' MUHAMMAD SIDDIQUE, J.-The present appeal arises out of the following facts and circumstances:- ' Mst. Jannat Bibi P. W. And Mst. Hussain Bibi (given up P. W.) are real sisters. Mst. Hussain Bibi was issueless while Mst. Nasim Akhtar P. W. Was the daughter of Mst. Jannat Bibi P. E. Their brother was Muhammad Sharif whose son was Rashid deceased. Mst. Hussain Bibi adopted Mst. Nasim Akhtar P. W. As well as Rashid deceased from their childhood. When they grew up Mst. Hussain Bibi married Mst. Nasim Akhtar P. W. With Rashid deceased. The couple was living with Mst. Hussain Bibi at village Kharak. Said Mst. Hussain Bibi got purchased one rickshaw on instalments for Rashid deceased who after about a year sold the same. Ishaaq appellant and Rashid deceased were on visiting terms. On the day of occurrence the appellant went to the house of Mst. Jannat Bibi in village Jhugian Nagara and took away the deceased Rashid with him. Thereafter the deceased was not seen alive. Mst. Hussain Bibi and Mst. Jannat Bibi claim to have made their efforts to trace out and to know the whereabouts of the deceased but without any success. They also got an announcement broadcast from the radio about the disappearance of the deceased requesting that he should return to his house. Mst. Hussain Bibi submitted an application. Exh. D. A. To the Senior Superintendent of Police, Lahore against Ghulam Nabi, Muhammad Ishaaq and Noor Muhammad sons of Ahmad Din Ansari resident of Jhugian Nagara. It is mentioned in this application that earlier she had submitted a similar application to the local police which summoned Ghulam Nabi and Ishaaq appellant and started investigation. But during the investigation one Hakim Ali B. D. Member and lambardar approached the police and through his personal influence got both these accused persons out. It is further mentioned in the said application that Sardar Muhammad and Rehmat Ali brothers of said Hakim Ali were also involved with the said accused persons and for that reason Hakim Ali got them out. She suspected in this application that since the deceased was having a sum of Rs, 10,000 so he has been murdered to obtain the said amount. On 6-4-70 this application was marked to D. S. P., Old Anarkali to look into it personally and report facts. On the same day he in turn marked it to S. H.
0. Nawan Kot for necessary legal action and report. The S. H.
0. Further marked it to A. S. I. Nawan Kot and to do the needful. However it is clear that ultimately no positive action was taken by any officer on the said application and the death of Rashid deceased remained a dilemma. It is not denied that similar application was also submitted on 8-4-70 by her to the Martial Law authorities. The fate of it however is not known. S. H.
0. Ghulam Ahmad Shah (P. W. 16) on 10-4-70 at 4-15 p.m. Recorded a report Exh. P. F. And registered a case under section 364, P. P. C. Indicating that he received secret information that about five months prior Rashid deceased came to see his mother-in-law in Jhugian Nagara and in the evening he was taken by Muhammad Ishaaq appellant and after that he never returned. It was suspected in this report that Muhammad Ishaq appellant with the connivance of other accused persons had murdered said Rashid because the appellant wanted to marry Mst. Nasim Akhtar wife of Rashid deceased. After recording this report he along with some police constables reached the spot and started the investigation. He recorded the statements of the witnesses under section 161, Cr. P. C. He arrested Ishaaq appellant on 11-4-70 He submitted an application Exh. P. G. On 11-4-70 to the Assistant Commissioner, Lahore who deputed the Duty Magistrate for the exhumation of the dead body at the instance of the appellant. Since the Ilaqa Magistrate was busy, therefore, Mr. C. J.
Pervaiz, M. I. C. Was deputed to supervise exhumation vide order Exh. P. W. 6/5. The Deputy Police Surgeon was also directed to be present at the time of exhumation. However, it was on 16-4-70, when the Investigating Officer, the Magistrate and the Deputy Police Surgeon started for Jhugian Nagara on a taxi. The appellant was, however, taken separately by the foot constables in a tonga.
On his way the Investigating Officer presented an application Exh. P. W. 6/3 to the Magistrate for recording the statement of Ishaaq appellant under section 164, Cr. P. C. The appellant was left with the Magistrate_ and the Investigating Officer remained aside. On the receipt of this application the Magistrate (Mr. C. J. Pervaiz) reached the estate of Babu Sabu where Ishaaq appellant was produced before him in police custody. The Magistrate made the police to go away while the appellant remained with him. He then explained to the appellant that he was Magistrate and the statement made by him could be used against him in evidence. On the said explanation the appellant volunteered to make the statement. Thereafter the Magistrate put the questions to the appellant which are recorded in Exh. P. W. 6/1. The Magistrate stated that he was satisfied that the appellant wanted to make a statement voluntarily. Thereafter he recorded the statement of the appellant which is Exh. P. W. 6/2 and the same was read out to the appellant who after admitting it to be correct appended his thumb impression. After recording of his statement the appellant was again handed over to the police custody. The appellant then is alleged to have led for pointing out the place the tubewell of Syed Altaf Hussain. This place was arranged to be dug out through Muhammad Ali son of Haji Wahab Din of Jhugian Nagara. The dead body was discovered lying south-east position after digging the place upto foot. The dead body was not identified by Mst.
Hussain Bibi and Muhammad Sharif, as of Rashid deceased. The Investigating Officer then prepared the inquest report Exh. P. J. And vide application Exh. P. K. Requested the Deputy Police Surgeon who was present on the spot to perform the postmortem examination of the dead body.
The Investigating Officer also got prepared the site plan Exh. P. D. From the patwari. The clothes of the deceased consisting of a khes, shalwar khadar and a vest P. 3 to P. 5 were handed over by the doctor to the Investigating Officer after the postmortem examination which were taken into possession by him vide memo Exh. P. C.
2. The Investigating Officer arrested Muhammad Bashir accused on 17-4-70. On 18-4-70 he got recovered kassi P. 1 which was taken into possession by the Investigating Officer vide memo Exh. P.
E. On 21-4-70 the said Bashir got recovered golden ring Exh. P. 2 from an orchared near his house and the same was taken into possession vide memo Exh. P. B. On 23-4-70 the said Bashir expressed his desire to become an approver in the case. Accordingly the Investigating Officer made an application Exh. P.
0. To the Deputy Superintendent of Police, incharge of the area which was ultimately presented to the District Magistrate, Lahore who granted him the pardon. The statement of Bashir was recorded by the Duty Magistrate. The Investigating Officer then made another application Exh. P. S. To the Magistrate for sending the approver to the judicial lock up after his statement was recorded. The Magistrate made an order Exh. P. A/3 on the said application. After the usual investigation the police challaned Muhammad Ishaaq appellant under section 302, P. P. C. He was tried by the Additional Sessions Judge, Lahore who vide impugned judgment dated 15-10-1974 found him guilty under section 302, P. P. C. For the murder of Rashid deceased and sentenced him to life imprisonment and also to pay a fine of Rs, 500 the 3/4th of which was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C. The appellant has challenged his conviction through the present appeal. A suo motto notice for enhancement of sentence was also issued to him by this Court on 11-12-1974 in Criminal Revision No, 903 of 1974.
Since both the Criminal Appeal as well as the Revision arise out of the same judgment, both will be disposed of by this single judgment.
3. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegation.
Before the Inquiry Magistrate when asked if he had anything else to say he stated as under: "I am innocent. I have been falsely implicated in this case. Bashir approver is friend of Noor Muhammad and others and he has made a false statement on their asking. It was due to promises of help in the case that he was made an approver. I have not committed this murder."
' Before the trial Court he denied that Muhammad Bashir approver was his friend. He, however, admitted that he had an acquaintance with him as he was living in the same village. When asked if he had illicit relations with Mst. Nasim Akhtar, the wife of Rashid deceased the appellant denied the suggestion and stated that she was treated by him just as a sister. He also denied the fact that on 16-4-70 he made a confessional statement before Mr. C. J. Pervaiz, Magistrate Ist Class. When asked why this case was made against him he stated as under: "I have falsely been implicated in this case due to the enmity with Noor Muhammad, Hussain Bibi, Jannat Bibi and other witnesses with me and my family for the abduction of Mst. Rehmat the wife of my elder brother Shah Muhammad by one Shamas Din etc. The said Shamas Din and others were challaned and were forced to leave village Jhugian Nagara and had to settle at Chamrapur.
They returned to village Jhugian Nagara after many years. Mst. Jannat is related to Shamas Din mentioned above and she got an occasion to implicate me in this case due to the above mentioned enmity through them."
' However the appellant produced no evidence in defence.
4. In support of its case the prosecution relied upon the evidence of motive, the fact of deceased last seen alive with the appellant, the statement of Muhammad Bashir approver, the retracted judicial confession of the appellant, the exhumation of the dead body at the instance of the appellant and the recoveries of the articles of the deceased and the weapons of offence. The trial Court believed the prosecution evidence and convicted and sentenced the appellant as mentioned above.
5. We first take up the question of motive. In order to establish motive against the appellant the prosecution produced Atta Muhammad (P. W. 6), Mst. Nasim Akhtar (P. W. 7) Mst. Jannat Bibi (P. W.
9) and Hakim Ali (P. W . 17) before the C. M. According to the prosecution allegation Ishaaq appellant had illicit relations with Mst. Nasim Akhtar wife of the deceased and in order to remove the deceased from his way he was murdered so that the appellant could marry her. It was for this purpose that the appeliant conspired with Bashir approver and in that conspiracy he was taken to the tube-well of one Muhammad Ali Shah and there he was done to death. However, we find that the prosecution has not established the motive beyond doubt. The evidence of Atta Muhammad and Hakim Ali P. Ws. And Muhammad Bashir approver stands contradicted by the evidence of Mst.
Nasim Akhtar and Mst. Jannat Bibi P. Ws. In cross-examination Mst. Nasim Akhtar has in categorical terms denied the allegations of illicit intimacy with the appellant before or after her marriage with the deceased : "It is incorrect to suggest that I had illicit relations with Ishaq accused before as well as after my marriage with the deceased. The accused never asked me for any immoral act before the deceased left the house. The accused Ishaq never expressed that he wanted to have illicit relations with me. My deceased husband never suspected that the accused Ishaq had illicit relations with me. It is incorrect to suggest that it was generally known in the village that I had illicit relations with Ishaaq accused.
' The learned state counsel however relies upon the statement of Mst. Nasim Akhtar where she has admitted that after the disappearance of her deceased husband she remained with the appellant for about two days when he took her out of her house on the pretext of taking her to a Pir for getting a Taaveez and during these days the appellant solicited her for immoral act and disclosed that he had taken her out for that purpose but she refused. However on this point she was confronted with her statement before the Committing Magistrate where it was not so recorded. The statement of Mst. Jannat Bibi on the question of motive also goes against the prosecution. In her cross- examination she has stated as under: "Mst. Nasim P. W. Had a sound moral character. The illicit relations between the accused and the said Mst. Nasim P. W. Were never suspected either before the marriage with the deceased or thereafter. There was no rumour to suggest such illicit relations. Ishaaq used to call Mst. Nasim as his sister."
' It may be mentioned here that Mst. Nasim Akhtar and Mst. Jannat Bibi otherwise fully supported the prosecution case and they were not declared hostile by the Public Prosecutor. It is not denied that they were the best witnesses to depose about the motive. The evidence of the other witnesses on this point is more or less hearsay. But even the rumour about the illicit intimacy has been categorically denied by these two witnesses. The learned State counsel argues that since Mst.
Nasim Akhtar, after the murder of her first husband Rashid, married another person and therefore in view of this new situation she could not admit the illicit intimacy with the appellant. This is just an inference with the learned State council wants us to draw from certain circumstances. However, in view of the positive statements made by these two ladies totally denying the motive, it is not proper to draw such inference against the defence. On the other hand we find that if certain evidence or circumstances are favourable to the accused the benefit must go to him. Another circumstance which goes against the prosecution in this behalf is that if really there was illicit intimacy between the appellant and Mst. Nasim Akhtar before the occurrence then her conduct after the murder should have been entirely different. The expression 'illicit intimacy' implies that it is by her consent and liking. When the deceased had disappeared then she was absolutely free to avail of this situation and to go with the appellant. She could also marry him. It was after about five months that the F. I. R. In this case was lodged. There is nothing on the record to show that during this long period of five months either the appellant or Mst. Nasim Akhtar exploited this situation to achieve their object. She was taken by the appellant for about two days on the pretext of getting some taveez from a pir for the return of her husband. It was during these two days that the appellant is alleged to have expressed the desire of having sexual intercourse with her but she refused. If there had been illicit intimacy between them earlier, there could be no question of refusal on her part but on the other hand she must have availed of this opportunity. Thus apart from the categorical denial about the alleged intimacy of the appellant with Mst. Nasim Akhtar P.
W. Her subsequent conduct and other circumstances also go against the prosecution. In this situation we are clearly of the view that the prosecution has not established the motive against the appellant beyond reasonable doubt.
6. Another circumstance relied upon by the prosecution is that Rashid deceased was last seen in the company of the present appellant. Reliance in this behalf is placed upon the statement of Mst.
Jannat Bibi P. W. She has stated that on the day when the moon of Ramzan was sighted Rashid deceased came to her. Ishaq appellant came to her house and took the deceased with him and thereafter Rashid deceased was never seen alive by her. No doubt Mst. Jannat Bibi has stated so before the trial Court but it seems that she did not disclose this fact to any one earlier. If this was a fact that the appellant had taken the deceased with him on the day when Ramzan moon was sighted and after that the deceased was not seen alive by her or anybody else then straightaway a case should have been registered against the present appellant. It is no body's case that Mst.
Jannat Bibi P. W. Wanted to favour the appellant in any manner and therefore kept this fact a secret till she appeared in Court as a witness. If the deceased was really last seen in the company of the present appellant then after few days Mst. Jannat Bibi should have confronted the appellant with that fact and the relatives of the deceased should have asked the appellant to explain as to what happened to the deceased after the appellant had taken the deceased on the said day. A complete silence on the part of the complainant for about five months casts serious doubt about the genuineness of this allegation. It may be mentioned here that earlier Mst. Hussain Bibi had been submitting applications to the police as well as the Martial Law authorities and in these applications no such allegation was made against the present appellant. The learned State counsel has not been able to explain the omission of such a material fact from those applications.
Further it is no body's case that the deceased was taken secretly by the appellant after the sun set and except Mst. Jan nat Bibi P. W. He could not be seen by anybody else. After taking into consideration the relevant facts and circumstances we have reached the conclusion that it is not safe to rely upon the circumstance of the deceased last seen in the company of the present appellant because the prosecution has not established this fact satisfactorily.
7. The next item relied upon by the prosecution is the judicial confession made by Ishaq appellant before Mr. C. J. Pervaiz, Magistrate Ist Class. It is an admitted fact that while the appellant was being taken to the place where the dead body was buried near the tube-well of Muhammad Ali for exhumation of the said dead body, an application (Exh. P. W. 6/3) was presented by Ghulam Ahmad Shah, Investigating Officer on 16-4-70 to the Magistrate (Mr. C. J. Pervaiz) that the statement of the appellant under section 164, Cr. P. C. Be recorded. Dr. Chaudhry Nusratulla, Deputy Police Surgeon was also with the Magistrate at that time. It was in this situation that the confessional statement (Exh. P. W. 6/2) of the appellant was recorded at the tubewell of Muhammad Ali. The Magistrate has admitted in cross-examination as under :- "I did not inquire from the accused as -to how long he was in police custody before recording statement. I did not inquire from him if he was being brought from the judicial lock up or Police lock up. It is correct to suggest that most probably I did not ask from the accused about it because he was in the custody of Nawan Kot Police. I did not tell the accused that he will not be handed over to the local police after his statement before me. I do not remember if a police constable was posted or was found standing at the place of exhumation when I reached there."
' The Magistrate has admitted in his statement that after recording the said statement the accused was given in the police custody. Ghulam Ahmad Shah Investigating Officer has stated that he arrested Ishaq appellant on 11-4-1970 and the confessional statement was recorded on 16-4-70. It is an admitted fact that after the conclusion of the statement of the appellant he was re-arrested by the police. The Investigating Officer has admitted this fact in the following words: "On 16-4-70 myself, the Magistrate Mr. C. J. Pervaiz and the Doctor started for Jhugian Nagra towards the river side. On my way I presented an application Exh. P. W. 6/3 to the Magistrate for recording the statement of Muhammad Ishaaq accused under section 164, Cr. P. C. The accused was left with the Magistrate and I remained away. After the conclusion of the statement of the accused, I re-arrested him It is correct that the accused was given to custody after the recording of his statement under section 164, Cr. P. C."
8. It is in this factual background that the learned defence counsel argues that the alleged confessional statement of the appellant is inadmissible in evidence as mandatory provisions of section 164, read with section 364, Cr. P. C. Have not been complied with inasmuch as the Magistrate did not tell the appellant that after the statement he would not be handed over to the same police and did not warn him that he was not bound to make that statement. Further lie did not ascertain from the appellant for how long time he had been in the police custody and whether he was given any inducement or threat etc. For making such confessional statement. Since this application was admittedly presented while the Magistrate alongwith the other members of the party was on the way to the place of exhumation of the dead body, no sufficient time was given to the appellant for composing or thinking over the matter. Lastly it is contended that since after the alleged confessional statement the appellant was handed over to the same police and remained with that police till 19-4-70 the statement by no standard can be said to be voluntary and the mere certificate given by the Magistrate to that effect will not make it so. Moreover it is not explained by the prosecution as to what was the necessity or occasion for recording the statement while going to the tubewell for exhumation of the dead body. The appellant was already with the police earlier and they had ample opportunity to make such an application before the Magistrate in his Court. It is not denied that the legal formalities could not be properly complied with while recording the statement of an accused person while going for the exhumation of the dead body. The Investigating Officer could do so either earlier or on return of the Magistrate to the Court room. It is not clear to us as to what was the special occasion or justification to record the said statement in that manner at that place. The learned State Counsel admits that certain formalizes as laid down by the law have not been properly complied with but according to him the certificate of the Magistrate that he was satisfied that the statement was voluntary could cure the defect, if any, After taking into consideration the background and the circumstance in which the said statement was recorded and the subsequent events till the appellant was sent to the judicial lock up, we feel that it is not safe to rely upon the said confessional statement of Ishaaq appellant.
9. Now, we take up the statement of Muhammad Bashir approver. This statement has been attacked on numerous grounds. According to the learned defence counsel pardon was not granted to Bashir approver after complying with legal formalities before and after recording his statement and the same was not granted by a competent authority. Lastly it is urged that the approver's statement is not corroborated on material points viz-a-viz the implication of the present appellant. We first take up the question of corroboration because it is admitted by the learned State counsel that if the required corroboration is not forthcoming then no reliance can be placed upon the approver's statement. In this behalf the learned State counsel contends that the motive, medical evidence, recovery of the dead body and the recovery of the other articles provide the required corroboration. On the other hand the learned defence counsel argues that so far the present appellant is concerned no corroboration is available against him.
10. We have already disbelieved the motive above. As regards the medical evidence, according to the approver the first kassi blow was inflicted by the appellant on the head of the deceased and the second on the neck. After that he inflicted two or three more blows to the deceased. The approver himself claims to have given kassi blows to the deceased. Thus according to the approver two positive blows are attributed to the present appellant one on the head and the other on the neck. We have minutely examined the postmortem examination report and find that the medical evidence rather belies the approver's version. The opinion of the doctor is reproduced below: "Cause of death, in my opinion, is most probably fracture of skull bones was sufficient to cause death in ordinary course of nature. Fracture skull is by blunt weapon.
' No position is detected in any of the above articles vide C. E. 543/605/ dated 23-4-76."
' There is no mention of any injury on the neck in the postmortem examination report Bashir approver in his statement before the trial Court about this injury has stated as under:- "Ishaq accused thereupon cut off the throat of the deceased."
' In his earlier statement Exh. P. A. He had also stated that the appellant had given a kassi blow on the neck of the deceased. It is not denied even by the learned State counsel that if a blow is giveo with a kassi on the neck then it should have been visible to the doctor at the time of the examination of the dead body and the doctor could not have omitted to mention the same in his postmortem examination report. Similarly as regards the blow on the head the approver has stated that the appellant caused that blow with the kassi. He has nowhere stated that the kassi was used from the blunt side. From the perusal of his statement it is clear that the kassi was used by the appellant in its normal and usual manner i,e, the sharp side of it. The medical report, however, is to the contrary. No other injury was witnessed by the doctor while according to the approver several injuries were caused by both of them to the deceased. However, from the above discussion we find that the statement of the approver is not at all corroborated by the medical evidence.
11. We are not attaching much importance to the recovery of dead body at the instance of the appellant. In order to prove this circumstance the prosecution produced Muhammad Faiz as P. W. 2 before the Committing Magistrate. He stated in that statement that before the arrival of the police at the place of exhumation he along with 100/150 persons was already present there. He had further admitted that before the arrival of the Magistrate and his companions already one constable was guarding that place. The Investigating Officer in his cross-examination has stated that he along with the Magistrate and the doctor proceeded to the place of exhumation in a taxi while the accused was being brought by the police constables on a tonga which reached later on near the garden where they had left the taxi. In these circumstances it is argued by the learned defence counsel that the place of exhumation was already known to the police and it cannot be said that it was pointed out by the present appellant and then the dead body was dug out. If that had been so then how Muhammad Faiz and other 100/150 persons could already reach that place and how the police had already posted a constable to guard that place. Further admission of the Investigating Officer that they went ahead on a taxi while the accused was brought on a tonga by the constables also indicates that the police was already in the knowledge of the place of exhumation. In such a situation we do not think that this circumstance can be used as a corroboration.
12. The Prosecution also relies upon the recovery of ring P. 2 which bears the name of the deceased.
It is however an admitted fact that this ring was recovered at the instance of Bashir approver himself from the courtyard of his own house. He has stated that while burying the deceased in a ditch the appellant had removed this golden ring of the deceased. He has not explained how he got this ring and why he buried the same in his courtyard. However, a perusal of the recovery memo. Exh. P. B. Indicates that he himself had removed this golden ring from the person of the deceased and had buried the same in his courtyard. Thus the recovery of this ring if connects any one with the crime it is the approver himself. It does not in any way connect the present appellant with that ring. Further we find that the prosecution has not explained as to why the approver after removing the same buried it and kept it there for about five months. Generally an ornament of this nature is removed either to sell it as it is or to convert it into gold to avoid its identity. As ordinary accused person would have done one of these things and could not keep it as a proof against him.
Hence we do not think how the prosecution can use the recovery of this ring as a corroboration against the present appellant. It is not denied even by the State counsel that the recovery of the other articles from the person of the deceased like khes, shalwar, banyan, is not of much significance and in any case they do not provide sufficient corroboration against the appellant.
13. Another circumstance which goes against the prosecution and has not been satisfactorily explained is that admittedly Mst. Hussain Bibi made repeated applications to the police as well as to the Martial Law authorities earlier. One of such applications is Exh D. A. Addressed to the Senior Superintendent of Police, Lahore. In this opplication there is no allegation or even a suspicion against the present appellant. On the other hand there are certain other persons who are specifically implicated in this murder. This application has been admitted even by the Investigating Officer but as to the action taken by the police and the ultimate result of it he is silent. The persons implicated in this application by Mst. Hussain Bibi are related to Hakim Ali who was lambardar of village Jhugian Nagara and an Exh. B. D. Member. It is suggested by the learned defence counsel that due to the influence of this Hakim Ali the earlier persons suspec'ed in this murder had been let off and at a very late stage the present appellant has been falsely implicatad.
14. After taking into consideration the entire material available on the record and after hearing the arguments of the counsel for the parties we have reached the conclusion that the case of the prosecution is highly doubtful. There is no direct evidence in this case. There is an element of doubt in every piece of evidence relied upon by the prosecution. Accordingly while giving benefit of doubt to the appellant we accept this appeal, set aside the 4 conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required in any other case.
15. Since we have accepted Criminal Appeal No, 665 of 1974 filed by the accused appellant Criminal Revision No, 903 of 1974 filed by the State stands dismissed.