' M. A. GHAFOOR KHAN LODI% J.-Shah Muhammad son of Wali Mohammad aged 34 years was tried and Convicted by the learned Additional Sessions Judge, Lahore under sections 302 and 201, P. P. C.
And sentenced to death under section 302, P. P. C. And to 4 years' R. I. And fine of Rs, 2(X) or to undergo six months' R. I. In default of payment of fine under section 201, P. P. C. On the allegation that he along with Mat. Sarwar Begum had murdered Muhammad Hayat deceased. The appellant has preferred Appeal No, 8401 of 1972 against the conviction and sentence and the learned Additional Sessions Judge, has made Murder Reference No, 5 of 1973. Who appeal and the murder reference will be decided together through this judgment.
2. The facts of the case briefly stated are that Muhammad Hayat deceased took up service with the Mercantile Company, 44-Brandreth Road, Lahore and put up along with his family in a rented quarter situated on the upper storey of the Company in which he was employed. The appellant was living in the room adjacent to the quarter of the deceased and on account of neighbourhood the deceased and the appellant had been lint upon each other which facilitated the developing of illicit connection between the appellant and Mst. Sarwar Begum, widow of the deceased. The appellant and Mat. Sarwar Begum conspired to murder the deceased when Mat. Sarwar Begum showed her inability to get divorce. The appellant brought four capsules containing some intoxicating drug. 25 yards of plastic and a Chhura. The contents of two capsules were removed and salt was put in them and they were separately wrapped in a piece of paper whereas the intoxicating two capsules were put in separate piece of paper and some identification mark was made on it. The appellant took the deceased to his own rcom for taking tea which was to be prepared and brought by Mat. Sarwar Begum there. At about 10 p.m. When the children of the deceased had gone to sleep, Mst. Sarwar Begum served tea to the deceased and the appellant.
The appellant put the intoxication capsules in the cup of the tea meant for the deceased and put the capsules containing salt in his own cup. A short time after taking tea the deceased started dosing and ultimately became unconscious. The appellant brought a Chhura from the almirah and cut the neck of the deceased up to its half. With another stroke he totally removed the neck from the trunk. On the asking of the appellant Mat. Sarwar Begum brought an attache-case and an empty bag. The appellant cut the dead body into two pieces near umbilicus and after removing a golden ring from the finger and a watch from the wrist of the deceased, he wrapped the upper part of the dead body in the plastic already purchased by him. The plastic was tied with ropes and put in the attache-case. He wrapped the lower porticn of the dead body in another piece of plastic and put it into a sack. The head was wrapped in another piece of plastic and was placed in a bag.
Blood was washed and cleaned. Bloodstained bedding, the clothes of the deceased and the blood-stained clothes of Mat. Sarwar Begum were burnt. The appellant took away the attache- case containing the upper part of the dead body and returning a bit before sun-rise told Mat.
Sarwar Begum that he had placed the attache-case in a train bound for Sargodba. At Isha time the appellant took away the sack containing the lower portion of the dead body and on returning at about 11 or 12 mid-night he told Mst. Sarwar Begum that he had left the sack in Badamibagh. In the morning the appellant took away the head, coat and shoes of the deceased and the Chhura and on his return at about 9 a.m. Told Mat. Sarwar Begum that while going to Sheikhupura he had thrown all the articles in a canal.
3. Bashir Abmad, cousin of the deceased, made application P. F./1, at the Police Station Naulakha stating that Mat. Sarwar Begum had gone to Bolah Shah where she disclosed that the deceased had left at 8 a.m. On 15-3-1970 and had not returned. That Muhammad Sharif informed Bashi!.
Ahmed on 25-3-1970 at 3 p.m. About the disappearance of the deceased. That Mat. Sarwar Begum had told Sardar Muhammad after three or four days of the disappearance of the deceased that the deceased bad gone to Sheikhupura. It was also stated in the said application that the deceased had told him when he had visited him in Mouza Faiapur Kalan that Mat. Sarwar Begum had received Rs, 400 secretly from their neighbour Shah Muhammad and that he was apprehending danger from her. It was also stated in the application that Mst. Sarwar Begum had got murdered the deceased from her paramour. Aslam Beg Head Mali Minto Park found in the presence of many persons a sack in the Minto Park which was attracting a large number of flies. On opening, the lower part of a dead body of a male person was found wrapped in a plastic sheet.
Aslam Bes Head Mali thereupon made written report P. A. To Safdar Hussain A. S. L Police Post Badami Bagh. Muhammad Na;ir S. I., P. W. 23 seized the gunny bag and sent the lower part of the dead body to the hospital for autopsy. Fahim-ud-Din finding an attache-case floating in the canal which on being opened was found to be containing the upper part of a human body without head wrapped in a plastic bag, reported the matter to Manzur-ul-Hassan A. S. I. Police Station Sadar, Sargodha who prepared the formal F. I. R., P. A./1 from the report P. A.
4. The appellant is alleged to have gone to Haji Muhammad Ibrahim P. W. 20 on 2nd April 1970 and made an extra-judicial confession stating that he with the assistance of Alit. Sarwar Begum had murdered Muhammad Hayat, Haji Muhammad Ibrahim sent a ruqqa Bah. P. J. Through Ch. Muhammad Yagoob to the Inchargo Police Station, Naulakha Informing him about the presence of the appellant with him. Ch. Muhammad Aslam Jaura, Inspector, Police Station, Misri Shah, Lahore reaching there, arrested the appellant and removed from his person the wrist watch P. 3 and golden ring P. 2 on his disclosure that the said articles belonged to the deceased. The appellant is alleged to have led Ch. Muhammad Aslam, Inspector on 6-4-70 to the shop of Riaz P. W. Stating that he had purchased the plastic sheet from there. He is also alleged to have taken the same Inspector on the same day to Minto Park stating that there he had thrown the dead body of Muhammad Havat deceased. The appellant is also alleged to have pointed out a place at Upper Chanab Canal near Khanpur Thal situated at a distance of 10 miles from Lahore, stating that he had thrown the Chhura there. Ghulam Haider P. W. Was made to dive in the Canal who after mating a long search brought out Chhura P. 6, Golden ring P. 2 was identified to be belonging to the deceased by Meraj Din. Goldsmith, Muhammad Sharif and Bashir Ahmad Javid. Muhammad Bashir also identified wristwatch P.
5. The post-mortem examination of the upper portion of the dead body revealed that it was the dead body of some unknown person. According to the doctor the head had been removed from the neck and the lower part of the body was missing above the umbilicus. No mark of any injury was found on the chest. In the opinion of the doctor the death had occurred due to shock and haemorrhage caused by decapitation and removal of lower part of trunk along with lower extremeties.
6. Mat, Sarwar Begum was made an approver and the learned Sessions Judge based the conviction on her evidence coupled with the evidence of the recovery of blood-stained Chhura P. 6, articles of the deceased, namely, finger ring P. 2, and wrist watch P.
3. The statement of Mat. Sarwar Begum is almost the same as narrated in the facts of the case above. Learned counsel for the appellant has argued that since the recoveries were made before the statement of the approver was recorded, conviction could not be based on the said statement.
There is no hard and fast rule on the point that the statement of the approver should not be believed if the corroborative evidence has been received before the statement was recorded, but still this possibility is to be excluded before accepting the evidence of the approver that the facts already known to the police were not tutored to the approver. In the present case such a possibility cannot be excluded. Mat. Sarwar Begum gave full details about the disposal of the three parts of the dead body along with plastic sheets, Chhura, bags, finger ring and wrist watch of the deceased. The witness also gave the particulars of the places where the parts of the dead body were thrown by the appellant. She could be interested in the disposal of the dead body but it was unnecessary to tell her the manner in which and the places where the pieces of the dead body were thrown. The same thing may be said about the disposal of the Chhura. It, therefcre, appears that since all these matters had come to the knowledge of the police before the statement of the approver was got recorded they were taught to her. Even otherwise the conviction cannot be based on the sole testimony of the approver, because such kind of witness being a self-confessed criminal is under the temptation of saving his own skin. Th possibility cannot be excluded that Mst.
Sarwar Begum approver murdered the deceased with the assistance of some other person and in order to say the real culprit has deposed against the appellant. In order to marry with another person she went to the extent of taking the life of her husband with whom she had spent 12 years and had three children from him. Therefore, it would be quite unsafe to rely upon the testimony without any material corroboration. In this connection reliance may be placed on Muhammad Bar* v. State (1) and Yaru v. The State (2). Except her own statement there is no evidence that she was carrying on with the appellant. Bashir Ahmed Javid no doubt wrote in his application P. F./1 that the deceased had told his sister's son Manzur Ahmed that Mst. Sarwar Begum had received secretly Rs, 400 from Shah Muhammad appellant and that he apprehended danger from her but the said Bashir Ahmed Javid did not state so in his statement. Moreover, what Bashir Ahmed wrote P. F./1 is hearsay because he does not say that he himself had heard the deceased telling Manzur Ahmed what is written in report P. F./1 and Manzur Ahmed was not examined as witness. If the deceased had been of the opinion, or suspected that Mat. Sarwar Begum had illicit connection with the deceased, he would not have allowed the appellant to visit his quarter nor would have taken the capsules in the tea. So there Is no corroboration of this part of the statement of Mat. Sarwar Begum that she had developed illicit connection with the appellant. Other kind of corroborative evidence is also wanting. No doubt evidence of the recovery of ring P. 2 and wrist watch P. 3 had been produced but the very story of the arrest of the appellant is doubtful. The appellant is alleged to have been got arrested by HO Muhammad Ibrahim P. W.
20. The said witness stated that the accused came to him at Gujranwala and told him that he had murdered Muhammad Hayat with the assistance of his wife, namely, Mst. Sarwar Pegum and asked him for help. There appears to be no reason why the appellant would have made confession befcre Haji Muhammad Ibrahim P. W.
20. When the appellant had taken every precaution to conceal the murder of the deceased and had completely done away with the dead body and every incriminating article it is difficult to believe that all of a sudden he would change his mind and decide to make a confession - before the said witness. The prosecution has not shown any circumstances which compelled the appellant to make the confession and to seek help from bim. The other improbability is that in normal circumstances Haji Muhammad Ibrahim P. W. 20 would have informed the local Police, Gujranwala but be stated that he sent ruqqa P. J. To Incharge Police Station Naulakha, Lahore. This is further strange that the appellant who is alleged to have gone to P. W. 20 early in the morning remained with him up to 1-30 p.m. When he was arrested by the police. P. W. 20 did not state that he had detained th appellant on some pretext. Before the Committing Magistrate this witne stated that he was not on speaking terms with the appellant. This is strang that he made confession before a person and sought help from him wi whom his relations were strained. Again it does not stand proved tha {{FOOT NOTE}}
(1) PLD 1971 SC 447 (2) PLD 1959 Kar. 662 {{FOOT NOTE}} in reality P. W. 20 sent any information to the Police Station Naulakha, Lahore. He stated that he sent ruqqa P. J. Through Talib Hussain P. W. But the said Talib Hussain was not examined and Ch. Muhammad Yaqub who at that time was Inspector. Police Station Naulakha, Lahore, stated that Haji Muhammad Ibrahim P. W. Had never sent any ruqqa to him in connection with this case. Ch. Muhammad Aslam Jaura, the then Inspector, Police Station Misri Shah no doubt stated that on 2nd April, he had received ruqqa P. J. Sent to him by Ch. Muhammad Yaqub P. W. 14 Inspector Police Station, Naulakha through Talib Hussain but when the said Inspector does not state that he either received any ruqqa from Haji Muhammad Ibrahim or sent it to Ch. Muhammad Aslam, the whole story stated by Hsji Muhammad Ibrahim P. W. 20 relating to the arrest of the appellant and the removal of golden ring P. 2 and wrist watch P. 3 from his person falls to the ground. The result is that as the recovery of golden ring and watch P. 3 alleged to be belonging to the deceased is doubtful, the appellant does not stand connected with the murder of the deceased. This is also noteworthy that Merej Din P. W. 17 and Muhammad Basbir who identified ring P. 2 and watch P. 3 stated that both these articles were of common pattern. They did not give any special identification mark by which they identified the two articles. Anyhow, even if there evidence is relied upon, still the very recovery of the articles is not beyond doubt, this piece of evidence does not give the necessary corroboration to the statement of the approver.
7. The recovery of Chhura P. 6 also appears to be a made-up affair. According to Cb. Muhammad Aelam Inspector P. W. 22 the appellant was arrested on 2-4-70 and he got recovered the Chbura on 6-4.70 but the recovery memo of the Chhura P. E. Bears the date as 16-3-70. Still further according to Mushtaq Ali P. W. 18 the appellant was on duty on 30-3.70 when he was taken away by the Police on the said date. So the recovery Memo. P. E. Which carries the date as 16-3-70 is manifestly a fictitious document. When the memo., itself is fictitious the very factum of the recovery of the Chhura comes out to be a fabricated piece of evidence.
8. No doubt evidence had been produced that the appellant showed the place where he is alleged to have thrown the lower part of the dead body but as the information given by him did not lead to any discovery, whatever B he stated before the police is not admissible in evidence not being covered by section 27 of the Evidence Act. The said section applies only when some discovery is made at the instance or pointing out of the accused. The appellant is alleged to have shown the shop of Riaz Masood P. W. 21 but as nothing was recovered from the shop, the evidence of this witness too is not admissible. Moreover, the plastic sheets alleged to have been purchased by the appellant from Riaz Masood P. W. 21 were not got identified from this witness. The other defect in this evidence is that no identification parade was held for getting the appellant identified by the said witness. So for this reason also his evidence that he was the appellant who had purchased plastic sheets from him cannot be relied upon. This witness did not state that the appellant was known to him before he had brought the plastic sheets. This is noteworthy that no counterfoil receipt or copy of any cash memo was produced by P. W. 21 showing that it was the appellant who had produced the plastic sheets.
9. The result of all this discussion is that there is not an iota of evidence on the record which may corroborate the testimony of Mst. Sir war C Begum approver. So the learned Additional Sessions Judge was not justified in convicting the appellant. The prosecution failed to prove the case beyond any shadow of doubt. We, therefore, accept the appeal of the appellant and setting aside the conviction and sentences under sections 302 and 2P1, P. P. C. Acquit him. The sentence of death awarded to him by the learned Additional Sessions Judge is not confirmed.