1969 PLP 621 (SCMR)

Date of hearing : 22nd April 1954. A. R. CORNELIUS, J.‑The petitioner Hassu stands convicted under section 302, P. P. C., and sentenced to death for the murder of one Allah Bakhsh from motives of greed. The prosecution case is that the crime was committed with the collaboration of Hassu's brother‑in‑law Lakha, who gave evidence in the case as an approver. The discovery of the crime was considerably delayed, and one of the questions for consideration in the case is whether the human remains produced in the case were the remains of the deceased Allah Bakhsh. Another question requiring determination is whether the approver's evidence can be safely relied upon in the absence of other evidence connecting Hassu with the commission of the crime, that is to say, whether it is corroborated by other independent evidence in the manner which the Court invariably insist upon, for the purpose of founding a conviction. Hassu belongs to village Butt in Tehsil Chunian of Lahore District, and his brother‑in‑law Lakha lives in Chak No. 14 some nine miles from village Butt. The deceased Allah Bakhsh was a mochi and a refugee who lived in village Butt along his cousin Umar Din. Both of them are alleged to have been to death by Lakha and Hassu. The original report in the case was made on the 24th October 1950, by Bagga, an Arain refugee, living in village Butt. It was briefly to the following effect. About the middle of July 1950, a sister‑in‑law of Umar Din, Mst. Fatima, was abducted by one Kamman. Umar Din and Allah Bakhsh commenced a search for her. About the beginning of August 1950, Hassu induced Umar Din to give a bullock on loan to Lakha for the purpose of ploughing. Some five days later, say the 6th August 1950, Hassu asked Umar Din in the presence of certain persons to go with him to Chak No. 14 to bring back his bullock. Two or three days later, say 9th August Hassu told Bagga that Umar Din bad sold the bullock to Lakha for Rs. 320 of which he had received Rs. 200 and had gone direction of Bahawalpur to look for Mst. Fatima. Umar Din never returned to the village, about the 10th September 1950, Hassu took Allah Bakhsh with him to Chak No. 14 on the pretext of receiving the balance of the purchase price of the bullock viz., Rs.

120. Allah Bakhsh too did not return, but Hassu came back to the village about the middle of September 1950. He asked Bagga to give him the landlord's share of the produce of Umar Din's land which Bagga was cultivating, saying that he had taken the land on contract from Umar Din, and producing a writing in support. The next day, Hassu unlocked Umar Din's house and removed the house‑hold articles to his own place. He had already, when taking Allah Bakhsh with him to Chak No. 14, removed a buffalo and a calf from Allah Bakhsh's house to his own. On these grounds, Bagga expressed the suspicion that Hassu and Kamman had killed Umar Din and Allah Bakhsh, who had no relations in the village. The evidence in the case was confined to the charge in respect of Allah Bakhsh. Bagga as the principal witness declared that on a particular day, he and Sardar Ali were sitting at his house when Hassu and Allah Bakhsh came there and Allah Bakhsh asked for the loan of a kurta, as his own was torn. He said he and Hassu were going to Chak No. 14 to get the price of a bullock from Lakha. Bagga gave Allah Bakhsh a kurta and the two men went away, but shortly after, they met him again in Bagga's field on their way to Chak No.

14. On this occasion, Bagga, had the company of Chiragh (P. W. 9). Nothing was borrowed at this place. The two men merely stated details concerning the sale of Umar Din's bullock to Lakha. Allah Bakhsh never returned, but according to Bagga, Hassu returned the following day, and said that Allah Bakhsh had gone to Bahawalpur to fetch Umar Din. The corpse, or rather the skeleton, which is alleged to be the remains of Allah Bakhsh was found in the area of village Shah Inayat, which is beyond, Chak No. 14 at a distance of some 3 kos, say 4 1/2 miles. There is no evidence except that of Lakha to show that Hassu and Allah Bakhsh ever visited Chak No.

14. No evidence was led to show that the three men were seen together on the way from Chak No. 14 towards village Shah Inayat. It is not alleged that either Hassu or Lakha was found in possession of anything carried by Allah Bakhsh at the time when he allegedly met his death. The solitary evidence to connect Hassu with the killing of Allah Bakhsh is the statement of Lakha. Declaring that he and Hassu had killed Umar Din two months before the murder of Allah Bakhsh, Lakha said that when Allah Bakhsh and Hassu came to his house, he supported Hassu's story that Rs. 120 out of the price of Umar Din's bullock were still due, and asked Allah Bakhsh to accompany him to village Dhala 5 kos away where he would borrow the money from an acquaintance. On the way, after covering about 3 kos when they were passing through some deep depressions, Lakha on receiving a signal from Hassu strangled Allah Bakhsh with a safa, after which Hassu killed him with two or three blows of a sword on his neck. Then Lakha and Hassu buried the body at a short distance from the path. Some time later, Lakha sold Umar Din's bullock to one Nur Muhammad, it being agreed that Hassu would take as his share, the buffalo and calf which he had already removed to his own house. About a month later Hassu brought the police to Lakha's house, and he was interrogated. The body was allegedly discovered at the instance of Hassu. It was found buried in the depressions, about 2 feet below the ground. When it was recovered, all the flesh had disappeared and there were only bones to be seen. The report of an official anatomist regarding the bones, which were sent to him, indicates that ten of the ribs on the left side and eight on the right side were broken. A khaddar kurta was found with the bones, and near the place, i. e., outside the grave, a single shoe was found. The condition of the skeleton does not bear out the evidence of Lakha that Allah Bakhsh was despatched by means of two or three sword blows on the neck. Lakha's evidence does not explain the large number of broken ribs that were found. If indeed death took place only a month before the exhumation, it is difficult to understand the complete disappearance of the flesh, for in ordinary circumstances, the reduction of a corpse to the condition of the skeleton, where it is buried deep and is thus safe from the scavenging of birds and animals, takes a much longer time. It is equally difficult to understand how the kurta survived the processes of putrefaction and dissolution so as to have been recovered almost intact. Other khaddar clothes buried with the body appear to have been reduced to rags. For the purpose of identifying the skeleton as that of Allah Bakhsh reliance was placed upon the kurta and the shoe mention?ed above. Bagga who was responsible for bringing the whole matter to the notice of the authorities, recognised the kurta. as belonging to him which he had loaned to Allah Bakhsh, but it is to be noted that there is no mention of this loan in his initial report. As for the single shoe, a mochi Umar Din was produced to say that he had once repaired i t for Allah Bakhsh. This evidence is clearly insufficient for sustaining a finding that the skeleton found was that of the missing Allah Bakhsh, and there need therefore be no hesitation in departing, in respect of this finding from the ordinary rule, that such findings based on evidence will be accepted as final by this Court. This finding is clearly based on no evidence. It is the invariable practice of the Courts in Pakistan to require that the testimony of an approver should be corroborated in material particulars from independent sources before it can be accepted as sufficient to base a conviction upon. Despite the declaration to the contrary contained in the judgment of the learned Judges, we can find no corroboration of the statement of the approver Lakha on the record. There is nothing adduced even of a general nature to satisfy the Court that Lakha was making his statement regarding the murder of Allah Bakhsh from personal knowledge. The bullock mentioned in the case was never produced, and the story of its being loaned and subsequently sold to Nur Muhammad rests wholly on Lakha's statement. The mention of the loan in Bagga's evidence appears to be based on hearsay. On the contrary, the condition of the corpse does not accord with Lakha's account of the manner in which Allah Bakhsh was killed. Even the location of the corpse was not discovered through Lakha. In the circumstances, Lakha's mere declaration that he and Hassu killed Allah Bakhsh is by no means sufficient to sustain Hassu's conviction. The fact of Lakha Wing related to Hassu is without effect in this respect, for the taint applies to Lakha's evidence by virtue of his self‑confessed participation in the crime, and its effect is not minimized in any way by the fact of Lakha and Hassu being related to each other. On examination of the judgment of the High Court, it appears that the learned Judges found corroboration of the approver's testimony in the circumstance of the discovery of the skeleton with the kurta and shoe by which it was identified. For this discovery, Hassu alone was responsible, and it cannot there?fore be used as corroboration of Lakha's statement made appreciably after the discovery. In view of the clear doubt regarding the identity of the skeleton as the remains of the deceased Allah Bakhsh, no conclusion adverse to Hassu, in relation to the particular charge can be drawn from the evidence that the place of burial was pointed out by Hassu. For these reasons, we allow this appeal, and acquit Hassu. Appeal accepted.