1997 P Cr (PLP)

8. P.W.14 Muhammad Aslam Sahi, D. S. P., had deposed in his statement that on the basis of the material available on the file, presented before him, Modassar Iqbal, Sana Ullah, Faryad and Safdar accused were ordered to be arrested and further investigated.

9. P.W.15 Tariq Saleem Dogar, S.P., had deposed that during the investigation conducted by him, under the order of the D. I. G., Lahore, on two occasions, he had interrogated the persons produced by the complainant as well as the accused party and recorded their short statements. He had also interrogated the accused and had come to the conclusion that occurrence was committed by Mukhtar, Modassar and Sana Ullah accused. He had also directed to record the statement of approver.

10. C. W.1 Zamin Abbas, Inspector, had deposed in his statement that after investigation he had come to the conclusion that all the accused except Mukhtar accused were innocent in the instant case. C.W.2 Manzar Saeed, Magistrate, had got recorded the statement Exh. C.I of the approver Mukhtar accused while in police custody through his reader as he had injured hand on that day. He had further deposed in his statement that he had fulfilled all the legal requirements while recording the statement. He had also owned the certificate Exh.C.l/1 issued by him.

11. The prosecution had given up Akbar Ali, Faqeer Hussain Lumbardar, Mubarik Ali, Zamin Abbas and Ch. Akhtar Hussain P.Ws., as unnecessary and had closed its case.

12. Appellant Modassar Iqbal in his statement had denied all the allegations levelled against him and claimed to be innocent by deposing that there were two parties in the village, one was headed by his father Afzal, the brother of accused Safdar and maternal-uncle of Sana Ullah (absconder) and Faryad accused was the husband of his sister's daughter and the other party was headed by one Faqeer Hussain, Lambardar of the village and there were enmity between Afzal and Faqeer Hussain and many criminal cases had been between the parties in the past and that the complaint of the present case placed as pupped in the hands of said Faqeer Hussain and that on the asking of Faqeer Hussain all the accused had been involved in this false case. All the P. Ws. hailed from the party of Faqeer Hussain Lumbardar and on his instance they had deposed falsely against him.

13. At the trial, the accused in their defence has produced D.W.1 Haleem Sabir, D.S.P., who had deposed in his statement that the investigation, conducted by Zamin Abbas, Investigating Officer and duly approved by D.1.-G., Lahore, was verified by him as correct. According to the investigation conducted by the said Investigating Officer the accused were innocent and were directed to be discharged from the instant case.

14. The accused, however, did not record their statements under the provisions of section 340(2), Cr.P.C. 14-A. The learned trial Court, taking into consideration the facts and circumstances of the case, had convicted and sentenced the appellant while acquitting Safdar Ali co-accused and releasing the approver Mukhtar Ahmed P.W.1, as stated above.

15. The learned counsel for the appellant, the State and the complainant were heard at length and the record of the case perused with their assistance. The learned counsel argued for the acquittal of the appellant and submitted that the statement of approver/accomplice Mukhtar Ahmed P.W.1 was not inculpatory and that, therefore, no conviction can be placed on his testimony. Further submitted that even the said statement of the approver suffers from many illegalities and material irregularities because of the mode and manner of its recording, being in contravention of the provisions of sections 164 and 364, Cr.P.C. Further pointed out that the appellant's name was not mentioned in the F.I.R. nor any suspicion voiced against him for more than two months after the occurrence and that there is no credible evidence to link the appellant with the motive set up. Further submitted that there is no eye-witness account of the occurrence at all and that the alleged recoveries by themselves failed to establish the charge against the appellant. Finally, argued that P.W.1 Mukhtar Ahmed approver was in fact a tuted hostile witness who had been reluctant to confess his alleged guilt and has obviously done so on the inducement of others as is manifest from the testimony of P.W.11 Shoaib Ahmed, Inspector.

16. On the other hand, learned counsel for the State and the complainant opposed the present criminal appeal and argued that conviction can be based on the sole testimony of approver, if same was inculpatory, as was the case in the instant matter. In this respect, emphasized that the approver P.W.1 had admitted to having hit the deceased Taj Din on the back of his chest with the iron key of the Peater Engine P.6. Further argued that a strong motive has been established against the accused and that the recovery of the said iron key of the Peater Engine P.6 and Safa P.5 fully supported the case against the appellant whereas medical evidence fully corroborated the prosecution version.

17. The entire case of the prosecution hinges on the testimony of the approver Mukhtar Ahmed P.W.1. There is no cavil with the principle laid down by the superior Courts to the effect that as a matter of strict law, the uncorroborated testimony of an accomplice could, if accepted, form the basis of a conviction in a criminal case, but it has been further held while laying down the principle stated above, by the Honourable Supreme Court in Ghulam Qadir and another v. The State PLD 1959 SC (Pak.) 377 that, however, in the course of judicial precedents, a rule of prudence has been evolved under which it is always insisted that there ought to be independent corroboration of an approver's E statement on material points suggesting a link between an accused person and a crime before such a statement could be accepted as a safe foundation for a conviction while further holding that the reason for the rule is obvious as there is always danger of substitution of the guilty be the innocent in such cases and it is realised that it would be extremely risky to act upon the statement of self- confessed criminal who while trying to save his own skin, might be unscrupulous enough to accept suggestions of others to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner; and that the corroboration required would depend on the facts and circumstances of each particular case and no hard and soft rules can be laid down in this behalf, while observing that surely one of the factors calling for consideration may be the circumstance that the approver had no ostensible motive to involve any of the accused persons falsely in the case; further holding, that does not imply any relaxation of normal standards of corroboration in such cases. The second case, relied upon by the learned counsel to support his contention that the conviction can be based solely on evidence of an accomplice, was Munawar Hussain alias Bobi v. The State 1993 SCMR 785, however, it was held in the said case that the appellants therein were convicted not solely on the evidence of an accomplice but that the judgments in question by the learned trial Court and Federal Shariat Court respectively had referred in detail to corroborative piece of evidence on material particulars, while observing that in accordance with the terms of Article 16 of Qanun-e-Shahadat Order, 1984 which corresponds to section 133 of Evidence Act, 1872, conviction can be founded on an evidence of an accomplice without any corroboration, if Court is satisfied with the truthfulness of his evidence.

18. However, the Court is constrained to observe that the above cited two judgments of the Honourable Supreme Court are of no help in opposing the present criminal appeal. For the reason that the statement of the approver/ accomplice Mukhtar Ahmed P.W.1 in the instant case, fails to meet the litmus test of the statement of an accomplice that it must be inculpatory. The said accomplice had stated to the effect that he had hit the deceased Taj Din on the back of his chest with the iron key (Chabi) of the Peater Engine to bring his statement within the ambit of it being inculpatory but in his testimony Dr. Iftikhar Ahmed P.W.13 had categorically stated that no injury. thus claimed was found on the back of the deceased. The said portion of the statement of Dr. Iftikhar Ahmed P.W.13 has been recorded as follows in English and in Urdu vernacular respectively:-- "No injury was seen by me on the waist of the deceased." In vernacular it is recorded as:-- It shall be pertinent to point out at this stage that the approver Mukhtar Ahmed P.W.1 had stated as follows in that respect:-- "Thereafter I inflicted a key blow on backside of the chest of Taj Din (deceased)." Thereafter he states in his testimony that he had come out of the room in question to stand outside as a guard, absolving himself from any further involvement in the alleged killing of the deceased Taj Din by other alleged absconding two accused Sana Ullah and Modassar Iqbal.

18. Here it may be observed that the mode and manner of recording of the statement of approver by C.W.2 Manzar Saeed, Magistrate 1st Class, is highly questionable and that impression is in fact, strengthened by the testimony of the said C.W. as he himself had stated that he had not recorded in Exh. P.M. that statement of the accused had been recorded in the Court-room nor that the hand cuffs of the accused were removed before recording the said statement and had not informed the accused that he shall not be handed over to the police after his statement. Further admitted that he had not given any note to 'the effect that the accused was made to understand the contents of the statement recorded.

19. To deal with the recoveries in the instant case, suffice it to say that the alleged recovery of Safa P.5 was not effected on the pointing out of the present appellant, and the mere recovery of a bottle smelling of liquor P.1 or the key P.6 in the absence of the injury on the back of the deceased claimed to have been caused by the said key by the approver is of no avail to the prosecution. Therefore, it may be reiterated, in view of the principle laid down by the Division Bench in Muhammad I3ukhsh and others v. The State 1974 PCr.LJ 211 that it is highly unsafe to base conviction on flimsy evidence furnished by doubtful recoveries.

20. To deal with the statement of the accomplice/approver Mukhtar Ahmed P. W t it is, once again, observed that the part of his statement, which has been relied upon by the prosecution to claim that his statement is inculpatory as well Le- his claim to the effect that he had hit the deceased at the back of his chest with the key of the Peater Engine, P.6, has been totally belied by the absence of injury of any nature, however, minor or insubstantial, renders statement only to be exculpatory, as he has otherwise stated in his testimony that he had come out of the room to stand outside as a guard when allegedly the absconding co -accused had caused the murder of Taj Din deceased, thus, totally excluding himself from the commission of the alleged crime. Hence, by his own assertion, he is not even an eye-witness of the said fateful occurrence.

21. To sum it up, neither the statement of the accomplice/approver Mukhtar Ahmed P.W.1 is inculpatory, as his claim to have inflicted injury on the deceased, Taj Din stood belied by the medico-legal report Exh. P.N. and the testimony of P.W.13 Dr. Iftikhar Ahmed, whereas the mode and manner of recording of his statement as an approver under the provisions of section 164, Cr.P.C. fully supports the contention raised on behalf of the appellant to the effect that the same suffers from legal infirmity, and as the content and tenor of his statement, as highlighted above, has raised serious doubts about his participation in the occurrence in question and even in respect of his being present at the place of occurrence and that, therefore the inescapable conclusion drawn is to the effect that his testimony as an approver has to be ruled out of consideration.

22. To support the said conclusion, reliance is placed upon the following: -- (i) Federation of Pakistan v. Muhammad Shafi Muhammadi 1994 SCMR 932 wherein it has been held that an accomplice who takes part in commission of offence falls within the category .of a wicked person. Therefore, .1,fore acting upon his testimony, truthfulness of it is to be verified by corroborative piece of evidence on material -particulars. (ii) In Muhammad Yaqoob and others v. The State 1992 SCMR 1983 it was held that confession of the approver should be such that it should exclude all possibility of false implication. (iii) In Abdur Rehman v. The State 1991 SCMR 244 the dictum laid down was that statement of co-accused could not be used against the accused as he had non-implicated himself and shifted the burden on the accused.

23. Pursuant to the above discussion, the present criminal appeal is hereby allowed and the impugned judgment, dated 23-2-1995 is hereby set aside. Resultantly, the appellant stands acquitted of the offence charged. He shall be released forthwith, if not required to be detained in any other case. , For the reasons stated above, Criminal Revision No.206 of 1995, directed to be heard alongwith the present criminal appeal, is hereby dismissed. N.H.Q./M-399/L Appeal accepted.