1. SAJJAD AHMAD, J.---Muhammad Yaqub, the appellant herein, was tried along with his younger brother, Liaqat, and one, Mst. Maqsoodan, for the murder of Mehraj Din, the husband of the last mentioned (Mst. Maqsoodan) in furtherance of their common intention, under section 302 read with section 34, P. P.C. They were convicted by the learned Additional Sessions Judge, Sialkot, and each sentenced to death. On appeal and reference to the High Court, Liaqat and Mst. Maqsoodan were acquitted, but the conviction and the sentence of the appellant, Yaqub, were upheld.
2. The murder took place in the house of the deceased, Mehraj Din, on the night between the 11th and 12th of October 1967. Yousaf, the village Lambardar, on getting a clue of this murder on the following day, i.e., the 13th October 1967, and after con--tacting Mst. Maqsoodan, who allegedly confessed to him that she had murdered the deceased in collaboration with the appellant and Liaqat, reported the matter at 5 p.m. The same day to S. I. Riaz Ahmad, who was on patrol near Shamsa bridge.
3. The motive alleged for the crime was that the appellant was prosecuting a love intrigue with Mst.
4. Maqsoodan, and to clear her husband from his way, all the three accused had joined hands to kill him.
5. During the investigation, the police took into possession a blood-stained seru and munj froth a cot lying inside the house of the deceased. Some blood was found on a brick in the wall of the house, which was scraped and taken into possession. The place underneath the cot was freshly plastered, and blood was found there on removal of the layer of the plaster. A cot lying in the house of Muhammad Yaqub, appellant, was also found to be blood-stained. The blood-stained strings of the charpoy were cut and taken into possession. Stains of blood were also found on the ground in a room of the house of Yaqub, appellant.
6. The dead body of the deceased was located by one, Muhammad Khan on the 15th of October 1967, at 7-30 a.m. In the B. R. B. Link Canal wherefrom it was subsequently recovered by the police. The appellant was arrested from his well on the 17th of October 1967. His kurta and tehband, Exh. P. 6 and Exh. P. 7, were secured and sealed into a parcel. He took the police to the bank of the B. R. B. Link Canal where the dead body had been placed before it was thrown into the canal. The blood- stained earth was taken into possession from that spot. The appellant also produced a toka, Exh. P.
7. 8, from his haveli, which was also stained with blood.
8. The post-mortem examination of the deceased showed that he had sustained several incised injuries on different parts of his body. The appellant was also examined medically on the 17th of October 1967, and was found to have :-
(1) A septic incised wound 1-1/3' x -- " skin deep on the back of right forearm, 2-- " above the wrist ;
(2) a septic incised wound 1-- ' x --" x skin deep on the back of right forearm, --' outer to injury No. 1, and
(3) a septic incised wound 1' x --" x skin deep on the front of root and inner surface of proximal phalanges of left little finger.
9. All these injuries were simple.
10. There was no ocular evidence in the case. The prosecution evidence against the accused was listed by the learned Judges of the Division Bench in the High Court as follows :-
(a) The evidence of motive ;
(b) the extra judicial confession by Muhammad Yaqub and Mst. Maqsoodan ;
(c) the evidence of recoveries, and
(d) wajtakar evidence.
11. Apart from the extra judicial confession of MR. Maqsoodan, there was also her statement, Exh. P. T./ l, which was recorded by a Magistrate on the 19th of October 1967, when she was pro--duced before him by the police for the purpose of recording her confession. This confessional statement has been ruled out of consideration by the High Court because of its self-exculpatory character.
12. She admitted therein Yaqub's love affair with her but laid the entire blame on Yaqub for killing the deceased, although she had dissuaded him from doing so. He had threatened to kill her and her children. In discarding her statement, Exh. P. T;/l, the learned Judges in the High Court have observed as follows :- "The tenor of the statement of Mst. Maqsoodan clearly indicates that in all likelihood the statement was obtained from her in order to make her an approver. It could not be volunt--ary, but most probably she made the statement due to a promise or inducement held out to her by the police to make her an approver. The possibility, as alleged by her, of having been tortured by the police to make the statement could also not be ruled out . . . . . . . . . We, therefore, hold that Exh. P. T./1 is not a confession, that it cannot be said to be voluntary and since it was retracted, it could not be used against the maker without its corroboration from independent source and much less against the co-accused."
13. As regards item (a) of the evidence, i.e., the evidence of motive for the crime, the learned Judges have accepted the alleged motive on the ground that the same finds mention in the statement Exh. P. T./1 of Mst. Maqsoodan, although they have struck down this statement as inadmissible and unreliable. It is difficult to appreciate how this part of the statement could have been isolated for acceptance as admissible, after the finding by the learned Judges of the High Court, referred to above, that in all pro--bability the statement was obtained from her by the police by inducement and by torture. As regards item (b) of the evidence, i.e. The evidence of extra-judicial confession made by Mst. Maqsoodan and by Muhammad Yaqub, appellant, it has been accepted against Muhammad Yaqub and discarded against Mst. Maqsoodan, although the character of the evidence against both is not very much different. The comment of the learned Judges of the High Court on this item of the prosecution evidence may be usefully reproduced :- "The evidence on point (b) consists of the statements of Mahmood Khan (P. W. 3), Ghulam Qadir (P.
14. W. 4), Rehmat Khan (P. W. 5), Rehmat Ali (P. W. 6), Muhammad Khan (P. W. 7) and Yousaf Ali, Lambardar (P. W. 8) ------------Yousaf Ali, Lambardar, admitted that there has been litigation between him and Yaqub over the land cases have been pending in various Courts. He is a retired Head Constable Police. He is the architect of the case. He resiled from his statement about the confession of Mst. Maqsoodan in his cross-examina--tion and said that it was not a fact that she told him and Ghulam Qadir that she had a hand in the murder of Mehraj Din. The entire evidence in proof of extra judicial confession rests on the statement of Mahmood .Khan, who did not strike us as a reliable witness. His evidence is inconsistent in material particulars. Ghulam Qadir is related to Mehraj Din. He is proved to be inimical to Yaqub who was a witness against him in a 326, P. P. C.
15. Case which ended in conviction of Ghulam Qadir. It is not possible, therefore, to rely on his evidence in proof of extra-judicial confession. There is nothing in the evidence of Rahmat Khan, shopkeeper, to the effect that Yaqub came to his shop and confessed the crime. Rehmat Ali claimed to be present at the shop of Rehmat Khan at the time of confession by Yaqub to Ghulam Qadir and others. He is from the brotherhood of the deceased, but has no enmity with Yaqub. Muhammad Khan is also related to the deceased and his deposing about the extra-judicial confession by Yaqub in their presence is understandable. He has also no direct enmity with Yaqub appellant. We, therefore, decide to accept the evidence of extra-judicial confession by Yaqub, but rule it out in the case of Mst. Maqsoodan appellant in view of the statement of the village Lambardar."
16. It would appear from this comment that the learned Judges in the High Court have accepted the evidence of the extra-judicial confession alleged to have been made by Yaqub, appellant, because Rehmat Ali and Muhammad Khan, P. Ws. 6 and 7 respectively, who did not bear direct enmity towards him, say so. It is not denied that the former belonged to the brotherhood of the deceased and the latter was, related to him. We regret we are unable to share this view of the learned Judges in the High Court. Having rejected the bulk of the witnesses on the same point, thus doubting the existence of the very fact which they were out to prove, the prosecution case could not have been advanced to be accepted by the production of two more witnesses in the same line to prove the same point. The entire evidence of extra judicial confession adduced by the witnesses has to be rejected on the ground that it is inherently improbable. It is unbelievable that although Yaqub had confessed his guilt for the cold-blooded murder of Mehraj Din, yet all these witnesses, which included some close relations of the deceased and also the Lambardar of the village, allowed him to go his own way. If he had made any such confession, their natural impulse would be to tie him down to hand him over to the police. With the elimina--tion of the evidence regarding the extra-judicial confession made by Yaqub, appellant, the prosecution case against him for the murder of Mehraj Din must collapse. The evidence of the recovery of certain incriminating items from his house, which bear stains of blood, which were found to be of human origin, does not, by itself, prove the offence of murder against him. These recoveries could at best furnish corroborative evidence but there is no substantive evidence of murder left in the case which these recoveries can corroborate. These do suggest that Yaqub, appellant, knew about the murder and was concerned in the disposal of the dead body but not that he had himself committed the murder of Mehraj Din. While he cannot be convicted for the offence of murder, this evidence does prove against him an offence of the evidence of the murder of Mehraj Din in order to screen the offender or the offenders. This evidence shows that the dead body was brought to the appellant's house and then tied up and removed from there for disposal. According to the evidence of the Investigating Officer, which we have no reason to doubt, blood--stained earth was recovered from under the grass where, as dis--closed by the appellant himself, the dead body of the deceased was placed before it was thrown away in the canal. Since the evidence clearly makes out a case against the appellant under section 201, P. P. C. It is legally permissible to convict him for that offence in view of the provisions of sections 236 and 237, Cr. P. C. Notwithstanding that the appellant was not specifically charged under section 201, P. P. C.-See Begu and others v. King -- Emperor (AIR 1925 P C 130).
17. On our view that as the evidence on record proves an offence against the appellant under section 201, P. P. C. We alter his conviction to section 201, P. P. C. From section 302, P. P. C. And sentence him to 7 years' rigorous imprisonment and a fine of Rs. 1,000 or in default of payment, one year further R.
18. I. The appeal is accepted to the extent as indicated above.