P L D 1955 Lahore 375 (PLP)

SHABIR AHMAD, J.--‑This order will dispose of a reference under section 374 of the Code of Criminal Procedure made by Mr. Muhammad Din, Sessions Judge, Gujranwala, for the confirmation of the sentence of death imposed by him on Iftikhar‑ud‑Din, son of Ahmad Din, a Kashmiri Butt of Gujranwala, as well as the appeal of the condemned man against the sentence of death under section 302 of the P. P. C. and concurrent sentences of seven years each under sections 201 and 397 of that Code which sentences of imprisonment are to come in force only if the sentence of death is not confirmed by this Court. The case relates to the murder of Haji Nizam Din of Naushera in the N.‑W. F. P., who died in Gujranwala City in the end of December 1951. The exact date of the death of Haji Nizam Din is not known but according to the prosecu tion case it was the 24th of December 1951. Haji Nizam Din, who was a dealer in trunks, had come to Gujranwala with a large sum of money to make some purchases. The prosecution case was that in order to take the money of Haji Nizam Din, the appellant and one Sadiq killed him and thereafter buried his dead body in a house in Gujranwala City. This is the third time that the case relating to the death of Haji Nizam Din has come before this Court. On the first occasion it came up when Sadiq, who is stated to have been the accomplice of the appellant in the present case, was sentenced to death for the murder of Haji Nizam Din. The appeal of Sadiq was dismissed by this Court and his appeal to Federal Court of Pakistan met with the same fate. In the case against Sadiq, the appellant had been granted a pardon under section 337 of the Code of Criminal Procedure and made an approver. On the 12th of November 1952, the Public Prosecu tor exercising the powers vested in him by section 339 of the Code of Criminal Procedure, granted a certificate that the appellant should be put on his trial as an accused person as he had not complied with the terms and conditions on which immunity from prosecution had been granted to him. It was after this certificate that the appellant was put on his trial. On the 11th of November, 1953, the appellant was sentenced to death under section 302 of the P. P. C., and to seven years' rigorous imprisonment each under sections 201 and 397 of the P. P. C., by Mr. M. A. Rahman, the then Sessions Judge of Sialkot acting as ex‑officio Sessions Judge, Gujranwala. Against the order of Mr. M. A. Rahman, the appellant had put in an appeal Iftikhar‑ud‑Din v. The Crown (Cr. A. No. 902 of 1953=P L D 1954 Lah. 547), which was heard by my brother Ortcheson and myself. It having been found in that appeal that the appellant had not been given adequate opportunity to defend himself because, inter alia, the counsel he did not like to be defended by had been thrust on him by Mr. M. A. Rahman, the appeal was accepted and a retrial ordered.. This retrial was held by Mr. Muhammad Din who passed he sentences which are the subject of the present appeal. There is no eye‑witness of the occurrence and the case rests on the statement which the appellant made as an approver when the case against Sadiq was under considera tion, and recoveries some of which were made at the instance of the appellant. For many days after his departure for Gujranwala, the relatives of Haji Nizam Din did not get any information about him and as he could not be traced, his brother Abdul Aziz made a report at Police Station Gujran wala City on the 16th of January, 1952. This report merely said that Haji Nizam Din had come to Gujranwala with about twelve thousand rupees and as he had not been heard of since, the informant and other relatives of the Haji suspected that Sadiq to whom he had come on a letter going to him from Sadiq had either murdered him or disposed him off in some other manner. The report added that besides money, the Haji had a pocket watch and a pair of spectacles with him. The investigation was taken in hand by Mirza Muhammad Akbar who was then Inspector C. I. A., Staff, Gujranwala. He sent for Sadiq who was not available on that day but 1was arrested on the 17th of January, 1952. On the day of his arrest, Sadiq made a statement which led to the recovery of the dead body of Haji Nizam Din from a room in a house with which a distant relative of the appellant had some connection. The appellant was arrested on the 18th of January 1952 at about 4 p.m. and according to the prosecution gave informa tion which led to the recovery of a pocket watch, a sum of Rs. 6,000 and a wooden hammer. The prosecution case was that the wooden hammer was the weapon with which Haji Nizam Din was done to death, the watch was the one which Haji Nizam Din carried at the time of his death and Rs. 6,000 was a part of the money which was in his possession. The post‑mortem examination of the dead body of Haji Nizam Din by Dr. Ahmad Ali (P. W. 1) on the 18th of January, 1952, disclosed the following three injuries :‑ (1) An abrasion, 2 " x 1 ", anteio‑posterior in direction, above the forehead line, just to the right of the middle. (2) A contused wound, 1 " x ", scalp deep, on the left side of the head, 4" above the ear. (3) A contused wound, 2" x ", deep to skull, 1 " above injury No.

2. In the opinion of the doctor death was due to fracture of the skull from blows given to the deceased on the head with some blunt weapon. The doctor expressed the view that after the receipt of the injuries found on the dead body the deceased could not have walked and must have died within a few hours thereof. The appellant remained in the custody of the police till the 30th of January 1952, on which date he was sent to the judicial lock‑up. On the 31st of January 1952 he sent an application to the District Magistrate, Gujranwala, saying that he was prepared to become an approver if he were granted a pardon. The same day the application was considered by the District Magistrate, who, acting under section 337 of the Code of Criminal Procedure, granted a pardon to the appellant on the condition that he disclosed all facts within his knowledge relating to the murder of Haji Nizam Din. On the 1st of February, 1952, Mirza Muhammad Akbar, Inspector of Police, put in an application that as Iftikhar‑ud Din had been granted a tender of pardon, his statement as an approver should be recorded. It appears that the appeliln4 was taken before Mr. Ahmad Kamal‑ud‑Din, Magistrate 1st Class, Gujranwala, on the 1st of February 1952, but his state ment was not recorded because it was after Court hours that he was taken to the Magistrate. On the 2nd of Februarx1952, however, the statement of the approver was recorded by Mr. Ahmad Kamal‑ud‑Din. The list of this statement was that on meeting him in the bazar on the 24th of Decemne 1951, he and Sadiq had taken Haji Nizam Din (who was described in the statement as Haji Sahib) to the house from which the dead body was recovered on the 17th of January 1952. This, according to that statement, was done because Sadiq said that Haji Sahib was his guest but could not be put up in his house. At that time the deceased had wrapped himself up with a black blanket and did not take his meal On inquiry the Haji Sahib told Sadiq that he had come for Sialkot in a lorry alighting from which he was walking on the road when the bamboo of a tonga coming at a great speed from behind hit him on his right temple which made him fall down The tonga driver did not stop and he getting up was proceed ing to meet Sadiq who met him in the way. The Ha Sahib removed the blanket with which he had wrapped up his face and the light of the lamp which was burning in tic room disclosed that he had a swelling on his right temple. The old man took off his coat and stretched himself on the charpoy. He was asked if a doctor should be sent for but replied that he should not be disturbed and should be allowed to rest. Shortly after the Haji Sahib gave groan, his body started shivering and a few minutes later breathed his last. He made a suggestion to Sadiq that information should be given to the police but Sadiq did not agree as he was afraid that they themselves would be arrested on suspicion, and at last it was decided that the body be buried in the room. He then went and brought a spade with which a pit was dug in the room adjoining the one in which Haji Sahib had breathed his last. As it was not easy to lift the body without the help of a string, Sadiq brought a string with which the arms of the dead man were tied and after lifting it they placed the body in the pit. The pockets of the Haji Sahib which were emptied by them contained a number of notes of Rs. 10 and Rs.

100. The pit was filled up and Sadiq took away the money. On the nest day he went to Sadiq and finding him very perturbed asked him what the matter was. Sadiq replied that as the Haji Sahib had come to Gujranwala at his invitation, he was bound to be suspected of foul play and, therefore, the money should be taken away from his house. He counted the money which they had taken out of the pockets of the dead man and found that it was Rs. 7,

180. Out of this money Sadiq kept Rs. 1.180 while the rest was taken away by the appellant, who himself went to Karachi from where he returned on the evening of the 15th of January 1952. He went to the house of Sadiq to deliver a sum of Rs. 200 given by Sadig's father and learnt that on the previous day Sadiq had been arrested by the police. It must have been fairly obvious to the investigating and the prosecution agencies that the statement made by the appellant before Mr. Ahmad Kamal‑ud‑Din had not gone the length which it was expected to go and there can hardly be any doubt that the appellant would not have been produced as a witness in the commitment proceedings against Sadiq and the subsequent trial had it not been for the provisions of subsection (2) of section 337 of the Code of Criminal Procedure which make it incumbent that an approver must be produced as a witness before the Magistrate taking cogniz ance of the offence with regard to which he was granted a pardon and the subsequent trial, if any. Both before the Magistrate who committed Sadiq for trial and before Mr. Maqbul Ahmad, the then Sessions Judge of Gujranwala who tried Sadiq, the appellant made a statement in the same general terms as his statement before Mr. Ahmad Kamal‑ud‑Din on the 2nd of February 1952.. The appellant appeared as a witness before Mr. Maqbul Ahmad in the end of October 1952 and, as mentioned already, the Public Prosecutor issued the certificate mentioned in section 339 of the Code of Criminal Procedure on the 12th of November 1952. The prosecution relied on the statement which the appel lant had made before Mr. Ahmad Kamal‑ud‑Din on the 2nd of February 1952, to prove that at the time when Haji Nizam Din met with his death the appellant was in the same room in which the deceased was. The object of the prosecution was to use the admission of the appellant with regard to his presence in the same room as the deceased at the time of his death to show that he was a participant in the murder of Haji Nizam Din because the death of Haji Nizam Din had resulted from blows given to him and not because he had received the injury which the appellant stated that he had. At the time when the body of Haji Nizam Din was recovered, it was found that both the hands were tied with a string, a piece of cloth was tied round the neck and a sock was stuck in his mouth. The opinion of the doctor who performed the autopsy with regard to the cause of death has already been detailed and in view of that opinion and the other indications that the death of Haji Nizam Din had not occurred in the manner suggested by the appellant in the statement that he made as an approver, it can be safely inferred that it was established beyond all reasonable doubt that Haji Nizam Din was done to death. Had the Haji died in the manner suggested by the appellant it is almost certain that his dead body would not have been buried in the manner that it was. Moreover, the fact that the neck and hands of the corpse were tied and there was a sock in its mouth is a clear indication that the Haji was killed by human hands. There is nothing on the record to suggest that the person or persons who caused the death of Haji Nizam Din could take the act out of the definition of murder and the question for decision, therefore, is if the prosecution had established beyond all reasonable doubt that the appellant was liable for the fatal assault on the deceased. One important piece of evidence in the case is the state ment of the approver made before Mr. Ahmad Kamal‑ud‑Din on the 2nd of February 1952, a gist of which has been given already. As pretty lengthy arguments were addressed with regard to the admissibility and other legal aspects of this statement, it appears desirable to deal with the questions of law that arise before proceeding. to consider if the statement proved anything against the appellant. Section 24 of the Evidence Act makes a confession which appears to the Court to have been made as a result of inducement, threat or promise proceeding from a person in authority and having reference to benefit of a temporal nature with regard to the charge against him, irrelevant in evidence. When a person is made an approver, his statement has clearly resulted from an inducement and a promise of immunity from prosecution with regard to the offence in which he admits having been A concerned, but when such a person is a witness, section 24 of the Evidence Act can have no application, as his statement is not being used as a confession but as a piece of evidence against persons other than himself and such a course is allowed by other provisions of law. Because the statement of an approver is result of inducement and promise and he is a self‑condemned criminal, it is provided by illustration (b) to section 114 of the Evidence Act that a conviction should not be based on the statement of an accomplice unless it is corroborated in material particulars against each of the accused persons, though section 133 of the Evidence Act says that a conviction is not illegal because it proceeds on the uncor roborated testimony of an accomplice. In a case of the present kind when the approver is put on his trial, not for giving false evidence but for the main offence with regard to which he had been promised an immunity on condition that he disclosed truly all the facts within his knowledge, the statement made by him would be inadmissible in evidence B because of section 24 of the Evidence Act but for the fact that subsection (2) of section 339 of the Code of Criminal Procedure provides that at such a trial the statement of the accused person made as an approver may be used as evidence against him. In these circumstances the contention of the learned counsel for the appellant that the statement of the appellant made before Mr. Ahmad Kamal‑ud‑Din on the 2nd of February 1952, and repeated at the trial of Sadiq and the commitment proceedings leading thereto were inadmissible in evidence, must be repelled as without substance. While on the subject of the admissibility of the statement of the appellant made before Mr. Ahmad Kamal‑ud‑Din on the 2nd of February, 1952, the learned counsel for the appel lant contended that as the statement was a confession of a crime made under section 164 of the Code of Criminal Procedure during the course of investigation, it was inadmis sible in evidence because subsection (3) of that section had not been complied with. The subsection relied upon is in the following terms :‑ "(3) A Magistrate shall, before recording any confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless upon questioning the person making it, he has reason to believe that it was made voluntarily ; and, when he records any confession, he shall make a memo randum at the foot of such record to the following effect :‑ I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him." This argument also must be held to be without force. Section 164 of the Code of Criminal Procedure deals with recording of two kinds of statements, one being statements of witnesses and the other confessions of accused persons. If the statement is a confession and is recorded as such, sub section (3) of section 164 has application and if it has not been complied with, the admissibility of the statement as distinguished from the weight attachable thereto will be affected. If, however, a person when being‑examined as a witness under section 164 confesses to having been concerned in a crime, as an approver must in all cases do, the statement thus recorded is not hit by subsection (3) of section

164. The mere fact that at the trial of the approver for the offence which he had confessed to having committed his statement as an approver is used as a confession of guilt, cannot make the statement inadmissible in evidence if when examined as a witness the provisions of law applicable to the recording of confessions had not been complied with. I have no doubt in my mind that in order to determine whether or not non‑compliance with any provision of law made a statement inadmissible, one should look to the circum stances as they existed at the time when that statement was made, and if that statement did not require a thing to be done which it was necessary to do if that statement were made under some other circumstances, the non‑compliance with a provision of law which would have been applicable if those other circumstances existed cannot make the statement inadmissible. I would, therefore, hold that the statement of the approver made before Mr. Ahmad Kamal‑ud‑Din could be used by the prosecution against the appellant in the present case. I might here dispose of an argument of the learned counsel for the Crown that the statement made by the appellant before Mr. Ahmad Kamal‑ud‑Din on the 2nd of February 1952, was not a confession and, therefore, if there was any defect with regard to its recording, it did not become inadmis sible in evidence because it could still be used as an admission. The argument was that because in his statement dated the 2nd of February 1952, the appellant did not confess to having committed all the offences which according to the prosecution had been committed, the statement could not be deemed to be a confession. I must confess that I could not at the time when it was addressed, and cannot even now, appreciate this argument. If this argument were correct, startling result would follow as would presently appear. Let us suppose that a man who is accused of having committed a murder makes to a police officer having no connection with the investigation of the case a statement which shows that he had only disposed of the body of the murdered man with a view to screening the offenders‑an offence punishable under section 201 of the P. P. C. Now this statement could not be considered to be a confession with regard to the offence of murder and if the argument of the learned counsel for the Crown were to be accepted, the statement would not be admissible, because of section 25 of the Evidence Act which prohibits the use of a confession made to a police officer against a person accused of an offence, if the maker thereof were tried for an offence of murder but would be admissible if the charge against him were one under section 201 of the P. P. C. I need hardly say that this result could never have been contemplated by the legislature. To my mind a statement which suggests that the maker thereof had been guilty of an offence is a confession and even if the offence confesssed to is not the one of which n the maker of the statement is accused, the statement never theless remains a confession and will be subject to all provisions of law which deal with confessions. Having held that the statement of the appellant made before Mr. Ahmad Kamal‑un‑Din on the 2nd of February 1952, was admissible in evidence, I proceed to consider what weight that statement and the statements which the appellant made before Mr. Maqbul Ahmad at the trial of Sadiq and in the commitment proceedings preceding that trial were entitled to. The statement of an approver is in cases where he confesses to a crime the result of inducement and a promise and but for some provisions of law the statement would not be admissible in evidence. The statement though not recorded as a confession of an accused person is still a confession and if the conviction of the maker thereof were to be based on that statement alone, it would not be illegal in the sense that it contravened any provision of law. However, the Courts have to bear in mind that the statement had resulted from an inducement and a promise of immunity from prosecution, and it is by no means unlikely that a person who had not been concerned in a crime may confess to having been so concerned either because he is asked to depose against his enemy or enemies or because he feels or has been made to believe that it was only by making the statement that he had taken part in the commission of a crime in conjunction with some other persons that he can save himself. It is because of these considerations that when considering the evidence of an approver against another person the Courts have to be satisfied that the approver had actually taken that part in the crime which he deposes to having done. If an approver whose prosecution has been ordered states at his trial that the state ment he made with regard to his participation in a crime was correct the risk of an innocent person who had been forced or induced to make a false statement being convicted of a crime is greatly reduced and in those cases it would ordinarily not be necessary to insist on corroboration of the retracted statement of the approver. In cases, however, in which the position taken up by the approver is that he had made a false statement which implicated himself also, the Court should see that the retracted statement is corroborated to such an extent that the conviction of the approver for the offence which he had confessed to having committed is not attended with more risk than the conviction of a person based on evidence produced before the Court. The learned counsel for the Crown pointed out that in the statement made in the com mitment proceedings preceding his trial the appellant admitted that he had along with Sadiq buried the dead body of Haji Nizam Din in a house which was occupied by him (the appellant) and that he had during the course of investigation produced before the police a sum of Rs. 6,000 which was a part of the money taken from the person of the deceased after his death, and argued that the statement before the Court of the committing Magistrate, which under the provisions of sec tion 287 of the Code of Criminal Procedure was evidence in the case, could be used to corroborate the retracted statement of the appellant that he had taken part in the disposal of the dead body of Haji Nizam Din and had removed a large sum of money from the clothes of the old Haji after he had died. There would have been some force in this contention had it not been for the fact that in the Court of the committing Magistrate the position taken up by the appellant was that he had not concealed any fact within his knowledge relating to the death of Haji Nizam Din, and therefore, his prosecu tion was uncalled for. The statement of the appellant in the Court of the committing Magistrate should in all fairness be taken as a whole and if that part of that statement which F shows that the terms of the pardon had been complied with were to be accepted, subsection (2) of section 339‑A of the Code of Criminal Procedure will become applicable and the appellant would be entitled to an acquittal. If, on the other hand, it were to be held that the above‑mentioned sub section had no application, it will, in my opinion, be unfair to the appellant to use a part of his statement before the committing Magistrate as evidence against him and keep out of consideration that part of that statement which could be used in his favour. The evidence on the record proves that at the time when the dead body of Haji Nizam Din was recovered, there were found thereon some documents which would show that the appellant was a close associate of Sadiq. With this informa tion in their possession, the police would not contact the appellant to see if he could throw any light on the mysterious death of Haji Nizam Din which there was no doubt had resulted from violence. If the appellant were confronted with the accusation that he was a close associate of Sadiq who had sent for Haji Nizam Din from Naushera to Gujranwala, and the circumstance that the dead body of the Haji had been recovered from a room with which the apppellant had some connection, it is by no means unlikely that the appellant could be made to believe that the safest course for him was to help the prosecution in proving the case against Sadiq. In this connection the manner in which the appellant obtained a pardon under section 337 of the Code of Criminal Procedure is not without significance. On the 31st of January 1952 the appellant addressed an application from jail to the Deputy Commissioner of Gujranwala wherein he said that he was prepared to disclose all the facts in his knowledge relating to the death of Haji Nizam Din if lie were made an approver. The application was addressed to the Deputy Commissioner. Gujranwala, but for some unknown reason the Superintendent of Jail, on 31st January 1952, sent the application to the Superintendent of Police, Gujranwala, who, the same day, returned it to the Superintendent of Jail with the remark that the application was addressed to the Deputy Commissioner and not to him. The same day the application was sent by the Superintendent of jail to the Deputy commis sioner, Gujranwala. The Deputy Commissioner asked for a report from the Superintendent of Police and having received that report and the police file relating to the case sent therewith, the Deputy Commissioner acting as District Magistrate granted a tender of pardon to the appellant under section 337 of the Code of Criminal Procedure. It is possible that persons suspected of having been concerned in an offence themselves apply to Magistrates to be made approvers but no such case has come to my notice before this because the usual course is that after having satisfied themselves that a person accused of an offence is willing to appear as a witness, the investigating agency put in an application to a compe tent Magistrate to tender a pardon to that accused person and, in the application explain why an approver is necessary. But" the mere fact that the appellant chose to follow an unusual course would not have mattered cry much had it not been for the fact that the application was sent by the Superintendent of jail to the Superintendent of Police, Gujranwala, whose name was not even mentioned in the application. Was this applica tion sent to the Superintendent of Police because it was known that it was made at the instance of the police or due to an oversight ? Taking the entire circumstances into consi deration one cannot but have a feeling that the application which the appellant sent ty the District Magistrate may well have been inspired by the police and it was sent through the jail authorities so that it may appear that the investigating agency had nothing to do with the desire of the appellant to appear as a witness in order that his confederate may be made to pay for the crimes which he and that confederate had committed jointly. In these circumstances it is necessary that the statements the appellant made as an approver should be corroborated in some material detail before he can be convicted. The corroborative evidence relied upon by the prosecution against the appellant was some recoveries alleged to have been made at his instance on the 21st of January 1952 and the circumstance that the dead body of Haji Nizam Din lay buried in a room in the possession of a relative of the appellant. According to the prosecution, the articles recovered at the instance of the appellant and detailed in the memo Ex. P. U. were as follows :‑ (1) Currency notes of rupees one hundred each of the value of Rs. 6,000. (2) A West End pocket watch. (3) A wooden hammer. The recovery was deposed to by Nur Elahi (P. W. 24) and Mirza Muhammad Akbar (P. W. 29) while two other witnesses of the recovery, namely, Abdul Ghani (P. W. 25) and Mistri Mumtaz Ahmad (P. W. 26), were merely tendered for cross examination and were asked a question or two each b3 the defence. Nur Elahi (P. W. 24) is a person who often appears as a witness in respect of recoveries made by the police, but if that were the only objection, I would not have looked at the recoveries suspiciously. It is obvious that the most important recovery is that of the watch. Evidence was given by Mst.. Maryam (P. W. 6), the widow of Haji Nizam Din, and Abdul Karim (P. W. 8), a younger brother of the Haji, that the watch belonged to the deceased. I have already mentioned that it was stated b y Abdul Aziz in the first information report made by him that the Haji had a pocket watch with him when he left his house for Gujranwala and there is no doubt that it was so. Nor have I any doubt that the watch alleged to have been produced by the appellant belonged to Haji Nizam Din because I can see no reason to doubt the depositions of Mst. Maryam (P. W. 6) and Abdul Karim (P. W. 8) with regard to the ownership of the watch in spite of the fact that Abdul Aziz (P. W. 17), who is also a younger brother of the deceased, was not asked in Court any questions about the ownership of the watch. This, however, does not conclude the matter because Nizam Din (P. W. 9), son‑in‑law of Haji Nizam Din, deposed that the watch, a thermometer, a pencil, a knife and a pair of spectacles were some of the articles which were recovered from the clothes on the dead body of Haji Nizam Din at the time that the body was recovered at the instance of Sadiq, and a similar statement was made by Irshad Ali (D. W. 1) who lives in the vicinity of the room from which the dead body was recovered. The statement of Irshad Ali (D. W. 1) was rejected by the trial Judge as unreliable and there is no good ground to differ from that opinion about that statement. It is by no means unlikely that Nizam Din (P. W. 9) was making a mistake as his statement at the present trial was made about 21 years after the recovery and if it had not been for some factors which I will be detailing presently, I would have been inclined to accept the argument of the learned counsel for the Crown that the statement of Nizam Din (P. W. 9) with regard to the watch having been recovered at the time when the dead body of Haji Nizim Din was recovered was due to lapse of memory. This recovery was made about three days after the arrest of the appellant and there is nothing on the record to show why it was on delayed. It is possible that the sum of Rs. 6,000 was recovered in the manner deposed to by Nur Elahi (P. W. 24) and Muhammad Akbar (P. W. 29), but it appears that the money had been put at the place from which it was recovered so that it may be used as evidence in the case. The defence case was that this sum of Rs. 6,000 had been given to the police who wanted a bribe in order to let off the appellant but no evidence direct or circumstantial supports this plea. There is, however, a circumstance which casts a good deal of doubt on the genuineness of the recovery and would make it appear that the sum of Rs. 6,000 was produced by the appellant before the police because the police had made the appellant or his relatives believe that if he produced that sum, the chances of his becoming an approver and avoiding being. sent up as an accused person along with Sadiq for the murder of Haji Nizam Din would become brighter. Ghulam Hussain (D. W. 3), a cloth marchant of Gujranwala, deposed that he had obtained a draft for Rs. 6,000 from the Habib Bank Ltd. Gujranwala and sent it to Salah‑ud‑Din Butt, a brother of the appellant who was joint with the witness in business. D. W. 3 did not give the date of the draft but it was supplied by Habibullah (D. W. 2), Supervisor of the Habib Bank Ltd: Gujranwala. According to D. W. 2 the draft was taken by Ghulam Hussain on the 16th of January 1952. Habibullah further deposed that payment with regard to the draft was made at Karachi on the 19th of January 1952 to Salah‑ud‑Din Butt. It is not without significance that the precise sum of Rs. 6,000 which was taken by Salah‑ud‑Din at Karachi on the 19th of January 1952 was recovered on the 21st of January 1952 at Gujranwala. It cannot be overlooked that if Salah‑ud‑Din had left Karachi on the 19th of January 1952 in the evening, he would reach Gujranwala on the nigh of the 20th of January 1952 and this is what he deposed to have done when he appeared as the fourth witness for the defence at the trial. The recovery, as already mentioned, was made on the 21st of January 1952 and it is difficult to believe that the recovery had nothing to do with the encashing of the draft at Karachi on the 19th of January 1952. It is possible that the sum of Rs.6,000 which Ghulam Hussain (D. W. 3) had sent to Salah‑ud‑Din Butt by means of the draft had been given to him by the appellant 'so that if his louse was searched such a large sum of money should not be found therein, but even if that were so, a suspicion continues to attach to the recovery being nothing but an arranged affair. The other article recovered was a wodden hammer which according to the prosecution was the weapon with which the injuries found on the person of the deceased were inflicted, but as there were no blood marks on the hammer, the learned trial judge held, and in my view rightly, that the recovery of the wooden hammer was of no assistance to the prosecution case. In view of what I have said above, I hold that the recovery at the instance of the appellant relied upon by the prosecution is not above suspicion and it would be unsafe to use it as corroboration of the statement of the appellant made as an approver. The dead body of Haji Nizam Din was recovered at the instance of Sadiq from a room which was occupied by Mukhtar Alam (P. W. 21), who is a cousin of the husband of a sister of the appellant. Because of his relationship with (P. W. 21) the appellant had access to the room as had Sadiq who was a friend of the appellant. According to the prosecution the dead body was buried on the 24th of December 1951 and recovered at the instance of Sadiq on the 17th of January 1952. P. W. 21 deposed that he left Gujranwala for Murree on the 22nd December 1951 and returned on 2nd January 1952, and that when he opened it the lock on the door of his rooms appeared to have been tampered with. It is in the statement of P. W. 21 that Sadiq too was a frequent visitor to the room wherein lay the dead body of Haji Nizam Din and I am of the view that the circumstance that the dead body lay in a room which was in the occupation of a relative of the appellant is not of much weight against the appellant. I have already given my reasons for holding that much weight cannot be attached to the statement the appellant made as an approver and I am of the view that in the circum stances of the case that statement would be unsafe to be used as the sole basis of the conviction of the appellant. Consequently, I would, accepting the appeal, decline to confirm the sentence of death, acquit the appellant of all the offences of which he has been convicted and direct that he shall be set at liberty forthwith. ABDUL AZIZ KHAN, J.‑--I agree. A. H Appeal accepted.