crime does not coincide with features of Muhammad Yusuf, the approver, as depicted in the police. Before his arrest, the appearance of stranger, the offender (not Ghulam Rasool convict) was shown that of a fat man blackish whereas after his arrest it was disclosed before the Court that he, the stranger (not Ghulam Rasool) was a thin man whitish i. e. He was of a fair complexion. The statements Exhs. DE and DF recorded by the police brought on the record of the trial Court file were attempted to be tampered with by the police in order to bring the appearance of the approver in 'conformity and similarity with the countenance of the stranger depicted by the police before his arrest. In the identification parade Nazar Hussain recognized Muhammad Yusuf, the approver but no recognition on his part had taken place in respect of Ghulam Rasool, and before the Court, he recognized Ghulam Rasool, a stranger to him as he was not known to him before as claimed by the police. And the person (approver) who was recognized by him in the identification parade was not brought before the trial Court so as to be identified. By him. No mention of his identification was at all made by him in his statement before the Court in any manner, whatsoever.
9. ' The stay of the accused in Maulvi Abdul Karim's Hotel is also not established beyond a reasonable doubt. The approver in his statement before the Magistrate under section 164, Cr. P. C. Stated that stay alleged, for the night was made in Soofi Rafique's Hotel. Maulvi Abdul Karim, a Hotelman appeared as a witness who stated that the accused stayed in his Hotel for the night of 15-6-1976 which stay according to him was entered in the Register maintained for the purpose but the entry in the Register with regard to the stay of the convict and the approver, if any, was not proved before the Court. This being the situation, Abdul Karim's statement loses its legal importance regarding his evidence as documentary evidence pertaining to his statement was not proved.
10. ' Muhammad Rashid's statement does not disclose the names of the persons intimidating him in the 'Jungle' on 12-6-1976. He does not support the prosecution because he has not named the accused in any manner before the Court. On this day, no meeting of the convict and the approver is even indicative from their statements under section 164, Cr. P. C. And from the statement of the approver before the trial Court with regard to the date deposed to by this witness. To corroborate the statement of approver, the evidence of one Muhammad Ashraf was necessary but he was not examined by the prosecution. It seems that boys were picked up by the police in fabricating evidence to prove the prior conduct of the accused as was adjudged from their statements which were critically gone through by us.
11. ' The recoveries of the weapon of offence and a 'nail? (a cloth purse) emptied by robbery as alleged were made from the places where the articles were kept concealed under leaves and stones. No such concealing was deposed to by the approver. According to him they were simply thrown away while fleeing from the scene of occurrence. The mode of recoveries is contrary to the manner in which the placement of the articles was shown in the statements recorded under section 164, Cr. P. C. Or before the trial Court.
12. ' The statement of the approver contains all those things which we have refuted while scrutinizing evidence on the previous conduct of the convict and the approver and it was held that the police fabricated the evidence to prove pre-conduct of the accused. When the statement of the approver contains the false matter in respect of making a part of the case by the police in relation to the previous conduct of the accused, it cannot be taken as noteworthy so as to be believed. The statement of such a witness requires strong corroboration being of independent character so as to be relied upon. Whatever evidence, to corroborate the statement of the approver was brought before the Court is self-contradictory and of a tainted character.
13. ' It is universally settled that in an approver's statement, corroboration is necessarily required in material particulars. Here the very identity of the approver himself has become doubtful in connection with the commission of the crime. Whether he was, actually, that man who caught hold of the deceased while another stranger stabbed his person just near below the ribs. Thus the evidence of such an approver against the convict may not be acted upon and pressed into service. The confessional statement of the accused, in the circumstances, resiled also loses its worth.
14. ' The by who is the approver and the convict both had been in custody of the police for about 9 days whereafter the statements were made by them, the voluntary nature of which comes to naught and so the plea of the convict may not be devoid of force that he was subjected to torture by the police to exact confession. The testimony of a doubtful offender involved in the commission of the crime assuming the role of an approver demolishes the entire story in relation to the commission of the offences even by Ghulam Rasool convict. A `Thaile (a cloth purse) and knife seized by the police are not stained with human blood. Moreover, a sketch of the knife alleged as weapon of offence was prepared on 5-7-1976 and its recovery was shown on 7-7-1976. This fact of the drawing of the sketch of the knife, an alleged weapon of offence, on 5-7-1976 and its recovery shown on 7-7-1976 could not satisfactorily be explained by the Police Officer concerned as to how such a vast difference occurred between the two and this makes the recovery doubtful. The knife wrapped in a 'Khaki' envelope was found concealed under leaves. No such concealment of the knife or 'Thaili' was stated either by the approver or the accused himself in the confessional statements or even before the Court. So these articles of recoveries cannot be treated as incriminating ones corroborating the statement of the approver in any manner, whatsoever.
15. ' In the result for the reasons above, it is held that the prosecution failed to establish the guilt of the accused. Appellant beyond reasonable doubt. That being so, by acceptance of this appeal, the used-appellant is acquitted of the charge of robbery and murder brought against him, whose immediate release from jail is ordered accordingly.