1968 P Cr (PLP)

Date of hearing: 14th February 1968. S. A. RAHMAN, J. -The appellant, Javed alias Babar, was tried for murder and sentenced to death, by the learned Sessions Judge, Karachi. On appeal and reference the High Court of West Pakistan. Karachi Bench, upheld the conviction and confirmed the sentence of death. On a petition, submitted from tail, by the convict, special leave to appeal was granted to review the whole evidence in the case. According to the prosecution story, the appellant used to work as a servant for Hakim Khan, deceased, both being Pathans in his Syrup cabin, in Dastgir Colony, Karachi. On the 19th May 1965, the appellant brought a boy, named Taj Muhammad (P. W. 2) with him, for the ostensible purpose of assisting him in his work in the cabin. He was, however, actually subjecting him to carnal intercourse against the order of nature.' The deceased, it appears, took a fancy to the boy himself and took him away to his but on that night as well as the succeeding night and subjected him to his lust. This was apparently, resented by the appellant who, on the following day, that is, on the 21st May 1965, took away the boy with himself and left the service of the deceased. Hakim Khan came across the boy, on the 2nd afternoon in a garden near the Empress Market, in Sadar and having offered him more lucrative terms of employment, he succeeded in luring him away and brought him to his hut, near the hotel which he had leased out to Ali Afsar (P. W. 1). The deceased and the boy took their evening meals in the hotel and after that, the deceased became busy in a game of cards with Sher Ali, Sher Muhammad and Sher Ahmad, while the boy kept sitting there. After the cards game, the deceased took the boy to his hut, where he committed sodomy with him. The deceased then retired to his bed, while Taj Muhammad went to the Syrup Cabin and slept there. On the night of the 23rd May 1965, between 1-30 and 2-00 a.m., Ali Afsar ~P. W. 1), was awakened from sleep, on hearing cries. He went to the direction of the deceased's but and found Hakim Khan lying in a pool of blood just near the door of his hut. His body was partly inside and partly outside the hut. Ali Afsar awoke Sher Ali (P. W. 3) and brought him to the place where the deceased lay. By that time he had expired. The two men then went to the Liaquat Abad Police Station, which was about two miles away and the First Information Report was recorded on the dictation of Ali Afsar (P. W. 1), at 3-30 a.m., the same day. In that report suspicion was cast against the appellant as the murderer. From near the dead body were picked up a blood-stained Gaintee and a pair of zari Chappals. The Chappals were later identified to have been worn by the appellant. The medical evidence showed that the deceased met his death by blows with the Gaintee. The appellant was captured in the following circumstances. He had gone to Hyderabad and taken up service as Chowkidar at the Airport. He used to cook meals for Muhammad Munawar Khan (P. W. 11) and Abdul Hamid (P. W. 12), who were building supervisor and foreman, respectively, at the Airport. These two witnesses noticed the disconsolate demeanour of the appellant and questioned him as to its cause. He is said to have confessed that he had murdered Hakim Khan, Pathan, with a Gaintee, in Karachi, near his hotel and as he had left his zari Chappals at the spot, he apprehended that he might be arrested. This information was conveyed by telephone to the Police Sub. Inspector at Karachi, by Muhammad Munawar Khan and as a result, the local Hyderabad Police were directed, by a message from the Karachi Police, to arrest the accused. This was done and later, after completion of the investigation, the appellant was brought to trial. The motive for the offence was amply established on the record, by the statements of All Afsar (P. W. 1), Taj Muhammad (P. V. 2) (who had become the bone of contention between the deceased and the appellant) and Behram Khan (P. W. 5). These witnesses also deposed that the Chappals, found near the dead body, did not belong to the deceased but they had seen these or similar Chappals being worn by the appellant. They also stated that besides the dissention, caused over the boy, there was a quarrel between the deceased and the appellant over a money demand. None of these witnesses was shown to have been actuated by malice against the appellant or to be interested, in any way, in the prosecution. As regards the extra judicial confession, made at Hyderabad, by the appellant, to Muhammad Munawar Khan and Abdul Hameed, again, there is not the slightest reason for thinking that these witnesses were perjuring themselves in the case. They did not know either the deceased or the accused previously and it was by chance that they learnt of the occurrence from the appellant's own lips, when they happened to question him about his woe-begone air. The learned counsel for the appellant, Mr. Murtaza Hussain, was unable to suggest any reason for discrediting the testimony of these witnesses. The evidence of the motive, the fact that the appellant had disappeared from near the hotel, on the evening prior to the occurrence, his extra judicial confession at Hyderabad and the finding of the Gaintee and his Chappals near the dead body, which had been mentioned in the extra-judicial confession, were circumstances which brought the offence of murder home to the appellant. His plea that he did not know anything about the murder, in the trial Court, was not enough to displace the weight of the evidence against him. We have no doubt, therefore, that the conviction of the appellant, for the murder of Hakim Khan, was not open to exception. The learned counsel, however, has strenuously argued before us, that this was not a fit care for the capital sentence. The deceased had, undoubtedly, given provocation, by taking away his boy-friend from him, on offering him better financial terms. There also appears to have been a quarrel, over a money demand by the appellant from the deceased. In these circumstances, we consider, that there will be justification for leniency in the matter of sentence. While, therefore, upholding the conviction, we reduce his sentence to that of transportation for life. appeal partly accepted.