' The legality of the judgment dated 8-12-1985, pronounced by the learned Additional Sessions Judge, Rahimyar Khan, has been questioned in this appeal, who had convicted Muhammad Saleem appellant under section 302, P.P.C. And had ordered to suffer imprisonment for life. He was fined Rs,20,000 or to suffer three years' R.I. In default thereof. The moiety of the fine, if recovered, was ordered to be paid to the heirs of the deceased. The appellant was also convicted under section 457 P.P.C. And was sentenced to 10 years' R.I. And a fine of Rs,2,000. In default of the payment of fine, he was ordered to undergo one year's R.I. The sentences were ordered to run concurrently. The benefit of section 382B, Cr.P.C. Was extended to the appellant. The accomplice of the appellant namely, Shabbir Ahmad, was acquitted.
2. The facts which led to the lodging of the instant appeal, in substance, are that Allah Bakhsh, the son of Mst. Ghulam Fatima, the complainant, was an employee of Messrs Lever Brothers, Rahimyar Khan in Ghee Refinery Section, who had constructed his house in Rehman Colony, Rahimyar Khan and was married to Mst. Jamila Bibi 17/18 years back. They had procreated nine children during the wedlock. On the night preceding 21-9-1983, Allah Bakhsh went to sleep upstairs at about 10.00 p.m.
Mst. Ghulam Fatima the mother of Allah Bakhsh and Mst. Jamila, the wife of Allah Bakhsh slept in the courtyard. All the children were sleeping in the room under the ceiling fan. At about 2-30 a.m.
On 21-9-1983, Mst. Ghulam Fatima and Mst. Jamila were awakened by the alarm of Allah Bakhsh.
They hurriedly went upstairs and Mst. Ghulam Fatima saw her son Allah Bakhsh staggering and striving to catch a man of average stature and of strong built. The said unknown person scaled the wall while coming down through the staircase and ran away. Allah Bakhsh lay on the roof in an injured state. He was injured in the abdomen by a sharp-edged weapon. He was administered water and Ghulam Yasin, Muhammad Saleem, Muhammad Aslam and other neighbours also reached the spot. When Allah Bakhsh was being transported to the hospital by a trolley, he succumbed to the injuries.
3. Mst. Ghulam Fatima lodged the F.I.R. Ex. PE and after narrating the incident stated that Mst. Jamila had seen the assailant and could identify when brought before her. None was named in the F.I.R. As an assailant.
4. Subsequently Muhammad Younus appeared before the police through Bashir tailor and got his confessional statement recorded by a Magistrate which is Ex. PL. He was made an approver and his statement Ex. PM was recorded by an MIC on 3-4-1984. His confessional statement is dated 20-3- 1984.
5. Subsequently the identification parade was held and Mst. Jamila identified the appellant in jail premises.
6. The dead body of Allah Bakhsh was sent to the mortuary, where Dr. Mukhtar Naseem P.W.5, performed the autopsy and observed the following, injuries on his dead body:--
(1) One incised wound 1" x 2" going deep on the lateral aspect of inguinal area.
(2) Two oblique incised wounds-2" x 1/2" and 1" x 1/2" into skin deep on the lateral aspect middle of left arm.
(3) One stab wound 2-1/2" x 1-1/2" D.N.P. On the left abdomen at the distance of 2" from the umblicus one O'clock and the small and alongwith the mystery was lying of the wound.
(4) One incised wound 1" x 1/2" x D.N.P. In the right hypochonodrium at a distance of 1-1/2" from the umblicus 11 O'clock.
(5) One incised wound 1-1/2" x 1/2" x skin deep on the left abdomen at a distance of 1-1/2 from injury No,3.
' According to this medical expert peritonium was cut through and through on account of injury No,3 and twenty ounces of blood were present in the abdominal cavity. He has opined that injury No,3 was sufficient to cause death in the ordinary course of nature. This witness was not cross- examined.
7. On the confessional statement of Muhammad Younus, who was subsequently made an approver, the appellant was arrested on 21-3-1984 and, while in police custody, he led to the recovery of Chhuri Exh.P.6 on 28-3-1984 which was taken into possession vide memo. Exh.P.J.
Muhammad Younus had produced a transistor radio which they had stolen from the house of the deceased. After the completion of the investigation, Muhammad Salim and Shabbir Ahmad were tried. As a sequel to the impugned trial, the appellant was awarded the aforementioned punishment, and Shabbir Ahmad was acquitted.
8. Mst. Ghulam Fatima P.W.9, the complainant and the mother of Allah Bakhsh deceased has narrated the incident as stated in the F.I.R. With a simple variation that the unknown person jumped outside the house from the said roof and ran away. She has not stated that he had come through the staircase and then scaled over the wall. When cross-examined, she has deposed that the culprit jumped from the opposite side of the roof and he did not run through the staircase of their house. About the F.I.R. She has stated that she was interrogated by the police at the spot and then brought back to the police station where her thumb-impressions were affixed. It shows that the F.I.R. Was recorded after preliminary investigation.
9. Mst. Jamila P.W.10, who is the wife of the deceased has corroborated the fact that she had seen one person running through the staircase and he scaled ' over the wall which is adjacent to the staircase. She has added that he was well-built man of average stature and she identified the appellant during the identification parade. She has stated that the appellant was not acquainted with her nor she was known to his parents. She has denied the fact that the police had shown Muhammad Saleem to her at the police station before the identification parade.
10. The statement. Of Muhammad Younus P.W.20, the approver is very significant. He has testified that he was on friendly terms with Muhammad Saleem and Shabbir Ahmad and they had no money to attend the wedding ceremony of their common friend namely, Sajid and they decided to rob a sweetmeat seller, who used to pass in front of the Awan Petrol Pump daily. They sat in front of Awan Petrol Pump situate at Shahbaz Road. He has added that in the meantime, the appellant suggested that one of his friends employed in Messrs Lever Brothers Factory had received bonus of his pay and they should go and loot him. Consequently all of them went there and Muhammad Younus expressed his inability to scale over the wall and he was made to stand in front of that wall and Muhammad Salim and Shabbir Ahmad went upstairs whereas he kept standing in the staircase and Muhammad Saleem removed the radio belonging to Allah Bakhsh, which was handed over to him. According to Muhammad Younus, Muhammad Saleem and Shabbir Ahmad gave Chhuri blows to Allah Bakhsh, who tried to grapple with them and had also searched his pillow to steal the money and in that process, Allah Bakhsh sustained injuries and they ran away.
Muhammad Younus has stated that he had made a confessional statement of his guilt and was thereafter made an approver. Exh.P.L. Is his first statement which he made before the A.D.C.(G) and when he made a second statement Exh.P.M. He has clarified that they had gone to commit theft in the house of Allah Bakhsh and they did not intend to murder him and he was produced before the Magistrate 15/16 days after his arrest and then he was sent to jail. According to the approver, the appellant was employed in Asghar Wheat Thresher Factory whereas Shabbir Ahmad was employed in a different factory adjacent to the said factory and he did not know the nature of their jobs and Sajid Shah was a tailor but he had not adopted the vocation of tailoring at the time of occurrence, and the marriage of Sajid was to take place on the next morning. Muhammad Younus is a tonga driver and used to earn Rs,40 to 50 daily. He has stated that Salim and Shabbir had been visiting the house of the deceased prior to this occurrence. He does not remember the number of days when he disclosed these facts to Bashir tailor before being arrested by the police. He has stated that he narrated the occurrence because he apprehended danger from the appellant and Shabbir Ahmad as there was a dispute over the return of a woollen Shawl between them.
11. Khawaja Rashid Ahmad, A.D.C.(G)/Magistrate 1st Class, Rahimyar Khan P W.21 had recorded the confessional statement of Muhammad Younus. Asghar Alt P.W.15 is the Investigating Officer, who has starkly admitted that the approver was not sent to the judicial lock-up and was kept in the police lock-up after 1-4-1984 and even on 3-4-1984, he had taken Muhammad Younus, the approver from the police lock-up and got his statement recorded by the Magistrate. He has, however, explained that the Court time was over and the jail authorities did not receive Muhammad Younus on the objection of expiry of time, therefore, he had taken him to the police lock-up without obtaining any judicial or physical remand.
11-A. It is a strange case in which the offer to become an approver wash not made by Muhammad Younus. No pardon was granted to him in writing by any authority. Mr. Nazir Ahmad Bhatti, the learned State counsel could not point out when and where or by whom the pardon was granted to Muhammad Younus approver before recording his statement. It also looks queer that the confessional statement of Muhammad Younus was recorded when everything was in the knowledge of the police and with full knowledge of the facts, Muhammad Younus was made an approver.
12. Under subsection (1-A) of section 337, Cr.P.C. It has been made imperative that while tendering a pardon, the Magistrate shall record his reasons for so doing, and shall, on application made by the accused, furnish him with a copy of such record. From section 337, Cr.P.C., it is apparent that the pardon should be granted in writing and the Magistrate granting pardon, should record his reasons for so doing. In Noor Shah and another v. The State 1976 P Cr. L J 1265, it was adjudicated that the pardon could only be granted in writing under section 337, Cr.P.C. In Abdul Ghafoor and others v.
The State PLD 1984 Lah. 441, it was held that recording of reasons for the grant of pardon were imperative.
13. In the instant case, no pardon was, however, granted to Muhammad Younus, who did not himself offer to become an approver. It may be noted that he has not assigned any active role to himself in his statement made as an approver and has made an exculpatory statement in this murder case. In a similar case reported as Muhammad Bakhsh etc. v. The State 1974 P Cr. L J 211 it was held that air exculpatory statement of an accused cannot be used against another co- accused and the conviction was set aside in the circumstances of the case.
14. The appellant is stated to have been identified by Mst. Jamila P.W.10. Mst. Ghulam Fatima, the mother of the deceased has stated that the culprit did not come through the staircase and jumped from the roof from the other side. It shows that Mst. Jamila did not come across the assailant at all and even in a moonlight, the identity of the appellant could not be established when he was not known to Mst. Jamila before. She could not give full description of the assailant and simply stated that he was a man of average stature with a well-built body. In a similar case reported as Lal Pasand v. The State PLD 1981 SC 142, the description given in the F.I.R. Was that the assailant was having green eyes and thin neck and it was found that it was not sufficient description as it was applicable to a large number of persons. The principle enunciated in this precedent can safely be extended to the instant case, because the description of the assailant in the F.I.R. Was applicable to a large number of persons and it may be termed as insufficient description of the assailant.
15. The F.I.R. Was recorded after making preliminary investigation. The story of recovery of Chhuri which was not stained with blood, has been disbelieved by the learned trial Court. Muhammad Younus was not granted any pardon before being mace an approver and his statement as an approver is exculpatory. The corroboration of the statement of an approver is required to be established in such cases, but when the approver was not made in accordance with law, then even the corroborative statement would be of no consequence.
16. In the circumstances of the case, I extend the benefit of doubt to the I appellant, accept his appeal and acquit him. The appellant is in jail. He may be released forthwith, if not required to be detained in any other case.