QAMAR-UZ-ZAMAN AND Anarneles+D8876 vs THB STATE

RUSTAM S. SIDHWA, J.-Qamar-uz-Zaman and Babar Pervaiz were tried by Mr. Ausaf A.I Khan, Sessions Judgp, Multan, under section 302/120-B/201/34, P. P. C. For the murder of Malik Amir Bakhsh Khokhar deceased with the assistance of Arshad Javed approver on 4-2-76, for conspiracy to commit the said murder with the said approver on 3-2-76 and for causing the evidence, of the commission of the said offence to disappear in company with the approver. The learned trial Judge, by his judgment dated 29-10-78, convicted both the accused under section 302/34, P. P. C., 120-B, P. P. C. And 201/34, P. P. C. And sentenced Qamar-uz-Zaman to death with a fine of Rs. 5,000 or in default further two years' R. I. And Babar Pervaiz to life imprisonment, with a fine of Rs. 2,000 or in default further R. I. For one year under section 302/34, P. P. C. Qamar-ur-Zaman to death and Babar Pervaiz to life imprisonment under section 120-B, P. P. C. And both the accused to seven years' R. I. Each under section 201/34, P. P. C. It was also ordered that the sentences of both the convicts would run concurrently and that the fines, if realised from them, shall be paid to the heirs of the deceased as compensation. The appeals preferred by Babar Pervaiz and Qamar-uz-Zaman convicts (Cr. A. 978-78 and Cr. A. 979-78) against their convictions and sentences, the reference (M. R. 267-78) submitted by the learned Sessions Judge for the confirmation of the death sentence of Qamar-uz-Zaman and the private revision (Cr. R. 879-78) filed by Mst. Rashida Begum for the enhancement of the sentence of Babar Pervez convipt, are all now before us for disposal.

2. On 4-2-1976 at about 2-00 p. m. The dead body of Malik Amir Bakhsh Khokhar deceased was found lying in an abandoned car No. M. N. A. 4466 outside the western gate of Nishtar Hospital, Multan. The body was discovered by the deceased's brother-in-law, Murid Hussain (given up P. W.), when he, with Sajjad Hussain P. W. 18, was driving fast the abandoned vehicle and found a crowd collected near it and stopped to find out what had happened. At 2-20 p. m. The same day Malik Murid Hussain (given up P. W.) lodged F. I. R. Exh. P. J. In connection with the discovery of his brother- in-law's dead body in the abandoned. Vehicle at Police Station, Multan Cantt,

3. The mystery of the murder of the deceased would not have come to light but for the appearance of Arsbad Javed alias Jeda approver P. W. 4 on the scene of investigation on 6-3-1976, when he was produced in Multan before the Superintendent of Police (Crimes) by his maternal grandfather, and his statement Exh. D. D. Under section 161, Cr. P. C. Was recorded by the said police officer and his statement Exh. D. E. Under section 164, Cr. P. C. Was recorded by Syed Makhdoom Sher Abbas, Magistrate, Multan, the same day. The said Jeda approver P. W. 4 was granted pardon and on 10- 3-1976, his statement Exh. P. E. Was recorded by same Magistrate as an approver. Since his statement at the trial constitutes the backbone of the prosecution case, it is necessary to reproduce the same in exlenso, even though it is somewhat lengthy.

4. According to the statement of Arshad Javed approver P. W. 4, he became friendly with Mian Babar Pervaz accused who resided at Tehsil Bazar Road, Inside Bhati Gate, Lahore, which was 2/3 streets away from his own house in Kucha Nanak Bakhsh Inside Bhati Gate. About two years before the occurrence, he became friendly with the said Mian Babar Pervez accused. He also did petty odd jobs for Babar Pervaiz accused, for which Babar paid him Rs. 10 to Rs. 15 every 2/3 days. He became a go-between between Babar Pervaiz accused and Mst. Gulshan Ara, a prostitute, and the latter visited the house of Babar Pervaiz accused a number of times. After a few days, Babar Pervaiz accused took Jeda P. W. 4 to Qamar-uz-Zaman accused, who was then posted as Traffic Inspector at Ichhra, Lahore, Babar Pervaiz accused introduced Jeda P. W. 4 to Qamar-uz-Zaman accused stating that he was an obedient boy and should be provided some employment. Qamar-uz- Zaman accused promised to assist in this respect. Qamar-uzZaman accused also used to visit the house of Babar Pervaiz accused. A telephone bearing No. 311233 was installed in the house of Babar Pervaiz accused, from which telephone Qamar-uz-Zaman accused used to make telephone calls to Malik Zawar Hussain in London in the presence of Jeda P. W.

4. In one of such conversations, within the hearing of Jeda P. W. 4, Qamar-uz-Zaman accused stated to Malik Zawar Hussain Khokhar in London : After a few days, Qamar-uz-Zaman accused was transferred to Multan. After a few days, on the 2nd of Moharram (5th January 1976) Qamar-uz-Zaman accused invited Babar Pervaiz accused on telephone to come to Multan as Nawab Sadiq Hussain Quresbi, then Chief Minister, was to visit Multan and he would recommend his cousin Bari to him for appointment as an Assistant Sub- Inspector. Babar Pervez accused purchased two P. I. A. Tickets for the said trip, one for himself and one for Mst. Gulshan Ara. Jeda P. W. 4 went to see them off at the Airport, where Babar Pervez accused gave him a sum of Rs. 30 and directed him to reach Multan by bus and there contact Qamar-uz-Zaman accused on telephone No. 3117 or reach his office. On the following day Jeda P.

W. 4 reached Multan by bus and went to the office of Qamar-uz-Zaman accused in a rickshaw.

Since he did not have sufficient money to pay the rickshaw, Afzal, the Reader of Qamar-uz-Zaman accused, paid Rs. 2 to the rickshaw driver and Jeda P. W. 4 paid the balance.

Re. 1 which he had with him. Afzal Reader then contacted Babar Pervez accused, who came in a white-coloured car with Mst. Gulshan Ara and took him to Fardous Hotel where he was lodged in Room No. 4. They stayed in the said hotel for 5/6 days where Farooq Khan and Qamar-uz-Zaman accused used to visit them often. One night, Qamar-uz-Zaman accused came to them in Firdous Hotel and confided with Babar Pervez accused add Jeda P. W. Saying ---My friend has assigned to me a duty that I have to kill a renowned Zimindar Aamir Baksh Khokhar.--- Hearing this Babar Pervez accused told Qamar-uz-Zaman accused that since he was giving Niaz on 10th of Moharram at Lahore, therefore, he would consider the matter later. On 8th of Moharram (11th January 1976) Jeda P. W. 4, Babar Pervez accused and Gulshan Ara came back to Lahore. In the month of January, 1976, Babar Pervez accused told Jeda P. W. 4 that Qamar-uz-Zaman accused alongwith Zamurad Gardezi P. W. 10, Sultan and two others had come from Multan and were staying in Humera Hotel, Gulberg, Lahore. After some days Qamar-uz-Zaman accused, his driver Mubarik and his companions Rukhsana and Fazal Mirasi came to the house of Babar Pervez accused, where all these persons were introduced to rim. Qamar-uz-Zaman accused stayed in Lahore for a few days, but the car in which he had come from Multan remained with Babar Pervez accused. On 27th January, 1976, Babar Pervez accused asked Jeda P. W. To accompany him to Multan, as be was going there to sec Qamar-uz-Zaman accused for employment of his cousin. On 28-1-76 Babar Pervez accused showed Jeda P. W. 4 two P. I. A. Tickets for 29-1-76, one in the name of Mst. Gulshan Ara and the other in the name of Mian Tufail. On Jeda's querys Babar Pervez accused told him that he had gone with Mian Tufail for the purchase of tickets and since the Air Hostess on duty knew, the sister of Mian Tufail, therefore, he had purchased one ticket in the name of Mian Tufail. Babar Pervez accused told Jeda P. W. That he would be travelling on the ticket issued in the name of Mian Tufail. On 28-1-76 Babar Pervez accused gave Jeda P. W. 4 50/60 rupees and asked him to reach Multan by bus and to contact Qamar-uz-Zaman accused at his office. On 29- 1-76 Jeda P. W. 4 reached Multan and presented himself at Qamar-uz-Zaman accused's house.

Qamar-uz-Zaman accused was away. After he returned, Qamar-uz-Zaman accused asked the Sub-Inspector who was present there to get a room booked in Guild Hotel in Multan in his name. He accompanied the Sub-Inspector to Guild Hotel and the Manager gave him Room No. 20 which had three beds. At noon, Mubarik driver brought Babar Pervez accused and Mst. Gulshan Ara to the hotel. All three stayed in the said hotel at the expense of Qamar-uz-Zaman accused. They however, shifted to Fardaus Hotel on 30th January 1976 as Guild Hotel was not up to their standard. They all occupied Room No. 14 of the said hotel. On this day, Babar Pervez accused went to see Qamar-uz- Zaman accused in the latter's jeep. And again returned to the hotel thereafter. On 31-1-76 Qamar- uz-Zaman accused on phone informed Babar Pervaiz accused that his cousin Aurengzeb, Mian lbrar and Asghar alias Dany Boy had come from Karachi and they were putting up with Malik Faiz, Inipector, Anti-Corruption, Multan. Qamar-uz-Zaman accused told Babar Pervez accused that the telephone number of Malik Faiz Inspector was 4639 and Babar Pervez accused talked with his cousin Aurengzeb on that ` phone. During this discussion, Babar Pervez accused told Aurengzeb that he should not have come to Multan as be himself already stood mortgaged--with Qamar-uz- Zaman accused. Babar Pervez accused further told him that he would make arrangement for their tickets for Lahore by air. Babar Pervez accused directed Jeda P. W. 4 to go to Qamar-uz-Zaman accused and bring money from him in respect of which he had already phoned the latter. Jeda P..

W. 4 went to the office of Qamar-uz-Zaman accused, during which tirw Faraoq Khan. Aurengzeb, Mian lbrar and Dany Boy alongwith Anjum, the son of Malik Faiz, Inspector came there. They took tea, during which interval Qamar-uz-Zaman accused gave a hundred-rupee note to Man Aurengzeb and told him to spend the same and assured him that he would make arrangements for their return by air on the following day. On 31-1-76 Mst. Gulshan Ara was taken ill. Jeda P. W. 4 informed the hotel Manager about it and a doctor was called, who prescribed medicines which Jeda P. W. 4 bought from a Chemist. Jeda P. W, 4 paid Rs. 30 as fee to the doctor. The same night when Babar Pervez accused came back to the hotel, he showed Jeda P. W. 4 three P. I. A. Tickets in the .Name of Mian Aurengeb, Mian Ibrar and Asghar alias Dany Boy for their trip to Lahore. On 1-2- 76 *Mubarik. Driver of Qamar-uz-Zaman accused, came in a jeep to take Aurengzeb etc., to the Multan Airport, which he did On 2-2-76 Babar Pervez accused phoned Qamar-ur-Zaman accused to send his jeep, which he did, in which Babar Pervez accused went out and returned later at lunch time. Jeda P. W. 4 and Mst. Gulshan Ara asked Babar Pervez accused for permission to return to Lahore, to which the latter replied that their work would be over within a day or two and they could then go to Lahore. After a short while. Farooq Khan came to the hotel in a white car, followed shortly by Cheena, a pimp of Multan who came to their room with a girl who was wearing a burqa. Cheena left the hotel. Farooq Khan then gave the keys of his car to Babar Pervez accused with the request that he should have a round of Multan. Leaving Farooq Khan with the girl behind in the hotel, Babar Pervez accused, Jeda P. W. 4 and Mst. Gulshan Ara went to the office of Qamar-uz-Zaman accused in the car, where Mubarik, the driver of Qamar-uz-Zaman aceused, gave a hundred-rupee note to Babar Pervez accused. They then went for shopping where Babar Pervez accused purchased a lady's chappal for Mst. Gulshan Ara for Rs. 55 and promised both Jeda P. W. 4 and Mst. Gulshan Ara that he would get a pair of clothes for each of them later. After a while, Cheena visited their room and took the burqa-clad woman with him. Later at about 9-30 p.m,, Cheena pimp again appeared with a girl Mst. Shazia and informed Babar Pervez accused that Qamar-uz-Zaman accused had sent them and that he would be following later. They all waited for Qamar-uz-Zaman accused late into the night, but he did not come. Thereafter Cheena took away Mst. Shazia at 5 a. m. On 3-2-76.

Later on at 8 a. m. On 3-2-76 Jeda P. W. 4 informed Qamar-uzZaman accused about Cheena's visit, the previous night. Later that day Babar Pervez accused visited Qamar-uz-Zaman accused's resident is the litter's jeep and returned at about noon. After a short while Farooq came to their room with Mst. Robina. At 10 p. m. That night Qamar-uz-Zaman accused-.,came to their room and asked Farooq to leave, which he did. Qamar-uz-Zaman accused then told Babar Pervez accused and Jeda P. W. 4 that he had purchased three P. L A. Tickets for them for the next day's flight.

Thereafter, Qamar-uz-Zaman accused told Mst. Gulshan Ara that he had invited a few friends at his residence and that Babar Pervez accused and Jeda P. W. 4 would be going with him. He also told Mst. Gulshan Am that Mst. Robina would keep company with her at the hotel. Leaving the two ladies behind, Babar Pervez accused and Jeda P. W. 4 accompanied Qamar-uz-Zaman accused to his residence in the jeep. When the jeep reached the outer gate of Qamar-uz-Zaman's residence, Fazala Mimsi was standing there. One white car and one other of a different colour were parked outside the gate of Qamar-uz-Zaman's house on the main road. The white car was facing the gate of Qamar-uz-Zaman's residence and the other, the opposite direction. On seeing the white car, Qarnar-uz-Zaman accused told his companions that it was the car of Zamurrad Gardezi P. W. 10.

Their jeep entered the residence of Qamar-uz-Zaman accused, whereupon the. White car followed behind. They alighted from the jeep and the person who was driving the white car also alighted from the car. He was wearing a black suit. He shook hands with Qamar-uz-Zaman arid Babar Pervez accused and enquired about the health of the latter. Both the accused introduced Jeda P.

W. 4 to him. Qamar-uz-Zaman accused told Jeda P. W. 4 that the said person was Malik Ameer Bakhsh Khokhar a big Zamindar of Multan and introduced Jeda P. W. 4 to him saying that Jeda P.

W. 4 was his brother and a friend. On Qamar-uz-Zaman accused's request Malik Ameer Bakhsh Khokhar parked his car near the wall in the dark, whilst Qamar-uz-Zaman accused parked his car on the other side in the dark. Qamar-uz-Zaman accused then went to'his house and opened the Balthak. Where they all followed. A bottle of Jphnnies Walkar whisky, two jugs of water and four glasses were produced Malik Sahib opened the bottle of whisky and he with Babar Pervez accused and Jeda P. W. 4 began drinking the same. Qamar-uz-Zaman accused did not drink. During conversation, Qamar-uz-Zaman accused asked Malik Ameer Bakhsh Khokhar as to whether the ring on his finger was a diamond ring and what was its price, to which Malik Sahib replied that the ring contained three diamonds and its value was roughly nine/ten thousand rupees. After a round of drinks, Malik Sahib looked at his watch and said it was about 12-45 mid-night or 1 a. m. And that Qamar-uz-Zaman accused should bring the woman which he had kept in the hotel for them so that thereafter they could proceed to his lands. After a further round or two of whisky, Malik Sahib stood up and informed Qamar-uz-Zaman accused that they should proceed to hiss land and that he would take the remaining whisky on the arrival of the girl, Thereafter, they all came out of the Baithak. Malik Ameer Bakhsh Khokhar was holding the glass of whisky in his hand. Qamar-uz- Zaman accused went inside, stating that he would bring the candles. He then returned. All then set in the car. Malik Amir Bakhsh Khokhar occupied the driver's seat, Jeda P. W. The left front seat, Qamar-uz-Zaman accused occupied the rear seat behind Jeda P. W. 4 and Babar Pervez accused occupied the rear seat behind the driver, Amir Bakhsh placed the glass off whisky inside the car near his feet. Qamar-uz-Zaman accused was holding, a revolver in his hand and be and Babar Pervez accused gave signal to Jeda P. W. 4 to keep quiet. Malik Amir Bakhsh started the car and put on the tights, but before the car got into motion. Qamar-uz-Zaman accused placed his revolver near the left car of Malik Amir Bakhsh and fired. The head of Malik Ameer Bakhsh collapsed in the space between his seat and that off Jeda P. W. 4 and his head started bleeding. Qamar-uz-Zaman and Babar Pervez accused quickly came out of the car. Qamar-uz-Zaman switched off 'the engine and the light. Both Qamar-uz-Zaman and Babar Pervez accused dragged Jeda P. W. 4 by holding him by the collar, telling him to come out as Amir Bakhsh may be alive and may fire at him. All the three then went into Qamar-uz-Zaman accused's drawing room where they checked their clothes to see that they were not blood-stained. After sometime they came: out. Qamar-uz-Zaman accused opened the front door of the car, pulled aut the leg of Malik Amir Bakhsh deceased and declared that he was dead. He, thereafter, removed the diamond ring and the wrist-watch from the person of the deceased, followed by Babar Pervez accused, who took out a brown-coloured purse from the coat of the deceased which contained eight notes of hundred-rupee denomination and three of ten-rupees. Babar Pervez accused put the purse containing the notes in his pocket.

Qamar-uz-Zaman accused took out the whisky glass from the car and all of them then went in the house. Qamaruz-Zaman accused pulled out the empty from his revolver and placed it in his pocket and handed over the diamond ring and the wrist-watch of the deceased to Babar Pervez accused telling him that he would collect them from him later. Thereafter, all came out of the room, went near the car of the deceased and pushed the dead body of the deceased to the left front seat. Qamar-uz-Zaman accused then asked Babar Pervez accused to drive the car of the deceased and follow his jeep which was driven by Qamaruz-Zaman accused in which Jeda P. W.

Was occupying the other front seat. Babar Pervez accused accordingly followed them in the car of the deceased, driving it upto the outer western gate of Nishtar Medical College where Qamar-uz- Zaman accused then asked Babar Pervez accused to come out and get into his jeep, which he did Then they all whisked away towards Firdous Hotel. In the way Qamar-uz-Zaman accused told Babar Pervez accused and Jeda P. W. 4 that Malik Zawar Hussain who was the friend of the Chief Minister Punjab would be informed of the incident, who would set everything right, He told Jeda P.

W. 4 not to disclose the facts to anybody including Alst. Gulshan Ara as otherwise all would be put to the gallows. On reaching the hotel all went inside their room. Mst. Robina was paid Rs. 15 and she left in a rickshaw. Qamar-uz-7Jaman accused paid Rs. 50 to Mst. Gulshan :bra and stated that all would leave for Lahore on the next day. Qamar-uz-Zaman accused then came out and informed Babar Pervaiz accused that Jeda P. W. 4 should be sent to Lahore the same day. According to the instruction of Qamar-uz-Zaman accused, Jeda P W. 4 left for Lahore the same day by bus, followed by Babar Pervez and Mst. Gulshan Ara, who left later by car, without informing the Chowkidar or Manager of the hotel of their departure.

5. As stated earlier at 2 pm. On 4-2-1976 the dead body of Malik Amir Bakhsh Khokhar deceased was discovered by his brother-in-law Mureed Hussain (given up P. W.) and Sajjad Hussain P. W. 18.

It was then that Malik Mureed Hussain went to the police, and Saad remained there in care of the dead body. After some time, i.e. At about 3 p.m., Qamar-uzZaman accused also came over there, but before him P. W. 2 Dr. Muhammad Hayat War, Principal, Nishtar College, whose residence was adjacent to the spot, had reached there after receiving information from his driver.

6. Qamar-uz-Zaman accused directed a constable to bring the register of F.

1. Rs, from the Police Station, Multan, Cantonment. Saifullah S. I. P. W. 19, after receiving the information had also, in the meantime, reached the spot. Malik Mureed Hussain P. W. (given up) asked Qamar-uz-Zaman accused that since he was a friend of the deceased, therefore, he should dictate the F. I. R. In a proper manner. Qamar-uz-Zaman accused, therefore, dictated the F.1. R. Exh. P. J. To Saifuilah S. I. P.

W. 19.

7. Saifullah S. I. P. W. 19 investigated the case under the supervision of Qamar-uz-Zaman accused, who. Then was S. D. P. O. Of the Ilaqa, and prepared the inquest report Exh. P: K. And sent the dead body for postmortem examination under escort of Allah Yar A. S. I: Same day (4th of February, 1976) he took into possession a lady's hair Exh. P. 3 vide memo. Exh. P L, which was found stuck to the car.

He also collected blood from inside the car vide memo. Exh. P. N, He also took into possession the last worn clothes of the deceased, namely shirt Exh. P. 4, underwear Exh. P. 5, vest Exh. P. 6 coat Exh.

P. 7, pant Exh. P 8, neck-tie Exh P. 9, belt Exh. P. 10, one pair of socks Exh. P. 11/1-2 and pair of shoes Exh.

P. 12/1-2 vide memo Exh. P. O. Out of these Articles Nos.4 to 8 were stained with blood. He also took into possession some papers and currency note of Re. 1 and thirty paisa, Exhs. P. 13 to 20/1-3. These articles were seized vide memo Exh. P. P. He also took into possession Car No. 4466 MNA of the deceased vide memo Exh. P. Q. He also prepared spot inspection note Exh. D. S. And recorded statements Exh. D. F. And Exh. D. R. Of Zummurred Gardezi P. W. 10 and Sajjad Hussain P. W. 18.

8. On 4-2-1976 at 5-15 p.m. Dr. Asheeq Mohammad P. W. I conducted the post-mortem examination on the dead body of Amir Bakhsh deceased and found a fire-arm wound of entry 1/6' x 1/6' with black margins in an area J' x I' on the back left side of head at the occipital bone and a fire-arm wound of exit J' x J' about 4' behind the right ear. Cerebellum was damaged, occipital bone was fractured, brain was highly congested and posterior cranial fossa was full of blood.

Stomach contained 2 ounces of watery fluid, small intestines contained chyme, large intestines contained faecal matter and bladder contained 2 ounces of urine. Rigor mortis was present in the upper and lower extremities. Cause of death was due to shock and haemorrhage due to the fire- arm injury. Probable time between injury and death was immediate and that between death and post-mortem 14 to 16 hours.

9. On 7-2-1976 Saif Ullah S. I. P. W. 19 noticed that the seats of the deceased's car had been cleaned by the order of Qamar-uz-Zaman accused, though there were footprints and stains of mud on the seats.

10. The investigation was still at the stage of infancy, when Qamar-uz-Zaman accused himself became suspect of the complainant party. The investigation render 6amar-uz-Zaman .Accused from 4-X4976 to 11-2-1976 had failed to detect the crime. Khawaja Muhammad Tufail P. W. 23, SP C(rimes Bench, Lahore, was deputed to investigate the matter. He came to Multar on 11-2-1976. He formed an investigation team consisting of Ghulam Muhammad S. I. P. W. 8, Ghulam Dastgir, inspector P. W. 11, Nazir Ahmad, A. S. I., P. W_ 13, Abdul Waseh, S. 1. P. W. 14, Jan Muhammad S. I., Gulzar Ahmad, Inspector P. W. 24 and Abdul Karim, D. S. P:, C. W. 2.

11. On 24-2-1976 Ghulam Dastgir Inspector P. W. 11 arrested Qamaruz-Zaman accused.

12. On 7th of March 1976, Qamar-uz-Zaman accused led to the recovery of his licensed revolver Exh.

P. I alongwith six live cartridges Exh. P 2/1-6 and bandolier Exh. P. 3, which was taken into possession by P W. 8, Ghulam Muhammad S. I. And seized vide memo. Exh. P. F. The recovery was effected from the Bungalow of Major Ilyas in Officers' Colony, Lahore.

13. Nazir Ahmed, A. S. I. P. W. 13 checked up the record in P. I. A. Office, Lahore, and found that on 5-1- 1976 and 29-1-1976 Gulshan Ara and Babar Pervez had travelled by air from Lahore to Multan.

14. . Jan Muhammad, S. I. P. W. Got the statement of Jeda P. W. 4 recorded as approver in the Court of the Magistrate after receiving permission from the Additional District Magistrate, Multan. He had also got recorded the statements of the P. Ws. Under section 164, Cr. P. C. He also took into possession one register from Firdous Hotel.

15. Gulzar Ahmad, then Inspector Crimes Branch, recorded the statements of certain witnesses under section 161, Cr. P. C. And also took into possession the record of the Hotel produced by P. W. 16 Ahmad Hussain.

16. Abdul Karim, D. S. P., C. W. 2 produced Qamar-uz-Zaman accused before Khawaja Muhammad Tufail, S. P. Crimes Branch Lahore. He was also examined by Muham.Nad Ashiq D. I.-G., C. W. 3 and he produced the statement Exh. D. C. Purporting to be that of Jeda P. W. 4 recorded on 4-3-1976.

17. The investigation was abruptly taken away from Khawaja Muhammad Tufail, S. P. Crimes, P. W.

23 and was handed over to, Muhammad Ashiq D. I.-G., C. W. 3 who carried out the investigation from 29th of April 1976, till 29th of May, 1976, and then he retired from service.

18. Muhammad Ashiq, D. I: G., C. W. 3 had also formed an investigation team headed by Sultan Ghani D. S. P., C. W. 4 and himself, although he was deputed to make personal investigation.

19. Ch. Sultan Ghani, D. S. P. C. W. 4 recorded the statements of some of the witnesses. He submitted an application (which bears exhibit mark P. C., but has been lost with the record) on 5-5-1976 to Dr. Asheeq Muhammad P. W. 1 seeking clarification on four points. He also submitted an application to the Additional District Magistrate (General).

20. After completing the necessary investigation, the challan against the accused was sent up.

21. At the trial, both the accused denied the accusations levelled against them. Qamar-uz-Zaman accused denied the allegations to toto, except the factum of recovery of his licensed revolver Exh.

P. I and cartridges. He also tendered written statement explaining therein how the then InspectorGeneral of Police (Rao Abdur Rashid) had strained relations with him and had falsely implicated him in the case through Khawaja Muhammad Tufail, Superintendent of Police, Crimes Branch. Babar Pervez accused also made a complete denial. According to him, he was involved because he had refused to become approver at the behest of Khawaja Muhammad Tufail, S. P.

Crimes Branch. Both the accused persons, however. Did not adduce any evidence in defence.

22. The learned trial Judge, relying upon the evidence of the approver, corroborated in material particulars by circumstantial evidence, together with motive, medical evidence and the recoveries, convicted and sentenced Qamar-uz-Zaman and Babar Pervez accused, as stated in para. 1 above.

23. We have heard the arguments of learned counsel for the appellants and the complainant and the State and have also perused the record.

24. The pivotal witness in the whole case is Jeda P. W. 4 approver whose evidence has been narrated in some detail in para. 4 above. Objections have been raised by the learned counsel for the petitioner with regard to the admissibility of his evidence, first, on the ground that proof of pardon having been granted to him not having been established on the record, his evidence is inadmissible, second, that intrinsically his evidence is not worthy of credit and he is, therefore, not a reliable witness whose evidence can be believed, third, that there is no corroboration on material particulars to establish the offences charged and, fourth and last, that such corroboration does not implicate clearly the appellants with the offences committed.

25. As regards the first objection to the admissibility of the approver's evidence, it is submitted that since pardon having been granted to him under section 337, C. P. C. Is not proved, the evidence of Jeda P. W. 4 approver is inadmissible, as his evidence on oath could not have been recorded in view of the provisions of section 342, Cr. P. C. Read with section 5 of the Oaths Act. It is submitted that Jeda P. W. 4 having been found to be an accused during the investigation, his character as such accused continued throughout the proceedings and his evidence on oath was inadmissible, as oath could not be tendered to an accused. Abdur Rashid v. State (1970 P Cr. L J 722) and Noor Shah v. State (11976 P Cr. L J 1265) were cited in support of this plea.

26. In the instant case, it cannot be denied that there is sufficient indication to show that Jeda P. W.

4 was produced before the A. D. C. (G) who granted pardon to him under section 337, Cr. P. C., on the usual terms, during the stage of police investigation and that later when the challan was filed in Court under section 173, Cr. P. C., his name was not shown as an accused in Column No. 3, but as a witness for the prosecution, together with the names of the A. D. C. (G) who had tendered pardon and that of the Magistrate who had recorded his statement as an approver. Unfortunately, a material part of the file having been lost during trial, including the order granting pardon and the statement of Jeda P. W. 4 recorded as an approver, the said A. D. C. (G) who had granted the pardon and the Magistrate who had recorded the statement of the approver were given up at the last moment, presumably as they were not prepared to support these facts without the original documents being before them, which action on their part was understandable. We have not the slightest doubt from the statement of Jan Muhammad S. I., P. W. 21 that formal proceedings for the tender of pardon to Jeda P. W. 4 were taken under section 337, ,q Cr. P. C. And pardon was so granted and accepted, but in view of the absence of formal proof on the record, we have no alternative but the treat these matters as not properly proved.

27. We now turn to the objection as to the admissibility of the approver's testimony. Section 337, Cr.

P. C. Falls in Chapter XXIV headed "General provisions as to Inquiries and Trials". Prior to the amendment of 1923, section 337 only permitted the grant of pardon to accused covered by the said Chapter XXIV i.e. Those arrayed as accused in inquiries and trials in respect of offences exclusively triable by the High Court or the Court of Session. The Lahore High Court in Sher Muhammad's case (1 L R 3 Lab. 431) treated a pardon granted by a Magistrate before the challan was sent up, as proceeding falling within the term "inquiry" as used in section 337, Cr. P. C. The Lahore High Court in Sunder Singh's case (1 L R 12 Lab. 16) treated proceedings under section 167, Cr.

P. C. As judicial, entitling an accused to legal representation, as provided in section 340, Cr. P. C. But in none of these cases, the High Court categorically held that section 337 or 340 of the Code applied to investigation proceedings. However, after the 1923 amendment, the scope of section 337 was enlarged to include, besides offences exclusively triable by the High Court or Sessions and grant of pardon to those arrayed as accused in inquiries and trials, several other offences not so exclusively triable and power of grant of pardon even during the course of the investigation of the case. It is, therefore, clear that the word "accused", .As appearing in section 337, Cr. P. C. Not only includes a person against whom cognizance has been taken by a Court under section 190, Cr. P. C.

And who is arrayed as an accused in an inquiry or trial, but also the person against whom there is an accusation in respect of an offence stated in subsection (1) and against whom evidence is being collected by a poli officer during investigation. As against this, the word "accused" as specificall appearing in sections 342 and 343, Cr. P. C. Only contemplates the person against whom cognizance of an offence is taken or process is issued and who is arrayed as an accused in an inquiry or trial in respect of any of the offences to which generally the Code applies and which are not limited t the category specified in subsection (1) of section 337. It includes the person over whom the Magistrate has full charge for the purposes of determining wh their, the evidence against him, in the case of an inquiry, prima facie discloses case to go for trial, or,in the case of trial, the offence or offences is or are mad out and proved. It does not include the person against whom only an investigation is pending in respect of any offence and in respect of whom a Magistrate has not taken cognizance or issued a summons. It is at the stage of inquiry or trial that a person becomes technically or strictly an accused person, as his case is formally before a magistrate. The fact that word "inquiry" appearing in section 342, Cr. P. C. Does not include investigation, is obvious from the fact that there is no evidence for serious appraisal before a Magistrate during investigation and there is no stage before him in which he can possibly examine "the witnesses for prosecution". It is, therefore, clear that the word "inquiry" used in section 341, Cr. P. C. Does not include investigation. See Amdumian v. Emperor (AIR 1937 Nag. 17) and In re : Kandaswami Gounder'sl case (AIR 1957 Mad. 727). The word "accused", therefore, occurring in section 342, Cr. P.

C.1 deals with one who is arrayed as an accused in an inquiry or trial who has to be questioned by the Court in respect of the evidence against him.!' If any authority in required for this view Keshar Vasudeo Kartikar v.1 Emperor (AIR 1935 Born. 186), Emperor v. Durant (1 L R 23 Born. 213), Amdumiyan Guljar Petal v. Emperor, Queen-Empress v. Hussain Haji (1 L R 25 Bom. 422), Karamalli Gulamall v. E---nperor (AIR 1938 Bom. 481), Emperor v. Govind B. Loghati (AIR 1916 Bom. 229), Emperor v. Qazi Dawood (8 AIR 1926 Bom. 144) and Bhano Singh v. Emperor (1 L R 33 Cal. 1353), may be referred to.Likewise, the expression "accusedl person;" in section 343, Cr. P. C. Means one who is arrayed as an accusedl in an inquiry at trial Amdumfam v. Emperor may be referred in thisl~ connection. It is to such an accused as referred to in section 342 or 343,1 Cr. P. C.--facing an inquiry or trial-that an oath cannot be administered.

28. The wording of section 337, Cr. P. C. Shows that it is a provision! Which is enabling and not obligatory, (See Emperor v. Har Prasad Bhargana (AIR 1923 All. 91)). There is nothing mentioned in this section that an accused person must be produced by the police before a Magistrate for the tender of a pardon, if he is to be examined as a witness, and that if the lames ill not done, certain penal consequences will flow therefrom, such as that hi evidence will become inadmissible. The object of section 337, Cr. P. C.1is to grant a pardon to an accused, in exchange for his agreeing to give evidence against his associates directly or indirectly concerned in or privy t to the offence.The object of a pardon is to free the individual from the prospects of any present or future punishment which law may inflict for the crime he has committed and to blot out the element of, guilt which attaches in respect thereof. As held in A. L. Mehra v, State (AI R 1958 Pub. 72), a pardon is treated as an act of grace which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is in substance and effect a contract between the State, on the one hand, and the. Person to whom it is granted, on the other, and the State can impose conditions, precedent or subsequent, or of any nature, which are not illegal, immoral or impossible of performance. As held by the Supreme Court of United States in Ex parte Garland ((1871) 18 Law Ed.

366 (F))

"A pardon reaches both the punishment prescribed for the offence and the guilt of the offender ; and when the pardon is full it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent. As if he bad never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. There is only this limitation to its operation; it does not restore offices forfeited or property or interests vested in others, in consequence of the conviction and judgment."

29. Subsection (1) of section 337 of the Code of Criminal Procedure permits certain Presiding Judges at any stage of the investigation, or inquiry into, or the trial of any of the offences as therein listed, with a view to obtaining the evidence of any person directly or indirectly concerned in or -- rivy to the same, to tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the said offence or offences. Under subsection (2) of the same section, an accused accepting a tender under the said section has to be mandatorily examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Under subsection (4) of the same section, such a person, unless he is already on bail, is mandatorily detained in custody until the termination of the trial. Section 338 of the Code also permits the High Court or the Court of Session trying the case, before judgment is passed, with a view to obtaining in the trial the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, any such listed offence, to tender pardon to such person itself, or direct the District Magistrate to do so, on the same conditions as provided in section 337 of the Code. Under section 339 of the Code, where a public prosecutor certifies that a person who has been tendered pardon under section 337 or 338 and has accepted the same, has by either wilfully concealing anything material or by giving false evidence, not complied with the condition on which the tender was made, such a person can be tried for the offence for which the pardon was go tendered together with any other which he may have committed in the same matter. The wording of subsection (1) of section 337 itself, therefore, shows that the contract between the accused and the State is a contingent one, subject to a condition subsequent. According to the wording of this subsection, the pardon takes effect immediately, but is subject to the condition subsequent, that the accused shall make a full disclosure of the whole o the case as is within his knowledge against his accomplices during inquiry or trial, where he shall be produced by the prosecution as a witness Subsection (1) of section 339 clearly states that if the condition is violated, the grantee of the pardon "may be tried for the offence in respect of which the pardon was so tendered. "The words "in respect of which - the pardon was so tendered" show that the pardon took effect when it was granted. Had the pardon beets subject to a condition precedent, the compliance of the condition would alone have brought into effect the pardon. In short, the effectiveness of the pardon in such a case would have been held in abeyance, till evidence was furnished by the grantee. If ;he condition was violated, the accused would have retained his character as Web accused and there would have been no need for section 339. Reading sections 337 sand 339 of the Code together, it would appear that the pardon is intended to take effect immediately, subject to the condition subsequent that th grantee, in his evidence before the Magistrate .And at the trial, shall make a full and true disclosure of the facts within his knowledge, the compliance of which condition shall keep the pardon valid and effective, and the noncompliance of which shall pert the Government to try the grantee the offences for which he has been tendered pardon. In some cases, the matter has been treated differently by holding that if the condition is no performed, the grantee is relegated to his earlier position and stands precisel as if no pardon had been granted to him. See Pyane v. The State (AIR 1955 N U C (M B) 5650), Kundan Lal v. Emperor (I L R 12 Lab. 604), A. L. Mehra v. State and Queen Empress v. Hussain Haji (I L R 25 Bom. 422).

30.In Govinda v. Emperor (A I. It 1920 Nag. 255), Mitra, A. J. C. Stated that "If a person is placed before the Magistrate for the tender of a pardon under section 337, he is an accused person, though he may not have been arrested or challaned. He is a persona over whom the Magistrate is exercising jurisdiction under section 337. If he accepts the offer, he becomes a conditionally pardoned accused. If he rejects the offer, he ceases to be an accused, unless he is already an accused, in the technical sense."

Mitra, A. J. C. Explained what he meant by an accused person in the technical sense, in' the following words :--.

"After process has been issued against a person under an accusation, he becomes technically an accused person and necessarily comes under section 342."

Govinda's case was followed in Adumlyan Gadjar Patel v. F.Rrrperor (AIR 1937 Nag. 17), but in both these cases the main emphasis is not on the true effect of the wording of subsection (1) of section 337, which places the pardon in the category of a contingent contract, placing the grantee out of the category of an accused no sooner he accepts the pardon. The learned Judges, however, proceeded on different lines, to achieve the same result.

31. In view of the above, it is clear that the grant of pardon to an the acceptance of the same by an accomplice under section 337, Cr. P. C immediately relieves the grantee from his character as such accused. T1' is so not because the State gets the right of tendering him as a witness under subsection (2) of section 337 and his character changes from an accused to a witness under this subsection, but by the pardon having taken effect immediately, though subject to a condition subsequent, and the grantee, use the expression contained in Garland's case has not only been immediately from the punishment prescribed in the offence but his Bunt ha likewise also been blotted out of existence, so that in the eye of the law he is as innocent as if he had never committed the offence. It is the Nottin out of the guilt, which is implied in the pardon granted and accepted under section 337 or 338, Cr. P. C . That changes the character of the grantee from an accused to an ordinary person, thus enabling him to give evidence for the prosecution on oath like any other witness in the inquiry or trial against his associates in crime.

32. In the present case, Jeda P. W. 4 approver was not sent up as and accused to face trial. His name was not included as an accused in the challan sent up for trial before the Sessions. Rather, his name was mentioned as a witness in the column of witnesses given in the challan. Jeda P. W. 4, therefore, cannot be regarded as an accused in the technical or strict sense as appearing in sections 342 and 343, Cr. P. C. Consequently the Magistrate was not debarred from administering an oath to P. W.

4. Further there was nothing in section 118 of the Evidence A or section 5 of the Oaths Act to preclude Jeda P. W. 4 from being treated as a competent witness or giving evidence in that capacity.

It is, therefore, clear that the legal admissibility of the testimony of Jed P. W. 4 is not affected by pardon not having been granted to him uncle section 337, Cr. P. C. If an accomplice gives evidence in Court without having secured pardon or a pardon which is legally defective, it is his own look out and he runs the risk of being prosecuted later. However, if he ha secured pardon and complies with the conditions attaching thereto, he relieved from the risk of, prosecution. It cannot be denied that in the former case, his testimony would be furnished under the lurking shadow of fear, which would affect his credibility. In the latter case, however, the testimony would not super from the said drawback and the Court would justified in attaching greater credibility to it. See Emperor v. Har Prasa Bhargava (2).

33. It may be here casually mentioned that apart from section 337 Cr. P. C. Sections 494 and 495(1), Cr. P. C. Also provide an accomplice witness with a judicial order which he may subsequently use to protect himself from prosecution. But all these sections do not control the discretion of the Provincial Government, acting through the District Magistrate, from instituting or refraining from instituting any .Prosecution, which discretion remains with the executive authority. See Emperor v.

HarPrasad Bhargava.

34. This case may also be looked at from a different angle. If an accomplice jointly involved in an offence or o6ences with his associates is separately tried from the others, he can be a competent witness against his associates. If any authority is required for this view Akhoy Kumar Mukerjl v Emperor (AIR1919Ca1.1021 ), Rev v. A'arayan Sunder (5Bom.HCR1), Emperor v. Durant, Banu Singh v.

Emperor (1 L R 33 Cal. 1353) Amritalal Hazra and others v. Emperor (AIR 1916 Cal. 188), A: 1t Joseph v.

King-Emperor (AIR 1925 Rang. 122) and In re: Kandarawad, may be referred with advantage. In Tinkler s case (1 East P C 354), a person who was never arrested and against whom no process had issued, was held to he a competent witness against his associate. In Mohesh v. Mohesh (10 Cal. L R 553), where a complaint was made to a Magistrate against A and B and process was issued against A only, B was held to be a competent witness against A. In Winson v Queen ((1866) 1 Q B 289), where an accomplice was being jointly tried with her associate and later her case was severred and she was made a witness against her coaccussed, it was held that the evidence of the accomplice was admissible, but the Jury would have to be told to look at her evidence with caution. In Subrahmania Aiver v.. Emperor (10 Mad. L J 14'7), where A and B were sent up for trial together for committing acts of robbery and extortion as public servants and after the trial began, but before the Jury was empanelled, upon application by the Crown Prosecutor to the Judge to tender pardon to B, who was accordingly called, pleaded guilty and the Judge tendered pardon to him under section 337, Cr. P. C. It was contended that as the offences were not covered by section 337, Cr. P. C. And the Judge had not formally convicted and passed any sentence on B relieving him from his character as an accused, the pardon granted to B was illegal and B's evidence was inadmissible against A. The Full Bench held that as the case was not exclusively triable by the Court .Of Session, the tender of pardon to B was illegal, but that when B gave his evidence he was not in charge of the Jury and no issue remained to be tried in between him and the Crown and that though he had not technically been convicted and sentenced, it did not mean that he remained an accused in the trial against A or that his evidence was inadmissible. It is, therefore, clear that if an accomplice is not an accused under trial in the same case, he is a competent witness against his associates and may, as any other witness, he examined on oath. We differ from the view taken in Abdur Rashid's case (1970 P Cr. L J 722), cited by the learned counsel for the appellants, as in that case, where also the name of the accomplice was not sent up for trial in the challan, but his name was entered in the list of witnesses, the learned Single Judge, relying upon the fact that other sections like section 337, Cr. P. C. Also applied to an accused facing an investigation, held that the provisions of Chapters XIV and XXIV of the Code applied to an accused facing an investigation. As already held by us in para. Above, Chapter XXIV initially applied only to inquiries and trials. In 1923, the scope of section 337 was extended to enable Presiding Officers to be able to grant pardon to an accused during investigation, but this did not extend the scope of sections 342 and 343 in the Chapter to cover an accused facing an accusation during an investigation. We also differ' from the view stated in Nur Shah's case (1976 P Cr. 1L 1 1265), as this case follows Abdur Rashid's case.

35. . Where an accomplice is being jointly tried with his associate in crime, if his discharge is secured under section 494, Cr. P. C. He can be a competent witness against `his associates in the same case. This proceed on the principle that if a person is discharged, acquitted or convicted, he ceases to be an accused in 'the said case and can give evidence therein. If an authority is required fox this view, Queen Empress v. Monu Puna (1 L R 16 Bom. 661), G. V. Raman v. Emperor, (AIR 1929 Cal. 119), may be referred. Steps are, therefore, taken, if an accused's evidence is required against his associates in crime in the same case, to either secure his early discharge or on admission of guilt, his early acquittal on pardon or conviction with nominal sentence to enable him to appear in the same case against them.

36. From the above resume of the law and from what we have stated in paras. 27, 31, 32 and 34, Jeda P. W. 4 was not sent up as an accused in the challan filed before the Sessions Judge. As such, he was not an accused facing trial within the meaning of sections 342 and 343, Cr. P. C. Even if the grant of pardon to him was not proved, it did not change his character as a person who was not an accused arrayed before the Sessions Court for trial. His evidence could, therefore, be recorded on oath.

37. Since, as stated in para. 26 above, we have every reason to believe that pardon was actually granted to Jeda approver, but the case is being treated by us as one in which the grant of pardon is not strictly proved, we do not desire to treat the evidence of Jeda P. W. 4 straightaway as one given under a lurking shadow of fear and, therefore, affecting its credibility. We have no doubt that the executive government is going to stand by its commitment and Jeda P. W. 4 when he gave evidence knew this and gave evidence freely and without any lurking fear of future punishment.

The rule of caution stated in Har Prasad Bhargava's case, therefore, does not arise in the present case and we do not intend to burden our mind with any special considerations of caution before beginning to read or appraise his evidence, other than bear in mind the general principles applicable to the appraisement of an accomplice's testimony.

38. We now turn to the testimony of the approver. On 6-3-1976 the statement Exh. D. E. Of Jeda P. W.

4, approver, was first recorded by Kh. Muhammad Tufail, S. P. Crimes, P. W. 23, at Multan under section 161, Cr. P. C. Jeda P. W. 4 in cross-examination also submits that he gave his own statement in his own hand to Kh. Muhammad Tufail, S. P. Crimes, P. W. 23 making a clean breast of the whole case (which statement is not on the record, the same never having been produced by the prosecution). The same day Jeda P. W. 4 was produced before Syed Makhdoom Shabbir Abbas, M.

1. C., Multan, who recorded his statement Exh. D. D. Under section 164, Cr. P. C. And sent him to judicial lock up. The same day Jeda P. W. 4 submitted an application Exh. P. D. (which is now not on the record, the same having been lost) for becoming an approver. Kh. Muhammad Tufail, S. P., Crimes, C. W. 23 submits that this application was given to Jan Muhammad, S. I. P. W. 21 to have it processed, which he did. Ch. Muhammad Siddique A. D. C. (G) granted pardon to Jeda P. W. 4 (but the said order also does not appear on the record, nor has been proved in any way). On 10-3-1976, Jan Muhammad S. I., P. W. 21 produced Jeda P. W. 4 before Ch. Talib Hussain, M. I. C., Multan, who recorded the statement Exh. P. E. Of Jeda P. W. 4 as an approver (which is also now not on the record, the same having been lost). Neither Syed Makhdoom Shabbir Abbas M. I. C. Multan nor Ch. Talib Hussain M.

1. C., Multan nor Ch. Muhammad Siddique A. D. C. (G), Multan, was produced at the trial to give evidence. The presentation of the application Exh. P. D. To the District Magistrate by Jedaj P,W. 4 to become an approver, the grant of pardon to him by Ch. Muhammad, Siddique, A. D.

C. (G) and the recording of the statement Exh. P. E. Of the approver by Ch. Talib Hussain, M. I. C., Multan, therefore, do not stand strictly proved on the record.

39. It cannot be denied that Jeda P. W. 4, according to his own testimony, was an associate or partner with Qamaruz Zaman and Babar Pervaiz appellants in the murder of Malik Amir Bahhsh Khokhar. Jed P. W. 4 not only was informed by Qamaruz Zaman appellant of the conspiracy to kill Malik Amir Bakhsh Khokhar deceased, but at the time of occurrence he was present there and aided his confiderates in the removal of the dead body from the scene of crime to the outer gate of the Nishtar Medical College and, thereafter, did not inform the police about it. For all practical purpose he is both an associate in the conspiracy and in the crime of murder.

40. In order that the testimony of Jeda P. W. 4, approver, can be accepted, subject to corroboration on material particulars, he must also satisfy first the elementary test that his evidence is probable and natural and intrinsically one which can be relied upon. If any authority is required for this view, Dr. Muhammad Bashir's case (PLD 1971 SC 447) and Zulfiqar A.I Bhutto's case (PLD 1979 SC 53) may be cited with advantage. The approver's testimony, therefore, requires careful examination in order to assess whether his testimony can be safely acted upon, if the requisite corroboration is forthcoming. The evidence of Jeda P. W. 4 is so long and detailed that corroboration of every minute fact deposed to by him would be next to impossible, if not difficult and well nigh a herculean task. We cannot demand corroboration or every minute fact, for to do so would be to lay down a principle divorced from reality and not in keeping with a fair and balanced approach to justice and th principles relating to appreciation of evidence. In these circumstances, absence of corroboration of every minor, ancillary or extraneous fact, would by itself be not fatal to such a testimony. , However, what would be required is that the story is corroborated in respect of material particulars, for example, such facts as are deposed to by the approver which collectively go to prove the motive, the conspiracy, the presence of appellants and the approver in Multan before and upto the time of occurrence, the luring of the deceased to the scene of crime, the actual murder, the removal of the dead body from the place of occurrence, the conduct of. The accused persons thereafter, the discovery of the truth and the recovery of the crime weapon ; these being some of the material and important matters worthy of corroboration to show that not only has the crime been committed but that the appellants committed it. However, this also does not mean that presence of corroboration or absence thereof to the other minor, extraneous or ancillary facts can be ignored as having no relevance with the credibility or otherwise of the approver's testimony.

Where there is such corroboration, credibility is enhanced and where there is no such corroboration or facts contrary to what has been deposed to are proved. The Court would be justified in drawing proper conclusions in the matter. Where the approver lays claim to certain facts, which are and can be verified and evidence can be given thereon, the Court is not debarred from examining the evidence, if any produced, in respect thereof, to see whether it corroborates the same or where contradictory or no evidence is gives, whether such contradiction or non- production of evidence adversely refund on the testimony of the approver. Each case is to be judged on its own facts and the present case presents its own peculiar features, which cannot be ignored and which require special attention.

41. In the instant cage, the prosecution has furnished corroboration to the statement of Ieda P. W. 4 approver on the following material particulars .

(1) Motive.

(2) Medical evidence:

(3) Conspiracy of murder, Visit of Baber Pervaiz appellant and Jeda P. W. 4 approver to the residence of Qamar-uz- Zaman appellant on the fateful night at 10-00 p. m.

(5) Arrival of Amir Bakhsh Khokhar deceased at the bungalow of Qamaruz Zaman appellant at the latter's invitation at about 10-00 p. m. On the fateful night.

(6) Actual occurrence.

(7) Removal of the dead body from the bungalow of Qamaruz Zaman appellant to the gate of Nishter Medical Hospital.

(8) Recoveries.

(9) Conduct of the appellants subsequent to murder.

For the purposes of this case, we shall treat the above items as "the prosecution's corroboration to the testimony of the approver". In assessing the reliability of the approver's testimony, apart from the prosecution's corroboration to the testimony of the approver, the corroboration or absence thereof of the remaining facts in his testimony would also throw some light on the intrinsic value of his statement.

42. In the first place, before dealing with the case of the approver, it is necessary to record certain facts which have been brought to our notice. It is the case of the prosecution that the investigation which was conducted under the guidance of Qamaruz Zaman appellant from 4-2-1976 to I1-2-1976 is suspect, as he himself was criminal, and that, therefore some of the statements of the witnesses recorded during this period should be assessed with caution. It is further submitted that the investigation conducted by the investigating team of Kh. Muhammad Tufail, S. S. P. (Crimes) P. W.

23 from 11-2-1976 to 25-4-1976 should be given credence, as this was the team that ultimately found the real clue to the crime. It has been brought to our notice that the said team comprised Ghulam Dastgir Inspector P. W. 11, Abdul Wasey Inspector P. W. 14, Gulzar Ahmad Inspector P. W. 24, Abdul Karim Inspector C. W. 2, Ghulam Muhammad S. I. P. W. 8, Jan Muhammad S. 1. P. W. 21, Abdul Wahid S. 1. C. W. 5 and Nazir Ahmad A. S. I. P. W.

13. The investigation conducted by them is commended to our attention as being the most favourable case set up for the prosecution. It has further been brought to our notice that the investigation conducted by the investigating team of Ashiq Muhammad D.

1. G. C. W. 3 should not be taken into consideration at all, as he was appointed to totally destroy the prosecution case as found . By Khawaja Muhammad Tufail's team. Ashiq Muhammad's team is stated to have comprised himself and Sultan Ghani D. S. P., C. W.

4. On the other hand, the learned counsel for the appellants submits that the investigation conducted by Qamaruz Zaman appellant and Ashiq Muhammad D.1. G. C. W. 3's team should be taken into consideration, as it cannot be said that senior Police Officers themselves tried to damage the prosecution case and that, in any case, if there is contradiction in the investigations conducted by them, the benefit thereof should go to the appellants. This case is indeed peculiar. However,' without prejudice to the case of the appellants, we shall, for the purposes of this judgment, as desired by the prosecution, give due credence to the prosecution case as presented by the investigation team of Khawaja Muhammad Tufail S. P. (Crimes) P. W. 23, that being the most favourable case put up by the prosecution against the appellants. This, however, does not mean that we will not look into the case as investigated by Qamar-uz-Zaman and the team of Ashiq Muhammad D.

1. G. C. W.

3. This will also be taken into consideration at appropriate stage.

43. First we will deal with the statement of Jeda P. W. 4 approver on matters other than those on which the prosecution has laid its claim to produce corroboration, as stated in para. 41 above.

Apart from corroboration on nine material particulars, which the prosecution has presented in this case, we will first deal with the remaining part of the approver's testimony and the presence or absence of corroboration thereto or contradictory testimony existing in respect thereof, for the purposes of assessing the character and the reliability of the approver.

44. Jeda P. W. 4 in his statement stated that Qamar-uz-Zaman accused twice phoned Malik Zawar Hussain in London from the house of Babar Pervez appellant at Lahore on Telephone No. 311233 installed in Babar Pervaiz's house. He has also stated that during one of these calls, he overheard a part of the incriminating remark made by Qamaruz Zaman accused to the said Malik Zawar Hussain. There is no corroboration on this point to the testimony of the approver. The record of the Telephone Departmt nt at Lahore could have been produced, but the same was not done. The learned counsel for the appellants lays claim to the statement of Sultan Ghani D. S. P. C. W. 4 who, in his cross-examination, affirmed that Abdul Wasey Insp. P. W. 14 had made a statement Exh. D. J.

Before him in which he had stated that he had made inquiry from the Telephone Trunk Office, Lahore, whether any call was booked from Babar Pervaiz's telephone No. 311233 at Lahore to Malik Zawar Hussain in London, to which he was informed that no call was so booked. However, Abdul Wasey Inspector, P. W. 14 in his cross-examination at the trial denied having made such a statement to Ch. Sultan Ghani D. S. P., C. W.

4. It is the contention of the prosecution that all investigation conducted under the supervision of Ch. Ashiq D. I.-G. C. W. 3, in whose team Sultan Ghani D. S. P., C. W. 4 was working, was specially motivated to destroy the case of the prosecution and that, therefore, statement Exb. D. J. Of Abdul Wasey Inspector, P. W. 14 was fabricated in that direction and should not be accepted. However, even assuming this position to be true, the fact remains that the prosecution did not produce any corroborative evidence to the trunk calls booked from Lahore to London from Pervez's Telephone No. 311233 during the period January-February, 1976. The absence of production of the Telephone Department's record . Does lead to the fair inference that had such record been produced, the same would have gone against the prosecution.

45. Jeda P. W. 4 also submitted in examination-in-chief that in January, 1976 Babar Pervez appellant flew to Maltan from Lahore with Mst. Gulshan Ara, which P.1. A. Tickets were purchased by Babar Pervez appellant : that Babar Pervez appellant and Gulshan Ara travelled from Multan to Lahore by air on 8th Moharram (11th January 1976) ; that on 29-1-1976 Mat. Gulshan Ara and Babar Pervez appellant again travelled from Lahore to Multan on two P.1. A. Tickets purchased by Babar Pervez appellant in the name of Mst. Gulshan Ara and Mian Tufail ; that on 1-2-1976 Mian Aurangzeb, Man Abrar and Asghar alias Dany Boy trevelled from Multan to Lahore by air, which P. I.

A. Tickets bought by Qamar-uz-Zaman appellant were shown to him by Pervez appellant' ; and that on 3-2-1976 Qamar-uz-Zaman appellant had told him and Babar Pervaiz appellant and Gulshan Ara that he had purchased three P. I. A. Tickets for their flight to Lahore on 4-2-1976. Nazir Ahmad A. S.1. P. W. 13 partly corroborated the approver's statement by saying that on 23-4-1976 he had gone to P.

1. A. Office to check up the record of their office and had found that on 5-1-1976 and 29-1-1976 Mst. Gulshan Ara and Babar Pervaiz accused had traveled from Lahore to Multan, though on 29-1-1976 the journey was taken in the names of Mst. Gulshan Ara and Mian Muhammad Tufaii.

In cross-examination, however, he admitted that though he was shown the record by Tanvir Ahmad, an employee of P.1. A., he had not taken that record into his possession. He also admitted that the said persons had not boarded the planes in his presence and view. It cannot be denied that Nazir Ahmad A. S. 1. P. W. 13 conducted investigation as a member of the team working under Khawaja Muhammad Tufaii, S. P. Crimes, P. W. 23, whose investigation, it is asserted, is the most favourable to the prosecution. In these circumstances, the failure on the part of Nazir Ahmad A. S.1.

P. W. 13 to take the relevant record of P.

1. A. Office at Lahore and Multan into his custody, does lead to the irresistible inference that had the said record been produced in Court, the same would have gone against the prosecution.

46. Jeda P. W. 4 approver in his examination-in-chief stated that he had stayed at various hotels in Multan on different dates. The first time he stayed with Babar Pervaiz appellant and Mst. Gulshan Ara was in room No. 4 in Firdous Hotel, Multan, for about 5/6 days. The month, however, is not given but it was the early part of January 1976. The next time he stayed at Multan was from 29-1-1976, when he stayed in room No. 20 in Guild Hotel. He was joined there by Babar Pervaiz and Mst.

Gulshan Ara. On 30-1-1976 they all shifted to room No. 14 in Firdous Hotel where they stayed uptill 4- 2-1976. Said Akbar P. W. 15, chaukidar of Firdous Hotel Multan, in his evidence stayed that three guests of Qamar-uz-Zaman, two gents and a lady, stayed in room No. 14 of Firdous Hotel on 3-2- 1976. He stated that Qamar-uz-Zaman appellant had come with his guests at 1-30 a.m. Or 2-00 a.m. On the night between 3/4-2-1976; that he left his guests and then went away; that thereafter he saw one of the guests pacing about the room and verandah restlessly; that he enquired from him as to why he was not taking rest, to which the guest replied that he was worried; that he went upstairs at about 5-30 a.m. For offering prayers; and that after he returned he saw that the door of room No. 14 was wide open and there was no person therein. He further stated that at about 7-00 a.m. The manager of the hotel enquired from him about the guests of Qamar-uz-Zaman appellant staying in room No. 14, to which he pleaded ignorance and told him that they had left without informing him. He also stated that none of the two appellants, then present in Court, was the person who was pacing about in the verandah. He identified Qamar-uz-Zaman appellant as the person who had come with his guests. He failed to recognize Jeda P. W. 4 approver as one of the guests residing in the hotel on 3/4-2-1976. He was confronted with his statement Exh. D. K. Recorded by Gulzar Ahmad Inspector P. W. 24 on 16-2-1976, wherein he had stated that at about 10-30 p.m.

On the night between 3/4-2-1976 he had a quarrel with Jeda P. W. 4 approver about the use of the phone, which matter he had reported to the Manager, who had advised him that as Jeda was a friend of a Police Officer, he should be patient, which statement he denied. He also denied that in his statement Exh. D. K. He had stated that Qamar-uz-Zaman appellant and certain other persons had also come to the same room at night, that till 11-30 or 12 mid-night there was noise in the room, that these persons had then left the hotel in their jeep and that when he had informed the manager about the unusual noise and revelry in the room, the Manager had asked him to keep quiet. When confronted with his statement, it was so found recorded therein. He further stated that he had informed the police that Qamar-uz-Zaman appellant visited the hotel at 1-30/2-00 a.m. On the night of 3/4-2-1976, but the same was not found recorded in Exh. D. K. He further stated be could not identify Jeda P. W. 4 as he had not seen him. Ahmad Hassan P. W. 16, the Manager of Fidous Hotel, in his evidence stated that he was employed as Manager of Firdous Hotel in 1976. On 30-1-1976 Qamar-uz-Zaman appellant came to him and told him that his guests, namely, Babar Pervaiza ppellant and Jeda P.' W. 4 and his family would be staying at the hotel and that he should lodge them in some good room and take care of their needs. He accordingly reserved room No. 14 for them. Their entry in the Guests Register was not made as Malik Karim Bakhsh, the proprietor of the hotel, was a friend of Qamar-uz-Zaman appellant. He further stated that when the said guests came in a police jeep he gave them room No. 14. He further stated that on 3-2-1976 at 10-00 p.m.

Qamar-uz-Zaman appellant came to the hotel, that he went into room No. 14 and stayed there for about twenty minutes, that Qamar-uzZaman appellant then came to the office whilst Babar Pervaiz appellant and Jeda P. W. 4 stayed outside the office, that Qamar-uz-Zaman appellant enquired from him about the whereabouts of the proprietor, on which he informed him that he bad gone to perform Haj, that thereafter Qamar-uz-Zaman appellant left 'the hotel alongwith Babar Pervaiz appellant and Jeda P. W. 4, that he closed the office at 10..45 p.m. And went to sleep and that next morning when he enquired from Said Akbar Chaukidar P. W. 15 about the position of rooms, he was informed that the occupants of room No. 14 had already left without leaving any word. He further stated that be had prepared the bill, copy whereof was Exh. P. H., which bore his signature and he had debited the same to the account of the proprietor of the hotel. When asked to identify the persons who were staying at the hotel on the relevant night, he correctly identified Qamar-uz-Zaman and Babar Pervaiz appellants. Unfortunately, Jeda P. W. 4 . Was not present in Court, but was in District Jail, therefore, he could not be identified. The defence did not ask for his test identification. In cross-examination he submitted that the Crimes Branch Police had visited his hotel 12 days after the occurrence and had recorded his statement and that Gulzar Ahmad Inspector P. W. 24 recorded his statement Exh. D. N. When confronted with his statement Exh. D. N.

He had to admit that he bad not stated therein that on 30-1-1976 Qamar-uz-Zaman appellant had come to him; that the appellant and asked him that his, guests, namely, Babar Pervaiz appellant had Jeda P. W. 4 and his family would be staying in the hotel and that he should lodge them in some good room of the hotel and take care of their needs; that thereupon he had reserved room No. 14 for them that he had not made any entry in the Guest Register as regards their presence. As Malik Karim Bakhsh, proprietor of the hotel, was a friend of Qamar-uz-Zaman that on 3-2-1976 at 10-00 p.m. Qamar-uz-Zaman appellant came to the hotel, went into room No. 14 and stayed there for twenty minutes; that thereafter Qamar-uz-Zaman appellant came to the office, while Babar Pervaiz appellant and Jeda P. W. 4 stayed outside; that Qamar-uz-Zaman appellant enquired from him about the proprietor of the hotel to which he informed him that he had gone to perform Haj; that thereafter, Qamar-uzZaman appellant left the hotel alongwith . Babar Pervaiz appellant and Jeda P. W. 4; and that next morning Said Akbar Chaukidar P. W. 15 informed how the occupants of room No. 14 had left the hotel without information. In cross-examination, he denied having stated in his statement Exh. D. N. That on the night between 3/4-2-1976, he went to sleep; that Said Akbar, Chaukidar came to him and told him that Jeda P. W. 4 approver had a quarrel with him over the use of the telephone; that Jeda P. W. 4 had threatened him; that he had told the chaukidar that Jeda P. W. 4 was a guest of the Inspector and that he should be patient; and that he had also advised Jeda P. W. 4 that this was not a proper way, but when confronted with the said statement, it was found that the facts were so recorded. He further denied having stated in Exh. D. N. That Said Akbar chaukidar P. W. 15 had told him that there was great noise in room No. 14; that there was a great rush of people in that room; that the Inspector of Cantonment was also present there; and that he had thereupon advised the chaukidar to keep quiet, as the Inspector was an Officer, but when confronted with statement it was found that the said facts were so recorded, therein. The copy Exh. P. H. Of the relevant bill produced by Ahmad Hassan P. W. 16 does not show the date or dates on which the alleged guests of - Qamar-uz-Zaman appellant stayed in the hotel or their names or the number of the room in which they stayed, but gives details of ten bills purporting to be for food supplied during the period 5-1-1976 to 9-1-1976. The statement Exh. P. H. Also does not mention the name of any of the appellants or of the approver. The total evidence, therefore, to corroborate the stay of Jeda P. W. 4 approver with Babar Pervaiz appellant and Mst. Gulshan Ara in Multan for 5/6 days in January, 1976 in Firdaus Hotel and from 29-1-1976 to 4-2-1976 in Guild Hotel and Firdaus Hotel only consists of the testimony of Said Akbar P. W. 15 and Ahmed Hassan. P. W. 16, the Chaukidar and the Manager respectively of Firdaus Hotel, Multan, together with the statement Exh. P. H. Of some food bills. It cannot be denied that the testimony of these two witnesses which has been reproduced above contradicts the earlier version given by both of them in their statements Exh. D. K. And Exh. D. N. To the police on 16-2-1976. In the first instance both these witnesses do not refer to the earlier stay of Jeda P. W. 4, Babar Pervaiz appellant and Mst. Gulshan Ara in room No. 4 of Firdaus Hotel relating to the first stay 5/6 day in January, 1976. Said Akbar Chaukidar P. W. 15 only refers to what transpired on 4-2-1976 whereas Ahmad Hassan, Manager P..

W. 16 refers to the period starting from 30-1-1976 and ending with 4-2-1976. In any case, the statements of both these witnesses at the trial differ from- that given by them in their Exhs. D. K.

And D. N. To the Police. Before the police both referred to the fact that on 3-2-1976 at about 10-30 p.m. Jeda P. W. 4 had a quarrel with Said Akbar Chaukidar P. W. 15 over use of the telephone in the Manager's room, that the Chaukidar prevented him from doing so, that leda P. W. 4 threatened the Chaukidar. Who reported the matter to Ahmad Hassan Manager P. W. 16 who in turn advised the Chaukidar that as Jeda P. W. Was a man of a Police Officer he should be patient. Said Akbar Chaukidar P. W. 15 did not refer in his earlier statement to the fact that during the night of 3/4-2- 1976 at 1-30/2-00 a..m. Qamar-uz-Zaman appellant came with his guests into room No. 14 of Firdaus Hotel and after a short while left the said mom, leaving his guests in, the hotel. Likewise, in his earlier statement Exh. D. N. Ahmad Hassan Manager P. W. 16 did not state that on 3-2-1976 at about 10-00 p.m. Qamar-uz-Zaman appellant came to the hotel and went to room No. 14 and stayed there for about twenty minutes and then left the hotel with Baber Pervaiz appellant and Jeda P. W.

4. Their statements at the trial, differing violently from their earlier statements made. To the police, cannot be accepted with confidence. The statements of the said witnesses do not inspire confidence. On the contrary, their earlier statements suggest that Qamar-uz Zaman appellant with Babar Pervaiz appellant, Jeda P. W. 4 and Mst. Guishan Ara and some other persons were locked in rivalry in . Room No. 14 on the night of 3-2.,1976 from 10-30 p.m. Lasting past mid- night, which would appear to contradict the approver's testimony. The copy of the statement Exh. P.

H. Of the food bills for the period from 5-1-1976 to 9-1-1976 does not bear the names of the appellants or that of Jeda P. W.

4. The total evidence, therefore, produced by the prosecution to corroborate Jeda P. W.'s stay in Multan during the period January/February 1976 does not satisfactorily corroborate his testimony. Said Akbar P. W. 15 could not even identify Jeda P. W. 4 approver as one of the persons who had been seen in the hotel at the relevant time. He also confirmed that none of the two appellants present in Court was the person whom he saw moving about restlessly in the hotel some time after 2-00 a.m. On 4-2-1976.

47. Jeda P. W. 4 approver in his examination-in-chief also stated that after the murder, the dead body of Amir Bakhsh Khokhar was pushed from the driver's seat to the adjoining seat on the left where he was initially sitting, whereafter Babar Pervez appellant drove the car of the deceased, following Qamar-uz-Zaman's jeep in which he was sitting and then all proceeded in the direction of the Nishtar College. On the signal of Qamar-uzZaman appellant, Babar Pervez appellant stopped the deceased's car, came out and sat with them in Qamar-uz-Zaman appellant's jeep, after which they sped away towards Firdaus Hotel. From this statement, it would appear that when the deceased's car was abandoned with his dead body therein, the said dead body was lying slumped on the left front seat of the said car. This position is also supported by Dr. M. H. War P. W. 2.

However, the inspection note Exh. D. S. Prepared by Saif Ullah S. 1. P. W. 19 gives the impression that the body was lying on the right front driver's seat of the car, with the left leg protruding backward into the space between the two front seats and the right leg stretched out on the right seat with the body slouching on the left, head drooping downwards. Nobody had tampered with dead body till the arrival of the Police. It is, therefore, not understood how the dead body came to be shifted into the right driver's seat of the car and who is to be relied. The spot inspection report contradicts the testimony of Jeda P. W. 4 that they had abandoned the deceased's car with the deceased's dead body lying on the left front seat.

48. Jeda P. W. 4 also submitted in examination-in-chief that Qamar-uzZaman appellant had fired one fatal shot at Amir Baksh deceased whilst the latter was sitting in his car in Qamar-uz-Zaman's residence and was about to ,tirt the car. According to the site plan Exh. P. G. The venue of crime is just outside the drawing room of Qamar-uz-Zaman appellant's official residence where the deceased's car is shown to be parked. Jeda P. W. Stated that Qamar-uz-Zaman appellant fired only one shot near the left ear of the deceased, whereas in his earlier statement Exh. D. C. Recorded by Abdul Waheed S. I., C. W. 5 on 4-3-1976, Jeda P. W. 4 bad stated that both Qanrar-uz-Zaman and Babar Pervez appellants had filed one shot each. Jeda P. W. 4 denied having made any statement Exh. D. C. Abdul Wabeed S. I., C. W. 5 also denied having recorded such a :rtatement, but stated that he had recorded such a statement on the dictation of Abdul Karim Inspector C. W.

2. He, however, admitted that in March, 1976 he was posted as S. I. Crimes Branch, Lahore, and that with Abdul Karim Inspector C. W. 2 he used to sit in one room in the office of the Crimes Branch. On pressed to recollect the date when he recorded a statement dictated by Abdul Karim Inspector C.

W. 2, he stated that he could not remember, but stated that Jeda .P. W. 4 was not present when that statement was dictated to him. He however, did not object to what Abdul Karim Inspector C. W. 2 was doing. He was shown Exh. D. C., a copy of Jeda's statement as recorded by him, but he could not say if it was the same statement which he recorded, because the original which was in his hand was not before him. Abdul Karim Inspector C. W. 2, however, in his examination-in-chief clearly stated that in February, 1976, he was posted as Inspector Crimes, Lahore, and Raja Iqbal S. I.

And Haji Abdus Salam, maternal grandfather of Jeda P. W. 4 had produced Jeda P. W. 4 before him on 4-3-1976 and his statement was recorded by Abdul Wahid S. I: C. W. 5 under his supervision. In cross-examination he admitted that the original case diary was before him and he had not mentioned the factum of production of Jeda P. W. 4 before him on 4-3-1976, as Kh. Tufail S. P.

Crimes P. W. 23, whom he had informed about Jeda's arrival, had asked him not to make any entry about his arrival in the register of case diary. He further stated that he had kept Jeda's statement with him from 4-3-1976 and did not mention about it in the zirnni on the order of Khawaja Muhammad Tufail P. W. 23 and that he had later handed over that statement on 7-6-1976 to Muhammad Ashiq D. I: G., C. W.

3. He further admitted that on 7-6-1976 he had given his statement in writing to Muhammad Asbiq, D. I: G. C. W. 3 and with it had appended the statement of Jeda P. W.

4. It cannot be denied that Abdul Karim Inspector C. W. 2 and Abdul Wabid S. L, C. W. 5 were members of the team of Khawaja Muhammad Tufail S. P. Crimes P. W. 23, but Abdul Karim Inspector C. W's. 2 behaviour in not reproducing Jeda's statement in the police diary but keeping the statement with himself till 7-6-1976, when he gave his statement to Ashiq Mohammad D. I: G., C.

W. 3 and then delivering that - statement to the D. I: G. Clearly shows that he had switched sides against the prosecution, which also is evident from the fact that he was promoted to D. S. P. On 1-7- 1976 within three weeks of having falsely concocted Jeda's statement Exh. D. C. The statement of Jeda P. W. 4 and Abdul Wahid S.1. C. W.5 that no such statement Exh. D. C. Was recorded on or about 4-3-1976 and the statement of the latter that Abdul Karim Inspector C. W. 2 dictated to him such a statement in the summer of 1976 in the absence of Jeda P. W. 4 appear to be true and reasonably plausible. It cannot, therefore, be said that there is any contradiction in Jeda's evidence given at the trial as regards the place where his first statement was recorded and that one shot was fired at the deceased.

49. According to the statement of Jeda P. W. 4 in examination-in-chief, Amir Bakhsh deceased had taken about 4/5 pegs of whisky before he was killed. Dr. Asheeq Muhammad P. W. 1 who conducted the post-mortem examination on the dead body of the deceased did not find any smell of alcohol in the fluid found in the stomach and bladder of the deceased.

50. According to the statement of Jeda P. W. 4 neither he nor his associates found any need of placing their feet on the rear seat of the deceased's car, but the spot inspection report Exh. D. S. Prepared by SaifUllah S. I. P. W. 19 shows that the rear seat contained mud footprints of wide tyre- soled peshawari chapals. According to the statement of Sh. Ibrar Ahmed S. S. P. C. W. 1 he had found black keri spread on the ground in the residence of Qamar-uz-Zaman appellant.

51. According to Jeda 1f. W. 4 the fatal shot had been fired in the car which was standing in Qarnar- uz-Zaman appellant's residence. However, none of the inmates of the house of Qamar-uz-Zaman appellant, including his servants, or the residents or servants living nearby or the police guards posted at Qamar-uz-Zaman appellant's house, S. S. P.'s house, D. C.'s house or nearby houses were either produced to prove that they had heard a fire shot at the time and date of occurrence or examined to ascertain the said fact. It seems hardly likely that Qamar-uz-Zaman appellant would have shot the deceased in a car in his own premises in order to leave the tell-tale evidence of a fire report for every one to hear at close range. The absence of any proof as regards the report of a fire shot having been heard by anyone in the vicinity leads to the fair inference that no pistol shot was fired in the compound of Qamar-uz-Zaman appellant's residence.

52. According to Jeda P. W. 4, the deceased was shot at about I a.m. On 4-2-76. Dr. Ashiq Muhammad P. W. I who conducted the post-mortem examination on the dead body of the deceased at 5-15 p.m. The same day, not only stated in post-mortem report Exh. P. A. That death had occurred within four to six hours of the examination, but also that at the time of the said examination rigor mortis was present in the upper and lower extremities of the limbs. This would, therefore, place the time of death between 11-15 a.m. To 1-15 p.m. On 4-2-76. However, in January 1977 when the said Doctor appeared at the trial, he stated that the period of four to six hours given by him was due to a slip of the pen and should read 14 to 16 hours, but could not explain away the presence of rigor mortis which he had observed in the upper and lower extremities of the limbs of the dead body. Dr. M. N. Zafar P. W. 2 who had reached the spot at 2-30 P. W. On 4-3-76 and had cursorily examined the deceased, observed in his examination-in-chief that the approximate time of his death was 10 to 12 hours. In cross-examination, Dr. Zafar P. W. 3 had to admit that he was an expert in medicine and not a specialist in surgery and that he was not an expert in Medical Jurisprudence. He also admitted that the deceased was known to him for the last 15/16 years. The counsel for the complainant tried to show that Dr. Asheeq Muhammad P. W.1 had himself realised his mistake as regards time stated in the post-mortem report and by letter dated 7-2-1976 addressed to his superior officer, corrected the time stated in the post-mortem report. Learned counsel, in support of this position, also referred to certain portions of the statement of Saif Ullah S. I. P. W. 19 wherein he had stated that he had got the post-mortem report clarified and that it was not at Qamar-uz-Zaman appellant's instance that he had got this done. In the first instance; the doctor's letter dated 7-2-1976 was never exhibited and cannot be taken into consideration. Second, the letter gives the impression that the doctor himself realising his mistake, voluntarily sent the letter of correction, but Saifullah S. I. P. W. 19 states that this was at his instance, which shows it must have been sometime after Jeda P. W. 4's evidence was recorded. This would mean that the said letter dated 7-2-1976 was pre-dated. But if the letter is kept out of consideration, then it is neither clear from Dr. Asheeq Muhammad P. W. I's testimony or from Saifullah S. I. P. W. 19's testimony, when the former made the correction. There appears to be an attempt to keep this date suppressed. The inference is therefore, clear that the clarification, if sought,. Was sought after Jeda ;'. W. 4's testimony was recorded. As against Dr. M. M. Zafar P. W. 2, the testimony of Dr. Asheeq Muhammad P. W. 1 deserves credence as be is a Surgeon and is a Specialist in Medical Jurisprudence and he examined the dead body with minute care and attention and submitted a post-mortem report after a careful examination of the dead body. It appears that initially in the post-mortem report of Dr. Asheeq P. W l., time that elapsed between death and post-mortem was correctly given, but in order to come in line with the prosecution case the doctor condescended to extend the time later.

53. Many features of the case are even otherwise not understandable. 1f the deceased's car was dumped by the approver and his associates within a few minutes of the murder at 1 a.m. On 4-3- 1976 outside the gate of the Nishtar Medical College, it is not understood why the dead body was not discovered till as late as 2-30 p.m. The same day. According to Jeda P. W. 4's own showing, he appears to be some form of a hanger-on of Babar Pervez appellant, doing his odd jobs, working as his pimp, receiving small funds from him from time to time, drinking with him and acting as his confident with regard to his shady relations with Qamar-uz-Zaman appellant. From his own showing, he appears to be, an unscrupulous person, full of vices.

54. From a resume of all the above facts and circumstances, the absence of corroboration on certain facts, including some where documentary evidence was available and could have been produced, but was not produced, and the presence of contradictory evidence on many others and the presence of certain peculiar features which have raised doubts, we feel hesitant in describing the testimony of Jeda P. W. 4 as intrinsically inspiring confidence. The testimony of Jeda P. W. 4, therefore, on some general features of the case as' discussed above, not covered by the field where the prosecution alleges it has material corroboration, which we shall now discuss, does not place the approver in any worthy position of credit with us. We, therefore, hold that Jeda P. W. 4 does not fulfil the first elementary test of being a reliable witness whose evidence intrinsically inspires confidence and which can be safely accepted, subject to corroboration being found on material particulars.

55. Notwithstanding the above, we now turn to the corroboration offered by the prosecution to the testimony of the approver on material particulars. We will now take up one by one the nine items on which prosecution has offered corroboration.

56. Medical evidence has been taken as one item of corroboration to the testimony of the approver. The learned trial Judge has found that as, from the testimony of Dr. Asheeq Muhammad P. W. 1, the deceased had died by one fire shot, his testimony corroborates that of Jeda P. W. 4 approver who stated that Qamar-uz-Zaman appellant had fired one shot at the deceased. It appears that when the approver made the statement Exh. D. C. At Multan on 6-3-1976, the post- mortem report was already present with the investigating agency. As already held in Muhammad Sabir's case (PLD 1975 Lah.103), if the post-mortem report is already with the police before the statement of an approver is recorded, medical evidence cannot be treated as good corroboration to the approver's testimony. We have already held that Dr. Asheeq Muhammad P. W. 1's testimony is full of contradictions with regard to the time that elapsed between death and post-mortem examination of the deceased. In these circumstances, we cannot safely hold that the medical testimony affords corroboration to the testimony of the approver, specially as regards the time when the fatal injury was inflicted on the deceased.

57. The learned trial Judge has also accepted the motive, as furnished and proved by the prosecution, as good corroboration to the testimony of the approver. The evidence as regards motive is furnished by Muhammad Ashiq D. I: G. C. W. 3, Sultan Ghani D. S. P. C. W. 4, and Sh.

Muhammad Tufail S. P. Crimes P. W. 23 . According to Muhammad Ashiq D. I.-G.C. W. 3, he had come to know from the record that the then Minister of Punjab and Malik Zawar Hussain were being named as abettors in the crime.

He admitted that be had not interrogated Nawab Sadiq Hussain Qureshi, Chief Minister, and Malik Zawar Hussain, because there was no evidence against them. He admitted that after his retirement, his son Masood 1qbal was selected as D. S. P., but stated it was on merits and not due to the influence of the Chief Minister or Malik Zawar Hussain. Ch. Sultan Ghani D. S. P. C. W. 4 stated that it transpired during investigation that Malik Zawar Hussain had very cordial relations with Nawab Sadiq Hussain Qureshi and that it came to his knowledge that Qamar-uz-Zaman appellant was SubInspector in Muzaffar Garh District when Malik Zawar Hussain was Deputy Commissioner there and they had formal relations with each other. He also stated that it came to his knowledge during investigation that Nisar Hussain and Malik Zawar Hussain were having very strained relations with the deceased and they feared that the ticket for the Provincial Assembly seat would be given to the deceased. Kh. Muhammad Tufail S. P. P. W. 23 stated in examination-in-chief that during the investigation a case was made out against Nawab Sadiq Hussain Qureshi and Malik Zawir Hussain, that he had contacted the I.-G. Police in this connection and apprised him that both had conspired in the crime with the present appellants and that the I. G. Had directed him that he should not take any steps against them for the time being He gave further evidence to show the friendly connections between Malik Zawar Hussain and Qamar-uz-Zaman appellant. Unfortunately, Nisar Hussain and Malik Zawar Hussain, the relevant witnesses, were not produced. Neither Mst.

Rashida ,P. W. 17, the wife of the deceased, nor Sajjad Hussain P. W. 18, the nephew of the brother-in- law of the deceased nor Zammurd Gardezi P. W. 10 nor Mustafa Jillani P. W. 22 deposed to any political enmity or discord between Nisar Hussain and Malik Zawar Hussain, on the one side, and Malik Amir Bakhsh Khokhar deceased, on the other. The material telephone calls between Qamar- uz-Zaman appellant from Lahore to Malik T Zawar Hussain in London from Telephone No. 311233 belonging to Baba Pervez appellant have not been proved. The incriminating part of the statement attributed by Jeda P. W. 4 to Qamar-uz-Zaman, appellant in one of such calls, therefore, does not stand proved. One trunk call allegedly booked by Zammurd Gardezi P. W. 10 from his telephone No. 6060 at Multan to Malik Zawar Hussain and transferred to the phone of Qamar-uz-Zaman appellant for conversation by him, stands adequately proved by the evidence of Baghi Shah Afreedi P. W. 25, Assistant Engineer, Trunks. But the nature of the conversation does not stand proved. At best, though some friendship or intimacy appears from the record between Qamar-uz- Zuman appellant and Malik Zawar Hussain-and one conversation between the two on 21-12-1975 from a call booked on the phone of Zammurd Gardezi P. W. 10, which matured on the phone of Qamar-uz-Zaman appellant, stands established, the motive, as is being attempted to be proved.

Does not stand made out. The knowledge of a police officer derived during investigation cannot be accepted to prove an item of fact, where the witnesses who are the source of such knowledge, are neither named by the Police Officer in his evidence nor produced by the prosecution in Court. In these circumstances, the political rivalry between Malik Zawar Hussain's ground and Malik Amir Hakhsh's group, motivating the removal of the deceased by Mack Zawar Hussain, does not adequately stand proved on the record

58. The next piece of corroboration offered by the prosecution is that relating to the conspiracy to murder the deceased. In this connection, the .Prosecution has tried to prove the conspiracy between the two appellants and Jeda P. W. 4 approver to kill Malik Amir Bakhsh Khokhar deceased and that between Saif Ullah S. I. P. W. 19 and Qamar-uz-Zaman appellant in the same direction. As regards the first item of conspiracy, there is only the evidence of Jeda P. W. 4, Said Akbar P, W. 15, Ahmad Hassan, P. W. 16, Gulzar Ahmad Inspector P. W. 24, Zummurd Hussain Gardezi P. W. 10 and Baghi Shah Afredi P. W,

25. As regards the approver's testimony that Qamar-uz-Zaman appellant had a telephone talk with Malik Zawar Hussain in London from the telephone installed in Babar Pervaiz's residence at Lahore, during which talk he heard Qamar-uz-Zaman appellant state:-- ---his testimony does not find any corroboration from any documentary evidence produced from the office of the Telephone Department. Further, according t the approver, one night at Multan, Qamar.Uz-Zaman appellant came to the in Firdaus Hotel and confided with him and Babar Pervaiz appellant saying that- This talk does not find any corroboration from any independent source. As regards the stay of Babar Pervaiz appellant, Jeda P. W. 4 and Mst. Gulshan Ara at the hotel from 4-1-1976 to 9/10-1-1976 and from 29-1-1976 to 4-2-1976 the evidence is discrepant in general as already pointed out in para 46 above. However, even assuming that Said Akbar P. W. 15 and Ahmad Hassan P. W. 16 can be relied upon, at best it would show that Babar Pervaiz appellant, Jeda P. W. 4 and Mst. G ulsban Ara (given up P. W.) had stayed at Firdaus Hotel for some days in the month of February, 1976 as guests of Qamar-ur-Zaman, but this by itself would not prove the conspiracy between them to murder Amir Bakbsh Khokhar deceased. It is not uncommon for Police Officers to lodge their friends and/or relatives--reputable or otherwise-- in hotels free of charge at the expense of the management and assuming that Babar Pervaiz appellant, Jeda P. W. 4 and Mst. Gulehan Ara (given up P. W.) availed of the said hospitality, this by itself would not prove the conspiracy. No independent witness has supported Jeda P. W. 4 in this respect and no independent circumstance worth the name corroborates the approver's testimony in this regard. As regards the second item of conspiracy, Saif Ullah S. I. P. W. 19 has deposed that about 5/6 months prior to the occurrence, Qamar-uz-Zaman appellant took him into confidence and suggested to him to be a partner in a crime of murder, assuring him that by way of reward, he would be promoted to the rank of Inspector, while he (Qamar-uz-Zaman appellant) would be promoted as a D. S. P. In this connection, the statement of Faiz Mustafa P. W. 22, where he stated that Qamar-uz-Zaman appellant tried to satisfy the gathering of respectables at his residence that he would trace the culprit and kill him in a Police encounter and that he should not get the investigation transferred from him, was also pressed to prove the conspiracy. In the first instance, the statement of SaifUllah S. I. P. W. 19 suggesting that Qamar-uz-Zaman appellant desired him to join in the commission of the murder does not inspire confidence. The evidence does not disclose any past close relationship between the two which would justify Qamar-uz-Zaman appellant. In wanting to secure the assistance of a Police Officer subordinate to him in the commission of a .Crime, no less heinous than that of murder. It cannot be denied, as stated by Mst. Rashida P. W. 17, that the deceased had told her about seven days before the occurrence that Qamar-uz-Zaman appellant had some enemy and he kept a pistol even when he did not wear his uniform. Could be that Qamar-uz- Zaman appellant desired the assistance of his subordinate Saif Ullah, S. I. P. W. 19 to kill some criminal, who was his enemy; in a police encounter and thus earn for himself and his subordinate, promotion in the service. In any case, Saif Ullah S. 1. P. W. 19 does not name the deceased as the person whom Qamar-uz-Zaman appellant desired to be murdered. In the absence of this evidence, it cannot be assumed, even assuming that Saif Ullah's statement is true, that Qamar-uz- Zaman appellant conspired with Saif Ullah. S. I. P. W. 19 to commit the murder of Malik Amir Bakhsh Khokhar deceased in particular. Both the items of conspiracy, therefore, do not stand adequately proved by the evidence on record. The statements of Jeda P. W. 4 and Saif Ullah S. 1. P. W. 19 remain uncorroborated in material particulars to clearly prove any such conspiracy

59. The fourth material corroboration offered by the prosecution is that on 3-2-1976 at 10-VO p. m.

Qamar-uz-Zaman appellant came to Firdaus Hotel and from there took Babar Pervaiz appellant and Jeda P. W. 4 to his bungalow. In this respect, the testimony of Ahmad Hassan P. W. 16, the Manager of Firdaus Hotel, is offered in corroboration of the approver's testimony. Ahmad Hassan P.

W. 16 in his examination-in-chief has categorically deposed that Babar Pervaiz appellant, Jeda P.

W. 4 and Mst. Gulsban Ara were staying in room No. 14 of the hotel. Regarding which he had made no entry in the Register of Guests, as Qamar-uz-Zaman appellant was friendly with Malik Karim Bakhsh; the Proprietor of the hotel. He further stated that on 3-1-1976 at about 10-00 p. m. Qamar- uz-Zaman also visited the hotel and after a very short stay, left the hotel, alongwith Babar Pervaiz appellant and Jeda P. W. 4 and that on the morning of 4-2-1976 Said Akbar Cbaukidar P. W. 15 bad told him that the guests had left the hotel without informing him. The Manager identified Qamar- uz-Zaman and Babar Pervaiz appellants, but could. Not identify Javaid P. W. 4, as he was in Jail. In cross-examination he admitted that his statement Exh. D. N. Under section 161, Cr. P. C. Was recorded by Gulzar Ahmad Inspector P. W. 24 twelve days after the occurrence and that in that statement he bad not mentioned that on 3-2-1976 at 10-00 p. m. Qamar-uz-Zaman appellant had come to the hotel and after a few minutes had departed with Babar Pervaiz appellant and Jeda P.

W.

4. Rather, when confronted with his statement Exh. D. N. It was found that he had stated therein that on the night between 3/4-2-1976, after closing his office, he went to sleep, that the Chaukidar came to him and told him that Jeda P. W. 4 approver entered the office by jumping over the counter and started using the telephone, that on his taking objection to Jeda's behaviour, the approver started threatening him, that he told the Chaukidar that since Jeda P. W. 4 was a guest of an Inspector of Police, he should be patient. That he also then explained to Jeda P. W. 4 that this was not proper behavior, that thereafter later the Chaukidar informed him that there was great' noise and revelry in room No. 14 and that the Police Inspector of Cantonment was also present, whereupon he again explained to the Chaukidar that the person Was an Officer arid he should remain silent and that finally be was informed in the morning that the guests -had vacated the room. When confronted with the said version in Exh. D. N. In the Manager denied the same. Other contradictions appearing in the Manager's statement at the trial with his earlier statement given in Exh. D. N. Are referred to in parte 46 above and need not recapitulated. In view of these glaring discrepancies in the earlier statement Exh. D. N. Given by the Manager an that made at the trial, it cannot be inequivocally stated that Qamar-uz-Zama appellant left Firdaus Hotel at 10-00 p. m. On 3-2-76 with Babar Pervaiz appellant and Jeda P. W.

4. In fact, according to the statement Exh. D. N Qamar-uz-Zaman appellant was lockisd in revelry with Baba.r Pervez appellant, Jeda P. W. 4 and Mst. Gulshan Ara (given up P. W.) in the said hotel right through to next morning, when the guests left the hotel. It cannot, there fore, be said that Qamar-uz-Zaman appellant with Babar Pervez appellant and led- P. W. 4 left Ficdaus Hotel on 3-2-76 at about 10-00 p. In. And, thereafter straightaway proceeded to Qamar-uz-Zaman's residence.

60. The next item of corroboration is the arrival of Malik Amir Bakbsh Khokhar deceased at the bungalow of Qamar-uz-Zaman appellant on 3-2-76 round about 10 p.m. At the latter's invitation. In this connection, the statements of Mst. Rasbida P. W. 17, Zammurd Hussain Gardezi P. W. 10, Sajjad Hussain P. W. 18 and Faiz Mustafa Jillani P. W. 22 have been referred. According to Mst. Rashida P. W 17, the wife of the deceased, the sister of the deceased was hospitalized in the. Nishtar Hospital a day before the occurrence. On 3-2-76 she alongwith her deceased husband went to enquire about the health of the sister of the deceased at about 7 or 7-30 p.m. The deceased, after dropping her at the hospital, went to the bungalow of Qamar-uz-Zaman appellant and returned to the hospital by about 10 p. m., whereafter they both returned home. Since the deceased had already taken his meal at the house of Qamar-uz-Zaman appellant, she requested the deceased to change his clothes and take rest, whereupon the deceased told her that he had promised to see Qamar-uz- Zaman appellant again: She, however, suggested to the deceased that he should cancel his appointment with Qamar-uz-Zaman appellant on the phone. The deceased thereupon phoned up Qamar-uz-Zaman appellant and tried to excuse himself, but Qamar-uz-Zaman appellant insisted on his visiting his house as he had arranged superior whisky and a girl of the deceased's choice.

Being too good an offer, the deceased could not resist and he left the house after a few minutes.

Mst. Rashida further stated that she had overheard the talk on the telephone, as she was standing quite close to her husband. Mst. Rashida also stated that the next day at about 4 p. m. Sajjad Hussain P. W. 18, the nephew of the deceased, and Qamar-uz-Zaman appellant came to her house, during which conversation when Qamar-uz-Zaman appellant had asked her as to where the deceased had gone to take his dinner the previous night, she informed him that her husband had taken his evening meal with him and that when she asked the appellant that the deceased, after his dinner with him, had rung him up and he had promised him superior whisky and the woman of deceased's taste and the deceased had again gone to his house at 10 p.m. After that telephonic call. Qamar-uz-Zaman appellant, who appeared to be shaken and looked upset, replied that the phone was from the hospital. Mst. Rashida P. W. 17 thereupon informed Qamar-uz-Zaman appellant that the telephone was from her house and she had heard it, whereupon Qamar- uzZaman told her to leave the subject. Mst. Rashida further stated that at this stage she cried loudly and enquired from Qamar-uz-Zaman appellant that as the deceased had gone to him, he should explain to her as to where he had gone. She confirmed that Sajjad Hussain P. W. Was present when this conversation took place. Mst. Rashida P. W. 17 was confronted with a paragraph of the zit--ni recorded by Qamar-uz-Zaman appellant on 4-2-76 namely, Exb. D. P., in which she had not referred to the telephonic conversation between her deceased husband and Qamar-uz- Zaman and her later talk with him the next day in the presence of Sajjad Hussain P. W. 18, but since Exh. D. P. Was not a statement of Mst. Rashida P. W. 17 recorded under section 161, Cr. P. C. But replies to certain quarries put by Qamar-uzZaman appellant to her and entered in his zimni as miscellaneous noting, the same cannot be used to contradict her and as such is inadmissible.

However, if in essence and substance this zimni was her statement, but recorded as a noting to the investigating officer's queries, we would have, following Bhutto's case (PLD1979SC53) and Nasrullah's case (1980PCr.LJ5), treated it as a statement recorded under section 161, Cr. P. C., but, as already stated above, this is not so, Exh. D. P. Appears to be some answers to some random questions put to Mst Rashida P. W. 17 and basically cannot be treated as her statement under section 161, Cr. P. C. In any case, her statement Exh. D. O. Recorded under section 161, Cr. P. C. On 12- 2-75 by Khawaja Muhammad Tufail S. P. P. W. 23 refers to the telephonic conversation and the subsequent oral talk. Sajjad Hussain P. W. 18 confirmed the talk of Mst. Rashida P. W. 17 with Qamar- uz-Zaman appellant on 4-2-76, when be, in company with the said appellant, had gone to the deceased's house. He also confirmed that when Mst. Rashida P. W. 17 cornered him with the news that the deceased had gone to the appellant's house after his conversation with the appellant and at the appellant's invitation, Qamar-uz-Zaman appellant had told Mst. Rashida that she should not talk such things and he appeared then to be somewhat perturbed. He further stated that Mst.

Rashida finally pressed the appellant to disclose her deceased's husband whereabouts as he was last with the appellant on the previous night and, therefore, only the appellant could know his whereabouts. In cross-examination, when confronted with his statement Exh. D. Q., it was found that he had not -stated therein that he alongwith Qamar-uz-Zaman had gone to the house of Mst.

Rashida P. W. And there a conversation took place between her and the appellant in his presence, though by implication the same can be spelt out. Faiz Mustafa Jillani P. W. 22 in his evidence stated that on 6-2-76 Qamar-uz-Zaman appellant came to his residence at evening time when a number of respectables and others were present, including Zammurad Hussain Gardezi P. W. 10.

The appellant was asked that since Amir Bakhsh Kbokhar was at his house on the night of occurrence at 10 p.m., therefore he should explain his whereabouts, whereupon the appellant after some reluctance, admitted that the deceased was with him at his residence that night, but did not know where he had gone after 10 p.m. Qamar-uz-Zaman appellant had also requested the persons present that since he was a friend of the deceased, therefore, he should be allowed to conduct the investigation and the same should not be transferred from him. However, in .Cross- examination when confronted with his statement Exh. D. U., he had to admit that he had not stated therein that the appellant had been asked to explain the whereabouts of the deceased as he was with the appellant at 10 p.m. On the relevant night. Zammurad Gardezi P. W. 10 in his evidence stated that on 3-2-76 at about 10 p. m. He, with one Zaffar, was coming from Saddar and went to Qamar-uz-Zaman's house, where he found Fazla Mirasi present, with whom he had a talk. He also found Amir Bakhsh deceased in his car, which was parked opposite the gate of Qamar-uz-Zaman's house. He enquired from the deceased as to how he was there, who told him that he bad an appointment with Qamar, who was not available and he was therefore, waiting for him. He asked Amir Bakhsh to have a cup of tea at his house, but be did not agree. He then proceeded further. In cross-examination he had to admit that in his statement Exh. D. F. (not recorded under section 161, Cr. P. C.) to Saifullah S. I. P. W. 19 made on 4-2-76, he had not given this story, but a totally different one. Irrespective of the fact that statement Exh. D. F. Cannot be used to contradict Zammurd Gardezi P. W. 10, the statement of this witness does not inspire confidence. He appears to be a liar, if Exh. D. F. Is kept in view. He also appears to have been forced to give this statement by being placed under fear, which is apparent from the fact that he was invited to attend the Lahore Fort a number of times for no rhyme or reason, kept waiting endlessly, shown Qamar-uz-Zaman appellant in chains and in gruesome health, all of which, as admitted by him, exerted great mental pressure on his mind. Last but not the least, Fazla Mirasi and Zaffar were not produced by the prosecution. His evidence in any case does not inspire confidence. However, Mst. Rashida P. W. 17, the wife of the deceased, Sajjad Hussain P. W. 18, the nephew of the deceased, and Syed Faiz Mustafa Jillani P. W. 22, a landlord and a friend of the deceased, have no enmity with Qamar-uz- Zaman appellant. The evidence of these three witnesses is natural and convincing. Notwithstandin a lengthy cross-examination directed at them to break their testimony, their testimony with regard to Qamar-uz-Zaman appellant's admission before them of the deceased being last with him on 3- 2-76 round about 10 p. m. I clear and stands fully established. However, the evidence does not clearl establish whether the deceased went straight to Qamar-uz-Zaman appellant' house and stayed there or later went elsewhere or he went straight to some other place where Qamar-uz- Zaman appellant had invited him. However, what does stand established is that the deceased, in answer to the invitation of Qamar-uz-Zaman appellant, left his house to meet Qamar-uz-Zaman o the fateful night round about 10 p. m. And the appellant admitted the fact before three respectable witnesses that the deceased was with him at about that time and further admitted before Syed Faiz Mustafa Gilani P. W. 22 and hls group that he did not know where the deceased bad gone after that time.

61. The sixth item of corroboration offered by the prosecution is that relating to the actual occurrence. Since we have held the corroboration on the fifth material particular as standing established, for the purposes of the present item of corroboration we would assume, for a matter of argument, that the deceased was present at the residence of Qamar-uz-Zaman appellant some time round about 10 p. m. The story of Jeda P. W. 4 approver as regards what all transpired at the residence of Qamar.Uz-Zaman appellant leading upto the murder of the deceased and the transportation of his body to the outer gate of the Nishtar Medical College, is stated is para. 4 above and need not be repeated. However, no corroboration worth the name on any of the numerous facts stated by the approver has been furnished. What alone is attempted to be proved is that when the deceased's dead body; was found next day in his car outside the gate of the Nishtar Medical College, that his body was on the left side of the driver's seat, for which the evidence of Dr. Muhammad Hayat Zafar P. W. 2 and the spot inspection report Exh. D. S. Of Saif Ullah S. 1. P. W. 19 is referred. By this evidence it is sought to be established that the statement of Jeda P.

W. 4 that after the occurrence, they pushed the deceased's body from the front seat to the adjacent front seat on the left, stands proved. It is true that Dr. Muhammad Hayat Zafar P. W. 2 supports the presence of the deceased's body on the left front seat, but as stated in para. 47 above, the inspection report Exh. D. S. Seems to give a different version. Even assuming this item of fact stands proved, it is a drop in an ocean and we can hardly say that from this fact the whole of the statement of the approver relating to the occurrence stands materially corroborated. Where a man who drives his own car is murdered at on place and his .Body is found in his car at another, one would assume that whoever committed the murder shifted the deceased's body to the adjacent seat before he drove the car and dumped it elsewhere and fled. The shifting of the body from the driver's seat to any other seat is implied in every such situation. But this does not prove the whole case and; in the present case, we cannot say that. The whole of the approver's story regarding the actual occurrence stands materially corroborated by this tiny item of fact. As regards our views on the post-mortem report, which shows that the deceased died within 4 to 6 hours of the post-mortem examination, we need not repeat the same here, as it has been elaborately dealt with in para. 52 above.

This also throws a blanket of doubt on the approver's version of the time of incident, as presented.

62. The seventh item of corroboration relates to the removal of the dead body of Amir Bakhsh Khokhar deceased and his car from the bungalow of Qamar-uz-Zaman appellant to the outer gate of the Nishtar Medical College. In this connection the testimony of Dr. Muhammad Hayat Zafar P. W. 2, Sajjad Hussain P. W. 18 and Saif Ullah S.1. P. .W. 19 is referred. What appears from their evidence is that the car of the deceased with the dead body of the deceased therein was first discovered lying outside the outer gate of the Nishtar Medical College on 4-2-1976 at about 2 p. m.

Nothing can be gathered from their testimony to show that the said car, driven by Babar Pervez appellant, was removed from Qamar-uz-Zaman appellant's house to the outer gate of the Nishtar Medical College and there abandoned. Nothing also appears from their testimony to show that when Babar Pervaiz appellant drove that car from Qamar-uz-Zaman appellant's house up to the outer gate of the Nishtar Medical College, he was escorted by the jeep of Qamar-uz-Zaman appellant in which Qamar-uz-Zaman appellant and Jeda P. W. 4 were seated. It cannot be, forgotten that Jeda P. W. 4' statement was recorded a month after the discovery of the deceased's car outside the gate of the Nishtar Medical College. Even if the testimony of Dr. Muhammad Hayat Zaffar P. W. 2 about the presence of the car outside the gate of the Nishtar Medical College be treated as good corroboration coming from an independent source, there is no evidence aliunde to show that the car with the dead body came to be transported from Qamar-uz-Zaman appellant's house to the outer gate of the Nishtar Medical College and, if so, who were connected with this transaction.

63. The next item of corroboration offered by the prosecution relatie to the recoveries. The first relates to the recovery of a licensed revolve P. 1 of Qamar-uz-Zaman appellant and the second, a lady's hair Exh. P. 3 found sticking on the outer body of the car when it was taken into possession by the Police. The learned trial Magistrate held these recoveries to be of no value and we have no reason to differ from that opinion either. Thes recoveries do not offer any corroboration to the testimony of the approves as, in the first instance, no empty was recovered which matched the licenced revolver and second, the approver did not mention that any lady had accompanied them in the car from the time he left Fardaus Hotel on 3-2-1976 at 10 p. m. To the time he returned back on 4-2-1976 sometime after 1 a. m

64. The last item of corroboration offered relates to the conduct of the two appellants and the approver after the occurrence. In this connection, the statement of Said Akbar P. W. 15 and Ahmad Hassan P.W. 16, the Chowkidar and Manager of Fardaus Hotel, is offered. The former stated in his examination-in-chief that three guests of Qamar-uz-Zaman appellant, of whom one was a lady and two were gents, had stayed in room No. 14 of Fardaus Hotel on 3rd February, 1976. He further stated that Qamar-uz-Zaman appellant came with his guests at about 1.20 or 2 a. m. On the night between 3/4th February 1976 and that after leaving his guests he went away. He further stated that he saw one of the guests restless, pacing up and down from the room to the verandah, that he enquired from the guest as to why he was not resting, that the guest replied that he was worried, that he came to the office of the hotel at about x'30 a. m. That he then went upstairs for offering prayers and that when he returned after, prayers he found that the door of room No. 14 was open and no person was in the room. He further stated that he informed the Manager about the departure of the guests. In cross-examination Said Akbar P. W. 15 had to admit that in his statement Exh. D. K. He had not stated before the police that Qamar-uz-Zaman appellant bad visited the hotel at 1-30 a. m. Or 2 a. m. On the night between 3/4th February, 1976 and that after leaving his guests he had gone away. When further confronted with his statement Exh. D.K. He had to admit that he stated therein that the guests, Qamar-uz-Zaman appellant and one or two other persons who had come at night remained locked in revelry in the said room from 3rd February, 1976 right through 4th February,1976 and that at a time not stated, Qamaruz Zaman appellant with some of his friends left the hotel in the official jeep. When shown the two appellants, he could not identify either of them as the guest who was restless at night and had paced in the verandah and the room. When asked to identify Jeda P. W. 4 he could not do so. Ahmad Hassan P. W. 16 in his examination-in-chief Rated that on and from 30th January, 1976 Babar Pervez, Jeda P. W. 4 and Mst. Gulshan Ara had stayed at his hotel in room No. 14 as the guests of Qamaruz Zaman appellant, that on 3rd February, 1976 sometime after 10 p. m. Qamaruz Zaman appellant had left the hotel with Babar Pervez appellant and Jeda P. W. 4 and that sometime in the morning on 4th February, 1976, Said Akbar P, W. 15 Chowkidar had informed him that the occupants of room No. 14 had left the room without informing him or the Chowkidar, whereafter he prepared their bills and debited the same to the account of the owner of the hotel. He identified the two appellants. The defence did not care to have Jeda P. W. 4 put up for test identificatlon in Court. Though Said Akbar P. W. 4, Chowkidar, could not identify the guests, Ahmad Hassan P. W. 16 could and did as he had greater opportunity to meet them. From this cumulative testimony, one fact cannot be denied that Babar Pervaiz appellant, Jeda P. W. 4 and Mst. Gulshan Ara were residents of room No. 14 and left on the morning of 4th February, 1976. As regards other matters, there are discrepancies, which have alread been detailed in the earlier paras. From facts found in paras. 46 and 58 above, some form of intimacy between Babar Pervez appellant, Jeda P. W. 4 and Mst. Gulshan Ara, on the one hand, and Qamaruz Zaman appellant, on the other, appears to be made out and also their stay in Fardaus Hotel for some days in the month of February, 1976, as the guests of Qamaruz Zaman appellant.

Their abrupt departure is not of much significance consider in that two of the three were a prostitute and a pimp, that it was not unusual' for such persons to disappear at short notice anywhere between mid-night an the early hours of the morning and that, in any case, they were the guests of an Inspector of Police and had not to formally "check out" as they had t make no payment to the Manager or Chowkidar of the hotel. From the evidence of the approver, similar abrupt departures of other prostitutes round about mid-night is also referred to. The abrupt departure of this motley bohemian band from the hotel on the morning of 4th February, 1976 cannot be treated as of any significant importance.

65. The upshot of the above discussion is that the testimony of the approver intrinsically does not inspire confidence and that it only stand corroborated on ancillary matters, not sufficient to bring home the charge of guilt to the two appellants. In these circumstances, both the appellants are entitled to the benefit of doubt and their convictions and sentences, as recorded by the trial Judge, do not appear to be proper and are set aside.

66. Before parting with this case, we record with regret that sufficient indication exists on the file to show that there was interference with the investigation of this case as a result of polarised forces working at different stages to promote and impede the unravelling of the truth. This case has suffered as a result of this interference, though what would have been its result if there had been po negative interference, is difficult to predict.

67. For the foregoing reasons, the appeals of the appellants (Criminal Appeal No. 978 of 1978 and Criminal Appeal No. 979 of 1978) are accepted and both the appellants are acquitted. They shall be released from the jail forthwith if not required in any other case. Fine, if any recovered from them shall be returned to them.

The death sentence awarded to Qamaruz Zaman appellant is not confirmed.