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P L D 1956 (W. P.) Lahore 100

Before Shabir Ahmad and Muhammad Sharif, JJ

ABDUL QADIR‑Convict‑Appellant

Versus

THE CROWN‑Respondent

Criminal Appeal No. 356 of 1925, decided on 13th Decem ber 1955 from the order of Bashir‑ud‑Din Ahmad, Sessions Judge, Rawalpindi, dated the 7th April 1955.

(a)Criminal Procedure Code (V of 1898),

Ss, 367, 537 Judgment not vitiated if preliminary or non-controversial points of case are written up before conclusion of arguments‑Nor, if it was pronounced before it was written.

'The Sessions judge pronounced judgment in a case on the same day on .which arguments were finished. The judgment was a lengthy document covering about thirty pages of the printed record. It was contended in appeal that the judgment was not a judgment in the eye of law, having been either written before the arguments had concluded, or pronounced before it was in fact written.

Held: The judgment is not vitiated if the judge dictates the preliminaries or non‑controvertial points of the case before arguments are heard or before they conclude. Nor is the judgment vitiated if it was pronounced before it was written.

Non‑compliance with the formalities of section 367 Crimi nal P. C. is cured by section 537 Criminal P. C. unless preju dice is shown to have been caused to the accused.

(b) Evidence Act (1 of 1872),

S. 45‑Expert‑Opinion that a part of a document was not written at the same time as the rest of it‑Not a question as to "identity of handwriting"‑Opinion, held, inadmissible.

In a recovery memo., in a murder case, it was mentioned that the cap of a fountain pen recovered from the place of mur der had the name of the deceased engraved on it. The defence allegation was that these words were interpolated afterwards, and this was sought to be proved by the opinion of an expert, who deposed, that this part of the writing had not been written at the time when the rest of the document was written.

Held, that the statement that some part of the document was not written at the same time as the rest of the document is not an opinion, as to the identity of handwriting and is there fore inadmissible.

Also, that had the document been written in ink, the statement might have been admissible as relating to a question of science if the witness was an expert in science, but as the writing was in pencil and the opinion which the witness gave was based on an examination of the writing itself, the state ment was inadmissible.

Further, that the opinion, even if admissible, was incorrect on the basis of other evidence in the case.

(c) Evidence Act (I of 1872),

Ss. 114 illus. (b) and 133 ‑Accomplice, statement of Necessity of corroboration‑Nature and sufficiency of corroborative evidence‑Corroboration of accom plice having himself taken part in crime not necessary‑Motive as corroboration‑Two approvers‑Corroborating each other Decision of case also resting on independent corroboration.

A conviction based on the uncorroborated testimony of an accomplice cannot be considered to be sound in law and it has now become almost a rule of law that no conviction should be based on the statement of an accom plice unless it is corroborated in material particulars. The necessity for corroboration arises because of the fact that the accomplice, in addition to being a self‑confessed criminal, is, if his statement is taken at its face value, a person who has no compunction in giving away his confederates in crime to whom, it may be presumed, he had given a promise of secrecy. When dealing with a man of this type, the Court has to be fully satisfied that he is telling the truth and is not relating a story which is, wholly or in part a creation of his own or some one else's fertile brain.

Whether or not the corroborative evidence is sufficient to convince the Court that the statement of the accomplice that the accused took part in the crime is correct must depend on the circumstances of each case. If, for example, the accom plice who gives evidence is a hardened criminal or an enemy of the accused person, or a person who is pliable in the hands of those who want to have the accused punished, the Court will require very strong corroboration before convicting the accused. If, however, the accomplice is a man of blameless past who for some reason has committed a crime and has no kind of motive to falsely involve the accused person, corroboration of a very high order may not be necessary provided it tends to connect the accused with the crime.

While considering whether or not there is corroboration of the statement of an accomplice, what the Court has to see is not whether there is other evidence sufficient to connect the accused with the crime but only whether the statement of the accomplice which directly connects the accused with the crime is corroborated in such material particulars as to satisfy the Court that there was no risk in convicting the accused on the statement of the accomplice coupled with the corroborative evidence, bearing in mind the maxim that it was better that a hundred guilty persons ‑should escape than one innocent person should suffer punishment which he did not merit.

While it is necessary that the statement of the approver should be corroborated it is not necessary that there should be corroboration of the statement of the accomplice on all points including the one that he himself took part in the crime. When appearing as a witness an accomplice cannot be divested of the status of a witness and to insist that before his statement is accepted in any particular, it should be corroborated, will amount to holding that what an accomplice says is not evidence.

An accomplice may be believed with regard to his own participation in the crime without any corroboration.

The existence of motive is not by itself corroboration which is sufficient to base a conviction on. It is no more than a piece of relevant evidence to be kept in view when consider ing the cumulative effect of the evidence against the accused.

Juma and another v. The Crown P L R 1954 Lah. 859

P L D 1954 Lah. 783 and Fazal Dad v. The Crown P L D 1955 F. C. 152 rel.

Where there were two approvers, apart from independent corroboration, the fact of one approver corroborating the other in material details was also taken into account.

(d) Sentence‑-

Actual perpetrators of murder turned appro vers‑Instigator sentenced to death.

M. Sleem, Anwar, Amjad Hussain and Dr. Tasadduque, Hussain for Appellant.

A. R. Changez, Advocate‑General Lahore for Respondent.

JUDGMENT

SHABIR AHMAD J.

‑Agreeing with the unanimous opinion of the four assessors who assisted him at the trial, Mr. Bashir‑ud‑Din Ahmad, Sessions Judge, Rawalpindi, has by his order dated the 7th April 1955, sentenced Abdul Qadir, a motor‑car dealer of Rawalpindi, to death under section 302/109 and section 302 read with section 120 (b) of the Pakistan Penal Code, and has, as required by section 374 of the Code of Criminal Procedure, referred the case to this Court for confirmation of the sentence, while the condemned man has presented an appeal to question his convictions and sen tences. The appeal and the reference for confirmation will be disposed of by this order.

The case arises out of the death of Ch. Muhammad Bakhsh, Advocate, who used to practice as a legal practitioner at Rawalpindi. It was alleged by the prosecution that as Ch. Muhammad Bakhsh had appeared against the appellant in a number of cases, the former had him out to death.

Briefly stated, the material facts alleged by the pro secution are these. Abdul Qadir appellant, who wanted to do away with Ch. Muhammad Bakhsh, whose professional assis tance to the opponents of the former had led him to suffer a good deal of monetary loss, entered into a conspiracy with Hussain Muhammad, a retired Lieutenant Colonel, a Havildar, Abdul Hag by name, a sister's son of Hussain Muhammad, and Alam Khan, his own motor driver, and had Ch. Muhammad Bakhsh killed on the 14^th of June 1954 in a forest known as Rakh Chhinji, which is situated in the dis trict of Campbellpur. Early in the morning on the 14th of June 1954, Ch. Muhammad Bakhsh was taken in a car by Hussain Muhammad, Abdul Hag and Alam Khan, and when they reached near the place where the murder was committed, Hussain Muhammad sat in the car while the other two took Ch. Muhammad Bakhsh in the forest and killed him by shooting at him with shotguns, after which they burnt his body so that no trace of the crime may be left.

Chaudhry Muhammad Bakhsh left his house on the Murree Road, Rawalpindi, on the morning of the 14th of June 1954, on what was believed to be a professional errand, but as he did not return for two days, his relatives naturally got anxious about his welfare. Enquiries made by the relatives from the clerk of Ch. Muhammad Bakhsh revealed that the Advocate had gone to Pail in connection with some professional work. At this a son of Ch. Muhammad Bakhsh, Asghar Hamid by name, sent Fazal Ahmad, clerk of Ch. Muhammad Bakhsh, and one Abdul Aziz to the Rest House at Pail to enquire if Ch. Muhammad Bakhsh had been there. These two persons returned on the evening of the 17th and said that the chowki dar at the Rest House had informed them that no Magistrate or lawyer had been to the Rest House for a number of days.

The information thus conveyed to the son of Ch. Muhammad Bakhsh, not unnaturally, made him very anxious and he went to Police Station C‑Division, Rawalpindi, and made a report to the police shortly after midnight on the 17th of June 1954. In this report, after detailing that his father, who had left on the morning of the 14th of June, had not returned till then, the informant added that he suspected that Abdul Qadir had had his father murdered because of enmity'.

Soon after the above report was registered at the police station, the police started investigation and arrested Abdul Qadir appellant on the 19th of June 1954. The investigation proceeded and on the 21st of July 1954 Hussain Muhammad was arrested by the police as he was coming out of the Military Hospital at Rawalpindi. On the 26th July 1954, Abdul Haq, the nephew of Hussain Muhammad, was arrested at Peshawar, where he was serving as Havildar in the Royal Pakistan Artillery. On the 5th of August 1954, Mr. Sher Bahadur Khan, Additional District Magistrate, Rawalpindi, acting under section 337 of the Code of Criminal Procedure, tendered a pardon to Hussain Muhammad and Abdul Haq on the condition that they would disclose true facts with regard to the death of Ch. Muhammad Bakhsh, Advocate. This tender of pardon was accepted by Hussain Muhammad and Abdul Haq and they were made approvers. The statements of these two persons disclosed that Ch. Muhammad Bakhsh had been murdered by them and Alam Khan, at the instance of Abdul Qadir appellant. Alam Khan, who could not be traced in spite of the best efforts of the police, was treated as an absconder and Abdul Qadir appellant was put on his trial for the murder of Ch. Muhammad Bakhsh with the result already mentioned.

About a day and a half before the report was made, i. e., on the morning of the 16th of June 1954. Noor Muhammad, a forest guard of Rakh Chhinji, when rounding up some cattle which had trespassed into the Rakh noticed a human foot and some bones lying in the forest. He sent information to a lambar dar who, in his turn, conveyed it to Police Station Talagang, in the jurisdiction of which the place where those things lay was situate. On receiving the information Muhammad Safdar, Sub‑Inspector, who was S. H. O. Police Station Talagang, went to the Rakh and there collected the things which showed that a human body had been set on fire there. It was alleged by the prosecution that he also recovered a number of articles from the place, one of which was the cap of a fountain pen, on which was engraved the name of the missing Advocate. From the vicinity he also recovered a stone, which appeared to him to be stained with blood. He made these articles into parcles and took them to the Police Station Talagang. In due course the ashes and the stone were sent to the Serologist to the Government of Pakistan, who reported that the articles were stained with blood which was of human origin. The bones recovered from the place were sent to Dr. Afzal, Assistant Professor of Anatomy, King Edward Medical College, Lahore, who gave it as his opinion that the bones were of a male human being, who must have been of the age of at least twenty‑five years, though he could not say what the upper limit of the age of that person was. The fact that the ashes and the stone were stained with human blood, that a human foot lay near the ashes, and that the bones recovered from the scene of the occurrence were deposed to by Dr. Afzal (P. W. 35) to belong to a human being, it can hardly be doubted that a human body had been burnt at the place where the ashes and the other articles mentioned above were recovered from. In the presence of all this evidence the deposition of Mst. Bhag Bhari (P. W. 26) to the effect that about nine months before the day she appeared as a witness in the trial Court (15th March 1955) she had seen a man's body on fire in Rakh Chhinji, though thoroughly reliable, may easily be kept out of consideration as otiose.

At the trial, the prosecution case was sought to be proved' by the depositions of no less than seventy‑three witnesses and by a mass of documents, but the most important evidence in the case was given by the two approvers, namely, Hussain Muhammad (P. W. 2) and his nephew, Abdul Haq (P. W. 3) both of whom, as already mentioned, had been granted a pardon under section 337 of the Code of Criminal Procedure. The defence evidence comprised of a number of documents and the depositions of thirteen witnesses. It was because of the great volume of evidence on both sides that the trial which started on the 2^nd of March 1955 and proceeded parti cularly from day to day did not 'terminate earlier than the 7^th of April 1955. The arguments of the learned counsel for the parties began being addressed on the 2nd of April 1955 and finished on the 7^th of April 1955 on which date the judg ment under appeal was pronounced.

Before dealing with the evidence in the case, I might dispose of an argument raised on behalf of the appellant that the judgment of the learned trial judge was not a judgment in the eye of law. It was urged that either the learned trial judge had written the judgment before hearing in full the arguments addressed to him by counsel for the parties or the judgment was pronounced before it had been written, in either of which case, it was contended, it would not be in conformity with the provisions of law applicable to judgments. The judgment under appeal is fairly lengthy and in the prin ted record covers about thirty‑four pages, but as the learned judge of the trial Court for some reason deemed it necessary to have the lengthy statements of Hussain Ahmad and Abdul Haq approvers copied out almost wholly in his judgment, the judgment is not as lengthy as it would appear to be. But even so, it may be safely presumed that the judgment was open to one or the other of the criticisms levelled against it, and the question to consider is whether the judgment was vitiated. The record shows that the statement of the last ' witness for the defence was taken on the 2nd of April 1955 and the assessors gave their opinion on the 7th of April 1955. The trial Judge had, therefore, four clear days to dictate the judgment in so far as the facts of the case went. After the arguments of the counsel concluded the trial judge could have on that very day dictated the rest of the judgment. It is not without significance that, though present at the time when Mr. Sleem addressed arguments on this aspect of the case, Dr. Tasadduque Hussain, Advocate, who appeared for the accused during the trial and who put in fitful appearance during the hearing of the appeal because, as he put it, though not engaged in the appeal he had not been able to divest him self of his interest in the case, did not say that any of his contentions before the trial judge had not received requisite consideration in the judgment under appeal. I can see no harm in a judge dictating that part of his judgment which mentions preliminaries or non‑controversial points before the argument finish and would, therefore, hold that even if the trial Judge had dictated that part of the judgment which deals with the above‑mentioned matters before arguments were addressed or before they concluded the judgment was not vitiated.

The alternative objection to the judgment was based on subsection (1) of section 367 of the Code of Criminal Procedure which is in the following terms:‑

367 (1) " Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the Court (or from the dictation of such presiding officer) in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall be signed by him."

(By such judgments occurring in this subsection is meant judgments of Courts of original jurisdiction). It was urged that as the section requires that the judgment shall be dated and signed by the presiding officer in open Court at the time of pronouncing it and the circumstances showed that the judgment had not been completed at the time when it was pronounced, the judgment under appeal was vitiated as it had not complied with the provisions of law. Assuming that what was said about the judgment having been announced before it had been completed was correct, I am of the view that the document cannot be divested of its force merely because of what is presumed to have been done. What has been relied upon is nothing but a formality, non‑compliance with which would be nothing but an irregularity curable under section 537 of the Code of Criminal Procedure unless it were shown that the accused had been prejudiced because of the non‑compliance with the formality if any such non‑compliance there was. Learned counsel for the appellant did not say that any prejudice had been caused to the accused. and I would, therefore, repel the criticism levelled against the judgment and will add that section 537 of the Code of Criminal Procedure could be invoked to cure both the above‑mentioned criticisms.

Hussain Muhammad, who appeared at the trial as the second witness for the prosecution, stated that he had joined the army as a private soldier in 1927, was given Viceroy's Commission in 1938, retired as a Major in 1953 and was given the honorary rank of a Lieutenant Colonel after his retirement. After his retirement, he settled at Malakwal, which is a village in Tehsil Talagang of Campbellpur District, and purchased a site for a house there. In 1951 he was an indoor patient in the C. M. H. Hospital at Rawalpindi where he got acquainted with Abdul Qadir appellant who had been admitted to the hospital as he was suffering from Fistula and was living in the same room with him. The same year, i.e., in 1951, the appellant visited him at Dina in the Jhelum District, where the witness was posted as Commanding Officer, 2, Reinforce ment Centre, and repeated the visit twice or thrice afterwards. When he was posted at Dina, the appellant had sold a station wagon to him for Rs.9,000, which vehicle the witness sold away when he was transferred to Hazara. While on his way to Hazara, he had taken a Triumph car for use without any payment from Abdul Qadir appellant. Subsequently he bought a Chevrolet car in March or April 1953 from the appellant. He came to Rawalpindi in the middle of May 1954 from Malakwal and stayed with the appellant in a flat over the office of the Chevrolet Company on the Peshawar Road where the appellant resided. On the second day of his stay with the appellant he was told by the appellant in the presence of his servant, Alain Khan absconder that Ch. Muhammad Bakhsh, Advocate, had made his life miserable by appearing in cases against him. It was explained by the appellant that the activities of Ch. Muhammad Bakhsh, Advocate, had caused him a loss of thousands of rupees and in a case that was then pending and which was being conducted for his opponents by Ch. Muhammad Bakhsh, Advocate, he (the appellant) ran a risk of being sent to prison on a criminal charge. At this Alam Khan absconder remarked that had it not been for his master's disapproval of the scheme, he would have long ago shot down Ch. Muhammad Bakhsb, Advocate, in Courts. He (the witness) told the appellant that he was wrong in assuming that the Advocate was his enemy because his real enemy was Fazal Elahi on whose behalf the Advocate fought cases, but the appellant said that if he had Fazal Elahi killed, the Advocate will not only have him brought to book but will also cause a lot of trouble to his friends and his family and that if Ch. Muhammad Bakhsh, Advocate, were killed his enemies will stop prosecuting him. He told the appellant that he and Alain Khan absconder will think of some means to do away with Ch. Muhammad Bakhsh, Advocate, at which the appellant suggested that the Advocate be taken to some place where he should be killed and after that his dead body should be burnt to remove all traces of the murder. A discussion ensued, and it was decided that there should be another man taken into confidence and he should take Ch. Muhammad Bakhsh with him to a place far from Rawalpindi where the Advocate should be put to death. After staying with the appellant for five or six days, he went away to Malakwal, where he was visited by Alam Khan absconder who had been sent by the appellant to enquire if he had been able to arrange for a person who should decoy Ch. Muhammad Bakhsh, Advocate, to some place where he should be murdered. He told Alain Khan absconder that he had till then not been able to think of a suitable person at which the absconder went away after staying with him for a few minutes.

On the 9^th of June 1954, he visited Rawalpindi in connec tion with the purchase of material for the construction of his house at Malakwal. On this occasion he was accompanied by his nephew, Abdul Hag approver (P. W. 3), and Abdul Ghafoor. They had come in a bus in which Abdul Qadir. Head Constable Police (P. W. 71), traveled with them. They got down at the bus stand which is near the premises of Abdul Qadir & Company, of which Abdul Qadir appellant is the managing director. He telephoned to Dr. Manzoor of Frontier Motors Limited, Rawalpindi, to get a job for Abdul Ghafoor in the Attock Oil Company. Abdul Ghafoor then went to Doctor Manzoor and he himself, in the company of Abdul Hag (P. W. 3), went to the appellant's house. The appellant and the absconder asked him if he had been able to arrange for the man who was to decoy Ch. Muhammad Bakhsh, to which he replied .in the negative. The appellant suggested that Abdul Hag should be asked to help them in the matter, but the witness replied that as Abdul Hag was his relative, he did not want him to take the grave risk. The appellant insisted that Abdul Hag would be a good choice, at which he (the witness) sent for Abdul Hag and explained to him what was expected of him, adding that Abdul Qadir was his best friend. Abdul Hag agreed and when told of this Abdul Qadir appellant said that he would give Rs. 5,000 to Abdul Hag as a reward. Abdul Hag asked the appellant where the house of the man whom‑ he wanted to get killed was, at which the appellant said that the deed was not to be done at the house of the Advocate but at some other place. Then the appellant told Abdul Hag that the Advocate should be taken to some lonely place and killed there, after which the dead body should be burnt. The witness told the appellant that as he had no case of his own pending in any Court during those days, it would not be possible for him to take Ch. Muhammad Bakhsh, Advocate, with him, on the pretence that his pro fessional services were required. It was decided, after discus sion, that Ch. Muhammad Bakhsh, Advocate, should be asked to go to Pail Padhrar on the pretext that there were some disputes relating to collieries situated in that vicinity in which his professional services were required. Shortly afterwards the appellant directed Alam Khan absconder to go with Abdul Hag and show him the house of Ch. Muhammad Bakhsh, Advocate. Abdul Hag and Alam Khan absconder went together and Abdul Hag went to the house of Ch. Muhammad Bakhsh in the evening. At night Abdul Hag returned and told them (the appellant and the witness) that he had prevailed upon Ch. Muhammad Bakhsh to accompany him on payment of Rs.220 as his fee and that Ch. Muhammad Bakhsh, Advocate, will tell him on the 12th of June in the District Courts on what date and at what time he could accompany Abdul Hag. Abdul Hag told the appellant that Rs. 30 were to be paid as advance to Ch. Muhammad Bakhsh, Advocate, on the 12th of June.

On the morning of the 10th of June 1954, the appellant suggested to the two approvers and Alam Khan absconder that as Ch. Muhammad Bakhsh, Advocate, had agreed to go to Pail Padhrar, the place where the murder was to be committed should be examined before hand and, consequently, the two approvers and Alam Khan absconder went in a car belonging to Abdul Qadir & Company to Pail Padhrar. They decided that Ch. Muhammad Bakhsh should be done to death at a place which they selected in Rakh Chhinji and, returned to Rawalpindi the same day at about 1 p. m.

On the morning of the 11th of June 1954 Abdul Qadir and he (the witness) went to Mr. Davis of the Attock Oil Company in connection with the employment of the son of the witness in that company. They met Mr. Davis in his office and after half an hour returned to the premises of Abdul Qadir appellant. He enquired from Abdul Qadir which car he proposed to place at their disposal for taking Ch. Muhammad Bakhsh on his last journey and was told that the car belonging to General Mackay, which was standing in the workshop of the company would be most suitable. 1 As this was an old car, it was taken out for a test drive on that night by the witness, Alam Khan absconder and the appellant, the last‑named of whom drove the vehicle. They drove to Busal and back and found the car sound. On the next morning Abdul Hag (P. W. 3) went t4 District Courts to contact Ch. Muhammad Bakhsh, Advocate, with the money supplied by the appellant to be given as advance to the Advocate. At about 11 a.m. Abdul Hag returned and said that the Advocate had agreed to accompany him to Pail Padhrar on the 14th of June adding that he would go to the house of the Advocate on the evening of the 13th of June .to remind him of his engagement. On the evening of the 12th of June 1954, he and his nephew left Rawalpindi for Malakwal and returned on the evening of the 13th of June. On this occasion Abdul Hag brought his single barrelled breach loading gun with him. When they came to the premises of Abdul Qadir & Company, they found Malik Mahmood of Pak Insurance Company sitting there. He invited them to lunch which invitation was accepted by Abdul Qadir appellant and himself. Soon after Malik Mahmood left and he‑asked the appellant if he had made arrangements for arms and ammuni tion and was told that a gun and cartridges would be given to Alain Khan absconder. The same evening Abdul Hag went to remind the Advocate of his appointment and on his return stated that the Advocate was not available but he had told the servant of the Advocate that he would come to take the Advocate with him early the next morning.

Continuing his statement P. W. 2 said that at about 3 a.m. on the 14th of June 1954, he along with Abdul Hag P. W. and Alam Khan absconder went to the house of Ch. Muhammad Bakhsh, Advocate, in the car of General Mackay which had been given to them by the appellant On the way Alam Khan absconder was made to get down evidently because they did not want the Advocate to see that anyone connected with the appellant was in the car. He himself drove the car and they reached the house of the Advocate at about 3‑30 a.m. Abdul Hag P. W. woke up the servant of the Advocate who told Abdul Hag that he had told his master of Abdul Hag's visit last evening. Shortly afterwards Ch. Muhammad Bakhsh, Advocate, arrived and Abdul Hag met him. Chaudhry Muhammad Bakhsh, Advocate came to the car and shock hands with him (witness) and went inside his house where only the senior of his two wives was residing. Abdul Hag paid Rs. 190 to Ch. Muhammad Bakhsh, Advocate who, after dressing himself, came and sat in the car on the front seat. They left the house of Ch. Muhammad Bakhsh, Advocate, and picking Alam Khan absconder on the way, proceeded to Chakwal via Gujarkhan. They stopped at a shrine hear Kallar Kahar where Chaudhry Khan P. W. met them. Shortly after they left for Rakh Chhinji where they reached at about 8 a.m. The car was stopped near a footpath that leads to the forest and he himself remained in the car. He told Ch. Muhammad Bakhsh, Advocate, that he should proceed with Abdul Hag and Alain Khan absconder and he himself will meet them shortly after making arrangements for food. Chaudhry Muhammad Bakhsh left in the company of Abdul Hag P. W. and Alam Khan absconder, each of whom had a gun, while he stayed in the car. After eight or ten minutes he heard the reports of three gun‑shorts. Shortly after Alam Khan absconder came running towards the car and said that the Advocate had been done to death. Alam Khan absconder took a tin of petrol and a gunny bag from the car and went back to the place where the deed had been done. Eight or ten minutes later Abdul Hag P. W. and Alam Khan absconder, who carried a pair of shoes and the emoty can of petrol, returned to the car and said that the dead body had been set on fire. They started for Rawalpindi via Talagang. On the way Abdul Hag got down from the car and took his gun with him. He himself and Alam Khan absconder drove on and reached Rawalpindi at 12 noon.

On reaching Rawalpindi he asked Abdul Qadir if he had made any arrangements to show that he (the witness) was at Rawalpindi at the time when Muhammad Bakhsh, Advocate, was done to death, at which the appellant suggested that he should take a cheque for Rs. 2,000 to the bank as this would be reliable evidence of alibi. The appellant gave him a cheque for that amount which he took to the Lloyds Bank Limited, Rawalpindi, but the cheque was not cashed on that day. On his way back from the bank he went to the office of Dr. Manzoor, Manager of Frontier Motors Limited, and not finding him there, made a note on the back of a page of his table diary to the effect that he had been waiting for him in his office between 9‑45 and 10 a.m. The witness explained that he wrote that time in the diary in order to create evidence of alibi in his favour. He then went to the house of Abdul Qadir appellant in whose company he went to lunch with Malik Mahmood of Pak Insurance Company. At this lunch there was a fourth person present whose name he did not know, but when Muhammad Shafi (P. W. 11) was shown to him the witness said that the fourth person lunch party was him. After the lunch he Qadir returned to the house of the latter and car in which Ch. Muhammad Bakhsh, had been taken on his last journey was sent away In the evening he asked the appellant to give him Rs. .5,000 which he had promised to pay to Abdul Hag, but the appellant said that as he had not that amount in cash with him and it would cast suspicion if such a large amount was withdrawn from the bank on that day, he would pay the amount a little later. On the morning of the 16th, he left Rawalpindi and went to Qadirpur in Tahsil Talagang, District Campbellpur. Thereafter he proceeded to Alipur, where the house of Abdul Hag P. W. is situate and it was at Alipur that he received a telegram (Exh. P. JJ) which purports to have been sent by Iqbal Qadir, son of Abdul Qadir appellant, and in which it was said that he should reach Rawalpindi at once because the brother of Abdul Qadir had had Abdul Qadir arrested.

Appearing as the third witness for the prosecution., Abdul Hag who is a Havaldar in the Army but was on leave from 7th May 1954 to 21st July 1954,scorroborated his maternal, uncle, Hussain Muhammad, in all material details. With regard to the actual killing about which Hussain Muhammad (P. W. 2) had said nothing, this witness said that taking Ch. Muhammad Bakhsh, Advocate, with them he and Alam Khan absconder proceeded inside the jungle by a pagdandi. They had not gone more than a few yards in the forest when they heard calls of partridges at which he and the approver loaded their guns. Chaudhry Muhammad Bakhsh, Advocate, was given to understand that he was being taken to the office of the colliery where he would examine the accounts. When they were near the place which they had on their previous visits to the forest selected as the most suitable one for the murder to be committed, Alam Khan absconder fired at Ch. Muhammad Bakhsh, Advocate, who fell down, after which he himself fired at him and again Alain Khan absconder fired. When the Advocate lay prostrate on the ground, Alam Khan absconder picked up a stone and hit him with it on the head. When he was sure that the Advocate had breathed his last, Alam Khan absconder ran with his gun towards the car and shortly afterwards returned with a gunny bag and a can of petrol. The person of the dead Advocate was searched and it was found that he was carrying Rs. 197 in Government currency notes and a cigarette lighter. Wrist watch was on the hand of Ch. Muhammad Bakhsh Advocate, as was his gold ring. These two articles and the pair of shoes that he was wearing were removed. The witness kept the wrist, watch and Rs. 197, while the other articles were kept by the absconder. The absconder spread the gunny bag over the dead body and after sprinkling petrol on it set fire to it. When the flames went up, he and Alam Khan absconder ran to the car and left towards Rawalpindi. On the way he got down at Khichi.

P. W. 3. proceeded to state that on the 14th of July 1954 he went to Chakwal and had his meal in Qutab Minar Hotel.

When he put his hand in his pocket to take out the money to pay for his meal, he discovered that he had lost his purse. Failing to find the purse, he pledged the watch which he had removed from the dead body of Ch. Muhammad Bakhsh, Advocate, with the hotel‑keeper and himself went to the city to see if he could find an acquaintance who would give him the money with which he could redeem his watch. He failed to find any acquaintance, and returning to the hotel, sold the watch for Rs. 45 and executed the receipt Exh. P. A.

Besides that detailed above, ‑the prosecution produced other evidence which will be considered in its proper place, but, as mentioned already, direct evidence about the murder of Ch. Muhammad Bakhsh, Advocate, was given by the two approvers. Both of them were subjected to lengthy cross- examination, but nothing of any great use to the appellant was brought out in their cross‑examination.

When questioned to explain the case against him, the appellant both in the Court of the committing Magistrate and that of the learned trial Judge denied his guilt. . He disavowed all friendship with Hussain Muhammad (P. W. 2), who, he said, was a friend of his enemies who had prevailed upon him to appear as a witness in order to implicate him. The appellant put in a written statement at the close of his trial, the gist of which statement was that though innocent, he had been falsely implicated and he was the victim of a huge conspiracy.

On merits the first question to consider is whether or not the prosecution had established beyond all reasonable doubt that Ch. Muhammad Bakhsh, Advocate, is no longer in ‑the land of the living, because if it were held that the death of Ch. Muhammad Bakhsh, Advocate, is not established the conviction of the appellant cannot but be set aside. It is in evidence that though he left on the 14^th of June 1954, Ch. Muhammad Bakhsh, Advocate, has not come back to his house since then. This fact would make it very likely that Ch. Muhammad Bakhsh, Advocate, was no longer alive, but would not be conclusive because his absence could be due to so many other causes. If this were the only circum stance from which the death of Ch. Muhammad Bakhsh, Advocate, had to be inferred, I would most probably not have accepted it as sufficient for giving a decision in favour of the prosecution, but the prosecution rely on a number of other pieces of evidence, the most important of which is recovery of articles belonging to the Advocate from the place where human ashes lay in Rakh Chhinji. One of these articles was, as mentioned already, the cap of a fountain pen, which had the name of Ch. Muhammad Bakhsh, Advocate, engraved on it. The cap is made of metal and that explains why it did not burn away. The learned counsel for the appellant did not seriously contest the recovery of the cap of the fountain pen but urged that the evidence led by the prosecution did not establish that at the time of its recovery this article had on it the engraving on which the prosecution rely. As mentioned already, the recovery was made by Muhammad Safdar, Sub‑Inspector, Talagang. This officer, who appeared as the thirty‑fourth witness for the prosecution, stated that on reaching the spot he had found, besides ashes and bones of a human body, a pair of buckles, two stud buttons three pieces of fountain pen, three four anna bits, two one anna pieces, one burnt button, burnt portions of a white shirt, burnt cuff, a burnt piece of banyian, a burnt portion of a shirt soaked in blood, burnt blood smeared pieces of gunny bag, six wads of cartridges, two match sticks, some tich buttons, some pieces of socks, a pellet and a blood‑stained stone. In his statement with regard to the. recovery, Muhammad Safdar (P. W. 34) is corroborated by Allahyar (P. W. 28) and the recovery memo. Exh. P. S. and the inquest report Exh. P. Z, which, he states, he prepared at the spot. Burnt portions of shirt, Exh. P. 10, and of socks, Exh. P. 11, cuff links, Exh. P. 26, and the pieces of fountain pen, including the cap, Exhs. P. 2 to P. 4, were identified by Asghar Hamid (P W. 4), son of Ch. Muhammad Bakhsh, Advocate, Fazal Ahmad (P. W. 7), clerk of Ch. Muhammad Bakhsh, Advocate, and Muhammad Yasin (P. W. 17), who was in the service of Ch. Muhammad Bakhsh. Advocate, at the time when he left never to return, as belonging to Ch. Muhammad Bakhsh, Advocate.

It was contended by the learned counsel for the appellant that the name Ch. Muhammad Bakhsh, Advocate, on the cap of the pen was engraved some time after the recovery in order to show that the ashes and the bones were of Ch. Muhammad Bakhsh, Advocate. The cap of the fountain pen bearing the name of Ch. Muhammad Bakhsh, Advocate, was mentioned not only in the recovery memo. But also in the inquest report, latter of which documents was sent to Dr. Muhammad Ismail (P. W. 1) when the ashes and bones were sent to him for post‑mortem examination. This document contains an entry that the fountain pen cap recovered along with the bones, ashes, etc., had the name of Ch. Muhammad Bakhsh, Advocate, engraved on it. It was the defence case that the entry with regard to the engrav ing on the cap of the fountain pen in the inquest report was made not at the time when the report was prepared but at a subsequent stage and to establish this the defence produced Muhammad Anwar Nomani D. W.13, a resident of Samanabad, Lahore, who claimed to be a handwriting expert. This witness stated that after subjecting the writing in the inquest report to detailed scrutiny he had arrived at the conclusion that that part of the writing which said that the cap had the name of Ch. Muhammad Bakhsh, Advocate, engraved on it was not written at the time when the rest of the document was written.

It appears to me, however, that the statement of Muhammad Anwar Nomani, (D. W. 13) was not admissible in evidence. The Court has to form its own opinion about ques tions that arise in a case, but opinions of other persons may be relevant provide dithery ,have been made so by some provision of the Evidence Act. The only provision to which a reference could be made in this connection is section 45 of the Evidence Act which reads as follows:‑

"When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting, or finger impressions, the opinions, upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.

Such persons are called experts".

If D. W. 13 was an expert, about which I do not consider it necessary to express any opinion, he could certainly give evidence with regard to the identity of handwriting in the inquest report, but I do not see how his statement that some part of the document was not written at the same time as the rest of the document is an opinion as to the identity of handwriting. If the writing about which the witness gave evidence were in ink and his statement were that, because he found that the ink at the place where the disputed writing was had not undergone the same amount of chemical change as the ink at other places in the document, a part of the document must have been written at a much later date than the rest of it, the statement would probably have been admissible as an opinion on a point of science provided the witness was an expert in that science, but the writing in this case was in pencil and the opinion which D. W. 13 gave was based on an examination of the writing itself. The material on which the witness based his opinion is not such as to be incomprehensible by a Court without the help of an expert, and as the statement of the witness was not admissible, I would keep it out of consideration. I might add that after having examined the document with all possible care, I formed the view, which was shared by my learned brother, that the opinion of D. W.13, even if admissible, could not be accepted as correct. In this connection the statement of Dr. Muhammad Ismail, Medical Officer, Talagang (P. W. 1) who conducted the post‑mortem examination is that when the bones etc. were brought to him the inquest report, Exh. P. Z and the articles mentioned therein were also brought there, and that he had seen those articles on the evening of the 17th of April, though he performed 'the post‑mortem examination on the morning of the 18th of April. If the cap of the fountain pen had been sent 'to the doctor on the evening of the 17th and there can be no doubt that it was it will be necessary to take the cap away so that the name be engraved on it, but there is no circumstance which would point in that direction.

The material brought on the record by the prosecution was that the bones and ashes belonged to a human being, and that some articles recovered from the ashes, of which the cap of the fountain pen was one, belonged to Ch. Muhammad Bakhsh, Advocate. Then there is the evidence given by the two approvers, P. W. 2 and P. W. 3, that Ch. Muhammad Bakhsh, Advocate, was done to death in Rakh Chhinji by one of them, who, in the company of the absconder, had set the body on fire in order to remove all traces of the crime. There can be no manner of doubt that the 11itements of the two approvers on this point could be accepted even without corroboration, as sufficient proof of the fact that Ch. Muhammad Bakhsh, Advocate, was done to death and his dead body was set on fire soon after, but that question I will deal with in detail in its proper place a little later. In my opinion, the above evidence, coupled with the statement of Dr. S. M. Afzal (P. W. 35), establishes beyond all reasonable doubt that the bones, the ashes and the foot recovered from Rakh Chhinji were the remains of Ch. Muhammad Bakhsh, Advocate, and of no other human being.

I now pass on to the consideration of the main question in the case, namely, whether or not the prosecution had succeeded in establishing that Abdul Qadir appellant was liable for the murder of Ch. Muhammad Bakhsh, Advocate. The manner in which the dead body was disposed of can leave no manner of doubt that the conflagration at which the dead body or part of it was burnt to ashes had followed a crime of violence which caused the death of the deceased and which in the absence of anything to show that the act was not fully covered by section 300 of the P. P. C., must be held to be one of murder. Evidence directly connecting the appellant with the dastardly crime was, as mentioned already, given by the two approvers. The learned counsel for the appellant attacked this direct evidence on two grounds, firstly, that the approvers had not taken part in the crime and had posed to be witnesses in order to implicate the appellant, and, secondly, that even if the approvers took part in. the crime, the prosecution had failed to establish that they did so on the instigation of, or as a result of a conspiracy with, the appellant. .

Much has been said from times immemorial with regard to the weight that should be attached to the evidence of accomplices and a lot will, perhaps, yet be said about it. In the Evidence Act, 1872, while section 133, indicates that a conviction based on the uncorroborated statement of an accom plice is not illegal, illustration (b) of section 114 lays down that the Court may presume that an accomplice is unworthy of credit unless corroborated in material particulars against the accused person. It is because of this Illustration that the Courts by which the Evidence Act, 1872, had to be inter preted have laid down that a conviction based on the uncor roborated testimony of an accomplice cannot be considered to be sound in law and it has by now become almost a rule of law that no conviction should be based on the statement of an accomplice unless it is corroborated in material parti culars. I need hardly state that the necessity for corrobora tion arises because of the fact that the accomplice, in addition D to being a self‑confessed criminal, is, if his statement is taken at its face value, a person who has no compunction in giving away his confederates in crime to whom, it may be presumed. he had given a promise of secrecy. When dealing with a man of this type, the Court has to be fully satisfied that he is telling the truth and is not relating a story which is, wholly or in part, a creation of his own or some one else's fertile I brain. It is for this reason, therefore, that it is necessary to see if the statement of the accomplice is corroborated in material particulars against the accused person or if there are more than one accused persons against each of them. Cases can arise in which while giving an entirely true version of the incident and of his own participation therein, an accomplice may substitute the name of an entirely innocent person for that of his accomplice. If he does such a thing and was a person who had been given a tender of pardon, he would have achieved his object; he will escape punishment by appearing as witness for the prosecution and will save his confederates by having, or at least attempting to have, some one else punished for the crime which he had not committed. Consequently, corroboration of the evidence of an accomplice in material particulars is required with regard to the accused and with regard to each of the accused if there be more than one.

But whether or not the corroborative evidence is suffi cient to convince the Court that the statement of the accom plice that the accused took part in the crime is correct must depend on the circumstances of each case. If, for example, the accomplice who gives evidence is a hardened criminal or an enemy of the accused person, or a person who is pliable in the hands of those who want to have the accused punished, the Court will require very strong corroboration before con victing the accused person. If, however, the accomplice is a man of blameless past who for some reason has committed a crime and has no kind of motive to falsely involve the accused person, the corroboration of a very high order may not be necessary provided it tends to connect the accused person with the crime. Moreover, while considering whether or not there is corroboration of the statement of an accom plice, what the Court has to see is not whether there is other evidence sufficient to connect the accused with the crime but only whether the statement of the accomplice which directly connects the accused with the crime is corroborated in such material particulars as to satisfy the Court that there was no risk in convicting the accused on the statement of the accomplice coupled with the corroborative evidence, bearing in mind the maxim that it was better that a hundred guilty persons should escape than one innocent person should suffer punishment which he did not merit.

While it is necessary that the statement of the approver should be corroborated against the accused person, it is not necessary that there should be corroboration of the statement of the accomplice on all points he deposes about including the one that he himself took part in the crime. When appearing as a witness an accomplice cannot be divested of the status of a witness and to insist that before his statement is accepted in any particular, it should be corroborated, will amount to holding that what an accomplice says is not evidence. That an accomplice may be believed with regard 'to his own participation in the crime without any corrobora tion was the view expressed by a ‑Division Bench of this Court, of which I was a member, in Juma and another v. The Crown (P L R 1954 Lah. 859 P L D 1954 Lah. 783) which view was upheld by the Federal Court of Pakistan in Fazal Dad v. The Crown (PLD1955FC152) In view of the Federal Court decision, it is no longer open to question that an accomplice in so far as his own participation in the crime is concerned, may be believed by a Court, though there is not an iota of evidence to corroborate him on that point.

The statements of the two approvers with regard to the murder of Ch. Muhammad Bakhsh, Advocate, and the disposal of his dead body was sought to be discredited by the learned counsel for the appellant by saying that a human dead body could not have been reduced to ashes and bones in the manner deposed to by Hussain Muhammad (P. W. 2) and Abdul Haq (P. W. 3) to the same extent as the one in question was. Though not a witness to that experiment, I have no hesitation in accepting the word of Mr. Sleem that he had experimented with a dead goat and had found that the carcase did not undergo as much change by flames produced by a can of petrol as the, dead body of Ch. Muhammad Bakhsh, Advocate, was proved to have done cannot, however, be overlooked that there is nothing to show that all the conditions at the burning of the dead body of the deceased and at the experiment by Mr. Sleem were identical. The place where the body of the deceased was set on fire was in a jungle and it is by no means improbable that the nearby shrubs as well as twigs and leaves fallen from the trees around played some part in keep ing the fire alight for a long time and smouldering thereafter. Nor can one exclude the possibility that some one, other than the two approvers, interested in the removal of all traces of the murder, 'had resorted to another conflagration in order to complete the annihilation of the dead body. Moreover, it is to be remembered that the remains of the unfortunate Advocate were discovered quite two days after he breathed his last and it is by no means improbable and in fact it would appear it was so that carnivorous animals like dogs and jackals and carnivorous birds like crows, kites and vultures had feasted on the body before Noor Muhammad (P. W. 27) happened to pass by the place from which all traces of the dead body of the deceased had been sought to be destroyed by means of fire. Having given full consideration to the con tentions on this aspect of the case, I have arrived at the conclusion that the approvers cannot be held to be‑unworthy on the grounds urged by the learned counsel for the appellant.

That Hussain Muhammad (P. W. 2) is an intelligent person is hardly open to question. Rising from the ranks he obtained a majority while in service and an Honorary Lieutenant‑Colo nelship after his retirement from it. Such a person can be reasonably presumed to know that the mere fact that the police may consider him guilty could not be enough to lead to his conviction by a Court and he will ordinarily not confess to a crime unless he had taken part in it. The report to the police made absolutely no mention of Hussain Muhammad (P. W. 2) and as, therefore, he had nothing to make him feel afraid of the police, he could not be made to confess to be a murderer either because the police wanted him to do so or because in panic he considered a confession to be the safest course for him. Mr. Saleem would have it held that Hussain Muhammad had been prevailed upon by the appellant's enemies to pose as a participant in the murder of the deceased, but there is not an iota of evidence on the record to make one even suspect such a thing. I cannot bring myself to believe that a man in the position of Hussain Muhammad (P. W. 2), who could not but have known that by confessing to be a murderer, besides running risks of temporal nature such as loss of pension, he ran the risk of finding a hangman s rope round his neck, could be prevailed upon to falsely confess that he had the hand in a murder. In this connection it is not without significance that though he received a telegram purporting to be from Iqbal Qadir, the son of the appellant, that the brother of the appellant had put the appellant to some serious trouble, the witness kept away from Rawalpindi for quite some time. This desire to avoid Rawalpindi where the appellant who needed his help was at a time when the police of that place were investigating the murder of Ch. Muhammad Bakhsh, Advocate, to my mind, points to a guilty conscience. I might here mention that the telegram Ex. P. JJ, which purports to have been sent by Iqbal Qadir, the son of the appellant, had been received as a phonogram, i. e., was dictated to the telegraphist on telephone. The number of the telephone from which this telegram was sent is 2326, Peshawar, and the appellant admits that the telephone of that number is installed in Lalazar Hotel Peshawar of which he is the proprietor.

Abdul Haq (P. W. 3), the second approver, also is not a man devoid of intelligence, and was at the time when he was arrested in Government employment. A man in his position may be safely presumed to know that if he chose to deny that he had anything to do with the murder of the deceased, the police could not force him to confess or be able to prove any thing against him if he were innocent. And yet one finds that he confesses that his was one of the hands which caused the death of the deceased and subsequently set fire to the dead body so that no trace of the crime of murder be left. With regard to his own participation in the crime, the statement of Abdul Haq (P. W. 3) receives corroboration from the fact that a few days after the 14th of June 1954 he was found in pos session of a watch belonging to the deceased. That the watch belonged to the deceased is amply proved by the deposition of the son of the deceased P. W. 4, his clerk P. W. 7, his servant P. W. 17 and Muhammad Din (P. W. 8) who had repaired it and produced his register, Exh. P. E., in which the number of the watch was entered. The statements of Muhammad Rafiq (P. W. 37), Muhammad Ashraf (P. W. 39), Inayat Hussain Shah Head Constable (P. W. 40) and Ch. Tufail Muhammad Sub‑Inspector (P. W.70) prove beyond all reasonable doubt that it was at the instance of Abdul Haq (P. W. 3) that the watch was recovered from the possession of Muhammad Rafiq (P. W. 37), proprietor of Qutab Minar Hotel, Chakwal. Abdul Haq (P. W. 3) stated that he had pledged the watch with P. W. 37 because his purse having been lost, he had no money to pay for the meal which he had taken at the hotel and in this he is supported not only by Muhammad Rafiq (P.W. 37) but also by Muhammad Saeed (P. W. 38). In addition, there is the evidence of Fazal Ahmad (P. W. 7), clerk of the deceased, that Abdul Haq (P. W. 3) had visited the deceased on the 9th and 12th of June 1954, that of Muhammad Yasin (P. W. 17) that Abdul Haq (P. W, 3) had taken the deceased' with him on the morning of the 14th of June 1954, the state ment of Mst. Gulab Jan (P. W. 29) that Abdul Haq (P. W. 3) was one of the persons who went with the deceased on the fateful morning and that of Nawab Khan (P. W. 19) that Abdul Haq (P. W. 3) had gone to the office of the deceased in the District Courts on the 12th of June 1954. At an identifi cation parade held on the 27th of July 1954 at Peshawar under the supervision of Mr. M. R. Kayani, Magistrate, 1st Class, Peshawar (P. W. 57), Abdul Haq (P. W. 3) was correctly identified by Fazal Ahmad (P. W. 7), Mst. Gulab Jan (P. W. 29) and Muhammad Yasin (P. W. 17). On the 13th of August 1954 Nawab Khan (P. W. 19) identified Abdul Haq (P. W. 3) at an identification parade held under the supervision of Mr. Azmat Ullah Khan, Magistrate 1st Class, Rawalpindi (P. W. 24): In view of this overwhelming evidence, I cannot bring myself to believe that Abdul Haq, who is a Havaldar in the army and, because of that fact, could rely on the support of military authorities if the police wanted him to confess to a crime with which he had nothing to do, will falsely confess to be a murderer. It is not without great significance that Abdul Haq (P. W. 3), about whose participation in the crime there cannot, in the presence of the evidence detailed above, be the least doubt, named his maternal uncle, Hussain Muhammad (P. W. 2), as one of the conspirators.

Further corroboration with regard to the participation of Hussain Muhammad (P. W. 2) in the present crime is furnished by the evidence given by Chaudhry Khan (P. W. 10) who stated that about nine months before the day he appeared as a witness in the trial Court (12th of March 1955) he had seen Hussain Muhammad (P. W. 2) and Abdul Haq (P. W. 3) near the shrine of Sakhi Sultani 'Ahu Bahu, situated in the vicinity of Kallar Kahar and at that time Ch. Muhammad Bakhsh, Advocate, whose photograph he identified in the group photograph (Exh. P. FF) was with them. Kallar Kahar which is in the Jhelum District is a long way off from Rawalpindi where the unfortunate Advocate resided but at no great distance from Pail Padhrar where he is proved to have been done to death and, therefore, the statement of P. W. 10 is not as unimportant as it would at first sight appear to be.

The defence produced some evidence to rebut the evidence led by the prosecution with regard 'to the participation of Hussain Muhammad (P. W. 2) in the murder of the deceased. Major Muhammad Anisur Rahman appearing as D. W. 2 stated that on the 14^th of June 1954, between 7 and 8 a. m., the appellant went to his office in the operation theatre of the C. M. H., Rawalpindi, in the company of Alam Khan and his Younger brother. The reason why Alam Khan and his younger brother went to the hospital was stated by this witness to be that the brother of Alam Khan had a swelling on his face for which he was given an injection of penicilline. The doctor added that on the evening previous to that day also he had given an injection of penicilline to the brother of Alain Khan and proceeded to say that a man who was stated by Abdul Qadir appellant to be a Colonel, and whom he said he would not be able to identify, was also with Abdul Qadir appellant. The witness admitted that he did not maintain a record of patients and that he was not produced as a witness before the police. The evidence of D. W. 2 was intended to show that in so far as Hussain Muhammad and Abdul Haq stated that at about 8 a. m. on the 14th of June 1954 Alam Khan absconder was with them at Pail Padhrar or on the way to that place, they must have told an untruth and that at that hour P. W. 2 was probably at Rawalpindi. I cannot accept the explanation of the witness for remembering the precise date and time of such an unimportant fact as the visit of a patient to a busy hospital, and the fact that he has no record and was not pro duced by the appellant before the police is enough for his statement not being accepted. The next witness was Major Manzurud Din Ahmad who stated that on the 14th of June 1.954 a driver of the appellant, who was a Pathan, took his car at about 7 or 8 a. m. to the premises of Abdul Qadir and Com pany for being serviced. The statement of this witness, which was intended to show that the deposition of the two approvers about Alam Khan absconder being with them was incorrect, can be disposed of on the short ground that he does not know who the driver was. Ghulam Haider (D. W. 5), a salesman in the Frontier Motors Limited, Rawalpindi, deposed that on the 14th of June 1954, Hussain Muhammad (P. W. 2) had gone to the office of the Frontier Motors Limited to see Dr. Manzur at about 10 a. m. The witness said that he was sure of the time because as Hussain Muhammad entered the office the clock had struck ten. This evidence was intended to show that the entry made by Hussain Muhammad on the office diary of Dr. Manzoor that he had been to see him at about 10 was correct, and, therefore, the assertion of P. W. 2 that at that time he was not at Rawalpindi was incorrect. In this connec tion it may be mentioned that Dr. Manzoor, who was cited as a prosecution witness, was given up by the prosecution as having been won over by the defence. The statement of this witness does not impress me and I am satisfied that he has been produced taking advantage of the writing made by Hussain Muhammad on the diary of Dr. Manzoor, which, he said, had been made in order to create some evidence of alibi in his own favour. Then comes Muhammad Ashraf (D. W. 8) who stated that on the 14^th of June 1954, between 8‑30 and 9 a. m., he had sold an electric kettle to Abdul Qadir appellant. The witness said that at that time the appellant was accompanied by a man who was introduced to him as Colonel Hussain Muhammad and whom the witness identified in Court. A cash memo. (Exh. D. W. 8/1) was produced by the witness in support of his statement. The witness admits that he has known Abdul Qadir appellant for about eight years and that he was not produced before the police during the investiga tion. The fact that the witness claims to remember at what precise time the appellant went to his shop‑if the appellant went there at all‑and that he was accompanied by another man whom, after the lapse of nine months, he was able to identify in Court, exposes the hollowness of his statement. The next wit ness, namely, Malik Mahmood Aslam, Manager Pak Insurance Company, Rawalpindi (D. W. 9), stated inter alia, that the appellant and Hussain Muhammad (P. W. 2) had gone to him between 10‑15 and 10‑30 a. m. on the 14th of June 1954 to have lunch with him. This is the same lunch to which Hussain Muhammad (P. W. 2) had made a reference in his statement. D. W. 9 stated that the lunch was taken at about 12 noon. The witness is a friend of the appellant and it is obvious that he is trying to help him. I cannot bring myself to believe that the appellant and Hussain Muhammad will go to the witness shortly after 10 to partake of a lunch which they could, in no circumstances, expect to get till about two hours later. In this connection I may make reference to the statement of Muhammad Shafi (P. W. 11) who said in clear terms that the lunch at the office of Malik Mahmood on the 14th of June 1954 was eaten at 1 p.m. Mr. Bashir Ahmad, Member District Board, Rawalpindi (D. W.12), stated that on the 14th of June 1954, at about 10‑30 a.m., he had gone to the office of the Rawalpindi branch of the Pakistan Insurance Company to pay premium of the insurance of his Buick car PJL‑2688 and at that time he found the appellant and Hussain Muhammad (D. W. 2) there. The statement of this witness was sought to be corroborated by that of Malik Mahmood Aslam (D. W. 9) who also mentioned the premium on the insurance, but D. W. 9 had to admit that in the register showing the receipt of premium the entry with regard to the car of Bashir Ahmad (D. W. 12) was dated the 15th of June 1954 and not the 14th of June 1954. He explained that as the entry was actually made on the 15th, the clerk had put down that date in the register. I cannot . accept this explanation as correct, especially when the clerk who made that entry was not produced. Moreover, though the policy issued to Bashir Ahmad (D. W. 12) showed that the insurance was to be in force from the 14th of June 1954, but that by itself is no proof of the fact that the premium was paid on the 14th of June, especially when one of the entries (probably the 4th or the 5th from the entry relied upon by the defence) the premium is shown to have been paid months after the policy was to come in force, but the period of the validity of the policy was mentioned to start from the date on which the policy for the last year had expired. I might also mention that D. W. 12 and the appellant had been in the same jail in the month of July and August. Another witness produced by the defence was Muhammad Jamil (D. W. 7) who proved the photographs (Exhs. D. W. 7/1 to D. W. 7/6) of the Mazar of Sakhi Sultan Ahu Bahu near Kallar Kahar. The witness deposed that some of the photographs produced by him showed that there were two graves inside the shrine. This evidence was produced to discredit Chaudhry Khan that there was only one grave inside the Mazar. I am doubtful if a villager visiting a shrine notices these things and it appears to me that Chaudhry Khan had for some reason fallen into an error with regard to the number of graves in the shrine and cannot be discredited on that account.

I might here dispose of the statement of Matloob Hasan (D. W. 4), proprietor of Usmania Hotel, Rawalpindi. This witness said that Ch. Muhammad Bakhsh, Advocate, used to visit his hotel off and on with a woman in burqa and used to stay there. He is supported in this by some entries in the register of visitors of the hotel, such as Exh. D. D.D, Exh. D. EE, Exh. D. FF, Exh.. D. GG, and Exh. D. W. 4/1. This evidence was produced to show that as in spite of the fact that he had two wives living, Ch. Muhammad Bakhsh, Advocate was going about with other women whom he described as his wives, he may have been done to death by someone related to any of those women. It may be that Ch. Muhammad Bakhsh, Advocate, was a gentleman of gay habits, but as it is established by the evidence on the record that Abdul Haq (P. W. 3) was one of his mur derers, it is useless to place reliance on the conjecture that the Advocate may have been done to death by someone else.

Having fully considered the defence evidence intended to prove that at the time when he claimed to have been at Pail Padhrar or in its vicinity. Hussain Muhammad (P. W. 2) was at Rawalpindi, I have arrived at the conclusion that the learned trial judge was correct in discarding it. The evidence led by the prosecution, supported by the circum stances; proves beyond all reasonable doubt that Hussain Muhammad (P. W. 2) had taken part in the incident. I have already indicated that in order that an approver may be believed by a Court of law with regard to his own partici pation in a crime, no corroborative evidence is necessary, but in the present case the prosecution have produced ample evidence to corroborate the participation of the two approvers in the crime, which, they stated, they had partici pated in. Consequently, rejecting the defence evidence and accepting that produced by the prosecution, I have no hesitation in coming to the conclusion that in so far as they deposed that they were responsible for the murder of Ch. Muhammad Bakhsh, Advocate, Hussain Muhammad' (P. W. 2) and Abdul Haq (P. W. 3) had told the truth, the whole truth and nothing but truth.

I pass on to the consideration of the question whether the statement of Hussain Muhammad and Abdul Haq with regard to Ch. Muhammad Bakhsh, Advocate, having been killed as a result of conspiracy between them and the appellant and because of the abetment by the appellant was corrobo rated to such an extent as to make it safe to hold that the statements of the two approvers against the appellant were correct. It is established that Hussain Muhammad (P. W. 21 and the appellant were on good terms as it was to the former that the son of the appellant sent a telegram when the appellant was arrested by the police in connection with the present case. In a previous part I have made reference to that telegram, which is E. P. JJ on the record, and have detailed the evidence which proves that it was sent by phonogram from telephone No. 2320, Peshawar, which is installed in a hotel of which the appellant is the proprietor. The telegram purports to have been sent by Iqbal Qadir son of the appellant, whom the defence did not care to produce as a witness to state that he was not its author and it may, therefore, be safely presumed that as soon as the appellant was arrested by the police his relatives thought that Hussain Muhammad was a person who could be relied upon to render assistance. The relations between Hussain Muhammad (P. W. 2) and the appellant being so cordial and it not having been even suggested that Hussain Muhammad (P. W. 2) or Abdul Haq (P. W. 3) had any motive to falsely implicate .the appellant coupled with the fact that the two approvers are not disreputable persons, corroboration of their state ments need not be of that high order as would have been necessary if they had .been inimically disposed towards the appellant or were men of doubtful antecedents.

The first piece of corroborative evidence on which the prosecution rely is the motive. It is established that Ch. Muhammad Bakhsh, Advocate, had appeared in some civil cases against the appellant as a result of which the appellant had suffered monetary loss and it is also in evidence that

Ch. Muhammad Bakhsh, Advocate, had appeared in a criminal case against the appellant in which the appellant had been summoned to answer quite a serious charge. The learned counsel for the appellant urged that the motive alleged by the prosecution could not be sufficient for the appellant to want that Ch. Muhammad Bakhsh, Advocate, be done away with, but as things have different effects on different persons, it cannot be said that the motive was inadequate. There is evidence on the record that because of his success in business and his being a well‑to‑do man his rivals in business did not like the appellant and had a motive to falsely impli cate him. I am prepared to believe that because of his success in business, the appellant was not liked by his rivals in trade, but as there is no evidence to suggest that any of those rivals had hit upon the scheme of having Ch. Muhammad Bakhsh, Advocate, murdered and having the appellant named as the murderer, I consider it necessary to deal with that aspect of the matter. But even the fact that the appellant had a motive to do away with Ch. Muhammad Bakhsh, Advocate, would not by itself be such corroboration of the statements of the approvers as to be considered sufficient to base a conviction on. The prosecution have proved the motive but that fact can be of no more avail to them than proof of motive in any other case and it will be no more than a piece of relevant evidence to be kept in view when considering the cumulative effect of the evidence against the appellant.

The next piece of corroboration is the visit of the two approvers to the appellant on the 9th of June and the stay, if not of both of them, at least that of Hussain Muhammad (P. W. 2) with the appellant near about the time at which it is established beyond reasonable doubt that Ch. Muhammad Constable (P. W. 71) stated that on the 9th of June while posted at Talagang Police Station he had to come t6 Rawal pindi in a bus and in that bus travelled the two approvers and Abdul Ghafur. He did not know Abdul Haq (P. W. 3) but identified him in Court as the person who had accom panied Hussain Muhammad (P. W. 2) on that occasion. He saw the two approvers get down at the bus stand near the octroi post at Chuhar and go to the premises of the firm of which the appellant was the Managing Director. On the 10th of June 1954 he went back to Talagang but returned to Rawalpindi on the 11th in connection with the investigation of the murder case. He wanted to return to Talagang in the evening and as by the time he was free the last bus for Talagang had left, he rang up telephone No. 553, which is admitted to be the telephone number of the premises of Abdul Qadir & Sons, and had conversation with Hussain Muhammad (P. W. 2) who informed him that he was not going to Talagang that day as his car had not arrived. Hussain Muhammad (P. W. 2) had made a similar statement, and as the witness appears to be reliable, I do not see any ground to reject his statement simply because he happens to be a police officer. Moreover, the fact that on the 11th of June Hussain Muhammad at least was at Rawalpindi is established by the deposition of T. G. B. Davis, Technologist. Attock Oil Company, Rawalpindi, who, appearing as the thirty-sixth wit ness for the prosecution deposed that on the 11th of June the appellant accompanied by Hussain Muhammad (P. W. 2) went to his office for getting some job for the son of Hussain Muhammad. Earlier that day the appellant telephoned to him to enquire if he could come to see him and was told that he was too busy. The appellant, however, came to his office in the company of P. W. 2 between 9 and 10 a.m. and asked him to give some job to the son of Hussain Muhammad (P. W, 2). He made the note Exh. P. O. about this in his diary. He proceeded to say that on the 24th of September 1954 a clerk of the appellant, in the company of a brother of the appellant, went to him and requested him that he should say that the appellant and Hussain Muhammad had met him on some date other than the 11^th of June 1954 and of this fact also he made a note which is Exh. P. Q. I can think .of no reason why P. W. 36 should give false evidence and I accept his statement as correct. The evidence with regard to the presence of Abdul Haq approver at Rawalpindi on the morning of the 12th of June 1954, has been detailed already and need not be mentioned again. With regard to the appellant and Hussain Muhammad (P. W. 2) being together on the 14^th of June 1954, we have the evidence that the cheque Exh. P. LL which, besides bearing the date 14^th of June 1954, is admitted by the appellant to have been issued on that date and which, according to Hussain Muhammad (P. W. 2) was issued in his name in order to fabricate evidence of alibi in his favour. In addition there is the evidence that the appellant and P. W. 2 lunched together with D. W. 9. The evidence detailed above is corroboration of the statements of the two approvers that they were staying at the house of the appellant from the 9^th of June' to the evening of the 12th and then on the 13th and the 14^th June 1954.

Another, piece of corroborative evidence relied, upon by the prosecution is the cheque for Rs. 2,000 (Exh. P. LL) which was issued in favour of Hussain Muhammad on the 14th of June 1954. Hussain Muhammad (P. W. 2) stated that this cheque was drawn to create evidence of his alibi while the case of the appellant was that the cheque was given to Hussain Muhammad as he had some account with his firm and had asked for some money on the evening of the 13th of June 1954. The cheque was not cashed on the 14^th of June which would show that it was issued some time after midday because it is in evidence that those days the Lloyds Bank at Rawal pindi, on which the cheque was drawn, used to work till 12 noon. Hussain Muhammad stated that it was the only cheque that was ever issued in his favour. The appellant made a vague statement that Hussain Muhammad had a running account with Abdul Qadir & Sons, but no evidence was led in defence to contradict the statement of P. W. 2 that no other cheque had ever been issued to him. This omission to produce any evidence with regard to the issue of any other cheque in favour of P. W. 2, to prove which the account books of the company would have been the only evidence required, assumes importance when one finds that on all other points the appellant was able to produce witnesses in defence. Malik Mahmood Aslam (D. W. 9) and Zafar Alain (D. W. 10), Office Superintendent‑cum‑Accountant of Abdul Qadir & Sons stated that on the evening of the 13th of June 1954 Hussain Muhammad had asked for Rs. 2,000 which he required in connection with the expenses on his house which was under construction and D. W. 10 stated further that the cheque was given to Hussain Muhammad early in the morning on the 14th of June, If the cheque had been given early in the morning, I can think of no reason why it was not cashed on that day. Keeping in view the evidence direct and circumstantial 'relating to the cheque, I have arrived at the conclusion that this cheque was issued with the object of creating documentary evidence of alibi of Hussain Muhammad (P. W. 2), and as this conduct on the part of the appellant was telltale, the issue of the cheque can be used as a piece of corroborative evidence against the appellant.

Another piece of corroborative evidence is the use of the car of General Mackay who had left it with the appellant for sale on the 30th of May 1954. This is an old Plymouth car of the year 1939 bearing the registration No. FPK‑198, but before going away from the country, the General gave a certificate (Exh. D. W. 1/2) to the effect that till the 30th of May 1954 the car had done only 5085 miles. I am doubtful if this certificate, which, in my view, cannot be brought within any of the provisions of section 32 of the Evidence Act is admissible in evidence with regard to the meter‑reading of the car, but I will proceed on the assumption that it is. Hussain Muhammad (P. W. 2) stated that the car was taken for a trial run on the 11th of June 1954 to Busal, which is at some distance from Rawalpindi and one finds from the Petrol Sale Register of Abdul Qadir & Sons (Exh. P. 12) that five gallons of petrol were put in the car on the 10th of June 1954 and one gallon on the 11th of June 1954. The appellant stated that the car remind out of order from the 30^th of May 1954 to 'the afternoon of the 14th of June 1954 but he is believed by the entries in the petrol register Exh. P. 12 which showed that the petrol given for the car was one gallon on the 31st of May 1954 five gallons on the 4th of June 1954, three gallons on the 7th of June 1954, five gallons on the 10th of June 1954 and one gallon on the 11th of June 1954.

The prosecution case is that it was in this car that Ch. Muhammad Bakhsh, Advocate, was taken on the morning of the 14th of June 1954. The defence sought to take advantage of the statements which Muhammad Yasin (P. W. 17) and Mst. Gulab Jan (P. W. 19) made to the police wherein they had said that Ch. Muhammad Bakhsh, Advocate, had been taken away in a small black car. The colour of the car of General Mackay is French Grey and as at the time when the above‑mentioned two witnesses saw it was dark and in the dark French Gray or any other dark colour would look black, the slight error about the colour of the car is, in my view, of no importance. No doubt P. W. 17 and P. W. 19 had said to the police that the car was a small one and advantage was sought to be taken of these statements on the ground that the car of General Mackay could not be described to be a small one. Big and small are relative terms and an object which appears big to one person may look small to an other. If the car in question was of the same size as the car 'which was brought to this Court by relatives or friends of the appellant who described it as Plymouth car of the year 1939, then the description of the car as a small one was as inapt as that it was a big one. It is hardly open to question that seeing it when it stands facing you or with its back towards you a car will look smaller than it would if it stands sideways and there is nothing on the record to show from what angle P. W. 17 and P. W. 19 had seen the car in question. Moreover, P. W. 17 and P. W. 19 saw the car when it was not standing very near them, because if it had been, Asghar Hamid (P. W. 4), the son of the deceased, who also saw it, could have given a description of it which he did not do. The fact, however, remains that the witnesses who in the witness‑box pointed out the car of General Mackay as the one in which the deceased left on the morning of the 14th of June 1954 never to return were not asked why they had called the car a small one when it could not be said to be as small as some cars that one sees on the road. It may be that being used to seeing bigger cars, P. W. 17 and P. W. 19 considered the car in question a small one, and as I am satisfied that they were telling the truth, I attach no importance to the slight miss-description if miss-description there was‑in the statements of the witnesses to the police.

The car was taken into possession by the police at Peshawar to which place it is established by the evidence on the record that it had been taken by Alain Khan absconder on the 14^th of June 1954. When the car passed the Attock Bridge on its way from Rawalpindi to Peshawar, the usual entry in a register was made by Qasim Jan Foot Constable (P. W. 22). and this entry is to the effect that it was running under registration No. PBR‑319‑A, which is one of the trade numbers of Abdul Qadir & Sons and was being driven by Alam Khan The appellant produced Abdullah Shah (D. W. 6) to explain why the car was sent to Peshawar so suddenly on the very day on which Ch. Muhammad Bakhsh, Advocate, had been murdered. This witness, who is a contractor of Peshawar, said that he had gone to the premises of the appellant's workshop between 9 and 10‑30 a.m. on the 14^th of June 1954 and had seen the car bearing the registration number FPK‑198. He asked what the price of the car was and was told by the appellant that some taxes were due on it and that the car was under repairs. He wanted that the car be put on the road for a trial run and the appellant informed him that it could be ready only the next day, while he himself insisted that the car should be given to him for trial on that very day. At about 2‑30 or 3 p.m. when he went to the pre mises of the company again, the car was given to him and he drove it to Hasan Abdal from where Alam Khan drove it to Peshawar. I am not prepared to accept the statement of D. W. 6, who did not by the car, as correct, because it is very improbable that a motor dealer would allow a car to be used on a trial run for such a long distance. The explanation offered by the defence about the car having been sent on the 14th of June 1954 to Peshawar being unacceptable, the circumstance emerges that on the 14th of June 1954 the appellant suddenly felt the necessity of sending this car to Peshawar. I have mentioned already that the certificate Exh. D. W. 1/2 showed that on 30th of May 1954 the mileage of the car according to the meter was 5085 and it is established that when taken into possession by the police its meter showed a mileage of 5212, which would mean that between the 30^th of May 1954 and the 27th of July 1954, on which date it was taken into posses sion by the police under memo. Exh. P. 00, the car had travelled a distance of only 127 miles. The mileage meters of cars can be easily tampered with and the fact that so much petrol was being put in the car on different dates would show that it had done many more than 127 miles till the 27^th of July 1954 and its meter had been tampered with in order to create prima facie evidence that the car had travelled merely on an innocent journey from Rawalpindi to Peshawar. If the car was not roadworthy before the afternoon of the 14th of June 1954, as the appellant and his witness D. W. 10 would have one believe, I fail to see why so much petrol as would overflow out of the tank was being put into it. Then there is the fact that the documents, Exhs. D. W. 10/4 to D. W. 10/9, which detail what repairs the car needed, would show that the car was all along roadworthy and, at any rate, on the 8th of June 1954 on which date, as would appear from Exh. D. W. 10/9, all that was required for it was matting rubber, the car could have been easily put on the road.

The above discussion would have shown that the evi dence led by the prosecution proves inter alia the following facts :‑

(1) that the two approvers were directly connected with the murder of the deceased ;

(2) that neither of the two approvers had any motive to kill the deceased :

(3) that neither of the two approvers had any reason to falsely accuse the appellant and in fact one of them was his old friend ;

(4) that the appellant had a motive to do away with the deceased;

(5) that near about the time the deceased was done to death and for some days before, the approvers had been with the appellant ;

(6) that on the 14th of June 1954, which was the day on which the deceased was murdered, the appellant drew a cheque for Rs. 2,000 in favour of Hussain Muhammad, one of the approvers, in order to create alibi for Hussain Muhammad;

(7) that the car in which the deceased was taken on his last journey in this world was in possession of the appellant ; and

(8) that on the 14th of June 1954 the appellant suddenly felt the necessity of sending this car from Rawalpindi to Peshawar which was done so that the car should not be seen in Rawalpindi from which place it had taken the deceased to the place of his murder.

It is true that none of the above pieces of evidence would be sufficient by itself to connect the appellant with the crime and that if the statements of the two approvers were kept out of consideration, the other pieces of evidence would not be sufficient to base a conviction on. It is, however, clear that the circumstances emanating from the above evidence point to the appellant being connected with the crime. Though the other pieces of evidence without the statements of the approvers would not have been suffi cient to base a conviction of murder on, they are, taken in conjunction with the statements of the two approvers, more than sufficient to prove that it was at the instance of the appellant and as a result of a conspiracy between him and the two approvers at least that Ch. Muhammad Bakhsh, Advocate, was done to death. The appellant is proved to be guilty of both the offences of which he was convicted and I would, therefore, uphold the conviction re corded by the learned trial judge against him.

This leaves only the question of sentence to be dealt with. No doubt the appellant had done nothing physically to bring about the death of the deceased, but it was at his instance that the life of the deceased was taken. More over, the fact that the motive for the crime was that the unfortunate Advocate did his duty by his clients but could not be said to have done anything against the appellant, which the law did not allow him to do, enormously enhances the enormity of the act of the appellant. As I am of the view that the only appropriate sentence that a Court of law could pass for the offence proved against the appellant is the one passed by the learned trial judge, I would dis miss the appeal and leave the appellant to be hanged by the neck till he be dead.

MUHAMMAD SHARIF, J

.‑I agree

A. H. Appeal dismissed.

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