The illustration (b)

  

                                                                             

WASEEM LAW ASSOCIATES:

[1993]                                            Munawar Hussain v. State 

                                                               (Ajmal Mian, J)

Above sentences. The appellants’ appeals before the Federal Shariat Court also failed as stated hereinabove. Thereupon, they filed petitions for leave to appeal, which were granted as the Court, after hearing the learned counsel for the appellants, was of the view that it was a fit case for grant of leave.

6. None appeared for Munawar Hussain alias Bobi appellant in Criminal appeal No.19(S) of 1989. His appeal was also time-barred by 13 days. However, as we were to examine the cases of the other two appellants and as there was a common judgment, we have condoned the delay in the above appeal and have also examined his case on merits.

7. In support of Criminal Appeal No.20(S) of 1989, Mr. Munir Hussain Bhatti, learned counsel for the appellant Hamid Hasnain, has vehemently urged that the prosecution case is founded on the evidence of an accomplice, namely, P.W.24 Raza Muhanımad Qureshi without corroboration on material particulars and, therefore, the conviction and sentences cannot be sustained. Same was the argument of Qazi Muhammad Salim, learned Senior Advocate Supreme Court for Tahir Mahmood Butt, appellant in Criminal Appeal No.21(5) of 1989. Both have relied upon Illustration (b) of Article 129 of Qanun-e-Shahadat, 1984, hereinafter referred to as the Order, which corresponds to Illustration (b) of section 114 of the late Evidence Act, 1872, bereinafter referred to as the late Act’. The above Article 129 provides that The Court may presume the existence of any fact which it thinks likely to have happened, regard being bad to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

“The illustration (b) reads as follows:---

(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;”

No doubt that the above illustration (b) to above Article 129 of the Order provides that an accomplice is unworthy of credit, unless he is corrborated in material particulars. However, we may point out that the above illustration of Article 129 of the Order is to be read with Article 16 of the Order, which lays down that an accomplice shall be a competent witness against an accused person except in the case of an offence punishable with Hadd and the B conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The above Article 16 of the Order corresponds with section 133 of the late Act. In other words, in terms of above Article 16, a conviction can be recorded on the basis of evidence of an accomplice but the Court, as a rule of prudence, seeks corroboration in material particulars.

8. The learned counsel for the appellants have abo referred to the case of Abdul Qadir v. The State (PLD 1956 SC 407), the case of Muhammad Ayub Khubro v. Pakistan through the Ministry of Interior, Government of Pakistan and 2 others (PLD 1960 SC 237), the case of Muhammad Nawaz and another v. The State (PLD 1961 Lah. 880) and the case of Dr. Muhammad Bashir v. The State (PLD 1971 SC 447).

In the above first case this Court, while construing section 133 of the late Act, disbelieved the evidence of two approvers who were uncle and nephew and pointed out that the standard of corrborative evidence cannot be varied in case of approver being educated and apparently respectable if he is no better than a hired assassin.

In the second case this Court, while dealing with the evidence of a pardoned accomplice, has observed as under:---

"On the merits apart from the statement of Abdullah Khan who is a pardoned accomplice that the appellant came to his show room on 8th of October and asked him to finalize the deal, there is no other evidence of any act or omission by the appellant subsequent to the promulgation of Regulation No.26. Some witnesses have given evidence that when they negotiated for the purchase of the car from the Car Mart Abdullah Khan told them that the car belonged to Khuhro and could not be sold for less than Rs.60,000, but it cannot possibly be contended that these statements are admissible evidence against the appellant that they amount to independent corroboration. And in the absence of such corroboration the prosecution took a grave risk in separating the charge under the Hoarding and Blackmarket Order from that under Martial Law Regulation No.26. An officer of the Special Judge's experience could not be unaware that law requires corroboration of an accomplice by 'independent evidence", and that an accomplice's own previous statements or the confession of a co-accused is not corroboration by independent evidence. There was, however, not one word in the judgment on this vital point for the consideration of the confirming authority."

In the third case, a learned Single Judge of the erstwhile High Court of West Pakistan held that conviction cannot be based on evidence of witness without independent corroboration if his status is no better than an accomplice.

Whereas in the fourth case, this Court while dilating upon the evidentiary value of fin approver's evidence, has observed that as a rule of prudence which has almost hardened into a rule of law, it is dangerous to act on the uncorroborated testimony of an approver who is a self-confessed criminal.

9. On the other hand, Hafiz S.A. Rehman, learned counsel for the State, has referred to the case of Jan Muhammad v. The State (1968 PCr.LJ 1625), in which a learned Single Judge of the erstwhile High Court of West Pakistan at Karachi, has held that conviction based upon testimony of an accomplice is not illegal in view of section 133 of the late Act.

10. There cannot be any cavil with the submission that it is now well settled proposition of law that the Court, as a rule of prudence, secks corroboration on material particulars by independent corroborative piece of evidence in case the main witness is an approver or an accomplice, though in terms of Article 16 of the Order which corresponds to section 133 of the late Act, even conviction can be founded on the evidence of an accomplice without any corroboration if the Court is satisfied with the truthfulness of his evidence. In the prsent case, the learned trial Court has convicted the present appellants not solely on the evidence of the accomplice P.W.24 Raza Muhammad Qureshi, but has in detail, referred to the corroborative pieces of evidence on material particulars. The Federal Shariat Court also has addressed itself to the above aspect.

11. It was also urged by both the learned counsel that since P.W.24 Raza Muhammad Qureshi was neither pardoned under section 337, Cr.P.C. nor he was discharged under section 494, Cr.P.C., he was not a competent witness even as an accomplice. To reinforce the above submission, reliance was palced by them on the case of Keshav Vasudco Kortikar v. Emperor (AIR 1935 Bom. 186), in which a Division Bench, while construing sections 337 and 494, Cr.P.C., has inter alia held that Code of Criminal Procedure gives certain power under which the evidence of an accomplice can be made available and that he can be granted conditional pardon by the Magistrate under section 337, Cr.P.C. or the Public Prosecutor, with the consent of the Magistrate, can withdraw the charge under section 494, Cr.P.C. It has been further held that the above power ought to be exercised where the prosecution considers that the evidence of an accomplice is necessary and the Police have no right to take upon themselves not to charge a person against whom they have evidence because they required him as a witness and that where the above improper course is adopted, the evidence of the accomplice so obtained is entitled to very little weight.

12. On the other hand, Hafiz S.A. Rehman, learned counsel for the State, has referred to the case of Nga Thein Pe v. The King (AIR 1939 Rang. 361), in which a Division Bench of the Rangoon High Court, while referring to illustration (b) of sections 114 and 133 of the late Act, has held that there is nothing improper in tendering an accomplice as a witness apart from any question of pardon and that such a person is a competent witness and there is no irregularity in not sending up for trial every person against whom any suspicion appears to exist. It has been further held that it may on occasion be desirable to include evidence of an accomplice for what it is worth without tendering him a pardon. It has also been held that the question of weight of such a person's evidence is of course important since he will naturally have a strong.