P L D 1966 (W (PLP)

KHAMISANI, J.‑

The appellants, Jan Muhammad and Abdul Wahid, have been convicted under sections 302/34, 201 and 381, P. P. C. and sentenced to death, rigorous imprisonment for seven years and rigorous imprisonment for seven years each. The appellants have filed this appeal. The matter is also before us for confirmation of sentence of death passed on them. We shall dispose of both the appeal filed by the appellants and the murder reference under this judgment.

2. The facts of the prosecution case briefly are that the appellants were working as apprentices with lshtiaq Hussain Shah and used to live with him in his garage. Ishtiaq Hussain Shah used to send for meals from Cafe Nawaz for himself and the appellants and pay for them every day. It is alleged that Ishtiaq Hussain Shah used to commit sodomy on Abdul Wahid who had complained about this to his uncle Jan Muhammad. Abdul Wahid had even left his job on this account but had been forced to go back to the garage of Ishtiaq Hussain Shah by his father. On the night between the 8th and 9th of October 1963 Ishtiaq Hussain Shah had gone to see a cinema show and had returned at about 1‑00 a.m. on the 9th of October 1963. He woke up Abdul Wahid and asked him to massage him. Ishtiaq Hussain Shah thereafter went to sleep. Jan Muhammad at about 2 a.m. woke up Abdul Wahid and gave two blows with a hatchet to Ishtiaq Hussain on account of which he died. Jan Muhammad and Abdul Wahid thereafter wrapped up the dead body of Ishtiaq Hussain Shah in a bedding with a view to dispose it of. They put the dead body wrapped up in the bedding in the back‑seat of a jeep and after starting the jeep took it away. After they had covered hardly a distance of a few furlongs, the jeep stopped and could not restart on account of the shortage of fuel. They were seen by Khawand Bux near the jeep. Khawand Bux on seeing them stopped his jeep and asked them as to what they were doing at that hour of the night and if they required any help. The appellants told him that they had run short of petrol and that Ishtiaq Hussain Shah had gone to bring it for them. Khawand Bux on getting this information left the place. The appellants then removed the dead body and threw it in a ditch nearby. They thereafter took away the things belonging to the deceased whicn they had brought from his garage and went to the house of their relation Noor Muhammad, They kept the things under their respective cots and went to sleep. Noor Muhammad after offering his prayers came back and made inquiries from them about the articles they had brought and the purpose for which they had come. After a bit of higgling haggling they confessed to him that they had killed Ishtiaq Hussain Shah and brought his articles. Noor Muhammad thereafter went to bring the police to have them arrested. The Head Constable Muhammad Pannah was brought who arrested them and secured the articles from their possession. The appellant Jan Muhammad also took the Police to the garage from where he produced his banyan which was stained with blood. The footprint test of the two appellants was also held in which the prints of the appellants were picked out. The appellant Abdul Wabid was also produced on 10th of October 1963, for his judicial confession. His judicial confession Exh. 6 was recorded by Mr. Muhammad Saleh, First Class Magistrate, P. W.

1. Some of the articles secured from the appellants were sent to the Chemical Analyser and his report Exh. 35 discloses that there was human blood on the banyan produced by Jan Muhammad from the garage and the hatchet blade secured from the suit‑case recovered from him. After the usual investigation was concluded, the appellants were challaned.

3. The appellants, when questioned, denied the allegations made against them and stated that the case against them was false and has been filed against them at the instance of the police. Abdul Wahid, when questioned, also stated that he had made the judicial confession on pressure from the Police. They have examined no witness in defence.

4. The question whether Ishtiaq Hussain Shah received injuries and died on account of them is not disputed. The evidence of Dr. Muhammad Alam Exh. 37 also establishes that the injuries on the person of the deceased were ante‑mortem and sufficient in the ordinary course of nature to cause death. The evidence of the witnesses has also proved the death of the deceased to be on account of the injuries.

5. The only question that needs to be decided in this appeal is whether the appellants; in this appeal is in furtherance of their common intention, were responsible for causing injuries to the deceased which resulted in his death. We must state at the very outset that there is no ocular evidence in this case. The whole case is dependent upon the circumstantial evidence on which the prosecution have placed reliance is the fact of the deceased having been seen last with the appellants in his garage. The evidence on this issue consists of the evidence of Sadoro P. W. 11 who was working at the relevant time as bearer in Cafe Nawaz. He has stated that he took meals for the deceased and the appellants in their garage and brought the utensils from there at about 8 p.m. on 8th October 1963. He had seen the appellants and the deceased together in the garage at that time. According to his evidence, he learnt on the next day morning that Ishtiaq Hussain Shah had been murdered.

6. The next circumstances on the record is brought through the evidence of Assadullah P. W 8 and Nabidad P. W.

14. Both these witnesses saw in the morning of 9th October 1963, a jeep belonging to the deceased parked at a distance of half a furlong from a road where several people had gathered. They identified this jeep to be belonging to Inshtiaa Hussain Shah. They noticed blood marks on the back‑seat of the jeep. They have also found some thing wrapped up in a bedding floating in a ditch at a little distance away from the place where the jeep was parked. They also stated that the deceased Ishtiaq Hussain Shah was running a garage in which the two appellants were working under him. Out of these two witnesses, Assadullah P. W. 8 went and informed S. H. O Wazir Muhammad P. W. 17 at Kandkot Police Station. Wazir Muhammad on the information given to him also came to the place where jeep was found parked. He also noticed blood on the back‑seat of it and found something wrapped up in a bedding floating in a ditch nearby. He had that bedding taken out and after unwrapping it found the dead body of Ishtiaq Hussain Shah lying in it. The dead body of Ishtiaq Hussain Shah was identified by Asadullah and others who were present. Abdul Faheem P. W. 15 thereafter prepared mashirnama Exh. 15 in presence of mashir Faiz Nabi P. W. 5 in which the details mentioned above were given. This mashirnama, apart from what has been said above also mentions that there was a trail of blood found on the Vardat from the jeep up to the ditch, where the dead body of Ishtiaq Hussain Shah was found floating wrapped up in a bedding. Faiz Nabi and Abdul Fahim have both supported the case of the prosecution fully. These witnesses also noticed naked prints of the two persons near the jeep and near the place where the dead body was thrown in a ditch. These prints were shown to a Pagi.

7. The third circumstance brought on the record is through the evidence of Khawand Bux who has stated that he was bringing his jeep from Sukkur and was going to Kandkot at about 2 or 2‑30 a. m. on 9th October 1963, when he saw the appellants near the jeep at the place where the jeep was found to to have been parked in the morning. His evidence also shows that on suspecting that there was some trouble with the jeep, he stopped his jeep and inquired from the appellants as to whether he could be of any service to them. His evidence also shows that both the appellants told him that they had run short of petrol and were standing there on that account and needed no help. They also informed him that the deceased had gone to bring petrol. This witness also mentions that on getting this information from the appellants he took away his jeep to Kandkot.

8. The fourth piece of circumstances against the appellants is brought on the record through the evidence of Raza Muhammad P. W. 12 who has stated that he saw the appellants alighting from a train at Unerwah Railway Station on the morning of 9th October 1963. He has also stated that appellant Jan Muhammad had a suit‑case similar to the one produced in Court in his hand whereas appellant Abdul Wahid had a petromax lamp and a bundle of clothes in his hand.

9. The fifth piece of evidence connecting the appellants with the case is the evidence of Noor Muhammad P. W.

13. Noor Muhammad is the sister's husband of Jan Muhammad. His evidence is that the two appellants went to his house on the 9th of October 1963, the appellant Jan Muhammad having a suit‑case in his hand and the appellant Abdul Wahid having a petromax lamp and a bundle of clothes in his hands. His evidence also is that on inquiries made from them he was informed that they had come there to work as labourers. His evidence also is that on further tackling them the two appellants told him one after the other that they had committed the murder of Ishtiaq Hussain Shah and the articles in their possession belonged to him and had been brought by them from his garage. The evidence of this witness further is that on getting this information he went out with a view to report the matter to the police and bring some police officer to have them arrested. In fact he brought Muhammad Pannah Head Constable P. W. 16 who actually arrested them and secured the property from their possession. He is closely related to the appellants and no reason whatever exists for him to implicate his own relations in this case fasely.

10. The sixth piece of evidence against the appellants is the recovery of the property belonging to Ishtiaq Hussain Shah from the police. The evidence of Noor Muhammad has established that the appellant Jan Muhammad had brought with him a suit case which he kept under the cot on which he slept whereas the appellant Abdul Wahid had brought a petromax lamp and a bundle of clothe which he had kept under the cot on which he had slept. These articles were secured by Muhammad Pannah P. W. 16 in the presence of Muhammad Bux P. W. 6 and Noor Muhammad P. W.

13. All these witnesses have fully supported the case of the prosecution. Amongst the articles recovered from the appellants an identity card bearing a photograph of Ishtiaq Hussain Shah was also recovered. On opening the suit‑case the bloodstained blade of a hatchet was also recovered. The banyan found on the person of appellant Jan Muhammad was also recovered as it was learnt to be belonging to the deceased.

11. The seventh piece of evidence brought against the appellants is the recovery of the banyan belonging to appellant. Jan Muhammad at his instance, from garage of the deceased. The appellant Jan Muhammad had taken the police to the garage on the 9th of October 1963, the day on which he was arrested and pro duced the banyan which belonged to him and which had stains of blood on it. This banyan was secured by the police in the presence of mashir Faiz Nabi P. W. 6 by Wazir Muhammad P. W.

17. Mashirnama for the recovery of this banyan Exh. 16 was made. The banyan recovered at the instance of appellant Jan Muhammad and the blade of the hatchet recovered from the suit‑case secured from appellant Jan Muhammad were both sent to the Chemical Analyser for his report. The report of the Chemical Analyser in respect of these articles shows human blood on them. The clothes recovered from the appellants were shown to Karim Bux P. W. 10, who was a washerman and on seeing the clothes he found the marks of his factory on them. He identified the clothes to be belonging to the deceased. The petromax lamp recovered from the appellant Abdul Wahid was also indentified by Khaki Shah P. W. 7 for which mashirnama of identification Exh. 18 was made by S. H. O. Wazir Muhammad P. W. 17 in the presence of mashir Faiz Nabi P. W.

5. According to the evidence of Khaki Shah this Petromax lamp belonged to him and had been mortgaged by him with the deceased.

12. The next piece of evidence on which the prosecution have placed reliance is the evidence of footprint test of the appellants. The footprint test of the naked prints of the appel lants was held through Pagi Saifal on the 10th of October 1963, by S. H. O. Wazir Muhammad P. W.

17. Wazir Muhammad P. W. 17 has stated that Saifal had picked out the prints of the appellants for which he had made Mashirnama Exh. 11.

13. The last piece of evidence brought forward by the prosecution against the appellants is the judicial confession Exh. 6 of Abdul Wahid made by him before Mr. Muhammad Saleh, F. C. M. P. W.

1. In this judicial confession Abdul Wahid has clearly stated that the appellant Jan Muhammad was annoyed with the deceased on account of information given by him that the deceased used to commit sodomy on him. He has also stated in this confession that he had left the service of the deceased because of this but had been forced by his father to come back on the job. He has also stated that on the night of the incident, after the deceased had gone to sleep, Jan Muhammad had awakened him and in his presence had caused two hatchet blows to the deceased which resulted in his death. He has also stated that he and his uncle Jan Muhammad collected the things of the deceased and put them in a suit‑case and also tied them up in a bundle and removed them from the garage. He has also stated that they had wrapped up the dead body of the deceased in a bedding and after taking it in the jeep had thrown it in a ditch nearby. He has also stated that they had abandoned the jeep near the ditch because they had run short of petrol. He has also stated that they were seen by Khawand Bux who had inquired from them as to why at that hour of the night the jeep was parked near the road and as to whether they needed any help. He has also mentioned in the confession that they told him that they had run short of petrol and that the deceased had gone to bring it. He has also described as to how he and his uncle Jan Muhammad thereafter took the property belonging to the deceased and went to their relation Noor Muhammad by getting into a train and alighting at Unerwah Railway Station. He has also mentioned that the property belonging to the deceased was recovered from their possession. The confession given by Abdul Wahid is very detailed and is supported by numerous circums tances detailed above. It has been admitted by Abdul Wahid that he had made that confession. His plea before the Sessions Court, however, was that he had done so on pressure from the police. No evidence of any sort or kind has been brought on the record to establish that the police had brought any pressure on him for making the confession. The evidence of Mr. Muhammad Saleh, F. C. M. P. W. 1, also establishes beyond doubt that the confession given by Abdul Wahid was a voluntary one. The fact that the confession was recorded immediately on that second day of his arrest would also be a circumstance which will militate against the theory put forward by the appellant Abdul Wahid that pressure was brought on him to make that confession. We have considered the evidence in respect of this confession and we are clearly of the view that the confession is voluntary as well as true. The confession also stands fully supported to the last detail given in it by the circumstances enumerated above.

14. Despite the fact that there is no ocular evidence brought against the appellants the circumstantial evidence detailed above has left no room for doubt with regard to the complicity of the appellants in the crime. The appellants on the evidence discussed above are clearly shown to have acted in concert and committed the murder of Ishtiaq Hussain Shah in furtherance of their common intention. The appeal filed by the appellants therefore appears to us to be without merit and is dismissed.

15. The only question that needs consideration in this case is the question of sentence passed on Abdul Wahid. Abdul Wahid is a young lad of 17 years of age. There is no evidence on the record except the confession of Abdul Wahid regarding the manner in which injuries were given to the deceased. Since there is no other evidence on this question on the record to controvert what is mentioned by Abdul Wahid in his confession, the confession has to be accepted as a whole. The confession indicates that it was Jan Muhammad who had awakended Abdul Wahid to make him a party to the perpetration of this crime. The confession also mentions that injuries given to the deceased were caused by Jan Muhammad. The circumstance of hatchet blade having been secured from the suit‑case which was in the possession of Jan Muhammad would also support this theory put forward by Abdul Wahid in his confession. On this view of the matter the appellant Abdul Wahid can be said to be a person who may have acted on what he was told by his uncle Jan Muhammad. Under these circumstances, Abdul Wahid, in our opinion, does not deserve the extreme penalty of death which has been imposed upon him under section 302/34, P. P. C. We accordingly, while dismissing his appeal, reduce his sentence from death under section 302/34, P. P. C. to transportation for life.

16. With this modification in the sentence passed on Abdul Wahid, the appeal filed by the appellants stands dismissed. No extenuating circumstance in mitigation of the sentence of death passed on Jan Muhammad has been brought on record. The sentence of death on Jan Muhammad is therefore confirmed. The sentence of imprisonment passed on Abdul Wahid will run concurrently with the sentence of transportation for life passed on him under section, 302/34, P. P. C. K.A.B. Appeal dismissed.