P L D 1964 (W (PLP)

JAMIL HUSSAIN RIZVI, J.‑--Rasool Bakhsh, Hazoor Bakhsh and Ghaus Bakhsh, three brothers of village Jalal Khan, were tried for an offence under section 302/34 P. P. C. in the Court of the learned Sessions Judge, Kalat, Ghaus Bakhsh alias Shamboo has been acquitted while the other two appellants have been convicted and sentenced to transportation for life for the murder of Sultan Ahmad who was married to Mst. Garanaz, sister of the appellants, only three days prior to this occurrence. This is an appeal on behalf of the two convicts through Mst. Shahnaz another sister of theirs. The appeal is time‑barred but Mst. Shahnaz has filed an affidavit that she had fallen ill after the conviction of her brothers and thus could not file an appeal earlier. In view of the fact that the appeal is against a sentence for transportation for life we do not consider it proper to dismiss it on the ground of limitation. We, therefore, condone the delay and propose to decide the appeal on merits.

2. The facts leading to this murder are that the two appellants and their third brother Ghaus Bakhsh (acquitted accused) along with their sister Mst. Garanaz, lived in village Jalal Khan. Sultan Ahmad deceased of village Lahri was posted as a teacher in the Primary School in village Jalal Khan about a year and a half before this occurrence. He was accommodated by the appellants in their house and it appears that during that period he developed some sort of a liking for Mst. Garanaz who also responded favourably towards him. The three brother: realising this fact asked Sultan Ahmad deceased to make his own arrangement for his residence, consequently he hired another house in the village and started living there. During X‑mas vacation when he went to his village he brought his mother Mst. Janal P. W. to live with him in village Jalal Khan. A few days after that Mst. Janal approached the two appellants and their third brother and asked them for the hand of Mst. Garanaz for Sultan Ahmad. They demanded Rs. 1,000 or the hand of another girl in exchange. Three days prior to this occurrence Mst. Garanaz approached Sardar Sher Dil Khan (P. W. 6) and told him that she wanted to marry Master Sultan Ahmad and that her brothers demanded Rs. 800 for him. That she did not want that her brothers should get money but she insisted on marrying Master Sultan Ahmad. Sardar Sher Dil Khan who is a Chairman of the Union Council called the two appellants and their third brother, Qabool Khan (P. W. 11) and Master Sultan Ahmed deceased to his house in order to settle this matter. Ultimately the appellants insisted upon payment of Rs.

700. Master Sultan Ahmad deceased promised to pay Rs. 400 on that day and to pay the balance later on when the marriage was to be performed. Sardar Sher Dil Khan thereupon sent the girl with Qabool Khan (P. W. 11) as she was not willing to go back to his brothers. He asked Qabool Khan to keep the girl with him till Master Sultan Ahmad was able to arrange for the balance of the money so that when the balance of the money was paid the marriage could be solemnised. Qabool Khan took the girl along with him, but he returned shortly thereafter and told Sardar Sher Dil Khan, that she insisted on seeing Master Sultan Ahmad deceased. Thereupon, Sardar Slier Dil Khan asked the appellants that it would be better to marry her with Sultan Ahmad deceased on receipt of Rs. 400 otherwise they might loose this money as well as their sister. Thereupon, the three brothers agreed to the proposal. They were paid Rs. 300 there and then while Rs. 100 were to be paid by Ghulam Haider, Headmaster of the School who obtained a receipt from Master Sultan Ahmad for Rs.

100. The receipt was signed by Sardar Sher Dil Khan as well. Thus Master Ghulam Haider promised to pay Rs. 100 to the appellants and he was to receive this amount from the pay of Master Sultan Ahmad deceased at the end of the month. Thereafter, Mst. Garanaz was married to Sultan Ahmad deceased the same evening and she went to live with him at his house. It is alleged that tile next morning when Hazoor Bakhsh appellant had gone to see his sister, Mst. Janal, the mother of the deceased and even Sultan Ahmad taunted them and this infuriated the accused. In fact, they had agreed to the marriage as they had been placed in an awkward position by the insistence of Mst. Garanaz which they thought was brought about by Master Sultan Ahmad who had misused their hospitality As a result of this grievance, on the 11th of January 1963, at 10‑30 a.m. when Sultan Ahmad was coming back after purchasing meat from tire shop of Sikandar (P. W. 9) he was attacked by the three accused while he was in the lane quite close to their house. Rasool Bakhsh was armed with a Vahola and Hazoor Bakhsh is alleged to have caught hold of him and thrown him on the ground while Ghaus Bakhsh, acquitted accused, was also present were armed with a lathi. Ghulam Haider (P. W. 2) was informed by one Mst. Sumri, who has not been examined in the case, of the fact that Master Sultan Ahmad had been murdered. He came to the spot and found him laying dead. He wrote the letter Exh. P. A. to Sub -Inspector Police Station Bhag wherein he only mentioned that Master Sultan Ahmad, a second teacher in the school, had been murdered, that investigation should be immediately taken up. This ruqqa reached the police station and a case under section 302, P. P. C. was registered in the police station at about I p.m. Shortly thereafter the two appellants also arrived at the police station. Mushtaq Hussain (P. W. 16), Sub‑Inspector, arrested them. He called Sardar Sher Dil Khan, who happened to be in Bhag and informed him of this murder. He further asked him that he should take him (the Sub‑Inspector) to village Jalal Khan for investigation of the case. Sardar Dil Khan, who was in his Jeep, brought Mushtaq Hussain, Sub‑Inspector along with the accused to village Jalal Khan. On arrival at the spot, Mushtaq Hussain, Sub‑Inspector, (P. W. 16), prepared the injury statement Exh. P. E. and the inquest report Exh. P. G. of the deceased and sent the dead body to the mortuary through Muhammad Afzal, Head Constable, (P. W. 15) for post‑mortem examination. He inspected the spot and prepared the site‑plan Exh. P: H. and wrote the necessary notes on the same. He took into possession some blood‑stained earth from the spot and sealed into a parcel vide memo Exh. P. C. He found a cap lying at the spot which he took into possession vide memo Exh. P. D. Rasool Bakhsh accused led to the recovery of the Vahola Exh. P. I from his house vide memo Exh. PP. The Vahola was stained with blood and it was sealed into a parcel. Ghaus Bakhsh, acquitted accused, was not present in the village but he was produced by Qabool Khan P. W. on the 13th of January 1963 when he was arrested. On the 13th of January the Sub‑Inspector produced the two appellants, Rasool Bakhsh and Hazoor Bakhsh, before Jam Ali Khan, Tehsildar, Magistrate 1st Class for recording their judicial confessions which were recorded on that day. The bloodstained earth, the Vahola and the clothes of the deceased were sent for Chemical Examination. All these articles have been found to be stained with human blood. The recovery of the Vahola was witnessed by Master Ghulam Haider and Sardar Sher Dil Khan. The Sub‑Inspector has explained that he came back to Police Station Bhag on the 12th at about 7 p.m. along with the accused and he produced the accused before the Magistrate the next day for recording of their confessions. He further stated that the articles which were sealed by him were sent to the Chemical Examiner for examination on the 16th of January 1963.

3. Dr. Abdus Sattar (P. W. 1) performed the post‑mortem examination on the dead body of Master Sultan Ahmed on the 12th of January 1963 at about 2 p.m. and found the following injuries:‑ (1) One cut wound transversely placed over the back of neck 4 " x 3' x 1 ", cutting the muscles and the 4th and 5th cervical vertebra underneath. The spinal cord was cut. (2) One cut wound transversely placed 3 " x ", cutting the muscles underneath. It was " above injury No. 1. (3) An incised wound 1 " x " x " over the left shoulder obliquely placed. (4) An incised wound longitudinally placed over the back of the left hand cutting the second metacarpal bone and tissues which was 2 " x 1 " x ". (5) An incised wound, 1 " x " x 1", on the left side of the neck at its upper transversely placed cutting the left mandible " in front of its angle. (6) A lacerated wound V shaped over the back of the right wrist with 1" skin flap hanging over it. Each limb of the V being " in length. In the opinion of the doctor the death has taken place due to shock and bleeding on account of injury to the spinal cord.

4. In support of the above case the prosecution examined Imam Bux (P: W. 3) and Yunus (P. W: 4) as eye‑witnesses. The third eye‑witness Amir Bux had died after his statement had been recorded by the committing Magistrate. Consequently his statement was transferred to the Sessions record under section 33 of the Evidence Act. Laloo (P: W. 8) and Ghosa (P. W. 10) saw the accused running away at some distance from the place of the occurrence where Master Sultan Ahmed was lying murdered. Sikandar (P. W: 9) gave evidence that on the day of‑ occurrence Hazoor Bux appellant and the deceased purchased meat from his shop and left his shop together: The other witnesses in this case are Sardar Sher Dil Khan (P. W. 6), Qabool Khan (P. W. 11), Mst. Garanaz (P. W. 7), Mst. Janal (P. W. 12) ‑and Jam Ali Khan, Tehsildar (P: W. 5) who proved the two confessions of Rasool Bux and Hazoor Bux, Exhs. P. Y. and P. Z. respectively. The rest of the evidence is of a formal character. So far as this occurrence is concerned, Mst. Garanaz and Mst. Janal stated that they were informed of the murder of Master Sultan Ahmad and they came to the place of occurrence and found him lying murdered, but nobody was there at that time. The rest of the evidence relates to the marriage of Mst. Garanaz with Sultan Ahmed in the circumstances already mentioned. Sardar Sher Dil Khan and Ghulam Haider P. Ws. in addition to witnessing the recovery of Vahola at the instance of Rasool Bux appellant, gave evidence as regards the marriage of Mst. Garanaz with Master‑Sultan Ahmed. In fact, so far as their evidence on this‑ point is concerned, the appellant admitted these facts when they were examined in the Court of the committing Magistrate.

4. The two appellants, when examined before the committing Magistrate, admitted the case of the prosecution up to the stage of the marriage of Mst. Garanaz; with Master Sultan Ahmed. They admitted that Master Sultan Ahmed lived in their house for some time. That a few days before his marriage they had asked him to live separately. That after he had shifted to his house he had asked for the hand of Mst. Garanaz and that‑‑they had demanded a thousand rupees from him for this marriage. That Mst. Garanaz had gone to the house of the Chairman, Union Council of Village Jalal Khan so that she might be married to Master Sultan Ahmed deceased and that the Chairman called them and some others to decide this matter. That they demanded Rs. 700 from Sultan Ahmed who had stated that he had only Rs. 300 in cash with him and that he could pay Rs. 100 on receipt of his, pay. That it was decided there that till Sultan Ahmed deceased paid the balance of Rs.

300. Mst. Garanaz should stay with their first cousin Qabool Khan. That since Mst. Garanaz refused to go to their house and also to the house of Qabool Khan and insisted on seeing of Master Sultan, there upon, Sardar Sher Dil Khan asked them to marry her on receipt of Rs. 300 in cash and the balance of Rs. 100 when he received his pay. They, however, denied that they had murdered Sultan Ahmed. As regards their visit to the police station they stated that they had gone to the police station to report about the murder of their brother‑in‑law. Rasool Bux denied the. recovery of Vahola from his house at his instance. He further stated that he did not know as to who had murdered Master Sultan Ahmad. That Hazoor Bux had informed him at his house about his murder and he saw Master Sultan Ahmed lying murdered and that there was nobody near‑about the place of occurrence, consequently both of them had gone to the Police Station Bhag to lodge the report but Sher Dil Khan got them falsely involved in this matter. The appellants did not examine any witness in defence.

5. The confession of the two appellants were recorded by Jam Ali Khan, Tehsildar, on the 13th of January 1963. In the confessions the two appellants narrated all the facts leading to the marriage of Mst. Garanaz with Master Sultan Ahmed deceased. They further stated that Hazoor Bux caught hold of Master Sultan Ahmed and felled him on the ground and Rasool Bux murdered him with Vahola. Hazoor Bux further stated that on the next morning of the marriage when he had gone to see his sister Mst. Garanaz the mother of Sultan Ahmad deceased had also abused him and that it was because of this that Sultan Ahmed was murdered.

6. The learned counsel for the appellants urged that the names of the accused or those of the witnesses were not mention ed in the first information report. Since the report was not made E by an eye‑witness this omission did not affect the merit of the case. It has further been contended by the learned counsel that the witnesses were chance witnesses and they do not (mention seeing each other nor they mentioned of having seen this occurr ence to the other villager. This objection of the learned counsel does not demolish the prosecution evidence. The murder was committed in a lane and it could only have been witnessed by the passers‑by. It was about 10‑30 a.m. and these witnesses were going about for their daily pursuits. The statements were recorded by the police the same day. Ordinarily, in villages people mind their own business and they do not regard it either safe or even necessary to interfere in such an occurrence or to make mention of having seen any such occurrence. The learned counsel cited Nawab v. The Crown (A I R 1923 Lah. 391) in support of his above contentions but this authority was given on its own facts. The learned counsel further contended that the evidence of Sikandar W. W. 9) was stated to have seen Hazoor Bux appellant and the deceased together did not in any way connect Hazoor Bux appellant with the murder. He has relied upon Hayat v. Emperor (A I R 1932 Lah, 243). If the only evidence against the appellant was that of Sikandar this evidence was surely insufficient to base his conviction. The learned counsel further urged that Mst. Sumary who had informed Master Ghulam Haider of the murder of Master Sultan Ahmed, has not been examined, nor the boy who had informed Mst. Garanaz of this occurrence was examined. It is also contended that the person who took the first information report to the police station was also not known nor he was examined. The omission to examine these persons does not affect the prosecution case. Mst. Sumary or the boy who informed Mst. Garanaz of this occurrence are not shown to be eye‑witnesses. Mst. Garanaz was not even questioned about the name of the boy who had informed her. Similarly, the omission to examine the person who took the report to the police station is immaterial. The learned counsel attacked the recovery of the Vahola at the instance of Rasool Bux appellant but we do not find any flaw in this recovery. The learned counsel contended that the eye‑witnesses were divergent as to whether the appellant had thrown the Vahola at the spot after the infliction of the injuries or that he took it away with him when lie was proceeding towards the East to go to the Thana or as is alleged by Amir Bux P. W. that it was dropped at the site and was take away by Ghaus Bux alias Shamboo to their house. None of the eye‑witnesses stayed near the place of occurrence. Thus their, statements on this point although at variance cannot be said to be either untrue or contradictory. Imam Bux P. W. stated that Rasool Bux appellant had taken the Vahola with him and he went in the direction in which the police station is situated. Yunus P. W. stated that he saw the accused running and throwing away the Vahola, while Amir Bux P. W. stated that Shamboo (Ghous Bux) went to the house taking the Vahola and the lathi. These witnesses described whatever each one of them had seen. Mr. Mushtaq Hussain, Sub‑Inspector, (P. W. 16) stated that both the appellants were arrested at the police station and they were brought to the village. If the appellants had taken the Vahola with them the recovery memo of the same would have been prepared at the police station. He further stated that Rasool Bux led the police party along with the witnesses to his house and from there he got recovered the Vahola. The recovery memo Exh. P. B. is attested by Ghulam Haider and Sardar Sher Dil Khan P. Ws. Sardar Sher Dil Khan P. W. was not specifically questioned about this recovery by any of the parties. However, Master Ghulam Haider and Mr. Mushtaq Hussain Sub‑Inspector, P. Ws gave detailed evidence as regards this recovery and we have no doubt that the recovery did take place as is mentioned in the Exh. P. B. The recovery was effected on the very day of the occurrence. The objection of the learned counsel that Master Ghulam Haider and Sardar Sher Dil Khan P. Ws. were interested in the prosecution and therefore, their evidence as regards the recovery should not be accepted, has also no basis. Both of them are proved to be absolutely independent witnesses. It has beer, admitted by the appellants that both of them had participated in the negotiations about the marriage of Met. Garanaz with Master Sultan Ahmed. As regards the two confessions the learned counsel for the appellants argued that whatever is stated in the confessions was already known to the investigating officer, consequently no reliance should be placed on the two confessions. This contention of the learned counsel has no force because in the present case the accused even at the trial admitted all the facts leading up to the marriage of Mst. Garanaz with the deceased, and they have stated all these facts in their confessions as well. Before acting on confession it is the duty of the Court to be satisfied that the confession was voluntarily made and that it was true. In the present case after having gone through the evidence of Mr. Jam Ali Khan, Telisildar and reading the confession we are satisfied that the learned Sessions Judge was quite justified in accepting these two confessions as true and having been made voluntarily. Since the appellants retracted these confessions at the trial as a rule of caution it will be necessary to see if there is independent corroboration of these confessions and in case material corroboration is found the conviction of the appellants would be perfectly justified. The learned counsel also contended that these confessions were not proved at the enquiry stage. This contention of the learned counsel does not, in any manner, weaken the case of the prosecution because under section 208, Cr. P. C. the Public Prosecutor is not bound to examine all the evidence at the enquiry stage. It has been further urged by the learned counsel that the learned Sessions Judge was wrong on relying on the fact of the appellants visiting the police station immediately after the occurrence as a circumstance corroborating the confession. There is no doubt that some inference can be drawn from such a conduct of the appellants. The appellants have offered an explanation that they had gone there in order to lodge the report. This explanation of the appellants is not plausible because it was expected that one of them at least would have stayed near the dead body to ascertain as to who had murdered their brother‑in‑law. The fact that the two appellant made scarce from the place of the occurrence and even their third brother was not to be found in the village when the investigating officer arrived there, leads to an adverse inference against them. This, of course, is a very minor circumstance and cannot be regarded as material corroboration of the confession of the appellants. It has been further urged by the learned counsel that the prosecution has failed to prove any motive for the appellants to commit this offence. We do not agree with this contention of the learned counsel because the evidence of Master Ghulam Haider and Sardar Sher Dil Khan P. Ws. established that the appellants were forced to agree to this marriage on the insistence of Mst. Garanaz. In fact they were annoyed as to why Master Sultan Ahmed deceased who had been accommodated by them in their house had developed such a relations with their sister Mst. Garanaz that she insisted on marrying him without payment of any money. This is not even denied by the appellants that the marriage was brought about under pressure by Sardar Sher Dil Khan and Mst. Garanaz. Hazoor Bux appellant in his confession, stated that he was taunted by the mother of the deceased when he visited his sister on the following day of the marriage and that he had also been abused by Master Sultan Ahmed deceased. There is no evidence or even a suggestion to the effect that Master Sultan Ahmed deceased had any other enemy in the village. We, are therefore, satisfied that the learned Sessions Judge was justified in holding that the two appellants had a motive to murder Master Sultan Ahmed deceased.

7. On going through the entire evidence in this case, we are satisfied that so far as Rasool Bux appellant is concerned there is ample evidence to uphold his conviction. Imam Bux and Amir `Bux P. Ws. saw him attacking the deceased with a Vahola, Yunus is a boy aged about nine years, it was necessary for the learned Sessions Judge to give a note before recording his state ment that the witnesses was intelligent enough to give evidence, but we find that the learned Sessions Judge did not adopt that course and even if for that reason we ignored the evidence of Yunus P. W. there is no reason to doubt the veracity of the statements of Imam Bux and Amir Bux P. Ws. The evidence of Laloo And Gosha further supports the case of the prosecution as both of them saw the two appellants running away and they further saw Master Sultan Ahmed deceased lying murdered. As has been remarked, confession of Rasool Bux appellant was voluntarily made and we are satisfied that it is true the same was however, retracted at the trial. The evidence of the witnesses mentioned above is sufficient corroboration of the confessional statement of Rasool Bux appellant. In addition to that we ate satisfied that the recovery of the Vahola Exh. P. I. was made from the house of the appellant at the instance of Rasool Bux. The Vahola has been found to be stained with human blood. It has been mentioned in the confession of both the appellants that the Vahola was handed over to the police. Thus the recovery of the Vahola and the evidence of the witnesses referred to above are sufficient corroboration of the confessional statement made by Rasool Bux appellant. We are satisfied that he has been properly convicted and sentenced.

8. So far as Hazoor Bux appellant is concerned, we are satisfied that he also, made a voluntary and true confession before Mr. Jam Ali Khan, Tehsidar, but as the confession was retracted we have to look for material corroboration of this confession. So far as Imam Bux P. W. is concerned, he stated that at the time when Master Sultan Ahmed deceased was attacked by Rasool Bux appellant he was lying on the ground and Hazoor Bux appellant had caught hold of his legs. Yunus, P. W. stated that when he saw both Rasool Bux and Hazoor Bux appellants beating the deceased. Amir Bux P. W. in his statement before the committing Magistrate which has been transferred to the Sessions file stated that he saw Hazoor Bux appellant catching the deceased and throwing him on the ground. He did not state that Hazoor Bux appellant was holding the legs of the deceased when he was being attacked by Rasool Bux appellant, Ghous Bux alias Shamboo, acquitted was also challaned for this offence. These eye‑witnesses have stated that he was also near about the occurrence. In fact, Amir Bux P. W. stated that he had also given lathi blows to the deceased but no blunt weapon injuries were found on the person of the deceased. The other two eye‑witnesses did not implicate Ghous Bux. Ghous Bux did not make any confessional statement as well. The part assigned to Hazoor Bux appellant by the three eye‑witnesses is not consistent. Their evidence although accepted by us as true does not yield convincing the material corroboration of the confession made by Hazoor Bux appellant. We are satisfied that Hazoor Bux was in fact present at the scene of occurrence and very likely he abetted the commission of this offence. However, as already discussed, we do not find material corroboration of his retracted confession and by way of abundant caution we would give benefit of doubt to Hazoor Bakhsh appellant.

9. In view of what has been stated above, we would dismiss the appeal of Rasool Bux appellant and accept the appeal of Hazoor Bux appellant who will be released from jail forthwith if not required for any other cases S. Q. Appeal dismissed.