P L D 1964 (W (PLP)

(2) Whether the so‑called oral dying declaration was proved to the hilt arid the deceased was capable of talking after sustain ing the injuries found present on his person. (3) Khawaja Muhammad was not, a dependable witness, and: (4) the appellant, being employed in the Ordnance Depot. at Havelian, could not have left his duty without report, and it could not be proved that he was absent from the place of his duty at the given hour.

14. Counsel contended that according to the statement of Khawaja Muhammad P. W., the sole eye‑witness, in this case, the appellant shook hands with the deceased when he met him in the bed of the ravine, and when the deceased had gone a little ahead, he then rushed at him from his back, and 'started giving him blows with the hatchet on his head. His contention is that if the deceased and the appellant had hurled stones at each other, as was stated by Mst. Karim Jan (P. W. 4), the widow of the deceased, then naturally they should not have been on talking terms, much less on greeting terms, and therefore the statement of Mst. Karim Jan P. W. about the motive was false. It is sufficiently proved, on the record that the appellant had married the daughter of Fateh Muhammad P. W. by enticing her away without the consent of her father. He was, therefore, known to be a man of little scruples on the sexual side, and therefore, the deceased, who was also a relative of Fateh Muhammad P. W., naturally would not have liked that the appellant should visit his house when he himself did not allow his wife to visit the house of the deceased. This might have caused strained relations between them, and on this they might have hurled stones at each other, but this was not a sufficient circumstance so as to have rendered ostensibly the relations between the parties so strained that they should not have talked to each other or stopped greeting each other, whenever they met. Besides that, even if they were not on greeting terms, the appellant had a motive to be polite on that occasion. By greeting him he had removed the suspicion in the mind of the deceased, if he had any, about the appellant standing armed with a hatchet on the way so that the appellant should not be on his guard and he could be attacked unawares. It was possible that the deceased might have saved himself by running away or by catching hold of the appellant from his arms when he attacked him with a hatchet if he was on his guard. The tactics in which the appellant allowed the deceased to pass after shaking hands with him and thereafter attacking him from his back were adopted just to leave no room for the deceased to protect or defend himself, and thus the appellant should succeed in administering the fatal blows on him. Further if the appellant had married the daughter of Fateh Muhammad (P. W. 2), who is the uncle of the deceased, by enticing her away, the appellant might be apprehend ing vengeance at the hands of his father‑in‑law or his nephew. This might have been in his mind that perhaps he might be done to death by Fateh Muhammad, or his nephew and this could also be possibly another reason for doing away with the deceased before he could put him to any harm by way of vengeance. It is, therefore, not possible to hold that the appellant had no motive for killing the deceased.

15. Point No. 2.‑The deceased received two blows with a hatchet on his head. From the statement of the doctor it is evident, however, that the right temporal, parietal and occipital bones of the deceased were fractured. The sub-dural haemorrhage was present and the brain‑matter was coming out from the injury when he was brought to the hospital. It is unfortunate that neither the prosecution, nor the defence, had asked the doctor whether the deceased was capable of speech after he had sustained the head injuries, but this does not require much technical Knowledge of medical science, and one can safely hold that if the parietal, temporal, and occipital bones were fractured or the brain‑matter was oozing out, it was well nigh impossible for the victim to remain conscious, and thus be capable of speaking at all. The fact that the prosecution has not ventured to put a question to the doctor on this point further suggests that the answer would have been against it. The Learned trial Judge found that it was well nigh impossible for the deceased to have been able to speak after sustaining the head injuries and for that reason, he had disbelieved Jahan Khan (P. W. 5), Haider Zaman (P. W. 6), and Fateh Muhammad (P. W. 2) on this point, and in my view, quite rightly. For the aforesaid reasons, I agree with the learned counsel for the appellant that it was not proved that the deceased was capable of making any oral dying declara tion, and that he had made one after he had sustained these head injuries.

16. Point No. 3.‑‑No doubt Khawaja Muhammad (P. W. 3) has, admitted certain facts in his cross‑examination at the trial which go to prove that even the police was suspecting him for having done the deceased to death, and therefore, he was not a dependable witness, on whose testimony only the conviction could safely be based. In the cross‑examination he had admitted:‑ "It is correctly recorded in my statement before the commit ting Magistrate that the thanedar at Havelian had told me that he would let me go only when I tell the truth. For five or six days the A. S. I. has been calling me to the police post for the investigation of this case, but I have been going back to my village every day. It is incorrectly recorded in my statement before the committing Magistrate that I was kept by the thanedar with him for one night at Rajoya and for five days and nights at Police Post, Havelian. It is incorrectly recorded in my statement before the committing Magistrate that the Pir of Rajoya whose name I do not know requested the thanedar for my release, and then I was allowed to go." It is thus obvious that this witness had admitted before the committing Magistrate that he was kept in village Rajoya and Police Post, Havelian for five or six days by the investigating officer and it was on the recommendation of the Pir of Rajoya that he was let off.

17. Besides that, at the trial, he had stated that the shop keeper of village Bagh had given him cash for passing it on to the deceased for bringing some articles for the shopkeeper, and that he had handed over the money to him on the evening prior to the day of occurrence rind told him that he would be going for certain purchases to Havelian and if he wanted to go with him, he could accompany him. In another part of his statement he had said that he had not handed over Rs. 104 to Haider deceased. Counsel, therefore, contended that it was this witness who had done the deceased to death because lie had robbed him of Rs. 104 which the same witness had given to him a night earlier, and when this amount was not recovered from his possession after the occurrence, he had to admit that he did not deliver this amount to the deceased but kept it with himself and had the intention of paying it to him at Havelian. He also conceded that Gul Zaman was murdered about four years back, that he was related to Baffu Khan and that Abdul Jabbar of Kohalian was charged for his murder but he expressed his ignorance if one Azad had appeared in defence of the accused in that case. He admitted that Azad was Dhund by caste, but expressed his ignorance if he was related to the appellant in any manner. It is, therefore, clear that the mere statement of this witness of his having witnessed the occurrence with his own eyes would not be sufficient for the conviction of the accused. Although he is not related to either of the parties yet it can be said that he had a motive for substituting the appellant to be the culprit for what he might have done himself, and therefore, as a rule of abundant caution, his testimony should be accepted only when it is corroborated by any other independent evidence In this case fortunately there is ample circumstantial evidence which corroborates the statement of this witness. This circumstantial evidence is the recovery of the hatchet from the house‑search of the appellant, which was subsequently opined by the serologist to be stained with blood of human origin. 'The learned Sessions Judge has not attached much importance to this recovery, merely on the ground that the appellant was not present in the house when the investigating officer searched it, and recovered the bloodstained hatchet lying in the corner of the kotha of the appellant. In my view, the absence of the appellant from his house at the time of its search is not fatal to eliminate or reduce the evidentiary value of the recovery of the bloodstained hatchet. The house of the appellant from where the hatchet was recovered is situated at a distance of about two furlongs from the place of his duty. In another kotha of the same house the father of the appellant was residing and recovery was made in his (father's) presence. While returning from the scene of the occurrence towards his place of duty, it was not difficult for the appellant to have visited his house, which was lying on the way, and after throwing the hatchet there, he should have proceeded to the place of his duty. Another very important circumstance is the recovery of the bloodstained chadar from the person of the accused at the time of his arrest. This was also reported by the serologist to be stained with human blood. No doubt if the stains of the blood on the chadar were of considerable dimension, then the appellant would not have dared to keep the chadar with him unless the stains were removed from it. The stains were very small and due to the excitement lie perhaps failed to notice them, and it was for this reason that he did not think it necessary to do away with the chadar. The stains on this chadar could not have been of great dimension, because he had done the deceased to death, by striking him with a hatchet, and the only few drop; which would have oozed out from the wounds, and which could reach the person of the appellant., could have stained his chadar. I am, therefore, clear in my mind that the chadar, belonging to the appellant, could not have more stain marks and also in great dimension. These two circumstances could not have been known to Khawaja Muhammad P. W., when he stated to the remaining witnesses, namely, Jahan Khan, Haider Zaman, and Fateh Muhammad, who had come to the spot, after the occurrence, that it was the appellant who was the culprit, and none else, and that he had witnessed the occurrence with his own eyes. The appellant, with the exception of a mere denial, that neither the axe, nor the chadar belonged to him, has not been able to advance any satisfactory explanation for the presence of human blood on the axe which was recovered from his house, and on the chadar, which he was wearing at the time of his arrest. This circumstantial evidence, therefore, in my view, sufficiently connects the appellant with the offence, and also serves on sufficient confirmatory circumstances in corroboration of the statement of Khawaja Muhammad P. W., the sole eye‑witness, in this case. I, therefore, do not agree with the learned counsel that Khawaja Muhammad P, W, was not a dependable witness

18. Point No. 4.,‑It is not proved that the appellant was performing the duty in the Ordnance Depot of such a nature that his attendance there was required to be regularly recorded. II cannot be conceived that a person who was a Chaukidar of the Depot should have been required to be present in the Depot for twenty‑four hours. On the other hand, it is a matter of common knowledge that the Chaukidar attend to their duties by turn, and each Chaukidar has to serve for, at the utmost, eight hours a day. It was within the knowledge of the appellant as to when he remained on duty on the day of occurrence, and if he was putting this alibi, it was his duty to prove that he was on duty at the time when the present murder was alleged to have been committed. The absence of the proof of the circumstances suggested by the counsel for the appellant, therefore, is not of much importance in this case

19. No doubt Jahan Khan (P. W. 5), Haider Zaman (P. W. 6), and Fateh Muhammad (P. W. 2) are not the witnesses of the type who could be readily believed. They had tried to suppress certain facts which ultimately were proved on the record. Besides that, Jahan Khan is the first cousin of Khawaja Muhammad, the eye‑witness, and Haider Zaman (P. W. 6) is a tenant and servant of Jahan Khan, and therefore, their statements should be believed with a pinch of salt. Fateh Muhammad no doubt had an ill‑will against the appellant, but at the trial, he had made certain concessions in his favour. No doubt the appellant has married his daughter by enticing her away, but at the same time, he was the son of the sister of this witness, and although he had in the beginning charged him in the first informa tion report, he, therefore, could not wriggle out of this difficulty, but in cross‑examination he had conceded on material points, and this conduct has dubbed him as a liar, and a false witness. His statement and those of Jahan Khan and Haider Zaman can, therefore, be safely eliminated from consideration, with respect to the oral dying declaration. In my view, the statement of Khawaja Muhammad (P. W. 3), corroborated by the recoveries of the bloodstained hatchet from his residential kotha and blood stained chadar from the person of the appellant at the time on his arrest, and the blood having been found to be of human origin by the serologist are sufficient to bring home the charge of murder to the appellant.

20. Both the memos namely, Exh. P. K., for the recovery of the bloodstained hatchet from the quarter of the appellant and Exh. P. M., relating to the recovery of bloodstained chadar from the person of the appellant at the time of his arrest, were signed by Rahmat Khan, P. W., a member of the Union Council, as their marginal witness. In both these memos the recoveries were described to be stained with blood. Rahmat Khan P. W., when examined at the trial, stated that "I did not care to notice any blood on the axe Exh. P. 1, and the chadar Exh. P. 2." The memos. about the recoveries, as stated above, have been signed by this witness, showing that this witness was literate and could read and write. In spite of this, he has tried to make a conces sion in favour of the appellant, when the said that he did not care to notice that these recoveries were stained with blood. That part of the statement of the witness cannot, therefore, be considered to be true when it is directly in contradiction to the F contents of the document, under which he had signed as marginal witness. The statements of Tajuddin S. I. and Muhammad Aslam M. H. C. that these recoveries were stained with blood, coupled with the statement of Rahmat Khan P. W., had sufficiently proved that the handle of the hatchet was stained with blood, when it was recovered from the house of the appellant, and the chadar was stained with blood, when it was recovered from his person at the time of his arrest.

21. For the aforesaid reasons, I have no hesitation in agreeing with the learned trial Judge that the appellant is guilty for an offence under section 302, P. P. C. The sentence in this case is quite appropriate. The appellant had travelled 82 miles from the place of his residence on the path which was often used by the deceased in going to Havelian every day for carrying the merchandise of the shopkeepers of his village, and those of the surrounding villages, and therefore, had committed this murder with great premeditation. He, therefore, amply deserves to be punished with the normal punishment provided for the offence of murder. The appeal is dismissed and the sentence of death is confirmed. BASHIRUDDIN AHMAD, J.‑--I need not state the facts for these appear from the other judgment and will come directly to the questions involved in this case. The story that the appellant before he fatally assaulted the deceased by means of an axe in the dry bed of a nulla greeted and shook hands with him, proceeded ahead and then overtook Haider Khan and caused him mortal injuries on the head, seems to have been cleverly introduced to dispel all doubts about the identity of the assailant.

2. The story of the attack on the deceased in the manner alleged by the prosecution is so improbable on the face of it that it does not carry conviction.

3. The evidence of a solitary eye‑witness on whom our learned brother Muhammad Daud Khan, J. has relied to maintain the conviction of the appellant on a capital charge and confirm the irrevocable sentence passed on him suffers from a number of infirmities. Khawaja Muhammad says that the appellant caused an injury with a single blow of the hatchet on the head of the deceased. He also, accounts for the incised wound, " x 1/5", skin deep, on the left forehead, 1 " above the inner end of the left eye‑brow. In addition to incised wounds, the deceased had two red marks 12' x 1' and 9' x 1' on the left side of the back and we are called upon to believe that when the appellant struck the victim from the sharp side of the axe it got entangled in the chadar which me deceased had been wearing and the assailant in his attempt to disengage the weapon held it by the blade and struck the victim twice with its handle on the back. The explana tion so introduced for blunt weapon injuries found on the person of the deceased is preposterous. Khawaja Muhammad was himself suspected for the murder of Haider deceased. He admit that he was detained for five days and nights by the police at Police Post Havelian and was let off on the intervention of Pir of Rajoya. Khawaja Muhammad stated, at the trial, that he was entrusted with a sum of Rs. 104 by a shopkeeper of Bagh a day earlier to be handed over to the deceased and he gave the amount to Haider, but later on the witness resiled. from this part of his statement in order to make it conform with the recovery of the amount from him by the police. Our learned brother considered it unsafe to maintain the conviction of the appellant on the bare statement of this witness, but at the same time has relied on his testimony as. in his opinion, it is corroborated by circumstantial evidence.

4. The circumstantial evidence consists of the recovery of bloodstained axe from the house of the appellant in his absence. The learned Sessions Judge did not rely on this recovery observing:‑ "About the bloodstained axe I must say that it cannot be safely linked with the accused because it was not recovered in the presence of the accused from his house after he was arrested and the kotha from where the axe (Exh. P. 1) is allegedly recovered was also shared with the accused by his father and, moreover, to connect the axe directly with the commission of this offence the doctor (P. W. 1 Dr. Wasiullah Khan) was not asked whether the injuries on the person of the deceased were possible with the axe (Exh. P. 1)." I agree with the learned trial Court that the recovery of blood stained axe is of no assistance to the prosecution.

5. The next piece of the evidence is the recovery of the bloodstained chadar (Exh. P. 2) from the person of the appellant at the time of his arrest. The blood found was of human origin and this piece of the evidence has been relied upon to corroborate the statement of Khawaja Muhammad in order to maintain the conviction of the appellant. With profound respect, I have to point out that mere presence of blood on the chadar of the appellant is insufficient to sustain a conviction for murder (See I L R 16 Lah. 995).

6. The appellant had no motive to kill the deceased. No motive was mentioned in the report to the police. The motive disclosed by Mst. Karim Jan in her statement is not at all convincing, I am not prepared to hold that the appellant appre hended that Fateh Muhammad (P. W. 2) or his nephew Haider deceased might avenge the abduction of the daughter of Fateh Muhammad by the appellant and on that account killed the deceased.

7. The dying declaration having not been accepted, I do not consider that the statement of Khawaja Muhammad who was himself suspected for the murder coupled with the recovery of blood-stained chadar from the person of the appellant is sufficient for his conviction on a capital charge. It is not illegal to convict an accused person on the statement of only one witness, but the evidence relied upon must be free from all doubt. See Aziz and another v. Emperor (A I R 1925 Lah. 295(2)). I would, therefore, accept the appeal, set aside the conviction and the sentence of death passed upon the appellant and he is ordered to be acquitted. MUHAMMAD DAUD KHAN, J.‑--Since my learned brother Bashiruddin Ahmad, J. has expressed his disagreement with my order and the judgment, therefore, this case is referred to Khan Faizullah Khan, J. for disposal, in accordance with law. FAIZULLAH KHAN, J.‑--Muhammad Ayub, aged 22 years, son of Mir Zaman, Dhund, of village Bagh, Police Station Saddar, Abbottabad, was tried under section 302 P. P. C. by the Sessions Judge of Hazara for the murder of Haider, aged 30 years, son of Zaina, of village Kohalian. He was convicted and sentenced to death. Muhammad Ayub appealed against his conviction and sentence. The appeal and the reference under section 374 Cr. P. C. were heard by my learned brothers Muhammad Daud Khan and Bashiruddin Ahmad, JJ. They differed in their opinion. Muhammad Daud Khan J. recorded the opinion that the conviction and sentence of death should be affirmed, as he thought that the case had been brought home to the appellant by the statement of the solitary eye‑witness Khawaja Muhammad (P. W. 3), whose statement found corroboration, (1) from the recovery of the bloodstained hatchet Exh. P. 1 from the house search of the appellant and (2) the recovery of the bloodstained chadar Exh. P.2 from his person. Bashiruddin Ahmad, J., on the other hand, recorded the opinion (1) that Khawaja Muhammad the sole eye‑witness was not a truthful witness, (2) that the recovery of the bloodstained hatchet from the house search of the appellant in his absence could not be considered against the appellant and (3) that "mere presence of blood on the chadar of the appellant is insufficient to sustain a conviction for murder". The learned Judge in para. 7 of the judgment summed up the discussion, thus:‑ "I do not consider that the statement of Khawaja Muhammad who was himself suspected for the murder coupled with the recovery of bloodstained chadar from the person of the appellant is sufficient for his conviction on a capital charge. It is not illegal to convict an accused person on the statement of only one witness, but the evidence relied upon must be free from all doubt. See Aziz and another v. Emperor (A I R 1925 Lah. 295 (2)."

2. The prosecution story leading up to the conviction of the appellant has been fully and fairly stated in the judgment of my learned brother Muhammad Daud Khan J., and I do not propose to encumber this judgment by reiterating the same in detail, suffice it to say that the prosecution in support of the conviction of the appellant relies on the statement of Khawaja Muhammad (P. W. 3), and the recovery (1) of the bloodstained hatchet Exh. P. 1 from the house search of the appellant and (2) the bloodstained chadar (Exh. P. 2) from his person, both of which were found by the serologist to be stained with human blood.

3. The prosecution examined Jahan Khan (P. W. 3), (cousin of Khawaja Muhammad P. W. 3), his tenant Haider Zaman (P. W. 6), and Fateh Muhammad (P. W. 2), respectively, uncle and maternal‑uncle of the deceased and the appellant to prove the oral dying declaration of the deceased charging the appellant for the crime, but both of my learned brother have disbelieved their evidence, and S. Ghazanfar Ali Shah Bokhari, Assistant Advocate‑General does not assail the rejection of that evidence.

4. The decision of the case wholly hinges on the decision of the question whether the charge has been brought home to the appellant beyond reasonable doubt. This question in turn depends on the decision of the question, even assuming (as thought by both of my learned brothers) that Khawaja Muhammad (P. W. 3) was a "suspect" whether there is any corroboration which tends to satisfy the wind of the Court that Khawaja Muhammad is a truthful witness.

5. After a full hearing of the case and listening to the arguments advanced by the learned counsel of both parties at length, perusing the entire body of evidence oral and circum stantial and on considering them in their differently permissible perspectives in the light of the rival opinions of the two learned Judges of this Court, I have arrived at the conclusion that notwith standing the fact that Khawaja Muhammad (P. W.3) was suspect, his evidence receives sufficient corroboration against the appellant, (1) in the recovery of the bloodstained crime axe,, Exh. P. 1 from his house search, and (2) the recovery of the bloodstained chadar Exh. P. 2 from his person, especially when the serologist confirmed that the blood on both these articles wad of human origin.

6. I am aware of the rule of Law which requires a third Judge to agree with the judgment of the Judge pronouncing in favour of innocence of the accused unless and until on scrutiniz ing the record he finds himself for some substantial or compelling reason to disagree with him. (I have advisedly avoided the expression employed in the authorities that the third Judge may differ from the opinion of the acquitting Judge when he considered the reasons "for from fairly reasonable or perverse").

7. It should be my endeavour to explain with such clarity and brevity as may be possible the reasons why I, with profound respect, have not been able to agree with the opinion of my brother pronouncing in favour of the innocence of the accused.

8. Before I catalogue my reasons in support of the conclu sion which I have formed, I consider it important to evaluate the testimony of an eye‑witness who is a "suspect". ' In other words, whether the testimony of such an eye‑witness is to be equated with that of an approver, an accomplice or an interested witness. After giving my anxious thought to this question, I have formed the opinion that the evidence of such a witness is almost akin to that of an interested witness especially when the witness, as in the present case, does not admit complicity in the crime and there are mere suspicions that he may have committed the crime. The real question in such a case is the degree of credit to be attached to the testimony of such a witness and that depends on all facts and circumstances of the particular case. It may not be possible to place much reliance on the evidence coming from such a person without some confirmatory circumstances, as dictated by rule of prudence but not a rule of law and therefore, it will be incorrect to treat him as "practically accomplice" and then apply the rule as to his credibility instead of judging his credibility by a careful consideration of all particular facts of the case affecting the evidence.

9. It would be convenient here to mention the circumstances which led my learned brothers to consider Khawaja Muhammad (P. W. 3) as a suspect. It is important to observe here that Khawaja Muhammad (P. W. 3) did not admit any complicity in the offence nor has been even suspected by Fateh Muhammad (P. W. 2), uncle of the deceased and maternal‑uncle of the appellant for any complicity in the crime whatever. The defence counsel did not ask any question from any one of the police officials examined in the case, in particular the investigating officer, whether Khawaja Muhammad (P. W. 3) was suspected for complicity in the crime, much less the extent of his complicity on the grounds on which such a suspicion was founded. My learned brother, however treated him as a suspect from the following admissions made by Khawaja Muhammad in cross -examination: "It is correctly recorded in my statement before the committing Magistrate that the thanedar at Havelian had told me that he would let me go only when I tell the truth. For five or six days the A. S. I. has been calling me to the police post for the investigation of this case, but I have been going back to my village every day. It is incorrectly recorded in my state ment before the committing Magistrate that I was kept by the thanedar with him for one night at Rajoya and for five days and nights at Police Post, Havelian. It is incorrectly recorded in my statement before the committing Magistrate that the Pir of Rajoya whose name I do not know requested the thanedar for my release and then I was allowed to go."

10. The learned Judge pronouncing in favour of the guilt of the appellant in para. 17, observed:‑ "It is, therefore, clear that the mere statement of this witness of his having witnessed the occurrence with his own eye would not be sufficient for the conviction of the accused. Although he is not related to either of the parties, yet it can be said that he had a motive for substituting the appellant to be the culprit for what he might have done himself, and therefore, as a rule of `abundant caution', his testimony should be accepted only when it is corroborated by any other independent evidence. In this case fortunately there is ample circumstantial evidence which corroborates the statement of this witness."

11. The best exposition of the nature and extent of the corroboration is contained in the judgment of the Court of Criminal Appeal in R. v. Baskervilla ((1916) 2 K B 658), in which all the leading authorities were reviewed and the principles to be observed were L enunciated, speaking with respect, in the clearest possible terms by Lord Reading, L. C. J., who delivered the judgment for the Court. The general rule laid down by that Court in that case may be summarized as follows:‑ (i) The corroboration must be by some evidence other than that of an accomplice; and, therefore, one accomplice's evidence is not corroboration of the testimony of another accomplice. (ii) The corroborative evidence must be evidence which implicates the accused, that is, which confirms in some material particular not only the evidence that the crime has been commit ted but also that the accused committed it. In other words, the corroboration must be both as to the corpus delicti and as the identity of the accused. (iii) It is not necessary that the story of the accomplice should be corroborated in every detail of the crime, since, if this were so, the evidence of the accomplice would be unnecessary. (iv) The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime. (v) The rule of practice requiring corroboration of the evidence of the accomplice in some material particular implicating the accused has virtually become equivalent to a rule of law." The decision of the Court of Criminal Appeal in England has been followed in several decisions in India and Pakistan. The Supreme Court of Pakistan in Ghulam Qadir and another v. The State (P L D 1959 S C (Pak.) 377) refused to re‑appraise evidence and affirmed the convic tion of the High Court which had considered the evidence of the recoveries of the weapons of offence and bloodstained clothes as sufficient corroboration of the statement of the approver and upheld the conviction. In Mst. Hamida Bano v. Ashiq Hussain and others (P L D 1963 S C 109), the Supreme Court considered the production of revolver by Sher Muhammad accused and vahola by Jiwan accused to the investigating officer "as supporting circumstantial evidence against them." In Niaz v. The State (P L D 1960 S C 387) the Supreme Court held that number of persons named as culprits consistent with kind of crime committed; persons named, such as were expected to join in the attack were considered as sufficient corroboration of the evidence of an interested witness. Finally, I would borrow the words of Kaikaus J. in Nazir and others v. The State (P L D 1962 S C 269), when at page 275 his Lordship summed up the discussion regard to the quantum of corroboration of the testimony of an interested witness:‑ "In order, therefore, to be satisfied that no innocent persons are being implicated along with the guilty the Court will in the case of an ordinary interested witness look for some circumstance that gives sufficient support to his statement so as to create that degree of probability which car, be made the basis of conviction. This is what is meant by saying that the state ment of an interested witness ordinarily needs corroboration. For corroboration it is not necessary that there should be the word of an independent witness supporting the story put forward by an interested witness. Corroboration may be afforded by anything in the circumstances of a case which tends sufficiently to satisfy the mind of the Court that the witness has spoken the truth. What circumstances will be sufficient as corroboration it is not possible to lay down. But, as the question before the Court would be whether some innocent person had not been implicated in addition to those who were guilty the circumstances relied upon must have a bearing on this question. In the case of an interested witness the corroboration need not be of the same probative force as in the case of an accomplice for the two do not stand on the same footing." The proper approach for the Court while dealing with the testimony of an approver, an accomplice, an interested or a "suspect" witness is that the testimony of such witnesses must be taken along with the confirmatory or corroboratory circumstances, and not to take the testimony of these witnesses independent of the confirmatory evidence and reject it as unworthy of credit and then take the corroboratory evidence and also reject it on the ground that by itself it is not sufficient to sustain conviction. The real purpose of confirmatory or corroboratory evidence is that it furnishes a touchstone on which the credibility of the witness is tested, and therefore, that evidence must be read along with all other available evidence in the case while judging the guilt or innocence of the accused.

12. Judged in the light of the test laid down above, I, with profound respect, am unable to agree with the reasoning of the learned Judge pronouncing in favour of the acquittal of the accused that the recovery of the bloodstained hatchet from the house search of the accused by the investigating officer cannot be taken into consideration against him, on the ground that the recovery was made in the absence of the accused. There is no statutory rule which requires for the admissibility of the recovery of the incriminating article that the accused should be present at the time of the search. If this be so the accused by the mere expedient of keeping away from their houses or by absconding would render important incriminating evidence against them as inadmissible. All that is necessary is that there should be no suspicion about the factum of the recovery of the incriminating article. The suggestion that the kotha from which the blood stained hatchet was recovered was shared with the appellant by his father or his brother does not in the least advance the case of the appellant, especially when his father and brother were not even suspected of complicity in the crime. As regards the recovery of the bloodstained chadar from the appellant there can be no manner of doubt that the same was recovered from his personal search as deposed to by the investigating officer and Rehmat Khan (P. W. 8) though the appellant tried to deny its ownership.

13. For all the foregoing reasons, I respectfully agree with the opinion recorded by my brother affirming the conviction. I, therefore, uphold the conviction, dismiss the appeal, and confirm the death sentence. S. Q. Appeal dismissed.