ABDUL JABBAR KHAN, J.-Liaqat Ali appellant was tried by the learned Sessions Judge, Gujranwala, under section 302, P. P. C. And was convicted and sentenced to death for the murder of his father Master Muzaffar Ali Khan. He has appealed against his conviction and sentence awarded to him by the learned Sessions Judge vide his judgment dated 31st October 1974. There is also a murder reference before us under section 374, Cr. P. C. For the confirmation of his death sentence. We will dispose of both, the appeal as well as the reference by a single judgment.
2. The brief facts of the case are as follows :- On 15-1-1972 Ghulam Nabi P. W. 13 lodged a report Exh. PB with Police Station Saddar, Gujranwala at 9-05 a.m. In which he stated that early in the morning when he was going to open his shop situated near Gujranwala Bus Stand, he learnt on his way in the bazar that Master Muzaffar Ali Khan bad been electrocuted with a live wire of the table lamp and had thus died. He further informed the police that the deceased, after divorcing his wife, was living along with his children at Shaheenabad. The first informant at once informed the police on the telephone regarding this demise and then went to the house of the deceased to apprise himself of the details of the occurrence. On entering the room he found that shoe of table lamp was outside the plug and the wires were lying broken. An uncovered wire was touching the right hand of the deceased. He did not find any mark of blackening which would have resulted in case of electrocution, at the hands of the deceased. Therefore, he looked for more details and examined the body of the deceased. He found that the body of Master Muzaffar Ali Khan exhibited signs of violence. This made him suspicious of some foul play and he at once suspected the appellant as the possible murderer for the reasons that the deceased had strained relations with his son and sometime earlier he bad told the first informant along with Chiragh Muhammad Pehlwan, and Ch. Ijaz Ahmad, social workers of the abadi Shaheenabad, regarding this state of affairs between the father and son. He also had apprised the first informant and the above--mentioned gentlemen that be apprehended danger at the hands of his son, the appellant. Ghulam Nabi P. W. 13 also told the police that it had some to his knowledge that Master Muzaffar Ali Khan deceased had debarred his son from inheriting his property.
Exh. P. B. Was recorded by Muhammad Yousaf S. I. Who reached the place of occurrence after receiving the telephonic message. This document was prepared at the place of occurrence and was read over to the first informant who signed it in token of its correctness. The same was forwarded to Police Station, Saddar, Gujranwala and on the strength of which Exh. PB./1 was recorded by Sardar Shah A.,S. I. On the same day at 9-35 a.m. Muhammad Yousaf S. I. Found the dead body of Master Muzafi'ar Ali deceased lying in the room. He prepared injury statement Bxh. P.
J. And inquest report Exh. P. H. And then entrusted the dead body to Bashir Ahmad F. C. For escorting the same to Gujranwala mortuary for past-mortem examination. Muhammad Yousaf S. I.
(P. W. 14) carried out the spot inspection in the presence of Muhammad Ali and Ghulam Nabi He found a little quentity of blood on the floor and secured it on a blotting paper. He prepared a memo. Exh. P. C. Regarding this taking of blood into possession which was attested by the aforesaid P. Ws. He also secured table lamp, P. I. Huqqa P. 2 along with its broken chilm, woollen cap P. 3 and cot P. 4 with its broken small arm from the spot. 8e further secured some ashes P. 5 from the bath room. The recoveries were made vide memo. Exh. P. F. In the presence of the above P. Ws. Who attested the same. He got site plan Exh. P. G. And Exh. P. G:/I prepared through Abdur Rehman draftsman. At 10-30 a.m. Nazir Ahmad S. H. O. (P. W. 15) reached the spot and took over investigation of the case from this P. W. The appellant along with Iftikhar (approver) in this case was .Arrested on 16-1-1972 by both these police officers i.e. Muhammad Yousaf P. W. 14 and Nazir Ahmad S. H. O. P. W.
15. On 21-1-1972 Muhammad Yousaf P. W. 14 made an application Exh. P. K./2 to the District Magistrate, Gujranwala for action under section 337, Cr. P. C. On 24-1-1972 he filed another application Exh. P. K./1 to the Duty Magistrate for the summoning of Iftikhar P. W. (approver) from the judicial lock-up for the recording of his statement under section 164, Cr. P. C. Read with section 364, ,Cr. P. C. Nazir Ahmad P. W. 15 partly investigated this case and secured Aaqnama Exh.
P. D. From a leather bag lying under the pillow of the -deceased vide memo. Exh. P. D./1 in the presence of Muhammad Ali and Ghulam Nabi who attested the same. He also took into possession last worn clothes of the deceased slightly blood-stained Le, jacket P. 7, shirt P. 8, jersy P. 9 and loin cloth P. 10 .Side memo. Exb. P. E. In the presence of the aforesaid P. Ws. Who attested the same. On 16-1-1972 Nazir Ahmad P. W. 15 got Liaqat accused and Iftikhar (approver) medically examined. He also recorded their injury statement Exhs. P. N./1 and P. O./1 respectively.
3. Dr. Muhammad Iqbal Medical Officer (P. W. 2) conducted post--mortem examination on 15-1- 1972 on the dead body of Master Muzaffar Ali deceased and found the following injuries on his person :-
(1) Contusion with small laceration a 1 along the inner aspect of the upper and lower hip. Contusion all around and on the nose with 8 small abrasions on and around the nose, and a contusion -- " x - - ' on the front of the neck left side at the level of thyroid cartilage.
(2) Contusion 2' x 2 --with swelling on the right temporal region.
(3) Multiple abrasions 3' x 3 --on the front the left knee and below.
(4) Multiple abrasions about 8 in number in an area of 3' x 4' on the front of the right knee and below.
(5) Two abrasions near the left ankle.
(6) Abrasion 2 -- '1 x 2 --near the left hip.
(7) Multiple abrasion 2''' x 2" on the outer aspect of left hip.
(8) 10 small abrasions on the back of left forearm and hand.
(9) Abrasion 1' x-- " on the left elbow.
(10) Contusion with abrasion 2" X 2 -- ` on the left lumber region near the iliac crest.
(11) 5 abrasions on and around the lower lumber vertebrae.
(l2) Two small abrasions on the back of left shoulder.
(13) 8 small abrasions on the left side of the forehead 4" x 2 -- ".
(l4) Contusion 1 --X 1 -- " on the outer aspect of the right eye-brew.
In his opinion the death occurred due to asphyxia due to suffocation under injury No. 1. Time between injuries and death was immediate while between death and post-mortem was 24 hours.
Dr. Muhammad Riaz P. W. 1 medically examined Liaqat Ali appellant .And found five abrasions on his person, mostly on elbow, wrist and hand.
According to the doctor all the injuries were simple and caused by a blunt weapon.
Same doctor examined Iftikhar Ahmad (approver) and also found five-- injuries on his person, all abrasions, all simple in nature and caused by: a blunt weapon.
4. The prosecution in this case has relied. On the following categories of evidence
(i) the evidence of motive ;
(ii) the testimony of approver ;
(iii) the medical evidence ;
(iv) injuries on the person of the appellant and the approver.
In his statement before the Committing Magistrate the appellant: stated that he was not responsible for the murder and put the blame on Muhammad Ashraf and Iftikbar Abmad (approver) whom he considered responsible for the murder of his father. He claimed that in fact he was an eye-witness of this murder which was committed by the above--mentioned Muhammad Ashraf and Iftikhar Ahmad that he tried to rescue his father but was beaten and confined in a room by the said assailants. He further stated that Muhammad Ashraf had illicit relations with his sister Mst. Nasreen and was thus annoyed with his father (deceased because he prohibited Muhammad Ashraf from his immoral behaviour and had also stopped Muhammad Ashraf and Iftikhar Ahmad from visiting his house. He also told the Court that Iftikhar being closely related to Ashraf had thus consented -to become an approver in this case. While appearing before the trial Court he gave a detailed statement under section 342, Cr. P. C. In the following manner :- "About 1 or l --months before this occurrence, the deceased visited me at Lahore where I was employed as a tube-well operator. He told. Me that he was going to retire from service and that I should return to Gujranwala and install power looms because he was likely to receive a sum of Rs.
12,000 on the eve of his retirement. I, therefore, returned to Gujranwala. A few days before this occurrence, Muhammad Ashraf who used to reside in our Baithak gave a letter --to Mst. Nasreen. I had seen that letter with Mst. Nasreen. I took that letter from Mst. Nasreen and showed it to the deceased. He told me that he would ask Mst. Nasreen to mend herself. He,, however, started to quarrel with me and then asked me to get out of his house. I did not leave the house, My maternal uncle Bakhtayar and some other respectables of the Mohalla intervened and brought about reconciliation between the deceased and myself. The deceased was an emotional type of person.
He used to be--en raged abruptly and then cool down after a short while. In the --night of occurrence, I was sleeping on the first storey of our house. At about 3 or 4-00 a.m. When it was 'sehritime. I got up on hearing noise and commotion. I came down and saw that P. W. Iftikhar and his maternal uncle Muhammad Ashraf were present in compound of our house near the verandah.
They caught hold of me and started to beat me. They then shut me inside a room. I had become semi-conscious. I had been hearing noises coming from outside. Because. I was semi-conscious I could not make out what was happening outside. In the morning my sister Mst. Nasreem and brother Sajid opened the door of my room. I came out and saw that my father Muzaffar Ali deceased was lying dead inside the room and the electric light was on. I accompanied the dead 3 body when it was taken to the mortuary for post-mortem examina--tion. Police arrived there and arrested me. P. W. Iftikhar has falsely implicated me in order to save himself and his maternal uncle Muhammad Ashraf."
6. We have heard the learned counsel for the appellant as well as the learned counsel for the State and have gone through the entire evidence with their assistance:' The motive in this case stands fully proved against the appellant by the evidence of Abdul Karim Bhatti P. W. 8, the Petition-- Writer, Sh. Muhammad Yamin P. W. 10 and Hafia Maqsood Ahmad, Advocate, Gujranwala P. W. 11, without any shadow of doubt. Abdul Karim Bhatti P. W. Has stated that Aaqnama Exh. P. D. Was drafted by him on 7th January 1972 on the dictation of Muzaffar Ali deceased and Muhammad Yameen and Muhammad Din signed it as marginal witnesses. The same was entered in his section-Writer's register on the same day. The register was produced in the Court by this witness which was seen and returned. Muhammad Yameen P. W. 10 also corroborated the statement of P.
W. 8 Abdul Karim Bhatti in all respects. Hafiz Maqsood Ahmad P. W. Stated that he acting as Notary Public attested the Aaqnama Exh. P. D. He has further stated that he had signed that in token of its attestation and proved it as Exh. P. D./4. He also told the Court that this entry was made at serial No. 2 of his register maintained by him in this respect. He further stated that the deceased was identified before him by Muhammad-- Din, Clerk of Ch. Ghulam Mustafa, Advocate, Gujranwala.
This was proved by him as Exh.. P. D./5. After going through the evidence of these three witnesses we are of the firm view that Liaqat Ali appellant had ample motive to do away with his father, as by the execution of Aaqnama Exh. P. D., the deceased caused annoyance to him of substantial nature.
Besides this evidence of motive we have got ocular evidence of Iftikhar Ahmad P. W. 12 who turned as approver in this case and made disclosure of the facts of this murder, both before the Inquiry Magistrate as well as before the trial Court. He had earlier made a statement before he was granted pardon, under section 164 read with section 364, Cr. P. C. Before Ch. Waheed-ud-Din M. I.
C., Gujrat (P. W. 3) on 24-1-1972. The perusal o all these three statements reveals that the approver witness has made consistent statement without any material discrepancies before all the three Courts.
7. Iftikhar Ahmad approver (P. W. 12) stated that he originally hailed from Gujrat and about ten months earlier to this occurrence had shifted to the house of his maternal uncle Muhammad Ashraf at Shaheenabad and started to reside with him. This Muhammad Ashraf was already a tenant of Master Muzaffar Ali deceased. Muhammad Ashraf was employed as an Electrician in Rizwani Foundry, Shaheenabad. The purpose for shifting to the house of his maternal uncle was to learn the art of Dye Fitting in Faizi Industry, Shaheenabad, Gujranwala. He told the Court that the deceased had three sons namely, Ghazanfar Ali, Liaqat Ali appellant and Sajid. Somehow or other the witness developed friendship with the appellant. He also learnt that Mst. Nasreen daughter of the deceased lived with her other brothers in the same house. He further deposed that the deceased was a gambler and used to indulge in gambling in his house: and used to bring to his house gamblers for this purpose. The appellant took exception to this behaviour of his father and used to ask him to give up this nefarious habit for the reason that his sister Mst. Nasreen was grown-up and the strangers should not be allowed to remain in their house. The deceased did not pay any heed to these requests of the ..Appellant and in return he used to give him beatings. It is in the evidence of this witness that about 20/25 days before this murder the deceased gave a beating to Mst. Nasreen also. The appellant made a strong protest for this action of the deceased and in return was beaten and was threatened .With dire consequences of being debarred from his inheritance. The deceased went to the extent of turning him out of the house. Although the appellant had fallen from the grace of his father yet he used to ;meet the witness Iftikhar Ahmad clandestinely in the Baithak occupied by him and his uncle. During these visits once the appellant told the witness that he wanted to kill his father because he had deprived him of his property. The witness first persuaded the appellant to give up this murderous .-design but ultimately fell in with him on his further persuasion.
Iftikhar Ahmad approver stated that on the 14th January 1971 which happened to be a Friday, the appellant came to the Baithak at about 1-00 .Or 2-30 p.m. And apprised him of the details of his plan. He told him -that he would come in the evening and would murder the deceased in the same night. The time of the visit for this purpose to the house was 7-00 p.m. The witness first of all became afraid about the design of the appellant in this respect and wanted to avoid him so as to escape -participation in this crime. He left the Baithak at about 6-00 p.m. And went out to avoid the appellant. It so happened that the appellant met him on the road at about 6-00 p.m. And brought him back to the Baithak. During that period while in the Baithak Muhammad Ashraf, uncle of the ,witness, came but left at about 10-30 p.m. As his duty started from 11-00 p.m. Onwards. Thus left alone in the Baithak the appellant and Iftikhar Ahmad approver decided to kill the deceased.
The Baithak had --two doors out of which one opened in the street and the other in the Deorhi of the house of the deceased. The door of the Baithak which .Opened in the Deorhi of the house of the deceased was locked from outside. The appellant twisted its hook and gave it a push with the result that its bolt dropped down. In that manner by another push one -shutter of the door was removed and thus the appellant entered the house of the deceased. This witness also followed him. They then went upstairs . And from there the appellant suspended himself in the compound from Jungla and thus reached the Deorhi. He then opened the door of the Deorhi. The witness came down and joined the appellant through that .Door in the compound. They concealed themselves in the kitchen. The appellant told him that he was feeling hungry. The witness suggested to ham that it being his own house, he could eat whatever he liked. They cooked vermicellies and ate together. At about I-30 or 2-00 a.m. They approached the door of the room in which the deceased was sleeping The appellant knocked at the door mildly. In response the deceased opened the door abruptly and started to raise alarm of 'thief' 'thief'. The witness immediately closed the mouth of the deceased by putting a chaddar over it. The appellant immediately grappled and took the deceased inside the room and also shut the door. Mst.
Nasreen, sister of the appellant and his brother Sajid who were sleeping nearby got up on hearing the commotion and tried to raise alarm but the appellant threatened them to keep quiet and told them that they would be killed if they did not obey his orders. Both the children, out of fear, kept quiet. Grappling went on with the deceased for about one and half hours and ultimately he was overpowered, The deceased was tied down with the cot with a cloth. The appellant then thrust some cotton into the mouth and nostrils of the deceased and gagged him. 'He then wrapped the face of the deceased with a cloth. The deceased started to suffocate. The deceased was fluttering.
When the witness felt that the deceased was trying to release his hand, he held his hands and did not allow him to get free. The appellant put his knee on the neck of the deceased and twisted it.
Due to continuous struggle and grappling and suffocation the deceased had started to bleeding from his mouth and nostrils and ultimately breathed his last. When the witness and the appellant were sure that the deceased had breathed his last, they released the cloth from the dead body by which it was tied and devised a plan of applying an electric table lamp live wire to the hand of the deceased so as to make it look that the deceased had died as a result of an electric shock. Both of them collected the blood-stained clothes of the deceased and set them on fire in the bath room and threw some water on the ashes. After finishing their job they both came into the Baithak and left it early in the morning. The witness went to Gujrat and was not aware about the destination -- off the appellant. A day after he came to Gujranwala and while he was doing his work in Faizi Factory, the police arrested him. He also stated that he and the appellant also suffered minor injuries in the course of scuffle with the deceased and he was medically examined in this respect through the police. He further made it clear that the deceased had also suffered abrasions besides the major injuries which caused his death. This witness was cross-examined at length but stuck to the main story, of course with minor discrepancies.
Besides the above statement of Iftikhar Ahmad P. W. 12 (approver) in which he has implicated himself as well as Liaqat Ali appellant, the police recovered ashes P. 5 from the bath room as mentioned in the earlier part of this judgment along with other broken articles in the room of the deceased as discussed in the statement of Muhammad Yousaf S. I. P. W.
14. All these lend support to the statement of the approver Iftikhar Ahmad P. W. 12 that the deceased put up a struggle before he was overpowered and that the presence of ashes in the bath room, supported the story of this P.
W. Inasmuch as that the clothes were burnt and after these were reduced to ashes, water was thrown to extinguish the fire.
8. The learned counsel for the appellant before criticising the statement of the approver launched a preliminary legal objection to the recording of statement of this witness by Mr. Waheed-ud-Din, M. I. C. (P. W. 3) under section 164 read with section 364, Cr. P. C. a day earlier the pardon was granted to this witness under section 337, Cr. P. C. It was contended that the recording of the statement of this witness earlier than the pardon had in fact been granted, has prejudiced the case of the appellant for the reason that this witness was pinned down under a threat that if at any time he would disclose anything which would not be favourable to the prosecution, he would face the consequences of this confession to his detriment. The main stress of the learned counsel was that the procedure adopted was not envisaged under section 337, Cr. P. C. And his statement could only be recorded as a witness after pardon had been granted to him and he had accepted it for the purpose of making full and true disclosure of the whole of the circumstances within his knowledge related to the offer and to every other person concerned, whether, as principal or abettor, is the commission thereof. The learned counsel emphasised that once a disclosure was already on the record in the form of a confessional statement as recorded by Mr. Waheed-ud-Din, M. I. C. (P. W. 3), there was nothing left to be disclosed and ingredients of section 337, Cr. P. C. Do not come into display in this particular case. He relied on Hoc" Mohanlal Gond v. Emperor (AIR 1940 Nag. 218) and Rambharose Narbadaprasad Kachhi v. Emperor (AIR 1944 Nag. 105). He further contended that pardon in this case was wrongly granted as it violated the principle of grant of pardon. He submitted that the object of tendering pardon is to secure evidence when it was otherwise impossible to get the accused convicted for other evidence while in the present case Iftikhar Ahmad approver had made a clean breast of the whole affair in his statement under section 164, Cr. P. C. Earner than the grant of pardon and thus there was no reason to make him an approver when he could equally be tried for the murder of the deceased. For this he has relied on Sher Zaman v. Azad Jamrnu and Kashmir Government (PLD 1952 Azad J & K 15) and Wazir and others v. The State (PLD 1960 Kar. 674). In view of his above contentions he vehemently argued that the statement of accomplice Iftikhar Ahmad P. W. 12 be ruled out of the evidence as it was not a volunteer statement disclosing the true facts but was motivated by his earlier statement before the Magistrate before the grant of pardon which goaded him to stick to that version both before the Inquiry as well as the trial Court. We have examined this proposition of law as contended and argued by the learned counsel for the appellant by perusing the judgments cited above on this point and find - that the law so cited does not support the proposi--tion so placed before us. In the case of Hordal Mohanlal Gond, the appellant Horilal and two others by name Bhagchand and Hiralal were originally challaned under section 302,
1. P. C. For murdering one Dhanaram and his wife Mst. Kala. In the course of the proceedings, Horilal was granted pardon under section 337, Cr. P.
C., but when he was examined in the Court of the Sessions Judge, Chhindwara, he turned hostile to the prosecution and was consequently declared to have broken the conditions of his pardon. On the certificate of the Public Prosecutor that Horilal had forfeited the pardon, criminal proceedings were started against him for the offence of murder in the Court of the Headquarters Magistrate, First Class, Seoni, who committed him to the Court of Session, Chhindwara, to stand his trial. The learned Sessions Judge found that Horilal failed to comply with the conditions of the pardon entailing its forfeiture. As a result of the trial Horilal was found guilty of murder and sentenced to death subject to confirmation by the High Court. The point for adjudication in this case was whether his statement recorded earlier than the grant of pardon, under section 164 read with section 364, Cr. P. C. Could be used against the approver or not. It was held that tender of pardon is always to precede the making of full and true disclosure and not to follow it and also that it was true that full and true disclosure is expected to be made by the approver when he is examined as a witness in the enquiry or trial. It has been further held that section 337, Cr. P. C. Itself does not contemplate and authorize the recording of any statement by the accused as preliminary to the tender of pardon. But it was nowhere held that the earlier statement if recorded under section 164 read with section 364, Cr. P. C. Would prejudice the case of the person against whom the approver has made a statement in a murder case. The above authority deals only with a case of a person who has violated the terms of pardon by failing to disclose true facts of the case and the question which came under consideration was whether his earlier statement made under section 164 read with section 364, Cr. P. C. Before the grant of pardon, could be used against him. The answer was in the negative. Therefore, this authority does not advance the case of the present appellant in any manner whatsoever. Similarly in the case of Rambharose Narbada--prasad Kachhi, the matter which came before the Full Bench for consideration was of the same type which we have already referred in the earlier case---law. The two Judges of Nagpur High Court were at variance and the matter was referred to Full Bench on the following points :-
(i) that once an approver has been tendered a pardon under section 337, Cr. P. C. And he has accepted the tender, his statement can be legally recorded under section 164, Cr. P. C. On affirmation or it can only be recorded under section 164 read with section 364. Cr. P. C. And if such a statement will be admissible in evidence against him at a subsequent trial, after forfeiture of the pardon, for an offence in t respect of which the pardon was tendered?
The learned Judges of the Full Bench concluded as follows;-- "We agree with the referring Judges that the words "the statement" in section 339(2) must refer to the full and true disclosure mentioned in section 337(t). There are three occasions on which this full and true disclosure can be made at the examination under section 164, in the committing Magistrate's Court, and in the Sessions Court. If a full and true disclosure is made on all three occasions, no question of the forfeiture of the pardon of the approver and the subsequent trial of the approver arises; and if a full disclosure is made on the first two occasions but not in the Sessions Court no difficulty arises because the evidence in the committing Magistrate's Court can undoubtedly be used against the approver at his subsequent trial. It is only when, as in the present case, the full and true disclosure is made on the first occasion only that a difficulty arises. Bose, J.
Considered that the use of the definite article and the singular number-"the statement"-indicates that only one statement is referred to, but he had then to meet the difficulty that the statement in the committing Magistrate's Court and the statement in the Sessions Court are both undoubtedly included. His solution of his difficulty was that "the disclosure contemplated was to be made in two instalments or, if you prefer it, twice over". It would, in our opinion, be inaccurate to say that the disclosure is to be made in two instalments: what is contemplated is a true and full disclosure to be made on three different occasions, and we agree with Digbt, J. On this point. Our conclusion then is that the statement mentioned in section 339(2) means the full and true disclosure whenever made by the approver in pursuance of his undertaking to make such a disclosure. In a case like the present, there is only one such statement and that statement may be proved against him."
Therefore, it will be seen that even this ruling does not substantiate the point raised by the learned counsel for the appellant. The precise point raised by the learned counsel has nowhere been answered in any law cited by him but ratio decidendi in Miral v. Emperor AIR 1943 Sind 166 , and the earlier rulings cited by him is that a statement so recorded under sec--tion 164, Cr. P. C. Before the grant of pardon, will be inadmissible against the approver when he violates the terms of pardon so granted to him. But as far as the point of prejudice so agitated by the learned counsel in this case is concerned, we are of the considered opinion that no prejudice is caused to the case of the appellant if the statement has been recorded earlier although there was no necessity under the law for doing so. The person so making a statement cannot be bound down by it as held in the law cited above. Thus there will be no compulsion on him as suggested by the learned defence counsel to stick to the same story which he made in his, confessional statement earlier than the grant of pardon. Section 337, Cr. P. C. Only envisages a true disclosure after the pardon has been granted and the statement which may be recorded or not is only after the grant and not earlier.
This statement if so recorded can be used against him, as he at that time was a witness under oath, for perjury and other matters and even if that statement is not recorded, the statement would be the one before the Inquiry Magistrate and the trial Court. If the statement is~ recorded of a prospective approver before the grant of pardon, in the for of a confession, and thereafter he is granted pardon on the condition that he would make full disclosure, the earlier statement, in our opinion, cannot prejudice the case of the co-accused in any way. However, in case the approver violates the terms of pardon, then the statement would be of no use to the prosecution as it would be inadmissible in evidence against to person so making it. Therefore the argument of the learned counsel stands repelled that the statement made in this case was in fact the reason that compelled the maker of it to stick to the same line and to repeat it verbatim before the Inquiry Court and the trial Court, for after the grant of pardon the approver did not violate the terms of pardon and made full disclosure before the Committing Magistrate as well as the trial Court. In this respect it will be useful to mention at this stage the case of Syed Sharifuddi Pirzada v. Sohbat Khan and 3 others PLD1972SC363 , wherein a similar statement was recorded before the grant of pardon and this matter was before their Lord--ships of the Supreme Court but they did not make any observation or considered it as something which caused prejudice to the case of the appellant in that case.
9. As for the point that in view of the special features of this case that the pardon should not have been granted to the approver in this case as be had fully inculpated himself and that it was sufficient evidence against him qua his judicial confession, it is sufficient to say that we are in agreement with the learned counsel in this respect in view of the authorities cited by him, but that would not affect the merits of the case as against, the present appellant. It has also been contended before us that the grant of pardon in this case has been mechanical as the learned granting authority has just filled up the blanks of a stereotyped order placed before it. We hardly find this contention forceful as the recording of statement of the approval a day earlier before the grant of pardon had fully brought to the notice of the granting authority the salient features of the case and the disclosure which the approver was going to make and thus it cannot be said that it has acted unmindful of these circumstances which were within its knowledge. The mere fact that an order has been typed and placed before an officer will not prove that he has signed it without reading it and has failed to apply his mind.
10. Learned counsel after concluding his arguments on the legal side has addressed us on the merits of the case and pointed out that the evidence of the approver by itself does not inspire confidence as the story suffers from inherit improbabilities. His main attack was directed against the improbability of the witness developing friendship with the appellant in a short period of one month and his being easily persuaded to participate in the crime without any substantive interest.
He has also considered it unnatural that both of them will wait for such a long time without moving towards their object-will cook and eat vermicillies in the kitchen-land themselves in the countyard and at the same time would not disturb the victim or other members of the family who were sleeping in the same house. He has also considered it highly improbable that the two other witnesses i.e. Sister and brother of the appellant, would keep quiet and would not raise hue and cry when the appellant and the approver Iftikhar Ahmad P. W. 12 were busy in murdering their father.
These facts might have assumed some importance if we had considered them in isolation, but in the present case we have got the statement of the appellant before us. In his statement the appellant has clearly held responsible Iftikhar Ahmad approver and his uncle Muhammad Ashraf for being the real culprits and according to him he along with his two brothers and sister, was an eye-witness of this gruesome killing. If that would have been so, then we fail to understand why a case was not registered at the instance of any member of the family, which would have been the most natural phenomenon whereas the appellant was arrested sometime later at a different place than the venue of the crime. We find that his own admission that he was present id the house at the time of murder corroborates the testimony of Iftikhar Ahmad P. W. (approver). Although it inspires confidence by itself yet as a matter of abundant caution we will look for some corroboration from an independent source. In the present case we find that this testimony is corroborated by the statement of the appellant himself as well as by the injuries sustained by the appellant and the approver in the course of occurrence and by they recovery of ashes damped with water from bath room as given in the consistent statement of the approver before the two Courts below. We also do not find any motive either for this witness or for his uncle to murder the deceased whereas the appellant, as observed earlier, had sufficient motive to do away with his father. The failure of the sister and brother of the appellant to support the prosecution case is natural because as given in the statement of the approver as well as in the statement of the appellant, the deceased was a gambler and used to beat Mst. Nasree as well when she and her brother protested against his improper behaviour as head of the family. Therefore we do not expect any sympathy either from Mst. Nasreen or Sajid to come forward to support the c4se of the prosecution for the death of a cruel and heartless father as he s. It is also on the record that the deceased was such a tyrant that Mst. Nasieen attempted to commit suicide owing to the cruelty of her father. Taking the converse position, if the story of the appellant would have been near, some truth then we do not find any reason why Mst. Nasreen or Sajid--have not come forward either to report this matter to the police against this witness and his uncle or to figure as P. Ws. Against them before the Investigating Officer. The failure of the appellant to produce them before the trial Court in his defence. Leads to irresistible conclusion that his version of the case is baseless and an afterthought.
11. In the light of the above discussion we are of the considered opinion and firm belief that the appellant has committed the murder of his father in the manner as narrated by Iftikhar Ahmad approver (P. W. 12) -in order to wreck vengeance upon him for debarring him from inheritance as well as for his anti-social and immoral conduct particularly when a grown up girl of marriageable age was in the house. It seems the victim die for his depraved habits which made him persona non grata with the entire family of grown up children. His conduct in divorcing the mother of the children would have also deprived him of every sympathy from them and would have created hostility and rancour in their mind and they must have .Started loathing their father.
12. In the circumstances and background of the family relationship, we as a matter of abundant caution, and in accordance with safe dispensation of justice, refrain from imposing the extreme penalty of death upon the .Appellant and feel that the ends of justice will be met if he is awarded life imprisonment. We therefore, dismiss the appeal ; maintain the conviction of the appellant under section 302, P. P. C. But alter his sentence from death to that of imprisonment for life. The sentence of death awarded to him is not confirmed.