1. MUHAMMAD YAQUB ALI, J.-The appellant was charged along with one Sattar Khan under section 302 read with section 34, P. P. C. For the murder of Bhangi Khan. The trial Court convicted them both and sentenced each to suffer the penalty of death primarily on the basis of their retracted Judicial confessions and recovery of a dagger stained with human blood at the instance of the appellant.
2. On appeal and reference under section 374, Cr. P. C., a Division Bench of the High Court of N.-W. F. P., arrived at the conclusion that the conviction of Sattar Khan could not be based on his retracted confession alone and giving him the benefit of doubt acquitted him. The case of the appellant, however, stood on a different footing. He had led to the recovery of a dagger buried in the field of one Mohammad Shah which, on examination, was found to be stained with human blood. His conviction and sentence were, accordingly, confirmed.
3. Leave to appeal was granted to the appellant on 4-8-1970 on a Jail Petition to consider: (i) whether retracted confession made by the appellant was corroborated by satisfactory evi--dence; and (ii) whether the sentence awarded to the appellant was legal.
4. On examining the record and hearing Mr. Usman Ali Shah who appeared in support of the appeal at State expense. We have found no reason to interfere with the finding recorded by the learned Judges in the High Court that the appellant had been guilty of the offence under section 302, P. P. C.
5. For the murder of Bhangi Khan.
6. According to the First Information Report lodged by Mir Zalam (P. W. 3) at Police Station, Dadiwala, the incident took place on the morning of 24th March 1968, adjoining the abadi of village Mangia in District Bannu. The informant and his brother Ali Khan (P. W. 4) were weaving a cot in the village Chowk when they saw the deceased returning from his field where he had gone to relieve himself.
7. He was at a distance of 60-70 paces from them when the two accused persons waylaid him.
8. Sattar Khan caught Bhangi Khan by the waist, while Habib--ullah gave him repeated blows with a dagger. On hearing the alarm Mir Zalam and Ali Khan (P. Ws.) ran towards the scene of occurrence, but by then the two accused had fled away. The deceased who was lying injured on the ground was placed on a cot and sent to the Civil Hospitala, Naurang, while Mir Zalam left for the Police Station, Dadiwala, and lodged there the F. I. R. At 10 a. m. A case under section 307 read with section 34, P. P. C. Was registered against the two accused persons. Soon after that the Assistant Sub- Inspector, Naurang, Police Station, conveyed information on telephone to the Police Station, Dadiwala, that Bhangi Khan bad died on the way to the hospital whereupon the charge was altered from section 307 to section 302, P. P. C.
9. The appellant and Sattar Khan who had decamped after the occurrence surrendered themselves 14 days later before the Dadiwala Police Station in the company of Muhammad Ayub (P. W. 6), Member, Basic Democracy. On the 12th April 1968, the appellant led to the recovery of a dagger buried in the field of one Mohammad Shah which, on examination by the Chemical Examiner and the Serologist was found to be stained with human blood.
10. On the 13th April 1968, the appellant made the following confession before the Sub-Divisional Magistrate, Lakki: "On the day of occurrence I and Sattar were sitting in our field in our village Mangala when deceased Bhangi Khan gave up cutting grass and came to us. Sattar enquired from him as to why he left grass cutting. On this deceased in an harsh mood replied him not to talk with him. On this Sattar and deceased grappled with each other. As Sattar was my friend and to save him I took out a dagger and started giving the deceased blows who fell down and died there. We ran towards village Masti Khani wherefrom we proceeded to Banjakh and Durab Khel Koroona. Therefrom we went to Nagriwala and wherefrom returned to village Idal Khel after 14 days. From Idal Khel we both returned to our village Mangala wherefrom Muhammad Ayub, Member, B. l). Accompanied us to Police Station, Dadiwala. I and Sattar, eo-accused are responsible for the murder of Bhangi Khan, deceased."
11. A similar confession was made by Sattar Khan on the same day before the Sub-Divisional Magistrate though it is not necessary to refer to it in detail.
12. The prosecution case was supported, during the trial, by the dying declaration of the deceased, retracted Judicial con--fessions of the accused, recovery of blood-stained dagger and direct testimony of Mir Zalam Khan and Ali Khan, P. Ws. The Sessions Judge did not choose to rely on the witnesses or the dying declaration, but found ample evidence of guilt against both the accused in the form of respective judicial confessions and the recovery of the blood-stained dagger. He, accordingly, convicted them both under section 302 read with section 34, P. P. C. And sentenced each to death penalty.
13. In his statement before the Inquiry Magistrate the appellant did not repudiate the confession recorded by the S. D. M. Lakki, but said that he will make a full statement in the Sessions Court. The statement made by the Sub-Divisional Magistrate during the trial left no doubt that the confession reproduced above was made voluntarily. It was corroborated by the recovery of blood-stained dagger at his instance and the direct testimony furnished by Mir Zalam Khan and Ali Khan, real paternal uncles of Sattar Khan, accused. We examined their statements. They appear to be witnesses of truth. Neither had any enmity with the appellant or the co-accused Sattar Khan. The trial Judge was therefore not right in excluding their testimony from consideration which fully corroborated the retracted confession made by the appellant. In this view, we agree with the learned Judges of' the High Court that the confession of the appellant was supported by ample and satisfactory evidence.
14. As to the sentence a suggestion was made to Mir Zalam Khan in cross-examination by the defence that Bhangi Khan, deceased, was in love with Habibullah, appellant, and was jealous of his association with his first cousin Sattar Khan. It found support from the answer given by Ali Khan (P.
15. W. 4) to a Court question that 8 or 10 days before the occurrence, Bhangi Khan had given a beating to Habibullah, appellant, and also abused Sattar Khan "telling him not to roam about with Habibullah in future". Habibullah, appellant, was 16/17 years of age at the time of the incident. There was` '"no previous enmity between him arid Bhangi Khan, deceased. We, therefore, do not consider it a premeditated offence. It appears that or, seeing Habibullah, appellant, sitting with Sattar Khan, the deceased entered into a quarrel with him whereupon the appellant in his youthfulness whipped out a dagger and caused fatal injuries with it to Bhangi Khan.
16. The offence committed by the appellant, of course, falls within the purview of section 302, P. P. C.
17. For both Bhangi Khan, deceased, and Sattar Khan were empty handed and there was no apprehension of any grievous hurt being caused to them by each other. However, we are of the opinion that in view of the age of the appellant and the background in which the offence had taken place, it was not a fit case for exacting the extreme penalty of death from him.
18. The appeal is, accordingly, allowed in part. The conviction of the appellant under section 302. P. P.
19. C. For the murder of Bhangi Khan is maintained, but the sentence of death awarded to him is altered to transportation for life. Orders accordingly.