P L D 1956 Supreme Court (Pak (PLP)

MUHAMMAD MUNIR, C. J.‑--This is an appeal, with the special leave to this Court, by Abdul Qadir from his con viction of murder and the consequent sentence of death. The appellant who is a prominent businessman of Rawalpindi was charged before the Sessions Judge, Rawalpindi, with the murder of Muhammad Bakhsh, an Advocate of the same town, and on being found guilty was sentenced to death, the allegation against him being that in conspiracy with Hussain Muhammad, a retired Military Officer with the honorary title of Lt.‑Colonel, Abdul Haq, a Havildar in the Royal Pakistan Army and his own chauffeur, Alam Khan, he brought about the death of. Muhammad Bakhsh who was shot dead by Abdul Haq and Alam Khan and his body burnt on the morning of 14th June 1954. The main evidence in the case was of the two accomplices, Husain Muhammad and Abdul Haq, who had accepted pardon and agreed to give evidence as approvers. This accomplice testimony was sought to be corroborated by the prosecution by some circumstantial evidence which will be presently mentioned, and the sole question that arises for decision in the appeal is whether the corroborative evidence satisfied the requirement which law insists upon before a conviction is recorded on the basis of an accomplice's testimony. The deceased was practising at Rawalpindi and in several Court cases, civil and criminal, he had been engaged by the appellant's opponents including his brother Fazal Elahi. One of these cases had resulted in a heavy money decree against the appellant, and in another he stood in peril of being convicted of attempted murder. The deceased took special interest in these cases, and it is alleged that in order to escape from this harassment the appellant suggested to Husain Muhammad who was his friend to kill Muhammad Bakhsh. Husain Muhammad agreed and brought in the conspiracy his own sister's son Abdul Haq, who undertook to do the deed if he was paid a sum of Rs. 5,

000. On the morning of 14th June 1954, the deceased, on the pretext that he was to examine the books of account of a colliery in which Abdul Haq and‑ another person described as a Captain were partners, was driven in a car from Rawalpindi to a place near Pail in the Campbellpur District, a distance of 125 miles, where he was shot dead by Abdul Haq and Alam Khan and his body burnt with petrol. Husain Muhammad also was in the car, representing himself to be an interested party to the colliery dispute; but he sat in the car on the road saying that he was to make arrangements for meals while Abdul Haq Khan and Alain Khan who were both armed with guns took the deceased by a path through a lonely forest called Rakh Chinji where they killed him by firing three gunshots. The car alleged to have been used for the journey was a 1938‑39 Model Plymouth belonging to General Mackay, which long before had been delivered to the appellant's firm for repairs. After waiting for the return of Muhammad Bakhsh, his son Asghar Hamid reported the matter at Police Station `C' Division, Rawalpindi. In that report he described how .the deceased had left on professional business for Pail and not returned and how on making inquiries at Pail it had been found that no judicial officer had been there to hear any case. The informant concluded his report by suspecting the appellant of foul‑play because the missing advocate had appeared in several cases against the appellant on behalf of Fazal Elahi, the appellant's brother, and a former partner of the appellant, Fazal Ahmad. This report was entered at the Police Station at 1 O'clock in the morning of 18th June. Meanwhile, the burnt remains of the deceased together with some articles he had on his person were found in the forest on the morning of 16th of June. This discovery was reported by Noor Mithammad, a forest guard, to a Lambardar who passed on the information to Police Station Talagang. The appellant was arrested on 19th June 1954, while Husain Muhammad and Abdul Haq were apprehended on 21st and 26th July ‑ respectively. They both were tendered pardon on 5th August which they accepted and made their statements under section 164 of the Criminal P. C. The fourth conspirator Alam Khan has not yet been arrested. In due course the police reported. a charge of murder against the appellant and he was committed by a Magistrate to the Court of Sessions. As already stated, he was convicted and sentenced and his appeal before the High Court of West Pakistan having failed he applied four special leave to appeal to this Court which was granted in order to consider the question whether the corroborative evidence was sufficient to sustain the conviction. At the trial several defences were raised by the appellant including the contention that it was not proved that Muhammad Bakhsh had been killed or that either of the approvers had taken part in the murder. These questions do not arise before us because on the view that we have taken of the corroborative evidence the conviction appears to us to be unsustainable. The appeal before the High Court was vigorously argued on both sides and the judgment of the Court exhaustively deals with all the. contentions raised in appeal. The findings of the High Court which are to be found at page 43 of the judgment P L D 1956 Lah. 100 at pp. 127 and 128 are: (1) that the two approvers were directly connected with the murder of the deceased. (2) that neither of the two approvers had any motive to kill the deceased (3) that neither of them had any reason falsely to accuse the appellant and that in fact one of them was his old friend ; (4) that the appellant had a motive to do away with the deceased ; (5) that near about the time the deceased was done to death and for some days before,. the approvers had been with the appellant ; (6) that on the 14th of June 1954, the day on which the deceased was murdered, the appellant drew a cheque for Rs. 2,000 in favour of Husain Muhammad, one of the approvers, in order to create an alibi for him ; (7) that the car in which the deceased was taken on his last journey in this world was in the possession of the appellant ; (8) that on the 14th of June 1954, the appellant suddenly felt the necessity of sending this car from Rawalpindi to Peshawar which was done so that the car should not be seen in Rawalpindi from which place it had taken the deceased to the place of his murder. It is obvious that if these findings stand, the corroborative evidence would be quite sufficient to maintain the conviction. On going through the judgment of the High Court we felt it to be necessary in the interests of justice' to examine the evidence relating to the car which is alleged to have been used by the murders for the commission of the offence but that examination has led us to the conclusion that the most important circumstance which tended to connect the appellant with the murder cannot be said to have been proved. We have already mentioned that the deceased was taken from his house to Rakh Chinji in General Mackay's car which had been with the appellant's firm for repairs. Besides the statements of the two approvers, the evidence that the deceased got into that car from his house consists of the depositions of Muhammad Yasin (P. W. 17) a servant and Mst. Gulab Jan (P. W. 21), a neighbour of the deceased These two witnesses were examined by the police in the early stages of the investigation, long before General Mackay's car was seized in Peshawar. They both stated that the car which had waited outside the house of the deceased early in the morning of 14th June to take him away was a small black car. Apart from the fact that neither Mst. Gulab Jan who is an old woman of 65 nor Muhammad Yasin who is an illiterate domestic servant of the deceased would be able to identify a car which they had seen before dawn some weeks earlier, it is admitted that the General's car which, as already mentioned, is a 1938‑39 Model Plymouth, is not a small car and that its paint its not black but French grey which cannot possibly be mistaken for black If, therefore, these witnesses were telling the truth to the police the car in' which the deceased was taken by the two approvers was probably a different car, small‑.r in size than, and different in colour from, the Plymouth car which is alleged by the prosecution to be the one in which the deceased was decoyed. In that case the movements of the Plymouth car after the commission of the murder would not only be no corroboration against the appellant but would be wholly irrelevant. The position would perhaps have been different if Muhammad Yasin and Mst. Ghulab Jan had not given definite description of the car to the police and it had been proved that the car in which the two approvers say the deceased was taken to the place of murder was sent by the appellant on the day of the murder from Rawalpindi to Peshawar without any ostensible reason. In that case the suspicious movements of (he car after the murder would have been relevant and some evidence of the connection of the appellant with the murder, but in the state of the evidence produced we cannot avoid the conclusion that it is quite possible that the description of the car, which Fazal Ahmad and Mst. Gulab Jan gave to the police, namely, that it was a small black car, might be true, and that in fact it was a different car by which the deceased and his murderers travelled to Pail on the day of the incident. We cannot therefore agree with the High Court in considering it proved that the deceased was taken to the place of murder in a car which was in the possession of the appellant. The other important fact which has been relied on by the High Court as tending to connect the appellant with the offence is that on the day of the murder the appellant drew a cheque for Rs. 2,000 in favour of one of the approvers, Hussain Muhammad. If the prosecution case had been that this cheque was drawn by the appellant to pay the murderer or murderers, it would have been strong evidence of the fact that the appellant instigated the murder, but as to this piece of circumstantial evidence the prosecution case itself is that the amount for which this cheque was drawn was due to Hussain Muhammad from the appellant. Hussain Muhammad says that the cheque was drawn by the appellant in order to create an alibi for Hussain Muhammad, but it is wholly incomprehensible how the mere fact that a cheque purports to be drawn on a certain date is evidence of the payee's presence at a particular time and at the place where the cheque is drawn. This cheque was admittedly not presented on the 14th June and was cashed on the following day. If the evidence had been that this cheque was presented by Hussain Muhammad at about the time of the murder or within, say two hours, of the commission of the offence, it would have been good evidence of alibi but because Hussain Muhammad, if he accompanied the murderers, could not have been present at Rawalpindi before the midday of 14th June, the allegation of manufacturing evidence in proof of a false alibi could have had some value only if someone impersonating Hussain Muhammad had cashed the cheque on that day some time before midday. We have, therefore, the bare statement of the accomplice that this cheque was written in order to support a plea of alibi in case it became necessary to take such a plea and there is no circumstance whatsoever to show that any transaction in respect of this cheque between someone purporting to be Husain Muhammad and some other party took place. The High Court con siders that the appellant drew the cheque in order to support an alibi for Hussain Muhammad, and there can be no doubt that if it had been proved by other evidence that the appellant attempted to forge or manufacture evidence to prove the presence of Husain Muhammad in Rawalpindi at or shortly after the commission of the murder in Rakh Chinji, it would have been strongly suggestive of appellant's compli city in the crime. But as the evidence stands it is impossible, to believe that either the appellant or Hussain Muhammad could have expected any Court to accept this cheque as proof of the latter's presence in Rawalpindi so as to contradict the allegation that he was present near Rakh Chinji when the deceased was done to death. By treating this documentary evidence as an attempt on the part of the appellant to create alibi for Hussain Muhammad the High Court has assumed the precise point which had to be proved by independent evidence and therefore this document per se cannot be accepted as proof of the appellant's having created an alibi for Hussain Muhammad. The money for which the cheque was drawn was due to Hussain Muhammad from the appellant and the mere fact that the cheque was drawn on the day of the murder cannot be considered to be a corroboration of this approver's evidence. It may be taken as proved that both the approvers were responsible for the murder and that neither of them had any special reason falsely to accuse the appellant, but we cannot accept the finding of the High Court that neither of them had any motive of his own to kill the deceased. It is true that the appellant 'has not in his defence suggested any motive on the part of either of these accomplices to kill the deceased, but this by itself is an inconclusive circumstance and does not establish that in fact neither of them had any such motive. Motive is a factor which is peculiarly within the knowledge of the actor and a man's motive in doing a thing may not be known to his most intimate friends just as the prosecution may not know the accused's motive for a crime. All that can be said on the strength of the record of this case is that the appellant failed to prove o suggest that either of the accomplices had any reason t get rid of the deceased but the appellant's ignorance of any such motive does not exclude the possibility of a motive having existed though unknown to the appellant. This circumstance, therefore, does not have any material corrobo rative value. We are then left with toe position that the approvers were connected with the murder, that the appellant is unable of explain why they are falsely naming him as the instigator of the crime and that both of them were in Rawalpindi not only on the morning of 14th June but for some days before the murder. This, in our opinion, is not in the circum stances of this case sufficient corroboration of their evidence. Neither merely being seen in the company of the approver, nor mere inability of the accused to explain why an accomplice gives evidence against him, nor both taken together can be such confirmation of the accomplice's C testimony as the law since time immemorial has required the Courts to demand before they act upon such tainted evidence. The real danger in acting upon the uncorroborated evidence of an accomplice is the possibility that in the desire to screen his real partner in the crime, he may substitute for him a completely innocent man who may not know at all why he has been so substituted, and it is for this reason that Courts have never convicted a person simply on the ground that he is unable to explain why the accomplice implicates him. Per se, the circumstance is valueless but coupled with other corroborative evidence it may turn the scale in favour of the prosecution. There are some other unsatisfactory features in the case which tend to show that though both the approvers had a part in the murder they have not chosen to tell the entire truth and have suppressed something material. Alam Khan is the appellant's driver and must have been so known to the deceased. That is why when Hussain Muhammad and Abdul Haq drove to the house of the deceased early in the morning of 14th June in 'order to take him away from Rawalpindi, they dropped Alam Khan on the way lest the deceased should get suspicious by his presence in the car. Shortly afterwards, however, he was picked up from that place, and it is not explained how the approvers could have supposed that while this man's presence in the car when the deceased was to get into it would have made the latter suspicious, there would be no occasion for any such sus picion when Alam Khan was again taken into the car in an obviously suspicious manner. Again, it is highly unlikely that the entire journey of 250 miles to and back from Rakh chinji could have been performed as alleged by Husain Muhammad in 7 hours, making allowance for the hilly condition of the road beyond Bhaun, the stoppage for tea and the visit to the shrine of Ahu Bahu beyond Kallar Kahar, the time taken in the murder and the burning of the body and in walking twice to the place of the murder from where the car was stopped on the road. Further, the deceased must have been an utter idiot if he undertook to examine the books of account of a colliery, which admittedly had no office any where near the place of murder, and not to have got suspicious when he found two gunmen including a servant of his mortal enemy, walking side by side with him in a lonely jungle on the way to the alleged colliery. And lastly, there is the improbability of Husain Muhammad, who is a man of intelli gence education and apparent respectability, to have immediately agreed not only to join the conspiracy but also to employ his own sister's son as a hireling when the appellant disclosed his intention to murder. The whole case creates 'on our minds the irresistible impression that the uncle and nephew must have had some reason of their own to get rid of the deceased and that since they were found out, in order successfully to escape from the consequences of their crime they had to name someone even though such person might have been a friend of one of them. And we cannot exclude the possibility of other influences having operated against the appellant in implicating him in the crime. Once the hypothesis of Husain Muhammad's having a motive to do away with the deceased becomes possible the circumstances which have been held to be corroborative of the appellant's conspiracy in the crime become easily explainable. The learned Judges of the High Court think that for the reasons which they have stated in detail the standard usually required for the corroboration of accomplice testimony may be relaxed in this case, but the opinion we have formed of this Lt.‑Colonel is that if his story is true he himself is no more than a hired assassin and that therefore the nature and quantity of confirmative evidence which prudence general requires in such cases cannot be varied. If on a proposal coming even from a friend to commit murder a man not only readily accepts the suggestion but goes‑about procuring them services of someone who would on payment do the deed he is no more than an ordinary criminal even though he be 3 colonel in the Army, and his, evidence, if given on a promise of pardon, would require the same degree of corroboration as that of any other accomplice. We see no reason whatsoever for departing from the general rule relating to corroboration in such cases, and since on our findings material corroboration is lacking, we cannot maintain the conviction. One point more before we conclude. We cannot under stand why the Crown decided to have two approvers in this case. If the prosecution believed in the truth of the evidence that they produced against the appellant there was no reason whatsoever why Abdul Haq should have been pardoned. The case against him apart from the testimony of his uncle was complete on the evidence. It was this man who engaged the appellant for a fee in a dispute which did not exist ; it was he who decoyed the deceased from his home shortly before the murder ; it was he who was seen in the car near the place of the murder ; and it was he who was found in possession of a watch which the deceased had on his person at the time of his death. If the Crown believed that the evidence produced in proof of these facts was true, there could be no question of this man escaping from the gallows, whether his uncle was or was not willing to give evidence. The evidence of both of accomplices relates precisely to the same facts except that Husain Muhammad was not present when the deceased .was shot dead near the place where this accomplice sat in the car. We cannot therefore escape the impression that Husain Muhammad was not willing to give evidence if his nephew was to be prosecuted or that the abject fn putting up this case in Court in the manner in which it was put, was most probably to let off Husain Muhammad and his nephew. In either case it would be dangerous act upon their evidence against a third party. We allow this appeal, set aside the conviction and the sentence and acquit the appellant. A. H. Appeal allowed