1. SALAHUDDIN AHMED, J.-This appeal by special leave is from the order of a Division Bench of the Lahore High Court, maintaining the convictions of the appellants under sections 302 and 460 read with section 34 of the Pakistan Penal Code, and the sentences of death passed on appellant Abdul Majid on two counts on the first charge, and the sentences of transportation for life on two counts, on the first charge passed on appellant No. 2, and the sentence of seven years' R. I. And a fine of Rs.
2. 500 each on both the appellants on the second charge. The death sentence passed on Abdul Majid was confirmed by the High Court.
3. Leave was granted to consider whether the convictions of the appellants, on the basis of the evidence of the approver alone, were in accordance with the principles that have from time to time been laid down by this Court for the safe dispensa--petition of criminal justice in general and the appraisal of an approver's evidence in particular.
4. The appellant along with two other persons, namely, Muhammad Sarwar and Qadir Hussain were tried by the Additional Sessions Judge, Layallpur, inter alia, on charges under sections 302, 4;.0 and 307 read with section 34 of the Pakistan Penal Code, and while Qadir Hussain vas acquitted of all the charges the other three including the two appellant; were convicted on two counts under section 302/34, P. P. C. And appellant Aslam was sentenced thereunder to transportation for life and appellant Abdul Majid, and co-accused Muhammad Sarwar were each sentenced to death.
5. All the convicts were further sentenced under section 460/34, P. P. C. To seven years' R. I. And a fine of Rs. 500 each or further imprisonment for six months in default of payment of fine. They were acquitted of the charge under section 307/34, P. P. C.
6. The High Court acquitted Muhammad Sarwar of all the charges but maintained the convictions and sentences of the two appellants on both charges as mentioned already.
7. The two appellants have been convicted for causing the death of two brothers, Fazal Muhammad and Bootay Khan, and for committing lurking house trespass. The occurrence took place at about 11-45 pm. On the 22nd April 1966. The first information Report was lodged at the Factory Area Police Station situated about 21 miles away from the place of occurrence by P. W. 10, Abdur Rashid on the 23rd April 1966 at 1-15 a.m. P. W. Abdur Rashid, who lived only 20/25 karams; away from the place of occurrence, and had been asleep in his ,courtyard, was attracted towards the house of the deceased persons by hearing the reports of gunshots coming from that direction. When he arrived there he found three other persons, namely, Iqbal P. W. 11, his brother Irshad, P. W. 12, and one Maqbool Ahmad (not a witness) present. P. W. Abdur Rashidhad a torch with him, and he flashed at the four persons who had just descended in the lane after having scaled over the wall of the house of occurrence. He noticed that three of them were of medium stature and one of them, who was a little taller, was carrying a 303 rifle in his hand. Two of the rest were carrying a revolver and a shot- gun each. He could not notice whether the remaining one carried any weapon. P. Ws. Iqbal and Irshad, the two brothers also saw the intruders in the light of the torch flashed by P. W. Abdur Rashid. The culprits fired with their weapons but these three witnesses took shelter, and none of them was hurt. The witnesses went into the house of the deceased and found there P. W. 9 Mst.
8. Zainab Bibi, aged about 70/72 years. Mst. Zainab Bibi told the three witnesses that she had seen the occurrence and the culprits in the light of the lamp. P. W. Abdur Rashid, Muhammad Iqbal and Irshad did not name the accused persons but claimed that they had seen them and would be able to identify them if they saw them again. It may be mentioned at this stage that the torch of P. W.
9. Abdur Rashid and the lamp said to be burning at the time of the occurrence were seized by the police. It however, appears that the torch could not be produced before the trial Court as it was missing.
10. The statement of P. W. Abdur Rashid, was recorded by the police the same night. In course of the preliminary investigations several empties of '32 bore and of '303 calibre was recovered both from the place of occurrence and the road outside. In addition to these, some fired bullets of '32 bore, a fired bullet of '303 and four rounds of '303 bore were also recovered.
11. The culprits remained untraced for a year and a half, and a clue was furnished for the first time to the police In course of investigations of another dacoit committed on the 21st October 1967. In Chak No. 34/JB, Police Station Satiana. The two appellants and the co-accused, Sarwar were arrested in connection with the Satiana dacoit by S.H.O. Police Station Satiana from Jhal Khanuana locality In Layallpur on the 9th November 1967. At the time of their arrest Abdul Majid was carrying a stun-gun and a canvas bag containing two magazines, one filler and 30 live bullets and Sarwar had a revolver hidden within the fold of his loin cloth. A week later, appellant Majid, it is said, also led to the recovery of a rifle with ten live bullets from inside his house.
12. The appellants were formally shown as arrested in the present case on the 22nd November 1967.
13. Co-accused Qadis Hussain eras arrested a week later on the 28th November 1967. The approver H.
14. W. 1 Muhammad Ahmad, surrendered himself to the police in connection with the present case. His father was the complainant in the Satiana dacoity case. The approver was tendered pardon under section 337 of the Criminal Procedure Code by the Additional District Magistrate, Layallpur, on the 8th December 1967.
15. The appellants along with two other accused persons including the approver were put up for test identification held by Raja Aqeel Ullah, Magistrate First Class, on the 1 December 1967. P. Ws. Abdur Rashid and Irshad identified all the accused. Iqbal could not identify the appellant Majid, but identified the other three accused. Mst. Zainab Bibi does not appear to have been asked to attend the test identification parade.st According to the Fire Arms Expert, P. W. 14, out of the empties recovered from the place of occurrence, two of them of *303 calibre matched the rifle recovered at the instance of appellant Abdul Majid. None of the other empties matched any other weapon.
16. The High Court found it difficult to accept the testimony of the eyewitnesses or their identification of the culprits based on a momentary glimpse of the culprits in the flash of a torch. The test identification parade was also found to be not helpful as the possibility of the accused having been shown to the witnesses by the police prior to the parade could not be ruled out. Most of the recoveries were also not relied on. The High Court however, relied on the testimony of the approver as corroborated by the matching of the two empties with the rifle recovered at the instance of Abdul Majid, for maintaining the convictions of appellants Abdul Majid and Muhammad Aslam.
17. Mr. Ijaz Hussain Batalvi, learned counsel appearing on behalf of the appellants, has contended that having regard to the circumstances under which the approver came forward to surrender himself as an accused in the present case, and turned approver cast a serious doubt on his bona fides.
18. Furthermore, his testimony was not corroborated by the medical evidence end had been found to be false in respect of two other accused persons and therefore it was not safe to rely on his evidence for the purpose of maintaining the conviction of the appellants. In this context the learned counsel has also contended that the presence of the approver alters the prosecution version inas- -much as while the approver spoke about five culprits, the con--sistent evidence of the ether witnesses as well as the First Information Report is that there were only four culprits. The presence of the approver was therefore, doubtful.
19. It may have been noticed that before the approver surrendered himself the appellants and the other accused persons had already beers arrested and were examined by the police. Thus it is likely that the approver was under the impression that his complicity in the present case could no longer retrain a secret, and he bad little chance to escape arrest and trial. Stating the circumstances tinder which he gave himself up and turned an approver, P. W. Muhammad Ahmad (the approver) said as follows :--- "My father was not known to Malik Ghulam Haider D. S. P. My father and I had gone direct to Malik Ghulam Haider D. S. P. As we believed that this would be an excuse for my being pardoned. It is correct that when we went before Malik Ghulam Haider D. S. P. I represented to him that I would disclose to him all the facts provided he would save me. He promised to do this. I then disclosed the facts of this case to the D. S. P. And appeared before the D. S. P. At his office. He was alone and I do not remember if what I stated before was recorded by him or not. After I made the above disclosure to the D. S. P. He permitted me to go and directed me to come on the next day when he would do something about it. On the next day I came along with my father to the D. S. P. And the latter handed me to the Sub Inspector who recorded my statement. After this and till my arrest before making my statement before Ch. Muhammad Siddique I was free to go wherever I wanted during nights. It is incorrect that I had not disclosed the true facts on the very first day. Two or three days after I had gone to the jail I learnt that one would be saved by becoming an approver and I also came to know that there was separate arrangement for the confinement of approvers in jail and they were well looked after. On a particular date I was passing by the office of Malik Ghulam Haider, D. S. P. By chance in custody of the police when I saw him coming out of his office and enter a jeep. It was there that I requested him to make me an approver in this case. I do not remember if before offering myself as an approver I had been identified by the eye-witnesses in jail and my tracks had also been identified by the; tracker in jail before a Magistrate. It is incorrect that I realised that all the evidence against me had been collected but my faher who was previously known to Malik Ghulam Haider approached him and I became an approver falsely."
20. However as the case rests mainly on the evidence of the approver his evidence requires a careful scrutiny, and can only be accepted if it is supported in material particulars by other reliable evidence. I have, therefore, subjected his evidence to a close scrutiny and have found that he has been corroborated on several material particulars. Before, however, I go into these details it will be profitable to mention here the kind of corrobora--petition that is required in the case of an accomplice.
21. This rule of corroboration was accepted as a rule of practice which bad become a rule of law by the Privy Council in Mahadeo v. Emperor (40 C W N 1164).
22. PLD 1954 FC 335), it was held by the majority of the Judges that the prosecution was required to produce such reliable independent evidence as showed or tended to show that that part of the approver's testimony wherein he stated that the prisoner was one of the persons who took part in the commission of the crime was true. Standing by itself the corroborative evidence may not be incriminating at all and may be susceptible to an entirely innocent explanation but considered with the story of the approver it may produce on the mind of the Court or the Jury a profound conviction that the accuse I must have acted in the manner alleged by the approver. The corroboration relied on was the recovery of the victim's body at the instance of the convict PLD 1955 FC 152), it was held as under: - "The rule that insists on corroboration of the approver's evidence does not require that corroboration must be on all the particulars of the story, nor that there must be corrobora--petition on that part of the story of the accomplice to which he implicates himself. If the independent evidence produced in corroboration tends to show that the persons named by him were parties to the commission of the offence charged, the Court is entitled to accept his evidence even though there be no corroboration against the accomplice himself."
23. "The extent and nature of corroboration of the testimony of an accomplice may vary from casa to case. The rule of practice requiring corroboration of the evidence of the accomplice is that the corroboration must be in respect of some material particulars implicating the accused, and it is not necessary that evidence of the accomplice should bell corroborated in every detail of the crime. The rule as regards corroboration of the testimony of an accomplice, as stated by this Court in the case of Ghulam Qadir v. State PLD 1959 SC (Pak.) 377 is as follows: As a matter of strict law, the uncorroborated testimony of an accomplice could, if accepted, form the basis of a conviction in a criminal case. However, in the course of judicial precedents, a rule of prudence has been evolved under which it is always insisted that there ought to be independent corroboration of an approver's statement on material points suggesting a link between accused persons and the crime before such a statement could be accepted as a safe foundation for their conviction. The reason for the rule is obvious. There is always danger of substitution of the guilty by the innocent in such cases and it is realized 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 suggestion of other to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner. But the corroboration required would depend on the facts and circumstances of each particular case and no hard and fast rules can be laid down in this behalf."
24. The corroboration relied on was the recovery of a knife stained with human blood from an uninhabited dark room at the instance of the accused.
25. Bearing in mind the principle laid down for the corroboration of the evidence of an accomplice, I now proceed to consider the corroboration that has been furnished in the present case from independent and reliable sources.
26. The approver has stated that Aslam accused was armed with a rifle, and Majid accused with a sten-gun. He has further stated that after the occurrence all the accused persons went to the house of Abdul Majid and stored their fire-arms in his house. These have been corroborated by the recovery of a rifle at the instance of Abdul Majid from his house. That this rifle was used in the present occurrence has been proved by the matching of two 303 empties recovered from the place of occurrence with the rifle. The approver has also stated that only four persons had entered the house of appellant and that at first only two of them namely. Aslam and Sarwar went into the house by having scaled over the wall and subsequently the approver and appellant Abdul Majid entered the house in the same manner for the rescue and help of Aslam and Sarwar. P. W. Mst.
27. Zainab Bibi, mother of the two deceased whose presence in the house cannot be doubted, has fully supported these facts. She said that at first two of the culprits entered the house and whsle they grappled with her two sons the culprits cried for help, which brought into the house their two com-- panions Again the approver said that the night was dark, and a lamp was burning inside the house.
28. The existence of the light is amply corroborated not only by P. W. Mst. Zainab Bibi but also by the recovery of the lamp from the house by the police in course of the preliminary investigations. The approver further stated that the deceased persons were killed by Majid and Sarwar with their respective weapons Le. Sten-gun and a pistol. He stated that Aslam was armed with a rifle. These facts are corroborated by the recovery of a sten-gun from appellant Abdul Majid when he was first arrested in connection with the Satiana dacoity case, and the subsequent recovery of a rifle from his house. The medical evidence also supports the fact that the deceased was injured in the manner stated by the approver. P. W. 22, Dr. Ahmad Ghulam Muhammad, Medical Officer, D. H. Q.
29. Layallpur, who held the post-mortem examination on the dead body of Faza1 Muhammad, found same abrasions and, inter allay, the following injuries:
(1) (a) A gunshot would -- '' x 3/8 '' going inside the abdomen situated on the right flank, -- " above the iliac crest. It was the wound of entry.
(b) A gunshot wound 7/8" x 5/8' situated on the left side of the abdomen 1 -- " from the middle line and 3' above the umbilicus. It was the wound of exit.
(2) (a) A gunshot wound -- ' x -- ' along inside the leg situated on the right leg 6' above the ankle. It was the wound of entry.
(b) A gunshot wound which was the wound of exit 3/8" x -- ' situated on the Inner aspect of the right leg 2' above the ankle joint.
30. On opening the abdomen the doctor found the following damage:
(a) Peritoneum.--It was found torn and blood was present in its cavity.
(b) Stomach.-There was a wound 2 -- '' x 2'. It was empty.
(c) Large intestine.-There was a wound 5" x 3'.
(d) Liver.-There was a wound 4" x 3" in the lower part.
31. It, therefore, appears that injury No. 1(b) might be the result of firing from a step-gun and injuries Nos. 1(a) and 2(a) of a pistol. The contention in this context that it was not possible to use the sten- gun is such a manner as to release only one or two shots does not appear to be substantial. The approver has then proceeded to say that they all came out of the house by scaling the wall and a number of residents of the village were attracted to the place due to the firing and a torch light was flashed at them and that the approver and his companions fired at the residents. On this point the evidence of P. Ws. Abdul Rashid, Irshad and Iqbal, who are close neighbors of the deceased and were naturally attracted to the place of occurrence on account of firing, fully corroborate the approver. Even if the identification of the culprit by these witnesses is left out of consideration, their evidence is sufficient to corroborate the approver. P. W. Mst. Zainab Bibi also corroborated the approver that accused Qadir had given the information about the presence of a large amount of money in the house of occurrence, and that he had suggested to commit dacoity in the house.
32. It has next been contended that as the evidence of approver has not been found acceptable so far as the acquitted persons were soncerned, it should sot have been relied on for the purpose of convicting the two appellants. This contention falls to notice certain distinguishing features In the case of appellants, which were lacking in the case of the acquitted ac.-used persons. The recovery of a gun from the house of appellant Abdul Majid and its matching with the two empties of 303 bore recovered from the place of occurrence convincingly proved the implication of both the appellants.
33. As regards the difference in the number of culprits as disclosed by the approver vie., five and as disclosed in the F. I. R. And the evidence of other eye-witnesses vie., four, I may say that this difference serves to prove that these witnesses have spoken the truth and spoke about things which they actually saw, and they were not tutored. The approver said that Qadir left his companions after having pointed out to them the house where dacoity was to be committed.
34. As regards the High Court's rejection of the evidence of identification furnished by P. Ws. Abdur Rashid, Irshad and Iqbal, it may be pointed out that except the complaint made by the accused persons before the Magistrate at the time of the identification parade that they had been kept at the Police Station for 15 to 20 days and had been shown to the witnesses during this time there is nothing on record to show that the accused had been shown to the identifying witnesses. The suggestion that the accused persons had been shown to the witnesses has been categorically denied by them. Such suggestion was not put to any of the police officers who have been examined in the case. The identifying witnesses were natural witnesses and had no reason to falsely implicate the appellants or the approver. The witnesses have corroborated one another. The seizure of torch-light has been fully corroborated by reliable evidence including the memorandum of seizure. As regards their capacity to recognize the culprits in the flash of the torch-light the evidence is clear that P. W. Abdur Rashid flashed his torch immediately when he saw the accused persons descending on the lane after they had scaled the wall of tie house of occurrence, and the light was kept on for sometime. Besides this is not a case where the convictions of the appellant have been maintained solely on the identification furnished by the three identifying witnesses. The evidence of identification has been relied on by the prosecution for the purpose of corroborating the approver only. The fact that even after the lapse of along time all the three identifying witnesses succeeded in identifying the appellants at a test identification parade held by a Magistrate is itself a strong circumstance in favour of the truth of their identification. These witnesses had no reason to falsely implicate the appellants and the approver. It has not been suggested to them that they had any connection with the deceased party. In these circum-- stances there appeared little justification on the part of the High Court to disagree with the trial Court in regard to the latter's reliance on the evidence of identification.
35. It is also contended that in the absence of anything to show that a dacoity was committed the very basis of the prosecution case must be held to have disappeared. It is true that although the witnesses were under the Impression that the house of the deceased persons had been attacked with a view to commit dacoity, no theft appeared to have been committed. It appears, however, that owing to the raising of the timely alarm by P. W. Mst. Zainab Bibi, and the rather determined resistance given by the two deceased persons and the timely arrival of the neighbours the original plan to commit dacoity failed. Nevertheless the fact remains that two persons were killed inside the house and the appellants have been proved to have killed them.
36. It has been further contended that as the offence under section 460 of the Code of Criminal Procedure Includes the causing of death to a person In course of the committing of the house trespass the appellants could not be convicted for murder in addition to their convictions under section 460. I am unable to agree with the contention. If upon the facts proved by the prosecution more than one offence has been committed by the, accused he can be charged with and convicted of all the offences which he committed in course of the same transaction.
37. I do not find any substance in this appeal and It is accordingly dismissed.
38. MUHAMMAD YAQOOB ALI, ACTG. C. J.-I agree.
39. WAHEEDUDDIN AHMAD, J.-I agree.