1968S3190 (PLP)

HAMOODUR RAHMAN, J.‑--These two appeals have come be fore this Court by virtue of the special leave to appeal granted on the 27th March 1963, on two petitions, one filed by the complainant, Syed Sharifuddin Prizada and the other by the State, Both these appeals arise out of the same judgment of a Division Bench of the High Court of West Pakistan at Karachi in a Criminal Appeal whereby the first three respondents in these appeals Were acquitted and their convictions on all counts were set aside. They had all been convicted by the learned Additional Sessions Judge of Karachi under sections 396 and 307/34 of the Pakistan Penal Code. Of these respondents Sohbat Khan was sentenced to death and the, other two were sentenced to transportation for life. Alternatively respondent Sohbat Khan and Abdul Ghafoor were also convicted under section 302, P. P. C. and the respondent Alauddin was convicted under section 302/ 109, P. P. C. but no separate sentences were imposed upon them. These three respondents had, according to the prosecution case, joined' in a conspiracy with one Yasin (who absconded and could not be traced) and one Muhammad Siddiq who be came an approver in the case) to commit dacoity in the house of Mr. Sharifuddin Pirzada, situated at No. 37/G, K. D. A. Scheme No. 1, North, Karachi which adjoins the area called Mohammad Ali Housing Society. They, in furtherance of the conspiracy actually committed the dacoity in the early hours of the 24th May 1960 and in the course thereof killed Mrs. Rafia Pirzada and attempted to kill Mr. Pirzada. It is alleged that the absconder Yasin, who was at one time employed as a cook at the residence of Mr. Pirzada but was sometime before the occurrence dismissed from service due to his insolent behaviour, had conspired with Sohbat Khan, Abdul Ghafoor, Alauddin and Mohammad Siddiq to commit an armed dacoity in the house of Mr. Pirzada. For this purpose they all went there during the night between 22nd and 23rd May 1960, but as Mr. Pirzada had returned from Dacca late that night and his younger brother, Haider Ali, was to leave for Hyderabad early in the morning, no suitable opportunity was found and the object could not be achieved. Accordingly, all the five went there again on the following night and at about 2‑B a. m. of the 4th May 1960, Yasin led the party over the compound wall into the house and entered it through the kitchen by opening the communicating door with a duplicate key with which the said Yasin had already armed himself during the course of his employ ment. From there they went to the bed rooms upstairs. The front bed room in which the adopted daughter of Mr. Pirzada slept was empty as she was spending the night with her parents. The culprits then tried to open the door leading to the second bed room which was an air‑conditioned room and the air -conditioner was on. The door creaked and awoke Mrs. Pirzada. She got up and called out "Who is there"? Upon this the respondent Sohbat Khan, it is said, pounced upon her and dealt her several blows with a knife and the other culprits pounced upon Mr. Pirzada and pinned him down on the bed with his face downwards. He too was inflicted several knife injuries but since both of them had been raising alarms all the time, the culprits thought it better to leave. On the way out they picked up a few articles and some money and again came out into the compound through the kitchen. Two of the servants of Mr. Pirzada who were sleeping in the house and had already been awakened by the cries of their employers also joined in raising alarms and Chowkidars from the neighbouring houses also started collecting. Yasin at this stage, quietly slipped away, presumably, because he was afraid of being recognised but the other four culprits rushed towards the main Finding it closed they skirted and departed same way through which they had come, i.e. by climbing over the boundary wall near the fountain at the end of the garden. The servants had, in the meantime, come round to the gallery overlooking the front compound and saw the four culprits while escaping in the light of as many as seven electric lamps burning in the compound. The verandah above was barely 7/8 feet in height from the ground and thus they got a clear view of the features of the culprits who had no face coverings. Mrs. Pirzada succumbed to her injuries soon after but Mr. Pirzada survived with grievous injuries. It was he who lodged the first information report at 4‑45 a. m. of the same day with a Police Officer who came to‑ his residence on receiving information of the dacoity over the telephone. In this first information report all that was stated was that the accused were four in number, but their names and addresses could not be given as they were not known. On this first information report a case under sections 302 and 394, P. P. C. was registered and investi gation was taken up. The respondent Sohbat Khan was arrested at 11‑30 a. m. of the 3rd June 1960 in connection with another dacoity which took place at Soldier Bazar and the approver Mohammad Siddiq was also arrested sometime after 9 p. m. of the same day in connection with the same dacoity. He was taken to the C. I. A. office near about midnight and there, upon interrogation, revealed his participation in the dacoity in the house of Mr. Pirzada also. Then Sohbat Khan was shown as arrested in this case also and the Police started looking for Alauddin, Abdul Ghafoor and Yasin, the other participants named by Siddiq. Abdul Ghafoor was arrested on the 4th June 1960 and Alauddin was arrested at Lahore on the 8th June 1960. Abdul Ghafoor, Mohammad Siddiq and Sohbat Khan were put up for test identification at a parade held in the City Courts' Lock‑up on the 11th June 1960 and they were correctly identified by Mohammad Bashir (P. W. 2), Hotel Keeper near Karsaz, Drigh Road, Karachi, Ghulam Mustafa Kamal (P. W. 8), and Mohammad Karim (P. W. 9), the servants of Mr. Pirzada .at the relevant time. Alauddin was put up for identification on the 18th June 1960 arid he too was identified by Mohammad Bashir, Ghulam Mustafa Kamal and one Riasat Hussain (P. W. 26). In the meantime, Mohammad Siddiq's confession (Exh. 91), had been recorded by Mr. Azizuddin Ahmad, Additional City Magistrate on the 14th June 1960. Sohbat Khan's con fession was recorded earlier on the 7th June 1960 by the same Magistrate. and the confession of Abdul Ghafoor was recorded next on the 16th June 1960, and the confession of Alauddin was recorded last on the 21st June 1960. Apart from Mohammad Siddiq who was ultimately granted pardon and was made approver on the 23rd August 1960, all the other three have since retracted from their judicial confessions but they were all challaned before the Additional City Magistrate and were duly committed to stand their trial before the Court of Sessions on charges under sections 396/302, 302/1.49 and 307/34, P. P. C. They were tried by the learned Additional Sessions Judge of Karachi with the aid of three assessors. The trial Court, as already stated, convicted all the three accused. On appeal, however, the High Court disbelieved the approver as also the two main witnesses who claimed to have identified the culprits, namely, Ghulam Mustafa Kamal and Mohammad Karim, the servants of Mr. Pirzada. According to the High Court the presence of the approver with the culprits at the time when Mr. and Mrs. Pirzada were attacked was extremely doubtful hence his evidence which formed the basis of the prosecution case could not be accepted. Similarly the evidence of the two servants of Mr. Pirzada was also found to be unreliable. After this there was no difficulty in discarding the evidence of association and the judicial and extra‑judicial confessions of the accused persons. Even the evidence of a Finger Print Expert against the respondent Sohbat Khan was not considered to be worthy of credit. Hence the accused were all acquitted. Leave was granted in this case to make sure that the acquittals had been based on principles consistent with the safe administration of justice. After the grant of leave Yasin was arrested and committed to the Court of Sessions for trial. During the pendency of the trial of Yasin the hearing of this appeal was adjourned to avoid the possibility of any prejudice being caused thereby to Yasin. The respondent Abdul Ghafoor could not also be traced and Sohbat Khan, who was then serving imprisonment for another crime, was released from prison notwithstanding the order of this Court not to release him and his whereabouts too have not yet been traced: Again Yasin, during the pendency of his appeal in. the High Court against his conviction by the trial Court, absconded. The hearing of this appeal was, therefore, again postponed sine die to secure the arrest of the respondents Sohbat Khan and Abdul Ghafoor. Alauddin who was on bail was ordered to be produced. Even now Sohbat Khan and Abdul Ghafoor have not been traced. The present appeal has accord ingly been heard only as against the respondent Alauddin. He is represented before us at State expense by the same learned counsel who appeared for the defence in the Court below. The learned Additional Advocate‑General has represented the case of the' State before us. According to him the order of acquittal passed by the High Court is insupportable. It is vitiated by the wholly erroneous approach made by the High Court in evaluat ing the evidence of an approver. Besides it also suffers from serious misreading of the evidence and omission to consider relevant evidence. The High Court, it is complained, has even drawn upon its own surmises and speculated upon grounds not related to the evidence in the case. The learned Additional Advocate‑General has argued that, the main evidence in this case was that of the approver who as corroborated in material particulars by Mr. Sharifuddin and his two servants Ghulam Mustafa Kamal and Mohammed. Karim. Apart from this the association of the respondent Alauddin with the other accused had been established by the direct testimony of Mohammad Bashir (P. W. 2), the hotel keeper at Karsaz where the culprits had stopped to take tea before proceeding to the house of Mr. Pirzada for commission of the dacoity and the evidence of one Riasat Ali (P. W. 26). Mahmood Ali (P. W. 19), had also proved that the respondent Alauddin was in the con spiracy. Apart from this the last witness had also proved an extra judicial confession alleged to have been made by this respondent. He was the person in whose quarters the respondent Alauddin had stayed immediately before the incident. He produced a shirt of respondent Alauddin which had been left behind in the quarter in support of his version that Alauddin had actually stayed in his quarter. He also supplied the information that Alauddin had procured money for escaping to Lahore by donating blood at Jinnah Central Hospital. This was traced by the Investigating agency and ultimately Alauddin was on the basis of the informa tion furnished by this witness, arrested at Lahore. There was no cogent reason, therefore, for discarding this evidence. Similarly the judicial confession of this respondent recorded by Mr. Azizuddin Ahmad was, according to the learned. Additional Advocate‑General rejected on wholly unsubstantial grounds. There was no unusual delay in the production of this accused for the recording of the said confession nor was there anything else on the record to suggest that it was not voluntary. The reasons given by the High Court for discarding the evidence of the approver are as follows: (i) that he had probably been compelled to make a confession on the 14th June 1960, as a result of a prior understanding between him and Prosecuting Inspector, Wajihul Hasan, that he would ultimately be granted pardon, and (ii) that the approver's statement had been contradicted in many material particulars by important prosecution witnesses. As regards the first ground given by the High Court it is not very clear as to what exactly the learned Judges had in mind. If the suggestion is, as made by the learned counsel appearing for the respondent, that the approver was a favoured person whom the Prosecuting Inspector wajihul Hagan had from the very beginning given an assurance that he would be granted pardon and let off if he became an approver then it bas to be point ed out that there is nothing on the record to support this sugges tion. The evidence here establishes that the approver was arrested in the night of 3rd June 1960. He was produced for questioning by about midnight and was interrogated at .the C. I. A. office till the 9th June 1960 when his statement was recorded. He was then put up for identification parade on 11th June 1960, and was produced for the recording of his confession on the 14th June 1960. After that he was sent to the Judicial Lock‑up and was no longer under the control of the investigating police. Between the date of his arrest and the date of recording of his: judicial confession there has been therefore, no such inordinate delay as would dust a suspicion on the genuineness or voluntariness of his confession. Thereafter, on an application made on the 25th August 1960; pardon was granted to him on the 29th August 1960 and he was made an approver. This is the usual practice that after an accused has made a confession, it is then that an application is made for granting him pardon and making him an approver. This order has to be made and was in fact made in his presence by a Magistrate. The Police Officer, Mr. Wajihul Hasan (P. W. 36) was severely cross‑examined on this point by the learned counsel but he gave a clear and honest explanation in the following terms: -- "I had not recorded Siddik's confession earlier than g' 14‑6‑60 for I was busy in recording statements of witnesses getting other accused interrogated and traced. Adds: On Siddik's statements I had followed up the disclosures made. On 5th at least six hours were taken in recording his state ment, 6th was Id day. 7th, I recorded statement of witness and Ghafoor was interrogated. Sohbat Khan was interrogated after 7th and his section 161, Cr. P. G. statement was recorded on 12th June 1960. Alauddin had been brought from Lahore in the afternoon of 12th June 1960. It is incorrect that 1 waited till all the accused persons had confessed their parts in the crime before I took them to get their confessions recorded. I only had other work to do so I took them to record confession on the dates I did. It is not at all correct that I had treated the three accused most cruelly to extract. confessions from them." Then again when asked as to why Siddiq was made an approver the officer explained: "Ghafoor and Sohbat were previous convicts Alauddin had partially given a false statement. So I requested that Siddiq be made approver as his statement was all through correct." Then again at another portion, in answer to the following question "It took you two months to make a report to make Siddiq an approver." the witness replied: "I had thought of it even earlier but I thought I would let the investigation be completed before making such a report. I had not fixed any dead line of 25th September 1960 for Yaseen's arrest but I could not let the case linger any further. Between 14th of June 1960, up to 25th August 1960 I had had no contact with Siddiq. After going through the statement of accused Siddik I felt that he would be the right person to be made and so I reported as such on 25‑8-1960." His evidence also clarifies that the learned Magistrate to whom the application was made had called Siddiq before proceeding to make him an approver. These explanations of the Investigating officer who was searchingly cross‑examined by the learned counsel do not appear to have been noticed by the High Court. If they had been noticed, we have no doubt that it would have been clear that there was no question of the approver Siddiq being in this control or of there being any "stage management" in making Siddiq an approver in this case. Suggestion has been made by the learned counsel for the defence that since Siddiq only reproduced in his evidence as an approver whatever he had stated in his confessional statement this showed that he was a tutored witness and the whole thing was a farce. We are unable to agree with this. The approver gave evidence almost a year after his confessional statement was recorded. In the circumstances, if there is no material contradiction between his oral evidence in Court and his judicial confession, that is a sufficient guarantee that he is telling the truth. He could not possibly have remembered all the details after this lapse of time if this evidence had merely been tutored evidence and he was not present as an active participant in the incident. We have been taken through the evidence of the approver, both by the learned Additional Advocate‑General and by the learned counsel for the respondent but we have not been able to discover any serious discrepancy therein. He does not appear to have been confronted with any material contradiction between what he had stated in his confessional statement and his deposition in Court, except for a minor omission. It appears that he had omitted to mention in his statement before the Magistrate the presence of Abdul Aziz and Riasat Ali at Hussaini Hotel when Sohbat Khan, the approver and Alauddin were holding a discussion on the footpath outside the Hotel at about 8 p. m. one night. This was just an omission and had in any event nothing to do with the main incident itself. We are satisfied upon a careful perusal of the evidence of the approver that the wealth of detail that it contains could not have been supplied by him unless he was himself a participant and was actually present at the time the incident took place. The learned counsel for the respondent has drawn our attention to his elaborate cross‑examination of the approver, directed mainly to suggest that he was a tutored witness, but we find that he did not accept any one of the suggestions made by the learned cross‑examiner. The criticism of his evidence that is now sought to be founded upon the basis of these suggestions, cannot, therefore be entertained, for, suggestions alone do not constitute evidence. The learned counsel for the respondents it appears, is falling into the same error into which the learned Judges of the High Court fell in evaluating the evidence of the approver. After an approver has become a competent witness under section 133 of the Evidence Act and has giver evidence his confessional statement, or his statement recorded by the police is merely in the position of a previous statement which can be utilised only for the purposes of corroboration or contradiction in the same manner as the previous statement of any other witness. Such previous state ments do not, by themselves, constitute evidence in a case unless they are properly brought on record iii the manner prescribed by sections 145 and 157 of the Evidence Act. A statement made under section 164, Criminal Procedure Code can never be used as substantive evidence of the facts stated but it can only be used to support or challenge the evidence given in Court by the person who made the statement. The criticisms, therefore, which now seek to highlight the manner in which the approver came to make the disclosure or to make his confessional statement cannot be utilised to assail the credibility of the evidence given by him in Court. That credibility can only be assailed by bringing on the record discrepancies by proper cross‑examination of the witness. In the present case there is nothing in the evidence of the approver to lead to the inference that his credibility was materially shaken. On the other hand he appears to have given his evidence in a consistent manner and to have made a full disclosure of the facts of the case, implicating. himself as much as his co‑accused, in spite of severe cross‑examination. In this view of the matter, it appears to us, that the arguments now sought to be advanced by the learned counsel for the respondent to persuade us to reject his testimony are wholly misconceived. They would have been relevant if the judicial confession of Siddiq was sought to be made the basis for his own conviction. But since this is not the position here, we do not think that the value of his testimony can be diminished by the delay, if any, in producing him for the recording of his judicial confession or by highlighting the circumstances in which be came to make the confession. An approver has always been presumed as a matter of prudence to be a person who, by reason of the fact that he is betraying his erstwhile associates; as unworthy of credit, unless corroborated in material particulars, No hard and fast rule can be laid down as to the nature and extent of the corroboration required, for, this would depend upon the facts and circumstances of each case and in particular upon the character anal antecedent of the approver and the degree of suspicion attaching to hi, evidence. But this does not mean that the evidence of he approver should be corroborated in every minute detail of the crime. All that is necessary is that it should be corroborated to such an extent as to inspire confidence in his veracity and to make it safe to act upon his testimony. In dealing with such evidence the Court is, not confined to relying only on such statements as are corroborated but once a foundation is laid for the belief that he is substantially speaking the truth, the Court is at liberty even to accept those statements which ate not so corroborated. In the instant case, as we shall presently indicate, this corroboration was adequately furnished both as regards the commission of the crime and the implication of the respondent, with whom we are now concerned. We have no hesitation therefore, in taking the view that the approver was giving substantially true evidence. The High Court's main reason for rejecting his evidence was that it had found itself unable to accept that he was present at the tine of the incident. This was, because, it thought that there were certain discrepancies between his evidence and the testimony of the main witnesses in this case. The first contradiction mentioned by the High Court is that he had not in his confessional statement disclosed that Riasat Hussain (P. W. 26) was present at the Hussaini Hotel when he was discussing with Sohbat Khan and Alauddin, on the footpath outside the hotel, at 8 p. m. of the night, the proposal for the commission of the dacoity in question. It is true that he had omitted to mention this fact in his confessional statement. This is, however, a mere omission which cannot be treated as a contradiction for it is possible that it may not have occurred to the witness at the time that it was such an important fact that it must be disclosed particularly since the person concerned (Riasat) was not a person in whose hearing the conversation had been held. It was only in cross‑examination in Court that it, was elicited by the learned defence counsel that Aziz and Riasat were also present in the hotel at the time the talk between him, Alauddin and Sohbat Khan was being held on the footpath outside. The High Court is not also right in saying that even in Court the approver had only referred to the presence of only Aziz and Ghiasuddin and not Riasat who was the only person examined by the prosecution. We are in the circumstances unable to agree that this is so important an omission that for this the entire evidence of the approver should stand discredited even though there was otherwise substantial corroboration of his evidence in material particulars relating to the incident itself. The next contradiction relied upon by the learned Judges of the High Court is that the approver's version of the blows struck on Mr. Pirzada and particularly on one of his hands by a pistol, while he was trying to free himself from the clutches of the culprits, is not supported either by Mr. Pirzada himself or by the medical evidence. In appraising the evidence of Mr. Pirzada the High Court has overlooked the fact that there was no light burning in the room and there was very little light coning from out side as the air-conditioner was working and the curtains must have been drawn. Furthermore, he was being pressed down by the culprits on the bed with his face downwards all along. He could not, therefore, have noticed with any precision as to who was doing what and with what kind of weapons he was being hit. This specific question, it appears, was put to him and all that he could say was: "I do not remember that any of the attackers had caught hold of my hand and he hit at my hand with a blunt weapon. Nor is it correct that this so happened and I cried upon being hit and I let go his hand. I had not received any injuries to any of my hands in the struggle." This does not show that he had given a clear contradiction of what had happened at the time. It is also possible that the approver, who was himself engaged in pinning down Mr. Pirzada, may have inferred from the fact that Mr. Pirzada had let go of the hand of Yasin after he had caught hold of it, because Yasin, who was to his knowledge armed with a pistol had struck him with it. In these circumstances it cannot be said that the approver has deliberately given a false version of the incident, because, he was not there. The High Court was, therefore, not right in taking the view that Mr. Pirzada had clearly contradicted the approver on this point. Such slight inconsistencies cannot, in any event be sufficient to discredit the approver altogether. The next contradiction referred to by the High Court is that Mr. Pirzada had stated that he had seen only two culprits who were holding him down and causing him injuries. Therefore, it has been concluded, the approver was lying when he said that there were four persons who were attacking Mr. Pirzada. Again, it has, in this connection, to be pointed out that all that the latter stated was:‑ "Before I could realise what was the matter, I felt two persons attacking me and pressing me down on the bed." But a little later he elaborated upon on this as follows:‑ "I was struggling and shouting and trying to get up. I was being pressed to bed face down all along . . . . There may be more than two persons in the room in .the attacking party but I cannot say whether there were or whether there were not, for, I had no chance to realise or to see what was happen ing. Then as soon as I felt a little free and turned round I saw two figures running out of the connecting door into the first bedroom." Then again further down he stated:‑ "I felt that two men had caught hold of both of my legs." This evidence read as a whole does not support the conclusion of the High Court that Mr. Pirzada had only seen two culprits holding him down and causing him injuries. All that he saw, when he managed to free himself and turn around, was that two figures were running out of the room. This again, we regret to say, does not show that the High Court had read the whole evidence with the care that it deserved. If two persons were pressing him down and then again two were holding his legs, as he stated later, then surely these add up to four, as is stated by the approver: For a fair appraisal of the evidence it is necessary that the evidence must be read as a whole and it is not a proper approach to this rather delicate task to tear out sentences here and there from out of their context in the deposition of one witness to contradict another, particularly where the witness sought to be contradicted has not been confronted with the specific portions sought to be utilised against him. Fairness demands that before any adverse inference is drawn the person sought to be believed should be given an opportunity to explain the inconsistency. No such opportunity was given in the present case. The criticism of the learned Additional Advocate‑General therefore, that the High Court's conclusions are based upon a misreading of the evidence and a wholly improper approach to the task of assessment of the evidence of the approver does not appear to be unjustified. It is true that the medical evidence does not disclose any injury on the hands of Mr. Pirzada and it may be that the approver was mistaken as to this but this slight error is not of such a serious nature as to discredit him entirely. His presence at the place is abundantly established by the corroboration his evidence has received with regard to the many other details which he has so meticulously described as also by the recovery of his Chappals from the compound of Mr. Pirzada's bungalow, near the spot where some scratches were noticed on the wall which the culprits scaled both when entering and leaving the house. The Chappal is no doubt an ordinary Chappal not having any special feature or mark to distinguish it, but what is important is that it is the approver himself who led the police to Qudratullah (P. W. 12), from whom this Chappal was purchased. This Qudratullah on being questioned, confirmed that he had sold a pair of Chappals to the approver some two months before his arrest and it is this confirmation which was sought to be utilised for corroborating the approver. If the ownership of the Chappal was sought to be established only upon this evidence then the High Court's criticism would have been justified. But that was not the purpose here. The ownership of the Chappal having been admitted by the approver himself all that was sought to be done here was to give that evidence some corroboration. Apart from Qudratullah, three other persons, namely, Allah Rakha (P. W. l4), Muhammad Hussain (P. W. 18) and Muhammad Yaseen (P. W. 24), have also stated that they had seen the approver previously wearing Chappals of a similar kind. This too, in our opinion, furnished corroboration of the approver's testimony relating to the ownership of the Chappals. We are unable, therefore, to agree with the High Court that the reasons given by it were sufficient for holding that the approver was not there at all. The High Court, unfortunately, was expecting that the corroborating evidence itself would be such as to be sufficient to prove a thing which it was expected only to corroborate. This was again a wholly wrong approach, for, if this were so then the evidence of the accomplice or approver would be wholly unnecessary. Now, as regards the identification of the approver and the respondent Alauddin, the prosecution relied not only upon the evidence of the approver but also upon the evidence of Ghulam Mustafa Kamal (P. W. 8) and Muhammad Karim (P. W. 9) the two servants who were awakened by the cries of the victims. The High Court, however, rejected their testimony for the reason that they had not said "that in order to be able to follow their movements they had moved further on the balcony towards the east or that they were even in a position to do so." This view is clearly not supported by their evidence, for, upon a reference to their evidence we find that Ghulam Mustafa Kamal (P. W. 8) had in fact stated that "as the accused turned from the gate, I and Karim, ran along the gallery around the terrace and reached its end." This they could only have done to see what the miscreants were doing. Muhammad Karim also stated that "when they (the miscreants) passed from the kitchen door, to the gate, they passed within 7 or 8 feet of us"' and that "when the escaping four turned towards the lawn side, we ran down to the gallery to the terrace." Thus it is clear, that they did go round the terrace to the balcony and had enough opportunity to see and mark the features of the miscreants. It is difficult, therefore, to appreciate how the High Court managed to miss this evidence. The learned counsel, appearing on behalf of the respondent; has also sought to assail the evidence of these two witnesses on the ground that their evidence has been obtained under duress, as they were originally treated as suspects by the Station House Officer, Drigh Road (P. W. 33). Their evidence, it is contended is also suspect because they did not disclose that they had seen the faces of the culprits either to Mr. Pirzada' or to the Police Constable (P. W. 30) who came almost immediately after, or to the Station House Officer, Drigh Road (P. W. 33) when he came to the place. But this, as stated by Muhammad Karim, was because these police officers had not asked him anything about it. There is no clear evidence also that Mr. Pirzada had asked him anything before the Police Constable (P. W. 30) arrived but when Karim (P. W. 9) came down to the yard he did tell him that there were four persons. Mr. Pirzada was, according to his own version, very much upset at the time and was anxiously trying to revive his wife. He only asked the cook to go and phone the police from some neighbour's house as his own phone had been disconnected and asked the bearer to bring some water. We have been taken through their evidence and we are unable to agree that there is any inherent improbability in their version. Muhammad Karim was sleeping on the gallery and the other (Ghulam Mustafa Kamal), on the terrace and from there they could have very easily seen the faces of the culprits. The gallery as already stated, was just about 7/8 feet above the ground and the place was well lit. There is no reason also to think that they were falsely implicating any one of the respondents in this case. They had no enmity with anyone of them. It is also not correct that the S. H. O. treated them as suspects. He only asked his Constables to keep them separately for being questioned later. Learned counsel for the respondent has next contended that even Mr. Pirzada's evidence was unreliable and proved nothing for he could identify no one. As we have already stated, Mr. Pirzada could not possibly have had any very clear picture of what took place inside the room as he had been kept for most of time with his face buried into the bed. All that he really saw was the end of the incident, when the last two of the culprits ran out of the room. But from what he has stated it is obvious that there must have been more than two culprits involved in this incident. Even if there were only two who held him down, there must have been others who were attacking Mrs. Pirzada at the same time. The possibility of there being four or five culprits is not, therefore, improbable upon this evidence. Apart from this, as already pointed out the value of Mr. Pirzada's evidence lay in the fact that he corroborated the approver as to what took place inside the room. He was the only person who could speak of this and what the Court has to see was how far his evidence had given the ring of truth to the version of the approver. We have no hesitation in saying that his evidence did corroborate the approver in practically all material particulars. In addition to this there is also other important evidence of association which the High Court has failed to take into consideration. We refer, in this connection, particularly to the evidence of Muhammad Bashir (P. W. 2), the owner of the hotel near Karsaz. His evidence has not even been noticed by the High Court. The culprits had stopped at his hotel at about 9‑45 or 10 p.m. of the night of the incident to have a cup of tea. It was he who brought the tea up to them and again came to' tell them, ten minutes later, to go away as it was closing time. At first they did not pay any heed to his request, so he had again to come up and ask them to leave. This afforded him sufficient opportunity to have a view of ‑their faces and to be able subsequently to identify them. All that the learned counsel for the respondent had to say against his evidence was that it was highly improbable that within such a short time he marked their features so well as to be able to identify them again, for; he had no particular reasons to remember. As we have already pointed out, he had not only sufficient opportunity but also a special reason to remember these particular customers, for, they had come at about closing time and he had to ask them twice to leave. There is other evidence of association also, but it is unnecessary to recount all this evidence. So far as the respondent Alauddin is concerned, there is, apart from the evidence of the approver and of the two servants of Mr. Pirzada, the evidence also of Riasat Hussain (P. W. 26) and Mahmood Ali (P. W. 19), to prove his participation in the crime. Mahmood Ali's evidence has been disbelieved by the High Court on the ground that it is highly improbable that Alauddin would have made any extra‑judicial confession to him. This, however, does not appear to us to be correct, for, we cannot, help feeling that the High Court has not given to the evidence of Mahmood Ali (P. W. 19), the attention that it deserved. His evidence was corroborated by the production of the shirt left behind by Alaud din in his quarter and by the fact that it was this witness who supplied the information which ultimately led to Alauddin's arrest. There is nothing also to show that he was, in any way, hostile to Alauddin. We are unable, therefore, to see any cogent reason for rejecting his evidence. The extra‑judicial confession made by this witness had been accepted by the trial Court as well. We think that upon all this evidence, even if the judicial confession (Exh. 99), made by the respondent Alauddin is left out of account, there was sufficient material to establish the guilt of this respondent without any reasonable doubt. Learned counsel, appearing on his behalf, has strenuously contended that his actual participation has not been established by any direct evidence. This argument, of course, ignores the evidence of the approver. If the evidence of the approver is accepted, there is enough direct evidence against him. His extra‑judicial confession, his recognition by Ghulam Mustafa Kamal and Muhammad Karim and the evidence of association furnished by Bashir, Riasat and Mahmood Ali leave no room for doubt in our minds that the approver was speaking the truth when he implicated him as a co‑conspirator and an actual participator in this ghastly crime. The further fact that after the incident he actually procured 'money by donating blood to escape to Lahore confirms us in this view. There can be no doubt that it was he and not some one else who had donated blood at the Jinnah Central . Hospital, Karachi. The fact that he was actually arrested at Lahore on the basis of the informa tion supplied by Mahmood Ali (P. W. 19), also proves that the latter gave true information. These facts cannot be brushed aside lightly, as has been done by the High Court. We have, therefore, after giving our anxious consideration not only to the reasons given by the High Court but also to the elaborate arguments advanced before us by the learned counsel appearing on his behalf, come to the conclusion that his acquittal by the High Court was based upon insubstantial grounds and, what is more regrettable, upon a superficial reading of the evidence. In spite of our reluctance, therefore, to interfere with an acquittal, we have come to the conclusion that this is a fit case in which, in the interests of safe dispensation of criminal justice, this Court should interfere. The High Court clearly misguided itself into wrong channels by applying wrong principles to the appraisement of the evidence of the approver and thereby caused a grave failure of justice. We, accordingly, allow this appeal against the respondent Alauddin, set aside his acquittal and restore the conviction and sentence imposed by the trial Court on the respondent Alauddin. He should now serve out the remainder of his sentence. The appeal, as against the other respondents, will remain pending and will be taken up for hearing if and when they are arrested. Appeal accepted.