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Petitioner: ABDUL QADIR VS Respondent: CROWN
P L D 1956 (W
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 14th 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 2nd of March 1955 and proceeded parti cularly from day to day did not 'terminate earlier than the 7th 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 7th 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 9th 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…
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