P L D 1959 Supreme Court (Pak (PLP)

S. A. RAHMAN, J.‑The appellants Ghulam Qadir acid Ghulam Haider were tried under S. 302 read with S. 34, Pakistan Penal Code, and sentenced to death for the murder of one Allah Bakhsh. Their convictions and sentences were confirmed on appeal and reference by the High Court of West Pakistan, Lahore. Special leave to appeal was granted in this case to consider the point, inter alia, of the adequacy of the corroborative evidence led by the prosecution to support the evidence of the solitary witness of the murder, namely, the approver Barkat Ali. It was the prosecution case that both Ghulam Qadir and Barkat Ali, the approver, had independent motives to joint in this crime. The approver had paid Rs. 300 to Allah Bakhsh deceased, some time before the murder, in order that the deceased might procure the divorce of the former's sister, Mst. Rasulan, from her husband, Saeed. The deceased, on the contrary, sent away the girl with her husband and retained the money. The, deceased also suspected the approver of having dissuaded his nephew, Inayat, from giving evidence for the prosecution in an abduction case although the police had agreed to cite him as a witness rather than as an accused person in that case, at the instance of the deceased who was a man of influence being a member of the Qila Didar Singh Municipal Committee. Allah Bakhsh in consequence daily chided and even insulted Barkat Ali for letting him down. The deceased had also been instru mental in convening a Panchayat, a few days before the occurrence, to consider the conduct of Ghulam Qadir appellant who was alleged to have developed illicit intimacy with a young unmarried girl, Mst. Sudan, and to have got her in the family way. This incensed Ghulam Qadir against him, Ghulam Haider had no personal grudge against Allah Bakhsh but he is said to have joined the escapade owing to his friendly relations with Ghulam Qadir and clearly no motive for his false implication in the case existed at all. Three days before the murder, according to the approver's story, he was called to the well of Ghulam Qadir accused and there the appellants and Barkat Ali agreed to do away with the deceased. On the night between the 16th and the 17th of July, 1957, at about midnight, Allah Bakhsh was murdered while lying asleep on his cot which lay in an open space in front of his house. The night was moon‑lit. The approver's version is that he had gone and called the two appellants who came armed with swords, that Barkat Ali carried a takwa and that the three quietly killed the deceased with their weapons, without disturbing persons who were sleeping in the vicinity. The appellant then left while the approver lay down on his own cot, a few karams from that of the deceased, after trying to remove (it seems not successfully) the blood‑stains from the blade of his hatchet by rubbing it with earth, inside the courtyard of his own house. Some time later Fateh Din alias Fateh Muhammad Kumhar (P. W. 20) who had slept at a distance of about a bigha from the spot, passed by the cot of the deceased, discovered him lying dead and called upon Barkat Ali to come forward and see what had happened. The approver declined to do so lest he might leave his foot‑marks close to the site of crime, but at the instance of Fateh Din awakened the deceased's servant, Barkat Shah, who lay asleep on his cot at a short distance. A commotion was thus caused and the village people assembled at the spot. The first information of the incident was lodged at P. S. Qila Didar Singh some two miles distant, by Muhammad Ramzan Lambardar (P. W. 24), at 4 a.m. the same night. This was a brief report in which no suspicion was cast on any one and only the fact that Allah Bakhsh had been found murdered on his cot was mentioned. Assistant Sub‑Inspector Sardar Ali (P. W. 25) proceeded to the spot and started the Investigation. The S. I., M. Muhammad Saeed Akhtar, took over the investigation from him at about 7 a.m. on the 17th July 1957. It appears that from the very start a large number of villagers, including the. appellants and the approver, had been attending the investigation proceedings. On the 25th July 1957, early in the morning, B4rkat Ali approached S. I., at the Dera in the village and apparently supplied the clue to the identity of the murders. He then led the S. I., to his house and from there brought out a blood‑stained hatchet (Exh. P/1) from where it lay concealed under some dib fibres. That very day the two appellants were placed under arrest. A blood‑stained chadar (Exh. P. 11) was taken off the person of Ghulam Haider. On the 28th July, Ghulam Qadir accused produced a blood‑stained sword (Exh. P/8) and a tehband (Exh. P/9) from a locked kotha at his well, the key of the lock having been taken out by him from a recess under the door‑sill Ghulam Haider then surrendered a blood‑stained sword (Exh. P. 10), taking it from underneath a heap of dung cakes that lay inside a kotha at his well. The recovered articles were all made into sealed parcels and sent to the Chemical Examiner who analysed the stains on them to be of blood and the serologist in turn certified the blood to be of human origin, Barkat Ali was duly tendered pardon and became an approver in the case. The autopsy on the dead body of Allah Bakhsh revealed cut wounds on the neck the facial region, the right shoulder and the right arm: The head was found severed at the neck and the left temporal and the left occipital bones and the meninges and the brain underneath were all found cut. The medical testimony appears to be in accord with the approver's statements. The very first blow on the neck of the deceased appears to have silenced him for ever. The prosecution relied in this case principally on the evidence of the approver and supporting evidence was adduced about the motive on the part of Ghulam Qadir and Barkat Ali, the associa tion of the culprits prior to and subsequent to the incident of murder and the various recoveries of incriminating articles from their possession. There was no occular evidence of the murder available. The appellants' defence consisted of pleas of innocence and of enmity with the P. Ws. No defence evidence was called to rebut the prosecution case. Both the trial Judge and the High Court found the evidence given by the approver to be satisfactory and held that there was sufficient corroboration of his statement as against the appellants, in the evidence of recovery of blood‑stained clothes and weapons of offence, which was accepted as dependable. In this connection Ghulam Qadir's plea that on the 19th July 1957 at 9 a.m., he was assaulted by Ali Muhammad, Shida and Maula Bakhsh Jats and stabbed, received due consideration in the High Court and it was observed that even if the stains on his loin‑cloth (Exh. P/9) could be attributed to this circumstance, there was no explanation for the human blood‑stains on .the sword (Exh. P/8) recovered at his instance. The approach of the High Court to the case was criticised on the ground that while appraising the evidence of the approver, the learned Judges had referred to an authority of the Lahore High Court as Sher Jang v. Emperor (A I R 1931 Lah. 178) and expressed the view that as the approver was not proved to have a motive to implicate the appellants in a false case and his evi dence on the whole appeared to be reliable, the corroboration required of his statement would be comparatively less. It was urged that the learned Judges had misdirected themselves in law in this respect and consequently this was a fit case in which this Court should review the whole evidence afresh and come to its own independent conclusion on the facts of the case. With respect, it seems to me that the argument is not valid. As a matter of strict law, the uncorroborated testimony of an accomplice could, if accepted, form the basis of a conviction in a criminal case. However in the course of judicial precedents, a rule of prudence has been evolved under which it is always insisted that there ought to be independent corroboration of an approver's statement on material points suggesting a link between accused persons and the crime before such a statement could be accepted as a safe foundation for their conviction. The reason for the rule is obvious. There is always danger of substitution o the guilty by the innocent in such cases and it is realised that it would be extremely risky to act upon the statement of a self‑confessed criminal who while trying to save hip own skin, might be unscrupulous enough to accept suggestions of others to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner. But the corroboration required would depend on the facts and circumstances of each particular case and no hard and fast rule can be laid down in this behalf. . Surely one of the factors calling for consideration may be the circumstance that the approver had no ostensible motive to involve any of the accused persons falsely in the case. That does not imply any relaxation of normal standards of corroboration in such cases and indeed, in my humble judgment, the High Court, in the present case, does nor appear to have been guilty of any such lapse. It has not been seriously contended before us that the approver was not one of the murderers. There is sufficient material in corroboration of his evidence forthcoming on the record to establish his complicity in the crime. Suggestions were indeed made in the trial Court that he was a henchman of the deceased and that he had been put up as a "bogus" approver. But all such suggestions were stoutly refuted. Ramzan (P. W. 24) Lambardar of the village too denied that Barkat Ali was ever in the deceased's service. He stated that he was, to his knowledge, an independent tonga driver. It is urged that other persons who slept near the deceased on the night in question should have been awakened at the time of the assault and the allegation of the approver that they did not, introduces an improbability in his story. I am not impressed by this argument. If any such persons had in fact been roused from sleep at the relevant time, the prosecution had nothing to gain by suppressing their evidence. The learned Judges classified the corroborative prosecution evidence under five distinct heads. They did not think it fit to place much reliance on the testimony of Lal (P. W. 16) who professed to having seen the appellants and the approver sitting together under a sheesham tree at Ghulam Qadir's well, three days before the murder of Imam Ali (P. W. 15) who had heard Barkat Ali approver call Ghulam Qadir appellant from the house at about Isha time on the night of the murder and of Khurshid (P. W. 17) who had seen Ghulam Qadir and Ghulam Haider appellants going towards their well with swords in their hands, on the fateful night. They described their evidence as "not of much value so far as the participation of the appellants in the murder under con sideration is concerned." It seems to me that the statement of Imam Ali (P. W. 15) at least, might with propriety have been attached some weight, at any rate, it is plain that the learned Judges were exercising all care and caution in scrutinizing the evidence on record. The evidence of the recoveries was accepted by the learned Judges, supported as it was by tile testimony of Sadiq, (P. W. 13,) Ch. Khushi Muhammad (P. W. 14) and the Sub‑Inspector. The first named appears to be an ordinary village cultivator but Ch. Khushi Muhammad is a member of the local District Board, whose testimony was sought to be discredited before us by reference to copies of a judgment and the alleged previous state ment of this witness in another case, without those documents having been brought to his notice at any stage of the trial. The inference was intended to be drawn that this witness was of a somewhat shady character, having been under police surveillance at some time. Apart from the question of admissibility of this evidence, it would be unfair in my view to form any adverse opinion as to the credibility of the witness without his having been given an opportunity to explain his alleged previous admission or the remark in the previous judgment. The point that both these witnesses were present with the police on all relevant days when recoveries in the case were made, was present to the minds of the learned Judges. The witnesses had no personal animus against the accused persons and the learned Judges, in my opinion, were entitled to rely on their evidence, if they thought fit to do so, after considering their antecedent$ and the circumstances of the case. The Sub‑Inspector too was not proved to have been actuated by any personal animosity against the appellants, the evidence given by these P. Ws. was consistent inter se and with respect, it seems to me that this Court would be traveling outside its well settled though self‑imposed limits in criminal cases, if it decided to review their testimony in order to form its own independent appreciation of a point of fact. The motive witnesses, Saeed (P. W. 18), Asadullah (P. W. 19) Muhammad (P. W. 21) and Ata Ullah (P. W. 22) were also con sidered to be reliable by the learned Judges and I do not think any error on a point of law or fact was committed by them in the appraisal of this part of the prosecution case. The whole record of the material evidence must have been read out to the learned Judges, as is the practice in the High Court and if the learned Judges say as they do in their judgment, that they had carefully considered the evidence of the approver and the other evidence on the record, I would be very reluctant to assume that all aspects of the case had not received adequate attention at their hands. Merely because they have refrained from dilating upon all the conceivable arguments arising out of the statements of witnesses who appear to have been subjected to a very exhaustive and sometimes unnecessary cross‑examination in the trial Court, would not, in my humble opinion, justify our interference with their findings, as a result of an independent re‑appraisal of the evidence in the case. Such a procedure would tend to convert this Court into merely another Court of appeal above the High Court in criminal matters, thus destroying the principle of finality of findings of fact arrived at by the trial Court and the normal Court of appeal in such matters. I would therefore decline the invitation of the learned counsel for the appellants to adopt that course and would affirm the judgment of the High Court in this respect. The arguments advanced at the Bar, on behalf of the appellants, appear to me to go to the question of appreciation of the evidence alone and this Court's consistent tradition, following the practice of the Privy Council, militates against allowing learned counsel to agitate such a question. In view of these considerations I would dismiss the appeal and affirm the judgment of the High Court in this case. AMIRUDDIN AHMAD, J.‑I agree, CORNELIUS, J.‑I agree that this appeal should be dismissed, I do so in deference to the accepted practice of this Court not to interfere with an order under appeal upon a mere difference of view as to the value of the evidence led in the case. The deceased in this case, Ch. Allah Bakhsh, was an important influential man of his village Uggo Chak. It was suggested during the examination of witnesses that he had important enemies of equal status with himself. The three alleged murderers of whom the two appellants, Ghulam Qadir and Ghulam Haider have been convicted and the third Barkat Ali has given evidence as approver in the case do not appear to have been of comparable status with Ch. Allah Bakhsh. Nor does it appear that any of them bore any strong grudge against the deceased. Admittedly, Ghulam Haider had no reason whatsoever to dislike Ch. Allah Bakhsh, much less to desire his death, except that he was a friend of Ghulam Qadir. Ghulam Qadir's only grievance against Ch. Allah Bakhsh was this. About a month before the murder a panchayat was held in the village, which was attended by almost the whole village. A question had arisen whether the accused Ghulam Qadir had illicit connection with one Mst. Soodan. Ch. Allah Bakhsh appears to have taken a leading part in this panchayat, which was held in front of his house. Ghulam Qadir's grievance was that in this panchayat Allah Bakhsh declared that he, Ghulam Qadir, had illicit connection with Mst. Soodan, and Mian Khan, a relation of Ch. Allah Bakhsh, gave blows to Mst. Soodan as well as to her mother, Mst. Resham Bibi. It is not impossible that out of such an incident, a desire should have arisen in Ghulam Qadir's mind to kill Ch. Allah Bakhsh, but it is certainly not very probable. The principal sufferers were Mst. Soodan and Mst. Resham about whom Ghulam Qadir need not have been greatly concerned since they were no relations of his. As for Barkat Ali, his grudge against Ch. Allah Bakhsh was that he once paid Rs. 300 to him in order to procure a divorce for his wife's sister from her rather aged husband and instead of carrying out this purpose, Allah Bakhsh sent back the girl to her husband and appropriated the money. It is true, that murders have been committed for even more trivial motives, and that proof of motive is not necessary where the fact of the crime has been established by credible evidence. Yet, in a ease where the Court is asked to rely mainly upon an approver, I would have felt better satisfied if the motives imputed to the three participants in this case for murdering Ch. Allah Bakhsh had been of more convincing character. Barkat Ali was examined at very great length and in the course of his examination he gave very full details of the circum stances in which the crime was committed. It was the 16th of, July 1957, and apparently, the night sky was perfectly clear so that at 2 a. m. When a neighbour Fateh Muhammad by name woke up and in passing by the house of Ch. Allah Bakhsh, saw his murdered body lying on his cot, he could say: ‑ "that was a moonlit night, like a broad‑day light, and in that light, I saw the deceased lying murdered". The house of Barkat approver is only six or seven karams away from Allah Bakhsh's house. The cots of both men were placed just outside their respective houses. Some four karams from Barkat's cot and nearer to the cot of Allah Bakhsh there sleeping one Barkat Shah, a servant of Ch. Allah Bakhsh. distances of 2, 2 and 4 karams from the cot of Ch. Allah Bakhsh a number of Kumhars were sleeping close to their donkeys. A buffalo belonging to Ch. Allah Bakhsh and a horse belonging to Barkat were tied within three karams of the deceased's cot. Four blows were delivered on the neck of the deceased, namely, two by Ghulam Qadir with a sword, one by Ghulam Haider with a sword, and the last by Barkat approver with a takwa. As the culprits were leaving, Ghulam Haider delivered one or two further blows. The injuries found at the post mortem examination were (1) a cut wound on the back of the neck 81" in length, (2) a cut wound from the right chin to the back of the neck 8" in length, (3) a cut wound on the back of the neck which had c lifted a flap of the skin, (4) a cut wound o7 the left cheek 11" in length cutting down to the bones of the face, (5) a cut wound on the right shoulder 7" in length, (6) a cut wound on the right arm 7" in length, and (7) a cut wound on the right forearm 2 " in length. The indications are that at least seven blows were struck, and consequently it comes as a surprise to learn from Barkat that none of the animals whether the horse or the buffalo or the donkeys tied so close to the cot made any noise or tried to break their ropes through terror, but the whole crime was carried out in complete silence so that no animal or none of the many human beings who were sleeping so close to Ch. Allah Bakhsh was disturbed in his or its sleep. It is, of course, an undeniable fact that the murder was committed in the open and in bright moon‑light. It can hardly be denied that the servant Barkat Shah was sleeping in the vicinity, but for the rest of these details, namely, the presence of the kumhars and of the animals, there is only the statement of Barkat to go upon, and, speaking for myself, the impression left upon my mind by reading all this evidence was clearly that Barkat was probably expecting not to be believed as a result of these disclosures. Yet, it must be admitted that the accomplishment of the crime in the manner which is so obvious from in injuries and in the circumstances stated by Barkat, that is without causing a stir among the sleeping human beings or animals at distances as short as 10 feet, is not impossible, and when the Courts below have believed the approver, having full knowledge of these matters, it is not for me upon my own appreciation of the evidence and the circumstances to interfere with their conclusions. It is proper that I should bear in mind that the trial Court had the advantage of seeing anti hearing all the witnesses, and I note also that the assessors all found both the accused persons, upon the evidence, to be guilty. The approver Barkat as a near neighbour of the deceased who was admittedly sleeping in the immediate vicinity on the night of the crime was naturally associated with the investiga tion from the very start. He came out with his confession on the 25th July, not as a result of any pressure, but as the trial Court has expressed it at more than one place "suo mota." It was only then that his house was searched and a hatchet was found under some dried shrubs upon which there were seen to be blood stains. A hatchet is an instrument the use of which in villages for domestic purposes is frequently required. Yet, although 8 days had elapsed between the commission of the r crime and the disclosure by Barkat, it has to be admitted that there is a possibility, though hardly a probability, that Barkat got no opportunity to bring out this hatchet and clean it of its tell‑tale marks. In his statement, he disclosed the names of his two companions in the crime, and both of them were arrested on the same day. On the 28th July, that is three days later, Ghulam Qadir accused led the Police to a kotha at his well which he unlocked with a key and then from inside a heap of straw he pulled out a sword and a tehband, both of which were blood‑stained. The same day Ghulam Haider produced his sword from under a heap of dung‑cakes in a kotha belonging to him and that was found to be blood‑stained too. It does not appear that either Ghulam Qadir or Ghulam Haider were kept under close watch by the Police at any stage previous to the disclosure of their names as culprits by the approver Barkat and they therefore had at least 8 clear days in which to pull out the swords etc., and clean them of tell‑tale marks. Since they were kept in kothas at their wells, such a task need not have Involved them in any difficulty. Yet, it is possible that they failed to do so and that the blood‑stains on these swords, which Re that on Barkat's hatchet were found by the Serologist to be composed of human blood, were stains left from the operations of the night of the 16th July as they have been believed to be by the Courts below. Counsel who defended the accused persons at the trial laid great emphasis on the fact that the unofficial witnesses to the three searches were the same two persons, namely, Sadiq and Khushi Muhammad, and that they were men of no substance who appear to have placed themselves at the disposal of the Police for all purposes connected with the investigation. Sadiq's condition appears from, the following extract‑ taken from his cross‑examination:‑ "I knew Khushi Muhammad before, but not intimately, he belonging to a village, 5 or 6 miles away. He did not tell me, that he was sitting with a very big thanedar, and why, a half‑penny man, had come bare‑headed, to smoke hookah with the thanedar. I am a poor man. I had no turban on that day, and I was there in dirty clothes as I am clad today. In my greed to have numerous puffs of the hookah I kept sitting there. A hookah would not, let Jats go from it, and so, I clung to hookah, and remained sitting there smoking." A vivid picture appears from this passage as to the kind of man Sadiq was and the circumstances in which he was associated with the investigation, to witness the recovery of circumstantial evidence which was eventually held sufficient to corroborate the statement of the approver sufficiently to secure the conviction of Ghulam Qadir and Ghulam Haider on so grave a charge as murder. Some observations were made in the course of the argu ments before us as to the remarkable fact that blood‑stains, which, in the belief of the prosecution, had been caused some 12 days before the recovery of the weapons upon which they were found, were still capable after so long an interval of being analysed so as to show their origin, when in a great many other cases which come before this Court such stains although only a few days old have been reported to be disintegrated and incapable of analysis. The circumstance is indeed somewhat remarkable 't and yet the Courts below have accepted the evidence, and in the absence of any basis for assuming impossibility, it is not for this Court to substitute its own conclusions for those of the two Courts below. There is evidence that Barkat and the two appellants were seen sitting together in conference at a well a few days before the commission of the crime and Barkat says that it was on this occasion that they discussed the murder of Allah Bakhsh. Yet, Barkat admits that he is a close friend of Ghulam Qadir and Ghulam Haider is a friend of Ghulam Qadir also, so that the presence of the three men together does not by itself carry any suggestion that they were conferring together for a criminal purpose. None of them appears to have a criminal record of any kind. Yet, it is not impossible that they were talking as Barkat says about the murder of Ch. Allah Bakhsh and that appears to have been believed by the Courts below. Finally, there is the evidence of a man Imam Ali who lives close to the house of Ghulam Qadir, that on the night of the murder, Barkat came to Ghulam Qadir's house and called out to him and was told by his mother that Ghulam Qadir had gone to his well. Imam Ali said that he himself "called out (to) the approver, as to why he was calling Ghulam Qadir at that hour of the night", but he did not say what answer Barkat gave. In this respect, Barkat's statement is consistent with that of Imam Ali. He added, however that he told Imam Ali lie had private business with Ghulam Qadir and the reasons why Imam Ali did not state Barkat's answer spay perhaps be that he might not have heard this answer. Imam Ali's evidence too has been believed and it is clearly not possible on the face of it to say that this evidence is untrue. The accused persons contented themselves with denying everything in the case and pleading their innocence. They produced no defence evidence. This is the whole case for the prosecution. The learned Judges in the High Court have evaluated the evidence of Barkat approver in the following terms: ‑ "There is nothing on the record to show that he had a motive to implicate the appellants in a false case. Moreover, his evidence, on the whole, appears to be reliable. In the circumstances, the corroboration required of his statement will be comparatively less". A decision of the Lahore High Court of the year 1931 is quoted in support of this view. With respect to the learned Judges, a perusal of the entire statement of the approver does not create so strong an impression of reliability as to reduce the requirement of corroboration in his particular case. But as has been seen there is corroboratory evidence which if believed, can reason ably be regarded as sufficient for coming to the conclusion that with the aid of this evidence, Barkat's testimony is sufficient to identify each of the appellants as persons who participated in' the murder of Ch. Allah Bakhsh. This corroboratory evidence as, well as the testimony of Barkat have been believed by the Courts below, and following the rule laid upon itself by this Court, it is not for us, whatever view we might ourselves form of the evidence, to interfere with the conclusions reached thereon by the Courts below, upon the basis of pure evaluation. SHAHABUDDIN, J.‑I agree that this appeal should be dismissed. . A. H. Appeal dismissed.