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Criminal Appeal No. 31 of 1951 decided on 27th October, 1951 against the order of Sessions Judge, Poonch, dated 29th April, 1951.

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--‑Testimony of‑Unworthy of credit unless corrobo rated in material particulars‑Such corroboration not dispensed with even if approver a near relation of accused‑Evidence Act (1 of 1872), Ss. 114, ill. (b) and 133. It is well settled principle of law that an approver's evi dence is unworthy of credit unless corroborated in material particulars.

There is a rule of prudence which has almost the force of law that it is not safe to convict on the uncorroborated evidence of an approver.

Such corroboration is necessary even if the approver happens to be a near relation of the accused.

19 P L R 1911 ref.

Sh. Abdul Hamid, for Appellants.

Muhammad Sharif, Advocate‑General for Government.

This is an appeal against the con viction by the Sessions Judge of Poonch and Muzaffarabad of the two appellants Din Muhammad and Khushal Khan who are first cousins of the triple murder which took place in the village Qilan in Poonch District on the night between 27th and 28th November, 1950. The two appellants have been sentenced to death. The unfortunate victims of the crime were Akbar Muhammad, his wife Mst. Sarwar Jan and his mother Mst. Raj Begum. The deceased were asleep in the house when the assailants are said to have gone there and caused their death by inflicting injuries with hatchets, etc. The assailants according to the prosecution were five in number. Three of them, namely, Sakhi Muhammad, Ayyub and Rehmat who are also nearly related to the appellants made themselves scarce after the commission of the crime. Khushal Khan is a brother of Mst. Moti Begum who was married to Feroze Din brother of Akbar Muhammad deceased. After the death of Feroze Din and another brother Sultan Muhammad, who died childless, Akbar Muhammad took possession of all the property left by his brothers and refused to maintain Mst. Moti Begum. This action of Akbar Muhammad was not liked by Khushal Khan and other relations of Mst. Moti Begum and this is stated to be the motive for the crime.

The case for the prosecution is mainly based upon the evidence of Mst. Moti Begum who has been made approver and her evidence is briefly to the effect that when she was deprived of all the property by Akbar Muhammad deceased then she tried to maintain herself by obtaining money on loan from her uncle's son. Khushal Khan appellant did not like her to beg for money from her uncle's son and told her that she should request Akbar Muhammad deceased to support her as he was a rich man. She told Khushal Khan appellant that Akbar Muhammad deceased was not willing to maintain her and the latter then said that he would finish Akbar Muhammad deceased with the help of Sakhi Muhammad and Din Muhammad and she should consult them on this point. She left her brother Khushal Khan appellant telling him that she would consult Sakhi Muhammad and Din Muhammad and convey to him their message 20 or 25 days later. Khushal Khan appellant met her while she was returning after taking money from her uncle's son Diwan Ali, a few days before the occurrence and it was then decided that the appellants together with the absconders will murder Akbar Muhammad on the fateful night. Accordingly the five culprits came to her house on the night of the occurrence and asked her to have the door of the house of the deceased opened on a pretext that she required tea‑leaves which was done. The five culprits then entered into the house of the deceased and killed the inmates with hatchets, daggers, etc. The boxes lying in the house were thereafter searched and currency notes of the value of Rs.1000 were removed by the culprits who then departed from the scene of offence.

The evidence given by Mst. Moti Begum approver was corroborated by her son Muhammad Sadiq who stated that the two appellants and three absconders visited his mother's house on the night of the occurrence and instructed his mother to go to the house of Akbar Muhammad deceased and have its doors opened saying that she required tea‑leaves for preparing tea for her son who was ill. His mother and the culprits then proceeded towards the house of the deceased. Khushal' Khan and Din Muhammad appellant and Sakhi Muhammad absconder were armed with hatchets. After the culprits had left his house he followed them and observed that they entered the house of the deceased as planned. He stood outside the door of the house of the deceased and heard the noise of the blows given to the deceased with hatchets, etc. At that time fire was burning inside the house of the deceased. He returned to his house running on account of fear. A little later his mother also returned.

In the course of investigation Khushal Khan appellant and Sakhi Muhammad absconder produced before the Police hatchets and suspicious stains of blood were also observed on the clothes worn by Khushal Khan appellant. The medical evi dence showed that injuries found on the person of the deceased could be caused with the hatchets produced before the police by Khushal Khan appellant and Sakhi Muhammad absconder.

On the strength of the above evidence the learned Sessions judge concluded that the story of murder told by Mst. Moti Begum approver in extenso was correct and there was no n reason to disbelieve her as to the identity of culprits who were her kith and kin, when she was corroborated by Muhammad Sadiq, another eye witness of the crime and other evidence pro duced in the case. The learned Sessions Judge accordingly convicted and sentenced the appellants as stated above.

It is contended in appeal that the evidence produced by the prosecution to confirm the testimony of the approver is practically worthless and an uncorroborated evidence of an accomplice cannot form the safe basis of the conviction of the appellants. The contention is full of force.

It is well settled principle of law that an approver's evidence is unworthy of credit unless corroborated in material particulars. In this case the only corroborative evidence which is of any value is that of the approver's son who repeats parrot like what he is tutored to say. In order to satisfy our selves as to approver's son being a genuine witness we examined him ourselves and were convinced that he was not a truthful witness and was professing to have seen matters which did not happen in his presence. This witness did not talk to his mother and sisters about the incident though he had an opportunity to do so in the village before the arrival of the He told the police that he had some information about the crime when his mother's statement had been recorded. He did not cry out when he was frightened by observing ghastly scene in spite of his tender age. All these facts indicate that he is a bogus person and is repeating what he had been tutored to say. His evidence cannot be regarded as corroborating the evidence of the approver in any material particulars.

The discovery of minor spots of blood on the shirt of a villager cannot be considered as any material corroboration of the approver's story that the accused took part in the murder. Further there is no proof that the suspicious stains of blood found on the clothes of Khushal Khan appellant were those of human blood. This piece of evidence consequently cannot be taken as any material corroboration of the approver's story that Khushal Khan appellant took part in the murder.

The medical evidence no doubt establishes that the victims were hacked to death by hatchets but the absence of any stains of blood on the hatchets alleged to have been pro duced before the police by Khushal Khan appellant and Sakhi Muhammad absconder makes it difficult to believe that these hatchets were used in committing the crime. The recovery of hatchets from Khushal Khan appellant and Sakhi Muhammad absconder thus also does not in any way connect either of them with the crime. This piece of evidence therefore cannot also afford corroboration of the approver's testimony so far as the identity of the appellants as murderers of the deceased is concerned.

The above discussion would show that the only evidence against the appellant is uncorroborated evidence of an accom plice. The question is whether it is safe to convict the appellants on this type of evidence. In long series of cases over many years it has been laid down by eminent Judges that there is a rule of prudence which has almost the force of law that it is not safe to convict on the uncorroborated evidence o an approver. The reason for it is that generally speaking an approver is a witness of little worth on account of anxiety on his part to tell a fanci ful story for buying immunity from prosecution. Besides the Court is to be satisfied that the approver speaks the truth not as regards the actual factum of murder but also as regards the identity of the accused. In other words there must be some evidence which associates or tends to associate each individual accused with the crime or we will put it in this way‑there must be such evidence as to the identity of the accused as satisfies the Court that when the approver speaks as to the complicity of this accused and that accused in the offence the approver speaks the truth. And looked at from this point of view we see at once in this case that there is no corroborative evidence as to the identity of the appellants.

It has been argued by the learned Advocate‑General that the approver being the sister of Khushal Khan appellant and cousin of Din Muhammad appellant could not possibly involve them in a serious crime like murder, if they were not concerned in it. But this argument cannot be accepted because if it is done then it would mean that where an approver happens to be a near relation of the accused, the corroboration of the evi dence of the approver is not necessary. In a case reported as 19 P L R 1911, an approver deposed against his father and brother but his evidence was not accepted without corrobora tion. We do not see any reason to depart from the principle laid down in that case. We examined Mst. Moti Begum with a view to find out whether the story told by her was con vincing. At the time of recording her statement, we came to know that she had not been released after the trial had been finished by the learned Sessions Judge. Our attempt to elicit truth from her therefore, cannot be said to have succeeded. If she had been free when she appeared before us then it was quite possible that she might not have repeated the statement made by her before the Sessions Judge. The first part of her story that her brother Khushal Khan appellant took objection to her taking money by way of loan from her uncle's son Diwan Ali was contradicted by the latter who stated before us that she never demanded any money from him. In the cir cumstances we do not attach any great value to the statement of Mst. Moti Begum and we are unable to maintain the convic tion of the appellant on her uncorroborated testimony.

For the foregoing reasons we find the guilt of the appellant not established beyond reasonable doubt. We accordingly accept the appeal, set aside the conviction of the appellants and order their release forthwith. The release warrants to issue to the jail authorities at once. The proceedings for the confirmation of the death sentences awarded to the appellants are dropped.

A. H.

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