P L D 1966 (W (PLP)

ABDUL GHANI KHATTAK, J.‑Abdus Sattar alias Buta son of Muhammad Bakhsh, aged 23 years, was found guilty for the murder of Habibur Rehman, deceased, and by his order dated the 2nd of December 1964, the learned Sessions Judge, Lahore (Camp Kasur) convicted him under section 302, P. P. C. and sentenced him to death. The record t~f the case has been sent by the learned Sessions Judge for the confirmation of the sentence. The convict has appealed against his conviction. This judgment will dispose of both the appeal and the reference.

2. The report Exh. P. A. was made by Habibur Rehman, deceased (then alive) recorded by Saadat Ali Sub‑Inspector (P. W. 19) at the hospital on the night between 28/29‑2‑1963, at 9‑10 p.m. The report was incorporated in formal F. I. R. Exh. P. A/1 by Sabir Husain muharrir head constable of Police station Kasur city. Habibur Rehman reported that during the days of occurrence he was running a shop situate at Railway Road, Kasur. On the night of occurrence at 8‑30 p.m. He was present at his shop. One Habib Shah a customer had just left and he was about to close his shop. In the meanwhile two persons, out of whom one was of a shorter stature and was talking in Punjabi entered the shop. He had a dagger in his hand and bidded Habibur Rehman to disclose the cash, he closed the door and instantaneously stabbed the victim. Habibur Rehman caught the dagger but was given another blow at his left arm. Habibur Rehman wrenched the dagger with his right hand and raised an alarm, and the accused person decamped. On the alarm raised by the deceased, Sher Ali (P. W. 15) and Shahab Din (P. W. 14) were attracted to the shop who took the injured person to. the hospital. On the 1st of March the dying declaration Exh. P. L/1 of Habibur Rehman was recorded by Syed Nasar Ali (P. W. 16) Magistrate with section 30 powers, Kasur, at 9.5 p.m. In the dying declaration the deceased stated that after Isha prayers two persons came to his shop. One of them attempted to close the door and the other person was standing outside. The deponent stated that the assailant and his companion were strangers, however, lie could identify them. The dagger was left in his hand. On the outcries raised by him, Shahab Din and Sher Ali P. Ws. had come to the spot who transported him to the hospital. The dagger was given to Shahab Din which was produced by him before the police officer which was taken into possession vide memo. Exh. P. B. witnessed by Shahab Din and Sher Ali. Habibur Rehman died on the 1st of March 1963, a few hours after his statement was recorded.

3. On the 1st of March 1963, at 2 p.m. Dr. Fida Muhammad Paracha (P. W. 1) conducted the post‑mortem examination on the dead, body of Habibur Rehman, and found the following injuries: (1) A stitched incised wound 3' X " abdominal cavity deep on the left side abdomen above the left illiac vertical. (2) An incised wound 2 " x " abdominal cavity in the lower part of right side of chest and opening into the chest cavity stitches was present in the epigasric area. (3) A stitched wound on back of left arm in the lower third transverse 4" x " mussle deep. (4) An incised wound across the web between right thumb and right finger 3" x " x " stitched. (5) An incised wound on the palmer surface left ‑ thumb 1` x 1/3" mussle deep. (6) A stitched incised wound on the palmer surface of left hand palm 1‑1/3" x " skin deep. (7) An incised wound left ring finger " x " superficial. On examination of cranium, noshing abnormal was detected. On examination of thorax, an incised wound extending from the upper part of the abdomen to the lower part of‑chest on the right side, cutting 8th, 9th and 10th ribs 1 ' from the costal cartilage and 1‑1/3" from the middle line. Right pleura was found cut under injury No. 3 and the pleural sack contained 2 oz. unclotted blood. Right lung was found injured in the lower lob under injury No:

2. The cut was " x . Heart right side contained blood, left side was empty. All the other contents were normal. On examination of abdomen, an incised wound was present in the lower part on the left side and another in the epigastric area (injury No. 1 and 2). Paritoneum was found cut under injury No. 1 and contained 1 oz. of un-coagulated blood. Stomach contained 2 oz. of semi-digested food. Small intestines were' found stitched at two places and masentery was also found stitched. Bladder was full and healthy. All other contents were found healthy. In the opinion of the doctor death was due to asphasixa as a result of injury No. 2 causing collapse of right lung, which was sufficient in the ordinary course of nature to cause death. Haemorrhage was also the cause of death as a result of injuries Nos. 1 and

2. All injuries were as a result of sharp cutting weapon with pointed end.

4. Abdus Sattar, appellant, was arrested on the 1st of April 1963, in some other case. He was transferred to District Jail, Kasur, where he refused to participate in the identification parade at Kasur. At the request of the accused that he should be transferred to Lahore Jail, he was sent there for the purpose of test identification. At Lahore too, the appellant refused to join the identification parade. The appellant was to be put to test identification in two cases, one case was of 23rd March 1963, under sections 392, 394 and 397, P. P. C. etc. The complainant in that case was Muhammad Akram of Kasur city and the witnesses in that case who had to identify the appellant were Akram, Muhammad Latif, Niaz Ahmad, Muhammad Tufail and Chiragh Din. In the case under appeal the appellant was to be identified by Sher Ali, Sardar Muhammad, Haji Shahab Din and Fazal Din of Kasur. Mr. S. A. Rashid (P. W. 12) Magistrate First Class, was detailed to conduct the identification parade but on the refusal of the accused person the Magistrate reported that the accused person refused to take part in the test identification parade which was proposed to be held on the 17th of April 1963. The appellant attempted to thwart the investigation of the crime. The rule of the presumption is against the appellant. On the 14th of May 1963, the appellant led to the recovery of Shalwar Exh. P. 3 and shirt Exh. P. 4 which were taken into possession vide memo. Exh. P. F. witnessed by Haji Muhammad and Akbar Ali. The shirt and shalwar were found by the Serologist to be stained with human blood.

5. Taj Muhammad (P. W. 13) appeared an approver against the appellant. He stated " . . . On 25th February 1963, Abdus Sattar came to me at 12 noon. He told me that he wanted a chhurra, and I should provide him with one from wherever I liked. I refused to accede to his request. He insisted and gave, me Rs. 5 currency note to purchase the chhurra. The accused left my house with the promise to return. On 28th February 1963, at noon the accused came to me and inquired from me that I had bought chhurra for Rs.

5. He took it from me and placed it into his dub. He had a bundle of clothes which contained a shirt and a pant. The accused was wearing shirt and shalwar. The accused said that I should accompany him to basant mela at Kasur. I first refused and ultimately agreed to accompany the accused to the mela. Sattar had told me that he had to get money from a person. We both came to Kasur in a bus. We attended the mela and before the evening I told the accused that we should return to Lahore. The accused put me off saying that he had still to get the money . . . . . . At about 8 p.m. the accused brought me in front of a shop situated on Railway Road, Kasur. The accused told me that he had to get money from the shop keeper of that shop and after he would enter the shop I should close the door. Sattar accused entered the shop and I closed the door to some extent

The accused and the deceased grappled with each other and during the struggle they entered the inner room of the shop where light was on ............At the time of the departure from Lahore the accused had asked me to carry bundle containing the pant and the shirt. This bundle was with me when the accused discarded his blood stained clothes

I did not ask the accused for what purpose he required the chhurra

"

6. For clear understanding of the case, the statement of the appellant made by him at the trial is reproduced :‑ "I have been falsely involved by Zahoor Din A. S. I. He has also involved me in a number of other cases prior to this. In all those cases I have been acquitted. When I was arrested, by Saif Ullah S. I. he interrogated me that I have been responsible for many thefts. Saadat Ali S. I. City Kasur P. W. and Zahoor Din A. S. I. were also there. I repudiated these allegations. At this Saif Ullah told me that there was another person with me when I committed thefts. I said that I was innocent. Saif Ullah suggested to me that I should name some, one. As I had a quarrel with Taj Muhammad approver, I named him as my accomplice though it was not a fact. Thereafter the house of Taj Muhammad was searched by the police. In my presence 3/4 chhuries were recovered. The police arrested him. It is on account of this grudge that he has given false evidence against me. I had escaped from judicial custody from the District Courts, Lahore. During my absconding I was staying at the house of Durrani Khan paternal cousin of Taj Muhammad approver. Durrani Khan had a sister Fatima Jan. Taj Muhammad suspected that I had illicit relations with his cousin. Taj Muhammad came there one day. I did not know him but he perhaps knew me. I came out of the house of Durrani Khan and Taj Muhammad followed me. He told me not to visit the house of Durrani Khan and this led a quarrel between me and him."

7. The site plan of the case was prepared by Munshi Abdul Aziz (P. W. 2) who stated that the shop of the deceased consisted of two rooms which were divided by an arch.

8. The learned trial Court came to the finding of guilt of the appellant on the statement of the approver, the recoveries made at the pointation of the appellant and the circumstantial evidence available on the spot. Under the provision of section 133 of the Evidence Act, an accomplice is a, competent witness against the accused person and conviction based on it is not illegal, however the Courts are guided by section 114, Evidence Act, Illustration (b), which lays down that an accomplice is unworthy of credit and his corroboration on material particulars is emphasised. Even if the Court is fully satisfied about its truth yet approver's testimony being of a tainted character, the Courts, as a matter of prudence, insist generally on some material corroboration thereof in so far as it implicates the accused person This rule of prudence has received such universal application that it may now be regarded a virtually amounting to a rule of law, and, therefore, a departure from it is deemed to be an error of law. The reason for the emphasis is obvious. It follows, therefore, that the testimony of Taj Muhammad, approver, requires careful scanning as to what extent it rings true in juxtaposition with the circumstantial evidence and main features of the case. The name of the approver was disclosed by the appellant when he had been interrogated by the police. The reason disclosed by him for falsely implicating Taj Muhammad in the instant case is not borne out by the record. Mere assertion by an accused person is of no value unless it is substantiated by the facts on the record. The story as narrated by the approver that he was concerned in the crime and that he was the associate of the appellant essentially requires to be judged by the testimony, of. the victim. The victim stated that the companion of the appellant remained at the door. So far the testimony of Taj Muhammad is in consonance with the victim's version. The argument of the learned defence counsel that the approver‑did not pass himself by the same bush with the appellant, therefore, has no force. The victim had not ascribed any part to that person beyond standing at the door. It is in the evidence that blood was found on the safe in the inner room. Taj Muhammad stated that the victim and the appellant entered the inner room during the struggle but he did not see any blood falling in the inner room. If the witness is taken to have been tutored, this important circumstance would not have escaped the notice of the butor. The witness stated that the. deceased had followed the appellant up to the thara of the shop, where he fell. This fact is corroborated by the statement of Shahab Din (P. W. 14), who was the first arrival at the scene and produced the blood stained chhurra before the police. So far the version of Taj Muhammad is in complete accord with the established facts. The accused persons had to travel a considerable distance from Kasur to Lahore. The clothes of the assailant must have been stained with blood, and for a safe transit the change of clothes of the culprit is conceivable. May be, the culprits from their own experience could foresee the staining of their clothes with blood because the weapon of offence was a chhurra. Normally the clothes get stained with blood in stabbing cases, especially when the victim and the assailant come to grips. The blood stained clothes were dug out by the appellant from the place which has been adequately described by the approver. The witnesses to the memo. bore no grudge against the appellant, therefore, it cannot be held that the clothes were foisted on him. Shahab Din (P. W. 14) and Sher Ali (P. W. 15) had given a correct description of the accused person and we cannot believe that these witnesses charged the appellant at the instance of some one. We are convinced beyond reasonable doubt that the account given by the accomplice is in complete harmony with the circumstances of the case. Whether or not the clothes in fact belonged to the appellant, we have entirely to rely on the statement of the approver. If the clothes were of the approver, we cannot say because the witnesses did not see the appellant wearing blood stained clothes. This is an important fact which cannot be easily ignored.

9. The deceased described his assailant of a shorter stature than his associate. Ordinarily distance minimises the height, therefore, the man at the door should not have appeared taller than the one who was nearer. There is no eye‑witness 'of the actual stabbing. No doubt there are grave suspicion about the complicity of the appellant in the crime but there are graver suspicions that he may not be the assailant of Habibur Rehman. We cannot ignore the possibility that the approver might have passed his own baby to the appellant. Since the approver does not tell us about any pre-concert between him and his associate therefore, we cannot accept him at his face value in burdening the appellant with the entire weight of the crime. When suspicions are so balanced, rule of prudence leans in favour of the accused. Any way the guilt of the accused is not free from reasonable doubt.

10. In the result we allow the appeal, set aside the conviction and sentence, and acquit the appellant. He shall be released forthwith if not required for any other case. The sentence of death is not confirmed. ABDUL HAMID, J.‑I agree. K. M. A. Appeal accepted.