P L D 1966 (W (PLP)

S. A. MAHMOOD, J.‑

For the murder of Jamal and disposal of his dead body, Pahlwan and his nephew Ghalu have been sentenced to transportation for life under section 302, read with section 34, P. P. C., and to seven years' rigorous imprisonment under section 20, P. P. C., both the sentences to run concurrently. They have filed separate appeals. This order will dispose of both the appeals.

2. On the evening of 4th January 1962, Jamal deceased went to the village of Haji Hamind Khan as usual for taking meals, but did not return till suhmani time. On receiving information of it, Abdul Hakim (P. W. 2). Baggu and Khan Muhammad went to the village of Haji Hamind Khan to look for Jamal. He informed them that Jamal had left after taking meals for his brother. They then returned to their houses. On the way they also made inquiries from village Bora Chachars, but could get no clue of the deceased. In the morning they again went to the village of. Haji Hamind Khan, and traced some footprints from there. Kan Muhammad, who is a nephew of Abdul Hamid, was a tracker. While tracking the footprints, they found footprints of two persons, and when they reached a cart track, they found some blood‑stains. and dragging marks. The foot prints led them to the river bank, where they also noticed bloodstains. Then they came back to the place where they had found blood‑stains and marks of dragging. Abdul Hakim sent Khan Muhammad to bring Raees Mirza, while Abdul Hakim and Baggu sat at the spot. Khan Muhammad informed Ali Sher P. W. about the disappearance of the deceased and that he had identified the footprints to be of Ghalu and Pahlwan. Ali Sher (P. W. 6) and Raees Mirza (P. W. 7) came to the spot and saw blood‑stains on the ground. They then went to the house of Pahlwan appellant. On their inquiries Pahlwan appellant confessed that he and Ghalu had murdered Jamal. Abdul Hakim then proceeded to Police Station Buxapur, which is 16 miles from the spot, and made the report Exh. 7 at 12 noon, which was recorded by Muhammad Saleh, A. S. 1. (P. W. 8), who then proceeded to the spot. He went to the houses of Pahlwan and Ghalu and arrested them in the presence of Ali Sher and Raees Mirza P. Ws. Pahlwan appellant took out a hatchet, which was blood‑stained, and a lathi from his house and produced them before the A. S.

1. They were taken into possession and mashirnama Exh. 18 was prepared. The A. S. I. recovered two blood‑stained shirts from the persons of the appellants and prepared mashirnama Exh.

19. Both the appellants were willing to make a confession and the A. S. 1. produced them on the 6th of January 1962, before the Mukhtiarkar and F. C. M. Kandhkot, for recording their confessions. Pahlwan made judicial confession Exh. 30 on that day and Ghalu made the confession Exh.

33. They were then remanded to the judicial lock‑up. The body of the deceased was never found.

3. The alleged motive for the crime is that Ghalu appellant had illicit connection with Mst. Dhiani (P. W. 5) wife of the deceased. In Court she stated that about one or two months before the incident, Pahlwan appellant told her to be in to with him, which she had refused and had informed her husband Jamal about it. She went on to say that she could not say if Pahlwan present in Court was ‑the same person who had asked her to be in toe with him. She also stated, to begin with, that she did not know Pahlwan and Ghalu appellants.

4. Pahlwan appellant denied that he had asked Mst. Dhiani P. W. to have illicit connection with him. Both the appellants denied that they made extra‑judicial confessions before Raees Mirza, Ali Sher and others. Before the committing Magistrate, Pahlwan stated that the Police tortured him and his womenfolk, and they told him that he was being produced before a Senior Sub‑Inspector of Police. No evidence was produced in defence.

5. The conviction of the appellants rests on the extra judicial confessions made before and deposed to by Ali Sher and Raees Mirza, P. W., the judicial confessions made by them before the Mukhtiarkar and F. C. M., Kandhkot, on the 6th of January 1964, following the day of their arrest, the alleged motive, the alleged identification of the tracks of the appellants by Khan Muhammad P. W., production of blood‑stained hatchet and a lathi by Pahlwan appellant and the recovery of blood‑stained shirts from the persons of the appellants. The recovery of the shirts'is of no consequence, because the origin of blood on them could not be determined due to disintegration. The hatchet produced by Pahlwan appellant and the blood‑stained earth recovered from the spot were found to be stained with human blood.

6. Since the body of the deceased has not been found, the first question which falls for determination in this case is whether Jamal deceased has been murdered. In this connection it may be mentioned that it has not been argued on behalf of the appellant that he had not been murdered. He had taken meals for his brother on the evening of the 4th of January 1962, from the house of Haji Hamind Khan and then had disappeared from the village and has not been heard of since. Human blood has been found on the hatchet produced by Pahlwan appellant and on the earth recovered from two places. The appellants have stated in their confessional statements Exhs. 30 and 33 that Jamal deceased was killed with the hatchet and that his body was thrown in the river. In all the circumstances of the case, we are satisfied that Jamal has been murdered.

7. The case against Ghalu appellant rests on the extra judicial confession and the judicial confession. With regard to the extra judicial confession it may be mentioned that though Ali Sher P. W. stated that both the appellants admitted to have committed the murder of Jamal deceased, Races Mirza P. W. deposed that Pahlwan appellant had confessed that he and Ghalu had murdered Jamal. He did not say that Ghalu also confessed that he had murdered Jamal. In the circumstances, it is not established beyond doubt that he made the Extra‑Judicial confession. In his judicial confession Exh. 33, he does not confess to have cawed any injury to the deceased either with a hatchet or a lathi. In fact, he went so far as to say that he tried to prevent Pahlwan from giving injuries to Jamal. He admitted only that he assisted in the tying of the deceased in a turban and throwing him in the river. There is, however, no corroboration of the judicial confession. The shirt which was recovered from his person, was not found stained with blood. In the circumstances, there is no corrobora tion of his confession. The confession of his co‑accused Pahlwan, is somewhat discrepant and is not sufficient corroboration of his confession. His case of participation in the disposal of the body is not proved beyond reasonable doubt. We, therefore, give him the benefit of doubt and acquit him.

8. The case against Pahlwan appellant stands on a different footing. He was arrested on the 5th of January 1962, and made a confessional statement before a Magistrate of the first class on the following day. The confession Exh. 30 was recorded after taking the necessary precautions and due observance of the formalities. It has not been shown that it was procured by threat, pressure or inducement. The appellant denied the making of the confession, and all that his learned counsel alleged was that it had not been proved that it was he who made the confession. A presumption, however, arises under section 80 of the Evidence Act. Besides, Muhammad Saleh, S. I. has proved that he produced Pahlwan and Ghalu appellants before the Mukhtiarkar and F. C. M., Kandhkot, for recording their confessional statements. There is, therefore, no doubt that Pahlwan appellant made the judicial confession Exh. 30 before the Mukhtiarkar and F. C. M. Kandhkot. The alleged torture by the Police remains a mere allegation. We have no doubt that the confessional statement Exh. 30 was voluntarily made and that there was no inducement, threat or pressure used on the appellant which may have led to his making a false confession. There is also no reason to disregard the evidence of Ali Sher (P. W. 6) and Races Mirza (P. W. 7) about the extra judicial confession made by him before them. It has not been shown that they are interested witnesses. All that is alleged against them is that Raees Mirza had a dispute with Rasul Bakhsh Chachar, to whose call the appellants responded. There is no reason why he should try to bring home a false charge against an innocent person. We, therefore, accept their testimony as true. Corroboration of the judicial and extra judicial confession is available in the recovery of blood‑stained hatchet at the instance of Pahlwan appellant. The production of the hatchet is proved by the testimony of Ali Sher (P. W. 6) and Muhammad Saleh (P. W. 8). The evidence of Khan Muhammad with regard to the identification of the tracks is not, however, of any help, as it cannot be relied upon for the finding that the footprints were those of the appellants.

9. Relying, therefore, on the judicial confession and extra judicial confession made before Ali Sher and Raees Mirza P. Ws., and the production of blood‑stained hatchet by Pahlwan appellant B before the police, we hold that the guilt of Pahlwan appellant is proved under sections 302/34 and 201, P. P. C. We, therefore, uphold his conviction under sections 302/34 and 201, P. P. C. and, maintaining the sentence dismiss his appeal.

10. A notice for enhancement of the sentence was issued to the appellant by this Court on the 1st of February 1963. More, than 2 years have now elapsed since the date of the occurrence In the circumstances, we are not inclined to enhance the sentence: S.Q. Appeal dismissed.