P L D 1971 Lahore 947 (PLP)

(e) Criminal trial ‑ Evidence ‑ Corroboration Questions whether certain corroborative circumstance worthy of credit and can be regarded as sufficient‑Held, fall within purview of trial Court Inquiry Magistrate cannot examine such questions at any length and High Court not called upon to do so in proceedings under S. 215, Criminal Procedure Code (V of 1898). Saeedur Rahman Khan for Petitioner. Riaz Anwar for A.‑G. for the State. Dates of hearing: 24th and 25th February 1971. This petition under section 215 of the Code of Criminal Procedure seeks the quashment of a commitment order dated the 18th of September 1970 made by Raja Muhammad Aslam, Special Railway Magistrate at Multan, directing that the peti tioner shall stand his trial in the Court of Session on charges falling under sections 302 and 377 of the Pakistan Penal Code. A prayer has also been made for the grant of bail to the petitioner under section 497 of the Code of Criminal Procedure.

2. The relevant facts are that on the 27th of March 1970 the dead body of a young boy named Riaz Ahmad, son of Ghulam Muhammad, was found floating in a deserted well situated on the outskirts of village Qasim Bala, in the jurisdiction of Multan Cantonment Police Station. A wrist‑watch, belonging to the approver Altaf Ahmad (P. W. 1), was recovered from the shirt pocket of the deceased. The case for the prosecution is that the petitioner Abdul Hamid alias Hamida, and his co‑accused Allah Bakhsh alias Bakka, had been pestering the deceased to permit them to have unnatural intercourse with him, and that they made this demand on him when on the night of 21/22nd of March 1970 they saw the deceased going to the Basti near the garden of Altaf Bhutta. On the refusal of the deceased to submit to the accused, the petitioner put a chadar on the face of the deceased while the co‑accused Allah Bakhsh held the deceased by his throat and dragged him inside the garden. It is stated that at that time the two accused were accompanied by the approver Altaf Ahmad. Having thus over‑powered the deceased, the petitioner Abdul Hamid started carnal intercourse whereas Allah Bakhsh kept on pressing the throat of the deceased. As a result, the deceased expired at the spot. It is alleged that all the three persons then wrapped the dead body in a chadar and threw it into the well from where it was recovered on the 27th of March 1970.

3. At one stage in the investigation, an attempt appears to have been made to persuade Allah Bakhsh alias Bakka to become an approver, but he declined to do so when he was produced before a Magistrate on the 7th of May 1970. However, Altaf Ahmad agreed to become an approver on the 5th of May 1970, and, on being granted pardon, his statement was recorded by a Magistrate of the 1st Class in which he disclosed the facts as stated in the preceding paragraph.

4. It is contended on behalf of the petitioner that the commitment is liable to be quashed on the ground that the learned Magistrate has not at all applied his mind to the question whether there were sufficient grounds for committing the accused for trial, and instead he has simply catalogued the evidence produced by the prosecution and has concluded his order with a mechanical direction that the accused be committed to the Court of Session. It ii further submitted that, in any case, there is no evidence to warrant the commitment of the petitioner and his co‑accused, as no conviction can be based on the uncorroborated testimony of the approver who has not implicated himself fully in the crime. It is contended that it has now become a rule of law that the Courts will not act on the uncorroborated testimony of an approver, and, therefore, the case falls squarely within the ambit of section 216 of the Code.

5. The procedure for commitment inquiries is detailed in Chapter XV11I of the Code of Criminal Procedure. The sections directly relevant in the present context are from 209 to

213. A perusal of these sections leaves no doubt, whatso ever, that the Inquiry Magistrate is under a legal obligation to apply his mind to the facts of the case for the purpose of determining whether there are or not sufficient grounds for committing the accused person for trial. Section 213 clearly Enjoins the Magistrate to record briefly the reasons for such commitment": The obvious purpose of this injunction is that the commitment order is to be a speaking order so as to show the application of mind by the Magistrate for arriving at the conclusion that there was a prima facie case against the accused which merited trial by the Court of Session.

6. At the same time it is also clear that in a case which is otherwise fit for commitment, the mere failure or omission of the .Magistrate to record reasons would not amount to an illegality, but would be in the nature of an irregularity which could tie cured by directing the Magistrate to record his reasons in compliance with the provisions contained in section 213 of the Code (see Emperor v. Nanji Samal (A I R 1914 Bom. 237) and Khera and others v. The Crown (P L D 1954 B J 30). The learned counsel for the petitioner drew my attention to Zahid Hasan Khan and others v. The State (P L D 1964 Dacca 600) in which the learned Judges refused to send the case back to the Inquiry Magistrate for writing out a proper order of commitment, and instead quashed the commitment. The facts of this case are; however, clearly distinguishable for the reason that the learned Judges had formed the opinion that on merits there was no justification for commitment.

7. Now, in the present case I find that the order recorded by the learned Magistrate does not suffer from the kind of infirmity attributed to it by the learned counsel for the peti tioner. The learned Magistrate has fully stated the prosecution case and the evidence adduced in support thereof. In the concluding portion of the order he has stated that the prosecu tion evidence "goes unrebutted", and this is followed by the direction that the accused be committed to the Court of Session. It is hardly possible to lay down that a commitment order must be as elaborate as a judgment of conviction or acquittal. In these circumstances I do not think that the order in question needs interference simply on the ground that it does not contain elaborate reasons for commitment. Even otherwise at best, it would have only called for a direction to the learned Magistrate to re‑write his order.

8. The real question, therefore, is whether this is a case where the commitment should be quashed on the ground that there was no evidence to justify the same. The question whether absence of evidence is a point of law within the meaning of section 215 of the Code, of Criminal Procedure has been discussed exhaustively in a recent judgment delivered by my learned brother Muhammad Afzal Cheema, J. in Muhammad Azam v. The State (1970 P Cr. L J 76). It is not necessary for me to allude to the precedent cases cited in this behalf at the bar, as I am in respectful agreement with the conclusion reached by my learned brother that whereas want of evidence is a question of law, mere insufficiency of evidence is not. Accordingly I proceed to consider whether there is indeed no evidence justifying commitment in this case.

9. As already stated, the prosecution appears to be mainly relying upon the evidence of the approver Altaf Ahmad. The contention on behalf of the petitioner is, that, in the first place, the approver has not fully implicated himself in the commission of the crime, and therefore, his evidence is not admissible under section 133 of the Evidence Act; and, that, in the second place, there is no corroboration, with the necessary consequence that the evidence cannot be acted upon for basing a conviction against the petitioner.

10. I shall take up the second ground first. As a matter of law, under section 133 of the Evidence Act an accomplice is a competent witness against an accused person and. a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. It is true that the Courts have emphasised, time and again, that as a matter of prudence there ought to be independent corroboration of an approver's statement on material points suggesting a link between the accused person and the crime before the approver's testimony can be accepted as a safe foundation for conviction. The extent and nature of corroboration would naturally vary from case to case (see Abdul Khaliq v. The State (P L D 1970 S C 166). Nevertheless, the fact remains that for the purposes of section 215 of the Code of Criminal Procedure it has to be shown that there is a point of law warranting quashment of the commitment order, and this result cannot be achieved by reference to a rule of prudence evolved by the Court. It was rightly observed in Bal Chand and others v. King‑Emperor (A I R 1927 All. 90) that "it is impossible to hold that the evidence of an accomplice uncorroborated cannot be said to be evidence against an accused . . . ." and further that "whether an accomplice can be believed or whether the evidence of an accomplice has been corroborated is a matter for decision at the trial". A similar view was taken by a Division Bench in Abdul Majid v. The State (P L D 1957 Lah. 77). Shabir Ahmad, J., who delivered the judgment of the Court, observed, that "a judicial confession,' though retracted, and the statement of an approver,‑ are both pieces of evidence whether or not these two pieces of evidence should be held sufficient for the conviction of the maker of the confession is not a question of law but essentially one of fact, decision of which must depend on the circumstances of each case." I am in respectful agreement with the view expressed in these decisions. It seems to me, therefore, that a commitment cannot be quashed only on the ground that there is no corrobora tion of the approver's testimony, as the question of corroboration is not a point of law within the meaning of section 215 of the Code of Criminal Procedure in view of the express provisions embodied in section 133 of the Evidence Act.

11. As regards the contention that Altaf Ahmad cannot be regarded as an approver in this case, suffice it to say that I have read the statement made by him during the commitment proceedings and it appears that he does implicate himself in some manner in the events leading to the death of the deceased Riaz Ahmad. It is true that he has made an attempt to show that he was not directly responsible for the acts which led to the tragedy, but that does not mean that he cannot be regarded as an accomplice within the meaning of section 133 of the Evidence E Act. In any case, even the determination of this question would need appreciation of evidence to an extent which appears to me to go beyond the sc jpe of the commitment inquiry as envisaged by the relevant sections, and as interpreted by their Lordships of the Supreme Court in Hari Ballav Shaha Roy v. Gopi Ballav, Shaha and another (P L D1959 SC (Pak.) 347).

12. Before I part with this case, I may mention that the learned counsel for the State drew my attention to the fact that this is not a case where corroboration is totally absent. The learned counsel pointed to the medical evidence, the recovery of the chadar of the petitioner, and the evidence of two persons named Muhammad Ramzan and Abdul Hamid to show that the three persons concerned in the crime were seen proceeding towards the spot at or about the time when the occurrence is alleged to have taken place. Whether these corroborative circumstances are worthy of credit and can be regarded as sufficient, are questions falling within the purview of the trial Court. It is not the province of the Magistrate to examine them at any length, nor am I called upon to do so in the present proceedings.

13. For the foregoing reasons, the petition fails and is hereby dismissed. Petition dismissed.