1. ABDUL RASHID, C. J.-This is an appeal, by special leave, from a decision of the High Court of Judicature at Lahore, dated the 9th December 1953, confirming the sentence of death awarded to Taja appellant by the Additional Sessions Judge of Lahore.
2. Mst. Daulan, the murdered woman, was a widow of one Allah Ditta. She was aged sixty-five, and was living all alone in village Pirkot. As Allah Ditta had left no male heirs, Mst. Daulan was in possession of about twenty kanals of land and a house belonging to her deceased husband. It is stated that after the death of Mst. Daulan the property of her deceased husband would have been inherited by Piran Ditta, the at her of Taja appellant, under the Customary Law. It is the case for the prosecution that Taja appellant killed Mst. Daulan in order to get possession of the land and the house belonging to his uncle, Allah Ditta.
3. The principal evidence in this case consists of the statement of Faqir approver (P. W. 1). He is the brother-in-law of Taja appellant. In the month of November 1952 Faqir left his village Mozang Nauabad and went to village Traggawali to harvest paddy crop as a labourer. He and Taja appellant harvested the paddy crop for some days together. Taja told the approver that his father Piran Ditta had mortgaged the entire land and had left nothing for him. He asked for the assistance of the approver in killing Mst. Daulan so that he maybe able to secure her land and other property.
4. On the 24th of November 1952, Taja appellant and Faqir approver went to village Traggawali. At about sunset they visited the house of Mst. Daulan in village Pirkot. She welcomed the appellant, who was her husband's nephew, and his companion and made them sit down on a cot. They were given cooked rice to eat for their evening meal. After they had finished the meal, Ismaila (P. W. 4), a by aged ten or eleven years, came there as he had been sent byte to (P. W. 16) to sleep in the house of Mst. Daulan. Buta was the cousin of Allah Ditta, the deceased husband of the widow. Mst.
5. Daulan asked Taja and his companion to give the cot to Ismail so that he may go to sleep. These two persons, therefore, left the house and hid themselves in a cotton field outside the village. At about mid-night Taja appellant and the approver returned to the house of Mst. Daulan and effected entrance therein by opening the chain of the outer door. The approver caught hold of the arms of Mst. Daulan and Taj a appellant throttled her to death by pressing her throat, After killing her, the appellant took three keys (Exhs. P. R, P. 14 and P. 10) from under tire pillow of the widow and with one of those keys opened a wooden box which was lying in the room. From this box a number of clothes were removed which were divided between the appellant and the approver.
6. On the morning of the 2501 November Buta came to the house of Mst. Daulan and found that she had not yet got up. Mst. Daulan was in the habit of getting up early and going to his house for a smoke. As she had not turned up till, this had aroused his suspicion. He found Mst. Daulan still lying on her cot and her face covered by means of a quilt. As soon as he removed the quilt, he found that she was dead. On enquiry from Ismail, he came to know that two persons had visited Mst.
7. Daulan last night and that they had been given cooked rice to eat for their evening meal. The news of Mst. Daulan's death was communicated by Buta to Raja Khan Lambardar (P. W. 9). Buta and the Lambardar started for the police station, but on their way they met A. S. I. And made a statement to him. In this report, it was stated that Mst. Daulan had been visited by two men on the previous night and that Ismail who had seen them would be able to identify them. As Piran Ditta and Taja were the next heirs of Mst. Daulan, they were suspected. Raje Khan Lambardar and the Assistant Sub- Inspector of Police searched for the appellant and his father on the morning of the 25th in village Traggawali, but as they could not be found the A. S. I. Returned leaving the Lambardar there. Next morning, the Lambardar was able to trace the appellant and his father Pira. It was from the information supplied by Taja that Faqir approver was caught hold of. As soon as Taja and Faqir were interrogated, Taja produced the keys (Exhs. P. 8 to P. 10) and they were taken possession of by the police. On the informa--tion supplied by the appellant and the approver, some clothes belonging to the widow were recovered from the possession of each one of them.
8. In our order granting special leave to appeal, it was pointed out that the main question that arose for determination was whether the approver's testimony had been corroborated to the extent and in the manner necessary, to establish the case against the appellant. We have now been taken through the entire evidence by the counsel for both parties and have reached the conclusion that the finding of the learned Judges of the High Court that the approver's testimony had been sufficiently corroborated in respect of the participation of the appellant in the murder of Mst.
9. Daulan cannot be assailed in this Court, as we find that the finding is supported by evidence which has been regarded as reliable by both the Courts below.
10. It has been established by unimpeachable evidence that as soon as Taja appellant was arrested he handed over three keys (Exhs. P. 8, P. 9 and P. 10) to the police. These three keys were, according to the approver's testimony, removed by Taja from the bed of Mst. Daulan deceased. The recovery of these keys is deposed to by a number of eye-witnesses who have been relied upon by the Sessions Judge as well as the learned Judges of the High Court. These three keys, according to the evidence, fitted the three locks (Exhs. P. 13, P. 14 and P. 15) found in the house of Mst. Daulan. Exh. P. 13 was used for locking the wooden box from which clothes are alleged to have been stolen. Exh. P. 14 was the lock on the dhari (cottage) of the deceased, and Exh. P. 15 was lying in a trunk and was ordinarily utilized by the widow for the outer door, whenever she left the house, the recovery of these keys from the person of the appellant shows that the appellant visited the house of Mst.
11. Daulan on the 24th of November and removed the keys therefrom at a time when the widow was not in a position to resist.
12. The evidence of Ismail (P. W. 4) shows that two persons took their meal with Mst. Daulan on the evening of the 24th November. In an identification parade, he was able to pick out Faqir approver as one of these persons. He, however, failed to pick out the appellant correctly. There is no reason to doubt the statement of the approver to the effect that Taja appellant was his companion at the time that they visited the house of Mst. Daulan. Faqir would not be interested in shielding the real culprit and in substituting his brother-in-law Taja therefor. In Court, Ismail pointed to Taja as the companion of Faqir.
13. I am not prepared to attach much importance to the recovery of the clothes belonging to the deceased from the possession of the appellant as this evidence was not relied upon by the trial Court. It is, however, important to point out that the medical evidence shows that there were six ounces of semi-digested rice in the stomach of the deceased. This shows that the approver has correctly stated that they were given cooked rice to eat by the widow when they visited her on the evening of the 24th of November.
14. It is true that where there are only two culprits, the culprit who turns approver, has, a strong interest in deposing adversely B to the other culprit. In this case, however, Piran Ditta, the father of the appellant and Taja appellant, were originally suspected and it appears that it was on information supplied by Taja appellant that the approver was traced. In these circum--stances, the approver would have no motive to screen the real offender and to name Taja as his companion. It has been proved by reliable evidence that two persons visited the house of Mst. Daulan on the evening of the 24th of November and that one of them was the approver. No indication exists on the present record that the approver had named Taja falsely as his companion. If in fact he was accompanied by someone else.
15. After a review of the entire evidence, I am of the opinion that this is not one of those cases where it can be said that there is no corroboration of the approver's testimony or that the corroborative evidence is so flimsy that it could not reasonably be made the basis of conviction. In these circumstances, this case does not present any such feature as would attract the special jurisdiction that this-Court exercises in criminal matters. I would, therefore, dismiss this appeal.
16. SHAHABUDDIN, J.-The material recoveries particularly the , production of the keys by the appellant afforded the' required corroboration of the approver's testimony. As for the improba--bility of the approver falsely implicating the appellant, it cannot take the place of ,the corroboration required in the case of an approver, but it Is a point that may be taken into consideration in assessing the weight of the evidence of the approver in general, having regard to the circumstances of the case.
17. However, on the facts of the present case no point arises attracting the special jurisdiction which we exercise in ciminal matter. I therefore agree that the appeal be dismissed.
18. CORNELIUS, J. -I agree in the order proposed by my Lord the Chief Justice in this case, but find it necessary to add a few words of my own.
19. The crime, viz. The strangulation of Mst. Daulan, is alleged to be the work of two men, namely, the appellant Taja, and the approver Faqir. Mst. Daulan was a widow who held some agricultural property on a life estate. Taja's purpose is alleged to be that of accelerating the accession to this property. It is undeniable, however, that the crime would benefit directly not Taja but his father. If agricultural custom applied, the father stood to get the whole property ; otherwise, he would get a smaller share. Taja was on bad terms with his father. Even though Faqir, who is much younger than Taja, says that the property motive was mentioned to him, it is not unlikely that robbery was also a secondary, if not a primary motive. It would be natural to expect to find some valuables, in the house of an old widow who owned landed property.
20. From this point of view, the allegation that the meagre contents of a wooden box belonging to the widow were found to have been distributed between the approver and the accused, as appears from the subsequent recoveries, need not prejudice belief in the prosecution case as a whole. The evidence relating to the recoveries has been accepted by the High Court, over-ruling the view expressed on the point by the trial Judge, whose doubt was based on certain discrepancies between the several witnesses on points of comparatively minor importance. The rule that this Court ordinarily accepts the view of evidence taken by the Court immediately below may be safely followed. These material recoveries serve strongly to corroborate the approver's statement not only generally, but also against the appellant particularly.
21. Even more specific corroboration of the latter kind is furnished by the recovery from Taja's person of a bunch of three keys which undoubtedly belonged to the widow. The keys were found by trial to open three locks in her house. The natural assumption would be that the box was rifled after the owner had been murdered, and that is also the approver's story. The keys cannot have come into the appellant's possession otherwise than in consequence of the murder. They constitute material corroboration of the approver's testimony, of a most convincing type, and together with the recovery of the other articles, furnish a clear connection between Taja accused and the murder of Mst. Daulan with which he is charged. As this evidence comes from sources unconnected with the approver, it satisfies in all respects the requirements of the rule of prudence, now invariably followed by the Courts, that an approver's testimony, by itself', cannot support a conviction, but it must be corroborated by the evidence not only as to its general credibility, but also with special reference to the person convicted. The evidence of the latter kind should relate to one or more particulars which are material to the prosecution story, and must be independent of the C approver's testimony.
22. I am firmly of the opinion that the safe administration o justice requires that this rule should be preserved and applied in its integrity to the examination of every case which rests, in the main, on an approver's evidence. It is when I came to apple these principles to the testimony of the by Ismail that I find myself, to my great regret, in disagreement with my Lord the Chief Justice.
23. Ismail's evidence relates to an incident which in a certain aspect, might be thought to be highly incriminatory. For, though relation is natural enough, a visit to a widow living alone, late the evening, by a male collateral from a village some 4-5 miles away, accompanied by a relation of his for no apparent purpose, on the very night on which the widow is murdered cannot be regarded as being devoid of significance in relation to the crime. The weakness of Ismail's evidence consists in this, that when asked to pick out the two "guests" who had visited Mst. Daulan, at a parade in which both the approver as well as Taja were included, he picked out the approver, correctly, but identified a person other than Taja as the approver's companion. Subsequent identification at the trial, when Taja had probably been seen by him in handcuffs on a number of occasions, cannot eradicate the defect appearing in the first --wrote identification. Consequently, though Ismail's ...Evidence might be regarded as providing general corroboration of the approver's statement, it is cannot serve as particular corroboration as against Taja, owing to the defect in a crucial respect, viz. The identity of the approver's companion.
24. I am not prepared to improve the corroborative value of Ismail's evidence with the aid of the approver's statement and the consideration that the approver is, not likely to implicate falsely a close relation of his. In my view, the presumption that the approver is testifying against others in order to save himself is so strong that a complete clevage and conflict of interest between himself and such other persons must be presumed to take place from the moment when he receives and accepts an offer of pardon for himself, at the costs of testifying against the others. In a capital case, and particularly where there are only two culprits, such a relationship as that between the, approver and D Taja (they are married to two sisters) would carry no weight against the, overwhelming desire of the approver to save his own life. The circumstance that a disclosure by Taja apparently led the police to question the approver might even aggravate this condition, by adding hatred towards Taja as a further motive for deposing against him.
25. But apart from these considerations which arise out of the facts in this case, there is the major consideration, viz. That, for the purpose of believing an approver against an accused person, evidence on material points from independent sources is required. Subjective considerations relating to the approver's possible inclination to testify against one person rather than another can never g fulfil this requirement. This is so because the basic assumption is that an approver's over- mastering desire is to save his own life, by means of his testimony, and such human virtues as regard for truth or feeling for a relation who is accused, have no meaning or value for him.
26. Therefore, the tests of his veracity have necessarily to be of an external and objective character.
27. However, as in the present case there is concrete and objective corroboration available in the material recoveries, the presence, or otherwise of subjective corroboration is, in any case, of no importance. I only regret that in this respect, I find myself so much at variance with the view of my Lord the Chief Justice.