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Criminal Appeal No. 1019 and Murder Reference No. 246 of 1978, decided on 8th June, 1981.
---S. 302--Testimony of approver--Approver's testimony has to pass through two tests; first being intrinsic value of his testimony and second being corroboration which must come forth from independent sources affecting accused by connecting or tending to connect him with commission of crime.--[Approver].
Abdul Majid v. State P L D 1973 SC 595; Muhammad Bashir v. State P L D 1971 SC 447 and Noor Nabi v. State P L D 1972 Kar. 292 ref.
---S. 302--Motive--Motive relating to family affairs of deceased and accused--Approver closely connected with both factions i.e. of accused as well as deceased--Approver was cousin of both accused and deceased who were inter se first cousins--Approver giving background of motive which was found to be reasonably probable and nothing found on record to disprove same--Accused and acquitted co-accused in their statements before Trial Court vehemently denying motive version given by approver but in defence they did not produce any evidence in support of their denial--Approver was in a position to know family affairs of accused as well as deceased--Accused had a genuine grievance against deceased who had made accused's sister pregnant--Deceased was root of family scandal and his conduct had provided sufficient provocation to accused and acquitted co-accused--Approver had also a genuine cause of grievance against deceased and his family members--Accused, acquitted co-accused and approver could have joined together in order to teach a lesson to deceased--Testimony of approver regarding motive was relied upon in circumstances.
---S. 302--Testimony of approver--Intrinsic value of--Motive version given by approver found to be reasonably probable and nothing on record found to disprove same--Approver consistently describing in his three statements as to how accused, acquitted co-accused and he himself first planned and then proceeded to murder deceased--Approver, in substance giving same version of occurrence on three occasions when his statement was recorded and no inconsistency found in said version- Testimony of approver found to be intrinsically valuable in circumstances.
---S. 302--Medical evidence- -Instrinsic value of testimony of approver challenged on ground that it was contradicted by medical evidence--According to medical evidence entrance wound was on chest of deceased and exit wound was at his back--According to two statements of approver accused had fired shot at back of deceased--Approver in another statement trying to bring his testimony in line with medical evidence- Contention that intrinsically testimony of approver was not sound and his presence at time of commission of crime was doubtful, repelled- Accused was allegedly armed with a locally made pistol/carbine in which cartridge is used--Strange measurements of wound were given by doctor as entrance wound was stated to be larger than exit wound--Exit wound, held, should have been greater than entrance wound--Stating categorically as to which was entrance wound and which was exit wound, held further, was difficult in circumstances despite the fact that blackening and burning around and inside entrance was mentioned by doctor--Medical evidence not found to be helpful to accused in circumstances.
---S. 302--Testimony of approver- -Corroboration--Wajtakkar evidence and evidence of extra-judicial confessions found to be reliable--Testimony of Wajtakkar witness as well as of witness of extra-judicial confession of accused corroborating testimony of approver--Testimony of approver further getting support by motive as well as medical evidence- Prosecution, held, had produced cogent corroborative evidence of testimony of approver which was sufficient to sustain conviction of accused--Prosecution , therefore, succeeded in establishing its case against accused beyond any shadow of doubt--Conviction maintained in circumstances.
---S. 302--Sentence--Deceased, first cousin of accused, making pregnant sister of accused and then refusing to marry her--Mitigating circumstance, held, was constituted in favour of accused for extreme step of murder of deceased--Awarding of lesser penalty, would be sufficient to meet ends of justice--Sentence of accused altered from death to that of imprisonment for life in circumstances.
---S. 302--Criminal Procedure Code (V of 1898), S.382-B--Benefit of S.382-B of Cr.P.C.--Accused awarded sentence of life imprisonment- Accused remaining in jail for about four years as undertrial prisoner remaining in jail for about 3 years after conviction--Benefit of S.382-B of Cr.P.C. granted to accused.
M.A. Zafar for Appellant.
Mian Abdul Khaliq for the Respondent.
Dates of hearing: 7th and 8th of June, 1981.
--Muhammad Anwar son of Taj Din, aged 22, armed with pistol, has been convicted under section 302, P.P.C. for the murder of his first cousin Falak Sher, aged 30 and was sentenced to death plus fine of Rs.2,000 or in default to undergo six months' rigorous imprisonment, vide judgment, dated 4-11-1978 of the Sessions Judge, Sheikhupura. His co-accused Nawab son of Islam, stated to be his friend was acquitted whereas Manzoor Hussain son of Sultan, his Phuphizad as well as that of the deceased turned approver and has appeared as P.W. 7 before the trial Court. The appeal of the convict as well as reference for the confirmation of death sentence awarded to him are being taken up and disposed of together by this judgment.
It may be pointed out at this stage that Muhammad Anwar appellant Falak Sher deceased are first cousins, their fathers being brothers. Nawab acquitted co-accused was a friend of Muhammad Anwar appellant and Manzoor Hussain P.W.7 approver is son of sister of the fathers of the appellant as well as the deceased. Thus, the parties are closely inter-related.
2. The occurrence took place at 1-30 a.m. in the night between 23/24-8-1974 outside the cattle-shed of the deceased within the area of village Isherke, at a distance of 12 miles from Police Station Saddar Sheikhupura, Tehsil and District Sheikhupura. F.I.R. Exh.P.M. was lodged by Wali Muhammad (not produced) father of the deceased at 7-00 a.m. on 24-8-1974 and it was recorded by Muhammad Saleem, S.I. P.W.14.
It may be pointed out at this stage that in the course of investigation the accused persons named in the F. I. R. were not challaned by the police but in the light of statement of Manzoor Hussain P.W.7 approver the present appellant and the acquitted co-accused had been challaned and sent up for trial.
3. In the F.I.R. instead of the appellant, the acquitted co-accused and Manzoor Hussain P.W. approver, four others were named as assailants of the deceased. It was stated that Arif, armed with pistol, Mansha, armed with gun, Khaliq also armed with gun, and Rehma armed with Dang, were the culprits and that the fatal shot caused to the deceased was attributed to Arif only. Furthermore, in the F.I.R. the motive set up was that a month prior to the present occurrence the bullocks of Arif, Khaliq and Mansha had been stolen and they had suspected that the deceased and his brother Abbas had done the job. Thereupon the deceased and his father gave Nian (guarantee) but they did not accept the same and held out a threat that they would get their bullocks by force. It was stated by Wali Muhammad, father of the deceased, in the F.I.R. that earlier during the day of occurrence he had contacted them at Thatha Ali but they had abused and threatened him.
As it has been pointed out earlier in the course of investigation the police did not challan the four persons named as accused in the F.I.R. but instead the present appellant and the acquitted co-accused were challaned and the motive as against them had been provided by Manzoor Hussain approver P.W.7. This motive was to the effect that the sister of the appellant namely Mat. Amina Bibi was made pregnant by the deceased through illicit relations. The parents of the appellant then approached the parents of the deceased to accept the hand of their daughter. But the parents of the deceased not only refused to accept her hand in the marriage for their son but tried to shift the responsibility of causing pregnancy to her from the shoulders of the deceased on to Nawab, acquitted co-accused, who was a friend of the present appellant. Consequently, not only the appellant had felt annoyed as against the deceased but also Nawab, acquitted co-accused when he learnt that the parents of the deceased had put a false allegation on him that he had impregnated the sister of his friend i.e. Muhammad Anwar appellant. It was further stated by Manzoor Hussain P.W. approver that originally Mst. Aimna Bibi was engaged to be married to Kamir son of the Raja and in exchange Amir, brother of Kameer, had promised to marry his daughter Mst. Bashiran to Mian Khan, brother of the present appellant. Thus, Mst. Bashiran was the niece of the deceased being daughter's daughter of Wali Muhammad. Three months thereafter, Kameer refused to marry Mst. Aimna Bibi for the reason that she was a girl of bad character and similarly Amir refused to abide by the exchange agreement. On this Taj Din father of the appellant, had suspected that Wali Muhammad, father of the deceased, his brother, had a hand in breaking up this exchange agreement. Furthermore, Sadiq, paternal-uncle of Amir and Kameer, had promised to marry his daughter Mst. Sairan Bibi to the deceased and their Nikah was accordingly performed. On this the appellant and his family members felt annoyed that the betrothal of Mst. Aimna Bibi was broken whereas Mst. Sairan Bibi was to be married to the deceased. Taj Din, father of the appellant approached Wali Muhammad, his brother, again and offered him to accept Mst. Aimna Bibi, sister of the appellant, in marriage for his other son Abbas and give his daughter in return to marry Muhammad Anwar appellant. But Wali Muhammad even refused to do so. At this the appellant is stated to have said that the family of the deceased had got the betrothal of his sister with Kameer broken and that the deceased had made his sister pregnant through illicit connections and further that they were not accepting his sister to be married with Abbas. Consequently if Mian Khan was not to ride with Sehra for marriage, then the deceased would also not ride with Sehra. So far as Manzoor Hussain P.W. approver is concerned his sister Mst. Sakina Bibi was married to Shahadat P.W.13 brother of the deceased. Wali Muhammad had promised that in exchange he would marry his daughter Mst. Hajran Bibi to him. But subsequently he backed out from his promise. When Mst. Sakina Bibi asked Wali Muhammad and Shahadat P . W . to marry Mst. Hajran Bibi to him they refused to do so and on her insistence the deceased beat her up and turned her out of the house on three or four occasions. Since she had small children, she went back to the house of her husband again. When Manzoor Hussain P.W. approver went to meet his sister, she has complained to him that the deceased had beaten her and turned her out of the house. Thus, Manzoor Hussain P.W. approver had also felt aggrieved as against the deceased. According to this motive version of the approver the appellant had consulted with him and thereafter the appellant, the acquitted co-accused and the approver planned to murder the deceased.
It may be pointed out at this stage that a case was got registered in the F.I.R. (Exh.P.M.) against the alleged accused persons named therein, only because they were Bhattis of Thatha Ali with whom Wali Muhammad had an enmity.
4. The witnesses mentioned in the F.I.R. were all not produced but given up as won over. These were Wali Muhammad, father of the deceased, Sultan, Behnoi of the deceased, and Shahadat, brother of the deceased, who did not appear as eye-witness but appeared as P.W.13 in order to identify the dead body of the deceased. Manzoor Hussain P.W. approver had made an extra-judicial confession before Khan Muhammad P.W.12 on 19-9-1974 and he was arrested on the same day. While he was under arrest he put in a written application in order to become an approver (Exh.P.E., dated 25-9-1974) through jail. On this application the District Magistrate, Sheikhupura ordered that his statement be recorded by the Duty Magistrate on 26-9-1974. Thus, his statement Exh.P.D. was recorded by the Duty Magistrate on 26-9-1974. However, the Duty Magistrate, after recording his statement appears to have forgotten to pass an order granting pardon to him. The error was noticed by the trial Judge, who, vide order, dated 23-2-1978 directed the District Magistrate that an order tendering pardon to him should be passed. As a result the District Magistrate again recorded his statement Exh. P. C . on 8-8-1978 and thereafter tendered pardon to him.
Consequently, the case took a new turn and since it was an unwitnessed occurrence the prosecution case was constructed on the basis of the testimony of Manzoor Hussain P.W. approver as corroborated by other pieces of circumstantial evidence, recovery evidence, medical evidence and motive evidence.
In this connection the prosecution has produced Haneef P.W.9 as a Wajtakkar witness. He is unconnected but was stated to be a chance witness. The other Wajtakkar witness, namely Sher Ali was not produced. Then there is evidence of extra-judicial confession having been made by Manzoor Hussain P.W. approver before Khan Muhammad P.W.12 on 19-9-1974 i.e. on the date when he was taken into custody by the police. The other witnesses of his extra-judicial confession, namely, Ghulam Muhammad and Muhammad Din were not produced. Muhammad Anwar appellant is reported to have made an extra-judicial confession before Shahsawar P.W.11 on 20-9-1974 and he was arrested on the same date. Nawab, acquitted co-accused, is stated to have made extra-judicial confession before Anwar P.W.10 on 17-9-1974 and he was arrested on 18-9-1974.
5. As it has been pointed out above, the present appellant was arrested on 20-9-1974 whereas the acquitted co-accused was arrested on 18-9-1974, both by Abdul Hameed I.P. P.W.15. At the instance of Muhammad Anwar appellant unlicensed .12 bore pistol P.4 with two live cartridges P.5/1-2 and one empty cartridge P.6 were recovered and taken into possession, vide memo. Exh.P.H., dated 20-9-1974. The attesting witnesses are Shahsawar P.W.11, Sondhe Khan (not produced), Wali Muhammad (not produced) and Abdul Hameed I.P. P.W.15. The report of the Forensic Science Laboratory Exh.P.S. at page 17 of the paper book regarding crime-empty P.6 is to the effect that it had been fired from .12 bore pistol P.4. But it may be pointed out at this stage that crime-empty P.6 had not been picked up from the spot but was taken into possession on production by Muhammad Anwar appellant alongwith .12 bore pistol P.4 and two live cartridges P.5/1-2. The brother of Nawab, acquitted co-accused, namely, Ali Nawaz had produced .12 bore gun P.8 licensed in the name of Nawab, acquitted co-accused P.9 and it was taken into possession, vide memo. Exh.P.K., dated 20-3-1974. The attesting witnesses are the same. It may further be pointed out at this stage that the recovery evidence, in the instant case, is not of any corroborative value as it did not connect the recoveries with the commission of crime.
6. The appellant and the acquitted co-accused in their statements before the trial Court totally denied having participated in the occurrence. They denied the motive version as given by the approver and also denied having made extra-judicial confessions. They likewise disowned the recoveries and stated that they had been falsely implicated due to enmity.
7. Dr, Abdul Majeeb P.W.5 conducted post-mortem on the dead body of the deceased at 4-30 p.m. on 24-8-1974 and found on his person fire-arm entrance wound 1" x 1" on the left side of chest with exit wound 3/4" x 1" on the back and centre of spine. There was blackening and burning around and inside the entrance wound. One pellet was removed from the right side of chest and handed over to the police. The injury had been caused with fire-arm and was sufficient to cause death in the ordinary course of nature. In his opinion, death had been caused due to severe shock and haemorrhage and the probable time between death and injuries was immediate.
It may be pointed out at this stage that according to the medical evidence the entrance wound was in the front chest and the exit wound was at the back. But it is strange that the entrance wound measures 1" x 1" whereas the exit wound, which should have been larger measures 3/4" x 1". It is, therefore, difficult to ascertain as to which was the entrance wound and which exit wound, although the doctor has stated that there was blackening and burning around and inside the entrance wound.
8. The occurrence as reported in F.I. R. is not relevant for the present purpose because the version given therein was discarded in the course of investigation and the investigation led to different results. However, the version given therein by Wali Muhammad, father of the deceased, of the occurrence is as follows: On the fateful night he alongwith the deceased and his other son Shahadat P.W.13 was sleeping outside the Behk in order to guard the cattle-shed when at the middle of night they were woken up by the barking of the dog. He saw that Arif, armed with pistol, Mansha, armed with gun, Khaliq, armed with gun and Rehma, armed with Dang were standing around their cots. He inquired from them as to why they had come whereupon Mansha replied that they had come to teach them a lesson for having stolen their bullocks. Meanwhile the deceased had just got up and was sitting on his cot when Arif fired a shot through his pistol at the deceased which hit him and he fell down from the cot and died on the spot. Thereafter, Khaliq and Rehman raised a Lalkara to the effect that if anyone came near they would kill him. Then they ran away from the spot. On the alarm of Wali Muhammad and Shahadat P.W. people from neighbouring Deras rushed to the spot., Leaving behind Abbas and Sultan to guard the dead body he proceeded to lodge the report.
It has been pointed out that eye-witnesses mentioned in this F.I.R. were not produce except Shahadat P.W. who did not give evidence as an eye-witness of the occurrence, but only identified the dead body of the deceased. It has also been pointed out that in the course of investigation the version given in F.I.R. was discarded. It is evident from the record that when this case was registered under section 302/34, P.P.C. on 24-8-1974 and the investigation commenced, there was a general rumour in the village that the accused persons named in the F.I.R. had not committed the crime but instead it had been committed by the appellant, the acquitted co-accused and the approver. Nawab acquitted co-accused was arrested on 18-9-1974 when he had made an extra-judicial confession before Anwar P.W.10 on 17-9-1974 and was produced by this witness before the police on the next day. Consequently from 18-9-1974, i.e. after 25 days of the occurrence the investigation took a new turn. On 19-9-1974 i.e. after 26 days of the occurrence Manzoor Hussain P.W. approver was taken into custody by the police when he was produced by Khan Muhammad P.W.12 before whom he had made an extra-judicial confession for having participated in the occurrence on the same day. Muhammad Anwar appellant had made an extra-judicial confession before Shehsawar P.W.11 on 20-9-1974 and on his production before the police by Shehsawar P.W. he was arrested on 20-9-1974. The record further shows that Manzoor Hussain P.W. approver made a written application through jail for becoming an approver on 25-9-1974. Eventually, his statement Exh.P.D. was recorded by the Duty Magistrate on 26-9-1974. Exh.P.D. is at page 100 of the paper book. He first gave the motive version as has been given above and then stated that the appellant came to visit him in order to consult him and suggested to him that they should join together and murder the deceased. He agreed with him. From his village they both proceeded to the Dera of the appellant where they were joined by Nawab, acquitted co-accused, who had come there armed with his licensed gun. The three of them waited till mid-night and then proceeded to the spot where the deceased used to sleep. At that time the appellant was armed with a pistol and the acquitted co-accused took three cartridges for his gun from the appellant. The approver was given a Sota by the appellant. When they had covered a distance of about 10 paces while proceeding to the Behk of the deceased, they met Haneef P.W.9 and Sher Ali (not produced), who were watering their Munji crop. Haneef P.W. and Sher Ali inquired as to who they were and where they were proceeding. On this the appellant replied that he was Muhammad Anwar and that they were going to the Dera of Wali Muhammad. When they reached the spot, the deceased was asleep on a cot outside alone on his right side. Thereafter the appellant put the pistol near his wait and fired a shot through the same. As a result the deceased fell down from his cot and raised the sound 'Hail. In the meantime the acquitted co-accused tried to shut his mouth. He inquired from the appellant as to whether the deceased had been hit or not and the appellant replied that shot had passed through. 5/6 minutes thereafter the deceased died and they returned to their Dera. While on their way back they melt Haneef P.W. and Sher Ali again. They said that they had heard the: noise of a fire shot coming from the direction of the Dera of Wali Muhammad and that what was the matter. On this the appellant told theme that they did not know anything about the same. When they arrived at the Dera of the appellant, the acquitted co-accused left with his gun for his own Dera and the approver returned to his village on his bicycle. On the following day at about 8-10 a. m. someone came from the village and informed the members of the family of the approver that the deceased had been shot dead during the past night. Thereupon, the mother and the father of the approver proceeded to the Dera of Wali Muhammad for condolence purposes and returned to their village after two days. The approver inquired from them as to who was the murderer of the deceased. His father told him that a case had been registered against four Bhattis of Thatha Ali, that the police had taken them into custody and that the deceased had been buried. But there were rumours in the village that in reality the deceased had been done to death by the present appellant, the acquitted co-accused and the approver. When the police came to arrest the approver he did not appear before the police. But made himself scarce. On the following day when he was returning to hiss Dera he met Khan Muhammad P.W. at his Dera where; Ghulam Muhammad and Muhammad Din were also present. They inquired from him as to why the police was searching for him. First he pretended as if he did not know anything about the matter, but afterwards he told the whole story to them. Thereafter, Khan Muhammad P.W. produced him before the police and he was arrested.
As it has been pointed out earlier the Duty Magistrate, after recording his statement, did not pass an order granting pardon to him and this error was noticed at the trial stage when the trial Judge, vide his order, dated 23-2-1978 directed the District Magistrate that an order tendering pardon to the approver should be passed. As a result the District Magistrate again recorded his statement Exh . P. C . on 8-8-1978 and thereafter tendered pardon to him. It may be pointed out at this stage that the statement Exh . P . C . recorded on 8-8-1978 of the approver by the District Magistrate almost after four years in substance is the same except that in the subsequent statement the approver stated that the appellant had fired the shot while placing the carbine on the heart of the deceased and that at the time of dying he had uttered 'Hat Meri Amma'. Before the trial Court he made identical statement as P.W.7 except that he stated that the appellant touched the pistol/carbine with the body of the deceased and fired a shot and that he had placed the pistol/carbine at the back of, the deceased when he fired.
9. We have heard learned counsel for the parties and carefully perused the record. The case of the prosecution is primarily based on the testimony of the approver as corroborated by the circumstantial evidence of Wajtakkar witness and extra-judicial confessions as well as supported by the motive version and the medical evidence. It has been consistently laid down that approver's testimony has to pass through two tests. First the intrinsic value of his testimony and second corroboration which must come forth from independent sources affecting the accused by connecting or tending to connect him with the commission of crime. In this connection Abdul Majid v. State P L D 1973 SC 595, Muhammad Bashir v. State P L D 1971 SC 447 and Noor Nabi v. State P L D 1972 Kar. 292, may be relied upon. In the instant case, the approver is closely connected with both the factions of the family i.e. of the appellant as well as the deceased. He is Phuphizad (cousin) of both the appellant and the deceased, who are inter se first cousins for the reason that their fathers are real brothers and the approver is the son of the sister of their fathers. In his testimony he has given the background of motive which is reasonably probable and there is nothing on the record to disprove the same. It is correct that the motive version given by the approver had been vehemently denied by the appellant and the acquitted co-accused in their statements before the trial Court. But the defence, in the instant case, did not produce any evidence in this connection in support of their denial, for instance, by producing Mst. Aimna Bibi sister of the appellant, as a defence witness. We are, therefore, convinced in our mind that the approver has provided correctly the motive version in the peculiar circumstances of this case. He certainly was, because of his close relationship, in a position to know the family affairs of the appellant as well as the deceased. Furthermore, there is nothing on the record to contradict that his sister Mst. Sakina Bibi was married to the brother of the deceased and he himself was promised the hand of one of the sisters of the deceased. He had grievance against the deceased and his family because that promise was not fulfilled and when his sister had insisted, she was beaten by the deceased or turned out of their house a couple of times. However, since she had small children, she went back to the house of her husband and could do nothing further in the matter. In the background of the motive it is evident that the appellant had a genuine grievance against the deceased, who being his real first cousin had made pregnant Mst. Aimna Bibi, who was also his first cousin as well as sister of the appellant. Furthermore, the family of the deceased instead of accepting the blame had attempted to transfer it to shoulders of the acquitted co-accused, who was a friend of the appellant as stated by the approver. The family of deceased had likewise refused to accept Mst. Aimna Bibi in marriage for Abbas, brother of the deceased, as they had refused to accept her in marriage for the deceased. Consequently, the root of this family scandal was no other except the deceased and his conduct had provided sufficient provocation to the appellant as well as the acquitted co-accused to avenge the insult to the family honour of the appellant as well as the personal honour of his friend the acquitted co-accused. Even the approver had a genuine cause of grievance against the deceased and the members of his family. Therefore, in our opinion the three of them could have joined together in order to teach a lesson to the deceased. The approver has consistently described in his three statements as to how they first planned and then proceeded to murder the deceased. The fatal shot to the deceased had been fired only by the appellant. The acquitted co-accused had not played any part in the accomplishment of the job. The assertion that he tried to shut the mouth of the deceased when he was about to die may be a mere padding for showing his participation in the commission of crime. He was stated to be armed with a gun but did not use the same. In the same way the approver was armed with a Sota but he did not use the same and had merely, accompanied the appellant as the acquitted co-accused. Since, he has, in substance, given the same version of the occurrence on three occasions when his statements were recorded and as there is no inconsistency in these versions, we find the testimony of the approver intrinsically valuable. The only objection which has been raised against the intrinsic value of the testimony of the approver by the learned defence counsel is that it was contradicted by the medical evidence. In this context our attention has been drawn to the medical evidence which is to the effect that the entrance wound was on the front chest whereas the exit wound was at the back, but the approver in his first statement Exh. P . D . as well as statement before the trial Court had stated that the shot had been fired by the appellant by placing the pistol/carbine close to his back and that in the light of these statements the entrance wound should have been at the back and exit wound in the front. It was also pointed out that in his second statement Exh.P.C. which was recorded after four years he had attempted to bring his testimony in this connection in line with the medical evidence. On this basis it has been urged before us that intrinsically the testimony of the approver was not sound and he might have not been present at the time of the commission of crime. However, we do not agree with the learned counsel because the medical evidence, in the instant case, is not very helpful. The appellant was stated to be armed with a pistol/carbine which is locally made and a cartridge is used in the same. The doctor has given strange measurements of the wound, i.e. 1" x 1" is the entrance wound and the 3/4" x 1" is the exit wound. This could have not been so because the exit wound should have been larger. Consequently, it is difficult to state categorically as to which was the entrance wound and which was the exit wound despite the fact that the doctor had stated that there was blackening and burning around and inside the entrance wound. It was next argued that the corroborative pieces of evidence of testimony of the approver were not sufficient to sustain conviction. The reasoning is that the prosecution had sought corroboration of the testimony of the approver only through Wajtakkar evidence and evidence of extra- judicial confessions. According to learned defence counsel the witnesses produced in this connection, namely, Hanif, Khan Muhammad, Anwar as well as Shahsawar P.Ws. were not reliable. We have carefully considered this aspect of the case. Wajtakkar witness Haneef P.W. had stated that on the fateful day he was cultivating his own land and his mother-in-law's land at about mid night when the accused party passed by. He called them and asked them where they were going and he received the reply that they were going to the Dera of Wali Muhammad. About half an hour after they had left he heard the sound of a fire shot and at about 1-00 a.m. when the accused party was on their way back, he again asked them that he had heard the sound of a fire shot but was told that they did not know anything about it. After his turn of water was over, he returned to his house. But only learnt in the morning that the deceased had been murdered the preceding night. On the third day he went to offer Fateha for the deceased and heard the rumour that Bhattis had been falsely implicated. He had told them that he had seen the appellant, the acquitted co-accused and the approver on the fateful night proceeding towards the Dera of Wali Muhammad. Consequently, the three of them were suspected for having committed the murder. It was Muhammad Khan P.W. in whose presence the approver had made an extra-judicial confession and again it was he who produced the approver before the police when he was taken into custody. Both Khan Muhammad P.W. and the approver have not denied this fact. Next there is testimony of Shahsawar P.W. before whom the appellant is stated to have made the extra-judicial confession. He produced the appellant before the police when he was taken into custody. The acquitted co-accused is stated to have made extra-judicial confession before Anwar P.W. and on the basis of the same he was arrested by the police. So far as the participation of the appellant is concerned as a principal accused, the testimony of Wajtakkar witness of Haneef P.W. as well as of the extra-judicial confession of the appellant namely, Shahsawar P.W. corroborated the testimony of the approver. The testimony of the approver, in our view, is further supported by the motive as well as the medical evidence. Consequently, in our considered opinion, the prosecution has produced cogent corroborative evidence of the testimony of the approver which is sufficient to sustain conviction so far as the appellant is concerned. In that view of the matter, we are convinced in our mind that the prosecution has succeeded in establishing its case as against the appellant beyond any shadow of doubt. In the light of the above discussion, the conviction of the appellant under section 302, P.P.C was quite proper and is accordingly maintained. As for the question of sentence, in the background of the motive version which we have relied upon, we are of the view that in the circumstances the awarding of lesser penalty would be sufficient to meet the ends of justice because if the deceased had made pregnant the sister of the appellant and was refusing to marry her, it would constitute a mitigating, circumstance in favour of the appellant for the extreme step which heir took i.e. the murder of the deceased, who was his first cousin. The result is that his sentence is altered from death to that of imprisonment for life. The sentence of fine is maintained. The appellant was arrested in connection with this case on 20-9-1974 and has remained in jail since then. Consequently, at the time of computation of the period for which he is to suffer imprisonment, the jail authorities should give him the benefit of section 382-B, Cr.P.C. With this modification and observation, this appeal is dismissed.
The sentence of death awarded to the appellant is not confirmed.
H.A.K./5309/L Appeal dismissed.
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