1. MUHAMMAD HALEEM, J.-This appeal, by special leave, arises from the judgment of the Lahore High Court dated 22nd of June, 1976, by which Criminal Appeals Nos. 835 and 837 of 1975 were dismissed and so also the Criminal Revision No. 952 of 1975, seeking enhancement of sentence awarded to Allah Ditta.
2. Zulfiqar and the present appellants filed Petitions for Special Leave to Appeal Nos. 339 and 340 of 1976 respectively; and whereas leave in the case of Zulfiqar was refused, it, was granted qua the appellants to consider the nature of the offence committed by them in the facts and circumstances of the case.
3. According to the prosecution, deceased Haris, the minor son of Hafeezullah Ishaq, the then Deputy Commissioner of Multan was killed at 9-30 p.m. On 30th of December, 1974, in the under construction bungalow of Ahmad Nawaz Gurdezi, situate in the vicinity of the Deputy Commis-- sioner's house. The deceased, after taking his night meal, went along with Ashiq Hussain, the son of Baildar Muhammad Amin, employed in the Deputy Commissioner's house at 8-30 p.m. And when they came near the outer gate of the bungalow, the deceased lighted his torch and peeped into the bungalow through an aperture in the gate which created some noise at which juncture Zulfiqar, the servant of Ahmad Nawaz Gardezi and the appellants who ware employed as labourers, came there; and after opening the gate, dragged them inside the house and closed the gate. Zulfiqar, at that time was carrying a Danda while the appellants were empty-handed. The deceased and Ashiq Hussain, thereupon, out of fright, cried. Nonetheless Zulfiqar gave two Danda blows; one on the fight thigh of the deceased and the other on the left shoulder of Ashiq Hussain while the appellants showered 1st blows. They then dragged the two boys towards the garage of the bungalow upon which they cried aloud which attracted Abdul Latif, Ahmad Din and Muhammad Amin; and as they came to the spot, after scaling the wall, they saw Zulfiqar inflicting two Danda blows; one on the head of the deceased and the other on the head of Ashiq Hussain and, thereafter, within their view, Khan Muhammad picked up a wooden Phatti, lying in front of the garage with which he caused two blows on the head of the deceased and further gave one or two blows to Ashiq Hussain. Allah Ditta was also seen giving f1st blows to them. The deceased staggered and struck his head against the thigh of Ashiq Hussain who was then, with the help of the P. Ws. Made to sit on a chair. Zulfiqar, thereupon, took out his pistol and, threatened to kill them if they dared to apprehend him. The deceased and Ashiq Hussain- were then removed from there and taken to the Deputy Commissioner's house from where they were despatched to the hospital in a car for treatment.
4. The deceased suffered two injuries on the head with a blunt weapon and one contusion on the right thigh. He was then semi-conscious and restless. Ashiq Hussain had one injury on the head and an abrasion on the right fore-arm and a contusion on the left thigh which were all simple in nature. The deceased succumbed to his injuries on 4th of January, 1975; and, according to the Medical Officer, both the injuries on the had proved fatal. The statement of Abdul Latif was recorded in the hospital at 10 p.m. The same day which was treated as F. I. R. In the case.
5. The appellants and Zulfiqar were arrested from the house of Ahmad Nawaz Gardezi situate in Mohallah Shah Gardezi, Multan, during the night. Both Zulfiqar and Khan Muhammad led to the recovery of a blood-stained Danda and a Phatti on 31st of December, 1974. The blood--stained earth and the chair were also taken into possession. The other articles taken into possession were a torch, one pair of Howai Chappals of the deceased and an electric bulb hanging on a stick at the spot.
6. On 28th of January, 1975, a request was made to the Ass1stant Commis--sioner, Multan, by the Investigating Officer to record the confessions of the appellants and Zulfiqar. The Ass1stant Commissioner, however, on 29th of January, 1975, directed that their statements be recorded by a Magistrate of some other District. Thereafter, they were taken to Dera Gbazi Khan on 30th of January, 1975, and a request was made to the District Magistrate, Dera Ghazi Khan to record their statements but he directed the City Magistrate, to do the needful who remanded the appellants and Zulfiqar to jail with the direction that they should be produced on 1st of February, 1975, for this purpose. The appellants and Zulfiqar were, accordingly, produced before him on 1st of February, 1975, and their statements were recorded.
7. At the trial the appellants denied their involvement in the crime as they stated that they were not employed as labourers at the site of the construction but as servants of Ahmad Nawaz Gardezi in his house situate inside the Bobar Gate, Multan. Zulfiqar, however, admitted that he was employed as Chowkider; and that the appellants worked there aslabourers.
8. The trial Court believed the ocular testimony of Ashiq Hussain, P. W. 10 and Abdul Latif, P. W.
11. It further relied on the recovery of the blood-stained Danda and Phatti at the behest of Zulfiqar and Khan Muhammad; and as for the confessions of Zulfiqar and Khan Muhammad, the trial Court held that they were true and voluntary; and not only did they inculpate them but also Allah Ditta, whose confession was exculpatory. Accordingly, they were convicted under sections 364, 302 and 323 read with section 34, P. P. C. On the first count they were sentenced to suffer R. -I. For 7 years and on the second count Zulfiqur and Khan Muhammad were each sentenced to death while Allah Ditta was awarded imprisonment for life. They were further directed to pay a fine of Rs. 1,000 each or in default to suffer R I. For one year. On the third count they were sentenced to three months' R. I.
9. On appeal and reference, the High Court agreed with the assessment of the ocular evidence and itself placed reliance on it; and as for the recoveries of the incriminating articles, and those belonging to the deceased and the electric bulb, seized from the spot, the High Court held that they supported the ocular testimony. Lastly, the High Court did not place reliance on the confessions of Zulfiqar and Khan Muhammad as "they were recorded after a long delay". In the result, it confirmed the death sentences awarded to Zulfiqar and Khan Muhammad and the conviction of Allah Ditta on this count; but rejected the revision petition filed to seek the enhancement of his sentence. The convictions on other counts were also upheld.
10. As regards the participation of the appellants in the crime, it can hardly be doubted but as to what extent they had participated, is a question for consideration. It was the consistent prosecution case that Zulfiqar was armed with a Danda with which he caused blows on the head of the deceased; and as the Medical Officer had stated that both the injuries on the head had caused extensive damage resulting in the fracture of bones and profused haemorrhage, therefore, these injuries could only be consistent with the weapon used by Zulfiqar whose case was, therefore, distinguishable and leave was refused to him. However, as regards the appellants, there seems to be inconsistency in the prosecution evidence so far as the role attributed to Khan Muhammad.
11. While in the F. I. R., it was disclosed that, both the appellants were empty-handed and had caused fist blows to the deceased and Ashiq Hussain, but at the trial Abdul Latif stated that Khan Muhammad picked up a wooden Phatti and caused blows with it not only on the head of the deceased but also to Ashiq Hussain at the same locale. This part of the incident was witnessed by Abdul Latif an it was he who had attributed fist blows to these appellants in the F. I. R. Nontheless he chose to assign a different role to Khan Muhammad an on being questioned in regard to this omission in the F. I. R., he stated that he did mention that Khan Muhammad was armed with a Phatti and caused blows with it. However, he failed to give an explanation for this obvious inconsistency.
12. Similarly, Ashiq Hussain, whose statement was recorded much later, had also imputed this role to Khan Muhammad. This obviously is a deviation from the prosecution case as asserted on the night of the incident. Be that as it may, the injuries sustained by the deceased on the head were only two in number although many more were attributed; and none of them could have been caused by a wooden Phatti. Similarly, on Ashiq Hussain, more than one blow was attributed to have been caused on his head not only by Zulfiqar but also by Khan Muhammad; but only one such injury was noticed; and if it be accepted that the injury on the head of Ashiq Hussain was caused by this weapon then it was a simple injury. So far as Allah Ditta is concerned, he has been imputed the same role of causing fist blows. Therefore, it is difficult to accept that the would have shared the common intention with Zulfiqar to kill the deceased when none, of then had caused to him any fatal blow; and it was Zulfiqa alone who was responsible for causing them. Therefore, all that can be imputed to them was that they wanted to teach them a lesson which could not be rated any higher than that of causing simple injuries.
13. However, as regards their convictions on the other two counts, we have no reason to differ from the conclusion of the Courts below in regard to the assessment of the evidence which led them to hold so.
14. We have noticed that the confessions of the appellants were recorded after a delay of about a month which is highly suspicious and leads u to conclude that they were extracted in an unfair manner. If the appellant were ready and willing to confess, then there was no reason to keep them in police custody for such a long time and ought it be said that it reflects on the bona fides of the investigation.
15. In the result, while maintaining their convictions under sections 364 and 323 read with section 34, P.
16. P. C., we would set aside their convictions and sentences under section 302 read with section 34, P.
17. P. C. As for the sentence under section 364 read with section 34, P. P. C., we would reduce it to that already undergone. The sentence under section 323 read with section 34, P. P. C. Is maintained.
18. They should be set at liberty forthwith if not required in any other case.