P L D 1954 Lahore 710 (PLP)

SHABIR AHMAD, J.‑Bashir Ahmad, son of Abdullah, a young man of about 22 years who was those days working as Imam Masjid, was stabbed in the abdomen on the 14th of August of 1950 at about 11 a. m. on the Canal Boundary Road from Kot Rehar Bridge to Manchal Bridge on the Lower Chenab Canal in the Gujranwala District. He made a statement, which is Exh. P. E. on the record, before Nazir Ahmad, who was those days Head Constable at Police Station Akalgarh and Muhammad Malik Lambardar of village Manchar Chatta. In this statement he said that a young man, whom he did not know had stabbed him and had escaped on a bicycle. A few hours after making the statement, Bashir Ahmad breathed his last. The case remained untraced for about two years but oar the 22nd of July 1952 Zahid Hussain, son of Khuda Rahim, a Pathan, was arrested by the Peshawar Police on receiving information that he had comitted a murder in Gujranwala District, The Peshawar police sent information to the Gujranwala police and on the 5th September 1952 Zahid Hussain was brought to Gujranwala. After investigation the Gujranwala police challaned Zahid Hussain for the murder of Bashir Ahmad comitted on the 14th of August 1950. The trial resulted in Zahid Hussain being sentenced to transpor tation for life under section 302 of the Pakistan Penal Code and against that order the present appeal has been presented. No one was produced by the prosecution as an eye witness of the occurrence and the case rests on circumstantial evidence. Most important piece of evidence in this con nection is an extra-judicial confession alleged to have been made by the appellant at Peshawar to Abdul Hamid (P. W. 3) and Abdus Sattar (P. W. 4) to the effect that he had murdered a man two years earlier in Gujranwala District. Abdul Hamid and Abdus Sattar gave information against the appellant to Dost Muhammad, a friend of theirs who was a Muharrir at a police post and on the next day a police Sub‑Inspector arrested the appellant from his house. Another piece of evidence against the appellant, on which the prosecution relied, was his identification by Mst. Nazir Begum (P. W. 5) and Mst. Miraj Begum (P. W. 61 as one of the two persons whom they had seen going on bicycles on the Canal Road from Akalgarh. These two woman, the former of whom at the time when she appeared as a witness was 20 years of age and the latter 15 years of age, had been examined by the police on the third day of the incident. Another piece of evidence relied upon by the prosecution was that Akbar Ali (P. W. 7), Muhammad Sadiq (P. W. 8) and Ghulam Muhammad (P. W. 9) had seen two persons going on bicycles near Akalgarh near about the time when Bashir Ahmad was stabbed. Yet another piece of evidence relied upon by the prosecution was the depositions of Muhammad Arif (P. W. 1) and Abdur Rashid (P. W. 2). It appears that these two witnesses were expected to identify the appellant as a person whom they had seen at about the time of the occurrence going on a bicycle and to depose that when they had gone a little distance, they came across another man who had been stabbed in the abdomen. However, when appearing as P. W. 1 Muhammad Arif stated that the appellant was not the person he had seen shortly before he had seen the injured man, though Abdur Rashid (P. W. 2) identified the appellant as that person. After Muhammad Arif (P. W. 1) was examined as a witness the public prosecutor, who was in charge of .the case on behalf of the prosecution, made a statement that he wanted to withdraw the case against the appellant. After this request by the public prosecutor, the learned trial Judge asked questions from the appellant as to whether or not he was the person who had stabbed Bashir Ahmad, to which the appellant replied in the negative. Soon after the statement of the appellant was taken, the public prosecutor said that the question of the withdrawal of the case should be kept in abeyance till the statement of Abdur Rashid was taken, This re quest was acceded to by the learned trial Judge who proceed ed to examine Abdur Rashid (P. W. 2). After the statement of Abdur Rashid (P. W. 2) had been recorded, the public pro secutor withdrew his request for permission to withdraw the case. The learned trial judge acceded to the request and the case proceeded. The learned council for the appellant urged that when the public prosecutor had prayed for permission to withdraw the prosecution, the learned trial judge could not have proceeded with the case. In my view this contention is without substance. What the effect of a withdrawal is given in section 494, Cr. P. C., which is in the following terms:‑ "A public prosecutor * * * * * may, with the con sent of the Court. in cases tried by jury before the return of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person (either generally or in respect of any one or more of the offences for which he is tried); and upon such withdrawal,

(a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences." The language of the section makes it clear that the mere fact that the public prosecutor wants to withdraw from the prosecution is of no materia effect until and unless the judge hearing the case gives his consent to such withdrawal. If the judge does not give his consent, the withdrawal of the public prosecutor from the prosecution has absolutely no legal effect and the case has to proceed whether or not the public prose cutor wants to proceed with it. The section, as worded, makes it clear that the withdrawal from the prosecution be comes effective only if the judge give his consent. In the pre sent case no doubt the public prosecutor desired to withdraw from the prosecution, but as the learned trial judge did not con sent to such withdrawal, the request of the public prosecutor was of no avail to the accused person. Subsequently the public prosecutor withdrew his request for withdrawing the pro secution, which request was acceded to by the trial Court. If when the request had been made by the public prosecutor to withdraw from the prosecution, the learned trial judge had given his consent to the withdrawal, the result would have been an acquittal of the accused which could have been set aside only by this Court on an appeal by the Provincial Government under section 417, Cr. P. C., and the public prosecutor could not have subsequently changed his mind so as to want to proceed with the case, but the circumstances, which have been detailed above, make it clear that what the learned trial Judge did was entirely in accord with the relevant provisions of the Code of Criminal Procedure. On the merits the learned counsel for the appellant urged that the evidence led by the prosecution did not bring home guilt to the appellant who was, therefore, entitled to an acquit tal. As mentioned already, there is no eyewitness of the occurrence and the case rests entirely on circumstantial evidence, which kind of evidence, as is well settled, cannot form the basis of a conviction unless it is incompatible with any other reasonable hypothesis than the guilt of the accused person. It is with this principle in view that I have to see whether or not the prosecution have succeeded in establishing the case against the appellant to the degree of certainty which one requires before a person is convicted of a criminal offence. The most important piece of evidence against the appel lant is the extra‑judicial confession alleged to have been made by him before Abdul Hamid (P. W. 3) and Abdus Sattar (P. W. 4). The learned counsel for the appellant pointed out some minor discrepancies between the statements of these two witnesses with regard to the words used by the appellant but to my mind the discrepancies pointed out do not help the appellant. It is proved beyond all reasonable doubt that the appellant was arrested at Peshawar by Ata Ullah Sub‑Ins pector of Police, Peshawar, on the 22nd of July 1952. This officer obtained a remand for keeping the appellant in custody and in the report mentioned that the appellant was required for a murder committed by him in Gujranwala District. Accord ing to the prosecution, it was on the information given to the police by Abdul Hamid (P. W. 3) and Abdus Sattar (P. W. 4) that the appellant was arrested and I have no doubt that it was so. If a confession were alleged to have been made short time after the attack on Bashir Ahmad, one would have had some justification for looking at it with suspicion, but the confession in the present case is stated to have been made about two years after the attack on Bashir Ahmad and at a place where that attack could not have been known about. In, these circumstances, I have no doubt in my mind that the con fession was made by the appellant to Abdul Hamid (P. W. 3) and Abdus Sattar (P. W. 4) as alleged by them. Further, I am satisfied that the confession was true and suffered from no such defect as would make it irrelevant under section 24 of the Evidence Act. Abdul Hamid (P. W. 3) who has absolutely no motive to give false‑evidence against the appellant, stated that the appellant asked him to employ him as a servant at his shop which he had been visiting for about two and a half months. The witness asked the appellant to bring some one from Peshawar who was known to him, at which the appellant burst into tears and said that he had no sympathizer and that he was in Peshawar because he had committed a murder in Gujranwala District. Abdus Sattar (P. W. 4) made a state ment which did not materially differ from that of Abdul Hamid (P. W. 3) and as the statement of these two witnesses ring true, I have no hesitation in accepting them. The confession was retracted and the question for consideration is if conviction can be based thereon. In Abdul Crown (PLD 1952 F.C. 113.) it was laid down that requiring corroboration of an extra‑judicial confession was a rule of prudence which through long and persistent application has been crystallises into a rule of practice having the force of law. Abdul Latif's case was considered by a Division Bench of this Court in Nawab Din v. Crown (P L D 1952 Lah. 345=Pak. L. R. 1952 Lah. 355) wherein it was said that the decision of Their Lordships of the Federal Court was not to be under stood as laying down that an accused person cannot be con victed on an extra‑judicial confession unless it is corroborated in material particulars by independent evidence and if a con fession is proved to the satisfaction of the Court and is not vitiates by any such circumstance as makes it irrelevant or inadmissible, there is nothing in law to prevent a Court from basing a conviction on such confession, if the Court believes it to be true. Recently in Qutba v. Crown (Cr. App No. 38 of 1953=P L D 1954 F C 197.) which was decided on the 18th of March 1954, the Federal Court con sidered their own decision in Abdul Latif's case and the decision of this Court in Nawab Din's case and made the following observations:‑ "In a purely technical respect, it is perhaps desirable that we should amend the description applied to it as a `rule of prudence, which through long and persistent application has been crystallised into a rule of practice having the force of law' by saying that the rule of practice has become virtually a rule of law. But, in the practical aspect, the effect of the decision remains virtually unchanged." I have mentioned already that in spite of the fact that it was retracted I have no doubt in my mind not only that the con fession alleged by Abdul Hamid (P. W. 3) and Abdus Sattar (P. W. 4) to have been made by the appellant was made and that it was true, but in view of the decisions stated above with regard to extra‑judicial confession, I would not base a con viction on the extra‑judicial confession alone especially as it has been retracted by the maker thereof. Corroboration of the extra‑judicial confession is furnished by the depositions of Mst. Nazir Begum (P. W. 5) and Mst. Miraj Begum (P. W. 6) who, in an identification parade held under the supervision of Ch. Muhammad Din Refique, Magis trate 1st Class Gujranwala (P. W.15), on the 9th of September 1952, identified the appellant as one of the two cyclists whom they had seen on the Canal Bank Road near about the time of Bashir Ahmad being injured, and also identified the appellant in Court as that person. No doubt the identification parade and the trial were held long after the incident, but that alone is no ground for discarding the statements of these two wit nesses. It is proved that the appellant had taken all precau tions to keep his face covered to guard against his being seen by any of the persons from whom the prosecution may want him to be identified and, therefore, the identification before the Magistrate (P. W. 15) has great weight. Muhammad Arif (P.W.1) did not identify the appellant in Court though he picked him out correctly in the parade held on the 9th of September 1952 under the supervision of P. W. 15, and though I am convinced that at the trial the witness purposely helped the appellant, I cannot legally use the identification before the Magistrate as substantive evidence against the appellant Abdur Rashid (P. W. 2) had picked up the appellant correctly in the parade held under the supervision of P. W. 15 and in Court pointed him out: as the person he had seen riding a bicycle on the canal bank nearabout the time of the assault on Bashir Ahmad, but it appears that before the committing Magistrate the witness had stated that the appellant was not the person whom he had identified in Jail. The statement before the committing Magistrate appears to have been made with a view to helping the appellant, but the statement of P. W. 2 in Court can be used with the other evidence on the record to corroborate the extra‑judicial confession. I am satisfied that the appellant had confessed before Abdul Hamid (P. W. 3) and Abdus Sattar (P. W. 4) and had been identified as one of the two persons seen on bicycles by Abdur Rashid (P. W. 2), Mst. Nazir Begum (P. W. 5) and Mst. Miraj Begum (P. W. 6) nearabout the time that Bashir Ahmad was stabbed. This evidence establishes beyond all reasonable doubt that it was the appellant and no other who caused to Bashir Ahmad the injury which resulted in his death. Dr. Muhammad Abdullah (P. W. 28), who performed the post‑mortem examination on the dead body of Bashir Ahmad found a stitched wound 2" long on the right side of abdomen, in the mid axillary line near iliac‑crest. He opened up the stitches and found that the wound was 2" x 1" x 4" deep and the probe went into the peritoenal cavity and that the intestines were visible in the depth of the wound. The doctor gave it as his opinion that death was due to haemorrhage and shock as a result of the injury. There is no doubt that the injury was sufficient in the ordinary course of nature to cause death, which it actually did. A person who causes an injury on such vital part as the abdomen and causes death can be safely held to have the intention to cause the death of the victim, and I would, therefore, hold that the appellant caused the death of Bashir Ahmad intentionally. It was contended by the learned counsel for the appellant that the prosecution had suggested no definite motive for the attack on the deceased by the appellant. The prosecution theory in this respect was twofold; firstly that the appellant had attacked the deceased for the purpose of robbery but finding that the deceased did not fall down at once, changed his mind, and secondly, that the appellant suspected the deceased of having a connection with a woman who he himself wanted. It is well settled that it is not necessary for the prosecution to prove the motive for a crime. The mere fact therefore, that the prosecution has not suggested any definite motive for the crime, does not mean that the person proved to have committed a crime is not fully liable for it. Generally motive is only a guess because though the circumstances may show that the crime was the result of the motive suggested by the prosecution, it may have been the resin: of something entirely different of which the accused alone had knowledge. The appellant has not suggested anything which might bring the case within one of the Exceptions to section 300 of the Pakistan Penal Code and there is nothing in the prosecution evidence which might suggest any such thing. I would, there fore, maintain the conviction of the appellant under section 302 of the Pakistan Penal Code. The sentence imposed on the appellant is the minimum prescribed by law for an offence of murder and I would, therefore, dismiss his appeal. ABDUL AZIZ KHAN, J.‑I agree. A. H. Appeal dismissed.