' EJAZ AFZAL KHAN, J.---Asif Ali, deceased in this case, according to the F.I.R., went to attend a meeting of Salim Saifullah being held in the 'Hujra' of Toor Khan at a place known Hisar Baba'. When he did not come back throughout the night, it became a source of concern for his father Naik Muhammad, complainant, in the case. When on the following day, he came to know that a dead- body is lying in the fields of the area known 'Kamala', he proceeded thereto. When after reaching the desired place, he found the dead-body of his own son, he reported the matter against unknown culprits. This was followed by the registration of a case under sections 302/201/34, vide F.I.R. No, 28, dated 12-12-2004 in Police Station Qalangi, District Malakand. After almost two months, when he got an inkling that his deceased son was done to death by Javed, Nawaz Khan, Masood, appellants herein and Sial who later turned an approver in this case, he charged them in his supplementary statement recorded on 9-2-2005. Motive for the occurrence was that a few days before the occurrence, Javed, appellant, went to the house of Mst. Subhania, a fiancee of his brother Nawaz and threatened her by saying that he would kill her and the deceased because of their illicit relations inter se.
2. After the arrest of the appellants and completion of investigation, they were forwarded to the Court of the learned Sessions Judge for trial who on its conclusion convicted and. Sentenced them to undergo imprisonment for life with a fine of Rs,1,00,000 each or in default to undergo six months'
S.I. Under section 302(b), P.P.C. And to undergo three years' R.I. With a fine of Rs,3000 each or in default to undergo three months' S.I. Under section 201, P.P.C., with the benefit of section 382-B, Cr.P.C., vide his judgment, dated 16-1-2007, hence this Criminal Appeal and Criminal Revision for enhancement of sentence, which are disposed of by this single judgment.
3. Learned counsel appearing on behalf of the appellants contended that the only evidence which connects the appellants with the crime is that of Sial who was primarily an accused and then made an approver on being tendered pardon by the learned Sessions Judge, but since he has been shifting his stands from time to time, his testimony is not worthy of reliance. Even if, he is assumed to be an accomplice, the learned counsel added, his testimony cannot form basis of conviction unless it is corroborated by independent facts and circumstances of the case. The learned counsel next contended that the evidence of last seen and motive has no probative worth and cannot thus be used as corroborative of the charge, when it saw the light of the day almost two months after the occurrence. The learned counsel by concluding his arguments submitted that where the statement of the accomplice is exculpatory in nature, his testimony cannot be relied upon in case involving capital charges.
4. As against that, the learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant contended that once it is believed that the disclosure made by the approver is honest and truthful, ii can be relied upon. When the statement of approver, the learned counsel added, is supported by other corroborative evidence of last seen and motive, the charge against the appellants has been proved to the hilt, therefore, the convictions and sentences recorded by the learned Sessions Judge are not open to any interference.
5. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. A perusal of the record would reveal that the charge against the appellants sprouts from P.W.
Sial who was an accused in the case and then made an approver under the order of the learned trial Court. In his IA Police statement recorded on 14-1-2005, he professed innocence but in the one recorded on 19-2-2005, he implicated the appellants but exculpated himself and then on the following day, led to the recovery of 3 daggers. He then went to slumber and remained calm. Then he moved an application before the learned Sessions Judge for being made an approver and tender of pardon, which somehow or the other was granted by him, vide his order, dated 6-8-2005.
His statement as an approver was recorded under section 164, Cr.P.C. On 12-10-2005. "He stated that in the evening of the preceding night of occurrence, Nawaz, appellant came to him and took him to his house for spending the night, where Javed and Masood, the other two appellants were already present in the company of the deceased. Javed served the deceased with a cup of tea and then called Nawaz to the room and then took the deceased to the bathroom. He then was called in the bathroom. When he reached there, he saw the deceased lying dead. He was asked to give blows to the deceased but he refused. But when threatened, he dealt two blows to the deceased. Thereafter, according to the said statement, the appellants Masood and Javed took out the dead-body from the house for its disposal whereas he left the house to conceal the daggers somewhere, which he concealed under a "big bolder". When he was examined as a P.W. In the Court, he stated in his examination-in-chief that he and the appellants gave blows to the deceased. When confronted with his previous Police statement, he made a somersault to deny whatever he stated therein. When confronted with his previous Magisterial statement, he admitted that when he reached the room, the deceased was already dead. Now a question arises that when a P.W is blowing hot and cold in the same C breath and shifting his stands from time to time, can his testimony be relied upon in a charge of murder? Our answer to the question would be an emphatic no, because a witness saying one thing in the morning, another in the afternoon and yet another in the evening, cannot be given any credence. His testimony becomes all the more incredible, when the disclosure made by him after becoming an approver cannot be said to be honest and truthful by any attribute. Even his status as an accomplice becomes doubtful, when his statement recorded by the Magistrate appears to be exculpatory on all accounts. Quite apart from the fact that the very manner, of tendering pardon to him and making him an approver appears to be dubious and dismaying on the face of it, his testimony as an accomplice is blessed, nay, cursed with the presumption of being unworthy of credit under Article 129(b) of Qanun-e-Shahadat Order, 1984. Yes, conviction on the testimony of an accomplice or approver in view of the provision contained in Article 16 of the Order is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice but the rule of prudence which has crystallized into the D rule of law requires corroboration. The Court of law before proceeding to record conviction on such testimony is required to see whether it is dependable in its own rights and then corroborated by independent, impartial and unimpeachable sources. When it is neither dependable in its own rights, nor corroborated by independent, impartial and unimpeachable sources, as in this case, it cannot be relied upon.
7. Next comes the question of corroboration. Once we hold that the disclosure made by the approver so called is neither honest nor truthful,, it would be rather naive to look around for corroboration. All the same, we would like to see how far it stands corroborated. According to the statement of Mst. Kamoda, the deceased was taken along by Masood to his house in the evening preceding the night of occurrence in her presence and of her husband Naik Muhammad. But strangely enough they remained unmoved for almost two months to disclose this fact notwithstanding the next important event in the sequence was the death of their son. Their silence for almost two months would militate against the veracity and genuineness of this piece of evidence. It thus appears to be a subsequent thought and fabrication. The evidence of motive also appears to be an afterthought and fabrication, when it, too, came to light after almost two months.
When each piece of evidence on its careful evaluation appears to be tarred and tainted, it would not be prudent to maintain the conviction of the appellants on this stage of evidence. Needless to stress that one tainted piece of evidence cannot corroborate another tainted piece of evidence.
The sum total of the above discussion is that the Prosecution failed to prove the charges against the appellants beyond any shadow of reasonable doubt.
8. For the reasons discussed above, this Criminal Appeal is allowed and the convictions and sentences recorded by the learned trial Court are set aside and acquit the appellants of the charges. They be set free forthwith, if not required in any other case.