GHAUS ALI SHAH, J.-This appeal under section 410, Cr. P. C. Is directed against the judgment dated 7th September, 1979, of the learned Sessions Judge, Sanghar, whereby he convicted the appellant under section 302, P. P. C. And sentenced him to death. The matter is also before us for confirmation of sentence of death passed on the appellant. We shall dispose of the appeal and the murder reference under this judgment.
2. The facts of the case are that one Anwar son of Nasir Hussain, Shaikh by case, resident of Landhi No. 6, Karachi, residing at Mohalla Ahmedabad of Tando Adam, District Sanghar, .Lodged his F. I. R.
On 27th May 1976, at 7-30 a. m., at Police Station, Tando Adam, District Sanghar, which reads as under :- "I, Mir Muhammad and Zubair "Khadras" met at Fair of Agbaman and came together to Tando Adam town, where we live since last 2 months in a rented house. We live on begging. I belong to - Karachi, Mir Muhammad belongs to Tando Qaiser and Zubair is of Multan. Last night we all the three slept in our rented house after taking the meals. In the morning we got up, when a person by name Yamin resident of Karachi came there and sat with Mir Muhammad on the mat spread on the ground. Zubair was preparing tea inside, and Yamin was sitting with Mir Muhammad and were talking. Mir Muhammad asked from Yamin as to when he has returned from Jail, Yamin replied that he has returned from Jail 8-10 days ago and said that Mir Muhammad should accompany him to Karachi as he had come to take him. Mir Muhammad refused to do so, when I told Yamin not to fight here, in the meanwhile Zubair also came out and within our sight Yamin took out a churri from the pocket of his "patloon" and stabbed Mir Muhammad on his right side and left side of the abdomen and on the neck and face. He inflicted many injuries, and we raised cries. Yamin after giving injuries to Mir Muhammad and felling him down went out running. We also followed him crying. At the platform of the railway station, railway police Jamadar Mehar Khan and others were standing. We asked them to catch hold of him (Yamin)'as he was going running after giving knife injuries to Mir Muhammad. They caught hold of Yamin alongwith "churri". Then we came to our house back and saw Mir Muhammad had died. Leaving Zubair there, I have come to lodge report.
Investigation be made as Yamin had murdered Mir Muhammad by giving injuries with "'churri'.
That time was 7-00 a. m. In the morning."
3. The F. I. R. Exh. 16 was recorded by Shah Muhammad, Incharge, S. I. P., Tando Adam, who after recording it proceeded to the scene of offence which was situated in the house of the complainant in Mohallah Ahmedabad Tando Adam, where he found the dead body of Mir Muhammad lying on a mat. There was blood and a pillow lying there was also stained with blood.
He secured the pillow as well as blood-stained earth and sealed the same and prepared such Mashirnama Exh. 18 in presence of mashirs Muhammad Siddique and Saeed. He thereafter prepared the inquest report of the dead body as Exh. 19 and then sent it for post-mortem examination to the Medical Officer, Tando Adam through Muhammad Ramzan H. C. Incharge Railway Police Outpost Tando Adam who produced the appellant/accused before him at the scene of offence. He was wzaring a blood-stained "Banyan" and a Pants. He arrested him and secured his clothes and sealed them. He prepared such Mashirnama Exh. 20 Abdul Aziz, Constable produced a blood--stained knife which he secured, sealed and prepared such Mashirnama Exh. 21.
He recorded statements of H. C. Abdul Razzak and Abdul Aziz, Constable. He then produced the accused before the Resident Magistrate for recording his confession. He also examined Constable Mehar Khan and handed over the case papers to Haji Sawan Khan, S. H. O.
4. The prosecution case is mainly based on ocular testimony, corrobora--tive evidence, recoveries of blood-stained "chhuri" and clothes, confession of the accused, evidence of motive, medical evidence and a circumstance of the app.-llant/accused captured immediately after the occurrence at the railway station in his bid to escape after commission of this offence.
5. The accused however denied all the allegations against him and claimed to have been involved by the complainant Anwar on account of his money amounting to Rs. 4,603 outstanding against him, so also a wrist watch, a chain and a ring of gold. When he made a demand for all this property from him, he refused to give the same and -instead involved him in this case. He further claimed that he was brought from Karachi by police in a private car and was tortured -to make confession.
He has examined Muhammad Yasin, Abdul Hameed and Muhammad Hussain Shah in defence.
6. There is no doubt that the deceased Mir Muhammad vas murdered on the day and place of incident as stated in the F. I. R. Due to knife injuries. Dr. Muhammad Ismail, who performed the autopsy has deposed as under :- "On 27th May, 1976, I was M. O. Tando Adam when Police Station, Tando Adam sent me dead body of Mir Muhammad Fakir "Khadro" aged about 25/27 years by case Shaikh through H. C. Muhammad Ramzan at 9 a. m. For post-mortem examination and certificate. The body was identified by Anwar and Zubair both the friends of the deceased. It was a body of a male of an average built. I started P.
M.. At about 10-30 a. m. And finished it at about 12 noon on the same day. On external examination I found as follows :-
(1) An incised wound cutting the anterior portion of nose only attached with skin flap and cartilage were also cut. The wound was in a semi--circular position.
(2) An incised wound 1' x -- ' X neck deep on the left side of the neck.
(3) An incised wound 1' x --x cavity deep on the left side of the chest 3 inches above the left breast.
(4) Incised wound 1' x 1 -- ' a cavity deep on the left side of chest, Parallel to injury No. 3.
(5) Incised wound 1' x -- ' X cavity deep on the exilla.
(6) Incised wound 1 --x -- ' x cavity deep on the mid axillary line on the left side.
(7) Incised wound 1' X -- ' X cavity deep on the medias aspect of the left breast, on the apex area.
(8) Incised wound -- ' x -- 'cavity deep on the left side chest.
(9) An incised wound 2' x 1' x on the right side lower chest near hapocanderium.
All the injuries were ante-mortem and injuries Nos. 2, 3, 4, 5, 6, 7, 8 and 9 were individually sufficient to cause death in ordinary course of nature. All the injuries appeared to have been caused by sharp-cutting weapon such as knife.
On internal examination I found as follows :-
(1) Right lung and pleasure were lacerated.
(2) Left lung and pleasure was lacerated and torn on places corresponding to injuries.
(3) Panicardium of the heart were lacerated.
(4) The posterior lobe of the left lower lacerated.
(5) Water fluid were present in the stomach.
From both the examinations I am of the opinion that death is due to shock and haemorrhage resulted with the consequent to injuries men--tioned above. The time between injuries and death was instantaneous and death and P. M. Was 3 to 6 hours. I prepared such post-mortem notes which I produce as Exh.
7. It is same, correct and bears my signatures. I also produce the report of chemical analyser as Exh. 8, regarding blood-stained articles sent in this case.
7. The question therefore for determination is whether the offence was committed by the appellant/accused or some body else ? In this regard the . Prosecution has led ocular evidence of the complainant Anwar, Corroborative evidence of P. Ws. Mehar Khan, Abdul Aziz and Abdul Razzaq, Mashtr Muhammad Siddique P. W. 7 and Shah Muhammad P. W. 9 who was incharge S. I. P. For recoveries of clothes and production of blood-stained "churri" evidence of motive, evidence of Mr. Faiz Muhammad who recorded the confession and medical evidence.
8. The complainant Anwar has stated before the trial Court that be, p Zubair and the deceased Mir Muhammad "Khadras" (eunuchs) used to five in a house at Tando Adam. It was at about 7 a. m.
When he was sitting alongwith Mir Muhammad in the courtyard of their house whereas Zubair was in the kitchen. The present appellant/accused Yamin came there and sat by the side of the deceased and asked him to accompany him but the deceased refused on which be took out a "churri" from his pants and inflicted eight injuries on him. He raised cries on which Zubair came out who also saw the incident. The appellant/accused then started running towards railway station.
They followed him raining cries. The accused boarded a (local) `Lunda' train. While it was moving.
The, Police constables came there, whom they narrated the facts. When the train stopped, Police caught hold of the accused along--with a blood-stained "churri '. They then took accused/appellant and the, police to "wardat" where they found that deceased Mir Muhammad had died. He went to Tando Adam police station and lodged such report. No material contradictions have been brought out by the defenca in cross-examination so as to disbelieve this witness.
9. Mehar Khan P. W. 2, Abdul Aziz P. W. 5 and Abdul Razzak P.W. 8 , have stated before the trial Court that they were at the platform of Tando Adam Railway Station when they saw the present appellant/accused coming running towards the platform and was being chased by the two "Khadras" who subsequently disclosed their names to be Muhammad. Anwar, complaint and Zubair. They all surrounded the appellant/accused and caught hold of him. The appellant/accused at that time was armed with a "churri" which was stained with blood and his clothes were also stained with blood. Abdul Aziz P. W. 5, snatched the "churri" from him. All the above threeP. Ws. Are uninterested persons and their evidence is natural and there is hardly anything on the record to disbelieve their version.
10. The recoveries of blood-stained "churri" and clothes have been proved through evidence of Abdul Aziz P. W. 5, Abdul Razzak P. W. 8 mashir Muhammad Siddiq P. W. 7 and Shah Muhammad P.
W. 9 who was incharge S. I. P.; Tando Adam Police Station on the day of incident. The accused/appellant was also produced before S. I. P. Shah Muhammad with blood-stained clothes on his person and so also the blood-stained "churri" secured from him at the time when he was caught hold of at the Tando Adam Railway Station.;l . 11: There is also judicial confession of the accused appellant recorded on the same day when this offence was committed and it reads as under; "The fact is that Mir Muhammad Nizamani resident of Tando Qaiser was a dancer and he was my friend since last 3-4 years. I was maintaining him and giving him expenses for clothes etc. I reside on Station road at Hyderabad and there I do business on "Rerht" since last 10-12 years. The deceased picked up friendship with others also and I prevented him from doing so but he did not refrain. Deceased Mir Muhammad went annoyed with me and this happened about 3-4 months ago. Then I came to know that deceased Mir Muhammad was residing at Tando Adam with Fakir Anwar. Last night, I came for Tando Adam for reconciliation with Mir Muhammad. I stayed at railway platform for night and in the morning at 7 a. m. I went to the house of Anwer Fakir for reconciliation with Mir Muhammad. I tried to reconcile but Mir Muhammad refused to do so, so that account I was annoyed and I had one churri (knife) with me with which I gave 5-6 injuries to Mir Muhammad and he died. When I gave blows to Mir Muhammad Anwar Fakir was present there and he had witnessed the whole incident. Then after killing Mir Muhammad I came to the station and told the police constables that I have committed an offence and I should be arrested. At that time churri. (knife) was with me. I am giving this statement with my full senses. I have been given 2 hours time for reflection, First when I was. Produced in the Court. I was prepared to confess and thereafter also I am confessing as I have committed murder."
The confession has been recorded by Mr..Faiz Muhammad; Mukhtiar kar and F. C. M., Kandiaro, who was resident Magistrate, Tando Adam on the day when the accused appellant was produced before him recording of his confes--sion. He had observed all the necessary requirements of law and also given the required warnings to the accused appellant before recording his confession. He has stated before the trial Court that he was satisfied that the confession was voluntarily made by the accused appellant though it has been retracted by him which is not unusual. We have examined the confession and we are satisfied that the reasons given by the appellant for commission of murder of the deceased are such which have made the confession true and voluntary. The appellant who claimed to have maintained the deceased for sometime and wanted him to accompany him and on his refusal to do so he killed him.
It is also clear that he had gone well-prepared for it. Therefore in case of the deceased's refusal to accompany the appellant, the natural consequence was to finish him. It was with this intention that he inflicted as many as nine incised wounds on different parts of his body including neck and chest which resulted in his death.
12. The motive for commission of murder as deposed to by the com--plainant Anwar was refusal of the deceased to accompany the appellant on which he inflicted 8/9 blows to him. This motive also found place in the confession of the accused appellant and thus there is no reason to disbelieve it.
It is sufficient in the circumstances of the case to commit murder of the deceased who was maintained for some time by the appellant.
13. Dr. Muhammad Ismail P. W. 1 as discussed above has certified the death by knife injuries therefore the medical evidence has further strengthened the case of the prosecution which stands totally corroborated.
14. The last piece of evidence against the appellant accused is the circumstance of his being captured immediately after committing the murder in his bid to escape when he was chased by the complainant Anwar and one Zubair who followed him while making cries which attracted other persons at the railway station where be was captured by P. Ws. Mehar Khan P. W. 2, Abdul Aziz P. W.
5 and Abdul Razzak P. W.
8. There is absolutely no reason for all these uninterested witnesses to have falsely implicated the accused appellant. It is thus held that the . Accused appellant was actually caught hold of at the platform of Railway Station Tando Adam while he was being chased by the complainant and one Zubair after commission of this offence.
15. The learned counsel for the appellant has contended that the appellant has been falsely implicated in -this case by complainant Anwar Shaikh. The reason advanced for such implication is that a sum of Rs. 4,600 of the appellant was outstanding against- Anwar who had also retained his wrist-watch, chain of gold and a ring of gold. When the appellant demanded his money and articles from him he refused to give him. He was actually brought from Karachi by railway police in a private car. The appellant has examined the defence also.
16. Muhammad Yasin D. W. 1 stated before the trial Court that. He had learnt from one Hamid and others that police had taken the appellant in a jeep. Though he had seen the jeep but did not know as to who' was in the jeep. Abdul Hamid D. W. 2 has stated before the trial Court that on 27th May, 1976, he woke up on commotion at about 3 a. m. And learnt that the appellant was being taken by the police in a jeep. He also saw accused Yamin going in the jeep. He then went to his maternal uncle Muhammad Hussain Qa Guloo and told him about it. Muhammad Hussain D. W. 3 who is maternal uncle of the appellant has .Stated that the appellant had deposited his earnings with his friend Anwar (complainant). When the appellant demanded this amount from him in his presence, be threatened him. This was said at Karachi a few days thereafter when he was sleeping in his house whereas the appellant was sleeping outside his house at Karachi at about 3 a. m. When Hamid went to him and told him that policemen and public-men had taken appellant with themselves. He enquired from Arambagh Police Station but he did not get any information. It was after two months of it when he received a letter from appellant informing him about his confinement Tando Adam Jail where he met him.
17. We have examined the evidence of defence and we are of the view that it is not of any help to the accused as Muhammad Hussain D. W. Being maternaluncle of the appellant has admitted in cross-examination that he did not know as to where Anwar lived and what was he doing. He had seen Anwar only on that day when he threatened appellant. He even did not know him. Moreover it has been admitted by Abdul Hamid D. W. 2 as well as Muhammad Hussain D. W. 3 that the appellant had settled at Hyderabad about 12 years before this incident. As far as evidence of Muhammad Yasin is concerned, it is not of any help 'to the defence as it was hearsay and not of any consequence. The defence evidence is also not believable in the circum--stances particularly when the arrest of the appellant at Tando Adam at about ? a. m. Is established beyond. Any reasonable doubt. Even if we accept for arguments sake that he was taken from Karachi at 3 a. m.
By a jeep yet it is not possible to accept that any jeep could reach Tando Adam within that short time. Moreover there is no reason for all those independent witnesses to support complainant Anwar falsely and to foist blood-stained "churri" and clothes on him. Therefore defence evidence is absolutely false and not at all acceptable under the circumstances of the case.
18. It has also been contended that P. W. Zubair, who was an eye--witness has not been examined by the prosecution therefore presumption under section 114 of the Evidence Act be drawn against him. The motive advanced by the prosecution was also not strong enough for the appellant to commit the murder.
19. Mr. Ghulamally H. Agha, the learned counsel for the State has con--tended that the evidence of complainant Anwar who is an eye-witness is natural and trustworthy because he witnessed the incident and chased the appellant. He raised cries and succeeded having got him captured at the platform of Railway Station, Tando Adam. P. Ws. Mehar Khan. Abdul Aziz and Abdul Razzak who have captured the appellant at the platform have no interest of any kind to implicate him falsely.
They have corroborated version of the complainant and they being uninterested witnesses, their version is worthy of reliance. The contention that Zubair who was an eye-witness as per F: I. R. Has not been examined and presumption under section 114 of the Evidence Act be drawn against him would not be proper as all efforts were taken to procure him. He was given up by the D. P. P. Only after his where--abouts were not known. He being an eunuch and having no fixed abode, it would not have been possible to secure his attendance without undue delay. The recoveries of blood- stained "Churri" and clothes are also proved and stand corroborated by the Chemical Analyser's report. He has also contended that confession though retracted stands corroborated and is true and voluntary. It has been recorded on the same day though it has been retracted which is not usual but all the same it stands corroborated by ocular testimony corroborative evidence of P. Ws.
Mehar Khan, Abdul Aziz and Abdul Razzak and other circumstantial evidence. The fact of the appellant being caught immediately after the occurrence stands proved and there is nothing to disbelieve all evidence on these points. The defence examined by the appellant is very weak and of no consequence.
20. We have heard the learned counsel for the appellant and State. We have also given our anxious thought to ocular testimony of complainant Anwar keeping in view the motive attributed to him by the appellant for his involve--ment in the case. We are convinced that the deceased has been murdered in early hours on 27th May 1976, at 7 a. m. And this fact has been supported by medical evidence also. The appellant who tried to run away after commission of offence was caught hold of on the same day within a few minutes of the commission of offence in his bid to escape after killing the deceased.
The evidence of corroborative witness Mehar Khan, "Abdul Aziz and Abdul Razzak is so much convincing that there is absolutely no doubt in our mind that the appellant was arrested in the manner as described by the com--plainant Anwar and the corroborative witnesses Mehar Khan, Abdul Aziz and Abdul Razzak.
We have also considered the confession of the appellant which is properly recorded after all the necessary precautions of law and motive alleged by the prosecution finds place in it. We, therefore, accept the con--fession as true and voluntary.
The recoveries of "churri" and blood-stained clothes have been satis--factorily proved as discussed above and they got strengthened by the Chemical Analyser's report Exh. 11.
The medical evidence has also provided corroboration which fits in with the version given by the complainant and also the appellant in his confession and no doubt is left in our mind that it was the appellant who inflicted "churri" blows on person of the deceased, who died as a result of it.
The defence of the appellant is very weak and it does not inspire con--fidence that the appellant was brought from Karachi and was thereafter involved in this case or that complainant had falsely implicated him as he demanded his money, watch, gold ring and gold chain from him. There is strong evidence against the appellant and it cannot be disbelieved only for the reason that the defence witnesses have stated that the appellant was taken from Karachi on the day of incident.
We consider the defence to be purely false and of no consequence and we have therefore rejected it. We would record a note of appreciation for efforts of Mr. Saydeen Zaidi the learned counsel for the appellant. He has assisted us with lot of labour but unfortunately there is nothing to disbelieve the evidence against the appellant.
21. We have also considered if there was any mitigating circumstance for lesser penalty but we found none and in the result we accept the reference for confirmation of the death sentence and uphold the conviction and thesentence awarded to the appellant in toto.
22. In the result the appeal stands dismissed.