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Criminal Petition for Special Leave to Appeal No. 259 of 1981, decided on 20th June, 1982.

(On appeal from the judgment and order dated 19‑5‑1981 of the Lahore High Court Lahore, in Criminal Appeal No. 61 of 1979 and Murder Reference No. 3 of 1979). .

‑‑‑ S. 337‑Approver‑Totally exculpatory statement made by appro ver‑Held, not reliable‑‑[Approver].

----Ss. 21 & 24‑Extra‑judicial confession retracted, sought to be established through a witness whose statement not inspiring confidence and element of undue influence also not safely excluded‑Not acted [Confession].

Kh. Abdul Waheed Advocate, Supreme Court, assisted by Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

M. M. Saeed Baig, Advocate Supreme Court with Ejaz Ahmad Advocate- on‑Record for Respondent No. 2.

Nemo for Respondent No. 1

Date of hearing : 20th June, 1982.

‑Leave to appeal has been sought from judgment dated 19‑5‑1981 of the Lahore High Court, whereby Ashiq Ali Shah respondent was acquitted, on appeal from trial Court judgment wherein he was convicted and sentenced to death for the murder of Amanat Shah.

2. The prosecution case was that the respondent had illicit connection with Mst. Kalsoom his co‑accused wife of Amanat deceased. They decided to kill Amanat with the help of Murad approver. Accordingly, the respondent and the approver took him away on a false pretext and killed him with Tooka and Chhuri, which were later on recovered at their instance. At the trial, besides the said recoveries and approver's testimony, evidence was led of last seen together', extra‑judicial confession and motive.

3. The learned trial Judge acquitted Mst. Kalsoom for lack of evidence and relying on the prosecution evidence, convicted and sentenced the respon dent as noted earlier. He had pleaded total denial and innocence appeal, a Division Bench of the High Court acquitted the respondent on it finding that "there are many loop‑holes which have not been filled by strong and reliable circumstantial evidence so as to exclude the possibility that the appellant was innocent and was not real murderer."

4. We have heard the learned counsel in support of this petition. There was enmity between the family of the deceased and the respondent for some time, hence it was highly improbable that the deceased would have gone with the respondent and Murad even on a false pretext. Moreover, no independent evidence was led on this important aspect of the case.

5. The testimony of approver in this case is of no use to the prosecution. He made a totally exculpatory statement. No reliance could be placed on it either

6. The extra‑judicial confession which was retracted was sought to be established through Nasir Ahmad P. W. 3 whose statement does not inspire confidence. In any case, the element of undue influence could not be safely excluded.

7. The appreciation of above‑noted and other evidence by the High Court does not suffer from any such infirmity, which might have furnished, justification for interference by this Court, with a judgment of acquittal. We accordingly dismiss this petition.

Petition dismissed.

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