' The present criminal appeal assails the judgment, dated 23-2-1995 whereby the learned Additional Sessions Judge, Sheikhupura, while acquitted Safdar Ali co-accused by extending benefit of doubt and releasing the approver Mukhtar Ahmed P.W.1, had convicted the appellant under section 302(b), P.P.C. And sentenced him to imprisonment for life. He was also directed to pay compensation of Rs,30,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. For having committed the murder of. Taj Din son of Saddar Din.
' Criminal Revision No,206 of 1995 filed by the complainant for enhancement of the sentence awarded to the appellant No,1, and against the acquittal of appellant No,2, which was subsequently, vide order, dated 4-7-1994 withdrawn to the extent of appellant No,2, directed to be heard along with the present criminal appeal, shall also be disposed of by this judgment.
2. Brief facts necessitating the filing of the present criminal appeal are that the complainant Meraj Din P.W.3 on 2-5-1992 got recorded F.I.R. Exh.P.E./1 illeging that at 7-00 a.m. On 2-4-1992, his brother Taj Din (deceased) in this case aged about 45/46 years had gone out of house after taking his meal at 10-00 a.m. Faqeer Hussain son of Wali Muhammad Lambardar of the same village come to him and told that the dead body of his brother (Taj Din) was lying in his (Faqeer Hussain) uncultivated field. Mehr Din, Chowkidar, Shohab Din, Nizam Din and Faqeer Hussain were also with the complainant when he proceeded the field where the dead body of his brother was lying on the southern side. They had also found an empty bottle of liquor lying nearby. There was no apparent injury on his body except some abrasion on his back. He had no enmity with anybody and did not suspect any accused.
3. Muhammad Latif Baig, A.S.-I. P.W.9 after recording the statement of the complainant Meraj Din Exh.P.A. Sent the same to the police station for registration of case and himself proceeded to the place of 'occurrence, prepared site plan Exh.P.K., took into possession the empty bottle lying near the dead body through recovery memo. Exh.P.F., prepared injury statements Exh.P.L. And inquest report Exh.P.M. And handed over the dead body of the deceased to Sajjad Ahmed P.W.8 for post- mortem examination. On 3-4-1992 Sajjad Ahmed produced before him last-worn clothes of the deceased i,e, Shirt P.2, Sweater P.3, Chaddar P.4 which were taken into possession through recovery memo. Exh.P.G. Four sealed Jars containing viscera were also handed over to him which he gave to the Moharrar of police station for onward transmission to the office of Chemical Examiner, Lahore, wherefrom on 2-5-1992 a report to the effect that poison was not detected in the visceras, was received by him. He had also recorded supplementary statement of Meraj Din wherein Modassar lqbal, the appellant herein, Sana Ullah and Mukhtar alongwith two others were nominated as accused in the instant case. The accused were also arrested by him on 17-5-1992. But subsequently the investigation was transferred to Muhammad Naseem, Inspector who had interrogated the accused, recorded the statement of P.Ws. And on 31-5-1992 on pointing out by the approver Mukhtar Ahmed P.W.1 taken into possession key of Peater Engine P.6 from a Kotha belonging to Sana Ullah vide recovery memo. Exh.P.J. Safa P.5 was also taken into possession vide recovery memo. Exh.P.F. On pointing out by Sana Ullah (absconder) while in police custody. He had also prepared site plan of place of recovery Exh.P.K./1 and Exh.P.H./1. On 10-6-1.992 he had received an application through D.S.P. (Legal) to the effect that Mukhtar Ahmed wanted to be a witness in this case whereupon after necessary formalities the statement of Mukhtar Ahmed Exh.P.C. Was recorded on 15-7-1992 and thereafter the investigation was conducted by Shoaib Ahmed P.W.11 who after getting prepared site plan of the place of occurrence through Patwari, had prepared complete challan of the case. Subsequently, Tariq Saleem Doger, S.P. (P.W.15) had conducted the investigation and after having recorded the statements of many persons from both sides found Mukhtar, Modassar and Sana Ullah guilty. He had also directed to record the statement of the approver.
4. At the trial the prosecution examined as many as fifteen witnesses to establish its case, whereas Zamin Abbas, Inspector and Manzar Saeed, Magistrate, were examined as C.W.1 and C.W.2. Mukhtar Ahmed P.W.2, who had moved an application Exh.P.B. From jail, after recording his statement Exh.P.C. On 15-7-1992 before C.W.2, M.I.C., Sheikhupura, was declared an approver and had narrated the fact that on 18th of Ramzan in 1992, after Eftari, he along with his nephew, namely, Asif were going towards his Dera when his friend Sana Ullah (absconder) in the instant case met him out of Village Worn and told him the facts and circumstances of jail. When they reached Saim Nala, Pull Sandanwala, on the insistence of Sana Ullah, he after handing over the meal to his nephew Muhammad Asif, stayed with Sana Ullah who disclosed his intention to commit the murder of Taj Din as Taj Din had got wasted Rs,25,000 of Sana Ullah when Sana Ullah was in jail in a theft case.
Accordingly, he had proceeded to his Dera and Sana Ullah proceeded for his house. On the following day he had met with Sana Ullah accused (absconder) at a Barber shop in the village.
Thereafter, they had gone to Bazar Mochiwala and after having purchased sweets proceeded to an Oil Tanky. Then we had hatched a conspiracy to commit the murder of Taj Din. After about 5/6 days he had collected information about the timing of Taj Din from the Dera of Mubarik Ali where he used to work. Then he had proceeded to the village. Thereafter on,the direction of Sana Ullah, on the next day, he reached at Oil Tanky prior to Fajar prayer, where Sana Ullah and Mudassar Iqbal accused were present. When Taj Din passed from near Oil Tanky, they had chased him and requested to take liquor with them as Taj Din was addicted to liquor, but he had refused to do so.
Then they had forcibly taken Taj Din to the Dera of Sana Ullah. Taj Din was also in possession of sodium-by-carbonate. They had taken Taj Din to a room wherein a Peater Engine was installed. Taj Din had requested them to provide liquor and then to allow him to proceed, but after having - turned down both the requests, Sana Ullah, now absconder, had arounded a Sapha in the neck of Taj Din and he had given a key blow on the back side of chest of Taj Din in the presence of Modassar Iqbal. Then Sana Ullah had asked him to stand outside as a guard. After a while, on enquiring from Sana Ullah and Modassar Iqbal as to whether the work had been done, they told that Taj Din had been done to death. Thereafter Faryad (absconder) and Safdar All accused had reached there with a trolly and dead body of Taj Din was shifted to the trolly by Sana Ullah and Faryad. Then on the asking of Modassar Iqbal and others he had left the place for his house, and on the next day he had come to know about the dead body of Taj Din having been found in the field of Faqeer Hussain. Subsequently he was arrested.
5. P.W.2 Rana Muhammad Sarvvar, Patwari, on the direction of the police and on pointing out by the P.Ws., had prepared site plan of the place of occurrence Exh.P.D. And Exh.P.D./1 in the scale of 40 Karams equal to 1 inch.
6. P.W.3 Meraj Din, the complainant, had reiterated the contents of the complaint Exh.P.E. P.W.4 Mubarik Ali, being the employer of the deceased Taj Din, had deposed that one day prior to occurrence, when Taj Din (deceased) left him at 4-00 p.m. He had paid Rs,25 to the deceased for sodium-by-carbonate and powder. P.W.5 Jameel had deposed that at Fajar prayer time when he alongwith Mubarik Ali son of Nazar Muhammad, was going to his Dera, they had met with Faryad, Safdar, Mudassar Iqbal and Sana Ullah, accused, boarding on a tractor trolly and on enquired by them the accused had replied that they were having a work. At about 10-00 a.m. He came to know that Taj Din had been murdered and he had seen the dead body of Taj Din lying at the same place where the tractor trolly was standing. P.W.6 Muhammad Ashraf, being the cousin of Taj Din deceased and the complainant in the case of theft, committed by Sana Ullah and his co-accused Ajmal Khan, in the house of Taj Din (deceased) had narrated the whole story of the theft case and had further deposed that Sana Ullah while in police custody had confessed to commit the murder of Taj Din with Safa P.5 that was recovered on his pointing out from the cattle-shed and taken into possession vide recovery memo. Exh.P.H. He is also the witness of recovery of key of Peater Engine P.6 from the room of Peater Engine. P.W.7 Ghulam Jafer, H.C., being Moharrar, had drafted the formal F.I.R. Exh.P.E./1, on the complaint Exh.P.E. Moved by Meraj Din. P.W.8 Sajjad Ahmed, Constable, had escorted the dead body of Taj Din deceased to the mortuary and after the post-mortem examination he had received the last-worn clothes of the deceased from the doctor and delivered the same to the Investigating Officer. P.W.9 Muhammad Latif Baig, A.S.-I. Had initially conducted the investigation in the instant case and brief contents of his statement have been given in the earlier parts of the judgment. P.W.10 Muhammad Naseem, Inspector, had also conducted partial investigation in the present case. A reference of his statement has also been made above. P.W.11 Shoaib Ahmed, Inspector, had also conducted the investigation in this case in part and after getting prepared the site plan of the place of occurrence Exh.P.D submitted incomplete challan of the case. P.W.12 Ghulam Abbas being Moharar, had recorded Rupt No,23 Exh.P.E./2 on the basis of statement of Meraj Din Exh.P.E./1.
7. P.W.13 Dr. Iftikhar Ahmed, M.O. On 3-4-1992 had conducted the post-mortem examination on the dead body of Taj Din, brought to him by Sajjad Ahmed, Constable and Ali Ahmed, Constable and identified by Faqeer Hussain, Lumbardar, and Meraj Din and had found the following injuries apart from a ligature mark 3 c.m. x all around the neck:
(1) Abraded area 20 c.m. x 13 c.m. On outer of right chest.
(2) Abrasion 2 c.m. x 1 c.m. On front of left ankle extending to foot.
' Opinion about the cause of death was postponed and after the receipt of report of Chemical Examiner Exh.P.O., death was opined to have occurred due to strangulation resulting in asphyxia and shock. According to the doctor, ligature mark was fatal and grievous and was sufficient to cause death of person in an ordinary course of nature. Probable time between injuries and death was immediate and between death and post-mortem was 18 to 24 hours.
8. P.W.14 Muhammad Aslam Sahi, D.S.P., had deposed in his statement that on the basis of the material available on the file, presented before him, Modassar Iqbal, Sana Ullah, Faryad and Safdar accused were ordered to be arrested and further investigated.
9. P.W.15 Tariq Saleem Dogar, S.P., had deposed that during the investigation conducted by him, under the order of the D.I.-G., Lahore, on two occasions, he had interrogated the persons produced by the complainant as well as the accused party and recorded their short statements. He had also interrogated the accused and had come to the conclusion that occurrence was committed by Mukhtar, Modassar and Sana Ullah accused. He had also directed to record the statement of approver.
10. C.W.1 Zamin Abbas, Inspector, had deposed in his statement that after investigation he had come to the conclusion that all the accused except Mukhtar accused were innocent in the instant case. C.W.2 Manzar Saeed, Magistrate, had got recorded the statement Exh.C.1 of the approver Mukhtar accused while in police custody through his reader as he had injured hand on that day. He had further deposed in his statement that he had fulfilled all the legal requirements while recording the statement. He had also owned the certificate Exh.C.1/1 issued by him.
11. The prosecution had given up Akbar Ali, Faqeer Hussain Lumbardar, Mubarik Ali, Zamin Abbas and Ch. Akhtar Hussain P.Ws., as unnecessary and had closed its case.
12. Appellant Modassar Iqbal in his statement had denied all the allegations levelled against him and claimed to be innocent by deposing that there were two parties in the village, one was headed by his father Afzal, the brother of accused Safdar and maternal-uncle of Sana Ullah (absconder) and Faryad accused was the husband of his sister's daughter and the other party was headed by one Faqeer Hussain, Lambardar of the village and there were enmity between Afzal and Faqeer Hussain and many criminal cases had been between the parties in the past and that the complaint of the present case placed as pupped in the hands of said Faqeer Hussain and that on the asking of Faqeer Hussain all the accused had been involved in this false case. All the P.Ws.
Hailed from the party of Faqeer Hussain Lumbardar and on his instance they had deposed falsely against him.
13. At the trial, the accused in their defence has produced D.W.1 Haleem Sabir, D.S.P., who had deposed in his statement that the investigation, conducted by Zamin Abbas, Investigating Officer and duly approved by D.I.-G., Lahore, was verified by him as correct. According to the investigation conducted by the said Investigating Officer the accused were innocent and were directed to be discharged from the instant case.
14. The accused, however, did not record their statements under the provisions of section 340(2), Cr.P.C.
14-A. The learned trial Court, taking into consideration the facts and circumstances of the case, had convicted and sentenced the appellant while acquitting Safdar Ali co-accused and releasing the approver Mukhtar Ahmed P.W.1, as stated above.
15. The learned counsel for the appellant, the State and the complainant were heard at length and the record of the case perused with their assistance. The learned counsel argued for the acquittal of the appellant and submitted that the statement of approver/accomplice Mukhtar Ahmed P.W.1 was not inculpatory and that, therefore, no conviction can be placed on his testimony. Further submitted that even the said statement of the approver suffers from many illegalities and material irregularities because of the mode and manner of its recording, being in contravention of the provisions of sections 164 and 364, Cr.P.C. Further pointed out that the appellant's name was not mentioned in the F.I.R. Nor any suspicion voiced against him for more than two months after the occurrence and that there is no credible evidence to link the appellant with the motive set up.
Further submitted that there is no eye-witness account of the occurrence at all and that the alleged recoveries by themselves failed to establish the charge against the appellant. Finally, argued that P.W.1 Mukhtar Ahmed approver was in fact a tuted hostile witness who had been reluctant to confess his alleged guilt and has obviously done so on the inducement of others as is manifest from the testimony of P.W.11 Shoaib Ahmed, Inspector.
16. On the other hand, learned counsel for the State and the complainant opposed the present criminal appeal and argued that conviction can be based on the sole testimony of approver, if same was inculpatory, as was the case in the instant matter. In this respect, emphasized that the approver P.W.1 had admitted to having hit the deceased Taj Din on the back of his chest with the iron key of the Peater Engine P.6. Further argued that a strong motive has been established against the accused and that the recovery of the said iron key of the Peater Engine P.6 and Safa P.5 fully supported the case against the appellant whereas medical evidence fully corroborated the prosecution version.
17. The entire case of the prosecution hinges on the testimony of the approver Mukhtar Ahmed P.W.1. There is no cavil with the principle laid down by the superior Courts to the effect that 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, but it has been further held while laying down the principle stated above, by the Honourable Supreme Court in Ghulam Qadir -Ind another v. The State PLD 1959 SC (Pak.) 377 that, 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 an accused person and a crime before such a statement could be accepted as a safe foundation for a conviction while further holding that the reason for the rule is obvious as there is always danger of substitution of the guilty be the innocent in such cases and it is realised that it would be extremely risky to act upon the statement of self-confessed criminal who while trying to save his own skin, might be unscrupulous enough to accept suggestions of others to inculpate a person unconnected with the crime in place of his real accomplice for whom he may have a soft corner; and that the corroboration required would depend on the facts and circumstances of each particular case and no hard and soft rules can be laid down in this behalf, while observing that surely one of the factors calling for consideration may be the circumstance that the approver had no ostensible motive to involve any of the accused persons falsely in the case; further holding, that does not imply any relaxation of normal standards of corroboration in such cases. The second case, relied upon by the learned counsel to support his contention that the conviction can be based solely on evidence of an accomplice, was Munawar Hussain alias Bobi v. The State 1993 SCM R 785, however, it was held in the said case that the appellants therein were convicted not solely on the evidence of an accomplice but that the judgments in question by the learned trial Court and Federal Shariat Court respectively had referred in detail to corroborative piece of evidence on material particulars, while observing that in accordance with the terms of Article 16 of Qanun-e-Shahadat Order, 1984 which corresponds to section 133 of Evidence Act, 1872, conviction can be founded on an evidence of an accomplice without any corroboration, if Court is satisfied with the truthfulness of his evidence.
18. However, the Court is constrained to observe that the above cited two judgments of the Honourable Supreme Court are of no help in opposing the present criminal appeal. For the reason that the statement of the approver/ accomplice Mukhtar Ahmed P.W.1 in the instant case, fails to meet the litmus test of the statement of an accomplice that it must be exculpatory. The said accomplice had stated to the effect that he had hit the deceased Taj Din on the back of his chest with the iron key (Chabi) of the Peater Engine to bring his statement within the ambit of it being exculpatory but in his testimony Dr. Iftikhar Ahmed P. W.13 had categorically stated that no injury: thus claimed was found on the back of the deceased. The said portion of the statement of Dr. Iftikhar Ahmed P.W.13 has been recorded as follows in English and in Urdu vernacular respectively:- - "No injury was seen by me on the waist of the deceased." In vernacular it is recorded as:--{{URDU TEXT}} ' It shall be pertinent to point out at this stage that the approver Mukhtar Ahmed P.W.1. Had stated as follows in that respect:-- "Thereafter I inflicted a key blow on backside of the chest of Taj Din (deceased)."
' Thereafter he states in his testimony that he had come out of the room in question to stand outside as a guard, absolving himself from any further involvement in the alleged killing of the deceased Taj Din by other alleged absconding two accused Sam Ullah and Modassar Iqbal.
18. Here it may be observed that the mode and manner of recording of the statement of approver by C.W.2 Manzar Saeed, Magistrate 1st Class, is highly questionable and that impression is in fact, strengthened by the testimony of the said C.W. As he himself had stated that he had not recorded in Exh.P.M. That statement of the accused had been recorded in the Court-room nor that the handcuffs of the accused were removed before recording the said statement and had not informed the accused that he shall not be handed over to the police after his statement. Further admitted that he had not given any note to the effect that the accused was made to understand the contents of the statement recorded.
19. To deal with the recoveries in the instant case, suffice it to say that the alleged recovery of Safa P.5 was not effected on the pointing out of the present appellant, and the mere recovery of a bottle smelling of liquor P.1 or the key P.6 in the absence of the injury on the back of the deceased claimed to have been caused by the said key by the approver is of no avail to the prosecution. Therefore, it may be reiterated, in view of the principle laid down by the Division Bench in Muhammad J3ukhsh and others v. The State 1974 PCr.LJ 211 that it is highly unsafe to base conviction on flimsy evidence furnished by doubtful recoveries.
20. To deal with the statement of the accomplice/approver Mukhtar Ahmed P. W.1, it is, once again, observed that the part of his statement, which has been relied upon by the prosecution to claim that his statement is inculpatory as well i.e: his claim to the effect that he had hit the deceased at the back of his chest with the key of the Peater Engine, P.6, has been totally belied by the absence of injury of any nature, however, minor or insubstantial, renders statement only to be exculpatory, as he has otherwise stated in his testimony that he had come out of the room to stand outside as a guard when allegedly the absconding co-accused had caused the murder of Taj Din deceased, thus, totally excluding himself from the commission of the alleged crime. Hence, by his own assertion, he is not even an eye-witness of the said fateful occurrence.
21. To sum it up, neither the statement of the accomplice/approver Mukhtar Ahmed P.W.1 is inculpatory, as his claim to have inflicted injury on the deceased, Taj Din stood belied by the medico-legal report Exh.P.N. And the testimony of P.W.13 Dr. Iftikhar Ahmed, whereas the mode and manner of recording of his statement as an approver under the provisions of section 164, Cr.P.C.
Fully supports the contention raised on behalf of the appellant to the effect that the same suffers from legal infirmity, and as the content and tenor of his statement, as highlighted above, has raised serious doubts about his participation in the occurrence in question and even in respect of his being present at the place of occurrence and that, therefore, the inescapable conclusion drawn is to the effect that his testimony as an approver has to be ruled out of consideration.
22. To support the said conclusion, reliance is placed upon the following:--
(i) Federation of Pakistan v. Muhammad Shafi Muhammadi 1994 SCM R 932 wherein it has been held that an accomplice who takes part in commission of offence falls within the category .a a wicked person. Therefore; before acting upon his testimony, truthfulness of it is to be verified by corroborative piece of evidence on material particulars.
(ii) In Muhammad Yagoob and others v. The State 1992 SCM R 1983 it was held that confession of the approver should be such that it should exclude all possibility of false implication.
(iii) In Abdur Rehman v. The State 1991 SCM R 244 the dictum laid down was that statement of co- accused could not be used against the accused as he had note implicated himself and shifted the burden on the accused.
23. Pursuant to the above discussion, the present criminal appeal is hereby Allowed and the impugned judgment, dated 23-2-1995 is hereby set aside. Resultantly, the appellant stands acquitted of the offence charged. He shall be released forthwith, if not required to be detained in any other case.
' For the reasons stated above, Criminal Revision No,206 of 1995, directed to be heard alongwith the present criminal appeal, is hereby dismissed.