ABAID ULLAH KHAN, J.---This appeal by Ghulam Mustafa, son of Ghulam Muhammad, Awan by caste, aged 36 years resident of Nai Abadi, Qaziabad, Dhoke Chiragh Din, Rawalpindi, is directed against the judgment of the learned Additional Sessions Judge, Rawalpindi, dated the 3rd May, 1978, whereby he was convicted under section 302 of the Pakistan Penal Code for committing the murder of his buddy, named Ilyas Khan aged about 30/35 years, in his house on the night between the 13th and 14th July, 1974, and sentenced to suffer death and pay a fine of Rs. 5,000 or in default of payment thereof to undergo rigorous imprisonment for two years. Out of the amount of fine, if realized, Rs. 4,000 were directed to be paid as compen--sation to the legal heirs of the deceased.
Murder reference No. 137 of 1978 for confirmation of the appellant's death sentence is also before us. This judgment will dispose of the instant appeal as well as the murder reference.
2. Maqsood Khan, who was tried along with the appellant on the charge of helping the appellant and Shafique Hussain Shah, approver, P. W. 12 who caused disappearance of evidence touching mur--der of the deceased, an offence punishable under section 201 of the Pakistan Penal Code, was acquitted.
3. First clue to the murder of the deceased came to light when early in the morning of the 14th July, 1974, Sher Afzal, milk-seller, P. W. 8, noticed with only a jacket thereon dead body of a male lying on the eastern bank of nala laye near Jalal Chaudhry Qurban, Rawal--pindi. He contacted his neighbour, Abdul Aziz Khan, the- then Chairman, Peoples Party of the area, P. W. 15, and informed him of what he had seen Abdul Aziz Khan, after having seen the dead body went to police post Chaklala and lodged over there at 7-30 a. m., the report, Exh. P. K., giving description of the condition of the dead body and stating that some unknown culprits had, after murdering the man, thrown the dead body over there. He added that he had made inquiries but none had been able to tell as to whose dead body it was. The report was recorded by Muhammad Ramzan. Sub-Inspector of Police, P. W. 19, who subsequently conducted investigation of the case. The report was sent to police station Civil Lines, Rawalpindi, to which police post Chakala was attached, and it was entered in the register there 10 minutes later by Safdar Hussain Shah, Moharrir Head Constable.
4. Muhammad Ramzan (P. W. 19) visited the spot where the dead body was found lying and after fulfilling the formalities of preparing injury statement and inquest report despatched it to mortuary for post--mortem examination. As the dead body was not identified by anyone he got it photographed by Abdul Hakim (P. W. 4). Exhibits P. W. 4/A to C are the photographs.
5. Pir Muhammad (P. W. 9), an employee at Sabri Hotel, Rawal--pindi, which the deceased was running, saw the deceased leaving in the company of the appellant from Sabri Hotel in the evening of the 13th July, 1974, for having dinner at the latter's residence. As the deceased was not traceable for three or four days thereafter Pir Muhammad, (P. W. 9) and Ali Anwar, real brother of the deceased, felt perturbed. They came across a news item appearing in the Press about discovery of a dead body and resemblance of its identification marks with those of the deceased. They contacted Ali Afzal consanguine brother of the deceased, P. W 17, and apprised him of the whole affair. Ali Anwar expressed apprehension that the deceased might have been murdered by the appellant and the dead body found a few days back might be that of the deceased. The three went to police post Chaklala where they were shown photographs of the dead body by the police.
They identified the photographs to be that of the dead body of Ilyas Khan deceased.
6. On the 22nd July, 1974, Muhammad Ishaq Butt produced Shafique Hussain Shah. Approver, P. W.
12, before Muhammad Ramzan (P. W. 19) who placed him under arrest. After making disclosure Shafique Hussain Shah took the police to `nala laye' and pointed out the places where he, Ghulam Mustafa appellant, and Maqsood Khan, acquitted, accused had thrown clothes, chopped off nose, penis of the deceased, etc.
7. On the 22nd July, 1974, Muhammad Ramzan (P. W. 19) applied to the District Magistrate, Rawalpindi, vide application, Exh. P. S., for appointment of a Magistrate to supervise the search of the appellant's house. Mr. Muhammad Ijaz Mirza, Magistrate First Class, P. W. 16, was deputed to do the needful. Shafique Hussain Shah, approver, while in police custody, pointed out the appellant's house whose lock was broken in the presence and supervision of Mr. Muhammad Ijaz Mirza, P. W. 16.
On pointing out of Shafique Hussain Shah the chair, Exh. P. 2, lying inside the house which was blood-stained, was taken possession of by the police after having been made into a sealed parcel vide memorandum, Exh. P N. Bloodstains found on the chair, Exh. P. 2, were removed by cotton swa bs which were covered into a sealed parcel and taken possession of vide memorandum, Exh. P.
W. 1 Blood--stained long cloth cover of the chair, Exh. P. 3, was also made into a sealed packet and taken possession of by the police vide memorandum, Exh. P. Q. Blood-stained scrappings of the floor of the rear room of the house were made into a sealed parcel and taken into possession by the Police vide memorandum, Exh. P. R. Shafique Hussain Shah pointed out a teapot on the mental piece and from therein wrist watch, Exh. P. 5, and silver ring, Exh. P. 6, belonging to the deceased, were taken out and taken possession by the investigating officer vide memorandum, Exh. P. S. 1, which was attested by Abdul Aziz Khan (P. W. 15), Ali Afzal (P. W. 17), Muhammad Ishaque Butt, Abdul Qadoos Khan and Muhammad Ramzan (P. W. 19). The other above-mentioned memoranda bear the attestation-of Abdul Aziz Khan (P. W. 15), Muhammad Ramzan (P. W. 19) and Muhammad Ishaque Butt.
8. Ghulam Mustafa, appellant, was arrested by Salim Asghar, the then Station House Officer, police station Civil Lines, Rawalpindi, P. W. 14 on the 25th July, 1974, in Lalkurti.
9. Maqsood Khan, acquitted accused, was produced before Muhammad Ramzan (P. W. 9) by Abdul Aziz Khan (P. W. 15) on the 27th July, 1974, and he was put under arrest. On the 29th July, 1974, Maqsood Khan made confessional statement, Exh. P. A., under section 164 of the Code of Criminal Procedure before Khair Muhammad Tiwana, Magistrate First Class, Rawalpindi P. W.
1. On the 31st July 1974. Muhammad Ramzan (P. W. 9) moved application, Exh. P. C., for record--ing statement of Shafique Hussain Shah under section 164 of the Code of Criminal Procedure by a Magistrate and for granting him pardon. The statement of Shafique Shah was accordingly recorded by Khair Muhammad Tiwana (P. W. 1) on the 3rd August, 1974, and the same is Exh. P. D. He was subsequently granted pardon by the District Magistrate by his order dated the 5th November, 1975, Exh. P. E.
10. The circumstances and events leading to the murder of the deceased at the hands of the appellant and subsequent disposal of dead body of the deceased as also parts of the body and articles of clothing as gathered from the statements of Shafique Hussain Shah, approver, and Maqsood Khan, acquitted accused, may be briefly described in the following words. In the evening of the 13th July, 1974, the appellant and the deceased went to the shop of Shafique Hussain Shah in a taxi and called him. The appellant gave Shafique Hussain Shah five rupees, asked him to purchase onions, tomatoes, ice, salted pulse, etc., and bring them to his house. When Shafique Hussain Shah reached the appellant's house he found the appellant and the deceased sitting in the baithak of the house and taking liquor. Maqsood Khan was breaking ice into pieces and giving it to them for putting in liquor. After a short while the appellant gave thirty rupees to Shafique Hussain Shah to fetch half a bottle of Gymkhana whisky. At the same time he gave a fifty-rupee note to Maqsood Khan and asked him to get prepared good food at Khan Cafe for him. When Shafique Hussain Shah returned with liquor he found the appellant and the deceased sitting in the inner room of the house. The appellant gave ten rupees more to Shafique Hussain Shah and told him to fetch gold leaf cigarettes. Accordingly be brought the cigarettes. When he sought leave to go the appellant told him to wait till the arrival of Maqsood Khan. Both the appellant and the deceased were taking liquor and were intoxicated. The deceased was slightly more tipsy of the two. They exchanged abuses. The deceased hurled abuses maligning the appellant's wife. The appellant took out a chhuri from a nearby box and stabbed it in the chest of the deceased. He repeated the blow with the chhuri in the chest of the deceased. In the meantime he threatened Shafique Hussain Shah that he would kill him as he was an eye-witness to the occurrence. Shafique Hussain Shah implored the appellant to spare him. The appellant continued striking glasses of liquor on the face of the deceased and abusing him. He got up and slapped the face of the deceased. Thereafter he loosened string of the shalwar and chopped of the penis of the deceased.
Then he pounced upon Shafique Hussain Shah, placed chhuri on his neck and threatened him to kill him unless he chopped off the nose of the deceased. For fear of his life Shafique Hussain Shah removed the nose of the deceased with the same chhuri. The appellant then directed Shafique Hussain Shah to urinate in the mouth of the deceased. Shafique Hussain Shah replied that due to fear he could not piss. The appellant then pissed in the mouth of the deceased who hiccuped and expired. In the meantime Maqsood Khan arrived with food. The appellant caught hold of him by the neck and placing the chhuri on his neck warned him that if he divulged the secret of his killing the deceased he would kill him also in the same manner. Maqsood Khan fell down on his knees and implored to be spared. The appellant told him to help him otherwise he would kill him. The appellant searched the dead body of the deceased, took away his watch, ring and a few rupees from his pocket. He asked Shafique Hussain Shah and Maqsood Khan to accompany him for disposal of the articles. Shafique Hussain Shah was made to carry chopped off nose and penis of the deceased in a cup. Maqsood Khan carried empty bottles and they went in the company of the appellant to nala laye wherein they threw these articles. They came back to the appellant's house.
The appellant made Shafique Hussain Shah and Maqsood Khan drag the dead body of the deceased towards ---nala laye'. They were about to throw it in the `nala laye' when someone on the opposite bank coughed. Thereupon the appellant brought Shafique Hussain Shah and Maqsood Khan back to the house and made them clean the blood-stained place. The appellant made a bundle of the blood-stained clothes which he was wearing as also of the deceased and blood-stained towel and a cushion of the chair, got these articles carried by Shafique Hussain Shah and Maqsood Khan and had them thrown in the nala. The appellant himself carried the blood--stained chhuri lie dispersed Shafique Hussain Shah and Maqsood Khan after they had thrown articles in the nala. Before parting he warned them while waiving the chhuri in the air that if they divulged anything about the occurrence to anyone he would kill them.
11. On the 8th August, 1974, the appellant, while in custody, led to the recovery of the chhuri, Exh. P. 7.
Which he unearthed from the back wall of the house of one Gul Kamand and it was taken possession of by Muhammad Ramzan (P. W. 19) after making it into a sealed parcel vide memorandum, Exh. P. U., which was attested by Abdul Aziz Khan (P. W. 15) and Abdur Rahman (P. W.
18). It is not stated in the recovery memorandum Exh. P. U., that the chhuri, Exh. P. 7, was found to be blood-stained when unearthed. The report of the Serologist in respect of the said chhuri, Exh. P. T., is not positive. Therefore, its recovery is not of much consequence.
12. Dr. Zafar Iqbal Bhutta, Medical Officer, District Headquarters Hospital, Rawalpindi, P. W. 3.
Performed autopsy on the dead body of the deceased on the 14th July, 1974 at 5.30 p. m., and noticed the following injuries thereon.--
(1) Lower one-fourth of the nose was chopped off.
(2) Penis was chopped of from its root.
(3) Abraded contusion 4 --" x 2" on forehead, on middle and right side of forehead.
(4) An incised wound transverse 1 --" x 1--- x bone deep under which bone was cut on back of night hand near roots of the index and middle finger.
(5) Three incised wounds one above the others 1--" x ----- x skin deep 1 --" x --" x skin deep and 1 - ---- x --" on left side of the root of neck.
(6) A stab wound --" x --" going deep into the chest front upper part left side 4 --" inner to the nipple above downwards in direction.
(7) A stab wound 1 --" x ----- going deep obliquely 3 --" below and inner of right nipple on lower front of chest.
On dissection of the dead body he found sternum cut under injury No. 6, and intercostal muscles cut between the 7th and 8th ribs under injury No. 7. Diaphgram and liver were cut under injury No. 7.
Other internal organs were healthy. Stomach contained 4/5 ounces of semi--solid and semi- digested food which appeared to be bread. Bladder contained about 2 ounces of urine.
All the injuries were ante-mortem. Injury No. 3 was caused with blunt weapon and other injuries with sharp-edged weapon. Injuries Nos. 3 and 5 were simple while others were grievous in nature.
Injuries Nos. 2 and 7 were individually sufficient to cause death in the ordinary course of nature. In the opinion of the Medical Officer death occurred due to shock and heamorrhage as a result of cutting of liver through and chopping of nose and penis. Time between infliction of injuries and death was immediate and between death and post-mortem examination 24 hours. Exhibit P. C. Is the copy of the post-mortem examination report.
13. The Serologist, vide his report, Exh. P. T. Determined the origin of blood with which scrappings of the floor of the room, which was the scene of occurrence, and cotton swabs soaked in blood found on the chair, were stained, to be human.
14. The learned trial Judge was fully convinced that Shafique Hussain Shah had seen and participated in the occurrence and that his statement found corroboration on all material points and consequently he felt it safe to place reliance on his testimony. He also took the confessional statement of Maqsood Khan into consideration as cor--roboration of Shafique Hussain Shah's statement. Consequently holding the appellant guilty of the commission of murder of the deceased he convicted and sentenced him as indicated in the beginning of this judgment.
15. Clause (d) of section 239 of the Code of Criminal Procedure which permits holding of joint trial of persons accused of different offences committed in the course of the same transaction, forms complete answer to the objection of the learned counsel for the appellant that the appellant and Maqsood Khan could not be tried together. The commission of offences of murder of the deceased and immediately thereafter causing evidence relating thereto to disappear committed by the appellant and Maqsood Khan, respectively, took place in the course of the same transaction.
Therefore, the appellant and Maqsood Khan could very well have been tried together.
16. However, the argument of the learned counsel that the state--ment made by Maqsood Khan under section 342 of the Code of Criminal Procedure could not have been used against the appellant the two had not been tried for the same offence is not without sub--stance. Section 30 of the Evidence Act, 1872, allows the Court to take into consideration confession made by an accused person affecting himself and some other accused person against the other accused only if they are tried jointly for the same offence. In the present case the appellant was tried for the offence of commission of murder punishable under section 302 of the Pakistan Penal Code whereas Maqsood Khan was tried for the offence of causing evidence touching murder of the deceased disappear punishable under section 201 of the Pakistan Penal Code. The two offences being different the confessional statement of Maqsood Khan could not have been used against the appellant as has been done by the learned trial Court. The statement of Maqsood Khan will have to be kept out of consideration while determining the question regarding the guilt of the appellant.
17. The contention of the learned counsel that pardon granted to Shafique Hussain Shah constituted an act of total desperation on the part of the executive authorities with a view to secure some evidence against the appellant and, therefore, the evidence of Shafique Hussain Shah was not trustworthy can be accepted only with a grain of salt. Under section 337 of the Code of Criminal Procedure the very object of granting pardon is to obtain evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence. Again pardon can be granted in a case like the instant one even if the evidence has been recorded but before judgment is passed. Shafique Hussain Shah's statement was recorded by the Magistrate under section 164 of the Code of Criminal Procedure much earlier than he was granted pardon and he stuck to that statement throughout during trial of the case. In these circumstances there appears to be nothing wron with the process of tendering pardon of Shafique Hussain Shah.
19. Shafique Hussain Shah had no motive for falsely implicating the appellant. He is not shown to be in any way interested against him. As P. W. 12 he gave evidence consistent with his earlier state-- ment dated the 3rd August, 1974, whose substance has been reproduced in para 10 of this judgment and stood the test of cross-examination. His evidence is supported by the recoveries made from the appellant's house in the presence of the Magistrate. Human blood was found present on the floor of, and on the chair lying in, the room where the murder of the deceased is alleged to have taken place. More important is the recovery of the wrist watch, Exh. P. 5, and ring, Exh. P. 6, belonging to the deceased from that room of the appellant's house. Pir Muhammad (P. W.
9) and Ali Afzal (P. W. 17) identified the said watch and the ring to be the property of the deceased.
Ali Akbar, watch maker, P. W. 10, who repaired the watch, Exh. P. 5, bore testimony to the fact that it belonged to the deceased and that he had got it repaired by him. These recoveries afford sufficient corroboration to the testimony of Shafique Hussain Shah, approver, so as to implicate the appellant for the commission of the murder of the deceased.
20. Citing Alam Khan v. Ghaus (1969 SCMR 269) the learned counsel for the appellant argued that in the instant case the recoveries could not constitute corroboration of Sha6que Hussain Shah's evidence. Full facts of the case and elaborate reasons are not given in the precedent cited at the bar. Nevertheless, recoveries of the weapons of offence not made in the presence of the accused were considered to be of no value as corroborative of the testimony of the approver. It seems that the weapons of offence were supposed to have been disposed of acid desposited at a particular place by the accused persons and they alone could have been expected to get them recovered.
However. In the instant case the appellant removed the wrist watch and ring, of the deceased and deposited them in the teapot lying in his room in the very presence of Shafique Hussain Shah and Maqsood Khan. Therefore, recoveries of the watch and ring at the instance of Maqsood Khan could hardly be doubted and they could very well be said toil provide corroboration to the testimony of the approver.
21. In view of what has been said above the charge can be said to have been brought home to the appellant beyond a reasonable manner of doubt. He was rightly held guilty and convicted of the commission of murder of the deceased.
22. There remains the question of determining the punishment to be awarded to the appellant. The appellant and the deceased had beer on friendly terms and had been passing time together for at least 4/a years before the occurrence. No previous enmity between the two was suggested and there was no proof that the offence was premeditated Under the influence of liquor, as they were, exchange of abuses and taking place of quarrel could not be said to be a so abnormal an event as to drive the appellant to go to the extent of not only stabbing him but chopping of his penis and nose and thereafter urinating in his mouth. Filthy language used by the deceased in respect of the appellant's wife or calling the appellant pimp of his wife could not in the usual course of events be considered to have provided such sort of provocation to the appellant so as to make him act in so cruel, grisly and grotesque manner as he did. It appears that there had happened something much more annoying to the appellant and as the learned counsel appearing for the State put it the motive was shrouded iii mystery. In such a case we believe the appellant ought not to have been visited with the maximum penalty of death and the ends of justice could have been met if he had been awarded the lesser penalty of imprisonment for life: Accordingly while maintaining hit conviction recorded by the learned trial Court we alter the sentence of death imposed upon the appellant to that of imprisonment for life, the sentence of fine is left undisturbed. With this modification in the sentence we dismiss his appeal. The sentence of death is not con--firmed.
Death sentence not confirmed.