P L D 1959 (W (PLP)

INAMULLAH, J.‑The appellants have been convicted under section 302 read with section 34 P. P. C. for having caused the death of one Mohram along with the approver Akan. The appellant Yaru was sentenced to death while the other two appellants Mithalshah and Muhram were sentenced to transporta tion for life. Besides the appeal of Yaru the matter is also before us for confirmation of his death sentence. The other two appellants filed separate appeals which is Criminal Appeal No. 282 of 1959. We propose to dispose of both the appeals by this judgment. The facts are these The deceased Mohrum was on friendly terms with the appellant Yaru and approver Akan. Yarn suspected Mohrum to be carrying on with his niece Mst. Basran, wife of one Abdullah. Yaru resented this intimacy with his niece and threatened to take revenge. This threat was carried by the approver Akan to the deceased Mohrum. Mohrum, however, did not take any notice of the threat and said that Yaru would, do nothing as he was acting as a pimp for him.

2. On the 21st April, 1958, Mohrum deceased took approver Akan to a picture at Kambar. After the show the deceased and Akan went to the house of Yaru to spend the night with him. On the next day they took leave of appellant Yarn but he said that they should stay so that they may be able to go and see another picture together. They accepted the invitation. According to the prosecution story, they went to the picture house. Yarn left them in the picture house and went to bring the appellants Mithalshah and Mohram, another person other than the deceased, who were his friends. After the picture was over Yaru suggested that they should go and commit a theft. Though the deceased and approver Akan protested, they ultimately consented to accompany them. They walked for about 5 or 6 miles on Kambar Larkana Road and reached a bridge on Naurang Canal. The appellant Yaru proposed that they should wait here for some time more so that the residents of the two neighbouring villages retired. He gave bidis to Akan and the deceased who, after smoking, went to sleep. Thereafter the accused Mithalshah gagged the deceased while the accused Mohram throttled him while appellant Yarn and approver Akan caught hold of his legs. Appellant Mohram broke the spinal cord of the deceased by twisting his head with great force. All the four persons removed the body to a well which was at a distance of 200‑250 paces away. They tied the dead body to a big stone with the turban of the deceased and threw the dead body into the well. Appellant Yaru threw the pair of shoes of the deceased into the canal. Thereafter they went away to their village.

3. After 5 days of the incident that is on the 27th of April, 1958, one Abhuro was grazing his cattle nearby the well in which, according to the prosecution, the appellants had thrown the dead body of the deceased Moharum. He saw a dead body floating in the well. He apprised P. W. Bakhshal and P. W. Ahmed Bux who asked him to make a report to the police. Abhuro went to Kamber Police Station and stated what he had seen. The statement was recorded at about 8 p.m. by Abdul Rauf, A. S. I. P. The distance from the police station to the well was about 3J miles, Abdul Rauf went to the place of incident. He found a dead body lying upside down in the well. As it was already night he could not do anything. On the next day he sent for Dr. Zia ul Haq and P. W. Muhammad Sidiq, a sweeper. Muhammad Sidiq got down in the well but could not take out the body as it was tied with some stone. He cut the piece of the cloth with which the body was tied with the stone. Thereafter the dead body was taken out. A photo of the corpse was taken by P. W. Muhammad Alim. The A. S. I., secured the jersey and shirt of the deceased and handed over the corpse to the doctor for examination.

4. S. I. P. Hussain Bux took up the investigation and went to the scene of offence to verify the investigation carried on by A. S. I. Abdul Rauf. He examined Mst. Janat, mother of the deceased and Doulat, his step‑father. He also got the clothes and the photo identified by Doulat and Mst. Janat in the presence of mashirs Ahmed Bux and Abdullah.

5. On the 1st of May, .1958, the Sub‑Inspector arrested the suspects Abdullah, the husband of Mst. Basran with whom it was alleged that the deceased was carrying on, Abdul Rehman, the brother of Abdullah and one Shouku.

6. On 7th May, 1958, Hussain Bux, S. I. P. interrogated appellant Mohram. Thereafter, he arrested appellant Yarn. On the 8th May, 1958, Hussain Bux sent for Akan and arrested him. Akan approver took Hussain Bux, S. I. P., to the place where the deceased was throttled. Thereafter, Akan took him to the well. Akan thereafter took the Sub‑Inspector to the bridge where the pair of shoes of the deceased was thrown by appellant Yaru in the canal. The police did make an effort to recover the pair of shoes from the canal but it could not be found. Akan was produced before the Resident Magistrate, Kambar on the 8th May, 1958, and his confession was recorded by the Magistrate. The appellant Yaru was produced before the Resident Magistrate, Kambar on the 9th May, 1958, and his confession was alto recorded.

7. On the 11th May, 1958, the S. I. P. got the turban identified by P. Ws. Doulat and Mst. Janat in the presence of the mashirs. On the 12th May, 1958, suspects Abdullah, Abdul Rahman and Shouku were released.

8. Akan was produced before the District Magistrate, Larkana, where his statement was recorded by the D. M, and he was made an approver.

9. The appellant Yaru denied that he committed the murder of Mohrum. He did not admit illicit intimacy of the deceased with Mst. Basran. He first denied before the Sessions Judge to have made any confession and then again admitted to have made it but said that he does not know anything. Before the committing Magistrate he stated that he had given the confession under the belief that he will be turned an approver.

10. The appellant Mohrum denied to have committed any offence and stated that he had been. implicated on account of his enmity with Abdullah, Abdul Rahman and Azizullah.

11. The appellant Mithalshab denied to have committed any offence and stated that appellant Yarn and approver Akan have been set up by the S. I. P. to implicate him at the instance of Abdullah and his family.

12. The evidence against the appellant Yaru consists of the following (1) the evidence of the approver Akan ; (2) the retracted confession of the appellant; (3) evidence of motive.

13. According to the approver Akan, he stated that he along with the appellants were responsible for the murder of the deceased Mohrum. He also stated that Yarn killed him because the deceased was carrying on with his niece. An approver is undoubtedly a competent witness under the Evidence Act. His evidence, however, cannot be acted upon as a rule of prudence unless it is corroborated in material particulars by other indepen dent evidence. The reason for this caution is that the approver has participated in the commission of the offence himself. Such independent corroboration need not cover the whole of the prosecution story. It would not be safe to act upon such evidence merely because it is corroborated in minor particular or incidental details. In such a case corroboration does nor afford the necessary assurance for the conviction.

14. The approver's evidence requires satisfaction in a two fold way. In the first place; it must be clear that the approver is a truthful witness; in the second place, the approver's evidence must receive corroboration in material particulars. This test is necessary in the case of weak or tainted evidence. In this connection we would rely on the well known case of the Privy Council Bhuboni Sahu v. The King (A I R 1949 P C 257=P L D 1949 P C 90). It would be useful to reproduce the following observation "Whilst it is not illegal to act upon the uncorroborated evidence of an accomplice it is a rule of prudence so universally followed as to amount almost to a rule of law that it is unsafe to act upon the evidence of an accomplice unless it is corrobor ated in material respects so as to implicate the accused; and further the evidence of one accomplice cannot be used to corroborate the evidence of another accomplice." The law in India therefore is substantially the same on the subject as the law in England, though the rule of prudence upon interpretation of Courts is corroborated in material particulars in illustration B to section

114. Their Lordships while consider ing the example given under Illustration (b) to section 114 of the Evidence Act which runs as under "A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable." Observed "Their Lordships whilst not doubting that such a conviction is justified in law under section 133, Evidence Act, and whilst appreciating that the coincidence of a number of confessions of co‑accused all implicating the particular accused given independently, and without an opportunity of previous concert, might be entitled to great weight, would never the less observe that Courts should be slow to depart from the rule of prudence, based on long experience, which requires some independent evidence implicating the particular accused. The danger of acting upon accomplice evidence is not merely that the accom plice is on his own admission a man of bad character who took part in the offence and afterwards to save himself betrayed his former associates, and who has placed himself in a position in which he can hardly fail to have a strong bias in favour of the prosecution; the real danger is that he is telling a story which in its general outline is true, and it is easy for him to work into the story matter which is untrue. He may implicate ten people in an offence, and the story may be true in all its details as to eight of them, but untrue as to the other two, whose names have been introduced because they are enemies of the approver. This tendency to include the innocent with the guilty is peculiarly prevalent in India, as Judges have noted on innumerable occasions, and it is very difficult for the Court to guard against the danger. . . . . . . The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting upon independent evidence which in some measure implicates each accused." Keeping these observations of their Lordships of the Privy Council in view, the question is whether the statement of the approver finds independent corroboration from any other piece of evidence. The learned Sessions Judge found the following statements of the approver to have been corroborated by the various pieces of evidence on the record; (1) that the approver stated the age of the deceased to be 25 years and that they had taken their last meal at Sohmani while the incident took place at about midnight. According to the Sessions Judge this finds corroboration from the doctor's evidence who has given the age of the deceased to be 25 years and that there was liquefied food in his stomach. (2) the approver stated that the deceased was throttled and this also finds, according to the Sessions Judge, corroboration from the medical evidence. To our mind there is no independent corroboration as the post‑mortem report by the doctor was already available to the police. (3) the approver pointed out after arrest the place where the incident took place. This, as the learned Sessions Judge himself conceded does not in any way help the prosecution. Aku pointed out the well from which the dead body was recovered. This in no way can be said to be independent corroboration as the dead body was already discovered by the prosecution. (4) that as a result of the information given by the approver P. W. Muhabat dived in the well and took out three pieces of the turban of the deceased which were identified by the approver. This also, to our mind, cannot be said to be any independent corroboration. It was already known to the prosecution that the dead body was tied with something which was cut off in order to take out the dead body. (5) Lastly, according to the approver, the incident took place about a week before the body was recovered. This, according to the Sessions Judge, finds corroboration from the doctor's evidence who stated that the death must have occurred about a week ago. This is again no independent corroboration. This fact was already known to the police.

15. It would appear from the above discussion that the approver's statement does not find any independent corroboration in respect of any material fact that he has stated.

16. The next piece of evidence is the retracted confession. There is nothing on the record to show that the appellant Yaru did not voluntarily make the statement which was recorded by the Magistrate under section 164, Cr. P. C. We would hold that the statement was voluntarily made. The next question that requires consideration is if the statement is voluntary does it find corroboration, in view of the fact that it has been retracted, from any independent source. The learned Sessions Judge relying on the case of Abdul Majid v. The State (P L D 1957 Lah. 77) held that the retracted confession of an accused can be used to corroborate the statement of an approver. Similar observations also appear in the case of Muhammad Ramzan v. The State (P L D 1957 Lah. 956) that retracted confession could be taken as a corroboration of the other. In this connection we would reproduce the observations of Shahabuddin, A. C. J., in the case of Rafique Ahmed v. The State (P L D 1958 S C (Pak) 317). In this case His Lordship considered the observations made by their Lordships of the Privy Council in the case of Bhuboni Sahu'v. The King (76 1 A 147 = P L D 1949 P C 90), and observed as under:‑ "These observations no doubt warn the Courts that they should be very careful in making use of the confession of the co‑accused as corroboration of an approver's testimony, and that the probability of the confession having resulted from' previous concert should be excluded before it can be used for corroborating the approver." In the present case the probability of the confession having resulted from previous concert cannot be excluded. The offence took place on the 22nd April, 1958, and the body of the deceased was recovered on the 27th April 1958. As a result of investigation certain innocent persons were arrested who were later on released by the police after the present appellants were arrested. The first person from amongst the appellants who was arrested is Muhabat. He was arrested on the 7th of May, 1958. Thereafter the approver Akan was arrested on the 8th of May. The appellants Yaru and Mithalsshah were also arrested on the 8th of May, 1958. It would appear from the narration of these facts that the approver Akan and Yaru had sufficient opportunity and time to meet each other. They had also sufficient time to think as to what to do. Moreover, as we have already observed that what the approver has stated, except the names, was already known to the police and others. We are of the view that in the circumstances of the present case the retracted confession of the appellant Yaru does not corroborate the statement of the approver.

17. The last piece of evidence that remains is the evidence of motive. The existence of motive is no evidence to prove the crime. The evidence of motive only lends support to the testimony of prosecution witnesses who depose against the accused persons implicating them as the persons who have committed the crime.

18. For the reasons given above, we would allow the appeals and set aside the conviction and sentence passed on the appellants. K. B. A./A. H. Appeals allowed.