' NAZIR AHMAD BHATTI, J.---P.W.9 Mst. Najma Hakeem woke up on 28-10-1988 at about 6/7 a.m. On the ringing of bell by accused Ghulam Askari after he had knocked at the door of the kitchen. The said accused was carrying breakfast and told her that he had knocked at the door of the kitchen opening towards the room of her mother Mst. Taj Begum but there was no response. Thereafter, Mst. Najma Hakeem herself went inside the room where her mother used to sleep. She found her mother lying dead on the bed. She was done to death by strangulation and a Chaddar was still fastened around her neck. Mst. Najma Hakeem found the cupboard open and the articles scattered on the floor. She called her aunt MRs, Nisar Khan from her house, who arrived there and removed Chaddar from the neck of the deceased and also changed her clothes. In the meantime Mst. Najma Hakeem ran up to the Police Station Margalla. P.W.18 Syed Safeer Hussain Shah, S.H.O.
Police Station Margalla arrived at the spot and recorded report Exh.P.B. Of Mst. Najma Begum at about 8-00 a.m. And sent the same to the police station where F.I.R. No,179 was recorded on the same day.
2. P.W.18 Syed Safeer Hussain Shah S.H.O. Took up the investigation, inspected the spot, took into possession from the room of the deceased her Shalwar and shirt which she was last wearing. He also took into possession one piece of cloth which was allegedly used for the purpose of strangulation, and one `Dopatta' of the deceased. From the same room he secured the bloodstained Chadder and mattress of bed of the deceased. The said S.H.O. Also found a service card of P.W.8 Muhammad Bashir Mali of adjoining house. This witness investigated the case from 28-10-1988 to 22-12-1988 and during that period he associated accused Ghulam Askari with the investigation but no incriminating evidence could be dug out against him.
3. P.W.l 1 Dr. Azmat Humayoun Khan conducted post-mortem examination on the dead body of Mst.
Taj Begum on the same day at about 11-50 a.m. On the request of the relatives of the deceased he conducted only external post-mortem and according to his examination Mst. Taj Begum died of strangulation during the night between 27th and 28th October, 1988.
4. All the 4 accused were charged under sections 302/34, 457, 380, 404, P.P.C. And section 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. Accused Arif Hussain, Ghulam Askari and Mansif All pleaded not guilty and claimed trial, whereas accused Muhammad Saeed was granted pardon under section 337, Cr.P.C. And made an approver in the case.
5. P.W.7 Muhammad Saeed was originally arrayed as an accused but he volunteered to become an approver. He was tendered pardon and his statement was recorded on 8-3-1989. He stated that Arif was his co-villager who brought him to Islamabad to get him a job in a Bungalow. Accused Arif made him sit in the bushes and himself went inside the bungalow and met the servant. He came back and informed him that the servant already working in the bungalow was his accomplice and that they would commit theft therein. For three days they went to the bungalow daily but could not succeed. On the 4th day accused Arif Hussain went to the Bungalow and also took him there. At 10- 00 p.m. He came back and told him that their guests had gone and that they had to commit theft.
At 10-00 in the night he (P.W.7 Muhammad Saeed) accused Arif and Ghulam Askari went to the Bungalow. The door was open. They went inside. They took some dry fruit and the two accused, Ghulam Askari and Arif, made plan for the offence. Accused Ghulam Askari and Arif Hussain made rope of a Chadder by twisting it and went inside the room where the old woman was asleep.
Accused Arif put the said rope around her neck and accused Ghulam Askari put a cloth on her mouth. This accused (Saeed) stood guard in the door so that her daughter may not come.
Accused Arif and Ghulam Askari murdered the old woman by twisting the rope around her neck and thereafter committed Zina with her turn by turn. They took out keys from under the pillow of the deceased lady and opened Alinirah and brought out Rs,5,000, clothes and purse. After coming out of the house they distributed Rs,4,000 between themselves equally and gave one thousand to him.
There was another house nearby. They went there and opened the attache-case. They brought out the clothes from the said box and then threw it. Thereafter, they fled away. He and Arif Hussain went to Abbottabad but accused Ghulam Askari returned to the bungalow and remained there. On the next day Arif gave him forged currency notes and got back the amount of Rs,1,000.
6. In cross-examination he stated that he was arrested by Rawalpindi Police and was kept in police station for 4 months and thereafter he was produced before a Magistrate. He further stated that his statement was recorded twice at Rawalpindi by a Magistrate. He further stated that the police took him to Rawal Dam CIA where he was kept for 2/3/4 months.
7. Accused Ghulam Askari, Mansif Ali and Muhammad Saeed were arrested by P.W.19 Allah Yar Inspector S.H.O. Police Station Industrial Area Islamabad. Accused Mansif Ali took him to his village in District Abbottabad on 24-2-1989 and pointed out certain household articles which were taken into possession by this witness. On 1-3-1989 accused Ghulam Askari offered to point out the place where he had hidden money looted from the room of the deceased after committing her murder and led P.W.25 Gohar Zaman Sub-Inspector to a place inside the bungalow where motor was fitted for obtaining water and from that place at the pointation of accused Ghulam Askari, P.W.25 Gohar Zaman Sub-Inspector recovered a watch instead of money. The said watch was identified on 13-3- 1989 by Mst. Najma Hakeem who said that it belonged to her deceased mother.
8. P.W.6 Muhammad Ashraf Sub-Inspector Police Station GoIra arrested accused Arif Hussain alias Muhammad Arif on 8-5-1989. On 29-8-1989 P.W.20 Karamat Khan Sub-Inspector again cut 4 pieces of cloth from blood-stained mattress and Chadder of the bed of the deceased and sent the same for chemical examination. On 20-12-1989 he again prepared the parcel of Chadder for sending the same to the Chemical Examiner for ascertaining the presence of semen thereon. The report of the Chemical Examiner Exh.P.BB./2 shows that the said articles were received in his office on 23-12-1989, he examined them on 24-12-1989 and found semen and blood on the bed-sheet whereas the other pieces of clothes sent to him were stained with human blood only.
9. Accused Muhammad Saeed volunteered to become an approver to P.W.19 Allah Yar, Inspector who produced him before P.W.26 Qasim Niaz on 8-3-1989. The said officer was posted as A.D.M. In those days and he tendered pardon under section 337, Cr.P.C. To accused Muhammad Saeed and recorded his statement.
10. Accused Ghulam Askari admitted that he was for some time employed in the house of deceased Mst. Taj Begum as cook but he denied the commission of the offence. Accused Arif Hussain alias Muhammad Arif also denied the commission of the offence. Accused Munsif All admitted that accused Arif Hussain alias Muhammad Arif was his real brother. He also admitted that he had worked as a cook for one month in the house of the complainant but he denied the commission of the offence.
11. After the conclusion of the trial the learned Additional Sessions Judge acquitted accused Mansif Ali and Muhammad Saeed but convicted accused Arif Hussain alias Muhammad Arif and Ghulam Askari. Accused Arif Hussain was convicted under section 302/34, P.P.C. And sentenced to death and also a fine of Rs,1,000 or in default to suffer six months' rigorous imprisonment, if the death sentence was not confirmed. Arif Hussain was also convicted under section 10(3) of the Hudood Ordinance and sentenced to undergo rigorous imprisonment for ten years, and fifteen stripes.
Accused Arif was further convicted under section 457, P.P.C. Sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs,500 or in default to undergo rigorous imprisonment for one month. He was further convicted under section 380, P.P.C. And sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs,500 or in default to further undergo rigorous imprisonment for one month. The learned trial Judge convicted accused Ghulam Askari under section 302/34, P.P.C. And sentenced him to undergo life imprisonment and to pay a fine of Rs,1,000 or in default to further undergo six months' rigorous imprisonment. This accused was further convicted under section 10(3) of the Hudood Ordinance and sentenced to rigorous imprisonment for 10 years and 15 stripes. Accused Ghulam Askari was also convicted under section 380, P.P.C. And sentenced to undergo two years' rigorous imprisonment and a fine of Rs,500 or in default to further undergo rigorous imprisonment for one month. Convict Arif Hussain sent Criminal Appeal No,24/1 of 1991 from Jail but he was given Suo Motu Notice No,15/1 of 1991 for enhancement of sentence under the Hudood Laws. He also subsequently filed Appeal No,26/1 of 1991 through counsel. Convict Ghulam Askari filed Criminal Appeal No,25/1 of 1991 but he was also given a Suo Motu Notice No,13/1 of 1991 for enhancement of sentence under Hudood Laws. The learned Additional Sessions Judge also forwarded Murder Reference No,1/1 of 1991. Since all the appeals and suo motu notices are inter-connected, judgment in the Jail Criminal Appeal No,24/1 of 1991 shall dispose of the other appeals and suo motu notices and murder reference.
12. It shall be seen that there is no eye-witness of the occurrence. P.W.9 Mst. Najma Hakeem had woken up on 28-10-1989 by appellant Ghulam Askari and she found her mother Mst. Taj Bibi lying murdered on her bed. Mst. Najma had got up that morning on the knock at her door made by appellant Ghulam Askari who had informed her that he had knocked at the door of her mother but there was no response. The entire prosecution case against both the appellants is dependent upon the statement of accomplice Muhammad Saeed who was tendered pardon under section 337, Cr.P.C. And then his statement was recorded on 8-3-1989. It has come in evidence that he was kept in the police station for about 4 months and thereafter he volunteered to become an approver.
Appellant Ghulam Askari was employed in the house of the deceased during the days of occurrence whereas appellant Arif Hussain had also worked as servant in the house at some time.
Mansif Ali brother of the latter appellant had never been employed in that house. No suspicion of any kind was disclosed against any of these appellants by the complainant party. There is also nothing on the record to show any connection between both the appellants, acquitted accused and Muhammad Saeed approver except that he was a co-villager of appellant Muhammad Arif.
However, appellant Muhammad Arif and Mansif Ali acquitted accused are brother inter se but that does not prove that they were culprits. It is also pertinent to note that approver Muhammad Saeed did not say anything about accused Mansif Ali and that is why the learned trial Judge acquitted the latter.
13. Under the provisions of section 337, Cr.P.C. a person who is a party or privy to the offence and has taken some active part in the commission of the offence can be tendered pardon on the condition that he would disclose the true facts of the offence and would not conceal anything.
When we examine the statement of approver Muhammad Saecd made before the Magistrate on 8-3-1989 on the touchstone of the principles laid down in section 337, Cr.P.C. We find that he had not taken any part in the commission of the offence besides the fact that he only stood guard at the door. According to his statement the murder, the Zina with the dead body and theft were committed by Arif Hussain alias Muhammad Arif and Ghulam Askari appellants, while he himself was not a party to any of the aforesaid offences. It shall thus be seen that he was neither an accomplice nor privy to the offence. After carefully going through his statement we have come to the conclusion that he did not tell all the truth and violated the condition of grant of pardon.
14. There is another factor which has agitated our minds very much. The testimony of the approver does not find any corroboration from any other circumstance of the case. It has been contended that a watch, which allegedly belonged to the deceased, was recovered at the pointation of appellant Ghulam Askari and this circumstance furnishes corroboration of the testimony of the approver. However, this circumstance is not free from all doubt. Actually appellant Ghulam Askari had offered to point out the stolen money which he did hide in the cabin of the motor for supply of water but instead of money a watch was found. It is also interesting to note that the lone witness of the memo. Which was prepared after the recovery of the watch is Mir Abdullah but he was not produced as a witness. The recovery of watch was made by P.W.25 Gohar Zaman Sub-Inspector but the solitary witness of the recovery memo. Was abandoned. It shall thus be seen that the episode of recovery of watch had not only become doubtful but the very recovery remained unproved. Another attempt was made to find some corroboration for the sole testimony of the approver in that both the appellants and the approver were alleged to have pointed out the place of occurrence while they were in police custody. Pointing out the place of occurrence is not a circumstance which could be used as a corroborative piece of any testimony. Even otherwise this corroboration was of no use for the proof of the solitary statement of the approver because both the appellants had worked as servants in the bugalow and they knew all the rooms and other places in that bungalow. It shall thus be seen that there was not an iota of evidence on the record to corroborate the testimony of the approver.
15. There is also one more circumstance which has attracted our attention very seriously. P.W.18 Syed Safeer Hussain Shah S.H.O. Had carried out immediate investigation of the occurrence when he went to the spot and recorded the report of Mst. Najma Hakeem. He had also taken into possession the bed-sheet and mattress of the bed on which the dead body was lying. He had sent cuttings of these articles to the Chemical Examiner but no report about any semen stains was received from the latter. In the month of March, 1989 it was disclosed by the approver that both the appellants had committed Zina with the dead body but strangely enough cuttings of the bed- sheet and mattress were again sent to the Chemical Examiner after one year in the month of December, 1989 and then the report of the Chemical Examiner disclosed that the cut pieces were stained with semen. It is very strange that such stains could be detected after a lapse of one year.
After recording the statement of the approver in the month of March, 1989 it had come to light that both the appellants had committed Zina with the dead body but pieces of the bed sheet and mattress were sent with a delay of nine months.
16. After careful consideration of the aforesaid circumstances we have come to the conclusion that the approver had not made a clean breast to all the circumstances of the case, that there was no corroboration whatsoever of the circumstances disclosed by him and that there was no evidence at all on the record to connect the appellants with the commission of the offence.
17. For the aforesaid reasons we accept the appeals filed by appellants Arif Hussain alias Muhammad Arif and Ghulam Askari and acquit both the appellants for the offences for which they were convicted and sentenced. They shall be set at liberty forthwith if not wanted in any other cases.
Since the co-accused Muhammad Saeed, who was made approver, did not comply with the condition of pardon and wilfully concealed the circumstances of the case he is ordered to be arrested and tried in accordance with law.
' Murder reference is not accepted and answered in the negative accordingly.
' In view of the above, Suo Motu Notices Nos.13/1 and 15/1 of 1991 stand discharged.
' The aforesaid are the reasons of our short order dated 15-4-1992.