P L D 1996 Federal Shariat Court 1 (PLP)

KHALIL‑UR‑REHMAN KHAN, J.‑‑‑This judgment will dispose of Jail Criminal Appeal No. 68/Q of 1994 (Abdul Malik v. The State) and Murder Reference No. 1/1 of 1994 (The State v. Abdul Malik) as both arose out of the judgment, dated 19th September, 1994 whereby the learned Sessions Judge Kalat Division at Mastung convicted the appellant under section 302(b), P.P.C and awarded death sentence. The accused/appellant was also convicted under section 392, P.P.C. and was sentenced to ten years' R.I., and a fine of Rs.50,000 or in default of payment of fine to further undergo two years' R.I.

2. The prosecution case as per the F.I.R. dated 20‑1‑1993 registered on the basis of the statement of Rasool Bakhsh P. W. /complainant is that about six days back Mst. Ganj Khatoon his daughter after grazing their herd did not return to the house till evening and so he became worried and started search of the daughter but she could not be traced for the whole night. On the next day he traced footprints of his daughter and the herd and at a place near Pinder, found her daughter lying dead. On seeing the dead body, he found three serious injuries on the head and face caused by a Lathi and one of her teeth was found on the ground and the accused had also put a big stone at her feet. He added that they removed the dead body to his house and a person was sent to Tehsildar Mashkay for report and the lavies Mashkay reached the spot after a delay of three days but by that time the dead body had been buried. The complainant further stated that Tehsildar Mashkay after inspection of the spot disclosed that the said incident fell within the jurisdiction of Tehsildar Baisima and that they should report the matter there. The complainant further stated that they have been tracing the culprit and Ghulam Mustafa son of Haji Khan resident of Gujar informed them that Abdul Malik son of Karim Bakhsh resident of Gore Kai Mashkay had brought sheep and goats from some where and it appeared that these were stolen sheep and goats and possibly he may have killed the daughter of the complainant and may have brought complainant's sheep and goats. The complainant who was tracing the accused reached house of the accused and identified his sheep and goats from his herd and thereafter Muhammad Rahim, Secretary Union Council Pervar, kept the accused and the sheep and goats in his custody and later the sheep and goats were restored to the complainant but the custody of the accused was retained by the aforesaid Muhammad Rahim and that he has come to report at Baisima as instructed. Naib Tehsildar Baisima, on the basis of the aforesaid statement registered a formal F.I.R. and commenced the investigation. He arrested the accused Abdul Malik who was produced by Muhammad Rahim the same day i.e. 20th January, 1993. The Naib Tehsildar on the next day produced Abdul Malik accused before Attaur Rehman AC/SDM (P.W.5) for recording the statement of the accused under section 164, Cr.P.C. The judicial confession made by Abdul Malik accused is Exh. P/5‑A. On completion of the investigation challan or offence under section 302, P.P.C. was submitted. A separate, case for an offence under section 9/14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was also registered against the accused. ‑The learned trial Court framed the charge for offences under section 302, P.P.C. and section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and the trial commenced as the accused pleaded not guilty to the charge.

3. The prosecution at the trial produced seven witnesses in all. Rasool Bakhsh (P.W.1) is the complainant. He in his testimony reiterated the version contained in the F.I.R. Exh.P/lA. He stated about the missing of his daughter alongwith the herd and then tracing of the dead body. He gave the details of injuries on the Plead body and added that on the next day he alongwith Rahim and Qasoo found his two sheep in the house of Abdul Malik whereas other six sheep and two goats Were grazing with the herd of Karim Bakhsh father of the accused. He deposed that Abdul Malik accused alongwith sheep and goats were taken into custody by Muhammad Rahim who later on returned the sheep and goats to Qasim and retained custody of Abdul Malik till the time that he was taken into custody and arrested by Tehsildar Baisima. Allah Bakhsh (P.W.2) stated that he went to the house of Rasool Bakhsh on the night when daughter of Rasool Bakhsh was reported to be missing; they searched her and in the morning her dead body was found. He also gave details of the injuries on the head and the face of the deceased girl. He added that information was sent to Mashkay but no one came and thereafter he went to Baisima and informed Rehmatullah Jamadaar and on the fourth day of the incident Abdul Malik accused was arrested. Ghulam Mustafa (P.W.3) deposed that Abdul Malik came to his house at about 12‑00 midnight. He had with him eight sheep and two goats which according to the accused he had received in Bijar (aid) and that he left at 8‑00 a. m. and later people came and informed him that their sheep have been taken away. In cross‑examination he added that the said person had come three days later and has stated that his sheep are missing. He clarified that Rasool Bakhsh had come to his house after three days of the incident narrated by him. Sooner (P.W.4) deposed that he was at his house when Rasool Bakhsh sent him message that his daughter and sheep are missing on which he went to the house of Rasool Bakhsh and found the dead body of his daughter lying towards south of the village. He added that information was sent to Mashkay Tehsil, but when nobody came the dead body was buried and later they were told that the place of incident falls within Tehsil Baisima and that after four days he was informed that the murderer has been traced and that the murderer and the thief had been seen at Mashkay. Attaur Rehman (P.W.5) AC/SDM proved the judicial confession made before him by Abdul Malik accused. He stated that Abdul Malik accused made the statement under section 164, Cr.P.C., Exh.P/5‑A voluntarily and that he had recorded the said statement after complying with the requirements of section 364 Cr.P.C. In cross‑examination he stated that he had asked the question in Balochi including the question as to when he was taken into custody though he had not recorded the said question in the statement Exh.P/5‑A. He also admitted the suggestion as correct that he did not ask the accused as to whether Naib Tehsildar Levies had or had not made him to, make the statement before him and that he had also not asked him that in case of his making a statement or not making a statement he will not be handed over to the Levies but would be remanded to judicial custody.

4. Noor Ahmad (P. W.6) is the Naib Tehsildar who after registration of tote case conducted the investigation. He had prepared the maps of the place of incident Exh.P/6‑A and had arrested the accused Abdul Mali with the help of Muhammad Rahim. He added that the accused during investigation confessed the commission of offence and on 21st January, 1993 he produced the accused before AC/SDM Baisima where the accused got recorded his statement under section 164, Cr.P.C. He added that he recorded the statement of witnesses under section 161, Cr. P. C. and on completion of the investigation submitted the challan to the Court on 28‑3‑1993. He in cross‑examination admitted that accused was handed over to him by Muhammad Rahim. He, however, denied the suggestion as incorrect that he had knowledge that the accused was at the house of Muhammad Rahim. He refused the suggestion as incorrect that he himself took the accused to AC/SDM and after recording his statement wader section 164, Cr.P.C., he was handed over to him. He volunteered that a sent the accused with Levies after he was transferred to judicial custody by A.C. He also refuted the suggestion as incorrect that the accused had not confessed commission of the offence and that he carried all the proceedings against the accused at the instance of Muhammad Rahim.

5. Muhammad Rahim (P.W.7) deposed that Rasool Bakhsh informed tm about murder of his daughter and theft of his sheep by the murderer and that the matter was reported to the Tehsildar Mashkay who sent personnel of Levies to the place of incident. He further deposed that in Mashkay Bazar a person informed Rasool Bakhsh that on the night his daughter was murdered Abdul Malik son of Karim Bakhsh alongwith ten sheep came to his house and spent the night there, thereafter they went to the house of Abdul Malik where they found the sheep and goats regarding which father of accused disclosed that the accused had received the same in aid. He further stated that the accused confessed the commission of offence though he had implicated one Ali Dost with him in the incident. Ali Dost was called and disclosed that accused had met him and had requested for aid on which he was told that he will give the aid at the time of reaping of the crop and thereafter accused left for getting aid from somewhere else. He added that accused thereafter in presence of many persons confessed that he committed the murder alone and that he was handed over to Tehsikdar while Qasim who is brother‑in‑law of Rasool Bakhsh handed over the sheep to Rasool Bakhsh.

6. As against above material brought on record by the prosecution version of accused/appellant as contained in his statement under section‑342, Cr.P.C is of total denial of the prosecution case with the plea that he was involved in case due to enmity with Muhammad Rahim on account of some dispute of land. He added that no recovery of sheep and goats was made from him. Abdul Malik accused also made a statement on oath under section 340(2), Cr.P.C., and stated that he was ill and was going to hospital and on the way a white vehicle came and he was picked and taken away to be dropped at hospital Baisima and that he had not committed murder. In cross‑examination he denied the suggestion as incorrect that he voluntarily made the confession to A.C. He also refuted the suggestion as incorrect that he was making a false statement. It is pertinent to add that in his statement under section 342, Cr.P.C., he stated that it was not correct that on 21‑1‑1993 he had confessed the commission of offence before A.C. Baisima. He in his examination‑in‑chief of the statement under section 340(2), Cr.P.C., did not make any mention of his judicial confession but in cross‑examination he refuted the suggestion as incorrect that he had voluntarily made confessional statement. So making of the confessional statement before the A.C. was not specifically denied. It was the voluntarily nature of the statement which was denied or controverted.

7. Learned counsel for the appellant after taking us through the evidence on record argued that the conviction of the appellant cannot be sustained as no evidence to prove robbery or murder has been produced by the prosecution. He added that the sheep and the goats statedly recovered from the possession of the appellant by Muhammad Rahim P.W. were neither taken into possession by the Investigation Officer nor were these produced in Court, that post‑mortem examination of the dead body was also not conducted and as such the Court has not been taken into confidence as to the cause of death of Mst. Ganj Khatoon, the alleged victim of the robbery. He further pointed out that the F.I.R. is of no evidentiary value as the same was recorded after six days of the incident of the death of Mst. Ganj Khatoon when Abdul Malik accused/appellant had already been taken into custody by Muhammad Rahim P.W. Learned counsel on the above premises argued that Abdul Malik appellant on the basis of the material on record cannot be held guilty of an unwitnessed occurrence in which Mst. Ganj Khatoon lost her life.

8. Learned counsel for the State on the other hand argued that delay in recording the F.I.R. stands fully explained on record. The incident was first reported to Tehsildar Mashkay whose office is located more than one hundred miles away from the place of occurrence and many days were taken to reach that place and after arrival of the Levies personnel and spot inspection the complainant was told that place of occurrence did not fill within its jurisdiction and was instructed to approach the Tehsildar Baisima in whose jurisdiction the place of occurrence fell. The matter was then reported to the concerned authorities at Baisima and that in these circumstances not only that the delay stood satisfactorily explained but also the cause for not having the autopsy performed on the dead body. He added that the injuries found on the body of the deceased were described in detail by the prosecution witnesses and it is not the case of the defence that the said injuries were not sufficient in the ordinary course of nature to have caused the death of the deceased. Learned counsel for the State further stated that the ocular account of the prosecution witnesses convincingly establishes the commission if robbery and of murder of Mst. Ganj Khatoon accused/appellant.

9. We have given serious consideration to the pleas urged by the learned counsel for the parties and have gone through the material on record minutely.

10. A summary of the evidence produced by the prosecution has been given above. The version of Rasool Bakhsh P.W.1 complainant that his daughter did not reach home in the evening and her dead body with serious injuries was found next morning and that sheep and goats which were missing since then were found in the house of the accused and in the herd of his father was not seriously challenged in the cross‑examination. This version of the complainant receives support from the statements of Allah Bakhsh P.W.2 and Soomer P.W.4. The defence was not able to shatter their testimony and nothing could be brought to discredit this evidence. Ghulam Mustafa (P.W.3) stated that Abdul Malik accused stayed at his house with the sheep and the goats on the night of the occurrence and had told hint that the sheep and goats were received by him in Bijar. He has thus attested that he had seen the accused with the proceeds of robbery (sheep and goats) within few hours of the robbery and murder. Attaur Rehman AC/SDM (P.W.5) proved that judicial confession Exh.P5‑A of the appellant recorded on the next day of his arrest though the appellant in his statement under section 342, Cr.P.C., denied having made the confession before Assistant Commissioner but in statement on Oath under section 340(2), Cr.P.C., he said, nothing about the judicial confession in his examination‑in‑chief. He in cross‑examination, however, denied the suggestion as incorrect that he voluntarily made confessional statement to Assistant Commissioner. It is also pertinent to note that during cross‑examination of Mr. Attaur Rehman AC (P.W.5) it could not be shown that the confession made by him was involuntary.

11. There is yet another material piece of evidence, the testimony of Muhammad Rahim (P.W.7) which provides further corroboration to the prosecution version. He also spoke about the extra judicial confession made by the appellant before him. Muhammad Rahim (P.W.7) had no motive to involve the appellant falsely. He categorically refuted the suggestion that any dispute in respect of land exists between him and the appellant or that any such dispute was pending adjudication. It is pertinent to note that no particulars of the alleged dispute or the Court before which the dispute was allegedly pending were given or brought on record. It will, therefore, be seen that by producing the aforenoted evidence, the prosecution sought to establish: (a) Mst. Ganj Khatoon daughter of complainant alongwith sheep and goats were missing; (b) Mst. Ganj Khatoon was found dead with serious injuries which were sufficient to cause death in the ordinary course of nature; (c) Abdul Malik appellant was seen with goats and sheep, the proceeds of robbery on the very night of occurrence i.e. after few hours of the missing of the ill‑fated girl and the herd; (d) recovery of proceeds of robbery (sheep and goats) from the possession of the appellant; (e) extra judicial confession, and (f) judicial confession of the appellant. The aforenoted facts were deposed to by independent witnesses who appear to have no reason or motive to involve the appellant in a false case. The testimony of the prosecution witnesses is not only consistent but is also confidence inspiring.

12. The plea that the appellant cannot be legally held guilty of Qatl‑i‑Amd punishable under section 302(b), P.P.C. as the autopsy was not conducted of the dead body and the cause of death was not got ascertained from medical expert/doctor may now be attended to.

13. It is true that in this case autopsy of the dead body was not conducted for the reason that the poor girl was done to death at a place which is situated at a distance of 140 miles from Tehsil Mashkay where the murder was first reported through one Roozy Khan but for three days none from the Tehsil or Levies reached the spot. Obviously the dead body could not be retained for all this period and had to be buried. Tehsildar Mashkay reached the spot after three days to inform the bereaved family that the place of occurrence does not fall within his jurisdiction and the murder is to be reported to Tehsildar Baisima located at a distance of eighty miles. This situation of the place of occurrence and the circumstances brought on record explains the delay in lodging F.I.R. and in not having the post‑mortem examination conducted. The details of the injuries found on the d‑ad body coupled with the description of the injuries caused with stick on a teen‑aged girl given in the judicial confession Exh.P5‑A form sufficient basis for the conclusion that death occurred on account of the injuries caused by the accused‑appellant. In the circumstances, we are inclined to hold that absence of report of post‑mortem or non‑holding of the post‑mortem of the dead body is inconsequential in this case as law does not require that the dead body of the murdered person must necessarily be produced. If that is taken as a necessary requirement then in many situations e.g. when the body found is not recognizable at all or when the dead body after the murder is made to disappear, the offence of murder/Qatl‑i‑Amd can never be established. So all that is necessary is that the death of‑ a particular person should be established. In support of this view reference may be made to Rasool Bakhsh and 7 others v. The State 1976 PCr.LJ

301. Moreover if the Court is satisfied that murder has been committed and that the accused has committed the murder, the sentence should be determined upon the gravity of the offence irrespective of the circumstances whether the body has or has not been discovered. Pam Nath and others v. King‑Emperor AIR 1926 Oudh 234(DB), and Munda v. Emperor AIR 1931 Lah. 25(DB). For the reasons given above we agree that the learned trial Court has rightly appreciated the evidence on record and concluded that the prosecution has been able to establish the guilt of the accused‑appellant beyond reasonable shadow of doubt. The findings that the accused is found to have committed Qatl‑i‑Amd of Mst. Ganj Khatoon punishable under section 302(b), P.P.C. and has committed robbery by taking away eight sheep and two goats after murder of Mst. Ganj Khatoon are, therefore, confirmed. The learned trial Judge has, however, erred in observing that offence of robbery found to have been established is punishable under section 392, P.P.C., as in this case hurt was caused while committing robbery and as such the offence made out fell under section 394, P.P.C. The modification cannot be directed at this stage, and even otherwise the conviction under section 392, P.P.C. need not be altered as the appellant has already been adequately punished for the offence of robbery by awarding sentence of imprisonment for ten years and a fine of Rs.50,000 or in default thereof to further undergo two years' R.I.

14. Now the plea of the learned counsel for the appellant as regards sentence of death awarded to the appellant may be dealt with. He argued that death sentence as Tazir cannot be granted and sentence of death in the circumstances of the case is not warranted and that the ultimate sentence of life imprisonment, at best, would be appropriate and adequate.

15. The aforesaid argument is premised on the plea that primary punishment for Qatl‑i‑Amd prescribed by Shariah is retaliation (Qisas) which is called "Alakoobat ul Aslia" and in a case where death punishment as Qisas is not to be awarded due to lack of prescribed conditions then substitutionary punishment (Alakoobat ul badlia) such as Deyat or Ta'zir punishment is awarded. In ease of crime of Qausi‑intentional and inadvertent homicide (Aatl Khata O Qatl Shubatul Amad), blood money (Diyat) becomes primary or substantive punishment while Tazir punishment becomes substitutionary punishment. Jurists of Islam have mentioned three situations in which death penalty can be awarded as Tazir punishment with a view to maintain peace in the society and for achieving public good (Maslahat Nama).

16. On the question, whether death penalty can be awarded, the consensus is that in the interest of public good, "Tazir punishment can be awarded and the quantum thereof is dependent on the discretion (Sawabdid) and analogical deduction (Ijtihad) of persons/institution in authority (Aulal Umra) . Ibn‑Qayyum in his book "Attarkul Hakma " page 107 [see Urdu translation of the book page 190 "Islam main Adal ke Zabtay " by Prof. Tayyab Shaheen Lodhi] says: "Jurists have expressed two opinions in this respect; firsts it is permissible to award death penalty by way of Tazir, e.g. a Muslim spy may be awarded death penalty if it becomes necessary for public good (Maslahat Nama). This is the opinion of Imam Malik and Hanbali jurists have adopted the same opinion, so is Allama Ibn‑Aaqel as he also holds this very opinion.

17. Some of the followers of Imam Shafi and Imam Ahmad bin Hanbal have discussed the advisability of awarding death punishment for persons who preach adoption of innovations in the faith, likewise death penalty is permissible for such offenders whose extermination becomes necessary in order to rid the society (fitna fisad)(evil effects) Imam Abu Hanifa also expressed the view that a person guilty of unnatural offence if persists in his crime and punishment awarded to him fails to reform him, can be awarded death penalty, as he in case of unnatural offence does not approve of ' Hadd' punishment contrary to the view of the two Imams' (Shaft and Ahmad bin Hanbal).

18. On the question of permissibility to award death penalty, the discourse cont4ined at page 223 of the book titled Tazbarbi Shariat ul Islamia by Abdul Aziz Aamir is instructive. The Urdu translation of the relevant discussion is as under:‑‑‑

19. From the above discussion it follows that awarding of death penalty by way of Tazir is permissible and in the public good, the same can be prescribed by the sovereign authority. This very view was expressed by this Court in Muhammad Riaz etc., v. Federal Government PLD 1980 FSC

1. The provision of law on the subject holding the field is section 302, P.P.C. as amended by the relevant Qisas and Diyat Ordinance which is effective as per enunciation of the Appellate Shariat Bench of the Supreme Court in the case of Federation of Pakistan and another v. N.‑W.F.P., Government and another PLD 1990 SC 1172. Section 302, P.P.C. reads as follows:‑‑‑ "

302. Punishment of Qatl‑i‑Amd.‑‑Whoever commits Qatl‑i‑Amd shall, subject to the provisions of this Chapter be ‑‑ (a) punished with death as Qisas; (b) punished with death or imprisonment of life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty‑five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable." In the instant case clause (b) applies. It provides for penalty of death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case. This provision does not spell out the circumstances in which either of the two punishments ‑is to be awarded and as such it has been left for the Superior Courts to lay down guidelines for awarding either of the punishments. The chapter in which section 302, P.P.C. falls pertains to offences affecting human body and is based on the principles of Islamic Criminal Law introduced and enforced through Qisas and Diyat Ordinance promulgated from time to time since 1990 and by virtue of the enunciation of the Shariat Appellate Court in the above noted case. This chapter also contains section 338‑F, P.P.C. which reads as follows:‑‑‑ "338‑F. Interpretation. ‑‑‑In the interpretation and application of the provisions of this Chapter, and in respect of matters ancillary or akin thereto, the Court shall be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah." As for interpreting these provisions, guidance is to be sought from the Injunctions of Islam contained in Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.). Views of Jurists of Islam on the question of death penalty by way of Tazir have been noted by us in the paras. above and the conclusion recorded therein is that death penalty can be prescribed by the sovereign authority and awarded where it becomes necessary to exterminate a culprit in order to rid the society of heinous crimes and to wipe out (Fisad Fitna) mischief. It has, however, to be borne in mind that Islam lays much emphasis on preservation of human life. Qur' an says, "If a man kills a Believer intentionally, his recompense is Hell, to abide therein (For ever); and the wrath And the curse of God are upon him; and a dreadful penalty is prepared for him." (AI‑Nisa: 93); "That if any one slew a person‑‑‑unless it be for murder or for spreading mischief in the land‑‑‑it would be as if he slew the whole people: and if any one saved a life, it would, be as if he saved the life of the whole people." (Al‑Maida: 32). So Islam provides for sanctity of human life but at the same time permits extermination of a person who endangers lives of fellow beings, internal or external security of the country or breaks peace and tranquillity, law and order in the society. So such a person can be eliminated for the public good by awarding death sentence by a competent Court in accordance with law. The exacting of extreme penalty of death, however, demands utmost care on the part of the Courts dealing with the life and liberties of the people. The sentence must be weighed in golden scale as it should be properly balanced so as to punish the offender in proportion to the character and extent of his guilt; to be deterrent for him and for the rest of the society, without being necessarily harsh or needlessly indulgent. The principles of Shariah in awarding Tazir punishment are designed to reform the offender and Qazi or Ruler has been given vast powers by the Islamic Law to award any punishment keeping in view the character, quantity and heinous nature of the crime which ranges from minor punishment such as admonition and warning to severe punishment such as lashes and capital punishment in case of murder. In the conditions prevailing in society presently, all the circumstances surrounding the guilt must be carefully borne in mind and in determining whether death penalty or life imprisonment be awarded, the overriding consideration must be that it should be fair and even on humane standards and to produce the correct results in a given case, to palliative for. the party that has been wronged and an effective punishment for the one who has done the wrong. The position previously prevailing under old section 302, P. P. C. was that a Judge was not required to give reasons for imposing death sentence for murder as that was considered to be the proper sentence for murder, but if he imposed a lesser' punishment he was required to give reasons for it. See piran Ditta and 3 others v. The State PLD 1976 SC

300. It was only when any well‑recognised ground was found to exist that Judge was considered justified in withholding the capital sentence. Now the position will be little different as .a Judge while awarding either of the two sentences will have to give reasons as to why he is exacting extreme penalty of death and does not consider the case fit for awarding lesser punishment of imprisonment for life as in Islam except for just cause and reason, a life cannot be taken away or in other words put to an end. At the same time laboured pretext to award life imprisonment as against death penalty which considering the heinous nature of the crime or wanton act of cruelty deserves to be punished severely and appropriately is not countenanced. So the various extenuating circumstances in the presence of which death sentence was not used to be inflicted by Courts, unless found violative of Islamic Injunctions or contrary to the objectives which society in an Islamic country wishes to achieve, continue to furnish valid basis for awarding imprisonment for life.

20. Keeping in view the above principles, we are of the view that imprisonment for life will be adequate sentence in the circumstances of this case. The accused‑appellant in his judicial confession stated that he did not intend to kill the girl, he struck her to make her faint so as to take away the sheep and goats. The injuries given by him, however, caused death of the girl but it is not known as to how many times he struck the girl as the post‑mortem examination was not held. In the circumstances the guilt of the accused shall stand adequately punished by awarding imprisonment for life. We, therefore, alter the sentence of death to the imprisonment of life under section 302(b), P.P.C. The sentence of ten years' R.I. with fine of Rs.10,900 or in default two years' R.I. awarded under section 392, P.P.C. is maintained. Both the imprisonments‑shall run concurrently The benefit of section 382‑B, Cr.P.C. is also allowed. The sentence of death is, therefore, not confirmed. The appeal and the Murder Reference stands disposed of accordingly. N.H.Q./1041/FSC Sentence reduced.