ABDUL SHAKURUL SALAM, J.---This order will dispose of Murder Reference , once No. 20 of 1977/BW P and Criminal Appeal No: 18 of 1977/BWP
2. Relevant facts are that Muhammad Abdullah, P. W. 9 lodged a F. I. R. Exh. P. G. At 3 p. m. On 15-2- 1974 at Police Station Dharanwala District Bahawalnagar to the effect that he was a Lambardar of Chak No. 432/6/R. At Maghrab time on 14-2-1974 he came to know from hi; co-villager Rashid Ahmad son of Pir Bakhsh that in the sand dunes towards the East of the village a dead body was lying. He, Rashid son of Pir Bakhsh, Muhammad Rafiq son of Shah Muhammad, Fatah Muhammad son of Abdullah and Din Muhammad son of Haji Rehmatullah, along with other residents of the village, went to the place where the dead body was lying and saw that under sand dune, a male dead body was lying on the side and only right leg was showing on which there was a shod. It was suspected that some body had, after murdering the deceased, buried him in the dune. Due to night, there was no conveyance available. Leaving Muhammad Rafiq, Fatah Muhammad, Rashid and Din Muhammad, he had come to lodge a report. The report was recorded by Ghulam Bari, Head Constable, P. W. 7, who set off for the spot and unearthed the dead body from the sand dune.
He prepared an injury statement Exh. P. F. And inquest report Exh. P. E. And sent the dead body with Muhammad Sharif Constable, P. W. 18 for post-mortem examination. He picked up blood-stained earth from the place of occurrence and took it into possession vide memo. Exh. P. E. He took into possession blood-stained Khais P.
4. Bloodstained turban P. 5, painted Handkerchief P. 6, iron cup P.
7, pair of shoes P. 8/1-2 vile Memo. Exh. P. C. Since the local persons could not identify (the dead body) so finger prints of the dead body were taken. Post-mortem examination was conducted by Dr. Ajab Khan Afridi, Medical Officer, Civil Dispensary Dharaanwala, P. W. 1 who found the following injuries :- "(1) An incised wound on the right side of back of head' size 4--- x 2--- x 3--- deep cutting the occipital bone through and through at its lower part and incising the right ear pinna. The brain matter was coming out through that wound.
(2) An incised wound 7" x 4" x 3----- deep on the right side of upper most part of neck cutting the 2nd vertebra through and through and severing the spinal cord and cutting the right mandibular bone and through and through. It was horizontal in direction the blood vessels were severed in that wound."
He opined that "From the external and internal examination of the dead body I am of the opinion to the best of my knowledge and belief that death have occurred as a result of extensive shock and haemorr--hage due to injury No. 1 which fractured the skull and severed the brain and due to injury No. 2 which severed the high blood vessels of the right side of neck and severed the spinal cord. Injuries Nos, 1 and 2 were ante-mortem were the result of sharp-edged weapon and were individually and collectively sufficient to cause death in normal course of nature. Probable time between injury and death. It was an instantaneous death. Probable time between death and post--mortem within about 7 days."
3. According to the prosecution case, as deposed to by P. W. 6 Ghulam Hussain, son of Allah Rakha (deceased). Ali Ahmad, appellant, wanted the hand of his step-sister Siman to which his father was not agreeable though his step-mother Skina was. The latter also wanted herself to marry one Muhammad Ali Gujjar, Ali Ahmad took Allah Rakha with him after 8/9 daps, the witness went to Jan Muhammad, Lambardar, P. W. 13 and said his father was not traceable. The Lambardar promised to do the needful. The witness went to look for his father to his relations but returned unsuccessful after 8/9 days. He again, went to the Lambardar acid expressed his suspicions about his step- mother Sakina. The latter was summoned. In the presence of Muhammad Sharif Chowkidar, P. W. 15 Lamburdar made inquiries from Sakina and she confessed that she had sent Allah Rakha, her husband, with Ali Ahmad, appellant, for the latter to assassinate the former. The Lambardar summoned Alt Ahmad. The latter confessed and said that he had done the misdeed in the limits of Dharauwala Police Station. The witness along with the Lambardar took Ali Ahmad to Police Station Dora Nawab where F. I. R. Under section 364/109, P. P. C. Was recorded by Malik Abdul Ghafoor, Sub- Inspector Retired, P. W. 8 on 7-3-1974. The latter arrewed Ali Ahmad, appellant, and handed him over to Police Station, Dharanwala, District Bahawalnagar. According to Safdar Yar Khan, S. I. S. H. O.
Dharanwala, P. W. 19, Ali Ahmad was produced by Police of Dera Nawab before him on 8-3-1974 and he made the arrest. On the pointing of Ali Ahmad, P. W. 19 recovered blood-stained hatchet P. 9 from the house of Mst. Hamidan which was taken into possession vide Memo. Exh. P. J. Dated 10-3- 1974. He arrested Mst. Hamidan on 20-3-1974, who told him on promise of pardon that she had illicit relations with Ali Ahmad, appellant, who bad come to her house with Allah Rakha, deceased, and she persuaded Muhammad Anwar who wanted the hand of her daughter to do away with Allah Rakha ; and that with Allah Rakha, who was to search of a wife for his son. She, AD Ahmad, Muhammad Anwar set off froth her house and Ali Ahmad gave hatchet blow to Allah Rakha near the place of occurrence and buried him wrapping in the Khais of Muhammad Anwar in the sand dune. An application for pardon under section 337, Cr. P. C. To Mst. Hamidan was filed by P. W. 19 on 29.3-1974 which was granted and bar confessional statement recorded on 4-4-1974. The Investigating Officer, P. W. 19 arrested Anwar on 10-3-1974 and Mst. Sakina on 22-3-1974.
4. After completion of investigation, Ali Ahmad, appellant, Mst. Sakina and Muhammad Anwar were put to trial under section 302/34, P. P. C. The Prosecution produced Mst. Hamidan, approver, as P. W.
5 ; Muhammad. Nazir, P. W. 11 and Boga, P. W. 12, as recovery witnesses of hatchet P. 9 on the pointing of Ali Ahmad, appellant ; Ghulam Hussain, son of the deceased, P. W. 6 Jan Muhammad, Lamardar, P. W. 13 and Muhammad Sharif, Chaukidar, P. W. 15 as witnesses of extra judicial confession, and Muhammad Sharif, Transporter, P. W. 14, witness of last seeing Ali Ahmed and Allah Rakha boarding the bus, besides other formal witnesses and the Investigating Officer, Safdar Yar Khan, P. W.
19. The accused denied the allegations made against them. Mst. Sakina stated that her step sons were inimical towards her and had falsely implicated her. Muhammad Anwar stated that the case against him was due to enmity. Appellant, Ali Ahmad, stated that Khadim Hussain was the son of Allah Rakha deceased. He was married with the daughter of my sister. Their relations became strained and the daughter of my sister came to her mother and resided with me. Khadim Hussain had tried to get her back. She was not allowed to go. Khadim Hussain is inimical, so he has falsely implicated me in this case", and that "the P. Ws. Are under the influence of the complainant party and that of the police". The learned Additional Sessions Judge, Bahawalnagar, acquitted Mst.
Sakina and Muhammad Anwar, but, convicted Ali Ahmad, appellant, under section 302, P. P. C. And sentenced him to death subject to confirmation by this Court vide judgment 1-2-1977. The Reference and the convict's all are being disposed of by this order.
4. Mst. Hamidan Bibi, approver, appeared as P. W. 5 had deposed that she used to live 10/11 years earlier than the occurrence in Chak No. 41/D. B., P/S Yazman with her husband where Ali Ahmad, appellant, also lived. She developed illicit relations with Ali Ahmad. Her husband came to know about those relations. Then, they shifted to Chak No. 310 H. K. In Tehsil Fortabbas Ali Ahmad, appellant, visited her house also in Chak No. 310 H. K. There she lived for three years and shifted to Chak No. 433/6-R. Ali Ahmad visited her house twice and, on the third occasion he came along with Allah Rakha (deceased). She served them with dinner. Allah Rakha slept is a separate room while Ali Ahmad, appellant, slept in the same room in which she was to sleep. Ali Ahmad told her that Siman and Sakina had sent him so that Allah Rakha may be murdered. She (Sakina) had offered the hand of her daughter Mst. Siman in case of joining the assassination of Allah Rakha. .
Meanwhile Anwar accused also came. She (Mst. Hamidan Bibi) said to Anwar that he should join in killing Allah Rakha and she would give him the hand of her (Mst. Hamidan Bibi) daughter. Irshad alias Shamshad, Anwar then left for his house while Ali Ahmad and she remained there Ali Ahmad remained in her house. Next day in the evening she served him meals. Then, she, Ali Ahmad, Anwar, Allah Rakha set off for Fort Abbas at about Maghrab time. They travelled a distance of two mils towards the east of Chak No. 433/6-8. Allah Rakha, deceased, vas ahead of then followed by Ali Ahmad appellant. Ali Ahmad gave a hatchet blow to Allah Rakha from behind on receipt whereof Allah Rakha fell down. Ali Ahmad gave two more hatchet blows to Allah Rakha. Allati Rakha expired at the spot. Ali Ahmad then took a khais from Anwar and wrapped the dead body in the khais and buried the same. Then they returned to her house. Anwar went away to his house while Ali Ahmad appellant stayed with her and buried the hatchet near the bath. Ali Ahmad stayed for the night in the house and left next morning. After 15 days, Anwar came and informed char Ali Ahmad had been arrested. She suggested to Anwar to go to Nazir Lambardar. (It is Jan Muhammad Lambardar P. W. 13 to whom both of them went.) Two persons were also sitting there. Both (she and Anwar, told the whole story. They were told to go to their house, and that they would be helped when the Police started investigation. On the next day at about 12-00 noon, the Police came to the village. Ali Ahmad was under custody and led to the recovery of hatchet P.
9. Anwar was summoned. In cross- examination. She told that she was not acquainted with Siman and her mother personally. She was taken to the police station where she stayed for the night. She, however, stated that I was kept in the house of one Ashraf, a Police Officer, who had told me that her statement will be recorded and that you are not being kept in the lock up. For thirteen days I was kept in that house. During this period I was once called by one officer of the police and then I was sent back to the house. Then T was taken to the Court of D. M. Where my statement was recorded and then I was sent to Jail". Jan Muhammad Lambardar P. W. 13, Muhammad Sharif, Chaukidar, P. W. 15 and Ghulam Hussain, son of the due, P. W. 6 appeared to prove the extra-judicial confession. The learned Additional Sessions Judge excluded the evidence of extra judicial confession, relying on PLD 1960 Lab. 189, for having been made to a person in authority, I e. Jan Muhammad, Lambardar, P. W.
13. He did not consider and attach any weight to the evidence- of Muhammad Sharif Transporter, P. W. 14 about the last seen evidence. However, relying on the evidence of the recovery of hatchet P. 9, as corroborative piece of evidence of the testimony of the approver, Mst. Hamidan, P. W. 5, the learned Additional Sessions Judge found Ali Ahmad, appellant, guilty and sentenced him as stated above.
5. Learned counsel for the appellant has submitted that the recovery of hatchet P. 9 cannot be treated as corrorboration of the testimony of the approver Mst. Hamidan Bibi, P. W. 5 for the reason that not only there is a wide discrepancy in the statements of the two recovery witness Muhammad Nazir, P. W. 11 and Boga, P. W. 12 but no witness from the locality was produced when there were many.
6. A few words may be said at the outset about the evidence on the record which has not been taken into account or excluded by the learned trial Court. First is the evidence of Muhammad Shard, Transporter. P. W. 14 in the nature of "Last seen" when he said that he saw the appellant, Ali Ahmad, and deceased Allah Rakha, boarding the bus. Now, this was not only quite a few days earlier than the demise of Allah Rakha but t latter has been living in the house of Mst. Hamidan in her Chak No. 433/6-- for a couple of days and from there no witness is forthcoming excepting Mst.
Hamidan, approver. Secondly, the witness's sister is married to Jan Muhammad, Lambardar, P. W. 13 who is a witness of extra judicial confession. Therefore, evidence of Muhammad Sharif, P. W. 1.4 is of not much help to the prosecution. As regards extra judicial confession made to Jan Muhammad, Lambardar, P. W. 13, not only that he is a man in authority but had also promised to the co-amused of the appellant namely Sakina help if she were to narrate the story. He told the appellant "about the confession made by Mst. Sakina and asked him to confess as well". Then, Muhammad Sharif, Chaukidar, P. W. 15 stated "it is correct that Lambardar had promised with Ali Ahmad accused to help him, if he narrated') the whole story" Ghulam Hussain son of the deceased, P. W. 6, said that "He (appellant) was also told by the Lambardar that he will help him and he will save him from the torture of the Police if .The accused tells the story". Therefore, it is quite clear that the extra judicial confession mad to Jan Muhammad Lambardar P. W. 13 person in authority, on inducemen and promise, is completely irrelevant vide section 24 of the Evidence Act, 187 and the learned trial Court rightly relied on PLD 1960 Lah. 489 I excluding .The same. No question was put about the presence of Muhammad Sharif, Chaukidar, P. W. 15 and Ghulam Hussain, son of the deceased P. W.
6. At the time of confessional statement to Ali Ahmad under section 342, Cr. P. C. Besides, the former is a Chaukidar of the village whose Lambardar is Jan Muhammad. P. W. 13 and the latter witness is interested, being son of the deceased. Consequently, it is found that the learned trial Court was quite right in excluding the extra judicial confession.
7. Now, coming, to the evidence relied upon by the learned trial Court; there is Mst. Hamidan, P. W. 5, the approver, and the recovery of hatchet P. 9 used as corroboration. Under section 133 of the Evidence Act, 1872, although it is provided that "an accomplice shall be a competent witness against an accused person and a conviction, is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice." yet, it .Is provided in the same Act vide illustration (b) to section 144 "that the Court, may presume that an accomplice is unworthy of credit, unless he is corro--borated in material particulars". The placing of the two provisions would show that the Legislature conferred the jurisdiction on the Court to presume", without even any evidence, "that an accomplice is unworth of credit unless he is corroborated in material particulars", the reason being simple that an accomplice is a self-confessed criminal, though is provided in the later section that if the Court were to convict on uncorroborated evidence of an accomplice, its order would not be illegal. The jurisdiction of the Court was not tams away. Reading the two provisions together, it is clear that guideline is given to the Court but it is left to decide on its own good judgment and experience. Now, we know that it is established law of long standing that an approver's testimony without corroboration is not accepted by Courts. In the present case, the testimony of the approver, Mat. Hamidan P. W. 5, as noted above, to say the least is a cock and bull story. She had not stated as to why did she join Ali Ahmad, appellant, in killing Allah Rakha deceased, especially when Ali Ahmad, her own paramour of 10/11 years standing, was going to get married with the D deceased's daughter Siman? Then why should the appellant bring the deceased to her house and stay there for a couple of days : Would he no apprehend that he would be creating evidence against himself ?
Then the witness, Mst. Hamidan, approver P. W. 5, besides being a self-confessed criminal, in a person of depraved character according to her own showing she had been carrying on illicit relations for no less than 10/11 years while living with her husband. She has thus not been true to her own family and husband. How can she inspire confidence in her depositions ? Then, she had been kept, according to her, in the house of a Police Officer for thirteen days before her statement was recorded on the orders of the District Magistrate. For, all these reasons her statement is totally devoid of any credibility. Therefore, question of corroboration of her testimony hardly arises : "The essence of corroborative evidence", as held by the House of Lords in Director of Public Prosecution v. Hester ((1972) All E R 1065), "is that one credit worthy witness confirms what another credit worthy witness has said. The purpose of corroboration is not to give validity of credence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible ; and corroborative evidence will only fill its role if it itself is completely credible". Therefore the evidence of the approver being incredible, it cannot be corroborated.
Further, an accomplice, pet section 114, illustration (b) of the Evidence Act, 1872, may, be presumed to be unworthy of credit, unless corroborated in "material particulars". In other words, corroborative evidence should be of "material particulars" in plural, not that of a solitary particular. In the present case, the corroborative evidence is only in reiation to the recovery of the hatchet P. 9, on the pointing of the appellant. This cannot by itself corroborate that the deceased was killed by this hatchet and by the appellant. Moreover, this piece of evidence of the recovery of hatchet P. 9 at the pointing of the appellant is of not much assistance to the prosecution because the recovery itself had been effected on 10-3-1974 and the statement of the approver was recorded on 4-4-1974.
Therefore, the recovery is, by no means, corroboration of the statement. Further, the recovery witness. Muhammad Nazir, P. W. 11, is not from the village wherein recovery had been effected. Then, the witness admitted that "I have been appearing as a witness in many cases. "In other words, he is a stock witness. The other recovery witness is Boga, P. W.
12. He is a Chaukidar for the last 12 years.
He is not an independent and free person. Further, he is inconsistent with the previous witness on material points of time of the recovery, presence of the husband and son of Mst. Hamidan Bibi at the time of recovery. In all the circumstances, the evidence of recovery of hatchet P. 9, is neither helpful to the prosecution, nor completely credible to be safely relied upon.
8. From the above analysis, it would be clear that the evidence-of the approver is completely shorn of credibility. It has not been corroborated on material particulars. Corroboration by the recovery of hatchet P. 9 is inapt and it itself is unworthy of credit. The evidence on the record is not at all sufficient or reliable to warrant a conviction. Therefore, the reference is rejected and the convict's appeal is allowed. The appellant shall bin set at liberty if not wanted in any other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.