P L D 1952 Azad J & K 15 (PLP)

ABDUL MAJID, C. J.‑The appellants Sher Zaman and Fateh Muhammad have been tried under section 302 A. P. C. of having caused the death of one Khadam Hussain. The learned Sessions judge has, found both of them guilty and sentenced them to death. The crime is said to have been committed on the night between 27th and 28th May, 1951. The dead body was found floating in a Nala on 29th May, 1951, and was taken out the same day. The post‑mortem examination of the dead body was performed on 31st May, 1951. It revealed that the deceased had suffered incised and punctured wounds on the head and the face before strangulation and the injuries caused to him were such as to result in instantaneous death. The conviction reposes in the main on the statement of Shafi Muhammad approver whose story in brief is that he engaged Sher Zaman and Fateh Muhammad to help in the murder of the deceased to whom he owned money and was anxious to get rid of him. The first blow was given to deceased by the approver with a khulhari and after he fell down Fateh Muhammad strangulated the deceased by putting turban round the neck of the deceased while Sher Zaman held the legs of the victum and after the deceased had succumbed to injuries Fateh Muhammad struck the face of the dead body with a knife in order to make it unidentifiable. The learned Sessions judge found that there was sufficient corroboration of the approver's statement so far as the appel lants were concerned and consequently he convicted them and inflicted the maximum penalty. We have to consider whether the offence of murder has been brought home to the appellants. There is absolutely no evidence to show why the appellants joined the approver in committing the crime. Fateh Muhammad as admitted by the approver himself was not on good terms with him before the commission of the crime. It has not been explained to our satisfaction how he consented to be a party to the crime. The deceased was on friendly terms with Sher Zaman as the former put up with Sher Zaman after leaving his village and wanted to realies money from the approver with the help of Sher Zaman. In other words there is no evidence of motive which actuated the appellants to commit the crime. Leaving the question of motive we next come to the evidence depended upon by the learned Sessions judge in corroboration of the statement of the approver that the appellants are the murderes. The main evidence relied upon by the Court below as to the corroboration of the approver's statement so far as the complicity of Sher Zaman in the crime is concerned is that the clothes of the deceased were recovered from a ditch near the house of Sher Zaman at his instance and a torch belonging to the deceased was produced by him from his house before the police. This evidence in our opinion does not justify the inference that Sher Zaman was concerned in the murder of the deceased. The torch said to have been produced by Sher Zaman from his house is not proved to belong to the deceased. The clothes found buried in a ditch might have been placed by some‑body else and known to Sher Zaman. Fateh Muhammad was found wearing a loin cloth which had stains of human blood on it and he also produced a knife before the police. These two pieces of evi dence cannot possibly be taken as corroborating the statement of approver, as regards Fateh Muhammad's guilt. No stains of human blood were found on the knife. It cannot, therefore, be said that it boas used in murdering the deceased. The recovery of the stains of blood on the loin cloth also do not connect Fateh Muhammad with the present murder. It had been ruled several times that finding of the stains of human blood on the clothes of illiterate villager does not afford any evidence of his being concerned in a serious crime like murder. We, therefore, find no trustworthy evidence in corroboration of the statement of the approver to connect the appellants with the crime. The corpse was not identified by anybody before the post‑mortem examination was performed. It cannot, therefore, be said that Khadam Hussain for whose murder the appellants were convicted was really murdered. The evidence as to the various articles which were recovered and are said to belong to Khadam Hussain is also meagre. The relations of Khadam Hussain only identify a pair of chappal and a waist‑coat. Both these articles are of ordinary make and it is difficult to say whether they belong to Khadam Hussain who is said to have been murdered. In our opinion, it will not be safe to base a conviction upon the evidence of Shafi Muhammad approver who obviously is deeply interested in putting responsibility for this offence upon the shoulders of other than his own, unless there is some independent evidence to corroborate his story in material particulars. In these circumstances, we are driven to accept this appeal, set aside the conviction and sentence and direct that the appellants be released from custody. Before concluding, we might add that we are convinced that Muhammad Shafi approver was the principal offender in this case and the Magistrate wrongly exercised the discretion given by section 337 Criminal Procedure Code in tendering a pardon to him. It is true that section 337 Criminal Procedure Code empowers a Magistrate to tender pardon to a person who is supposed to have been directly or indirectly concerned in the offence under investigation or enquiry on the condition that he makes a full and true disclosure of all the circum stances within his knowledge in relation to the accused and to the offence. The object of tendering a pardon is to secure evidence when it is otherwise impossible to establish the guilt of the accused from other evidence. In the present case Muhammad Shafi had made a clean breast of the whole affair when his statement was taken down under section 164 Crimi nal Procedure Code and the close reading of the statement pointed out clearly that he was the person mainly responsible for the murder. The Magistrate therefore, cannot be said to have exercised sound judicial discretion in tendering him a pardon and allowing him to escape just punishment at the expense of possibly innocent men. To tender a pardon to a principal offender who has confessed his guilt does not only suggest that the Magistrate exercised wrongly judicial dis cretion but also reflects upon the efficient working of the Police Department. The District Magistrate should make an enquiry why the police secured a pardon from the Magistrate for the principal offender so that the circumstances in which this was done might come to light. A. H. Appeal accepted.