P L D 1969 Supreme Court 118 (PLP)

ABDUS SATTAR, J.‑

The three appellants were tried for offences under section 302/34, P. P. C. on three counts for the triple murder of Mst. Alla Jawai, Mst Sattar Bi and Arshad Mahmood, a boy of four years of age and under sections 394/397 and 460, P. P. C. by the learned Additional Sessions Judge, Jhelum, who convicted them under these sections. Sarwar was sentenced to death on each count under section 302/34, P. P. C. Usman and Iftikhar were sentenced to transportation for life on each count under section 302/34, P. P. C. All the three appellants were sentenced to life imprisonment under section 460, P. P. C. Each of them was further sentenced to undergo rigorous imprisonment for a period of seven years under section 397, P. P. C. Sarwar preferred an appeal in the High Court through jail against his conviction and sentences. Usman and Iftikhar filed a regular appeal jointly against their convictions and sentences. The High Court issued a suo motu notice to Usman and Iftikhar to show cause as to why the sentence of transportation imposed upon them under section 302/34, P. P. C. be not enhanced to that of death. The High Court dismissed the appeals, confirmed the death sentence of Sarwar end enhanced the sentence of transportation for life imposed upon Usman and Iftikhar under section 302/34, P. P. C. to death. Leave to appeal was granted to the three appellants since under Article 58 of the Constitution, Usman and Iftikhar had a right of appeal to this Court as they were sentenced to death by the High Court and as the case of Sarwar was not distinguish‑able from their case. The prosecution case is that on the night 'between the 15th... and 16th of January 1965, the appellants entered the house of. P. W. 19 Muhammad Rafiq in village Basharat. They, in order to facilitate the commission of robbery, killed Mst. Allah Jawai, the mother of Muhammad Rafiq, Mst. Sattar ‑Bi, his wife and Arshad Mahmood, his grandson aged about four years. They took away a large number of clothes and ornaments which were subsequently disposed of to different, persons at various places. On the following day at about rotiwela, Mst. Surraiya Begum P. W. 20 visited the house of Muhammad Rafiq and found the door of the house chained from outside. On opening the door and entering the house she found the dead bodies of the three deceased. The wooden boxes were found broken and their contents lying scattered in the room. She then in the company of her husband left for Choa Saidan Shah Police Station where she lodged the First Information Report at 1‑30 p.m. On the 3rd March 1965, at about noon time, the appellants went to Mirza Khan P. W. 17, where Sarwar confessed to have committed the crime and on enquiry Iftikhar and Usman confirmed that whatever Sarwar had stated was correct. The appellants were then taken by Mirza Khan to P. W. 23 Sub‑Inspector, Ali Asghar Shah, who arrested them on the same day. On search of the person of Sarwar a key (P. 60) was found and was taken possession of by the Sub- Inspector. He also took into possession a gold ring (P. 45), and a pair of shoes (P. 61) from Iftikhar as well as a pair of shoes worn by Usman. Usman took the police to village Taniala and from a place near a pond took out doppatta (P. 52), a piece of satan (P. 63), towels (P. 64 and p. 65) a small aluminium box (P. 66) on which the name of Muhammad Rafiq P. W. was engraved and a small tin box (P. 67). He also took out blood stained knife (P. 68). All these articles were taken into possession by the police. Besides these articles a number of ornaments taken away in this robbery were recovered by the police from the persons to whom they were sold by Usman and Iftikhar under the assumed names of Abid Hussain and Mushtaq Ahmed. These articles were recovered on their pointing out. Usman also produced his blood‑stained shirt and pajama. Sarwar also produced before the police some ornaments from a box in his house which was opened by biro with the key (P. 60) which had been taken possession of by the Sub-Inspector at the time of his arrest. There is thus overwhelming evidence against each of the appellants with regard to the recovery of a large number of articles which were taken away on the night of the commission of the offences and were identified by Muhammad Rafiq and Surriaya Begum. The learned counsel for the appellant did not challenge this evidence. The evidence in this regard has been examined thoroughly by the Courts below and accepted and in view of the argument advanced before us we have found it unnecessary to enter into a detailed discussion of the same. It has not been disputed that on the night of the occurrence the three murders in question were committed in the house of Muhammad Rafiq. Mirza Khan has deposed about a detailed statement which Sarwar made to him on 3‑3‑1965 regarding the commission of the crime by him and the other two appellants. His further evidence is that when Sarwar narrated the story Iftikhar and Usman were silent. On enquiry they told him "that whatever had been stated by Sarwar accused was correct". The evidence of this witness was not challenged in cross‑examination. Iftikhar and Usman made judicial confessions also which were recorded by Magistrates. These confessions were retracted in the committing Court but were admitted to have been made when examined by the Sessions Judge under section 342, Cr. P. C. It is, therefore, clear that the confessional statements taken together with the evidence of recoveries furnished enough proof against these two appellants, so far as the charges including the charge of triple murder were concerned. The learned counsel contended that the confessional statements at the trial were made by Usman and Iftikhar on the assurance that in case they saved the learned Sessions Judge from recording the evidence of a large number of witnesses they would not be sentenced to death on the charge of murder. It was asserted that this assurance was given by the learned ‑counsel for the appellants with the concurrence of the learned trial Judge. On being asked to substantiate this contention Mr. Jamil Hussain Rizvi pointed out that the trial began on the 11th April 1966, and after some witnesses were examined on that day and the three following days the learned counsel for the appellants informed the Court on the 14th April 1966, that these two appellants wanted to make some statements. They then, on the 15th April 1966, made statements admitting their guilt. Notwithstanding this the learned Sessions Judge, proceeded with the trial. In convicting them he no doubt took into account these statements together with the other evidence. Mr. Rizvi's contention was that these statements had been made by Usman and Iftikhar as they were assured of being treated leniently in the matter of sentence under section 302/34, P. P. C. and that is why the learned Additional Sessions Judge =did not impose the death sentence in their case. The only material that could be pointed out in support of this contention is a statement made by the Public Prosecutor on the 15th April 1966, giving up a large number of witnesses as unnecessary. It is difficult to follow how this fact alone points to the conclusion contended for by the learned counsel for the appellants. The learned Sessions Judge, in giving the lesser sentence of transportation for life, observed as follows :‑ "A reference to his confessional Statement (Exh. P. S.) made by Usman accused before Mr. Taj Muhammad Khan, M. I. C. and confessional statement (Exh. P. BU/1), made by Iftikhar accused before Sh. Zamir Ali, M. I. C. would show that Sarwar accused prompted Usman and Iftikhar accused to commit robbery in order to become rich and suggested to loot the house of Rafiq (P. W. 19), as there lived only two ladies. It was, therefore, at the instance of Sarwar accused that they fell in line with his idea and set upon a dangerous venture to become rich. Their subsequent conduct .at the trial also shows that they did not conceal their act of brutality. Though justice is jealous of the liberty of the subject and guilty is not allowed to escape unpunished, yet at the same time it must be tempered with mercy, though the act of Usman and Iftikhar accused ,in killing the unarmed ladies is heinous one, yet the circumstance that they acted under the influence of Sarwar accused cannot be lost sight of." When all of the above facts were pointed out to the learned counsel he realised how wrong he was in casting a reflection on a judicial officer without any material whatsoever to support it. He then only contended that as the learned Judge on finding these appellants penitent awarded the lesser penalty the high Court should not have enhanced the sentence. Before we proceed further it is necessary to point out that a counsel with any sense of responsibility should not level such a serious charge, which if proved amounts to misconduct, against a judicial officer when he has hardly any evidence to support it. The learned Judges of the High Court did not agree with the view taken by the learned Additional Sessions Judge in not awarding the extreme penalty on Usman and Iftikhar. They, in. this connection, observed: --‑ "It is a case of triple murder and one of the victims who was mercilessly done to death, was a four years old boy. The murders were committed in cold‑blood to facilitate the commission of robbery. The reason given by the learned trial Judge for imposition of the lesser sentence on Iftikhar, and Usman appellants is not tenable in the eye of law. We, therefore, enhance the sentence passed on Iftikhar and Usman appellants under section 302/34, P. P. C. from transportation for life to death on three counts and direct that they be hanged by the neck till they be dead." We do not think any exception can be taken to the observation of the learned Judges of the High Court. The sentence imposed by them is a legal one and this Court does not interfere with imposition of legal sentence. So far as Sarwar is concerned it was contended that there is no evidence to support his conviction under section 302/34, P. P. C. He could be convicted only under section 411, P. P. C. Apart from the evidence of recoveries of incriminating articles, there is evidence of Mirza Khan who proved the extra‑judicial confession made by him. This witness claimed to be an associate of the father of Sarwar and nothing was elicited in the. cross‑examination of this witness to throw any doubt on his, evidence. We have already noticed that the evidence of recoveries was not challenged by the learned counsel for the appellants. To add to this Usman and Iftikhar, in their, confessional statements fully implicated Sarwar. According to them this appellant induced them to join him in the commission of this heinous crime. It is true that these confessions were retracted in the committing Court but Usman and Iftikhar accepted them in the Sessions Court. These confessions can be taken into account under section 30 of the Evidence Act against Sarwarl also. These confessional statements have been corroborated by the evidence of recovery of looted articles and a blood stained churri. The Courts below have accepted this evidence t, and we have found no ground to disagree with that view. In the result the appeal is dismissed. K. B. A. Appeal dismissed.