1. ' MUHAMMAD GUL, J.-Muhammad Arif, the first respondent herein was convicted by a learned Additional Sessions Judge, Lahore under section 302 for the murder of Mst. Nawab Bibi and sentenced to death and a fine of Rs, 500 or in default of payment of fine to rigorous imprisonment for two years. He was also convicted under section 201, P. P. C. For causing the evidence relating to the above offence to disappear and sentenced to 7 years' R. I. And a fine of Rs, 200 or in default to further R. I. For six months. The sentences of rigorous imprisonments were however, to take effect if the death sentence was not confirmed by the High Court. On appeal and a reference, the High Court gave benefit of doubt to the respondent and acquitted him of both the charges. This petition by the deceased's husband, who is also the first informant, is directed against the acquittal judgment of the High Court dated 22-2-1974.
2. ' Mst. Mehraj Begum was discharged by the Committing Magistrate, because there was complete want of evidence to connect her with the crime.
3. ' Mst. Nawab Begum and her husband were residents of Kotli Pir Abdur Rehman in P. S. Moghalpura, where she owned a small house. According to the prosecution, she had sold this house to an unidentified person for Rs, 3,000 through the good offices of Mst. Mehraj Begum and had received Rs, 500 in part payment of the price leaving the balance payable at time of the registration of the sale deed. Through the good offices of Mst. Mehraj Begum, the deceased also entered into an agreement for the sale of a bigger house from one Subedar Muhammad Ashraf for Rs, 4,500 and had paid Rs, 500 as earnest money for which she had also obtained the receipt. The transaction was to be completed sometime later. During these days, the petitioner had gone to Sahiwal, where he had taken a fruit-garden on contract for the fruit bearing season and had taken up residence in the garden to guard against any possible pilferage of the fruit. It seems that Mst. Nawab Bibi had lost the receipt executed in her favour by Subedar Muhammad Ashraf regarding the payment of earnest money for the house which he had agreed to sell to her. The deceased requested Mst.
4. Mehraj Begum to ask her son, the respondent herein, to accompany her (the deceased) to Subedar Muhammad Ashraf to secure a duplicate receipt of the earnest money.
5. ' On 29-4-1970 pursuant to the request made by the deceased, the respondent called at her residence in her absence three or four times with a view to accompanying her to Subedar Muhammad Ashraf to obtain the duplicate receipt. She had however, gone to attend some labour case and therefore, the respondent left a word with the deceased's daughter Mst. Saleema Bibi (P.
6. W.
7. 8.) to tell her mother that he had taken a day off especially to accompany her to Subedar Muhammad Ashraf to secure a duplicate receipt and that she should direct her mother as soon as returned, to come to the respondent's house so that they could both go to Subedar Muhammad Ashraf, to get the receipt.
8. ' The deceased returned home in the evening and proceeded to the respondent's house as the latter had desired. Before going to the respondent's house, she had also taken Rs, 20 in two currency notes of Rs, 10 each from Mst. Saleema Bibi and an empty container of Tullo brand vegetable ghee, so that she could purchase Desi ghee from Baghbanpura for her daughter. The deceased was seen entering the house of the respondent by Haji Nazir Ahmad (P. W. 11) but was never seen alive thereafter. When the deceased did not return home, Mat. Saleema Bibi informed her father the petitioner herein) at Sahiwal about the sudden disappearance of her mother. The petitioner reached the village on 1-5-1970 and reported at the P. S. On 2-5-1970 about the disappearance of his wife, vide P. W. 7/1. In this report he did not suspect any named person of having a hand in the disappearance of the deceased or any foul play. The petitioner however, undertook to apprise the police to any further information which he might receive about the disappearance of his wife in mysterious circumstances. On 5.5-1970, the petitioner lodged a fresh report (Exh. P. A.) in which he suspected the respondent and his mother Mst. Mehraj Begum as having a hand in the sudden disappearance of his wife. In this report, he referred to the two transactions viz., the sale by the deceased of her previous house and the agreement by her for the purchase of the house from Subedar Muhammad Ashraf and the circumstances which led to the deceased to make a request to Mst, Mehraj Begum to help her in securing a duplicate receipt for the earnest money paid to Subedar Muhammad Ashraf.
9. ' At the time of the respondent's arrest, key (Exh. P. 1) was also recovered from him which was applied to a trunk placed in the respondent's house and Rs, 2,520 in currency notes were recovered alongwith a black canvas bag (Ex. P. 6). The bag was also identified to be that of the deceased.
10. ' According to the medical evidence, Mst. Nawab Bibi died of asphyxia caused by strangulation, one to two weeks prior to the examination. The dead body at the time of autopsy was in advance stage of decomposition, and had both the legs and arms fractured without any mark of external injury.
11. These fractures in the opinion of the doctor were post-mortem. The respondent had also four parallel almost healed abrasions 11 x1/8 on his neck.
12. ' There is no eye-witness of the occurrence and the prosecution case rests entirely on the circumstantial evidence consisting of the following items namely:-
(i) the evidence of Mst. Salima Bibi giving !The background which led the deceased to go to the respondent's house in the evening of 29-4-1970;
(ii) the deceased was seen entering the respondent's house, by Haji Nazir Ahmad (P. W. 11);
(iii) the discovery of the deceased in a gunny bag alongwith tin (Exh. P. 2) from the well at the pointing out of the respondent;
(iv) the respondent's admission about the throwing of the dead body of the deceased in Chah Angraizsingh Wala;
(v) the recovery of Rs, 2,520 from the trunk in the respondent's house along with canvas bag (Exh. P.
13. 6), which also contained two notices issued by the Municipal Corporation and addressed to the deceased; and the existence of four semi-healed abrasions on the front of the neck of the respondent.
14. ' The respondent pleaded not guilty and denied having made any admission before the police which led to the discovery of the dead body from the well. Explaining the abrasions on his neck, he stated that he was employed as a turner and received the injuries in the course of his employ. Ment when he was struck by leather patia. The respondent denied the recovery of bag (Exh. P. 6) and disclaimed ownership of the money. He however, stated that the police had recovered only Rs, 1,000 from the trunk, which his parents had saved for his marriage.
15. ' The learned trial Judge came to the conclusion that the above circumstantial evidence taken together establishes the guilt of the accused beyond reasonable doubt, in the absence of any direct evidence. He also ordered the payment of Rs, 2,520 recovered from the trunk (Exh. P. 6) to the heirs of the deceased.
16. ' On appeal, the learned Judges of the Division Bench however, disbelieved the evidence regarding the respondent's alleged admission about his throwing of the dead body in Chah Angraizsingh Wala. They also did not accept the evidence relating to the circumstances which led to the disappearance of the deceased. In taking that view, the learned Judges were influenced by the prosecution's failure to examine the unidentified purchaser of the house of the deceased who was alleged to have paid Rs, 2,500 to the deceased, a few days prior to her disappearance. Similarly, Subedar Muhammad Ashraf was not examined to prove an essential link in prosecution case which led the deceased to request for the respondent's good offices to help her to obtain a duplicate receipt from seller of the house. The semi-healed abrasions on the neck of the respondent in the opinion of the learned Judges were also satisfactorily explained. Accordingly, the learned Judges accepted the respondent's appeal and acquitted him of the charge. However, as regards Rs, 2,520 which the learned trial Judge had ordered to be paid to the heirs of the deceased, the learned Judges did not interfere, because the respondent did not claim ownership of the same.
17. The learned Judges also thought that the recovery of two receipts did not advance the prosecution case either, because of the intimate relationship between the deceased and Mst. Mehra,' Begum, the deceased Night have entrusted these receipts to Mst. Mehraj Begum. In any event since the house wherefrom these receipts were recovered, was not in exclusive possession of the respondent, the recovery of the receipts can hardly sustain the conviction of the respondent. On the above assessm ent of the circumstantial evidence, the learned Judges therefore gave benefit of doubt to the respondent.
18. Learned counsel for the petitioner assailed the above conclusion of the learned Judges of the High Court and the reasons upon which it was based. He stressed that the cumulative effect of the circumstantial evidence irresistibly leads to the conclusion that the respondent's guilt on both the counts had been established beyond reasonable doubt. With this argument, we do not agree. The circumstances proved on the record at best only create a suspicion against the respondent, which is no substitute for proof in a criminal case involving a capital charge. The mainstay of the prosecution case is the alleged admission by the accused leading to the discovery of the dead body of the deceased from the well; this evidence was rejected by the learned Judges for reasons which appear to be sound. If that evidence is excluded, then the essential structure of the prosecution case crumbles.
19. ' The petition is accordingly dismissed.