1. MUHAMMAD GUL, J.-This appeal by special leave is by Abdul Sattar, who was convicted by an Additional Sessions Judge for offences under sections 302, 364 and 201, P. P. C. And sentenced to life imprisonment on the first count and to 7 years' and 3 years' R. I. On the second and third counts respectively. On appeal the High Court set aside his conviction and sentence under section 201, P. P.
2. C. But maintained the same on the other two counts.
3. The appellant's conviction rests mainly on the statement of Nazir Ahmad approver. Leave was granted to consider whether the approver's evidence received sufficient corroboration from the other evidence connecting the appellant with the murder of Umid Ali deceased?
4. The appellant and Umid Ali deceased were displaced persons and were settled in Chack No. 24/G, Kot Pir Sadat in Tehsil Lodhran, District Multan. The appellant promised to give hand of his sister Mst.
5. Sharifan in marriage to Umid Ali from whom he also received some money. Subsequently, the appellant went back on his promise. Umid Ali abducted Mst. Sharifan but two months later, through the intervention of the elders of the Chak restored her to the appellant. After the restoration of Mst.
6. Sharifan. The appellant and the deceased became friends and started moving about in the company of each other. This friendship however, according to the pro--secution, was merely an affectation than a reality to lull Umid Ali into a false sense of security, the appellant's intention all along being to avenge the humiliation he had suffered at the hands of Umid Ali. With this object the appellant entered into a conspiracy with Nazir Ahmad P. W.
23. Who was the appellant's class- mate and an old friend to murder Umid Ali. Nazir Ahmad was then employed in an hotel in Sahiwal.
7. He promised the appellant to join him in the execution of the design. It appears that in the meantime the appellant had shifted from Chak No. 24/G to Sahiwal, where he got employment as bus conductor.
8. It is alleged that sometimes in July 1966 the appellant brought the deceased to Sahiwal on the pretext of attending a wedding ceremony in the gppellant's family. Before actually starting for Sahiwal, the deceased borrowed a lady's wrist-watch Exh. P. 1 and two chaddars Exhs. P. 2 and P. 3 from the wife of his friend Muhammad Rafi, a Foot Constable, P. W.
17. This was the last time Umid Ali was seen alive by his brother Haider Ali (P. W. 13), Ghulam Muhammad Lumberdar (P. W. 12) in whose presence the appellant bad asked the deceased to accompany him for the wedding and by Faiz Muhammad P. W. 18, Faiz Bakhsh P. W. 19 and Nawaa P. W. 20 who had seen the appellant and the deceased going together en route to Sahiwal.
9. Nothing was heard for some time until some letters purported to have been written at the instance of Umid Ali were received informing his family members that he had enlisted himself in the Army at Mardan. Two photo--graphs showing Umid Ali in uniform were also received. As the time passed, the deceased's family became restive. Haider Ali P. W. 13, Ghulam Muhammad Lumberdar P. W. 12 and Muhammad Rafi P. W. 17 went to .Mardan to make enquiries. They were told that no person by the name of Umid Ali had joined the Army at Mardan. Haider Ali then lodged report Exh. P. S. On 7-3- 1967 at P. S. Lodhran under section 364, P. P. C. Suspecting foul play at the hands of the appellant to avenge the abduction of Mst. Sharifan. The report also mentioned about the enquiries the informant, Ghulam Muhammad and Muhammad Rafi had made from Mardan pursuant to the letters and photographs earlier received.
10. On 3-8-1967 Abdul Shakoor P. W. 12, a resident of Chak No. 38/0, District Bahawalnagar while returning from Chistian spotted a headless skeleton in the area of Chak No. 23 near a sand dune.
11. On reaching his village he informed a member of the Union Council of what he had seen. Later on the same day he reported the matter to the S.1. P. Who was on gasht. On the basis of this report another F.
1. R. Exh. P. D./1 was recorded at P. S. Chistian. The S. 1. P. Proceeded to the spot, took into possession of what remained of a human skeleton with its head missing. He also took into possession blood-stained shirt Exh. P. 4 lying close to the skeleton. The pocket of the shirt contained a chit Exh. P. 5.
12. The skeleton was examined by Dr. Abdul Rashid, on the same day. According to his evidence it was incomplete skeleton of an adult male with no bead or any organ or flesh or muscles of any kind.
13. Ribs on the left side, right forearm, hand and right foot were also missing. The doctor was unable to express any opinion about the cause of death. The parts of the skeleton were decomposed and in the opinion of the doctor, death had taken place 20 to 25 days earlier.
14. The appellant was arrested on 19-3-1967. Pursuant to a clue given by him, Nazir Ahmad P. W. 23 was also arrested on 26-3-1967. On 4-4-1967, the latter led the police to his house from where he produced lady's wrist-watch Exh. P. 1 and two chaddars Exhs. P. 2 and P.
3. On 21-7-1967 Nazir Ahmad made confession before the S. D. M., Lodhran. On his written application he was later granted pardon by the District Magistrate on the usual condition of making full and true disclosure of the entire circumstances within his knowledge relating to the murder of Umid Ali deceased.
15. Nazir Ahmad P. W. 23 is the only witness of the occurrence. The story told by him at the trial was that at the appellant's request he had agreed to join in his design to liquidate Umid Ali. Pursuant to pre--arranged plan, the appellant brought Umid Ali deceased to Sahiwal on the pretext of participating in wedding ceremony in the appellant's fa-uply. They met Nazir Ahmad at the bus stand. The appellant suggested that they would first go to Chak No. 116/M in Tehsil Chistian where his sister was married, to recover some money before they attended the marriage ceremony. The appellant left the deceased and Nazir Ahmad at the bus stand and himself went to the bazar to make a few purchases. He returned from the bazar carrying a danda. The three then boarded a bus which they changed on the way and reached Chistian at about 9.00 p.m. They then set out on foot for Chak No. 116/M about 12 miles from Chistian. When they reached near a sand dune in the area of Chak No. 37/G the .Appellant asked Nazir Ahmad and Umid Ali to go ahead and he himself Stopped pretending to urinate. This was a ruse to enable the appellant to fit the danda he had purchased at Sahiwal in the hatchet blade which he had hidden under his shirt. Nazir Ahmad and the deceased after proceeding for some distance waited for the appellant to overtake them. As the appellant joined them, at his gesture Nazir Ahmad gave a push to Umid Ali who fell down backwards and the appellant gave him six or seven hatchet blows on his neck completely severing the head from the body. After killing him, the appellant and Nazir Ahmad removed watch Exh. P. 1, shoes and chaddars Exhs. P. 2 and P. 3 from the body of the deceased. They wrapped the severed head in an old chaddar and left the scene of occurrence leaving the headless dead body of the deceased. As they reached the Gajiani minor in the area of Chak No. 7/G the appellant cut the deceased's head into pieces and threw these pieces in the canal along with the hatchet. From Chistian they boarded the train and after changing at Samasatta, reached Sahiwal.
16. The appellant gave the lady's wrist-watch, the two chaddars and the :pair of shoe removed from the person of the deceased to Nazir Ahmad for -safe custody for appellant was afraid that if he kept these articles with him tin his house that might lead to the discovery of the crime committed by them. Accordingly, Nazir Ahmad at the bidding of the appellant, went to Kot Heera to leave the articles in the house of his father-in-law Muhammad Ehafi. Later at the request of the appellant Nazir Ahmad also wrote letters Exhs. P. A. .And P. B. Respectively to P. Ws. Bashir Ahmad and Umar Din to keep up the impression that the deceased was alive and that the letters -were written by him. Nazir Ahmad in the meantime left service and after Raking the lady's watch Exh. P. 1, chaddars Exhs. P. 2 and 3 and the shoes from his father-in-law's house, sold the pair of shoes to a mochi at Arifwala abut kept the lady's watch Exh. P. I and chaddars Exhs. P. 2 and 3 with AAhiimself, which he produced before the Police during the investigation.
17. The appellant in his statement at the trial admitted that the deceased -had abducted his sister Mst. Sharifan who was later restored to him and that he later shifted to Sahiwal. He however, denied that he had ever agreed Io give her in marriage to the deceased or had received any money from him on that account. He also denied the rest of the allegations against him. His counter-version was that the deceased had illicit intimacy with Mst. Haleeman, the second wife of Foot Constable Muhammad Rafi P. W. 17 -who had caused the disappearance of Umid Ali and falsely involved the appellant to save his own skin.
18. Two questions arise in this appeal for consideration. Firstly whether the headless human skeleton discovered by Abdul Shakoor on 3-8-1967, was that of the deceased? Secondly, whether Umid Ali deceased was done to death in the manner described by the approver and how far the approver's evidence in conjunction with the other evidence in the case can be relied upon to bring home the offences under sections 302 and 364, P. P. C. Against the appellant?
19. The condition of the headless skeleton as discovered by Abdul Shakoor P. W. And later examined by Dr. Abdur Rashid has been described already. Suffice to say that there is no direct evidence to identify the skeleton as that of the deceased. The prosecution however, tried to fix the identity by means. Of shirt Exh. P. 4 found lying close to the skeleton and chit Exh. P. 5, found in the pocket of the shirt. But as rightly observed by the learned Judge in the High Court, shirt and the chit are of no avail. The learned, Judge however, opined "that the statement of the approver (P. W. 23) about the place where the deceased was killed goes a long way in establishing the identity of the skeleton".
20. Allah Bachaya P. W. 5 tailor who plies his trade at Bahawalpur wasp produced to say that 5 years earlier he had stitched the shirt of a person who resembled Umid Ali as shown in the photograph produced at the trial. Indeed, it looks most unusual that the deceased who was a resident of Kot Pir Sadat in Lodhran Tehsil should have gone all the way to have a shirt stitched from Allah Bachaya in Bahawalpur. There is also a; significant admission by Allah Bachaya in his cross-examination that he --was asked by Muhammad Rafi Constable to depose in the case about the --ownership of shirt Exh. P.
4. Similarly, the chit Exh. P. 5 which was recovered from the pocket of the shirt cannot, by any stretch, establish the identity of the person bearing the chit. Abdul Qayyum P. W. 6, who according to the prosecution issued the chit is illiterate. It is neither written nor signed by him. He did remember the person in whose favour he had issues) the chit. He runs a radio repair shop at Bahawalpur and the chit appears to have been issued in respect of a transistor belonging to Muhammad Rafi P. W. 17.
21. Apart from the above articles the prosecution also relied on the appellant's conduct during the investigation immediately after his arrest in that he led the Police to the sand dune where the skeleton lay and pointed out the place where the deceased was done to death. This can scarcely be admitted as evidence in the case having regard to the provision of section 27 of the Evidence Act, 1872. The skeleton had already been discovered near the sand dune by Abdul Shakoor who having lodged the information had apprised the police of the discovery, and no fresh discovery was made "in consequence of the information received" from the appellant. Therefore, this part of the evidence must be excluded from consideration. So what remains of the prosecution evidence bearing on the identity of the skeleton in the evidence of the approver which by itself cannot be sufficient on the point.
22. As to how far the evidence of the approver can be accepted to substantiate the prosecution case, it may be conceded at once that he is a competent witness (section 133 of the Evidence Act). But the Courts have invariably in such cases followed the rule of common prudence enshrined in illustration (b) to section 114 of the. Act and insist on independent corroboration of the evidence of an approver in material particulars. This rule though a rule of practice has acquired the rigidity of law. See Abdul Qadir v. The State (PLD 1956 SC (Pak.) 407 J) which followed R. v. Baskerville ((1916)
23. 2 K B 658). This would be all the more so in the instant case because Nazir Ahmad approver had no motive of his own against the deceased. Furthermore, the evidence of Foot Constable Muhammad Rafi, who next to the approver. Looms large in the case introduces a serious jarring note in the case as will be seen presently.
24. The approver agreed to oblige the appellant in lending a helping, hand in his design to kill the deceased because in their younger days the appellant and the approver had been class-mates and friends too. In they absence of any personal motivation whatever, the role which the approver assigns to himself looks highly improbable. It is also significant that while there is ample evidence to show that the deceased was last seen alive in the company of the appellant, on their journey from Kot Pir Sadat to, Sahiwal there is no such evidence in relation to the approver when he joined the appellant and the deceased on the second leg of the fateful journey to Chak No. 116/M.
25. The approver's statement about the manner by which the appellant was able to manipulate the weapon of offence also appears fanciful. According: to him it was only after the deceased and the appellant met the approver in Sahiwal and decided to go to Chak No. 116/M in Tehsil Chistian to enable the appellant to recover money when he purchased the danda for fixing it in the hatchet blade which he carried under his shirt. Ordinarily, it is very inconvenient to carry over a long distance an hatchet blade under the shirt, without risking being detected by a co-traveller. It is equally improbable that the appellant should be able to fix the handle in the blade without the aid of any instrument and that too in the short span of time which normally would be just sufficient to pass urine. Normally it requires skill in carpentry and use of other instrument to fix handle in the hatchet. Blade so that it could be used effectively.
26. To establish that the approver was concerned in the transaction, the prosecution also relied on the production by him of the lady's wrist-watch Exh. P. 1 and two chaddars Exhs. P. 2 and P. 3 which the appellant is alleged to have entrusted to him for safe custody. According to the prosecution case the watch and the two chaddary were loaned to the deceased by the wife of Muhammad Rafi, Foot Constable P. W.
17. She has not been examined in the case, and in his evidence Muhammad Rafi has denied that his wife had lent her watch to the deceased. In the course of his cross- examination, some awkward suggestions were made to him. He was asked whether the deceased had illicit intimacy with his second wife Mst. Haleema. Of course he denied the suggestion. But the very fact that according to the prosecution case the deceased had taken the wrist-watch and two chaddars shows the deceased's undue intimacy with the household of Muhammad Rafi. The fact that Muhammad Rafi accompanied the deceased's brother Haider Ali and Ghulam Muhammad in the errand to Mardan to find out if the deceased had enlisted himself in the Army and also remained associated with the investigation of the case is also not without significance. This also lends colour to the appellant's statement in his defence, that the deceased had illicit intimacy with one of the wives of Muhammad Rafi who having done away with the deceased has by reason of his influence, procured the appellant's false implication in the case. On the above analysis of the evidence therefore, it is not possible to say with any degree of assurance that the approver's evidence is confirmed in material particulars by indepen--dent evidence. Once we reach that conclusion which I consider to be reasonable, the charge under section 302, P. P. C. Cannot stand against the, appellant.
27. That however, would not apply so far as the charge under section 364, P. P. C. Is concerned. On that aspect of the case, there is independent evidence aliunde. As pointed out in the beginning, , the appellant had a definite motive against the deceased. Indeed, there is evidence that after Mst.
28. Sharifan Bibi was restored by the deceased, the appellant left Kot Pir Sadat lock stock and barrel and took up residence at Sahiwal. Then there is evidence of Sikandar Hayat P. W. 11, Ghulam Muhammad Lumberdar P. W. 12, Haider Ali P. W. 13, Faiz Muhammad P. W. 18, Faiz Bakhsh P. W. 19 and Nawaz P. W. 20 al' of whom testify to having last seen the . Deceased alive in the company of the appellant. The first three named also stated that the appellant came to Kot Pir Sadat to ask the deceased to accompany him to attend a wedding ceremony in his family at Sahiwal which indeed was a false pretext. On the basis of this evidence both .Direct and circumstantial, I have no doubt in my mind that the deceased was induced to accompany the appellant on his false representation made with a view to so disposing of the deceased as to be put in danger of being murdered. This amply brings home the offence under section 364, P. P. C. Against the appellant. Whether the deceased was actually done to death and if so by whom is not the gravaman of the offence under section 364, P. P. C. The fact remains that Umid Ali has not been seen alive or heard of ,for about 10 years now.
29. For the foregoing reasons, I would partially accept the appeal, set aside the conviction and life sentence passed against the appellant under section 302, P. P. C. But would maintain his conviction and sentence of 7 years' R. I. Under section 364, P. P. C.
30. S. A. H.Appeal partially accepted.