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Petitioner: ISHAQ VS Respondent: THE CROWN
P L D 1954 Federal Court 335
P L D 1954 Federal Court 335
(Appellate Jurisdiction)
Present: Muhammad Munir, C. J., A. S. M. Akram,
M. Shahabuddin, A. R. Cornelius and
Muhammad Sharif, JJ.
ISHAQ‑Appellant
versus
THE CROWN‑Respondent
Criminal Appeal No. 35 of 1954, decided on 27th October, 1954.
(On appeal from the judgment and order of the High Court of judicature at Lahore, dated the 6th April, 1954, in Criminal Appeal No. 911 of 1953.)
(a) Evidence Act (1 of 1872), S. 133‑Accomplice, statement of‑Degree and nature of corroboration required to convict accused‑Place where dead body was finally concealed after two days pointed out by accused‑Whether enough corroboration in circumstances of case. (Munir, C. J. Akram and Sharif, JJ. yes ; Shahabuddin and Cornelius, JJ. contra).
The appellant was given special leave to appeal on the question whether approver's evidence received sufficient corroboration from the fact of recovery of dead body of the victim of crime, from the bed of a canal, at the pointing out of the accused, to convict him of the offence of murder.
Per Muhammad Munir, C. J. (Akram and Sharif, JJ. concurring).‑The confirmative or corroborative evidence, which of course must be independent evidence, should be such as corroborates in one or more particulars the evidence of the approver that the prisoner was a party to the crime. What is important to remember is that the rule does not require the prosecution to prove by independent evidence that the prisoner committed the crime but only to produce such reliable and independent evidence as shows or tends to show that that part of the approver's testimony wherein he states that the prisoner was one of the persons who took part in the commission of the crime is true. In other words, "Corroborative evidence is evidence which shows or tends 'to show that the story of the accomplice that the accused committed the crime is true." If the rule required proof by other evidence that the approver committed the crime charge as distinguished from such evidence as merely tends to show that the approver's evidence that the accused committed the crime is true, there would be no need for accomplice testimony because then ex hypothesi the other evidence would itself be sufficient for conviction and the evidence of the accomplices would be wholly superfluous. This is the basic distinction which must be borne in mind while judging the value of corroborative evidence.
Another point to be noticed about the nature and extent of corroboration is that it need not confirm all the particulars disclosed by the accomplice in his evidence. Though illustra tion (a) to section 114 of the Evidence Act uses the word " particulars " in the plural, it has been held that corroboration on a single particular deposed to by the accomplice is sufficient provided that that " particular "tends to show that the prisoner was concerned in the crime. It is certainly not the rule that proof of that particular should itself be sufficient for conviction, or that standing by itself, it should not be capable of an innocent explanation because if the particular proved is inconsistent or incompatible with the innocence of the accused of the offence charged, then ex hypothesi it will itself be sufficient proof of the commission of the crime by the accused and the evidence of the accomplice will thus be unnecessary.
Where a person is in furtive ' possession ' of the corpse of a murdered man or has secret knowledge of the place where it is lying hidden from the public view, he may be presumed to have had something to do with the murder, if he cannot give a reasonable explanation of his possession or knowledge.
The nature and extent of the corroboration would depend upon, and vary with the circumstances of each case and in considering the sufficiency of the evidence in corroboration regard is to be had to the character and antecedents of the approver and the degree of suspicion attaching to his evidence, the circumstances in which he makes his statement and his motive to implicate the accused falsely.
King v. Baskerville (1916) 2 K B 658 rel.
Jiwan Singh v. Emperor A I R 1934 Lah. 23 (2), dissented from.
[Case‑Law referred to].
Per Shahabuddin, J. (contra).‑It is no doubt true that it is not necessary that there should be independent confirmation of every material particular of the approver's version and the above decision (King v. Baskerville (1916) 2 K B 658) stresses this point. But it does not lay down that corrobo ration of any one particular would suffice. On the other hand Lord Reading who delivered the judgment of the Bench observed .
" What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. "
After referring to the various English decisions on the point His Lordship went on to observe as follows :‑
" We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it."
It has, therefore, to be considered whether the appellant pointing out the place in the bed of the canal from where the body was ultimately recovered renders it probable that the story of the approver that the appellant participated in the murder is true and makes it reasonably safe to act upon it. In my opinion, the only conclusion that can safely and reason ably be drawn from the evidence relating to the recovery of the corpse is that the story of the approver regarding the second incident is true, and to go beyond that is hazardous. It would have been otherwise if the body had been removed from the kotha immediately after it was buried there so that in the circumstances it could be said that the removal of the body was the part of the same incident. In such a case it would be safe in the absence of a plausible explanation, to infer, from the knowledge of the accused as to where the body lay buried, that he must have participated in the murder as both the killing and the burial being parts of the same incident the presumption that the accused took part in the whole incident would be in accordance with the common course of natural events and human conduct. But where there was an appreciable interval of time between the murder and the removal of the body to the bed of the canal it appears to me extremely unsafe to conclude that the appellant giving information leading to the discovery of the corpse connects or tends to connect him with the crime of murder, for, he might have participated in the later incident without his having taken part in the killing.
Per Cornelius, J. (contra).‑From the proved fact of Ishaq's (accused's) knowledge of the precise place where the body was buried, only so much of the approver's statement can safely be held to be corroborated, as is concerned with the transference of the body from the place where it was first buried to its ultimate place of burial. To take the inference any further back, and to connect the disposal of the body which, on the approver's own story was not an act performed in the course of the same transaction as the murder, will violate the well recognised principle that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. The principle has also been stated otherwise to be that the evidence of an accomplice must be confirmed not only as to the circumstances of the crime, but also as to the identity of the accused person, as a participator in the crime. It was urged that the two crimes of murder and disposal of the dead body being separated by an interval of two days could not be regarded as a single crime. While Ishaq's knowledge of the place of burial tended to connect him with the burial itself, which would necessarily involve removal of the body to the place of burial, and while it could be said that this knowledge served to identify Ishaq as a participant in the crime of disposal of the dead body, in respect of the other and earlier offence of murder, there was no circumstance adduced which could serve to corroborate the approver's evidence in the manner essential to secure Ishaq's conviction for murder.
(b) Accomplice‑A moral wretch.
(c) Practice‑Whether Federal Court would not consider evidence which had not been referred to by High Court in maintaining conviction of accused because it thought that some other evidence was sufficient for conviction.
At the trial conviction of the accused was mainly based on an extra‑judicial confession and on the fact of recovery of the dead body at the pointing out of accused. The High Court maintaining the conviction did not refer to the confession at all. The question was whether the Federal Court could scan the confession in order to discover whether conviction could be supported on that ground as well.
Per Muhammad Munir, C. J., Akram, J. concurring, Shahabuddin and Cornelius, elcl. concurring by implication, Muhammad Sharif, el. (contra).‑There is neither any law nor any rule governing the practice of this Court that evidence which has not been referred to by the High Court because it thought that the other evidence was sufficient for conviction cannot be considered by this Court in an appeal from the conviction.
Per Muhammad Sharif, J. (contra).‑It is not for this Court, as the successor of the judicial, Committee of the Privy Council, to act as a Court of Appeal or Revision or in the exercise of its prerogative to scan the evidence with a view to find if the order of conviction by the High Court could be supported or maintained on some new ground.
(d) Confession‑Extra‑judicial‑Importance of reproducing in evidence actual words used by confessing accused.
Riasat Ali Khan, Advocate, Federal Court, instructed by Amjad Hussain, Attorney, for Appellant.
A. R. Changez, Advocate‑General of the Punjab (S. A. Mahmood, Advocate, Federal Court, with him) instructed by 11az Ali, Attorney, for Respondent.
Dates of hearing : October 11th and 20th, 1954.
JUDGMENT
MUHAMMAD MUNIR, C. J.--‑This is an appeal by special leave from a capital sentence.
Ishaq and Nur Ullah were committed to the Court of Sessions at Lahore for the murder of Qamar Din. They were tried by the Additional Sessions judge at Sheikhupura, and having been found guilty were both sentenced to death. On appeal to the High Court of Lahore, Nur Ullah was acquitted but the conviction and sentence of Ishaq were affirmed. Ishaq has now appealed by special leave of this Court.
Qamar Din deceased had two brothers Umar Din and Badar Din who are dead. Sattar and Piara are the sons, and Mst. Roshan the daughter of the deceased, while Ishaq appellant and Nur Ullah are the sons of Umar Din. The third brother of the deceased Badar Din had a daughter Rahim Bibi who is married to the appellant. Mst. Dani, the mother of the appellant and Nur Ullah, re‑married the deceased on the death of their father Umar Din.
Some 37 acres of land were held in mortgage by Mahndu, the father of the deceased. This land was redeemed by the mortgagor Ismail on payment of Rs. 1,914. As the mortgage was ancestral property, the deceased kept one half of the money for himself and gave the other half to his nephews. The appellant and Nur Ullah, however, claimed two‑thirds of the entire money on the ground that under the Shariat Law Mst. Rahim Bibi was entitled to the one‑third share of her father in the mortgage money. The deceased, however, would not accept this position or give the money, with the result that relations between the deceased and his two nephews became strained. In the course of a dispute over this matter the deceased struck the appellant on the neck with a stick. Besides, the deceased intended to mortgage some family land in order to raise money for the sinking of a tube‑well. This was resented by Sattar, and there were constant bickerings not only between Sattar and his father but also between the deceased and his two nephews.
In the end of March or the beginning of April Qamar Din disappeared from his house. This led to some whispers in the village and Piara, the elder son of the deceased, collected a panchayat which met on the morning of 25th April. Khan Bahadur, who acts as a Lambardar, presided over the panchayat and questioned Mst. Roshan about the time and the manner of the disappearance of her father. She stated that the last time she saw her father was when Sattar took him to the well of the appellant and Nur Ullah. On this Sattar was taxed with enquiries and eventually he confessed that he and his two cousins had murdered Qamar Din at the Anderwala well and buried his body first inside a kotha on the well and subsequently in the bed of the Dipalpur canal. On hearing this confession, Khan Bahadur sent for the appellant and Nur Ullah and confronted them with what Sattar had alleged against them. They both admitted that what Sattar had stated was true.
On the same day at five o'clock in the afternoon Khan Bahadur reported the result of the proceedings of the panchayat to Sub‑Inspector Shabbir Ahmad who registered a case under section 302 P. P. C., against the three men con cerned and commenced investigation. He made certain recoveries on the information given by each of these men, and on 27th April the appellant led him and some other persons to the Dipalpur canal and pointed a place from where the body of the deceased was retrieved by a diver. Dr. Muhammad Umar who performed the post mortem examination found several injuries on the body and gave the opinion which he repeated in Court that the death was due to haemorrhage and shock from multiple injuries, four of which had been caused with a sharp‑edged and one probably with a blunt weapon.
After investigation the appellant and Nur Ullah were charged with murder, the third accomplice Sattar, the son of the murdered man, having agreed to give evidence as an approver.
The learned Additional Sessions judge before whom the trial was held convicted the appellant and Nur Ullah on the evidence of the approver and recoveries at the instance of, and oral confession made by, the appellant and his brother. On appeal to the High Court at Lahore, however, the learned judges did not in their judgment refer to the confessions and thought that the several recoveries with the exception of one had no criminal significance. They, therefore, acquitted Nur Ullah, but acting on the evidence of the approver and the fact that the body of the deceased was recovered in consequence of the information given by the appellant they upheld his conviction and the sentence. The appellant was given special leave to appeal to this Court on the question whether the approver's evidence received sufficient corrobora tion against him, and this is the main question that requires determination in this appeal.
The evidence in corroboration of the approver consists of an oral confession by the appellant before a panchayat and the information given by him which led to the recovery of the body of the deceased from the bed of the Dipalpur canal. There is a preliminary point to be cleared about the confession. The learned Additional Sessions judge had relied on it but the judgment of the High Court contains no reference to it. It may be that because the learned judges of the High Court considered the evidence relating to the recovery of the body as sufficient corroboration of the approver, they said nothing about the confession. It is equally possible that the learned Crown Counsel, feeling that the evidence relating to recovery was sufficient corroboration of the approver, did not place the evidence of confession before the High Court. But whatever may be the explanation, now that the question is whether the evidence in corrobora tion of the approver is or is not sufficient, it is not contended by the learned Counsel for the appellant that we cannot look at that evidence or act upon it. There is neither any law nor any rule governing the practice of this Court that evidence which has not been referred to by the High Court because it thought that the other evidence was sufficient for I conviction cannot be considered by this Court in an appeal from the conviction. It is, therefore, necessary to examine, what the evidence of confession was.
The oral confession is deposed to by Piara (P. W. 15), Khan Bahadur (P. W. 17) and Master Sirajuddin (P. W. 19) who were all present at the panchayat. Piara states that Khan Bahadur, who appears to have acted as the sarpanch, first went to the house of the deceased where his daughter Mst. Roshan told him that the approver had taken the deceased with himself saying that he was required by the appellant and Nur Ullah at their well. Returning to the panchayat with this information, Khan Bahadur called the approver who was confronted with what Mst. Roshan had stated. The approver at first denied having taken the deceased to the well but on being pressed by the panchayat to state the truth he burst into tears and said that the appellant, Nur Ullah and he himself, had murdered Qamar Din. He further disclosed that they had first buried the body of the deceased in kothri at the well but later had dis interred and re‑buried it in the bed of the Dipalpur canal. After this statement of the approver the panchayat sent for Ishaq and Nur Ullah and questioned them on the subject. They both told precisely the same story as the approver had detailed. They were asked why they had murdered their uncle and they replied that they had done so because he had not given them two‑third share of the redemption money. The evidence of Khan Bahadur is to a similar effect. He says that after the approver had made a confession the appellant and Nur Ullah were confronted with it and then were asked whether what he had told was the truth. In reply they both admitted that together with the approver they had killed Qamar Din. Master Sirajuddin's evidence also is substantially the same. He deposes that on getting information of the murder from the approver, the appellant and Nur Ullah were sent for and asked if the story told by him that all three of them had murdered Qamar Din and buried his body was true, and they both admitted that it was. We asked the learned Counsel for the appellant whether he could urge anything against the credibility of any one of these three witnesses and he frankly admitted that on the record he could discover no reason to doubt their evidence. Each of the three witnesses is completely disinterested and two of them are men of apparent respectability. Piara is the appellant's own cousin; Khan Bahadur occupies an important position in the village as he performs the duties of the Lambardar for his father ; and Sirajuddin who resides in the village is a teacher in a neighbouring school. I see no conceivable reason why evidence of these witnesses should not be relied upon. The evidence receives the strongest possible corroboration from the circumstance that on that very day the appellant took the police and a party of villagers to the Dipalpur canal and pointed to place where, he said, the body had been buried by him and his accomplices and on search being made the body was recovered from that place. If the evidence as to this recovery be accepted as it has been, it must have been preceded by a confession of murder. The First Information Report which was made the same day by Khan Bahadur contains an unequivocal reference to the appellant's confession before the panchayat. I have, therefore, not the slightest doubt in my mind that the evidence of these three witnesses is true and that the appellant did make a confession in the manner described by them.
The confession being proved, we have to see whether there could be any mistake about the tenor and substance of the confession by those who heard it. Each of the three witnesses has alleged that the appellant admitted that the story told by the approver which had been repeated to him, namely, that Qamar Din had been murdered by the approver, the appellant and his brother Nur Ullah, and that they had all buried the body, was true. There is no question in the cross‑examination of these witnesses casting the slightest doubt on the terms or import of the confession ; nor is there any indication whatsoever therein that this part of their evidence was being questioned by the appellant or his counsel. In fact this evidence appears to me to be of an exceptionally satisfactory character and it receives corroboration not only from the subsequent recovery of the body but also from the terms of the First Information Report.
The mere fact that the evidence does not show whether the appellant and Nur Ullah were questioned together or separately‑ and what were the exact words used by each is of no importance in this case because it is quite clear from that evidence that each of them admitted the truth of the approver's statement and neither of them repudiated, as any innocent man should have done, what the approver had alleged against him.
Now if this evidence of an oral confession is believed it puts an end to this appeal because the confession and the approver's testimony both corroborate each other whichever of them be considered to be the basis of the case. A confession by the accused himself, provided it is satisfactorily proved, is a very powerful corroboration of the approver. Therefore the confession in the present case satisfies the requirements of the rule relating to the sufficiency of corroboration and the conviction can be supported on such corroborative evidence alone. In the present case, however, there is the further fact that the body was recovered in consequence of the information given by the appellant who undoubtedly had a motive to kill and for whose false implica tion the approver, who is his first cousin, had no motive whatsoever. All this evidence is sufficient in my opinion to conclude this appeal.
But since some of my brothers are not inclined to take the confession into consideration and consider that the recovery of the body at the instance of the appellant is not sufficient corroboration of the approver's testimony on the charge of murder, I consider it necessary to state my own views on the law relating to corroboration of the testimony of an accomplice. I may state at once that in my view, even if the confession be ignored, the evidence relating to the recovery of the body of Qamar Din from the bed of the Dipalpur canal in consequence of the information given by the appellant was in the circumstances of this case sufficient corroboration of the testimony of the approver that the appellant had taken part in the murder. If we hold that that evidence, which was considered by the High Court to be sufficient corroboration, was not so, we shall have to lay down or assume some general rule defining the kind of evidence that will in such cases be sufficient to confirm the approver's evidence that he and the prisoner committed the murder and then buried the body in a particular place. And if we give effect to the argument of the learned counsel for the appellant that the discovery of the body in consequence of the information given by the appellant only confirms that part of the approver's evidence that the appellant was a particeps criminis in the offence of concealing the body and not of that part in which he deposes that the appellant also took part in the murder, we shall by necessary implication not only be laying down the rule that corroborative evidence to be sufficient to prove the charge of murder must itself be sufficient proof of murder but that the evidence of discovery in such cases does not even tend to connect the appellant with the murder, a doctrine which will come perilously near holding that such evidence is not relevant to the charge of murder. Before we lay down a rule leading to such startling results and which may be misunderstood or extended to other cases by the Courts in this country and thus produce mis carriage of justice, we must be absolutely certain of the correctness of our position. With these observations I proceed to consider the principles, in so far as they are applicable to the present case, governing the sufficiency or otherwise of an accomplice's testimony.
As distinguished from a pretended confederate who associates with wrong‑doers in order to obtain evidence, an accomplice is a moral wretch who not only publicly boasts of his own part in the crime which is often committed in his interests and at his instigation but who, prompted by a mean desire to save his own skin, shamelessly betrays his companions in the dock and who has no scruples either in exaggerating their part in the crime…
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