P L D 1964 (W (PLP)

FARUQUI, J.

‑Syed Muhammad son of Abid Ali has been convicted by the Additional Sessions Judge, Karachi by his judgment dated 8th January 1963, in Sessions Case No. 65/62 of offences under section 302, P. P. C., and also under section 392 read with section 397, P. P. C. Under section 302 he has been sentenced to transportation for life and under section 392/397 to seven years' rigorous imprisonment and a fine of Rs. 500 or in default further rigorous imprisonment for 6 months. His co‑accused Syed Hyder Ali son of Virji has been convicted under section 411, P. P. C., and sentenced to 3 years rigorous imprisonment. The sentences of Syed Muhammad under the two separate counts have been ordered to run concur rently. Syed Muhammad has filed a separate appeal and Syed Hyder Ali has also appealed from Jail. While admitting the appeal of Syed Muhammad we had also issued notice to him to show cause why his sentence should not be enhanced. All these three matters shall be disposed of by this judgment.

2. Jumma son of Suleman, aged 67 years, was murdered on 19‑8‑61, near about 2‑30 p.m. in his flat which is situated on the first floor of the building known as Jumma Suleman building situated at Qasim Street. Jumma lived alone in that flat and one of his sisters used to come at night to sleep in the flat. A maid servant used to cook for him and she used to go away by 1 O'clock after preparing the midday meal. Jumma was a member of the Muharram Committee of Bara Imambara, Khara dar which owned gold and silver ornaments which were used during the Ashura for decorating Zuljinnah and Duldul. These ornaments used to be kept with Jumma as one of the trustees. Jumma had a large safe in his flat and it was in them that these ornaments and some other valuables used to be kept. Mst. Shireen, P. W. 7 a younger sister of Jumma, also used to keep her ornaments with Jumma and these were also kept in the safe. The murder was not discovered until about 9 p. m. when Mst. Sakina, P. W. 2, as usual went to sleep at the flat of her brother. She is an old woman of 75 years and the younger sister Shireen, P. W. 7, had accompanied her up to the flat when Sakina found the door of the staircase open and the room was in darkness. She called out to her brother but getting no reply she put the light on and saw that Jumma was lying murdered on the ground near the cot. She came down crying and sent Shireen to call their other brother Husain who lived about 50 or 60 paces away from there. Husain and other people also arrived there in the . meantime. Husain is a patient of high blood pressure and having learnt that his brother had been murdered he was not in a fit condition to go upstairs to the flat of his brother where the latter was lying dead and he thereupon proceeded straight to the police station Kharadar where the first information report was recorded at 10‑30 p.m. But even before that, Sub‑Inspector Shujaullah Qureshi of the Kharadar police station who was on patrol duty learnt at about 10 p.m. that a murder had taken place near Qasim Street. He went there and found a crowd of persons down‑stairs and he went up into the flat where he found Jumma lying dead. He prepared the inquest report in the presence of the mashirs, Exh. 44, and prepared the mashirnama of the vardat, Exh.

31. In the other room adjoining the one in which Jumma was lying dead, he found a big iron safe about 5 feet high which was lying open. In the first case of the safe there was a wooden box containing silver articles relating to Duldul and also some papers and other articles. Three small wooden boxes were lying open on the bed with Masehri. Certain ornaments were lying scattered on it. A small iron box was found whose Kunda (bolt) had been removed. He prepared a separate mashirnama of the ornaments and articles which is Exh.

33. Under Exh. 31 he seized one stone weighing about 3J seers stained with blood a blood‑stained towel, a blood‑stained pillow and a Churi (kitchen knife) stained with blood. The blade of this knife was bent. He also seized a wrist watch and a pair of sponge Chappals under this mashirnama. Under the mashirnama Exh. 33, he seized 28 pieces of ornaments and a document which contained the entries of the ornaments of the Jamaat and a number of wooden and tin boxes. Apart from these, 11 pieces of ornaments were recovered from case No. 2 of the safe and 10 items of ornaments from a wooden box. The articles seized under mashirnama Exh. 31 and Exh. 33, were taken possession of by the Sub‑Inspector. He then sent the dead body for post mortem examination and got the sketch of the vardar prepared by Tapedar Amanat Ullah, P. W.

1. The investigation of the case was entrusted to S. I. Wahajul Hai, P. W. 26, on the following day that is 20th August 1961. On that very day he examined Mst. Shireen, Mst. Sakina, Hussaini, Abdullah, Hasan Ali, Hussain Bulla, Husain Chagla and Zainab Bai. From the statement of Abdullah son of Ahmad Ali, who was later examined as P. W. 4, it was learnt that this boy had seen the accused Syed Muhammad coming down from the stair case from the flat of Jumma. Syed Muhammad was known to him because he was residing in the house adjoining that of Jumma and this boy also lived about 10 to 20 paces away from there. It was also learrLt from Hasan Ali who was later examined as P. W. 5 that he had seen the accused at about 2‑30 p.m. the previous day when he was passing in his taxi by the Qasim Street and that the accused had called him but when he stopped his taxi and the accused recognised him the latter asked him to proceed ahead and he did not board his taxi. The house of this witness is half a furlong away from the house of Jumma. The police then looked for Syed Muhammad but he was not found in his house. A. S. I. Abdul Aziz was sent to Hyderabad to secure the accused but he was not found even there. It was not until the 30th of August that the accused was arrested at about 11 a.m. on the South Napier Road by D. S. P. Muhammad Ayub, P. W. 21, on a spy information. This officer was in charge of the Anti‑robbery Squad at that time. He searched the person of the accused in the presence of two mashirs and amongst other things 21 currency notes of Rs. 10 each were seized as per mashirnama, Exh.

35. Four of these notes had stains of blood. A pair of keys of attache case was also seized upon this search under the mashirnama, Exh.

35. After being arrested Syed was handed over to the investigating officer Syed Wahabul Hasan. Then things began to happen quickly. The accused Syed Muhammad took the Sub‑Inspector to the ration shop of one Ali Muhammad, P. W. 16, at Khadda. From the shop Syed Muhammad brought out a Thaila of gunny bag and a pant of 'Nasi' colour. This was stained with blood. The pant, article 2, was seized under the mashirnama, Exh. 27, which was signed by the mashirs Muhammad Umar and Rahim Ali , P. Ws. 20 and 17 respectively. Inside the Thaila which the accused had brought out from the shop there was a small attach case. In this attach case fitted the keys which had been seized from the person of the accused by D. S. P. Muhammad Ayub. Upon the attache case being opened a number of gold ornaments used for decorating Zuljtnnah and Duldul were found. These ornaments were seized under the Mashirnama, Exh. 25, in which they are fully described. These are articles 13 to

38. The attach case is article 12 and the Thaila is article

1. The mashirs of Exh. 25 are Rahim Ali P. W. 17 and one Haji Husaini. Ali Muhammad, the owner of the shop, was present throughout. Accused Syed Muhammad then took the police party to show the other accused Hyder Ali. The police party were taken towards Kharadar side and on the way near Husaini Road accused Hyder Ali was pointed out by accused Syed Muhammad. Hyder Ali on being interrogated took the police party and the mashirs to Kharadar to Naz Bibi, P. W.

6. It was through her that Hyder Ali is alleged to have pawned some of the ornaments which were a part of the stolen property in question. On being questioned Mst. Naz Bibi took the police to Mst. Gul Bano, P. W.

8. The latter produced a booklet which showed an entry with regard to the ornaments in question and this was seized as per mashirnama, Exh.

38. Gul Bano then took the police party to Muhammad Ali and the latter produced the ornaments which were kept in his house and which were pawned by Gul Bano who had received them from Naz Bibi who, in turn, had received them from Hyder Ali. The four ornaments articles 3 to 6 were seized as per mashirnama, Exh.

48. Accused Hyder Ali then took the police party to his house which was searched and from inside his pillow 5 pieces of ornaments were recovered and these were seized under the mashirnama, Exh.

39. The articles, which had been seized, are marked articles 7, 8, 9, 45 and

46. On the following day, the investigating officer examined Malik Muhammad Sadiq son of Abdus Salam, Manager of Metro Hotel, Karachi who was later examined as P. W.

24. He stated that the accused had come to stay in the hotel at 4‑30 p. m. on 19th August 1961. He had given his name as Muhammad Ali son of Abid Ali. He stayed for two days and left the hotel on 21st August 1961, at 7 p.m. He further stated that he was in room No. 2 and he had signed the visitor's register that the relevant entry Exh.

42. The accused had accompanied the police to the hotel when this witness was questioned. The same day was examined A. K. Rais, proprietor of Bengal Travelling Agency. He was examined as P. W.

11. He stated that the accused Syed Muhammad had come to him about the 19th of August 1961, and told him that he had missed the ship by which he wanted to go to Basra (Iraq). He then handed over his passport to him and asked him to have his passage booked for going to Basra by air. He had also shown to him the ticket of the ship. He pressed the travel agent that his Visa was to expire and, therefore, he wanted to go by air quickly. The accused Syed Muhammad signed an application for getting the permission of the State Bank for air travel. This permission was granted and remained with the travel agent. He then booked the passage by air for the accused and he was likely to get accommodation on 23rd or 24th of August 1961. He did not turn up on these dates and the booking was cancelled. He went to him after the 24th and asked for the return of his passport. This was refused upon the ground that the passport would have to be sent to the State Bank for the cancellation of the permit. The passport along with this permit was produced by this witness and this was seized by the inves tigating officer as per Exh.

18. The passport is marked article 10 and the permit article

11. The investigation being, completed both the accused were challaned and after inquiry by the trial Court were tried by the Additional Sessions Judge and convicted and sentenced as stated above.

3. At the trial the evidence against accused Syed Muhammad consisted of the testimony of P. W. Abdullah who stated that on the day of occurrence at about 2‑30 p.m. he was sitting near the staircase of Jumma's house when his younger brother came and they wanted to fly kite. At that time he saw accused Syed Muhammad coming down from the stair‑case of Jumnia's house. He was wearing a chocolate colour pant and a white shirt. He had a Thaila in one hand and a handkerchief in another. Seeing him the accused put finger on his lips and whispered `hush' indicating silence. He knew the accused well because he was residing in the adjoining house and lie himself was living about 10 is 20 paces away. He further stated that police had examin ed him on the next day. There was very little cross‑examination of this witness and all that was suggested was that lie was giving evidence at the instance of police. The next witness is P. W. 5 Hasan Ali, the taxi driver who had seen the accused about the same time when he passed the Qassim Street. The accused had hailed his taxi but on finding that it was being driven by this witness did not board it. He, had also noticed the Thaila in, his hand. Deceased Jumma was the maternal uncle of this witness and the suggestion of the prosecution is that Syed Muhammad did not board the taxi of this witness because lie knew him to be the relation of Jumma. The evidence of P. W. 2 Sakina shows that accused Syed Muhammad was on friendly terms with Jumma. It was she who on coming to sleep in the flat of Jumma had found him murdered. There was then the evidence of the fact that the accused Syed Muhammad had absconded from his house. He was looked for and when he was not found an A. S. I. was sent to Hyderabad where Syed Muhammad has got his relations, Tne fact that the accused was absconding is clear from the evidence of the inves tigating officer Wahajul Hai and the D. S.. P. Muhammad Ayub who had arrested him on the 30th of August upon receiving spy information. This circumstance is strongly supported by the evidence, of Malik Muhammad Sadiq, the Manager of the Metro Hotel, who identified the accused as the person who had come to his hotel at 4‑30 p.m. on 19th August 1961, arid who had not only given a wrong name but had also given his address as being at Hyderabad, The evidence of Malik Muhammad Sadiq is supported not only by the entry of the register (Exh 42) but also by the evidence of A. K. Rais, P. W. 11, the proprietor of Bengal Travel Agency. It was from the possession of this witness that the passport of the accused and the permit of the State Bank dated 22nd August 1961, for cost of passage, that is Rs. 750, were seized. A. K. Rais stated that Syed Muhammad had gone to him on or about 19th of August 1961. This is supported by the fact that when an application was made to the State Bank for the permit it was issued on 22nd August 1961. There is no reason whatever to disbelieve these witnesses.

4. The next and the important piece of evidence against the accused Syed Muhammad is the fact that soon after his arrest he took the investigating officer to the shop of Ali Muhammad, from where the Thaila containing the attache case and the blood stained pant were seized. The Thaila contained the attache case and from the person of Syed Muhammad upon his arrest had already been recovered the 21 currency notes of Rs. 10 each and a pair of keys. These keys fitted into the attache case. The recovery of the Thaila containing the attache case and the pant is proved, apart from the evidence of the investigating officer by the evidence of the shop‑keeper Ali Muhammad, P. W. 16, and the mashirs named in the earlier part of this judgment. The identity of the ornaments as being that of the Khoja Jamaat and which were used at the time of Ashura for decorating Zuljinnah and Duldul has been established beyond doubt by the evidence of Mahmud Agha Khani, P. W. 18, who is also a member of Muharram Committee of Bara Imambara. He identified the articles 13 to 38 and 46 and he produced a receipt dated 15th January 1961, from Jumma to whom the ornaments had been handed over. A list of some of the ornaments was found in the safe by the S. I. Shujaullah and it is shown in the seizure memo of the vardat. Moreover, the nature of the gold ornaments found in the attache case clearly shows that they were used for the purpose which is stated by the prosecution. The pant which was recovered at the instance of the accused Syed Muhammad was stained with blood and the report of the chemical examiner is that it was human blood. Four of the twenty‑one currency notes of Rs. 10 each which were recovered from the person of Syed Muhammad were also stained with blood. These were also sent to the chemical examiner but he was not able to trace the origin of the blood due to its disintegration. In addition to the evidence of the mashirs and the Sub‑Inspector with regard to the seizure of the blood‑stained pant and the Thaila containing the attache case from the shop of Ali Muhammad at the instance of the accused, there was also the evidence of Ghaffar, P. W. 15, the servant of Ali Muhammad that he had seen the accused bringing the Thaila and the pant and of Nawab Khan P. W. 14, who had a Kabari shop nearby and who had come to get a change from the shop of, Ali. Muhammad and he also stated that the accused had come with a Thaila to the shop of Ali Muhammad.

5. Against the other accused Syed Hyder Ali there was the evidence of Naz Bibi, P. W. 6, Gul Bano P. W. 8 and Muhammad Ali, P. W. 9, according to which the ornaments which had been pawned with Muhammad, Ali had been brought by Hyder Ali and the money had been paid to him. The two women Naz Bibi and Gul Bano had acted as the commission agents. There was also the recovery of the articles 4, 5, 6 from the posses sion of Muhammad Ali from his house. Articles 4, 5 and 6 recovered from Muhammad Ali and articles 7, 8, 9, 45 and 46 recovered from the pillow of Hyder Ali were identified by Mst. Shireen, P. W. 7, the younger sister of the accused as belonging to her. She is supported by the finding of a small box at the scene of the vardat in which a list of these articles was kept as being that of Shirin Bai. Article 46 was identified by Mahmud Agha Khani, P. W. 18, as being the property of the Imam Bara. This witness has also identified the articles 13 to 38 as already stated above. There was also the fact that it was the accused Syed Muhammad who had taken the police to Syed Hyder Ali who was arrested and the arrest was justified by the subsequent finding of the stolen property from his possession and also from the possession of Muhammad Ali with whom it had been pawned. This circumstance is also evidence of the complicity of the other accused Syed Muhammad himself.

6. The defence of both the accused was a complete denial of all the circumstances which had appeared against them and which have been already stated above. Accused Syed Muhammad denied that he had committed the murder of Jumma or that he had been seen by the witness Abdullah coming down from the staircase of Jumma or that he had been carrying a Thaila or that he had hailed the taxi of Hasan Ali or that he had left his blood‑stained pant in the shop of Ali Muhammad and later the Thaila containing the attache case which contained the ornaments. He denied that the Thaila, the attache case and the pant had been recovered by the police at his instance or that the attache case had been opened by the keys seized from his possession. He denied the seizure of the keys from his possession. He even denied that he had been arrested by the D. S. P. Muhammad Ayub on the Napier Road. He said that he had himself surrendered before the S. P. He denied that he had gone and stayed at the Metro Hotel from 19th to 21st of August. He also denied that he had handed over the passport to the travel agent A. K. Rais or that an application was given by him for the permission of State Bank to enable him to travel by air to Iraq. He also denied that he had forged the date on the Visa from 19th to 29th of August. He further denied that the pant seized from the shop of Ali Muhammad was his. As to the various witnesses who had deposed to the facts which appeared against him he said that they all were giving false evidence at the instance of the police.

7. Accused Hyder Ali denied that he had anything to do with the murder of Jumma. He denied that he had pawned the ornaments with Muhammad Ali through Naz Bibi and Gul Bibi and he also denied that any ornaments had been recovered from his possession. He further denied that he had been pointed out by the accused Syed Muhammad or that he had taken the police to his house or that any ornaments were recovered from the pillow in his house. He said that all these things had been foisted on him. When asked if he had to say anything more; he said that Ali Muhammad shop‑keeper had enmity with him as he had given him as he had given him his shop on rent and there was dispute about the rent and possession.

8. The witnesses were examined in defence. D. W. 1 Abdul Hamid, who was a mashir to the search of the house of Hyder Ali. In committal Court tic had deposed to the search but instead of Hyder Ali he had mentioned the name of Syed Muhammad. However, in cross‑examination he admitted that this may be the mistake of the Magistrate who had recorded his evidence and he admitted that the mashirnama of the search which was signed by him was in respect of the house of Hyder Ali. He admitted that he had signed this mashirnama, Exh. 39 and he also admitted that Chun,. Kalgi, Bunda and Dilpack were secured from the pillow in the house of Hyder Ali. The next witness D. W. 2 was a Reader of the Court of the com mittal Magistrate and he said that he, had read over the statement of Abdul Hamid to him and he admitted it to be correct. He; however, conceded in cross‑examination that it was not written on the deposition sheet that it was read over to the witness. It is plain that this defence evidence is worthless. Obviously name of Syed Muhammad in the deposition of this witness was a mistake for Hyder Ali.

9. Mr. Muhammad Ismail who had appeared for both the accused in the Sessions Court limited his appearance before only in respect of the appellant Syed Muhammad. The other accused Hyder Ali had appealed from Jail and nobody appeared for him. Mr. Muhammad Ismail pointed out that the case against the accused depended entirely upon circumstantial evidence and that in order that the conviction may be maintained it must be found that the circumstantial evidence was such as was incompatible with the innocence of the accused. There can be the correctness of this proposition. The learned counsel then contended that it had not been established that Jumma had been murdered at about 2‑30 p.m. It was contended that Jumma had been killed some time in the evening. From this it was urged that the evidence of Abdullah, P. W. 4 and Hasan Ali, P. W. 5, must necessarily be rejected. He relied upon the finding of a newspaper `Leader' of that day upon the bed of the deceased and he stated that this paper would not be with the deceased at 2‑30 p.m. There is no evidence that this newspaper does not come into circulation until later than 2‑30 p.m. Our own experience is that it is on the road even earlier.

10. Mr. Muhammad Ismail then drew our attention to the medical evidence and urged that according to it the murder must have been committed soon before the discovery of the body at 9 p.m. He pointed out that Dr. Anwarul Hasan in his evidence in the committal Court had himself stated that death had taken place about 16 hours before the post‑mot tern which was held at 11‑45 a.m. on the following day, that is 20th of August 1961. This would place the time of death to be 7‑45 p.m. on 19th August 1961. He next contended that the subsequent evidence of tic doctor taken by the Additional Sessions Judge in which he said that the injuries had been caused earlier could not be believed. To examine this argument it would be necessary to refer to the medical evidence of the police surgeon Dr. Anwarul Hasan, P. W.

16. He had performed the post mortem at 11‑45 a.m. the following day and had found the following injuries upon the dead body of Jumma:‑ "(1) Lacerated wound " x J" tissue deep on the pinna of rith near surrounded by contusion and swelling 2" x 2". (2) Two lacerated wounds 1 " x " scalp and " x " scalp with swelling on right side of the head closed to each other 2" above ear. (3) Lacerated wound 1" x " x " on inner side of upper lip with fracture of left side upper jaw, and dislocation of left cannon teeth. There was swelling and contusion on left side of upper lip. (4) Lacerated wound " x 1/8" tissue deep left side nose with contusion and swelling of whole of the nose. (5) Abrasion 1 " x " left side forehead with contusion and swelling 2" x 2". (6) Abrasion " diameter with swelling and contusion 3" x 1" of left elbow. (7) Multiple small round abrasions right elbow. (8) Multiple small and large incised wound 12 number with leniar abrasions caused by drawing of the knife situated on left side and front of the neck from the chin to the lower half of the neck in an area of 6" x 5", smallest wound was " long and the largest 1" and all of these were tissue and skin deep. Two incised wounds had reached the luman of left internal juglar vein causing bleeding." With regard to the injuries 1 to 5 he stated that these could have been caused by hard, blunt and heavy object like the blood stained stone, article 55, and the multiple incised wound No. 8 could be caused by a kitchen knife such as was produced in this case. In his opinion the cause of death was shock and haemorrhage as a result of the injuries to the head and the neck. This witness was again called by the Sessions Judge when advantage was being sought by the defence of the time of death for the purpose of urging that the incident itself had taken place at about 9 p.m. and not earlier in the afternoon. Mr. Ismail had also relied upon the mashirnama of the vardat, according to which the Sub‑Inspector had found that the blood was oozing from the neck injury. When recalled the doctor stated that the death of Jumma might have occurred at about 8 p.m. on 19th August 1961, but he was definite that the injuries in this case must have been caused about 4 to 6 hours earlier than 8 p.m. His reason for saying so was that the swelling round injuries Nos. 1 to 6 must have taken time and that these injuries would not swell after death. This swelling according to the doctor must have taken about 4 to 6 hours after the infliction of the blows. He was cross‑examined at length by the defence counsel but he stood the cross‑examination well. He also stated that blood might have oozed from injury No. 8 and added that dried blood sticken to an injury may appear to a layman to be still oozing. Mr. Ismail drew our attention to Modi's Commentary on Medial Jurisprudence, where it has been said that ecchymossis might in a certain case not start until after the death. This does not contradict the evidence of Dr. Anwarul Hasan and even the statement in Modi's book clearly suggests that such a case to which he has referred is not what happens normally. Having carefully examined the medical evidence and all the circum stances of the case we are not prepared to hold that the injuries to Jumma had been caused at about 8 p.m. or that these had not been caused earlier i.e., about 2‑30 p.m.

11. Mr. Ismail then contended that the attache case which had been seized from the shop of Ali Muhammad was foisted upon the appellant because the same attache case had been found kept on the safe by S. I. Shujaullah, when he had visited the scene of offence at about 10 p.m. the same night. This con tention is completely ill‑founded. It is true, in the mashirnama of the vardat it is mentioned that a closed attache case was kept on the safe but the two mashirnamas, Exhs. 31 and 33, do not include an attache case amongst the articles seized. A very large number of articles and whatever had appeared to be connected with the offence were seized by S.

1. Shujaullah and if he had taken possession of the attache case there can be no reason whatever why it should not have found its place in the two rnashirnamas, Exhs. 31 and

33. We are satisfied that the attache case which was recovered‑, from the shop of Ali Muhammad was not the same attache case which was seen by the Sub‑Inspector in the room of Jumma's flat where the safe was kept. No question was put to the police officer in cross‑examination to show why this attache case was not seized or that it was the same which was eventually recovered from the shop of Ali Muhammad. Mr. Ismail also criticized the evidence of the various mashirs and the witnesses of recovery and also of Abdullah (P. W. 4) and Hasan Ali P. W. 5 who had seen the accused near the scene of offence and to whose evidence we have already referred earlier. , We have not been impressed by this criticism.

12. It is important to remember that Abdullah was examin ed on the day following the incident and so was Hasan Ali. This fact has not been questioned in cross‑examination or with reference to the diary statement. At that time there was no suspicion on Syed Muhammad. In fact, it was not known as to who was responsible for the offence of murder, and robbery. The evidence of Abdullah and Hasan Ali were not very much challenged in cross‑examination and remained unshaken. There seems to be no reason why a young boy of 14 years should have been employed by the police and as early as 20th August 1961, to make a statement that he had seen Syed Muhammad coming down from the stair‑case of Jumma's flat. But this evidence does not stand by itself. There is the very important fact that accused Syed Muhammad promptly disappeared from his house next door to that of Jumma. In fact, it is doubtful whether he went to his house at all, assuming it was he who had murdered Jumma, at 2‑30 p.m. on 19th. There is the important piece of which consists of the fact that at 4‑30 p.m. Syed Muhammad went to Metro Hotel and got his name recorded wrongly and stayed there as a visitor from Hyderabad for two days. We have no reason whatever to disbelieve the Manager of the hotel Malik Muhammad Sadiq. There would be no reason that he should falsely involve the accused by the evidence of his register which might prove an important link in the case and lead the accused to the gallows. The evidence of Malik Muhammad Sadiq and the entry of his register, Exh. 42, is indirectly supported by the evidence of the travel agent A. K. Rais, P. W. 11 and the recovery from his possession of the passport and the permit granted in favour of Syed Muhammad on the 22nd of August. The accused denies having obtained the permit or having gone to the travel agent or having given him his passport. There can be no doubt that this denial is false. How could the travel agent come into possession of Syed Muhammad's passport and how could the State Bank grant a permit in favour of Syed Muhammad on the 22nd of August? Was all this evidence manufactured? Was the permit manufactured in the State Bank on a day when even the accused had not been found nor his complicity known with the murder of Jumma? The travel agent said that Syed Muhammad had come to him on the 19th and was in a great hurry. He had produced a ticket by ship for Iraq but he said that he had missed that ship and he, therefore, wanted to travel by air and it was for this reason that a permit from the State Bank was applied probably the next day. There is a further circumstance. In the Visa for Iraq affixed at page 14 of the passport of Syed Muhammad the date of expiry was originally 19th August 1961. It was later on changed to 29th August. The figure `1' was changed into figure `2'. The inference seems to be irresistible that Syed Muhammad had hoped to clear out before the end of 19th August but he missed the ship and was not able to get away by air. The denial by Syed Muhammad of ail these facts, namely his going and staying in the Metro Hotel for two days and then going to the travel agent and applying, for a permit from the State Bank is significant. We are satisfied that Syed Muhammad had desperately attempted to abscond and had been able to keep himself away from arrest until the 30th of August. We do not believe his statement that he had himself surrendered before the S. P. We accept the evidence of the D. S. P. Muhammad Ayub that he was arrested at the South Napier Road upon spy information. One might ask as to why should Syed Muhammad surrender himself before the S. P. ? He does not say that he knew that he was being suspected of the offence or that he had been suspected of absconding.

13. We then come to the evidence of the recovery of the stolen articles contained in the attache case which was found in the shop of Ali Muhammad. All these ornaments have been identified beyond dispute to be the property of the Imam Bara and which were kept in the safe of Jumma and which were not found at the scence of the vardat when the safe was searched. This would be clear from the examination of the mashirnamas Exhs. 31 and 33, which were prepared at the spot by S. I. Shujaullah. It was urged that why should Syed Muhammad keep this attache case and his pant in the shop of Ali Muhammad. Well, he had to keep it somewhere and it may even be that Ali Muhammad was in his confidence. It is significant to note that Ali Muhammad's connection with Hyder Ali is also established. Ali Muhammad had got his shop from Hyder Ali. We do not believe Hyder Ali's statement that there was any dispute between Ali Muhammad and Hyder Ali. Then there is the evidence of independent mashirs about the recovery of the Thaila with the attache case and the pant. There is also the evidence of the shop‑keeper and his servant and that of Nawab about the keeping of these things. The circumstance which strongly supports the prosecution case that these articles were seized at the instance of the accused, is that all this took place soon after the accused was arrested. He was arrested at 11 a.m. on the 30th of August and the recovery of these articles took place at about 2 p.m. _and Hyder'Ali was pointed out by Syed Muhammad the same day and recoveries from him also took place the same day. The evidence of Syed Muhammad staying in Metro Hotel and his having gone to travel agent was also not in the possession of the police until Syed Muhammad was arrested. We are clearly of the opinion that the recoveries of the stolen ornaments and the blood‑stained pant were made at the' instance of accused Syed Muhammad. There is no explana tion by Syed Muhammad of the mass of the circumstantial evidence, particularly of the recoveries and about his attempt to abscond. We are satisfied that the blood‑stained pant was that of Syed Muhammad and that it was he who had taken the Thaila and the attache case containing the ornaments to Ali Muhammad. In the absence of any explanation, this circumstantial evidence added to the evidence of absconsion of Syed Muhammad coupled with the evidence of Abdullah and Hasan Ali, is sufficient to prove beyond any reasonable doubt that it was Syed Muhammad who had murdered Jumma.

14. Against Hyder Ali there is the unimpeachable evidence of the recovery from him of a part of the stolen articles which belonged to Mst. Shireen, the sister of the deceased and one article of the Imam Bara. There is also the evidence of Naz Bibi and Gul Bano and Muhammad Ali that he had pawned some of these articles. He was also found out only when Syed Muhammad was‑ arrested and he took the police to him. The evidence against Hyder Ali was at least sufficient to find him guilty of an offence under section 411, P. P. C.

15. For the reasons given we uphold the conviction of the appellant Syed Muhammad for the offence under section 302 and also for the offence under section 392 read with section 397, P. P. C. We also uphold the conviction and sentence of the appellant Hyder Ali under section 411, P. P. C.

16. We had issued notice for enhancement of the sentence of the appellant Syed Muhammad. We had done so because the reasons given by the learned Additional Sessions Judge are com pletely inadequate if not childish for giving the lesser sentence. However, the offence was committed in 1961, and by now nearly three years have passed. Mr. Ismail drew our attention to the decision of the Supreme Court in the case of Fateh Muhammad v. Bagoo (P L D 1960 SC 286) in which the sentence of death was reduced to transportation for life as 31J years had elapsed since the commis sion of the offence. Because of this lapse of time we do not now want to impose the sentence of death upon Syed Muhammad. We accordingly discharge 'the notice of enhancement. The appeal of both the appellants is dismissed. K. B. A. Appeal dismissed.