SHAH ZAMAN BABAR, J.-Sattar Khan, aged 18 years son of Mirbaz, case Pashtoon, and Habibullah, aged 17 years, son of, Shukre Alain, case Jat, both residents of Mangala, District Bannu, stood trial under section 302/34, P. P. C. And under section 13 of the Arms Ordinance for the murder of Bhangi Khan, aged about 22 years, son of Khan Bahadur of the same village, which occurred on 24-3-1968 after rotiwela. The trial was held by the Sessions Judge, Derajat, who by his judg--ment dated 24- 6-1969, convicted both the accused under section 302 read with section 34, P. P. C. And sentenced each of them to suffer death subject to the confirmation of the High Court. Both the accused were acquitted of the charge under section 13 of the Arms Ordinance.
2. The two condemned-convicts have appealed. Proceedings for the confirmation of the death sentences are also before us. This judgment will dispose of the appeal and the murder reference.
3. Mir Zalam (P. W. 3) and A.I Khan (P. W. 4) are real brothers. Bhangi Khan deceased, son of Khan Bahadur and Sattar Khan appellant, son of Mirbaz are both nephews of the two P. Ws. Habibullah appellant is stated to be a friend of Sattar Khan appellant. All of them are residents of village Mangala.
4. It is alleged that about 8 or 10 days prior to the occurrence, Bhangi Khan deceased had beaten Habibullah appel--lant because Habibullah used to stand in the street through which the womenfolk of the deceased's family passed by going to bring water from a well.
5. On 24-3-1968 at rotewela (morning meal time at about 9 a.m.) P. Ws. Mir Zalam and A.I Khan were weaving a cot under a Dhaki tree outside the village. The two witnesses saw the two appellants coming from the direction of the Chauk of the village and sat at about 40 double paces from the witnesses on the path to Dadiwala. In the meanwhile Bhangi Khan deceased came from the direction of the fields. When Bhangi Khan reached near the two appellants, Sattar appellant allegedly caught hold of Bhangi Khan and Habibullah accused allegedly started giving him blows with a dagger. The two witnesses rushed towards them but before they could reach there, the two appellants fled away. On reaching the spot the two witnesses found Bhangi Khan lying injured on the ground. The two witnesses raised an alarm which attracted Rustam Khan (P. W. 5), Muhammad Ayub (P. W. 6), Nasrullah Jan (P. W. 7) and Gulo Khan (abandoned). These witnesses had made inquiries from Bhangi Khan, who was then in full senses. Bhangi Khan informed them that he was caught hold of by Sattar Khan appellant and stabbed by Habibullah appellant with a dagger. Mir Zalam went to arrange for a cot while Rustam Khan fetched a paper and pen from his house.
Rustam Khan recorded the dying declaration (Exh. P. E) of Bhangi Khan, signed the same and obtained the thumb-impression of Bhangi Khan, in token of its correctness. This dying declaration was also signed by P. W. Muhammad Ayub and thumb-impressed by P, W. Nasrullah Jan. Bhangi Khan injured was then taken on a cot to the Civil Hospital, Naurang while Mir Zaiam P. W. Went to P.
S. Dadiwala, where he lodged the F. t. R. Exh. P. A. This report was scribed by Nasrullah Khan, then M.
H. C. Of the Police Station (P: W. 13) on the same day viz. 24-3-68 at 12 noon. A case under sec-- petition 307/34, P. P. C. Was registered. The head constable rang Police Station Naurang to depute an official to prepare the injury sheet of Bhangi Khan injured at the Civil Hospital, Naurang. The M. H.
C. Deputed Azam Khan D. F. C. (P. W. 14) to commence the investigation as no senior officer was present in the police station. Fazlur Rehman A. S. 1. (P. W. 11) received telephonic message from P. W.
Nasrullah Khan, M. H. C. At Naurang. Bhangi Khan was brought to the Civil Hospital at about 2 p. m.
But he had expired on the way. Accordingly Fazlur Rehman A. S. I. Prepared the injury sheet and inquest report of Bhangi Khan and sent the dead body for post-mortem examination to the mortuary. P. W. Muhammad Azam D. F. C. Reached the spot with Mir Zalam P. W. At about 13-30 hours the same day. P. W. Muhammad Ayub Khan produced the dying declaration Exh. P. E. Before Muhammad Azam Khan, D. F. C. Muhammad Azam asked Muhammad Ayub to keep the dying declaration Exh. P. E. With him. After inspection of the spot Muhammad Azam took into possession the dying declaration Exh. P. E. From Muhammad Ayub vide memo. Exh. P. G. In the presence of Nasrullah Jan (P. W. 7). Muhammad Azam D. F. C. Prepared the site plan Exh. P. S. Zarman A.I Khan, S.
1. (P. W. 8) took up the investigation from Muhammad Azam D. F. C. In the morning on 25-3-68. The two appellants appeared at P. S. Dadiwala on 7-4-68 where Nasrullah Khan, then M. H. C. Arrested them. The S. H. O. Was then on leave. Nasrullah Khan, M. H. C. Obtained remand of the two accused to police custody on 8-4-68 till 12-4-68. Both the appellants were kept in Police Station Dadiwala in police custody from 8-4-68 till 12-4-68. On 12-4-68 the D. S. P. Lakki came to village Managal. P. W.
Zarwall Khan, S. I., temporarily deputed as S. H. O. Dadiwala, took the two accused from the Police Station to village Managal and produced them before the L, S. P. On the same day viz. 12-4-68 the two appellants while in custody led the police to a field about three furlongs away from the village from where the blood-stained dagger Exh. P. 1 was recovered at the instance of the two appellants vide memo. Exh. P. B. This recovery was also witnessed by Muhammad Ayub (P. W. 6). On 13-4-68 both the appellants were produced before Muhammad Zaman Khan, then S. D. M., Lakki (P. W. 2).
The S. D. M. Recorded the confessional statement Exh. P. X. Of Sattar Khan appellant and the con-- fessional statement Exh. P. Z. Of Habibullah appellant. The confessional statement Exh. P. X. Of Sattar Khan is as under: --- "On the day of occurrence I and Habibullah were returning from Dadiwala to our village Mangala.
We sat in the fields outside of our village. In the meanwhile our tarboor Bhangi Khan turned up. I asked him as to why he had stopped cutting grass. He abused me and asked me not to talk with him. On this we grappled with each other. Habibullah co-accused who is my friend took out a dagger from his badda and stabbed the deceased who fell down on me. Again said that during the grappling I fell down and deceased was on me when Habibullah gave him dagger blows. We left the deceased in an injured condition and ran towards village Masti Khani where one Gul Marjan brought water for our drinking. On our way Habibullah threw down the blood-stained dagger in the field. In the house of Gul Marjan accused Habibullah exchanged his blood-stained shirt which was given to wife of A.I Jan for washing. On the same day we proceeded to village Banjakh and put up with one Mohabbat for meal and rest. In the evening we left for Dorah Khel Karuna along with son of Mohabbat and one Faizullah. We spent four days there. We returned to Masti Khani village and spent a night there. Thereafter we proceeded to village Nagri Wala where we spent 8 days. One Isab Jan came from Masti Khani and we were taken back to Masti Khani. From village Masti Khani we went to village Landi Jallandar and there from came to police station."
6. The confessional statement Exh. P. Z. Of Habibullah appellant runs as under :- "On the day of occurrence I and Sattar were sitting in our field in our village Mangala when deceased Bhangi Khan gave up cutting grass and came to us. Sattar enquired from him as to why he left grass cutting. On this deceased in a harsh mood replied him not to talk with him. On this Sattar and deceased grappled with each other. As Sattar was my friend and to save him I took out a dagger and started giving the deceased blows who fell down and died there. We ran towards village Masti Khani wherefrom we proceeded to Banjakh and Dorab Khel Koroona. There from we went to Nagri Wala and wherefrom returned to village Idal Khel after 14 days. From Idal Khel we both returned to our village Mangala wherefrom Muhammad Ayub Member B. D. Accompanied us to Police Station Dadiwala. I and Sattar co-accused are responsible for the murder of Bhangi Khan deceased."
7. The Serologist in his report Exh. P. R/1 found the scrapings from the dagger (Exh. P. 1) to be stained with human blood, but the material for blood grouping was found in-sufficient.
8. Dr. Abdul Qadir (P. W. 1) conducted post-mortem examination on the dead body of Bhangi Khan, aged 22 years, on 24-3-68 at 2-30 p. m., and found the following injuries on external examination :-
(1) An incised wound on the back of the chest 1" x 1--" on the right side of the spine, about 1/2" x 1f in size.
(2) An incised wound, about 2" x 2--", in front of the wound No. 1 about 1" x 1" x 1" in size.
(3) An incised wound on the right side of the chest in the mid axillary line, about 1--" x 1" x 1" in size.
(4) An incised wound on the right side of the chest below and in front of injury No. 3 above about 1- -" x 1" x 1" in size. Corresponding out on the blood-stained shirt was present.
On internal examination the pleura was cut on the right side of the chest at two places and so was the right lung injured, at two places. The chest cavity was full of blood. The liver was found punctured at two places with injury at two places to the right diaphragm. T be abdominal cavity contained about a pint of blood. Stomach contained semi-digested food. The injuries were caused with a sharp-edged weapon. Death was due to injuries to the liver, right lung and diaphragm, shock and haemorrhage.
On a query by the police the doctor opined that it was possible for Bhangi Khan deceased to give a statement within half to one hour after the receipt of the injuries. The doctor also opined that the injuries caused to the deceased did not produce immediate shock, but the shock set in about half to one hour after the receipt of the injuries.
9. The same doctor examined Sattar appellant on 20-8-68 for his age. From his general appearance Sattar looked to be about 17/18 years. On the same day the same doctor examined Habibullah appellant for age. From general appearance of Habibullah he looked to be 16-17 years of age.
10. At the trial Sattar appellant denied the charge of murder. He denied to have, led the police to the recovery of the dagger Exh. P. 1 and disclaimed the same. He also denied to have absconded after the occurrence. He stated that P. Ws. Rustam Khan, Muhammad Ayub and Nasrullah Jan gave evidence against him with regard to the oral and written dying declaration because his father had abused Sada Khan, a cousin of Muhammad Ayub P. W., as a result of which they (the appellants) were ejected from Muhammad Ayub's land, and that this was the cause of their strained relations.
He retracted the confession Exh. P. X. And stated that the S. D. M. Had recorded the confession of his own and obtained his thumb-impression without the knowledge as to on what document it was being obtained from him. He pleaded innocence and false charge and added that he was tortured by the police while in police custody. He declined to produce evidence in defence.
11. Habibullah appellant at the trial also denied the charge of murder against him. He also denied the recovery of the dagger Exh. P. 1 at his instance and disclaimed the same. He denied to have absconded after the occurrence. He gave the same reason as that of Sattar appellant for P. Ws.
Rustam Khan, Muhammad Ayub and Nasrullah Jan having given evidence of oral and written dying declaration against him. As regards the confessional statement Exh. P. Z. He stated that the S. D. M.
Recorded the confession of his own and obtained his signature which he put without knowing on what documents it was being obtained from him. He also pleaded innocence and false charge, and added that he was tortured by the police while in police custody. He also declined to produce evidence in defence.
12. The prosecution relies on the ocular evidence of P. Ws. Mir Zalam and A.I Khan, both uncles of Bhangi Khan deceased and Sattar Khan appellant, and on the oral and written dying declaration Exh. P. E. Made before P. Ws. Rustam Khan, Muhammad Ayub and Nasrullah Jan, and recorded by P.
W. Rustam Khan. The prosecution also relies on the confessional statement Exh. P. X. Of Sattar appellant and the confessional statement Exh. P. Z. Of Habibullah appellant.
13. The dying declaration Exh. P. E. Of Bhangi Khan is rendered into English as under :- "I was coming on the path from Dadiwala. Sattar Khan son of Mirbaz Khan and Habibullah, son of Shakar Alam, residents of Mangala, were sitting on the path. Sattar Khan caught hold of me and Habibullah inflicted injuries on me with chhuri and fell me down on the ground. I charge both."
This dying declaration is scribed by Rustam Khan (P. W. 5), who signed the same. It purports to be thumb-impressed by Bhangi Khan deponent and Nasrullah Jan (P. W. 7), marginal witness.
Muhammad Ayub (P. W. 6) also signed the same as marginal witness. A note of the scribe to the effect that the deponent was in perfect senses while his statement was recorded, is also written on Exh. P. E. Exh. P. E. Bears the date 24.3-68 on its margin, but the time when it was recorded has not been given. In this dying declaration the dependent has stated that he was coming from Dadiwala on the path. P. W. Mir Zalam has stated in the F. I. R. That the deceased was returning from a field where he had gone after a call of nature. In this dying declaration the names of the ocular witnesses, namely, Mir Zalam and A.I Khan, are conspicuously not mentioned. In the F. I. R. P. W. Mir Zalam has not mentioned the oral dying declaration of Bhangi Khan made before P. Ws. Rustam Khan, Muhammad Ayub and Nasrullah Jan, and nor it is mentioned that P. W. Rustam Khan, Muhammad Ayub and Nasrullah Jan were attracted to the spot on hearing alarm or that Bhangi Khan's dying declaration Exh. P. E. Was recorded by Rustant Khan in the presence of Muhammad Ayub and Nasrullah Jan. P. W. 14 Muhammad Azam Khan, D. F. C. Stated in cross-examination that Mir Zalam P. W. Accompanied him from the P. S, to the spot after lodging the report. But he did not mention anything about the dying declaration to him (Muhammad Azam) on the way. It is the prosecution case that the dying declaration was recorded on the spot before Mir Zalam W. Left for the Police Station for lodging a report, that this dying declaration Exh. P, E, was handed over to Mir Zalam but Mir Zalam then entrusted it to P. W. Muhammad Ayub. It is also in the evidence of P. W.
Muhammad A7am, D. F. C. That Exh. P. E. Was produced to him by P. W. Muhammad Ayub at the spot after he completed the inspection of the spot and the preparation of the site plan Exh. P. S. From these circum--stances it can be reasonably inferred that the dying declaration Exh. P. E. Is not free from suspicion and its genuineness and A truthfulness are open to grave doubts. Such a dying declaration, therefore, is not by itself a satisfactory basis for conviction of the two appellants.
14. The two ocular witnesses, namely, Mir Zalam and A.I Khan, are uncles of Bhangi Khan deceased.
Both these witnesses claimed to have witnessed the occurrence while weaving a cot under Dhaki tree outside the village from a distance of about 60 paces. The cot which was allegedly woven partly by the time of the occurrence has not been produced before the police in support of the version of the P. Ws. As already stated, the names of P. Ws. Mir Zalam and A.I Khan do not find mention in the dying declaration Exh. P. E. Although this dying declaration was allegedly recorded in the presence of both these witnesses. P. W. 11 Fazlur Rehman A. S. I, who recorded the injury sheet and inquest report of the deceased at Civil Hospital, Naurang in the presence of P. W. A.I Khan, stated in cross-examination that he (A. S. L) recorded the first statement (Exh D. A.) of A.I Khan with regard to the iden--tification of the dead body of the deceased and that A.I Khan did not make any other statement with regard to the actual occurrence, nor did the A. S. 1. Ask him. It appears incredible that the two young appellants had the courage to have picked up a fight with the deceased in the presence of the two uncles of the deceased at a short distance.
The testimony of the two ocular witnesses intrinsically does not ring true. The houses of Mir Sahib Khan and Tajak are situated close to the scene of occurrence. Both of them have not come forward to support the prosecution case. The proba--bilities that the two ocular witnesses were not present near about the scene of occurrence and had not seen the commission of the murder of the deceased by the two appellant, cannot, in the circumstances of the case, be excluded. It will not, there--fore, be safe administration of justice to rely upon the ocular testimony of the two closely related P. Ws.
15. We are now left with the two confessions of the appellants. The term "confession" is not defined in the Evidence Act. The Courts, however, have regarded a confession to be an admission of an accused person of his crime or a statement which would suggest an inference to his guilt. But the person who makes an exculpatory statement or who takes care at every stage to show that he did not take any parr in the crime, cannot be said to have made the confession. The so-called confessional statement Exh. P. X. Of Sattar appellant is not exculpatory but an exculpatory statement of his. In Exh. P. X. Sattar appellant has not admitted the guilt of stabbing the deceased.
He only stated therein that Bhangi Khan turned up, asked him as to why he had stopped grass cutting, he (Bhangi Khan) abused him and asked him not to talk with him (Bhangi Khan), and that on this they grappled with each other. In our view, the state--ment Exh. P. X. Of Sattar appellant does not amount to a confession. In his statement at the trial Sattar appellant has denied to have made this confession. No motive has been attributed to Sattar appellant for the commission of the offence. In the F. I. R. It is stated that Bhangi Khan had gone to the field for the call of nature and was returning from there when Sattar appellant caught hold of him and Habibullah appellant stabbed him with a dagger. In the dying declaration Bhangi Khan allegedly stated that he was coming on the path from Dadiwala, where the two appellants had waylaid him. Questions put to Mir Zalam P. W. In cross-examination though answered in the negative, suggest that Bhangi Khan deceased was in love with Habibullah appellant, that the deceased saw Habibullah appellant sitting with Sattar appellant at the scene of occurrence and a fight ensued between the three.
From these circumstances it can reasonably be inferred that the occurrence took place upon a sudden fight and. Without premiditation. In a sudden fight the question of common intention of participation in the crime does not arise. Sattar appellant is ascribed the role of catching hold) of the deceased from his shitt in the front. P. W. Mir Zalam stated in cross-examination that the deceased was stabbed while he was standing, that Sattar appellant was holding him from the collar, when Habibullah stabbed him. As is evident from the cross-examination of P. W. A.I Khan, he stated before the com--mitting Magistrate that the deceased was thrown on the ground by Sattar and was given dagger blows by Habibullah appellant. Thus the allegation that Sattar appellant caught hold of the deceased before he was stabbed by Habibullah appellant has not been satisfactorily proved. The participation of Sattar appellant with common intention in the crime of murder appears to be doubtful.
16. In his confessional statement Exh. P. Z. Habibullah appellant has admitted to have stabbed Bhangi Khan deceased with his dagger. This confession has been recorded by P. W. Muhammad Zaman Khan, then S. D. M, Lakki. Habibullah appellant has pleaded at the trial that he A as tortured by the police while he was in police custody. However, from the evidence of P. W. Muhammad Zaman Khan, S. D. M. Nasrullsh Khan, then M. H. C. And Zarwali Khan, S. L, or other material on record, it does not appear that the confessional statement made by Habibullah appellant has been caused by inducement, threat or promise proceeding from any person in authority.
We find this confessional statement to be true and voluntary. Habibullah appellant has retracted from this confession at the trial In law, a retracted judicial confession, if found to be true and voluntary, can legally be taken into consideration, against the maker of the confession and the same can validly form the sole basis of conviction against the maker-- See The State v. Minhuns (PLD 1964 SC 813). The superior Courts of Pakistan, however, have laid down that the rule of prudence demands that a retracted confession requires corroboration when it is made the sole basis of the conviction. The occurrence took place on the 24th of March 1968. Habibullah appellant surrendered to police on 7-4-68. On 12-4-68 Habibullah appellant while in police custody led S. I. Zarwali Khan to a wheat field about 3 furlongs distance from the village where the blood-- stained dagger Exh. P.
1 was recovered. The Chemical Examiner found the dagger stained with blood while the Serologist found the scrapings from the daggar to be stained with human blood, though the material for blood grouping was found insufficient. The recovery of the blood-stained dagger at the instance of l Habibullah appellant can validly form corroboration of his, retracted confession. Reliance is placed on Abdul Khaliq v. The State (PLD 1970-5 C 166) and Ghulam Rasul v. A.I Akthar and others (PLD 1965 SC 363). The conviction of Habibullah appellant under section 302, P. P. C. For the murder of Bhangi Khan deceased, therefore, merits no interference.
17. As regards the death sentence of Habibullah appellant, we find no mitigating circumstances in his favour. Habibullah appellant was aged about 16/17 years at the time of the occurrence. Mere youth is not sufficient reason for not inflicting normal penalty of death on him-See Sheikh Hassan v.
Bashir Ahmad and others (PLD 1966 Pesh. 97). This appellant has inflicted as many as four incised wounds on the deceased. He has acted in a brutal manner. We find no cogent reasons to interfere with the death sentence of Habibullah appellant.
18. In conclusion, while giving the benefit of doubt to Sattar appellant, we accept his appeal, set aside his conviction and sentence and acquit him. His death sentence is not con--firmed. The appeal of Habibullah is dismissed and his death sentence is confirmed.
S. Q.