1968 P Cr (PLP)

(c). The evidence of Zahiruddin P. W. 25 who was a bus conductor of Bus No. K A T 7068 also establishes that he saw one person following the deceased and two persons lifting him up and putting him up in a Jeep No. K A D 3212. His evidence also supports the evidence of the approver who has stated that fake plates bearing this number were put on the jeep on the Queens Road. This witness has also stated that he suspected a foul play and informed Umar Khan, the driver of the bus, about it. He has also stated that he requested Umar Khan to pursue the jeep and know the real facts. He has also stated that they pursued the jeep and on overtaking it learnt from the culprits that they were policemen and were taking Abdul Latif to Malir for interrogation. He has also stated that the appellant Muhammad Banaras who was driving the jeep then drove away the jeep and disregarded the traffic signal of the Police Constable. He was also put to an identification test in which he identified the two appellants and the approver. The identification test was held by Mr. Muhammad Khan Junejo A. C. M. P. W. 22. (d) Saifuddin P. W. 26 who was a newspaper seller also saw three persons sitting in the back seat of the jeep and the fourth person driving it away. He also saw the jeep being followed by a bus. He was also put to identification test in which he identified the appellants only. (e) Shah Nawaz P. W. 32 has also stated in his evidence that he was a bus conductor but was travelling in Bus No. K A T 7068 at that time as a passenger. He has further stated that he saw three persons sitting in the back scat of the jeep and the fourth person driving the Jeep No. K A D 3212. He has also stated that bus driver Umar Khan pursued the jeep and the conductor Zahiruddin P. W. 25 contacted the appellants at the point where the jeep had stopped and learnt from them that they were taking away Abdul Latif for interro gation to Malir. (f) Umar Khan whose evidence has been brought on record under section 33 of the Evidence Act because he could not be traced has stated that he was bus driver of Bus No. K A T 7068 and had seen a jeep carrying four persons going towards the Frere Road. He has also stated that he was informed by Zahir uddin that he suspected afoul play because Abdul Latif had been lifted and put in the jeep. He also stated that Zahiruddin had told him to pursue the jeep and he did so and stopped only when the jeep had stopped. He has also stated that Zahiruddin, bus conductor, contacted the culprits and learnt from them that they were Policemen and were taking away Abdul Latif for interrogation. Both Shah Nawaz and Umar Khan were also put to identification test in which both of them had identified the appellants and the approver. This test, as we have already said, was held on the 27th of November 1963 in the presence of Mr. Muhammad Khan Junejo. (g) Allah Bux P. W. 13 is a Traffic Constable who was on duty on Frere Road and Katchery Road Junction. He has stated that he saw a jeep stopping at a little distance from him where the conductor of the bus had gone to the jeep and made certain inquiries from the person in the jeep. He has also stated that the driver of the jeep then passed by bin) disregarding the signal he had given to stop him and other traffic corning from that side. He has also stated that lie made an entry in his book which has been produced as Exh.

28. This entry shows the time as 11-40 a.m. and also disclose that vehicle No. K A D 3212 had committed the offence of breaking the signal. He was also put to identification test held can the 7th of November 1963 in the presence of Mr. Muhammad Khan Junejo, A. C. M. P. W. 22 in which he identified the appellant Muhammad Banaras and approver Muhammad Azam. Mr. Muhammad Khan Junejo P. W. 22 has been examined and he has fully supported the case of the prosecution. He has also produced mashirnama Exh. 51 which was made by him at the time of identification. (h) Mamoon son of Ishaq P. W. I8 has also lent support to the evidence of Muhammad Azam approver it that he has stated that Jeep No. K A B 9585 came to his petrol pump at about 1 p.m. and he put three gallons of petrol in it and issued a receipt for it. The counter-foil of the receipt has been produced as Exh.

38. It shows the number of the vehicle in which petrol was given as K A B 9585. Genuine number was seen on the jeep because the fake plates bearing fictitious numbers had been removed and thrown on the Vardat. Shahabuddin P. W. 43 has been examined to prove that he made hooks for fake number plates to be fixed on the jeep. (i) Mamoon son of Wali Muhammad P. W. 10 has also supported the evidence of the approver by saying that he was a Forest Guard and saw a jeep having four passengers in it going into a jungle off the metalled road. He has also stated that a little after the jeep had gone into the jungle he heard two shots but took no notice of them as Shikaris usually came into that locality for shooting purposes. He has further stated that he saw sometime thereafter the same jeep going towards Hyderabad with only three passengers in it. (j) Faqir Muhammad P. W. 45 has also supported the evidence of the approver. He was posted at the Kotri Bridge as a clerk for recovering the Toll Tax from the vehicle passing the bridge. He has produced counter-foil of receipt of the Toll Tax recovered from vehicle No. K A B 9585 as Exh. 136. (k) Muhammad Khan P. W. 37 has also supported the evidence of the approver. He ways a clerk posted at Kotri Bridge on the Hyderabad side for recovery of Toll Tax. He bas produced counter-foil of the receipt under which Toll Tax for vehicle No. K A B 9585 was recovered. This counter-foil of the receipt is Exh.

100. He has also stated that the time at which be recovered the Toll Tax was about mid-night between the 20th and 21st of November 1963. (l) Shabbir Abroad P. W. 35 has stated that he was a bearer in Sultan Hotel at the time of the incident and that on the 20th of November 1963 a jeep carrying three passengers came to his hotel. The persons in the jeep had taken room No. 16 on rent. He has also given evidence that he bad taken the register of the hotel in the room to these persons for noting down their names. He has also stated that the appellant Muhammad Banaras made these entries at about 5.30 or 6 p.m. He was put to identification test on the 17th of December 1963 which was held by a Third Class Magistrate Mr. Muhammad Juman P. W.

1. He identified the appellant Muhammad Banaras and the approver Muhammad Azam for which mashirnama Exh. 6 was made. (m) Zamirul Hassan P. W. 48 was the Manager of Sultan Hotel. He has produced entry Exh. 141 from the Hotel register showing the names, of appellant Muhammad Banaras, Muhammad Khalid and Karam Shah having taken room No. 16 on rent in the evening of the 20th of November 1963. He has also stated that Muhammad Banaras had made those entries in his own handwriting. He has identified all the three persons in Court. (n) Saeed Hussain P. W. 46 was a bearer of liquor from a shop in Jahangir Hotel. He has stated that the two appellant and the approver had come to his shop on the night between the 20th and 21st of November 1963 and taken liquor there. (o) Dur Muhammad P. W. 30 is a mechanic. He has stated .St that the appellant Muhammad Banaras had given to him Jeep No. K A B 9585 for repair on the 21st of November 1963. He has also stated that he had removed the engine from the jeep for removing the defects and given the body of the jeep to Maqsood Ahmad for removing the dents. He has also stated that the appellant Muhammad Banaras had given him the key of the jeep which he had produced before police Inspector Pir Bux in the presence of Nawab Hassan P. W. 39 for which the police had prepared mashirnama Exh.

118. He has also stated that the engine of the jeep had been recovered from him by the same Police officer in the presence of the same rnashir for which mashirnama Exh. 116 had been made. (p) Maqsood Ahmad P. W. 31 has also supported the evidence of Dur Muhammad and has stated that he got the body of the jeep on the 21st of November 1963 for removing dents. He has further stated that the body of the jeep was secured by the Police Inspector Pir Bux in the presence of Nawab Hassan P. W. 39 for which mashirnama Exh. 117 was made. Both the Police Inspector P. W. 50 and Nawab Hassan have fully supported the case of the' prosecution.

11. The evidence of the approver also stands strongly supported by the recoveries made from the personal search of the appellant Muhammad Banaras and also from his house at his instance. The appellant Muhammad Banaras was arrested by Police Inspector Pir Bux on the 23rd of November 1963. His person was searched and a key, bill of repairs of the jeep and an identity card were secured from him under mashirnama Exh. 105 in the presence of Nawab Hassan P. W.

39. The appellant Muhammad Banaras then took the Police to his house where he opened the box with a key secured from his possession. Currency notes of Rs. 12,200 a pistol, 10 live cartridges and a licence for pistol were secured. Rupees 10,000 were tied up in a bundle of 100 rupee notes. : The first and last note of that bundle bore the initials of clerk from the bank. On the search of his house Registration Book for the Jeep No. K A B 9585, application by Ahmad for transfer of the jeep to Muhammad Banaras, certificate of insurance in the name of Muhammad Banaras, receipt of payment of insurance and a driving licence in the name of Muhammad Banaras were secured. Mashirnama for these recoveries Exh. 106 was made by Police Inspector in presence of Nawab Hassan P. W.

39. These recoveries fully confirm the evidence of the approver Muhammad Azam. They have also been substantiated by other evidence on record.

12. With regard to Jeep No. K A B 9585 the evidence on the record is that it belonged to Ahmad P. W. 29 who had sold it for Rs. 4,000 to appellant Muhammad Banaras on the 19th of May 1963. Ahmad P. W. 29 has been examined and he has stated very clearly that this jeep belonged to him and had been sold by him to appellant Muhammad Banaras on the 19th of May 1963. He has produced receipt Exh. 79 dated 19th of May 1963 for the sale of the jeep to Muhammad Banaras. The receipt bears the signature of Muhammad Banaras and shows that the jeep had been purchased for Rs. 4,000 out of which Rs. 2,000 had been paid in cash and the balance of Rs. 2,000 was promised to be paid within four months. With regard to the fictitious number plates that had been put on the jeep by the appellants, Ghulam Abbas P. W. 44 has been examined. He has stated that he was the owner of the jeep bearing No. K A D 3212 which had been sold by him long ago to some body in mofassil and that this jeep did not operate in Karachi at the time of the incident. The evidence of P. W. Moosa Exh. 151 has also been brought on record to show that he had purchased the Jeep No. K A D 3212 from Ghulam Abbas several months before this incident. The securing of Registration Book for Jeep No. K A B 9585 from the house of appellant Muhammad Banaras would also support the case of the prosecution that this jeep which belonged to Ahmad had been purchased by the appellant Muhammad Banaras on the 19th May 1963 and was in his possession at the time of the incident. The application by Ahmad for the transfer of the jeep to Muhammad Banaras also supports this view. It makes no difference if this application was not presented before the Registering Authorities for the change in the name of the owner in the Registration Book. The certificate of insurance and receipt for payment of insurance also lend support to the case of the prosecution that Muhammad Banaras was owner of Jeep No. K A B 9585 at the time of the incident and that he was in possession of it.

13. With regard to the currency notes of Rs. 12,200 secured from his possession the evidence brought on the record also conclusively establishes that the currency notes secured from the culprits were the notes that had been given to the deceased Abdul Latif on account of encashment of the cheque given to him by his firm. The first witness examined on this aspect of the case is Luqman Khan P. W. 2 who was the Manager of the Bank at the relevant time. He has stated that cheque Exh. 10 had been presented on the 20th of November 1963 which had been placed before him for which he had issued instructions that payment should be made. Abdullah P. W. 3 who was a clerk in the Bank has also stated that he had tied up the hundred rupee notes in bundles. The bundle of Rs. 10,000 secured from appellant Muhammad Banaras had been shown to him and he had stated that initials appearing on the first and the last note of that bundle are his. He has further stated that he has always been putting his initials on the bundles in the manner in which his initials appear on this bundle. Abdul Saeed P. W. 4 was a Cashier in the bank and he has stated that the notes secured from appellant Muhammad Banaras were the notes given to Abdul Latif at the time when he had presented the cheque for Rs. 25,

000. Abdul Saeed son of Ghulam Muhammad P. W. 5 was a Token Clerk in the bank and he has stated that he had issued the token for the cheque of Rs. 25,000 presented before him. Umar Farooq P. W. 6 was the Chief Cashier in the bank. He has also stated that the notes shown to trim were the notes hard presented the cheques Exh. It for the sum of Rs. 25,

000. The evidence of the bank people leaves no room for doubt that the money recovered from the possession of Muhammad Banaras was the money that had been given to Abdul Latif at the time when he had presented the cheque for Rs. 25,000.

14. The circumstance of the absence of the appellants and the approver from their office on the 20th of November 1963 it also a circumstance which goes a long way to connect them with the offence and supports the evidence of the approver fully. P. W. Phillip P: W. 9 was Superintendent of the Karachi Port Trust. He has stated that Muhammad Banaras was under suspension from the 10th of May 1963 and he therefore did not attend the office. He has also stated that entries Exhs. 19 and 20 from the Muster Roll show that the appellant Muhammad Munir and Muhammad Azam were absent from the office on the 20th of November 1963.

15. The appellants Muhammad Banaras and Muhammad Munir were also students of the Urdu College. Amanul Haq P. W. 21 has produced entries Exhs. 45 and 46 from the register of attendance maintained in the college to show that Muhammad Banaras and Muhammad Munir were absent from the college on the 20th of November 1963. He had also seen the Identity Card Exh. 47 secured from the person of appellant Muhammad Banaras and stated this was the identity card issued to Muhammad Banaras for his attendance in his college.

16. There is also a retracted confession of Muhammad Munir which graphically describes how the offence was committed and what part was played by each of the accused. Although Muhammad Munir has retracted from this confession it can still be considered in evidence against Muhammad Banaras. There is further evidence of the Ballistic Expert against appellant Muhammad Banaras. Alley Ahmad P. W. 36 who has been examined as Ballistic Expert has stated that the fired shell secured from the scene was found by him to have been fired from the revolver secured from the possession of appellant Muhammad Banaras.

17. So far as the case of Muhammad Munir is concerned, the evidence against him consists of the evidence of the approver Muhammad Azam P. W.

42. It has been corroborated by the same circumstances, which have been discussed in support of his evidence in respect of the case of appellant Muhammad Banaras. Appellant Muhammad Munir had also made confession Exh. 49 on the 27th of November 1963 which was recorded by Mr. Muhammad Khan Junejo P. W.

22. Mr. Muhammad Khan Junejo P. W. 22, has bean examined and he has clearly stated that he had taken all possible steps to know that Muhammad Munir was making the confession voluntarily. Muhammad Munir was arrested on the 23rd .of November 1963 and his confession was recorded on the 27th of November 1963. There is nothing on the record to indicate that the confession he had made was not voluntary. His case that it was coerced out of him on account of pressure brought to bear upon him by the Police is not substantiated at all. The confession has been substantially corroborated word for word by the evidence which has been detailed above in respect of the corroboration of the evidence of approver Muhammad Azam. The confession of Muhammad Munir in our opinion is both voluntary and true and has been fully supported to the minutest detail by the evidence brought on record. The evidence against Muhammad Munir stands also supported by the fact that on being arrested he took the police to his house, tore open the cover of his pillow and took out Rs. 6,265 from it and produced them before the Police for which mashirnama Exh. 114 was made by Police Inspector Pir Bux in the presence of mashir Nawab Hassan P. W. 39.

18. The criticism of the learned counsel for the appellant that the evidence against Muhammad Munir is not sufficient is not worth consideration at all. His argument that he was not identified by Rahmatullah, Allah Bux and Shabbir Ahmad also does not carry the case of the appellant Muhammad Munir very far. Several witnesses have been examined and most of them had identified him. Even in the identification test held Shahnawaz, Zahiruddin, Umar Khan and Saifuddin had identified the appellant. To some of the witnesses who have examined Muhammad Munir was previously known. The argument of the learned counsel that the entry in the register maintained at Sultan Hotel Exh. 141 does not show his name and therefore militates against his participation in the commission of crime also, in our opinion, is not tenable. This entry was written by Muhammad Banaras and he mentioned his own name and the names of Muhammad Khalid and Karam Shah in the register namely because he wanted to fabricate a circumstances to be able to create a doubt in the case of the prosecution of the three appellants being in conspiracy. Non-mention of the name of Muhammad Munir in the register, in our opinion, carries no weight in the face of evidence of Zamirul Hassan, the Manager of the hotel. The evidence of the approver and his confession stand otherwise fully confirmed by the evidence of other witnesses and the circumstances discussed above. We have considered the evidence against the two appellants and we are clearly of the view that the evidence brought on the record has established a convincing case against the two appellants. On the evidence brought on record there is no room left for doubt that the two appellants were responsible for the commission of offence with which they were charged. We consequently see no force in the appeals filed by them and dismiss them.

19. The learned counsel for the appellant Muhammad Munir has also pressed into service an argument that the case of this appellant does not deserve the sentence of death under section 302, P. P. C. According to him Muhammad Munir, on the evidence brought on record, had not taken an active part in that he had not fired his pistol at Abdul Latif bringing about his death. In the circumstances of this case it is immaterial if Muhammad Munir had not fired any shot which caused injuries to Abdul Latif resulting in his death. Muhammad Munir was a party to an agreement of the three culprits pursuant to which they hall perpetrated the crime which is the subject-matter of this case. Muhammad Munir had also seen Muhammad Banaras loading the revolver before all the three of them had got into the jeep for purposes of committing this offence. The fact that Muhammad Munir had seen Muhammad Banaras loading his revolver and carrying it with himself before they got into the jeep indicates that the common intention of all the three culprits was to kill the person who came in their way of making them rich through illegal methods. More than that the confession of Muhammad Munir himself clearly indicates that Muhammad Banaras had fired only one shot at Abdul Latif. His confession also indicates that it was he who had discovered that Abdul Latif had not died on account of the first shot. He therefore called upon Muhammad Banaraa to fire another shot at him to kill him. It was on Muhammad Munir pointing out that Abdul Latif was still alive that Muhammad Banaras fired another shot which hit Abdul Latif on his head making it certain that he was dead. Muhammad Munir had also received Rs. 6,503 from Muhammad Banaras out of Rs. 25,000 robbed from Abdul Latif. In the chronological and ultimate analysis of the case Muhammad Munir was in no less measure responsible for the gruesome murder of Abdul Latif than Muhammad Banaras. The bold and the blatant manner in which the appellants had committed the heinous crime of murder and deprived an innocent person of his life leaves no scope for any compunction being shown to any one of them. In the circumstances of this case it does not make the slightest difference that Muhammad Munir bad not fired a shot at Abdul Latif bringing about his death. We, therefore see no extenuating circumstances in mitigation of the sentence of death passed on the appellants. We accordingly confirm the sentence of death passed on them.

20. We shall be failing in our duty if we do not point out that granting of pardon to Muhammad Azam approver was absolutely uncalled for. The evidence against him was as, much as against Muhammad Munir. There is not the slightest distinction between the evidence against Muhammad Munir and Muhammad Azam. The evidence as we have discussed above was so over whelming and connected the links so compactly that there was no scope for any view conceivably being taken that the case of the prosecution would not succeed if one of the culprits was not made an approver. Muhammad Azam appears to us to have been granted pardon in this case for reasons other than the reason of the success of the case. Somebody who was concerned in being instru mental in getting him pardon under section 337, Cr. P. C. intended only to save his life. By granting pardon to Muhammad Azam the principle underlying under section 337, Cr. P. C., for which pardon is granted has been totally defeated in this case. Sections 337 to 339, Cr. P. C. clearly envisage and contain a principle settled over ages that pardon shall be granted only in cases where without the pardon being granted the case of the prosecution would fail. These sections also envisage that pardon shall be granted to a person against whom the case of the prosecution is already weak. 1n this particular case, however, the case of the prosecution against Muhammad Azam appears to us to be proved and evidence on record against him leaves no scope for his acquittal, The case of the prosecution was so well investigated that even the smallest link connecting all the three culprits with the offence has not been left out. All the avenues had been thoroughly investigated and small bits were so well linked that even a layman on going through the record of the case would have reached the conclusion that all of them were guilty. Even the circumstances appearing on the record indicate that the motive for granting pardon was not for the purpose of teeing that the case of the prosecution succeeded against the remaining two accused but was to sage the life of Muhammad Azam at the alter of injustice being done to the deceased. The principle of law has never been to circumvent law to favour persons as in this case. The circumstances appearing on the; record are that Muhammad Azam was arrested on the 23rd of No, ember 1963. He had made judicial confession on the 4th of December 1963. He along with Muhammad Munir, either at the instigation of Muhammad Banaras or at the suggestion of persons in the jail, made applications on 2nd January 1964 stating that they were innocent and that they had given confessions under coercion, Nothing happened till the 26th August 1964 when the case was in full progress. It is on the 26th of August 1964 that an order was passed by the District Magistrate, Thatta, granting pardon to Muhammad Azam. The order of pardon, as will appear from the dates given, was passed about nine months after his arrest. Not only that but the evidence of Pir Bux, Police Inspector, shows that he was at no time consulted before pardon was granted to Muhammad Azam. There is no material on the record to indicate how this pardon was granted. There is absolutely no material to warrant such a pardon being granted. The letters exchanged between Muhammad Azam and his father have been brought on record are Exhs. 132-C and 132-E. These letters give a clue as to how this pardon was granted. They indicate that the father of Muhammad Azam was manipulating with some Police Officers to get pardon for Muhammad Azam.. Whatever has happened pardon has unfortunately been given to Muhammad Azam and we cannot help it at this stage. We shall however, want a copy of this judgment to be sent to the Inspector- General of Police to look into the matter and see if the persons responsible for the Luis-carriage of justice in this case can be dealt with. Appeals dismissed