MUSHTAQ HUSSAIN MUNIR, J.-Allah Bakhsh ,(21) was tried by Mr. Rasool Bak'fsh Leghari, Additional Sessions Judge, Mianwali, under sections 302 and 394 of the Pakistan Penal Code for the murder of Ahmad Din deceased, committed by him jointly along with Shabbir Hussain Shah approver (P. W. 2) and voluntarily causing hurt to the deceased while robbing him 44 sheep. He was found guilty of both the charges and was sentenced to death under section 302 of the Pakistan Penal Code. He was also sentenced to three years' rigorous imprison--ment under section 394 of the Pakistan Penal Penal Code. However, the latter- sentence was directed to take effect in the case death sentence was not confirmed. In that eventuality, this sentence was to run concurrently with any other sentence awarded to him for the murder of the deceased. He has come up in appeal to this -.Court. His case is also before us under section 374 of the Code of Criminal Procedure for confirmation of the death sentence. This judgment shall dispo3e of appeal and as well as the murder reference.
2. Briefly stated the facts of the case are, that Ahmad Din deceased an old man of 75 years of age, resident of Tina Qureshi Wala dakhti Godla, used to go out every day to graze his flock of sheep. As usual, he took 44 heads of sheep and goats for grazing on 28th October 1967, to a nearby jungle, but did not return to his house in the evening. His sons Sher Muhammad (P. W. 6) and Sardar Bakhsh (P. W. 7), made search for him during the night, but did not succeed in locating him. In the morning, accompanied by one Akbar Shah, they once again went in search of the deceased, associating Shah Nawaz tracker with them. The tracker located the foot--prints of the deceased and the hoof marks of his herd, which were followed by them and these took them to a pit Located in between the railway line and the Bhakhar road. They also at the same the, noticed foot-prints going out of the pit. They thereupon suspecting foul play, informed Malik Sher Muhammad and Qadir Bakhsh Lambardar. When the latter carne to the spot, they directed Sher Muhammad P. W. To inform the police.
3. Sher Muhammad P W. Left for Police Station Bhakkar, where he arrived at about 3-15 p.m. On 29th October 1967, and lodged report Exh. P. A., which was recorded by Sub-Inspector Abdul Jabbar Khan (P. W. 13). The Police Station is about four miles from the place of occurrence.
4. Sub-Inspector Abdul Jabbar Khan reached the place of occurrence at about 4-00 p.m. And found the dead body of Ahmad Din deceased in the pit. He prepared its inquest report (Exh. P. R.) and injury statement (Exh. P. S.) and des--patched it to the mortuary for post-mortem examination in the custody of Foot-Constable Amir Abdullah (P. W. 3). He then inspected the spot and recovered blood-stained earth therefrom, which was sealed and taken into possession vide memo. Exh. P. K,
5. Doctor Abdur Rashid Khan (P. W. 1), conducted autopsy on the dead body of Ahmad Din deceased on 30th October 1967, at 11-00 a.m. And noticed the following injuries :--
(1) Contused wound 1" x --" x bone, deep on the right side of forehead.
(2) Contused wound --" x --"x --" deep on the back of left ear, with swelling in the adjacent area.
(3) Contused wound --" x --" x bone deep to inches above the right ear.
(4) Whole of the front of the neck was cut by a big gapping wound 5' x. 3' x 3" deep, trachea esophagus blood vessel all cut.
(5) Contused wound 3' x 1" x --" deep on the back of right hand.
(6) Contused mark 2"x 1"x just above the right ear and in front.
(7) Contused wound 1" x --" x 1' deep on the right testicle.
(8) The area in 2--" circumference was all blue around left eye.
Injury No. 4 has been caused with sharp-edged weapon and the rest with blunt weapon. Except injury No. 4, which had cut the layrnx, trachea and the blood vessels and had also caused the death of the deceased, the rest of the injuries were simple. The death was instantaneous and the that elapsed between the death and post-mortem was between 24 to 48 hours. Injury No. 4 was sufficient to cause death in the ordinary course of nature.
6. On 30th October 1967, Sub-Inspector Abdul Jabbar Khan (P. W. 13) proceeded to Xotla Jam along with the track party. The foot-prints which they were following led them to the bank of Hukam Minor from where they continued walking the bank of the canal. After they had covered a distance of to or three furlongs, they were met by Pir Bakhsh (P. W. 4), who disclosed to them, that he had seen to persons, who were in possession of sheep and goats, about to days earlier, and he inquired from them about the price of one of the sheep. They demanded Rs. 80.00 whereas he was ready to pay them Rs.
50. Thus the bargain could not be struck and those persons went away with their herd towards the north. He was ,associated with the track party. On the same day, at about diger--;vela, Atta Muhammad met the track party and he to disclosed having seen to persons going with goats and sheep towards north. He was joined in the party. The party, thereafter, covered a distance of 1- - mile, when they came across the appellant and the approver, who were grazing goats and sheep on the left bank of Hukam Minor. Both of them were arrested. They were carrying sticks Exhs. P. 6 and P. 7 respectively. These were recovered from them and taken into possession. Shirt Exh. P. 3, which the appellant was wearing, appeared to be blood-stained. It was removed from his person, was sealed and taken into possession vide memo. Ejh. P. 1 and shalwar Exh. P. 2 which Shabbir Hussain Shah .Approver was wearing, also appeared to be blood-stained. These were got removed from his person and were sealed and taken into possession vide memo. Exh. P. G. Forty-four heads of goats and sheep were recovered from the appellant and his companiod and were taken into possession vide memo. Exh. P. B.
7. The appellant was interrogated at the Police Station in the presenc: of Malik Sher Muhammad, who has not been produced, and Qadir Bakhsh (P. W. 12). He disclosed that he could lead to the recovery of a knife. He, therefore, led the aforementioned persons and Sub-Inspector Abdul Jabbar Khan (P. W. 13) to a place at a distance of 42 karams towards the east of the pit, wherefrom the dead body of the deceased had been recovered and taking out knife Exh. P. 9 from underneath a bush produced it. It was stained with blood. It was sealed and taken into possession vide memo.
Exh. P. L. Its full size Sketch Exh. P. L./I was also prepared.
8. Earth recovered from the spot, shirt P. 1 and shalwar P. 2 of Shabbir Hussain Shah approver, shirt P.
3 of Allah Bakhsh appellant and knife P. 9 were sent to the Chemical Examiner whose report Exh. P.
X. Reveals that all the aforementioned articles were stained with blood. The report of the Serologist Exh. P. Y. Is to the effect, that the blood found on the aforemen--tioned articles was of human origin.
9. On 6th November 1967, Shabbir Hussain Shah, while in custody, expressed his willingness to make true disclosure of the facts leading to the murder of Ahmad Din deceased. Lie was produced before the Additional District Magistrate, Mianwali, on 8th November 1969 and was granted pardon, whereafter he made statement Exh. P. N. Disclosing the facts of the case before Ch. Rashid Ahmad, Magistrate lst Class (P. W. 11).
10. The appellant denied the prosecution allegations and added, that Malik Sher Muhammad of Godla and Malik Sher Muhammad of Kotla Jam, were against his father. They had colluded with the police and had implicated him falsely, Shabbir Hussain Shah approver had made statement against him at the instance of Malik Sher Muhammad and Qadir Bakhsh F: W. He declined to produce defence.
11. There is no manner of. Doubt, that Ahinad Din deceased was murdered. The question is, whether there is enough evidence on the record to prove, that the appellant had any hand in his murder, there being no eye-witness in the case, except Shabbir Hussain Shah approver. We have, therefore, to depend on the testimony of Shabbir Hussain Shah P. W, to the extent, that it finds corroboration in material particulars. We have also to consider the other circumstantial evidence on the record.
12. Undoubtedly, an accomplice is a competent witness against the accused person and conviction based upon his uncorroborated testimony cannot be said to be illegal, by virtue of section 133 of the Evidence Act. However, illustration (b) of section 114 of the ,Evidence Act, which can be reasonably considered a proviso torsection 133 provides :-- "That an accomplice is unworthy of credit unless he is corroborated in material particulars."
In assessing the statement of Shabbir Hussain Shah, therefore, we shall be guided by the aforementioned provisions of law and find out, whether conviction can be passed on his testimony, It is needless to repeat, that this view has been adopted in a number of decisions of this Court and in fact it has become a rule of law, that an accomplice is unworthy- of credit, unless he is corroborated in some material particulars.
13. The version of Shabbir Hussain Shah P. W. Who lias undoubtedly supported the prosecution case, is that on arrival at the place of occurrence, the appellant told the deceased, that to or three sheep were going astray on the other side of the road. The deceased, who was an old man and whose eye-sight was weak, requested to them to help him in collecting them. It is, thereafter, that the appellant and the approver took the deceased to the other side, towards a pity where the appellant downed liiitt. The approver goes on to state :-- "Allah Bakhsh told me that fie was going to statt the deceased while I should hold him by his legs, I held the deceased by his legs and Allah Bakhsh accused took out the knife and gave hint blows at his testicle, and at his head. He also gave him blows on his neck. He cut the throat of the deceased with a knife. The deceased expired within, 5/10 minutes the."
This part of the statement of the approver is in direct conflict with the medical evidence. It is needless aw repeat, that the doctor, who performed the post-mortem examination on the dead body of the deceased, found only one injury on his person, which had been caused with sharp- edged weapon and that was on the front of the neck. Being conscious of this apparent conflict between the statement of the approver and the medical evidence, the doctor was recalled at the trial. An attempt was made to get out of him, that the remaining even injuries found on the person of the deceased had been catiscd with blunt point i.e. The handle of knife Exh. P.
9. It, however, did not succeed. He stated categorically, that all the injuries except injury No. 4 on the person 4 of the deceased, had been caused by a blunt weapon. It was then put to him, whether injuries Nos. 2, 3, and 7 could be caused by the blunt point of the handle of the knife. He deposed, that these could be so caused, if the assailant field this knife by blade, in that case the assailant stood risk of cutting the palm of his own hand". There is no evidence worth the name, that the appellant hats any such injury on the palm of his hand. This circumstance alone demonstrates, that the statement of the approver with regard to the injuries on the person of the deceased, is false. It may also be noticed, that the approver did not state, that some of the injuries had been caused by the appellant with the handle of the knife.
14. Evidence has been led by the prosecution that on 1st November 1967, the appellant led the police officer to a place about 42 karams away from the pit, where from the dead body had been recovered, and therefrom, produced knife Exh. P.'9 from the bushes. This recovery appears to us to be doubtful, inasmuch as, whereas the. Approver has given a detailed statement about the occurrence, he has nowhere mentioned. That after the commission of crime, the appellant threw the knife in the bushes near the spot. On the other hand, when knife Exh. P. 9 was shown to the approver by the Public Prosecutor during the course of examination-in-chief, he deposed:- "I see knife P. 9 in Court. This knife does not belong to us."
At the the of the recovery of the knife at the instance of the appellant, according to the Police Officer, Qadir Bakhsh (P. W. 12) and Malik Sher Muhammad were with him. The latter has not been produced. The appellant's case is that he has been implicated at the instance of Malik Sher Muhammad of Godla,' and Qadir Bakhsh P. W. Whether this cpntention is correct or not, it is clear from the statement of Qadir Bakhsh P. W., that he is related to Malik Sher Muhammad of Godla. It is also clear from his statement, that he appeared as a prosecution witness against one Rab Nawaz in an Arms Act case and that Rab Nawaz is nephew of Nazar Hussain, the second husband of the mother of the appellant. This witness supported the prosecution case about the recovery of the knife at the instance of the appellant in examination-in-chief, but when cross-examina--tion, he deposed :- "The knife was recovered 4/5 days after the arrest of the accused. The place from where the recovery is made is a deserted place."
He is the solitary witness besides the Police Officer, who has given evidence about this recovery and his testimony as to the the of the recovery of the knife contradicts the prosecution version.
There is no manner of doubt, that according to the Police Officer, the appellant was arrested on.
30th October 1967, and if the recovery of knife was made four or five days after that, it mean that it was not made on 1st November 1967. Prom, the aforesaid facts, we are of the view, that there is no cogent evidence, that knife Exh. P. 9 was used in the murder of Ahmad Din deceased. It is needless to reiterate, that the approver categorically deposed, when knife Exh. P. 9 was shown to him, that it did not belong to them, meaning thereby to him or the appellant. Its recovery, at the instance of appellant, in view of the statement of Qadir Bakhsh, has also become doubtful. The recovery of the knife, therefore, does not lend corroboration to the testimony of the approver.
15. The next piece of evidence against the appellant is, that while going away from the place of occurrence, after the commission of murder with sheep and goats, the appellant and the approver were met at about peshiwela by Peer Bakhsh (P. W. 9) near the latter's house. Peer Bakhsh is stated to have tried to enter into a bargain with them for the purchase of a sheep. But he did not succeed in his attempt because whereas the appellant demanded Rs. 80 for a sheep the former was ready to pay only Rs.
50. The witness cannot be relied upon for the reasons more than one. He deposed, that the appellant and the approver were not known to him when they met him with the herd of sheep and, goats. He had not seen them before that day. However, when he appeared in. The Court of Committing Magistrate he deposed :- "I have been seeing the accused and the approver working at the tube-well in front of Godla village."
He did not abide by the said statement at the trial and was duly confronted with it. He admitted, that he had his Bank on the land of the nephew of Malik Sher Muhammad Chairman of Kotla Jam and the police stayed at his dera i.e. The dera of Malik Sher Muhammad. He further admitted, that Malik Sher Muhammad of Kotla Jam told him to give evidence. In view of this admission on his part, we have no hesitation in holding, that he is a got-up witness.
16. The next person, who is stated to have met the appellant and the approver on the day of occurrence is Atta Muhammad, Tonga-driver (P. W. 10). According to the prosecution case, they met him after meeting Peer Bakhsh P. W. Atta Muhammad did not support this part of the prosecution case at the trial although he admitted, that he had seen to persons with about 40 to 45 sheep and goats going towards Kallurkot, when he himself had started for Darya Khan.
According to him, this meeting took place at about 10-00 a.m. He claims, that he had no more talk with them and proceeded towards Darya Khan. The approver's testimony with regard to Atta Muhammad is, that he and his companion met him at the latter's dera late in the evening. They requested him for meals and for allowing them to pass the night at his dera. He refused, whereupon, they left his dera. The approver's testimony, therefore is in direct conflict with the statement of Atta Muhammad. It was with a view to get clarification about the the of this meeting that the Public Prosecutor intended to put a leading question to Atta Muhammad P. W. He was not permitted by the Court to do so. In spite of this, the Presiding officer himself asked the witness :- "Q. Whether accused and the approver passed by your house 5 with their animals at about sun set the or at about 10-00 a.m.?
A. Yes it was 10 a.m. But not the sunset the.
We are thus of the view, that either Atta Muhammad has made a false statement or the approver.
At any rate, we cannot depend on the testimony of Atta Muhammad P. W. On the ground, that the cross-examination of this witness was curtailed by the trial Court without any plausible reason.
Only one question had been asked in cross-examination, when according to the record, the Public Prosecutor intervened and requested the Court to transfer the statement of the witness, made by him in the Court of committing Magistrate on 6th April 1968, to Sessions file under section 288 of the Code of Criminal Procedure. This was done. Thereafter, we find that only the Public Prosecutor asked one or to questions of the witness and his statement was closed. It has, therefore, been rightly pointed out before us, that since full opportunity was not given to the defence to cross- examine the witness, his testimony should not be relied upon. It is thus of no use and does not lend corroboration to the statement of the approver.
17. The next piece of evidence against the appellant is, that the Sub-Inspector arranged a Vahr party on 30th October 1967; and proceeded towards Kotla Jam area in order to apprehend the culprits. This party included Qaair Bakhsh (P. W. 12), Malik Sher Muhammad, Member, Union Council Gadola, Muhammad Zaman tracker (P. W. 8) and some others. On the way, they were joined by Peer Bakhsh and Atta Muhammad P. Ws. We have already pointed out above, that Malik Sher Muhammad of Godla has not been produced by the prosecution. The evidence with regard to the place and the of the apprehension of the appellant and his companion, is very much discrepant.
Shabbir Hussain Shah approver deposed, that they spent to nights in the jungle. On the third day they got up in the morning and started grazing their animals. It was about 8 or 9 a.m. That the police and some others arrived there and arrested them. There animals were also taken from them. During the cross-examination, he deposed :- "After the arrest, we were taken in a truck to Bhakkar. This truck was already present on the Pakka road at the dera of Atta Muhammad P. W. Pira Mussali P. W. And Atta Muhammad P. W. Were already present at the truck before we reached there. We were put in the truck at about 10/11 a.m."
Muhammad Zaman (P. W. 8), the tracker, deposed that along with some relations of the deceased, Malik Qadir Bakhsh and Malik Sher Muhammad, he followed the foot-prints of the deceased. These were lost near the pit. Further search revealed that the dead body of the deceased was in the pit.
Sher Muhammad son of the deceased, went away to inform the police and the remaining persons followed the foot-prints.
The police met them at a distance at about 1-- mile onward from the dera of Atta Muhammad and "on that evening both the accused were arrested at Khuftanwela (9-00) p.m. I mean to say the accused were arrested in the evening of the day on which son of the deceased had gone to lodged the report with the police. It was the second day of missing deceased Ahmad Din". Peer Bakhsh (P.
WA) deposed, that the police made inquiries from him on the third day of the occurrence and took him along with it. On the way they met Atta Muhammad Tonga-driver. Enquiries were also made from him and he to was joined in the party. He further deposed, that Atta Muhammad P. W. Had met this party at a distance of six miles from his house. The accused and the approver were apprehended at a distance of one mile from that place. During the cross-examination, he revealed that the appellant and the approver were apprehended in the evening at about sun set the. Atta Muhammad (P. W. 10) deposed, that he joined Vahr party at Jhiki Digerwela: He has, however, given no the, as to when the culprits were apprehended. Although in his statement made before the Committing Magistrate, which has been, as we have pointed out above, transferred under section 288 of the Code of Criminal Procedure, he deposed that the sun was setting when the police arrested the accused. Qadir Bakhsh (P. W. 12), deposed that the party reached the dera of Atta Muhammad P. W. At about sunset the. The latter was called. He gave a clue about the suspects and joined them. They had covered a distance of about to miles, when they apprehended the accused and the approver along with sheep and goats. In the Court of the committing Magistrate, he had deposed and with which statement he was duly confronted, that he accompanied the police and the track party from the pit after the recovery of the dead body on the day of recovery towards Kotla Jam and the dera of Atta Muhammad and arrested the accused that day in the evening from a place to furlongs from the dera of Atta Muhammad. In view of this apparent conflict between the testimony of the witnesses of the track party, we cannot reasonably conclude that the appellant and his companion were apprehended on the third day of the occurrence in the evening or shorty thereafter. We are also at a loss to find as to where from they were taken into custody. At any rate, their testimony does not corroborate the statement of the approver.
18. The last piece of evidence against the appellant is that at the the of his apprehension, he was wearing blood--stained shirt Exh. P.
3. This was undoubtedly a very important piece of evidence.
But in view of the fact, that we have rejected the rest of the prosecution case, the mere fact that at the the of his arrest, the appellant was wearing blood--stained shirt, would not in any manner, advance the prosecution case. It certainly would not lead us to the conclusion, that since the appellant was wearing blood-stained shirt, he was the murderer of Ahmad Din deceased.
Considering the age of the deceased and his feeble health, we cannot exclude the possibility, that his murderer may just- be a single person.
We have in evidence, that both the shirt and shalwar of the approver were also blood-stained.
Therefore, he alone could have committed the murder. At any rate, the mere fact, that the shirt of the appellant was found to be stained with human blood, would not prompt us to hold, that he is the murderer. The result, therefore, is that the testimony of the approver does not get corroboration in any material particular and the remaining circumstantial evidence is not enough to bring home the charges to the appellant. As a matter of fact, there is no evidence worth the name of any previous association between the appellant and the approver which could prompt them to join hands to commit such a heinous crime. When questioned, the approver stated :--- "I and the accused prior to this occurrence, had never committed any crime together or individually."
It is, therefore, hard for us to believe, that in the absent; of any previous criminal association between the to, the appellant would suggest to the approver to murder Ahmad Din and rob him of his sheep and goats. At any rate, the case against the appellant appears to be doubtful. Therefore, giving him the benefit of doubt, we allow his appeal and set aside his convictions and sentences.
His death sentence is not confirmed. He 'shall be released forthwith provided he is not required to be detained in any other case.