P L D 1957 (W (PLP)

MUHAMMAD SHAFI, J.‑--Chaudhry Sardar Khan (P. W.37), aged about 57 years, is a landlord and business man of Hassan Abdal. He is also one of the proprietors of Lala Rukh Cinema situated in the above mentioned town. On the night between the 19th and 20th of June 1955, he, along with his wife, went to the Lala Rukh Cinema to see a Picture styled as "Beju Bawra" in the second show which commenced at 9‑30 or 9‑45 p.m. The show finished at 1 a.m. and the couple started back to their bungalow situated beyond the Grand Trunk Road, at a distance of about 1 or 2 furlongs from the Cinema. While going to Chaudhry Sardar Khan's bungalow one has got to pass by a tent where there is an octroi post and then go for some distance on a Aucha Path. Chaudhry Sardar Khan had gone for about 25 or 30 Karams on that Kucha path after crossing the Grand Trunk Road and the octroi post when he noticed two men sitting under a Shisham tree and a third man on the berm of the road to the east. When he and his wife had gone four or five paces ahead of the Shisham tree, he was fired at from behind. He got injured on the right arm near the wrist. He went one or two paces ahead and then turned round to make an attempt to identify the assailants (when five further shots were fired in quick succession at him. He shouted to them as to why they had made a murderous attack on him when he had done no harm to anybody. The three culprits, it is alleged, after firing these six shots, out of which four hit Sardar Khan, decamped from the spot. One of them ran towards the G. T. Road and the other two towards the house of Muhammad Gul, uncle of Awal Khan accused, which seems to be situated on the opposite side of the G. T. Road. Chaudhry Sardar Khan realed and going to fall down when his wife gave him support and saved him from falling down. In the meantime, Ghulam Mohayuddin (P. W. 8), the Octroi Muharrir, arrived from the octroi post, gave additional support to Chaudhry Sardar Khan, and taking him to a place outside his tent, made him sit down against a bag full of cotton. Standing outside the tent, Ghulam Mohayuddin (P. W. 8) called out to Chaudhry Ghairat Ali (P. W. 36), the son of the injured person, telling him that his father had been wounded with bullets. Chaudhry Ghairat Ali accompanied by his servant, Ghulam Raider (P. W. 7) and three or four other persons reached the spot. Ghulam Haider was immediately despatched to ask Muhammad Sadiq (P. W. 5), the Manager of Lala Rukh Cinema to proceed to the Police Station at once and have a case registered. Ghairat Ali himself went and fetched a car, and putting Ch. Sardar Khan into it, took him hurriedly to the Wah Cement Company Hospital. Muhammad Sadiq (P. W. 5) straight went to Hassan Abdal Police Station, situated at a distance of about four furlongs from the scene of occurrence and lodged a report there at about 2 a.m. No one was charged therein. Ch. Sardar Khan was examined in the Wah Company Hospital by Dr. Hamid Shafi (P. W. 1) at 1‑45 a.m. He found the following injuries on his person:‑ (1) Two injuries, one that of entry, and the other that of exit, on the lower part of the right forearm. (2) Four wounds, two of entry, and two of exit, on the right thigh. (3) Two wounds, one of entry, and the other of exit, on the scrotum. Dr. Hamid Shafi stopped the bleeding, and after rendering the first aid, advised that the wounded person should at once be taken to the Combined Military Hospital, Rawalpindi, for attendance by Surgical specialist. Ch. Sadrar Khan was taken to the said Hospital reaching there at 3‑30 a.m. He was examined by Lt. Col. M. S. Hassan (P. W. 2). According to him the injuries which Ch. Sardar Khan had on his person were caused by gunshot which expression included a pistol -shot. Ch. Sardar Khan was admitted as a private patient and remained in the hospital until the 29th of June 1955, when he was discharged, but he was directed to continue even after discharge, the treatment as an out‑door patient. According to Lt. Col. M. S. Hassan, the margins of the wounds of entry were blackened. At this stage, it seems necessary to go back to the first information report. It was drawn up by Muhammad Saleh (P. W. 40), the S. H. O. Hassan Abdal, who went to the spot and took blood‑stained earth from the place where Ch. Sardar Khan was alleged to have been wounded. He also took blood‑stained earth from near a bag of cotton lying near the octroi post No.

6. It appears that Muhammad Saleh (P. W. 40) carried on the investigation till the 29th of June 1955; but he could not find any clue of the culprits up to that time. The higher authorities then on the 24th of June 1955, directed Sayed Inayat Hussain Shah, Inspector C. I. A. (P. W. 35), to take charge of the investigation. This officer contacted Ch. Sardar Khan, and probed into all the possibilities of getting a clue. He collected all people of dissolute character and started interrogating the people in the Dak Bungalow of Police in Hassan Abdal. Muhammad Nawaz (P. W. 25), aged about 26 years, was brought before him, and as the latter puts it "his intuition guided him to lay hands upon him." He focussed his attention on interro gating him, and as he says the truth dawned upon him. He was then transferred to the C. I. D. on the 2 6th of June 1955, and the investigation was thereafter carried on by Saeed uz Zaman Inspector Campbellpur. This officer has not been produced into the witness‑box. Muhammad Nawaz was arrested on the 26th of June 1955, at 8‑30 p.m. The shirt which he was wearing was taken into possession by the police, because it had certain holes which corresponded to an injury which Muhammad Nawaz had on his abdomen. Muhammad Nawaz was examined on the same day at 9‑15 p.m. by Dr. Sardar Ahmad (P. W. 3) and found to have an oblique healed scratch mark, 1 " in breadth, in front of the abdomen, to the left of the middle line, 2" above the umbilicus. According to this doctor, the duration of the injury was about seven days. On the 4th of July 1955, Muhammad Nawaz led Muhammad Saleh (P. W. 40) to the garden of one Pandit Shivdat and produced from underneath certain bushes a dagger (Exh. P. 3). One Isab Khan (not produced) arrested Awal Khan, aged about 32 years, son of Khaista Gul, a Hotel‑keeper, of Hassan Abdal, as well as the latter's servant, Muhammad Miskin, aged about 18 or 19 years, son of Jiwan, on the 5th of July 1955. Awal Khan is alleged to have led Muhammad Saleh (P. W. 40), to his house and produced an unlicensed revolver of 38 bore and a sword from within a Tauni. These recoveries are alleged to have been made in the presence of Maula Bakhsh (P. W. 34) and one Muhammad Afzal, who was given up by the Public Prosecutor as an unnecessary witness (page 153 of the Sessions file). Muhammad Saleh (P. W. 40) also recovered a photograph of Awal Khan and Muhammad Anwar from within an almirah in the house of Awal Khan. Muhammad Saleh (P. W. 40) on the 8th of July 1955, arrested another servant of Awal Khan by the name of Muhammad Anwar, aged about 22 years, son of Nazar Muhammad. He took from his possession a knife (Exh. P.4). This Muhammad Anwar is alleged to have led the investigating officer named above on the day when he was arrested to a brick‑kiln, and taking out four empty cartridges of a revolver from underneath a bush, handed them over to him. This incident was witnessed by the same Maula Bakhsh (P. W. 34) and Abid Hussain (P. W. 28). Muhammad Nawaz turned an approver. He was given the necessary pardon and his detailed statement recorded by Chaudhry Muhammad Iqbal Magistrate (P. W. 6) on the 8th of July 1955. As a result of the investigation and the com mitment proceedings, Awal Khan, Muhammad Miskin, and Muhammad Anwar stood their trial under section 120‑B, P. P. C. for having entered into a conspiracy to murder Chaudhry Sardar Khan as a result of which the latter was fired at and injured. Muhammad Awal and Muhammad Miskin were in addition charged under section 307/34 of the P. P. C., for having fired at Sardar Khan in furtherance of their common intention. Awal Khan similarly was also charged under section 307/109 of the P. P. C., for having supplied the revolver and the Gupti (sword) to Muhammad Miskin and Muhammad Anwar for the commission of the offence under section 307 of the P. P. C. At the trial no less than forty witnesses were produced by the prosecution. All the three accused completely denied the charges. Their statements were recorded in very great details. Awal Khan denied all facts which were brought upon the record from the mouth of the prosecution witnesses but he admitted that his co‑accused, Miskin, Anwar and the approver, Nawaz, were his servants. He further added that the prosecution witnesses who had appeared against him were not his enemies, but they were either the servants or the relations, or under the influence of Ch. Sardar Khan. He further added that one Munawar, accompanied by one Majid, had given a knife‑blow to Aslam at his shop, and that he was being involved on account of that case. He further stated that Muhammad Nawaz had no enmity with him, but he must have been paid by Sardar Khan who is a rich man. He also stated that he had made certain complaints against the Additional District Magistrate and that is why this case has been brought against him. Muhammad Anwar and Muhammad Miskin just denied the charges and stated that all the allegations made against them were false. The four assessors were unanimous in their opinion that Anwar and Awal Khan were guilty, but stated that Miskin was not, who according to them, was entitled to the benefit of doubt. The learned Sessions Judge, Campbellpur, agreeing with the opinion of the assessors, acquitted Miskin, but convicting the remaining two accused under section 120‑B of the P. P. C., sentenced each of them to transportation for life. He further convicted Awal Khan under section 307/109 of the P. P. C., and Anwar under section 307 of the same Code, and sentenced them each also to transportation for life. Both the sentences were ordered to run concurrently. The two convicted persons have come up on appeal to this Court. One joint appeal was filed by both the accused -appellants through their counsel Mr. Abdul Latif Khan, an Advocate of this Court. It transpired that after filing the appeal, Muhammad Anwar accused‑appellant escaped from jail and is still a fugitive from justice. A question arose whether his appeal could legally be heard and decided in his absence. Mr. Abdul Latif Khan contended that there should be no difficulty in hearing and disposing of the appeal, because he was quite prepared to argue it on Muhammad Anwar's behalf. Under section 422 of the Criminal P. C., the Appellate Court, if it does not dismiss the appeal summarily, has to cause notice to be given to the appellant or his Pleader. Under section 423 of the same Code, the Appellate Court is competent to dispose of the appeal after perusing the record and hearing the appellant or his Pleader. It is clear from both these provisions of law that it is not necessary that the appellant in person should either be served with a notice or heard before his appeal is disposed of. The provisions of law are well satisfied if his counsel is served with a notice and he is given an opportunity to be heard, because both under section 421 as well as under section 423, the word "or" is used between the words "the appellant and his Pleader", and not "and". The sole basis of the conviction of the two appellants on both the charges is the testimony of the approver Muhammad Nawaz. The law governing the acceptance of an approver's evidence against the accused‑appellant is well‑defined and admits of no doubt. Even in Ishaq v. The Crown (P L D 1954 F C 335), although the five Hon'ble Judges, who formed the Full Bench, in that case, differed between themselves on the sufficiency or the effect of the corroborative evidence viz., the discovery of the dead body at the instance of the accused person, they were agreed upon the basic principles governing such evidence. The approver is an abominable creature. His evidence has got to be looked upon with distrust and suspicion, because according to his own admission, he took part in the commission of the crime in a most dastardly and cowardly manner. Apart from that, he shows a lack of character in betraying so shamelessly his own companions who repose a trust of a very serious nature in him and presumably had taken a solemn pledge from him that he would not divulge the secret to anybody in any way. By his own conduct, he, thus, shows that he is most untrustworthy and unreliable man. Such a creature, detestable as he is, obviously cannot be expected to have any scruples. He can go to any depth even to the length of telling an outright lie either to please somebody or to involve a completely innocent person for his own personal ends. He may be tutored to repeat parrot‑like a narrative well‑knit, carefully prepared and well thought over for him. It is possible for him, even if it be said that he took part it the commission of an offence, to substitute the name of a person completely ignorant of the crime, for the guilty one. It is for these reasons, and numerous others which have been mentioned too often in several judgments to be repeated here, that it has been uniformly held that the approver's state ment which is accepted into evidence only as a matter of necessity should not form the basis of conviction, unless it is corroborated in material particulars by an independent evidence connecting the person threatened to be hit by such a statement in very clear terms with the offence charged. To hard and fast rule can be laid down as to what particular evidence can be considered as sufficient corroboration of an approver's testimony. Each case shall have to be decided on its own particular merits. A certain piece of evidence may be of good corroborative value in one case, and it may be completely worthless in the other. It must, however, be observed that it is not necessary that the corroborative evidence, before it is accepted, should by itself, be sufficient to prove that a certain person has committed the crime. It is also not necessary that such an evidence should invariably C be susceptible to an explanation inconsistent with the innocence of the accused. If such an evidence taken along with the approver's evidence shows or tends to show that the part assigned to the accused by the approver is true to the satisfaction of the Court, then the Court will be justified to act upon it and make the approver's statement a basis for the conviction of such person. It may also be noted here as a well‑settled law that it is wholly unnecessary for the prosecution to produce evidence to confirm all the particulars disclosed by the approver. If a single particular corroborates the approver's statement to such an extent that it convinces the Court that the accused person is guilty of the offence, then the Court will be well within its legal orbit to act upon p it. It is, thus, clear that all that has got to be seen in this case is whether the corroborative evidence produced by the prosecution satisfied the requirements which the law insists upon before a conviction is recorded against the two appellants. (After discussing the approver's statement and the evidence the judgment proceeded.) P. Ws. 28 and 34 Abid Hussain and Maula Bakhsh may be taken together. Their evidence is to the effect that in their presence Muhammad Saleh S. H. O. Hassan Abdal (P. W. 40) recovered a chhuri from the garden of Shivdat at the instance of Muhammad Nawaz approver, a knife from the person and four empty cartridge cases from near a brick‑kiln at the indication of Anwar appellant. Maula Bakhsh (P. W 34) is also a witness of Awal Khan accused taking out a revolver from his house and a Gupti from under the quilts lying in his house and producing them before the afore mentioned investigating officer. It is really a very strange coincidence and this fact creates a very great doubt in my mind about the correctness of their testimonies that both of then should be present on the 4th of July 1955, when Muhammad Nawaz pointed out the place from where a dagger was recovered and on the 8th of July 1955, when Muhammad Anwar appellant pointed out the place where the empty cartridge cases had been concealed. I really cannot understand why did the investigating officer not get hold of some other respectable men of the locality to witness the recovery which took place on the 8th of July 1955. The same Maula Bakhsh then was a witness to the recovery of the revolver and a Gupti on the third day, namely, the 5th of July 1955. Somehow or other it gives me an impression that Maula Bakhsh and Abid Hussain were specially engaged to witness the recoveries. When the law insists that the search of a certain place should be conducted in the presence of respectable witnesses of the locality it means not the witnesses who are employed for this purpose, but the witnesses who are present by chance there, and in whose presence the Sub Inspector conducts the search. (After further discussion of facts the judgment proceeded) The argument which the learned Sessions Judge has given in this paragraph is certainly very extraordinary. It is said that the approver is a man with a clean record. He has no connection with the complainant's party, and thus, had no motive to involve the accused in the case. The approver is a Faqir. It is not possible for me to believe that he is a Mujawar of a well known shrine of Hassan Abdal, and if he is so, his income from that Shrine is about Rs. 200 or Rs. 150 per mensem. If that was the case, he would not have accepted a job of an ordinary servant to take the loaves in the hotel of Awal Khan. The argument given by the learned Sessions Judge can be well answered by repro ducing the following paragraph with greatest respects from the judgment of the Supreme Court of Pakistan in the famous Rawalpindi Murder case Abdul Qadir v. The State (P L D 1956 S. C. (Pak) 407 at p. 413): "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 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 or suggest that either of the accomplices had any reason to 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 circum stance, therefore, does not have any material corroborating value. We are then left with the position that the approvers were connected with the murder, that the appellant is unable to 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 circumstances 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 boil, taken together can be such confirmation of the accomplice's 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 uncorro borated 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". (The judgment then examined some further arguments and concluded). Giving my anxious consideration to the facts of this case I am afraid it is not possible for me to uphold the convictions of the two accused‑appellants on the evidence of the approver, uncorroborated as it is, by any independent evidence. The Judges are after all human beings, and it is possible that they may commit an error, but I consider that for a Judge to commit an error on the side of acquittal is safer than to commit an error on the side of conviction. The appeal of the appellants is hereby accepted. Their convictions and sentences are set aside. Awal Khan who is in jail, is ordered to be set at liberty at once. Muhammad Anwar, as has already been noted, escaped from jail, and it is, therefore, unnecessary to pass the order of his setting at liberty at once at this stage. HABIBULLAH, J.‑

I agree with the finding of my learned brother but for somewhat different reasons. Approver is essentially a criminal, but he is not neces sarily always a liar. The view that his evidence should never be believed will be tantamount by necessary implication to laying down the rule, that his testimony is not susceptible to corroboration on the well‑known principle that false evidence cannot be corroborated. In my judgment this extreme rule would be as dangerous to the administration of criminal justice, as the contrary extreme rule that the evidence of an approver must in all cases be acted upon for the simple reason that he admits his participation in the crime. The question, whether an approver should or should not be believed, will depend upon the peculiar circumstances of each case and no hard and fast rule can be laid down. What one has to look for is whether there is extraneous and independent evidence to corroborate the testimony of the approver in material particulars? As a rule the evidence of an approver by itself will not be considered sufficient for the conviction of his alleged partners. But if independent evidence is forth‑coming to connect the accused persons with the crime, such evidence coupled with the testimony of the approver, if he has proved himself to be a reliable witness, would be deemed sufficient for the conviction of the accused persons. In the present case it has been proved beyond doubt that Muhammad Nawaz approver, Awal Khan, Anwar and Miskin were seen together on the night of occurrence, before the incident, loitering about in the vicinity of the spot; that the approver had visited the cinema building where Chaudhry Sardar Khan complainant and his wife had gone to see the show; that 3 persons (Awal Khan was absent at that time) ambushed Chaudhry Sardar Khan, who was on his way back to his bungalow from the cinema and one of them fired 6 shots at him as a result of which he was wounded; that 3 persons were seen running away from the spot, one of them in one direction and the other two in another; that the approver sustained an injury on his abdomen when he bumped into a barbed‑wire‑fence of a field while running away; that he later, when arrested, led the investigating officer to the place in a garden where he had concealed his dagger and produced it; that Awal Khan had a very strong motive to kill Chaudhry Sardar Khan; that neither Chaudhry Sardar Khan, nor other pro secution witnesses had even the slightest motive to falsely implicate Awal Khan and his servants, and: that the approver had no cause whatsoever to falsely incriminate his pay‑master Awal Khan, or his co‑servants, Anwar and Miskin, nor was he in any way connected with the complainant's party. All these circumstances fully corroborate the main story of the approver and, therefore, I have no doubt in my mind that the approver has stated the truth. As a rule of prudence, the testimony of an approver, howsoever true it may sound requires corroborative evidence to connect the accused persons with the crime. In this case the only evidence which tends to connect Awal Khan and Anwar appellants with the crime consists of the recovery of a revolver, 4 empty shells and a knife in consequence of the information given by them to the investigating officer. If I were convinced that the recoveries were actually made at the instance of the appellants, and in the manner suggested by the prosecution, I would have felt no hesitation in treating this piece of evidence as sufficient to provide that degree of corroboration, which is always insisted upon in such cases, and would have acted on it. But on close examination, the statements of the recovery witnesses have not impressed me very much. Under what circumstances and in what particular manner these recoveries were made, is not indicated precisely and clearly in the statements of these witnesses. On some points their statements conflict with each other. For instance, whereas Maula Bakhsh (P. W. 34) and Muhammad Saleh, investigating officer (P. W. 40), stated that a knife was recovered on a search of the person of Anwar, Abid Hussain (P. W. 28) another recovery witness tells us that Anwar brought his knife from the house of Bali, a brother of Awal Khan appellant. Even if it is conceded that the recoveries were actually made in consequence of the information given by the appellants, it would only prove that the empty shells had been fired from the revolver, as found by the Arms Expert, but this fact would not connect the appellants with the crime, since the empty shells were not picked up from the scene of occurrence. They were recovered from a brick‑kiln in some Kas and it is not clear from the record how far this place is, from the scene of the crime. Consequently I hold that, though the approver has made a true statement, the recovery of the alleged incriminating weapons does not provide that amount of corroboration which I should deem sufficient to confirm the evidence of the approver beyond any doubt. For this reason I give the benefit of doubt to the appellants and accordingly concur with the finding of my learned brother, that the guilt of the appellants has not been established conclusively. A. H. Appeal accepted.