P L D 1957 (W (PLP)

ABDUL AZIZ KHAN, J.‑

Ghulam Sarwar, Manzur, Khaira and Ghulam Haider were tried by the learned Sessions Judge, Dera Ghazi Khan, under sections 148 and 302/149 of the P. P. C. The charge against them was that they, along with Farid approver, formed an unlawful assembly on the 25th of May, 1956, in the area of village Bund Birman and committed the offence of rioting, and in the prosecution of the common object of that unlawful assembly killed Allah Bakhsh deceased. The learned Sessions Judge convicted and sentenced them as under :‑ (1) Manzur and Ghulam Sarwar Death each under section 302/149, P. P. C. (2) Ghulam' Haider and Khaira Transportation for life each under section 302/149 P. P. C. The learned Sessions judge also convicted and sentenced all the four accused to three years' rigorous imprisonment each under section 148 P. P. C. The condemned persons and the convicts have appealed to this Court through Mr. Jalal‑ud‑Din Qureshi, Advocate, against their convictions and sentences. The case of Manzur and Ghulam Sarwar is also before us under section 374 of the Code of Criminal Procedure. This judgment will dispose of the appeal as well as the reference for the confirmation of the death sentences. Briefly stated the prosecution case is that Allah Bakhsh deceased who used to deal in grains etc. was believed to be a wealthy man. A week before the fateful day, Ghulam Haider appellant was married. Farid (P. W. 22) (approver), Khaira, Manzur and Ghulam Sarwar appellants attended the wedding. While the approver and the appellants were together, Ghulam Sarwar appellant suggested to the others that they should plan to kill Allah Bakhsh deceased in order to get at his money. They met at Kechi Darishak on the following Friday and decided that Manzur appellant and Farid approver should go to the dilapidated but at Bund Birman armed with hatchets. Ghulam Sarwar, Khaira and Ghulam Haider appellants were deputed to lure Allah Bakhsh to the Bund on the pretext of making a lucrative bargain of sarson with Tawakhuh Baloch at Bund Birman. Accordingly, Ghulam Sarwar appellant called on Allah Bakhsh deceased in the presence of his brothers, Ilahi Bakhsh (P. W. 9) and Ghaus Bakhsh (P. W. 11) at about midday on the 25th of May, 1956. Ghulam Sarwar appellant told Allah Bakhsh that he had purchased sarson from Tawakhuli Baloch and had paid him the earnest money but lacked funds to pay the balance. He asked Allah Bakhsh deceased to pay the balance to Tawakhuli Baloch, remove the sarson and share the profits with him. Allah Bakhsh deceased accepted the suggestion and accompanied Ghulam Sarwar. He was wear ing a pouch round his neck and had a cycle (Exh. P. 3) with him. Allah Bakhsh also took the chadar and paropi (Exh. P. 1). On the eventful day, i.e., the 25th of May, 1956, while Wali Muhammad (P. W. 12), was grazing his cattle at midday near Nala Sadiq, he saw Ghulam Sarwar, Khaira, Ghulam Haider and Allah Bakhsh deceased going along the canal bank. Allah Bakhsh was carrying a cycle and had a bag which was hanging from him shoulder. Wali Muhammad enquired from Allah Bakhsh as to where he was going. Allah Bakhsh replied that he was going to buy sarson. The aforesaid three appellants led the deceased to the dilapidated but on Bund Birman, where Manzoor and the approver were awaiting their arrival. According to the approver, the deceased and his companions were talking when he and Manzur came and attacked the deceased with their respective hatchets, killing him, on the spot. The approver removed the pouch which contained Rs. 35 while Khaira took the cycle. The approver separated from the party. He then went to Jampur by a truck where he was subsequently arrested. On the 25th of May, 1956, at shamwela, Khuda Bakhsh (P. W. 21), took his cattle to Nala Sadiq to water them. On his way back to his house, he saw the appellants and the approver proceeding from the West to the East. At that time, Farid approver had a kulhari and Manzur appellant also had a kulhari. Khaira appellant had cycle (Exh. P.3). Khuda Bakhsh P. W. asked them where they had been but they did not answer. On the 26th of May 1956, at about midday, Haji Ghulam Muhammad (P. W. 7) was grazing cattle near Bund Birman, He saw a dead body near the dilapidated but and thought it to be a case of murder. He, therefore, went to the Border Military Police Post, Muhammadpur, and informed Daffadar Ghulam Muhammad (P. W. 8) of what he had seen. The Daffadar recorded Ghulam Muhammad's statement (Exh. P. A) and sent a copy of it Exh. P. A/1 to Police Station, Rajanpur, for the formal registration of the case. Assistant Sub‑Inspec tor, Ghulam Qadir (P. W. 23), received Exh. P A/1 on the 26th of May 1956, at 3 p.m. After registering the first informa tion report, on the basis of Exh. P. A/1, he went to the spot and prepared the injury statement and the inquest report. He took bloodstained earth from where the dead body, lay and made into a sealed parcel vide memo. Exh. P. C. He observed a paropi (Exh. P. 1) lying at the spot and took it into possession vide memo. Exh. P. B. The Assistant Sub‑Inspector sent the dead body to the mortuary for post‑mortem examina tion. Doctor Qamar‑uz‑Zaman, who conducted the post- mortem examination on the 27th of May 1956, at 5‑30 p.m., observed ten incised wounds on Allah Bakhsh's dead body. The doctor was of the opinion that death was due to haemorr hage and shock resulting from the injury on the neck and the spinal cord. In the opinion of the doctor, the neck injury, which had been caused‑with a sharp‑edged weapon, was sufficient in the ordinary course of nature to cause death. It is alleged that the appellants went to the house of Khaira Khan (P: W. 20) on the 28th of May 1956, and Ghulam Sarwar said that they had murdered Allah Bakhsh and requested Khaira Khan P. W. to produce them before the police. Accordingly khaira Khan produced them before Sub- Inspector Muhammad Sabir (P. W. 18) on the following day. In the course of the investigation, Ghulam Sarwar appellant led Sub‑Inspector Muhammad Sabir (P. W. 18) and others to the Faridwala Bund and from a place on the embankment dug out the kulhari (Exh. P.5). The Sub Inspector took the kulhari into possession and sealed it into a parcel vide memo. Exh. P. E. The Serologist has reported, vide his report Exh. P. V., that the scrappings from the kulhari examined by him were stained with human blood. Under the directions of Sub‑Inspector Muhammad Sabir, the Assistant Sub‑Inspector took Khaita, to the house of Karim Bakhsh (P. W. 13) and recovered the cycle (Exh. P. 3) vide memo. Exh. P. G. Foot Constable Rahmat (P. W. 19) arrested Farid approver on the 31st of May 1956 from Chah Ahmadwala in Jampur, which is at a distance of 21 or three miles from Jampur Town. The Foot Constable handed over Farid to Sub Inspector Muhammad Sabir (P. W. 18) on the 1st of June 1956 On the 4th of June. 7956, Farid approver took the Sub Inspector and others to a place in the bed of Resalpur Minor and dug out the kulhari (Exh. P. 6). The Sub‑Inspector took the hatchet into possession vide memo, Exh. P. M. The hatchet did not bear any blood marks. On the 7th of June 1956. Farid approver applied to the District Magistrate through the Superintendent of the Jail for the grant of pardon. On being granted pardon Farid made a statement which was recorded by Mr. Faiz Karim, Magistrate on the 12th of June 1956. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They merely stated that they had been falsely implicated by the Pawalis. The prosecution case rests on: (1) the evidence of Farid approver ; (2) the evidence of Ilahi Bakhsh (P. W. 9) and Ghaus Bakhsh (P. W. 11) that the deceased left in the company of Ghulam Sarwar appellant on the 25th of May 1956, and that he took the bicycle (Exh. P. 3) with him ; (3) the evidence of Wali Muhammad (P. W. 12) that he saw Ghulam Sarwar, Khaira, Ghulam Haider and the deceased together at about midday near Nala Sadiq ; (4) the evidence of Khuda Bakhsh (P. W. 21) that he saw the approver and the appellants near Nala Sadiq on the evening of 25th. of May 1956.; (5) the recovery of the bicycle (Exh. P. 3) at the instance of Khaira appellant ; and (6) the recovery of the blood‑stained\kulhari (Exh. P. 5) at the instance of Ghulam Sarwar appellant. Before dealing with other items of the evidence, it would be convenient to consider the extra‑judicial confession. Khaira Khan (P. W. 20) was' cross‑examined at the trial try the learned Public Prosecutor with the permission of the Sessions judge, as in the Public Prosecutor's opinion Khaira Khan had resiled from his previous statement. At the request of the Public Prosecutor, the Sessions judge transferred Khaira Khan's statement before the committing Magistrate to the Sessions' record under section 288 of the Code of Criminal Procedure. According to the law, this statement is deemed to be evidence in the case for all purposes. A perusal of the statement shows that the appellants made a joint confession before Khaira Khan P. W. A general statement by a witness that a number of persons admitted having committed a crime, is valueless without some indication as to which of the. persons made the admission in question. Sajjan Singh v. The Crown A (I L R 6 Lah. 437), supports this view. In the absence of any such indication, in the present case, we do not consider it safe to rely on the extra‑judicial confession. The rule of caution that the evidence of an approver should be supported by independent corroborative evidence connecting the accused with the crime is now regarded as a rule of law. Such corroborative evidence should show or tend to show that the story of the approver that the, accused g committed the crime is true not merely because the crime has been committed but that it was committed by the: accused. In The King v. Baskerville ((1916) 2 K B 658), it was held :‑ " The evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it." The above view was followed by this Court in Barkati v. Emperor (A I R 1927 Lah. 581) and Wazir Chand v. Emperor (A I R 1928 Lah. 30). The Federal Court of Pakistan held in Fazal Dad v. The Crown (PLD1955FC152):‑-- " While it is necessary that there should be independent evidence which tends to confirm the approver's testimony that the accused had taken part in the offence charged, it is not at all necessary that the prosecution should produce some independent evidence proving that the approver him self took part in the offence." We now proceed to examine the case of each appellant in the light of the above principle. Ghulam Sarwar.--The prosecution case against him consists of the evidence of the approver, Ilahi Bakhsh (P. W. 9), Ghaus Bakhsh (P. W. 11), Walt Muhammad (P. W. 12), Khuda Bakhsh (P. W. 21), and the recovery of the blood‑stained hatchet (Exh. P. 5) at the appellant's instance Ilahi Bakhsh and Ghaus Bakhsh P. Ws. stated that the deceased left his house for the last time in the company of Ghulam Sarwar appellant and that he was not seen alive after that. Ilahi Bakhsh and Ghaus Bakhsh, who are brothers of the deceased, leave no motive to implicate Ghulam Sarwar appellant in a false case. We, therefore, see no reason to disbelieve them. According to the prosecution, Wali Muhammad (P. W. 12) saw the deceased, Ghulam Sarwar, Khaira and Ghulam Haider appellants on the event ful day at noon on the canal bank. while Khuda Baklish (P. W. 21) saw the approver and the appellants near Sadiq Nala at about evening on the day of occurrence. We are not at all impressed by the evidence of Wali Muhammad and Khuda Bakhsh and therefore do not consider it safe to rely on their testimony. Sharaf Din (P. W. 14), Haji Sobha (P. W. 15) and Sub‑Inspector Muhammad Sabir (P. W. 18) are the witnesses relating to the recovery of the bloodstained hatchet (Exh. P.5). We have gone through their evidence and see no reason to disbelieve the prosecution version that the 'bloodstained hatchet (Exh. P. 5) was recovered at the instance of Ghulam Sarwar appellant. The above evidence which we have accepted establishes the charge against Ghulam Sarwar who has been rightly convicted for the murder of Allah Bakhsh. Khaira.

The prosecution case against Khaira consists of the evidence of approver, Wali Muhammad (P. W 12), Khuda Bakhsh (P. W. 21) and the recovery of the cycle (Exh. P. 3). As already stated, it is not safe to rely on the evidence of Wali Muhammad and Khuda Bakhsh: The recovery memo. Exh. P. G. shows that Karim Bakhsh (P. W. 13) produced the cycle before the Assistant Sub Inspector Ghulam (nadir (P. W. 23). The prosecution attempted to show at the trial that the appellant led the Assistant Sub‑Inspector to the shop of Karim Bakhsh and had the cycle recovered. The Assistant Sub‑Inspector was confronted with the recovery memo. Exh. P. G. but was unable to explain the important omission. Moreover, there is no satisfactory evidence on the record to show that the cycle in fact belonged to the deceased. We are aware that the brothers of the deceased stated at the trial that the cycle Exh. P. 3 belonged to the deceased. No attempt was, however, made by the prosecution to show from whom the deceased had purchased the cycle. In the circumstances, it cannot be said with certainty that the cycle (Exh. P. 3) belonged to the deceased. For the above reasons, we do not consider it safe to maintain this appellant's conviction and sentence for the murder of Allah Bakhsh. We, therefore, accept his appeal and set aside his convictions and sentences. Ghulam Haider.‑The prosecution case against him rests on the evidence of Wali Muhammad, Khuda Baklish and tile approver. We have not relied oil the testimony of Wali Muhammad and Khuda Bakhsh. The uncorroborated testimony of the approver by itself is not sufficient to maintain the convictions and sentences of Ghulam 'Haider. We, therefore, accept his appeal and set aside his convictions anti. sentences. Manzur.‑His conviction is based on the evidence of the approver and Khuda Bakhsh P. W. We have not relied on the evidence of Khuda Bakhsh. The evidence of the approver by itself is not sufficient to maintain his convictions and sentences. We, therefore, accept his appeal and set aside his convictions and sentences. The learned Sessions Judge had convicted all the four appellants under section 148 of the P. P. C. According to the prosecution, two of the culprits only were armed with hatchets while the others were unarmed. Section 148 reads as follows :-- "Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both". It was held in Fordil v. Emperor (A I R 1934 Lah. 632) that only those members of an unlawful assembly can be convicted under section 148 who are actually armed with deadly weapons and not the others. In view of this principle, Manzur alone could have been convicted under section 148, P. P. C. As a result of the above findings, the convictions and sentences of Khaira, Ghulam Haider and Manzur are set aside. They shall be set at liberty forthwith if not required to be detained in connection with any other case. The appeal of Ghulam Sarwar is dismissed. His conviction under section 302/149 of the P. P. C, is altered to one under section 302/34, P. P. C. and his conviction and sentence under section 148, P. P. C. is set aside. The death sentence imposed upon him is hereby confirmed. A. H. Order accordingly.