1. MUHAMMAD ZAHOORUL HAQ, J.--This is an .Appeal under section 410, Cr. P. C: against the judgment of II Additional Sessions Judge, Nawabshah dated 18th January, 1978, whereby the appellant was convicted under section 302, P. P. C. And sentenced to imprisonment for life and a fine of Rs. 100 (Rupees One Hundred) or in default to suffer further 3 months simple imprisonment.
2. The co-accused of the appellant namely Fakeer Muhammad, who was father of the appellant Muhammad Aslam was acquitted.
3. The relevant facts are disclosed in the F. I. R. Exh. 13, which was lodged on 8th June, 1975 at 00-30 hours at Mehrabpur Police Post by Taqqi Muhammad P. W. 3, who is maternal uncle of the deceased Mir Muhammad. The F. I. R. Is reproduced herein below:- "I am Zamindar'. I own lands in Dehs viz. Beresan, Paban Wanah and also in other -Dehs'. I have also got 57 acres of land in Deh Nakhe Rajpar and Jiando Rajpar, "in District Nawabshah. In thesi 'Dehs', my nephew i.e. Mir Muhammad has also got the lands, which is on `Khata' of his father, but Mir Muhammad Khan used to look after the same. We also own houses in Mehrabpur Town. I and my nephew Mir Muhammad oftenly used to reside in Mehrabpur Town. Today I and Mir Muhammad were sitting in our bungalow, where we decided to go to 'Dera' of Tapedars and that if the Tapedar of our best was available there, we will contact with him and pay the land assessments and settle the account. At about I1-45 p. m. I and Mir Muhammad set out from the bungalow, and were going along the street, leading to "Dera" of Tapedars. When, we reached in front of house of Abdul Aziz Machi, where is fixed a electric Pole and the bulb was lighting whereon and it was sufficient light.
4. Suddenly somebody called name of Mir Muhammad and added that today he should be murdered and be careful. We turned our faces backwards and saw that they were, namely Aslam son of Faqir Muhammad Malik and his father i.e. Fakir Muhammad. They both were coming while running. Aslam was armed with a "Churri" and Faqir Muhammad was empty-handed. On reaching close, Faqir Muhammad caught hold of Mir Muhammad and asked his son Aslam not to spare him.
5. Aslam within my sight, delivered a sharp---sided "Churri" blw to Mir Muhammad, which hit on his back. I was empty-handed. Faqir Muhammad fell Mir Muhammad down. I and Mir Muhammad raised cries, as "murder ! Murder !" On hearing our cries, namely Nazar Muhammad Mojai, Jhando Chandio and Policeman Muhammad Younis came there. Aslam, within my sight and the above, was giving 'Kati' blows to Mir Muhammad. I/we all apprehended Aslam alongwith his `Kati'. Faqir Muhammad also took out (illegible) from Mir Muhammad. Due to receipt of ---Kati' injuries, Mir Muhammad breathed his last, within our sight. Thereafter, we deputed Nazar Muhammad Mojai and others to keep guard over the dead body of Mir Muhammad, while I, Jhando Chandio and constable Muhammad Younis brought accused Aslam and his father Faqir Muhammad at the Police Station. Then Muhammad Younis snatched the blood-stained 'Kati' before us from accused Aslam with which he has committed murder of Mir Muhammad, and now we are producing the same. Accused Aslam and his father Faqir Muhammad, with their common intention, have committed the murder of Mir Muhammad. I lodged complaint, justice be done."
6. The F. I. R. Was recorded by P. W. 9 Bhambho Khan, since, the accused/appellant Aslam and Fakir Muhammad had been produced before him along with a 'Kati' dagger at the Police Station by Police Constable Muhammad Younis P. W. 4, therefore, he prepared the Mashirnama of their arrest Exh.
25. By the same exhibit, he also secured the undershirt and loin-clothes from the person of Aslam accused /appellant with blood stains on the same and the stained Shalwar from the person of accused Faqir Muhammad. The same was recorded in the presence of Mashir Muhammad Juman P. W. 7 and Yar Muhammad. The blood-stained 'Kati' snatched from the accused/appellant had been secured under Exh. 24 on 8June 1975 at 0-55 hours in the presence of the same Mashirs. Separate sealed parcels were made of the 'Kati' and the clothes of the two accused. He recorded the statements of Police Constable Muhammad Younis P. W. 4 and P. W. 5 Jhando, and thereafter, proceeded to the Wardat and he prepared Mashirnama of the same in the presence of the same Mashirs, which is Exh.
26. The Wardat is shown in front of house of Abdul Aziz Machi in the street leading from the bungalow of Muhammad Taqqi P. W. 3 and deceased Mir Muhammad to 'Dera' of Tapedars in Mehrabpur Town. The blood-stained earth was secured from the Wardat and sealed. The body of the deceased Mir Muhammad, which was lying at the Wardat was seen and inquest report Exh. 27 was made. The statement of P. W. 8 Nazar Muhammad was recorded. On 9June, 1975, the accused/appellant Aslam was produced before the Mukhtiarkar and First Class Magistrate Muhammad Suleman P. W. 2 for recording of judicial confession, which was recorded as Exh. 11 on the same day at 1-30 a. m. He got the statements of P. Ws. Recorded under section 164, Cr.
7. P. C. The blood-stained articles were sent to Chemical Examiner, whose report was produced in Court as Exh. 31, which showed that all the articles were found stained with human blood. He had also interrogated the accused, when he had arrested them. On 14June, 1975, he sent the Police Papers to S. H. O. Kandiyaro for further action.
8. The case of the prosecution rests upon the statements of four eye-witnesses P. W. 3 Taki Muhammad, P. W. 4 Muhammad Younis Police Constable, P. W. 5 Jhando and P. W. 8 Nazar Muhammad. Support is also sought from the judicial confession Exh. 11, which has been retracted, and the evidence of arrest of the accused at the spot and recovery of blood--stained 'Kati' from accused/appellant Aslam and blood-stained clothes recovered from the persons of the two accused, which have been found by the Chemical Examiner to be stained with human blood.
9. The Medical Officer P. W. 6 Jamilur Rehman's has been examined to show that deceased Mir Muhammad had received the following 4 incised injuries at the neck and back out of which injury No. 4 was found to be fatal and sufficient is ordinary course of nature to cause death:-th th th
(1) incised wound --" x --" x muscle deep on the back of neck.
(2) Incised wound 1" x --" x muscle deep on the back of left chest above left scapula.
(3) Incised wound 1" x --" x --" (muscle deep) going/into the muscle below left scapula on the left chest.
(4) Incised wound 1--" x --" x cavity deep on the back of left chest near the mid line at the level of 11th Thorex Vertebrae on the left transverse process of the 11 Thorasic Vartebrae which was also cut. The wound was going to the abdominal cavity, the clotted blood was coming out of the wound."
10. The Complainant P. W. 3 Taqqi Muhammad reiterated the contents of the F. I. R. Exh. 13 in its entirety and stated that he and his nephew Mir Muhammad were going at 10-45 p. m. To the Dera of Tapedar for the purpose of paying land revenue, when they heard a voice from back side warning Mir Muhammad (deceased) that he should stop and they would not leave him. This witness saw that Faqir Muhammad caught Mir Muhammad (deceased) by embracing him and appellant Aslam attacked Mir Muhammad (deceased) with a dagger and gave a blow on his back and they both raised cries of help, and thereupon, Nazar Muhammad P. W. 8 and P. W. 5 Jhando and one uniform constable came running. He further saw that accused /appellant Aslam gave three more blows upon Mir Muhammad (deceased). Nazar Muhammad P. W. 8 caught hold of appellant Aslam and Police Constable snatched the dagger from appellant Aslam, while P. W. 5 Jhando caught hold of Fakir Muhammad. Mir Muhammad (deceased) fell down on the ground and died. Other persons also came to the Wardat. They then took away appellant Aslam and Fakir Muhammad along with dagger to Police Post, Mahrabpur and he lodged his F. I. R. Exh. 13 and he showed the Wardat to the Police. In cross---exam nation he admitted that Mashir Yar Muhammad is related to deceased Mir Muhammad, but asserted that P. W. 7 Jumman is not related to them. He denied that P. W. 5 Jhando was their Kamdar. He asserted that some money for payment had been taken by the deceased Mir Muhammad. He admitted that he and Mir Muhammad (deceased) were in their house after `Asar' prayer; till they went out towards Tapedar's Dera. He admitted that village of P. W.
11. 5 Jhando is 7 miles away from Mehrabpur and P. W. 8 Nazar Muhammad resided in their village, which was five miles away from Mehrabpur. He also admitted that Muhammad Jumman P. W. 7 had also come to the Wardat at the time of incident. He asserted that no person was sleeping on the cot in the street, when the incident took place. He denied that he had not seen the incident or that he was called by the Police in the morning.
12. P. W. 4 Muhammad Younis stated that he was on patrolling duty and when the cinema was over at about 11-00 p. m. He reached near the house of Haji Rajabuddin and heard cries of murder ! Murder ! He went running and saw accused Fakir Muhammad catching hold of Mir Muhammad (deceased) meanwhile, Nazar Muhammad P. W. Band P. W. 5 Jhando also came at the scene. He saw that accused/appellant Aslam who was armed with a dagger, striking blow to Mir Muhammad (deceased) and complain--ant Taqqi Muhammad was standing near Mir Muhammad (deceased) and raising cries. P. W. 8 Nazar Muhammad caught hold of appellant Aslam and Younis snatched the dagger from appellant Aslam P. W. 5 Jhando caught hold of Faqir Muhammad and rescued Mir Muhammad (deceased), who fell down on the ground. They then arrested the accused and took them to the Police Station. He produced the dagger before the A. S. I. Bhambho Khan P. W. 9, thereafter, he took the body of the deceased to Medical Officer for post-mortem. In cross- examination, he was confronted with his 164, Cr. P. C. Statement (extract Exh. 16) where be had admitted that there were 10 or 15 persons, who had gathered at the Wardat, when he reached the Wardat. He had also stated before the Magistrate that there was some cots when the incident had taken place. He asserted that the complainant or the accused were not known to him. He, however, admitted that Mst. Rehmat Bibi, the mother of accused /appellant Aslam had filed a counter case, where he was an accused. He denied that he had deposed on account of friendship with theth complainant party and he further denied that Fakir Muhammad had filed an application against him to the Higher Authorities. He had produced extract from copy of Roznamcha of Police Post, Mehrabpur Exh. 15, which bore an entry at Serial No. 10 showing that at 2000 hours on 7th June 1975 Police Constable Muhammad Younis No. 131 was sent for patrolling duty and Cinema duty. The same extract at Serial No. 11 shows that on 8June, 1975 at 00310 hours complainant Taqqi Muhammad P. W. 3 along with Muhammad Younis P. W.4 and accused/appellant Aslam and Fakir Muhammad came there and lodged a complaint of murder. It also shows that accused had been put into custody.
13. The statements of P. W. 5 Jhando, P. W. 8 Nazar Mohammad are almost similar and they have stated that they took tea in the hotel of Pervaiz and at about 11-00 p. m. They went towards cinema, but near `Dera' of Tapedars, they heard cries, they went running and saw Taqqi Mohammad raising cries, while Fakir Mohammad had caught hold of Mir Mohammad and accused/appellant Aslam was causing dagger blows to Mir Mohammad (deceased), P. W. 5 Jhando caught hold of Fakir Mohammad, while Nazar Mohammad P. W. 8 caught hold of Aslam and one Police Constable, who had reached there meanwhile, snatched away dagger from appellant Aslam. Mir Mohammad (deceased) collapsed and died. P. W. 8 Nazar Mohammad was left at the spot to look after the dead body, while P. W. 5 Jhandho, complainant Taqqi Mohammad and Police Constable Mohammad Younis took both the accused and the dagger to the Police station, where the complainant lodged the report. In cross-examination, P. W. 5 Jhando stated that his village is 7 miles away from Mehrabpur. He denied that he look after the land of Taki Mohammad. He admitted that it was the first time that he had stayed with Nazar Mohammad P. W. 8 otherwise he was not on visiting terms with P. W. 8 Nazar Mohammad, He stated that hotel of pervaiz is about 400 paces away from the house of P. W. 8 Nazar Mohammad, while cinema is another 400 paces from the hotel of pervaiz. They had heard cries at a distance of 40 paces. He admitted that about 10 other persons had collected at the Wardat. He asserted that appellant Aslam caused three injuries to Mir Mohammad (deceased) in his presence and fourth injury to Mir Mohammad (deceased) while leaving him. His statement under sec--tion 164, Cr. P. C. Was shown to him. He denied that he was deposing falsely. He asserted that Police had recorded his statement but his 164, Cr. P. C. Statement showed that till 11June, 1975. The Police had not recorded his statement. In his 164, Cr. P. C.
14. Statement, he had only stated that he and Taqqi Mohammad P. W. 3 Complainant with the help of Policeman Mohammad Younis P. W. 4 caught hold of appellant. In cross-examina. Tion. The other P.
15. W. 8 Nazar Mohammad had admitted that Complainant P. W. 3 Mohammad Taqqi was his cousin.
16. He further admitted that Mst. Rehmat Bibi, mother of appellant Aslam had filed a case of house trespass against him which was pending in the Court. He asserted that he bad stated before the Police that he had caught hold of accused/appellant Aslam and P. W. 5 Jhando caught Fakir Mohammad. He admitted that his village was 5 miles away from Mehrabpur, but he also comes to Mehrabpur. He stated that P. W, 4 Mohammad Younis came to the Wardat after them. He denied that any other persons came to the Wardat at the time of incident, but some persons came later on. He denied that he had stated before the Police that some other persons have also helped them in arresting the accused. He admitted that cinema show is over at 11-00 p. m. And while from Pervaiz Hotel to the place of Wardat, he had not met any person in the way. He could not say whether he had stated in his 164, Cr. P. C., statement that his statement had not been recorded by the Police, but we find from his section 164, Cr. P. C. Statement Exh. 29 that he did state that he has not been examined by the Police (till 11-6-75). He denied the suggestion of the defence that he along with Mohammad Younis P. W. 4, Bachal and deceased Mir Mohammad had trespassed into the house of accused/appellant Mohammad Aslam for the purpose of abducting Mst. Shahidan, daughter of Fakir Mohammad. He further denied that there was a fight on the abduction of Mst.
17. Shahidan in which Mir Mohammad (deceased) was injured and they escaped, He denied that heth th was deposing falsely due to his relationship with the deceased Mir Muhammad and to save his own skin.
18. The judicial confession Exh. 11 has been proved by P. W. 2 Mohammad Suleman, Mukhtiarkar and F.
19. C. M. Of Kandiyaro, who was camping at Mehrabpur on 9th June, 1975. He stated that he gave all warnings to the accused /appellant Aslam before recording his confession. He stated that he was satisfied that the confession made by Aslam appel--lant Exh. 11 was voluntary and he has given various reasons 'in Court for his opinion as to why he considered the same as voluntary. We, however find that after recording the confession Exh. 21, he admitted in his statement before the trial Court that he gave the custody of the accused/appellant Aslam to the same A. S. I. Who had brought him for confession. He had also not recorded the various warnings in the confession.
20. However, the confession recorded by him is reproduced here--in below:- "I am residing in Mehrabpur Town. My father also resides with me. In-between night of 7June. 1975 and 8June, 1975 my father was sleeping on the roof of the room. My sister Shahida, aged about 15 years and my two younger sisters were also sleeping in the courtyard of house. Our house has got two doors, one is fixed from south and another from north. I was sleeping in the street, in front of the southern side door. At about 1-00 or 1-30 a. m. In order to make water I were up. I heard some noise, coming from my house, I knocked the southern door, but it was closed from inside I having run, entered into the house, from northern door, the door was not closed. When I went to the courtyard. I saw that Mir-Mohammad Mojai was present in my house and my father was standing, holding him in his embrace and my sister Mst. Shahida was weeping. 4mmediately took up a Churri from near the kitchen. In the meanwhile deceased Mir Mohammad, whom my father was holding, in his embrace, dragging my father, tried to make exit through the northern door. On commotions, many persons had collected there. By the time. I was searching for the 'Churri' to follow. Mir Mohammad got himself freed and started fleeing. I ran after him when he reached near the house of Aziz Machi.
21. I delivered a "churri blow" on his back. I also delivered him a second 'churri' blow. He fell down there and then, he was writhing. My father, who was following after me, also reached there and took me to home My father and mother took me to Mehrabpur Police Station. I produced the 'Churri' used in this offence before the Police. My mother was also sleeping on the roof with my 'Bail'. I am literate.
22. The appellant in his statement denied prosecution case. . He admitted his signature on confession.
23. But asserted that it was made on account of coercion, threats and maltreatment by the Police.
24. About P. Ws. Be stated that they were related to the deceased. About incident he stated that he got up on cries and went inside his house and saw Mir Mohammad. Nazir Mohammad, who was crying, clothes of Shahida were torn. He, his father and mother grappled with the culprits. Other persons collected. The culprits ran away and then they saw Mir Mohammad was lying injured. He then went to Police Station with his father, but his report was not lodged. His mother and sister were called to the Police Station and were disgraced. He examined five D. W. In. Defence. Co-accused Faqir Mohammad adopted the statement of the appellant.
25. The accused /appellant examined 5 D. Ws. In defence. Mst. Shahidan D. W. 1, who is the sister of appellant Aslam, stated that she was got up at about 12.00 or 1:00 a. m. When some persons assaulted her and she saw four persons standing over her and they started dragging her holding her hands, feet and hair. She raised cries and struggled to escape from their grip. In the struggle her shirt was torn. On her cries, her brother and father came in the courtyard and all the four culprits and her father and brother Aslam grappled with each other. Some persons from the neighbourhood also collected. The culprits went out but one of them fell down in front of house. Her father and brother then went to the Police Station. The Police came at about 1-00 a. m. And they took them as well as dead body to the Police Station. The Police detained her and her mother for two days at the Police Station and maltreated them. In cross-examination, she stated that there was street light in Mehrabpur. She denied that she knew deceased Mir Mohammad. She deniedth th that deceased Mir Mohammad died on account of knife injuries. She stated that her husband had not come to Mehrabpur even after the incident. She did not lodge any complaint against the Police for wrongful confine--ment.
26. D. W. 2 Babo Mohammad Ibrahim, D. W. 3 Mohammad Rafiq and D. W. 5 Mohammad Shafi all stated that their residences are in the same street and they were sleeping in the street and were- up on cries and they saw three persons coming out of the house of Fakir Mohammad accused and running away and one person lying injured in front of house of Fakir Mohammad. They all went inside the house and saw one girl weeping and her clothes were torn and hair scattered. The accused informed them that the culprits had trespassed in their house and attempted to abduct Mst. Shahidan, and therefore, they bad grappled with the culprits. They stated that Police came at about 1.00 a. m. They all denied the suggestion in cross-examination that they had not seen the incident. They are admittedly all neighbours of the accused.
27. D. W. 4 Abdul Aziz is also a neighbour and he stated that on hearing the noise he went to house of Fakir Mohammad and saw the dead body of Mir Mohammad (deceased) lying on the ground two yards from the house of Fakir Mohammad and two or three persons were going away having come out of house of Fakir Mohammad. In the house of Fakir Mohammad he saw that one girl was weeping. In cross-examination he admitted that his eyesight was weak and he could not see at the night time. No cross-examination was directed against him in respect of the fact that the body of the deceased was lying in front of his house.
28. Mr. Ghulamally H. Agha learned counsel for the appellant has advanced several contentions against the conviction of his client. He has submitted that the prosecution story stated is unreasonable and absurd because no motive for killing had been alleged either in the F. I. R. Or in the deposition of any witness. (b) Circumstances particularly the timing of the incident and the casual passing of the complaining party showed that something else had happened, which had led to the killing and the same has been suppressed by the prosecution. (c) No revenue demand bill or any amount of money was recovered from the pocket of the deceased as stated by the Investigating Officer, and therefore, the story of visit of the Complainant party to the Dera of Tapedar is doubtful. (d) The story of embracing of deceased by Fakir Mohammad is not possible to accept as there are four injuries by `kati' on the back and neck of deceased without even a scratch on the hands of Fakir Mohammad which should have been injured if he was really embracing the deceased.
29. Some of the criticisms above-referred is justified, but the story of the prosecution is both what has been stated by the prosecution witnesses as well as what is contained in the judicial confession of the appellant and the same have to be considered together. Moreover, it is not a case of such nature where there is a complete denial of the case by the defence. In this case the appellant in his statement under section 342, Cr. P. C. Has alleged that there was an attempt at the abduction of his sister by the deceased and three of the prosecution witnesses, namely, P. C, Mohammad Younis, Jhando and Nazar Mohammad and the same' story has also been put forward by the defence witnesses. Of course the accused appellant had not admitted to so many words that he has caused the injuries upon the deceased, but he admits to have grappled with the culprits along with his father and mother and since the deceased has been actually caused the injuries as found by the doctor, therefore, one could easily exclude the mother as none of the prosecution witnesses has involved her, similarly the father Fakir Mohammad could also be excluded as he was only assigned the role of catching hold of the deceased, and therefore, the admission of the accused in grappling with the culprits, if, read in conjunction with the evidence of the prosecution witnesses could reason--ably lead to the inference of inflicting of injuries actually by the appellant himself and by no other person. We are, however, of the view that the story put forward by the accused /appellant in his statement under sec--tion 342, Cr. P. C. And the defence version put forward by the prosecution witnesses do not appear to be reasonable as the story of forcible abduction of a woman in the night from her house by four persons, who do not have any weapon does not seem to be itself reasonable and plausible. The absurdity of the story is also apparent from the fact that there was no transport available with the so-called abducting party, and therefore, without any transport and without any arm, no person could think of abducting an adult-woman from a congested locality by force. We may also point out that admittedly in the street, where the house of the accused/appellant is situated, there were persons sleeping in the open in the street, and therefore, no person could even have illusion of getting away with the forcible abduction without a resistance of Mohalla people, who were sleeping in the street, therefore, the version of the defence does not hold any water. We, therefore, disbelieve the same.
30. Moreover, we find that the story of forcible abduction by the deceased and the three P. Ws. Has been suggested for the first time only to the last eye-witness Nazar Mohammad on 25th October, 1977 and to no other P. W. Who had been examined earlier. We, therefore, consider that this story of forcible abduction or attempt at forcible abduction by the deceas--ed and 3 P. Ws. Was merely an afterthought by the appellant. We may, however note that Police Constable Mohammad Younis had been asked a question in the cross-examination that he was an accused in the counter case filed by Mst. Rehmat Bibi, the mother of accused Aslam but the nature of the case was not disclosed and copy of the same has not been produced in Court and one does not know as to what are the allegation, in that case of Mst. Rehmat Bibi and when she had filed the same as the defence did not care to put any further question to P. C. Mohammad Younis and he gave a straight answer admitting that a case had actually been filed. But, merely admission of a case could not show as to what it was about, and therefore, Police Constable Mohammad Younis's deposi--tion could not be challenged merely on that account.
31. Mr. Ghulamally H. Agha is right that no motive is shown by the prosecution witnesses and the reason is obvious that P. W. Mohammad Younis and P. W. Jhando and Nazar Mohammad had been attracted on cries and since P. W. Younis himself admits that when he reached there on hearing cries, there were eight or ten persons already attracted and he also states that P. W. Jhando and Nazar Mohammad came thereafter and Mohammad Younis and others snatched the "Kati" from the hand of the appellant.
32. Since, the presence of Mohammad Younis P. W., Jhando P. W. And P. W. Nazar Mohammad is admitted by the appellant himself in his state--ment under section 342, Cr. P. C. Although in a different context, there--fore, their presence is established. But we are of the view that they had all reached the place of incident when the appellant had inflicted the injuries upon the person of the deceased and then they overpowered the appellant and snatched Kati from him. It is, therefore, obvious that these three P. Ws. Mohammad Younis, Jhando and Nazar Mohammad did not know the cause of the injuries.
33. Since, the version of the prosecution witnesses had been disbelieved in respect of the role played by Fakir Mohammad, therefore the criticism of Mr. Ghulam Ali M. Agha about the unreasonableness of the story does appear to be sound and it appears to us that it was the appellant alone, who had caused the injuries upon the deceased and of course the father of the appellant must have followed him and be was then apprehen--ded as well.
34. We, moreover, agree with Mr. Ghulamally H. Agha that the story about the deceased and Complainant Taqqi P. W. 3 going from their house to the Tapedar's dera at 11-45 p. m. In the night does not appear to be true and since no money has been recovered from the person of the deceased nor any demand bill from the Tapedar was found on the person of the deceased, therefore, also the story about the visit to Tapedar is incorrect. The result is that the presence of Taqqi Mohammad at the scene of offence becomes doubtful and more particularly in view of the fact that he is not able to give any reason as to why the appellant and his father suddenly grappled with the deceased. After all there were so many houses in the street, and therefore, it does not appear to be reason--able that the appellant alone would rise from his sleep and attack the deceased who is alleged to be passing with his uncle. There must have been some other story.
35. This criticism leads to doubting the presence of Taqqi Mohammad at the scene of offence. We find that the incident is alleged to have taken place at 11-45 p. m. And the F. I. R. Is lodged at 00-30 hours, but the timing of the incident is shown in the F. I R. As 11-00 p. m. But we have entertained some doubt if the timing of actually lodging of the F. I. R. At, 00-30 hours on 8th, June, 1975 is correct. The doubt in our mind has been created because the Exh. 51 shows a copy of Roznamcha of Police Post, Mehrabpur, where the departure of P. C. Mohammad Younis is shown as at 20-00 hours on 7th June, 1975 at serial No. 10 whereas his arrival at Police Post, Mehrabpur is shown on 8th Jane, 1975 at 0310 hours with Taqqi Mohammad, the Complainant. If the entire Exh. 51 is correct, then obviously the F. I. R. Exh. 13 could not have been lodged before 10 minutes past 3 hours, in the night as shown in Exh. 15, and therefore, the F. I. R. Exh. 13 shall have to be treated as incorrect when it claims to have been lodged at 00 30 hours. The timing of 0030 hours on 8th June, 1975 in the F. I.
36. R. Would, therefore, appear to be for the purpose of showing that the F. I. R. Was lodged without any loss of time and there was no deliberation and thinking involved in the lodging of the F. I. R. But we have taken the view that the F. I. R. Could be lodged only at 0310 hours when P. C. Mohammad Younis came back to the Police Post Mehrabpur. Therefore, the F. I. R. Would appear to be delayed by about 3 hours as the place of incident was only 3 furlongs away from the Police Post. The delay in the F. I. R. Could be the result of any deliberation and thinking on the part of the prosecu--tion or it may have been the result to procure the presence of P. W. 3 Taqqi Mohammad, who is ordinarily resident of a village which is 5 miles away from Mehrabpur. The presence of P. W. 3 Taqqi Mohammad is thus made further doubtful at the time of incident.
37. The absence of Taqqi Mohammad P. W. 3 from the scene of offence .s also suggested from the judicial confession. Which has been recorded by Mukhtiarkar and F. C. M., Thatta, where the appellant does not talk about the presence of Taqqi Mohammad P. W. 3.
38. We will discuss his judicial confession later. We are, therefore, in agreement with Mr. Ghulam Ally H.
39. Agha that the story as given by the P. Ws. Does not appear to be correct, but we are also of the view that the story given by the defence is also incorrect.
40. It is an admitted position that there are four "Kati" injuries on the back .Of the deceased. It is further established that the deceased was found in the street where the Louse of the accused is, the only point in this respect is whether it was lying in front of the house of D. W. Abdul Aziz. The accused/appellant in his statement under section 342, Cr. P. C. Has admitted having grappled with the culprits out of whom he alleges the deceased to be one and he also admits in the same statement that Mir Mohammad deceased was lying in front of his house and died there, there-- fore, it is evident that the accused has admitted at least the fact that the deceased Mir Mohammad was involved in a grappling incident with him on the relevant night and his body was lying injured in the street. We have disagreed with the defence version in respect of the case of incident, and we have also held that there is no cause-of-incident given by the P. Ws. And the story given by them is only correct to the extent that they found the appellant giving the injuries to the deceased but their versions that Fakir Mohammad co-accused had also grappled is wrong.
41. There is the other version about the incident given by the appellant in his judicial confession recorded by the Mukhtiarkar and F. C. M. P. W. 2 Mohammad Suleman on 9th June, 1975. We have reproduced his confes--sion earlier and it appears to us that this version is the only reasonable explanation of the incident. It shows the appellant having been awakened on hearing commotions from his house. He went to the door of the house from the Southern side in front of which he was sleeping but the same was closed from inside and he, therefore; entered from the northern gate and saw the deceased present in the house being held by co-accused Fakir Mohammad and his sister Shahidan was weeping. The appellant took a "chhurri" from the kitchen and meanwhile the deceased (who was a young man) escaped from the embrace of father of appellant and ran away. The appellant also ran after him and reached him near the house of Aziz and delivered "chhurri" blows on the back of deceased, who fell down. This confession provides the motive for the offence. This confession is corro--borated from the fact that the appellant was found wearing a dirty white vest and white silken-loin clothes. This type of dress is worn .By such person for sleeping purposes and the story about the appellant being awakened is borne out by this dress. The circumstances disclosed in the confession suggest that the deceased alone had clandestinely entered into the house of the appellant and he was either in toe with the sister of the appellant or he had availed of an opportunity to pay nocturnal visit in the said house but he was surprised as the father of the girl caught him. The girl could be weeping either on account of a stranger having come into the house or a person, who had come to visit her having been caught by her father and then fear of natural consequences, which were to follow. The fact mentioned in the judicial confession that the appellant inflicted the injuries upon the deceased in front of the house of P. W.
42. Aziz is borne-out by the wardat Memo. Exh. 26, which shows that the place of incident was in front of the house of Abdul Aziz but it is in the same street and not far away from the house of the appellant, and therefore, the version in the judicial confession about the place of incident is support--ed from this Memo which has been proved by the Investigating Officer Bhambo Khan, but more importantly by P. W. 7 Mohammad Jumman who was the Mashir of the same and he had no animus against the appellant and he had clearly stated that he was neither the neighbour of Taqqi Mohammad nor was on friendly terms with him and he was also a resident of the locality and his house is 70-80 paces away. We have no hesitation in believing the P. W. Jumman about the place of incident.
43. Mr. Ghulam Ally H. Agha had argued that the confession was not admissible and he had relied upon certain admissions made by P. W. Mohammad Suleman. The main basis of attack is that the confession had been recorded on 9rh June, 1975, while the accused had been arrested on 8th June, 1975 in the early hours, and therefore, if the confession was genuine and voluntary then it should have been made by the appellant during the day on 8th June, 1975 and riot on the next day. Mr. Ghulam Ally H. Agha relied upon PLD 1973 Lah. 714, PLD 1977 Kar. 760 and 1978 P Cr. L J 1579, where it was held that the delay of more than 24 hours in detention of the accused without any explanation, in the custody of the Police would make the confession as unreliable and no evidentiary value is attached to the same.
44. Mr. A. L. Channa for the State replied by citing PLD 1972 SC 363, a case of Syed Sharifuddin v.
45. Sohbat Khan, where the Supreme Court bad held that remaining of accused person for some time in Police custody does not lead to the conclusion that he was tutored.
46. We may observe that we do not find any justification for a contention that there was unreasonable delay in the recording of the judicial confes--sion. The appellant was arrested on 8th June, 1975 between 1-00 to 3-00 a. m. And therefore, upto 9th June, 1975, till the beginning of Court hours, the detention of the accused in Police custody would not been A regarded as illegal and we found that he was produced for recording the confession at 10 a. m. On 9th June. 1975, and therefore, there was no unreasonable delay involved in recording the confession.
47. Mr. Ghulam Ally H. Agha also contended that the confession was vitiated on account of the fact that the appellant was given back into the custody of the same Police Officer, who bad produced him for confession before the Mukhtiarkar. This position was admitted by P. W. 2 Mohammad Suleman who admitted in cross-examination that he had remanded the accuse-d to judicial custody through the same A. S. I. P.
48. We find that the Mukhtiarkar was coming at Mehrabpur and only the Police Post exists at Mehrabpur, and therefore, we do not find anything wrong in the step taken by the Mukhtiarkar because there could not be many Police Officers available at Mehrabpur and since the appellant had been remanded to judicial custody, but through the same A. S. I. P., therefore, there could be no serious objection to this action. We are strengthened in our view from the observations made in 1969 SCMR 521 that remanding of the accused to police custody for the purpose of further enquiry would not make a confession inadmissible. The facts of the present case before us are slightly better inasmuch as the appellant was remanded to the judicial custody and the A. S. I. Concerned was therefore, merely entrusted with the custody of the appellant by the Mukhtiarkar after recording the confession only for the purpose of lodging the appellant in jail.
49. Mr. Ghulamally H. Agha further contended that the Mukhtiarkar, who recorded the confession had not recorded in the body of the confes--sion that he had informed the accused that he was Mukhtiarkar and that the accused would not be remanded to police custody even if he did not give the confession. But we find that P. W. 2 Suleman had stated on oath that he informed the appellant that he was Mukhtiarkar and F. C. M. And that the accused was not bound to make the confession and if he made the confession, it will be used against him. He has also stated that he gave the usual warnings to the accused and he bad told the accused that if he did not make the confession, he would not give the accused to Police custody. P. W. 2 Suleman has stated that he was satisfied that .The confession was voluntary and that he had not allowed the Police to remain in his office and he had put of the handcuffs of the accused and there were no marks of violence on his person and he had given 3 hours and 25 minute for reflection to the accused before recording his confession. We believe the statement of P. W. Suleman. In AIR 1936 Lah. 200 it was held that where actual questions and answers were not recorded in the confes--sion but Magistrate in his evidence stated that he had put those questions and he had taken usual precautions then confession was held admissible.
50. We find from the statement made by the appellant under sec--tion 342, Cr. P. C. That in respect of judicial confession, he stated that it was neither true nor voluntary but had admitted his signature over the same and had further stated that his mother and sister were called to the Police Station and they were disgraced and maltreated and he signed the confession under coercion and threat and maltreatment caused by the Police. We do not find any justification for accepting this statement of the accused. Although we find that even his defence witnesses have repeated the same story. In the first instance, the deposition of P. W. 2 Mohammad Suleman makes it clear that he had given the neces--sary warnings to accused/appellant Aslam and gave him time for delibera--tion, and therefore, the confession was voluntarily made before him. Moreover, we find that the Mashir Mohammad Jumman P. W. 7 has clearly stated that he had remained with the police till morning and he did not see the female folks at the Police Station. Therefore, the version of the defence does not appear to be correct more so when such suggestion has been clearly denied by the Investigating Officer Bhambo Khan P. W. 9 and the matter was not pursued by the defence any further. The person of the appellant Aslam had been examined by P. W. 2 Suleman and he did not find any injury on his person. We had disbelieved the version of the defence witnesses when they stated that they had been seen three persons coming out of the house of the accused, and similarly we find that the version of the defence witnesses in respect of calling of the woman of the appellant is incorrect.
51. We are, therefore, of the view that the confession of the accused/ appellant has been valuntarily made without any maltreatment and it appears to be substantially true except to the extent where the accused states that he went to the Police Station himself, we have already held that the accused Aslam was taken along with his father to the Police Station by the P. Ws. Except Taqqi Mohammad.
52. We are, therefore, of the considered view that the appellant Aslam alone had caused the murder of Mir Mohammad with Churri near the house of P. W. Abdul Aziz in the street and that Fakir Mohammad co---accused was rightly acquitted.
53. The above finding leads to the question of the offence committed by the accused Aslam and the punishment to be awarded to him. We have relied upon the confession made by the accused and the statements of P. Ws. Younis, Jhando and Nazar Mohammad, but since, P. Ws. Have not given the cause of the murder, therefore, we have to believe the case as given by the appellant Aslam in his confession as the same is the only cause of murder of the deceased. The cause is that at night the appellant was awakened from his sleep on the cries coming from his house and at entering in his house, he saw the deceased' having been caught by his father and his young sister weeping This must have enraged the appellant to the almost extent as he had been awakened from his sleep in the dead of the night and seen his father grappling with a trespasser in the house and his sister weeping. It was certainly a very serious and sudden provocation of the accused. He had no weapon with him when he came into the house and in the heat of the moment, he brought a "Churri" from the kitchen and followed the deceased in the street, who had escaped from the hold of his father, and killed him there. It was therefore, a case of murder under grave and sudden provocation. In this confession, the appellant Aslam has not stated that the deceased was dragging his sister, and therefore, we cannot treat it as a case for the defence from abduction, Fakir Mohammad co-accused had not given the version as to why he had grappled with the deceased and as to what was the object of the deceased we have held already that the deceased was alone and he might have come into the house either as a person invited or may be as a mere trespasser but there is no allegation of an attempt at abduction by the deceased alone and forcible abduction was really not possible to be achieved as discussed by us above and certainly not by an unarmed individual. thJanuary, 1978 before his conviction, and therefore, in accordance with the provision of 382-B of P.
54. P. C. We would direct that a period of 2 years should be treated as the period of the sentence having already been undergone by him and the same should be, therefore reduced from the sentence of 7 years R. I. Now awarded to him. The appellant is also directed to pay a fine of Rs. 1,000 (Rupees on Thousand) to the heirs of Mir Mohammad deceased under section 544-A of Cr. P. C. Or in default of the same he should suffer further R. I. For a period of one year.