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(and another appeal)
Criminal Appeals Nos. 51 and 52 of 1954, decided on 31st January 1955.
(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 15th July 1954, in Criminal Appeal No. 206 of 1954).
, S. 337 (I A) Tender of pardon‑Omission to record reasons for‑Will not affect admissibility of approver's evidence in the absence of failure of justice.
The ground on which the evidence of the approver was alleged to be inadmissible was that the Additional District Magistrate who tendered the pardon to him did not, as required by subsection (IA) of section 337 of the Code of Criminal Procedure, record reasons for the pardon.
Held, that the effect _ of such omission is not that the evidence of the approver becomes inadmissible. The omission is a curable irregularity, and, in the absence of any circum stance tending to show that it occasioned a failure of justice, cannot affect the admissibility of the approver's evidence.
Bawa Faqir Singh v. The King‑Emperor 65 I A 338 and Crown v. Pir Imam Shah Attaullah Shah I L R 1944 Kar. 97 rel.
‑Testimony of‑Independent corroboration that the approver himself took part in the crime not necessary.
While it is necessary that there should be independent evidence which tends to confirm the approver's testimony that the accused had taken part in the offence charged, it is not at all necessary that the prosecution should produce some independent evidence proving that the approver himself took part in the offence.
‑Accused charged with murder and rape . Acquitted of rape and convicted of murder‑Whether evidence on charge of rape could not be used in confirmation of the charge of murder by High Court.
It was contended that because the Sessions Judge had acquitted the accused on the charge of rape, the evidence relating to that charge could not be accepted by the High Court and treated as confirmative evidence on the charge of murder.
Held, that there was nothing illegal or objectionable in the course adopted by the High Court.
Malak Khan v. Emperor A I R (33) 1946 P C 16 ref.
Ghias Muhammad, Advocate Federal, Court, for Appel lants
C. M. Sharif, Advocate, Federal Court, instructed by Ijaz Ali, Attorney, for Respondent.
Date of hearing : 31st January 1955.
These appeals, by special leave, are from the judgment of the High Court of Lahore in a criminal appeal and reference. Five persons namely, Juma and Fazaldad who are the appellants before us, and Sharif; Inayat and Shera, were charged before the Additional Sessions Judge, Rawalpindi with offences of rioting, criminal trespass, rape, dacoity and murder. The learned Judge acquitted the last two, but convicting Juma, Fazaldad and Sharif, on the charge of murder he sentenced the first two to death and the third to transportation for life. He declined to record a conviction on the charge of rape.
The convicted persons appealed to the High Court where Sharif was acquitted and the sentence of Juma and Fazaldad were confirmed. Leave to appeal to this Court was granted by us in order to consider certain questions which will be set out later and are connected with the admissibility and value of accomplice testimony.
According to the prosecution case, the five accused persons entered the hamlet of Abdul Karim in village Kangu Bahadur at about 8 o'clock in the evening of 11th March 1953 with the object of committing a dacoity. The two appellants and Shera went inside while Ghulam approver and Inayat Ali ascended the roof so that they might not be, seen by the inmates of the harplet who already knew them. Sharif stood outside among some cattle. In the course of the transaction Abdul Karim was killed and his daughter, Mst. Sarwar Jan, is alleged to have been raped by Fazaldad appellant. One of the culprits, namely, Ghulam, turned an approver and gave evidence at the trial against his alleged associates. The other witnesses of the occurrence were Mst. Sarwar Jan (P. W. 19) herself and Mst. Azeeman (P. W. 20), widow of Abdul Karim. Fazaldad appellant is also alleged to have made a confession before a 1st Class Magistrate on 6th April which was recorded under section 164 of the Cr. P. C. The High Court affirmed the conviction of Jumma appellant on the testimony of the approver corroborated as it was by the evidence of Mst. Sarwar Jan. Against Fazaldad, besides the evidence of the approver and Mst. Sarwar Jan there was also the evidence of Mst. Azeeman and his own judicial confession. When the Petition for Special Leave to Appeal came up before us on 14th October 1954 we granted leave to appeal because the case appeared to us to raise the following questions :‑
(1) whether the evidence of the approver in the circum stances of the case was admissible ;
(2) whether it is open to a Court to accept the evidence of an approver even if there be no corroborative evidence against himself ; and
(3) whether in the absence of an appeal by the Provincial Government the High Court in appeal could alter the finding of the trial Court that no rape was committed into a finding that that offence was committed.
We have now heard counsel for the appellants, and see no reason to interfere. The ground on which the evidence of the approver is alleged to be inadmissible is that the learned Additional District Magistrate who tendered the pardon to him did not, as required by subsection (IA) of section 337 of the Code of Criminal Procedure, record reasons for the pardon. While it is true that in the present case no reasons were recorded, the effect of such omission is not that the evidence of the approver became inadmissible. The omission) is a curable, irregularity, and, in the absence of any circum stance tending to show that it occasioned a failure of justice cannot effect the admissibility of the approver's evidence via Bawa Faqir Singh v. The King‑Emperor (65 1 A 388) and Crown v. Pir Imam Shah Attaullah Shah (1 L R 1944 Kar. 97).
As regards the second question which was permitted to be raised in appeal, the rule is not . that where an approver gives evidence a sort of preliminary issue has to be tried by the Court which _ is called upon to judge his evidence, whether he is or is not proved by the other evidence to have taken part in the offence, and if that issue be answered in the negative, not at all to consider the case against the accused persons. The evidence of an accomplice has to be considered as a whole, and though the Court starts with the initial presumption against his trustworthiness it may accept his testimony if it is corroborated in material particulars. This rule that insists on corroboration does not require that corroboration must be on all the particulars of the story, nor that there must be corrobo ration on that part of the story of the accomplice in which he implicates himself. If the independent evidence produced in corroboration tends to show that the persons named by him were parties to the commission of the offence charged, the Court is entitled to accept his evidence even though there be no corroboration against the accomplice himself. In the present case, there was independent evidence which tended to confirm the approver's testimony that the accused had taken part in the offence charged. This was sufficient corroboration, and it was not at all necessary that the prosecution should have produced some independent evidence proving that the approver himself took part in the offence.
The third question arises in regard to the situation that arose in the High Court by the acquittal of Fazaldad appellant by the Sessions Judge on the charge of rape. It was contended that because the trial Judge had acquitted this appellant on the charge of rape, the evidence relating to that charge could not be accepted by the High Court and treated as confirmative evidence on the charge of murder. In view of the Privy Council decision in Malak Khan v. Emperor (AIR(33)1946 PC16), the contention was clearly unsustainable and was rightly repelled. In that case the accused were tried on the charge of robbery and murder and were acquitted by the trial Court on the former charge. When the matter came up in appeal before the High Court that Court reviewed the evidence relating to the charge of robbery, and accepting it as true treated it as evidence on the connected charge of murder, and the Privy Council saw nothing illegal or objectionable in the course adopted by the High Court. Thus none of the points on which leave to appeal was granted in this case having been made out, the appeals are dismissed.
A. H. Appeals dismissed.
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