' IJAZ N1SAR, J.-Abdul Ghafoor son ofMuhammad Ismail (26), Manzoor aim son of Muhammad Nawaz (24) and Ghulam Muhammad son of Baig (3e) have been convicted by the learned Additional cessions Judge, an on 24-1-1981 and sentenced to death and to pay a fine of Rs, 3,000 default to undergo 6 months' R. I. Each under section 302/34, P. P. C. He murder of Sufi Allah Ditta.
They were further convicted under n 201, P. P. C. And sentenced to 4 years' R. I. Each and a fine of ,000 or in default to undergo 3 months' R. I. Half of the fine was ordered paid to the heirs of the deceased as compensation.
' The appeal filed by the aforementioned accused and the connected reference shall be disposed of by this order.
' The prosecution case is that Abdul Ghafoor appellant was in the payment of Zafar Iqbal Hamid C.
W.
1. On receiving complaint about rale activities of Abdul Ghafoor. And Zafar Iqbal Hamid decided to se with his services and employed Sufi Allah Ditta deceased. He was yet over the charge when Abdul Ghafoor appellant came to know of this e. Abdul Ghafoor appellant who was carrying on with Mst. Saddan of Manzoor Hussain appellant thought that in case he is removed service he would lose the opportunity of prosecuting lover intrigue with Saddan. Accordingly, he decided to do away with the deceased. He ached Ghulam Muhammad and Manzoor appellants and hired them ordering Allah Ditta deceased on payment of Rs, 1,000 to each of them. Muhammad Iqbal approver was also joined in the plot.
' On 29-9-1978 at 9-10 a.m. Abdul Ghafoor appellant asked the deceased take over the charge from him and on that pretext took him to his kotha. The other appellants and the approver followed him. On going into the kotha Abdul Ghafoor clasped the deceased, Ghulam Muhammad appellant inflicted knife blows on- him followed by hatchet es by Manzoor Hussain. The deceased fell injured and died there and Abdul Ghafoor removed his wrist-watch, Ghulam Muhammad took out his purse while Manzoor Hussain removed his ring. The approver dug a pit with a kassi. Abdul Ghafoor wrapped the dead body in a khais and buried the dead body in the courtyard of the said dera.
' When the deceased did not turn up for 7/8 days his step-brother Wahid Bakhsh P. W. 10 contacted Zafar lqbal Hamid at his land in Jungle Bhera. The latter told him that he had not seen the deceased for the last 7/8 days and he was under the impression that he had gone to his house.
Wahid Bakhsh then started his search. After about 20/21 days he met Muhammad Iqbal approver who after some pursuation disclosed about the murder of Sufi Allah Ditta and furnished the aforementioned details. Wahid Bakhsh reported the matter to the police by lodging the F. I. R. Exh. P.
S. At P. S. Mumtazabad, Multan on 21-10-1978.
3. After recording the F. I. R. S. I. Safdar Hussain P. W. 11 recovered the dead body of Allah Ditta deceased at the pointation of Muhammad Iqbal. Approver. He prepared the inquest report Exh. P. C.
And the injury statement Exh. P. D. And got the post-mortem examination conducted. Muhammad Iqbal approver led to the recovery of Kassi P. 9 on 22-10-1978 through memo. Exh. P. M.
' On 9-11-1978 the S. I. Arrested the appellants. Pistol P. 5 alongwith live cartridge P. 6 and P. 7 were recovered from the possession of Abdul Ghafoor through memo. Exh. P. H. Wrist watch belonging to the deceased which was on the left wrist of Abdul Ghafoor was also taken into possession through memo. Exh. P. J. Manzoor Hussain appellant produced blood-stained hatchet P. 1 through memo.
Exb. P. N. Ring P. 11 belonging to the deseased was also recovered from his personal search through memo. Exh. P.
0. On the same day viz. 9-11-1978 Ghulam Muhammad produced blood-stained knife P. 2 through memo. Exh. P. Q. Purse P. 13 of the deceased containing currency notes of Rs, 7 was also recovered from his possession through memo. Exh. P. R. After completing the investigation he challaned the appellants.
' The hatchet and knife recovered at the instance of Manzoor Hussain and Ghulam Muhammad appellants were sent for chemical examination. According to the Serologist human blood was found on them..
4. Dr. Allah Nawaz Khan PW.1 conducted the post-mortem examination on the dead body of Sufi Allah Ditta deceased in the courtyard of Zafar Iqbal C. W. 1 and found the following injuries thereon :-
(1) Stab wound 2' x 1' chest cavity deep above the left nipple. On dissection knife had passed from costal space and injured the pleurae, left lung through and through then cut the pericardium and left ventrical.
(2) Stab wound 3-4" x chest cavity deep on the right side of chest medial to the right nipple. On dissection weapon was passed from the third subcostal space, cut the right pleurae and lung at the level of upper lobe.
(3) Stab wound x x skin deep on the right side of chest just above the right nipple.
(4) An incised wound skin deep on the apigastric region.
(5) An incised wound skin deep on the right side of the abdomen below the rib margin.
(6) An incised wound ex r x skin deep on the left side of abdomen below the rib margin.
(7) An incised wound on the flap of skin on the back of neck.
' Death was due to Injuries Nos. I and 2 which were sufficient to cause death. All the injuries were ante-mortem and caused with sharp-pointed weapon. Time between injuries and death was immediate and that between death and post-mortem report about 3 weeks. Exh. P. B. Is the post- mortem report while Exh. P. B./1 is the diagram showing the locale of the injuries. According to him Injury No, 7 could also be caused by hatchet P.
1.
5. The appellants pleaded not guilty to the charge and denied the prosecution allegations and stated to have been falsely implicated. They did not call any evidence in defence.
6. The prosecution examined Muhammad Iqbal P. W. 2 approver who deposed about the occurrence. Muhammad Ramzan P. W. 7, Ghulam Muhammad P. W. 8 and Muhammad Shafi P. W. 9 proved the recoveries from the appellants. Wahid Bakhsh P. W. 10 who is a step-brother of the deceased is complainant in the case. He lodged the F. I. R. On learning about the occurrence through Muhammad lqbal approver. S.
1. Safdar Hussain P. W. 11 investigated the case. Zafar lqbal was examined as C. W.
1. Abdul Ghafoor appellant and the deceased were in his employment at the relevant time. He also deposed about the motive.
7. Relying upon the evidence of the approver and the recovery witnesses, the learned Sessions Judge convicted and sentenced them as stated above.
8. Criticising the judgment the learned counsel for the appellants contends that the conviction of the appellants is against the weight of evidence and there are material discrepancies in the evidence which have been ignored by the learned trial Court, that the motive is improbable and that the approve's statement is not sufficient to sustain the conviction of the appellants. His evidence is assailed on the following grounds, that it is exculpatory ; that the Magistrate who recorded the statement of the approver was neither cited nor appeared at the trial and thus the statement recorded by him was not duly proved ; that the original statement of the approver recorded by the Magistrate was not proved or brought on the record ; that the pardon was not tendered in accordance with law ; no warning was administered to him nor were the conditions on which the pardon was granted were set-forth in the order ; that the approver's statement is full of material contradictions ; that there is absolutely no corroboration of his testimony ; and that there was a long interval between the arrest of the approver and tender of pardon to him which adversely affects his credibility. He was arrested on 22-10-1978, was granted pardon on 9-i0-1979 and his statement was recorded on 21-10-4979. The recoveries from the appellants had already been effected when his statement asi, approved was recorded. The recoveries were effected on 941-1978-while the approver's statement was ,recorded on 21-10-1979. Thus, the recoveries in the circumstance of the case cannot be used in corroboration of the approver's testimony.
9. According to the approver Abdul Ghafoor appellant removed the wrist-watch of the deceased/after he was done to death while Ghulam Muhammad deprived him of his purse, Manzoor Hussain appellant removed silver ring from his finger. After recovery of these articles the prosecution was obliged to prove that these, in fact, belonged to the deceased but no evidence was led to this effect. Wahid Baksh step-brother of the deceased who is also a complainant in the case denied having seen the said article's earlier, ' According to the prosecution, wrist-watch P. 8, ring P. 11 and purse P. 13 of the deceased were recovered from Abdul Ghafoor, Manzoor Hussain and Ghulam Muhammad appellants respectively during their personal search at the time of their arrest. It does not appeal to reason that they would have kept the said articles with them for such a long time when they could have easily disposed them of without any let or hindrance. Since it was a blind murder, the appellants would not have carried the articles of the deceased of insignificant value with them last it should connect them with his murder. The recovery of revolver at the instance of Abdul Ghafoor has no bearing on the case because it is not connected with the offence. It is no nobody's case that Abdul Ghafoor had used it during, the occurrence nor was any fire-arm injury found on the body of the deceased.
Likewise the recovery of the hatchet at the instance of Manzoor Hussain appellant also does not advance the case of the prosecution because none of the injuries found on the person of the deceased is characteristic of hatchet wounds. The production of blood-stained knife P. 2 at the instance of Ghulam Muhammad before the police on 9-11-1978 is also not convincing. The occurrence took place on 29.9-1978 while the knife was produced by Ghulam Muhammad on 9-11- 1978. He had sufficient time at his disposal to dispose it of and could not be expected to have kept it in his possession particularly when it was blood-stained.It is well-settled that mere recoveries of blood-stained articles are not by themselves enough to link the accused with the murder. A The circumstance that knife and hatchet were found to be stained with human blood also loses its value because of the delay taking place in the recovery and sending them to the office of chemical examiner. The recoveries were effected on 9-11-1978 whereas the recovered articles were sent to the chemical B examiner on 7-1-1979. No plausible explanation has been given by the, prosecution to meet this delay.
10. The approver's statement is full of material contradictions and inconsistencies from top to toe.
He stated before the Magistrate in Exh. D. A. That he was also joined by the accused in the plan of doing away with the deceased, he was carrying a kassi when the deceased was taken by Abdul Ghafoor to the residential Kotha on the pretext of settling accounts. He (the approver) dug a pit in which the dead body was buried but in the statement at the trial he took a somersault and stated that he was putting fodder to the buffaloes when Abdul Ghafoor called him in and on going near he saw him clasping the deceased in his arms while Ghulam Muhammad and Manzoor were inflicting injuries on him. He was caught hold of by Abdul Ghafoor and warned not to speak. Abdul Ghafoor and Ghulam Muhammad took him to a room and wanted to kill him, but released him with great difficulty on entreaties made by him. According to him after the dead body was buried in a ditch the three appellants took him inside the room and threatened to kill him if he disclosed the occurrence to anybody. He further Went on to say that they had kept him zonfined for 24 days and kept supervision over him and used to accompany him wherever he went. But at the trial he categorically denied being a party to the scheme of murder or having been consulted by the appellants or having any knowledge of the plan of the appellants to kill the deceased till the start of the actual incident. According to his own showing he had no previous acquaintance with Ghulam Muhammad and Manzoor Hussain appellants and came to know of them only 4/5 days prior to the occurrence. His knowledge about the illicit intimacy between Abdul Gharfoor and the mother of Manzoor Hussain can be judged by the estimate of the age of Mst. Saddan as given by him at the trial. According to him she must be aged about 25 years. It is ridiculous and hard to believe because Manzoor Hussain himself is aged 24 years of age. According to him he had stated before the Magistrate that it was the employer of Abdul Ghafoor appellant who had come to know of the illicit relation between Abdul Ghafoor and mother of Manzoor Hussain appellant and as such wanted to remove Abdul Ghafoor from his service and had employed the deceased as Munshi in place of Abdul Ghafoor but he did not mention this in his statement' Exh. D. A. Before the Magistrate.
In the said statement there is no mention at all of Zafar lqbal C. W. 1 coming to know of the illicit intimacy between Abdul Ghafoor and mother of Manzoor Hussain and his removal from service on that score. There seems to be no reason for Abdul Ghafoor appellant taking this man into confidence. According to him Abdul Ghafoor was having a revolver. If that was so he could have very easily himself murdered the deceased without seeking anybody's help. It passes over comprehension as for what purpose the approver was associated in the occurrence. He was not any hurdle or obstacle in their way without whose help they could not achieve their mission and after joining them what aid they received from him i. e. Of digging the pit only which was not a very big task that could not be performed by them. Furthermore, he does not ascribe any part to himself in the commission of offence except to dig the pit after the murder had been committed and that too not willingly but under threat of the appellants.
11. As regards the motive the prosecution case is that the appellant Abdul Ghafoor was carrying on with the mother of Manzoor Hussain and wanted to remove Sufi Allah Ditta deceased from his way because if he had come in the service of Zafar !Cabal there would not have been any opportunity to him to meet the mother of Manzoor Hussain. It is not understandable how in these circumetances Manzoor Hussain could join hands with Abdul Ghafoor. He could not be party to the illicit relations of his mother with Abdul Ghafoor appellant nor could he expected to be completely ignorant of it when it had become so widely known. There is no corroboration of the approver's testimony that Manzoor Hussain was paid Rs, 1,000 by Abdul Ghafoor for participating in the occurrence. According to the prosecution it was Abdul Ghafoor appellant who wanted to do away with the deceased but strangely he is not said to have caused any injury to the deceased though he was armed with a revolver at the relevant time and confined himself only to holding the deceased in Japha. The story of the approver's being detained or closely supervised by the appellants has been introduced with a view to meeting the objection of his not coming forward soon after the occurrence. This is an improvement made by him which does not find mention in his statement Exh. D. A.
12. In the course of judicial precedents, a rule of prudence has bee evolved under which it is always insisted that there ought to be independent corroboration of an approver's statement on material points suggesting link between the crime and the accused before such a statement can be accepted as a' safe foundation for conviction. An approver who is a self-confessed criminal gives his evidence under a promise of pardon that I he deposes against those with whom he had acted criminally he would be let off. The very fact that he had participated in the commission of offence introduces a serious stain on his evidence and the Courts are general! Reluctant to act on such tainted evidence unless corroborated in material particulars by other independent evidence. The corroboration required by the rule is corroboration by some independent circumstance and not by-a circumstance itself requiring corroboration because the tainted evidence is not made better by being double in quantity and it is well-settled that when there are two sets of evidence, each requiring corroboration, one cannot be used to corroborate the other.
13. A person who merely associates in removing or disposing of the-body of the deceased without being privy to the offence of murder cannot be said to be an accomplice. The accomplice is a genuine participator in the offence. His evidence is admitted out of necessity because without having recourse to his evidence it is impossible to bring the principal offenders to justice.
' In Abdul Majid and another v. The State (1), it was observed that :- "There is in the evidence of accomplices) always danger of substitution of the guilty by the innocent...And it is realised. That it would be extremely risky to act upon the statement of a self- confessed criminal who while trying to save his own skin, might be unscrupulous enough to accept
(the) suggestions of others to inculpate a person unconnected with crime in place of his real accomplice for whom he may have a. Soft corner."
' In the present case the dead body had already been recovered, the post-mortem examination performed and the recoveries effected when the approver's statement was recorded and in this view of the matter these circumstances cannot be said to provide the required corroboration to the approver's testimony. There is no identification of the articles recovered from the appellants.
None of the witnesses state that these belonged to the deceased. The approver was made to the toe line or facts which were already in the notice of the police. Hence it would be highly unsafe to act upon his evidence.
14. Having considered all the pros and cons of the case we are of the opinion that the prosecution has not been able to prove the case against the appellants beyond all reasonable doubt.
Consequently we accept the appeal, set aside their conviction and sentence and acquit them of the charges. They shall be released forthwith if not required in any other case.
15. We shall be failing in our duty if we do not point out that the learned Sessions Judge, Multan did not record any reasons whatsoever for the grant of pardon: The pardon is only granted for success of the case and that without the pardon being granted the case of the prosecution would The pardon was granted not at the instance of approver himself but at the behest of his father. The learned Sessions Judge granted the application mechanically without applying his mind by just recording the word (allowed). The learned Sessions Judge failed to note that pardon could only be granted to a person on the condition of his making a full and true disclosure of the whole of the circumstance within his knowledge relevant to the offence. This necessarily implies an offer by a person privy to the offence to make full and true disclosure of the circumstances leading to the occurrence and not by any other person acting for his benefit. No conditions were set forth by the learned Sessions Judge on which the pardon had been granted. It is only in exceptional cases that pardon is granted to an accomplice. And this power had to be exercised with great care and caution and on ample grounds and in case of extreme necessity. But the learned Sessions Judge did not consider the matter in accordance with law nor followed the guiding principle laid down by the superior Courts in this behalf.
(1) PLD 1973 SC 595