' MIAN BURHANUDD1N KHAN, J.-Muhammad Umar, accused/appellant alongwith Mulazim Hussain aged 25/26 years and Nazar Hussain aged 18 years, was tried under sections 302/34 and 394/34, P.
P. C. For committing the murder of Sufi Muhammad Yusuf at 11 p.m. On 16-4-1978 in the area of Chak No, I3/BC between 7th and 8th mile from Bahawalpur by the learned Sessions Judge, Bahawalpur. They were found guilty. Muhammad Umar and Mulazim Hussain were sentenced to death under sections 302/34, P. P. C. And a fine of Rs, 2,000 (rupees two thousand) each or in default to two years' R. I. Death sentences were subject to confirmation by High Court. Nazar Hussain, due to his young age, was sentenced to imprisonment for life under section 302/34, P. P. C.
And a fine of Rs, 1,000 (rupees one thousand) or in default to further R. I. For one year. All the three accused were found guilty under section 394/34, P. P. C. And were sentenced to imprisonment for life and fine of Rs, 2,000 (rupees two thousand) each or in default to two years' R. I. Each. The convicts filed appeal in the Lahore High Court against their conviction and sentence, and the Murder Reference of Muhammad Umar and Mulazim Hussain were also heard by the High Court.
The learned Judge, vide the impugned judgment dated 29th October, 1960 set aside the conviction and sentence of Mulazim Hussain and Nazar Hussain under section 302/34, P. P. C. Death sentence of Mulazinl Hussain was thus not confirmed. Their conviction under section 394/34, P. P. C. Was maintained but the sentence was reduced to ten years' R. I. Each with fine of Rs, 2,000 (rupees two thousand), the amount, if recovered, was ordered to be paid to the legal heirs of the deceased Sufi Muhammad Yusuf under section 544-A, Cr. P. C.
Leave against the judgment of the High Court was granted by this Court vide order dated 6-6-1981, to consider the value to be attached to the eye-witness account furnished in the case, and also as to what is the validity A and force of the statement of the accomplice who first confessed his guilt but after a few months applied to be granted pardon and made an approver ; and that the eye- witness account given by Abdul Majid complainant was rejected by the High Court. It was also to be seen as to how far the other eye-witnesses were able to identify the accused persons.
2. According to the prosecution, Sufi Muhammad Yusuf deceased resident of Chak No, 97/6/R Sahiwal, the uncle of Abdul Majid complainant P. W. 9 had come to Chak No, 41/DB Tehsil and District Bahawalpur. He, alongwith the complainant Abdul Majid, started on motorcycle No, BR. 6835 from the Chak for Bahawalpur via Yazman-Bahawalpur Road at about 10-30 p.m. On 16-4-1978.
When they reached between the 7th and 8th mile from Bahawalpur at about 11 p.m. In the area of Chak No, 13/BC they saw on the road four persons two of whom were standing apart from the other two persons who attempted to stop the motorcycle of the deceased. The deceased who was driving the motorcycle slowed down but still continued proceeding ; a hatchet blow was given in the left side of the chest of the deceased who fell down alongwith the motorcycle and died instantaneously. Abdul Majid complainant raised alarm while Nazir Ahmad P. W. 12 and Amanat Ali P. W. 13 of Chak No, 41 who were following the motorcycle of the deceased, on another motorcycle, reached the spot ; on seeing them the assailants ran away towards the west. Leaving Nazir Ahmad and Amanat Ali at the spot Abdul Majid complainant went to the police station and lodged the F. I.
R. Exh. P. G. The same night (i,e, 1-30 a.m. On 17-4-1978) which was recorded by Ch. Nazir Ahmad S. H.
0.
3. In the aforesaid report the complainant stated that on the night of occurrence he was proceeding from Chak No, 41/DB East towards Bahawalpur on motorcycle No, BR-6835 which was being driven by Sufi Muhammad Yusuf deceased ; when they reached between 7th and 8th mile on the Bahawalpur Road he saw two persons wearing Chaddars and shirts and were holding Lathis in their bands. These two persons asked the deceased to stop the motorcycle but out of fear the deceased could the balance and slowed down and in this slow process he may have gone 20/25 Karams when two other persons Just came in the middle of the road ; stopped the deceased and saying that he was the same person, raised a Lalkara that he should not be allowed to escape whereupon one of them a stout man of medium height dealt a blow with Vohil (hatchet) on the chest of the deceased. Complainant Abdul Majid stated that he saw the faces of the assailants in the light of the motorcycle, and added that Sufi Muhammad Yusuf on receipt of the blow, fell, alongwith the motorcycle, to the ground. In the meantime Nazir Ahmad and Amanat Ali residents of Chak 41/DB who were following them, also reached the spot and saw the assailants running away from the scene of occurrence, The deceased died on the spot. He further stated that he will be able to identify the culprits if they are brought before him,
4. Motive for the crime as mentioned in the F. I. R. Is that Riaz son of Ghulam Qadir and Alain son of Hayat Muhammad were in possession of land which the deceased wanted to purchase but Riaz and Alam foiled the transaction as they wanted to purchase the land for themselves.
5. It may be added that in the aforementioned F. I. R. Abdul Majid complainant gave the description of the four assailants as (a) stout, medium height, round face, wheaten complexion, (b) lean, about 5'-8" oblong face, wheaten complexion, (c) stout, medium height, oblong face dark/wheaten complexion and the fourth person (.1) was of 5'-7" oblong face and wheaten complexion ; and that all the four persons were wearing shirts and Chaddars of white colour.
6. After recording the report Ch. Nazir Ahmad S. H.
0. P. W. 17 reached the spot and found the dead body of the deceased lying on the roadside ; prepared the injury statement Exh. P. C. C., inquest report Exh. P. B. B. And sent the dead body to the mortuary for post-mortem examination. He inspected the spot, took the blood-stained earth into possession vide Memo. Exh. P. D. Motorcycle P. 6 was also taken into possession vide Memo. Exh. P. E.
And blood was taken from the motorcycle with the help of cotton vide Memo. Exh. P. E. And sealed into a parcel. He arrested Mulazim Hussain and Muhammad Umar accused/appellants on 27-4- 1978 in the area of village Rangpur when they were already under arrest with Musafir Khana Police who had arrested them in a case under section 392/397, P. P. C. They were brought to the B. V.
Hospital for medical examination as they were beaten by the public in the later case. He then arranged their identification parade under the supervision of Mr. Mansur Bajwa, Magistrate, Bahawalpur and Abdul Majid, Nazir Ahmad and Amanat Ali P. Ws. Correctly identified the two accused. On 28-4-1978 he arrested Nazar Hussain and Muhammad Javed who were also sent to Jail for the purpose of identification on that very day. Mr. Zafar Iqbal, M. I. C. Held the Identification Parade on 30-4-1978 where these two accused were also correctly identified by the P. Ws. The S. H.
0. Then obtained the physical remand of Muhammad Javed and Nazar Hussain on 3-5-1978 and of Mulazim Hussain and Muhammad Umar on 7-5-1978.
7. The Investigating Officer Ch. Nazir Ahmad took the four accused to Chak No, 13/BC on 8-5-1978 and camped along a canal bank. Muhammad Javed accused led the I.
0. To his dera in his land and pointed towards a barchha P. 9 which was taken into possession vide Memo. P. H. Thereafter Muhammad Umar accused on that very day led the I.
0. To a kotha of the dera of Javed accused and got recovered blood-stained hatchet P. 7 taken into possession vide Memo. Exh. P. F. And sealed into a parcel. Thereafter Mulazim Hussain led the I.
0. To his jhuggi in the same area where ten bullets P. 8/1-10 were recovered vide Memo. Exh. P. G.
Then Nazar Hussain led the I.
0. To the back side of kotha of Javed and bamboo stick P. 10 was recovered vide Memo. P. J. The Investigating Officer then got the site plans Exh. P. N. And P. W. I prepared and gave his notes thereon in red ink. He received the order of the District Magistrate on 22-7-1978 to produce Muhammad Javed accused before him and he complied with the order.
8. Dr. Fazle Haq, Medical Officer, B. V. Hospital P. W. 6 performed the post-mortem examination on the dead body of Sufi Muhammad Yusuf deceased on 17-4-1978 and found on (i) incised wound 7' x 2' going deep into the chest cavity, running parallel to the left clavicle cutting the lateral and of left clavicle and adjoining seven ribs to the left side of the chest, (ii) a dark brown bruised area 1.1/2"
X 1/4' on the right iliac border and (iii) bruised area brownish colour 5'x 1/2 zig-zag shape on left pleura. According to the doctor, injury (1) was caused with a sharp-edged weapon like an axe and was sufficient in the ordinary course of nature to cause death ; while the other two injuries were stated to be caused by blunt means.
9. The prosecution produced Abdul Majid P. W. 9 Nazir Ahmad P. W. 12 and Amanat All P. W. 13 who gave ocular account of the occurrence. Javed accused, while in jail, applied to the District Magistrate to be granted pardon and made an approver vide order dated 22-7-1978 pardon was tendered to him and on the order of the District Magistrate, Mehar Khizar Hayat P. W. 7 Magistrate recorded the statement Exh. P. W. Of Javed as an approver. Mansur Ahmad Bajwa, Magistrate P. W.
15 recorded the judicial confession of Javed as an accused Exh. P. U. And of Nazar Hussain accused.
Exh. P. Z. On 11-5-1978 when they volunteered to make their statements. They were produced on judicial remand and for recording their statements. The statements of the eye-witnesses namely Abdul Majid, Nazir Ahmad and Amanat All are to the effect that on the day of occurrence Abdul Majid was riding the motorcycle, driven by the deceased and the accused made the fatal attack on the deceased after he was asked to stop by them. Nazir Ahmad and Amanat All both were following the deceased and Abdul Majid on another motorcycle and they also witnessed the occurrence and supported the prosecution as regards the attack-giving a hatchet blow, to the deceased. From the statements of these eye-witnesses the guilt of the accused has been established to the extent that they participated in the commission of the offence.
10. Muhammad Javed approver P. W. 14 has given the details of the occurrence. He stated that he was arrested by the police as an accused on 28-4-1978. He moved an application Exh. P. T. To the District Magistrate through the Superintendent of Jail to be made an approver which was accepted and he was tendered pardon. He then appeared in the Court of Khizar Hayat Magistrate on 27-7- 1978 and made a statement Exh. P. M. He admitted that Mulazim Hussain and Muhammad Omar accused were known to him while Nazar Hussain was his servant. He was approached on 16-4-1978 by Mulazim Hussain and Omar accused when Nazar Hussain was also present with him. Mulazim.
Hussain told him that Sufi Muhammad Yusuf had met him at the adda of Chak No, 13 and was in possession of a big amount as he was going to purchase some land and suggested that they should rob him. After this, they started from the dera at 9/10 p.m. On the night of occurrence when Mulazim Hussain accused was armed with a pistol, Muhammad Omar with a hatchet, Nazar Hussain with a sod and he himself took a barchhi. When they reached the turn of road of Chak No, 27 on Bahawalpur Yazman Road, Mulazim Hussain and Nazar Hussain sat on Yazman side while Muhammad Omar and he went 20/25 arams from there towards Bahawaipur side. When the deceased appeared Mulazim Hussain and Nazar Hussain tried to stop his motorcycle but the rider ignored them whereupon Mulazim Hussain raised a lalkara that the person for whom they were waiting, has come and should not escape. On this Muhammad Omar gave a hatchet blow to the deceased and he gave a barchhi blow but he missed. The blow of Omar, however, hit on the chest of the deceased and he fell down alongwith his motorcycle. His companion (Abdul Majid complainant) raised an alarm and in the meantime another motorcycle carrying two persons, reached from Yazman side and on this, they ran away towards their dera. This statement of the approver was accepted as correct version of the occurrence by the learned trial Court and while discussing this evidence in paragraph 15 it is observed by the learned trial Judge in his judgment "It is clear from the statement of the Magistrate as well as his proceedings that he complied with all the formalities for recording a confessional statement, and allowed time to the approver, to think over the matter. Thereafter he recorded statement of the approver and in it he has given exactly the same details which he has given in the witness-box at the trial. Hence, I am inclined to believe the statement of the approver."
11. Nazar Hussain accused also made confessional statement Exh. P. Z. To Mr. Bajwa Magistrate. In this statement he implicated himself and the co-accused. The confession of a co-accused can be taken into consideration against all the accused in view of the provisions of sections 30 and 133 of the Evidence Act. Where a person admits guilt to the fullest extent and exposes himself to the pains and the penalties provided for his guilt, there is a guarantee for his truth and the law provides that his statement may be considered against his co-accused charged with the same crime.
12. In his confessional statement Nazar Hussain has admitted all the salient features of the case without any detraction from the main prosecution case. Therefore, the statement of the three eye- witnesses plus the approver's statement and confessional statement of Nazar Hussain taken together with the identification parade where Javed approver was correctly picked up as one of the assailants by the three eye-witnesses. Similarly, Nazar Hussain was also picked up as one of the culprits by the same witnesses. In this identification parade, as already stated, all the formalities were observed and there is no reason to discard this piece of evidence, Nazir Ahmad P.
W. Has also correctly pointed out that Muhammad Umar accused was the person who had given the hatchet blow to the deceased and Mulazim Hussain was the person who had originally come on the road and signalled the deceased to stop. Amanat Ali P. W. Has also correctly identified the accused.
13. In dealing with the question as to what amount of corroboration is required in the case of testimony given by an accomplice/approver, the Court must exercise careful discrimination and consider all the surrounding circumstances in order to arrive at a conclusion whether the facts deposed to by an accomplice/approver are borne out by those circumstances or B whether the circumstances are of such a nature that the evidence purporting to be given by the alleged accomplice/approver are supported in essential and material particulars by evidence aliunde as to facts deposed to by the accomplice/approver. As already mentioned above, the statement of the accomplice/approver is corroborated by the ocular testimony as well as the confessional statement of a co-accused namely Nazar Hussain. It may be mentioned that the learned High Court Judges have not totally discarded the evidence of Abdul Majid complainant, and in paragraph 20 of their judgment, they observed : ..In the F. I. R. Exh. P. G. Abdul Majid P. W. 9 did not state the motive as furnished by him at the trial.
Rather he pointed his finger of suspicion on Riaz and Alam who wanted to buy the land which the deceased was interested in purchasing as probable suspects. The testimony of Abdul Majid complainant P. W. 9, therefore, cannot be accepted. However, the testimony of Muhammad Javed P. W. 14 is clear and convincing on this point, and there is no reason to doubt that he would furnish a motive which was not true.................................................................................................
' Besides this, there is recovery of the weapons of offence at the instance of the accused and approver which provide further corroboration of the approver's statement and also corroborates the confessional statement of Nazar Hussain though later on retracted. Thus, we find no force in this appeal which is, accordingly, dismissed.