SAJJAD ALI SHAH. J.-Appellant has filed this appeal from jail against the judgment dated 31st January, 1979 of learned Sessions Judge, Sanghar, whereby he has been convicted for offence under section 302, P. P. C. And is sentenced to life imprisonment. Alongwith this appeal there is con- -nected revision application filed by the complainant in which the prayer is that the sentence awarded by the trial Court is inadequate and capital punishment should be submitted. We propose to dispose of the appeal as well as revision application together by single judgment.
2. Shortly stated the prosecution case is that deceased Muhammad Saleh, a young lad of about 14 years at the time of incident, was brother of complainant Allah Bux and lived with him in village Mobin Wassan in Taluka Shahdadpur, District Sanghar. Deceased was on friendly terms with his co- villager P. W. Doso Jokhio. Appellant Karim Bux .Had a hotel in that village and had employed deceased in his hotel as servant on monthly pay of Rs.
30. Appellant had an evil eye on the deceased and started making advances to him and in that connection pestered the deceased for unnatural offence but the deceased refused and left the job in the hotel. It is further the case of the prosecution that thereafter the appellant kept on pressurizing the deceased to give up friendship with Doso Jokhio and cultivate friendship with him (appellant). On the day of incident i.e. 9th October, 1975, at about 5-00 p. m., deceased Muhammad Saleh was in the field of Haji Sukhio Wagan, which is near village Mobin Wagan when appellant was seen going towards him. Allah Bux complainant and P. W. Bachal were at that time sitting in the otak of complainant which was at a distance of 40-50 paces from the wardat. The witnesses saw him approaching the deceased and having a talk with him, whereafter appellant slapped the deceased. Both the witnesses raised --- hakals--- and ran to the spot. In the meantime appellant took out pistol from the fold of his shalwar and fired a shot from close range at the chest of Muhammad Saleh, who became injured and fell down prostrate. Another witness by name Hyder Wassan who was in his field at a distance of about 40-50 paces saw the incident and came running to the spot. Appellant unloaded his pistol and then reloaded it and threatened the witnesses not to come near. Clothes of the appellant became stained with blood and after the arrival of the witnesses at the spot the appellant went away with his pistol. Witnesses went near and turned the deceased, who was still alive and informed them that the appellant told him that he had forbidden him several times for not having friendship with Doso Jokhio but since he (deceased) was adamant hence would be finished. Saying so the appellant slapped him and also fired at him with his pistol.. Muhammad Saleh thereafter writhed. In pain for a while and then breathed his last. Complainant Allah Bux leaving behind other witnesses to look -after the dead body proceeded to Police Station Shadadpur where he reached the same day at 7-00 p. m. And lodged the report. S. H. O. Abdul Khaliq after register--ing the F. I. R. Came to the scene of offence accompanied by the comp-- lainant. He saw the dead body of Muhammad Saleh and recovered blood which was put into a sealed parcel by him. He also recovered one crime empty lying near the pool of blood which he put into sealed parcel. He secured a heap of roots or Jawar .Crops which was being collected by the deceased at the time of incident. S. H. O. Then prepared Mas4irnama of wardat and also inquest report. He sent the dead body to the hospital for post-mortem examination and recorded the statements of the' witnesses. Thereafter, at about 11.00 p. m. He went to the house of appellant, who came out on the call and surrendered. Clothes of the appellant were found to be stained with blood which were recovered and put into a sealed parcel. Appellant led to the recovery. Of pistol front underneath of heap of dung by the side of hedge of his house. Alongwith pistol there were five live cartridges which were also secured. Pistol was loaded and had smell of gun powder and in working condition. S. H. O. Also sealed the weapon of crime. Appellant was then brought in custody to the police station and a report under section 13-D of the Arms Ordinance was lodged against him as he had no licence for the pistol which was produced by him. On the following day the appellant was produced before the Mukhtiarkar & F. C. M. Shahdadpur, who recorded his judicial confession and thereafter appellant was remanded to judicial custody. After completing the other steps of the investigation like sending the parcels to the laboratories he presented challan in the Court.
3. Prosecution has examined 8 witnesses in support of its case. (P. W. 1) is Dr. Zulfiqar Ali Shah who conducted post-mortem examina--tion on the dead body and produced report Exh. 7. (P. W. 2) Mr. Muhammad Saliq is Mukhtiarkar & F. C. M., who has- recorded the judicial confession of the appellant and produced the same as Exh. 9. (P. W. 3) Ghulam Muhammad is a tapedar who has prepared and produced sketch of the scene of offence Exh.
11. Prosecution has examined two eye- witnesses (P. W. 4) Allah Bux complainant who produced F. I. R. Exh. 14 and (P. W. 5), Bachal. Another eye-witness, namely, Hyder Wassan could not be examined for the reason that he had fled before his statement could be recorded in the Court (P. W. 6). Doso Jokhio has been examined by the prosecution on the point of motive (P. W. 7), Haji Ghulam Muhammad is a Mashir and has attested and produced mashirnama of vardal Exh. 19, inquest report Exh. 20 mashirnama of arrest of appellant and recovery of his blood-stained clothes Exh. 21 and mahirnama of recovery of pistol Exh. 22. . (P. W. 8) is S. H O. Abdul Khaliq who. Has investigated the case as stated above and has produced in the Court during his evidence the report of Chemical Examiner Exh. 24 and report of Ballistic Expert Exh. 25 which are both positive.
4. Before the trial Court the appellant in his statement under section 342, Cr. P. C. Has denied the prosecution allegations and retracted from his judicial confession on the ground that he had not made the same and only his signature was obtained thereupon. It is further stated that he was mercilessly beaten by the police before his signature was obtained on the judicial confession. He has also denied recovery of blood-stained clothes from his person and also his pistol. Appellant further stated that murder was committed by. Doso Jokhio and he has been falsely implicated on account of enmity with Mir Muhammad Wasan and his Haris, whose houses were searched by Police, in which appellant rendered assistance. It is further stated that Mir Muhammad Wassan had gone into hiding during the regime of defunct Peoples Party and when Mir Muhammad Wassan came back the appellant and his relatives demolished their houses and migrated away. Appellant further stated that he owned a gun with licence and he produced the, licence as Exh.
28. It is further stated by him that pistol has been foisted on him to implicate him in the case and the witnesses were set up. Police had beaten him mercilessly and detained his brothers. His brother made an application before the Civil Judge & F. C M. And requested for medical examination of the appellant. The counsel for the appellant also made an application to the Court for Medical examination of the 1983 appellant. It appears from the statement of the appellant that he means to say that police had beaten him up for judicial confession, which he disowns. Appellant has examined two witnesses in his defence. (D. W. 1) Jamaluddin is a clerk in District Court Sangbar who has produced apple--cation made by Nabi Bux before the Civil Judge & F. C. M., Shahdadpur on 21st October, 1975 as Exh. 31 and an affidavit in support of the apple--cation as Exh.
32. He has also produced application made by appellant before the same Court on 24th October, 1975 as Exb. 33.
He has also produced an application made by Mr. Abdul Salam Ansari, Advocate for the appellant on 25th October, 1975 as Exh.
34. He has produced letter issued by the Civil Judge to the Jailor to produce appellant before Medical Officer, Shahdadpur, for examination and certificate as Exh. 35.
He has also produced copy of such letter to Medical Officer as Exh. 36. (D. W. 2). Muhammad Sawan is a clerk in Taluka Hospital, Shahdadpur. He brought a register of outdoor patients relating to the year 1975. He has pointed out four entries in the register indicating that karim Bux s/o Khair Muhammad was examined and treated. These entries relate to 14th October, 1975, 25th October, 1975, 27th October, 1975 and 28th October, 1975. Copies of these entries have been produced as Exhs. 39 to 42.
5. Before the trial Court counsel for the appellant made an apple--cation with prayer that certified copies of depositions of two witnesses namely, Haji Ghulam Muhammad and S. H. O. Abdul Khaliq recorded in the connected case under the Arms Ordinance be placed on the record of Session. This application was granted and in the result the depositions of the two witnesses mentioned above were placed on the record as Exhs. 44 and 45, respectively.
6. To prove its case the prosecution has produced different pieces of evidence to connect the appellant with the commission of crime alleged against him. There is on the record ocular testimony of two witnesses, dying declaration of the deceased, circumstantial evidence of recovery of crime weapon and blood-stained clothes of the appellant with positive reports from Ballistic Expert and Chemical Analyser, Judicial confession of the appellant recorded by a Magistrate on the following day of his arrest and motive.
7. Mr. Murtaza Hussain, counsel for the appellant has assailed before us all these pieces of evidence mentioned above. Ocular evidence is criticized on the ground that the eye-witnesses are not independent and reliable as they are interested witnesses and there is background of enmity.
Prosecution has examined only two eye-witnesses, who are P. W. 4 Allah Bux complainant and P. W.
5 Bachal. Complainant Allah Bux is admit--tedly brother of deceased Muhammad Saleh. He is a natural witness for the reason that incident has taken place at a distance of 40 or 50 paces from his otaq. At the time of incident he was sitting in his otaq convers--ing with P. W. 5 Bachal. It is the case of the prosecution that the place of incident was visible from the otaq where both these eye- witnesses were sitting. Complainant has deposed before the trial Court that he and Bachal were sitting in the varanda of otaq which faced south and the scene of offence was in the west of otaq.
P. W. 5 Bachal has deposed that the varanda was open on the western side and southern side and was closed from eastern side and northern side. In the Mashirnama of scene of offence Exh. 19 on the record, it is stated that otaq of complainant was at a distance of 80 paces from the place of occurrence and further that otaq of the complainant was visible from the place of incident. P. W. 3 Ghulam Muhammad Tapedar has deposed before the trial Court that otaq of the complainant was at a distance of 170 feet from the place of incident as shown by him in sketch of wardat Exh. 11 at point ---P---. He has further stated that otaq consisted of a room and varanda in front of it and the varanda bad a roof. In the circumstances it can be said that the place of incident was visible from the varanda where both the eye-witnesses were sitting at the time of incident and were in the position to see the incident. Evidence of eye-witness Bachal has been criticized on the ground that he is a chance witness and was incidentally present if prosecution version is to be accepted. Eye- witness Bachal is not related to the deceased or the com--plainant and is Mirbahar by caste while complainant is Unar by caste. Bachal had explained his presence in the otaq at the relevant time by deposing that he had come to the complainant to borrow a pair of bul. Locks. He has further stated that he is resident of the same village and his house is about one furlong away from the house of the complainant. In-- between the two houses there were fields. The learned counsel for the appellant had pointed out a discrepancy that eye-witness Bachal has stated the purpose of his visit to the complainant to borrow a pair of bullocks, while on the other hand the complainant has deposed before the trial Court that P. W. Bachal was sitting with him in the otaq at the time of incident and in his cross-examination has stated that Bachal was sitting with him for kachahrt (friendly chat). 1t appears from the record that the complainant in the F. I. R. Has also stated that at the time of incident he was sitting in the otaq alongwith Bachal Mirbahar. This discrepancy in minor in nature and cannot be given such significance to discard or doubt A the ocular account of the incident given by P. W. Bachal, which otherwise appears to be truthful. Kachahri is wide term and shows that both these eye-witnesses were sitting for quite some time exchanging news and views which might have included the request of Bachal of borrowing the bullocks. It was not pointedly put to the complainant that Bachal had come to borrow bullocks and he had denied it, neither Bachal has stated that he had gone to the complainant specifically for the purpose of borrowing bullocks and did not have a chit chat with him. Moreover, the incident took place in the month of October, 1975 and evidence of these two eye-witnesses was recorded in the month of January, 1979 which is after the lapse of three years and some odd months. In the circumstances B we are of the considered view that both these eye-witnesses were present in the varanda of the otaq at a short distance from the scene of offence and have seen the incident.
8. The learned counsel for appellant next submitted that the com--plainant has not mentioned in F. I. R. That crime empty was lying at the spot. The complainant has admitted in his cross- examination before the trial Court that he has not stated so in the F. I. R. Another suggestive question was put by the defence counsel to the complainant in his cross--examination that he had not stated in F. I. R. That appellant had unloaded the pistol, thrown the empty on the scene of offence and reloaded it. The complainant perhaps instead of confusion replied to this question in the affirmative. On the other hand, a perusal of F. I. R. Shows that the complainant had stated that Karim Bux loaded another cartridge in the pistol and told them not to come near. Very cleverly the first discrepancy mentioned above with regard to the empty at the spot was got cleared through I.
O. When he was in the, box before the trial Court and the second discrepancy with regard to the reloading of the pistol was inten--tionally not put to him, far the obvious reason that the complainant had in fact really mentioned about the reloading of the pistol by the appellant at the spot and threatened the witnesses not to come near. It is, therefore, clear that the complainant has mentioned in F. I. R. That the appellant after firing a shot at Muhammad Saleh had reloaded the pistol when witnesses approached. In the face of this fact that the pistol was reloaded at the spot it is but natural that before reloading the crime empty in the pistol had to be ejected, which must have fallen at the spot. Now, we come to the question why the complainant has not mentioned about the presence of crime empty in the F. I. R. The reply is that he has omitted to mention this fact in the F. I. R. Due to inadvertence. An illiterate person like complainant, whose brother, as young as 14 years of age, C was shot dead before his eyes, is likely to forget minute details when he rushes to the police station without any loss of time to lodge a report. Moreover, P. W. 8, Abdul Khalique S. H.
O. Has deposed before the trial Court that he found empty lying near the pool of blood and he also secured heap of roots of Jawar crops lying colleted there. In such circumstances, we are of the view that omission made by the complainant in making mention of the empty lying at the spot in F.
I. R. Was purely innocent. Moreover, the other eye-witness P. W. 5 Bachal has also deposed before the trial Court that he did not approach the appellant because appellant had reloaded the pistol having taken cartridge from the pocket and had thrown the empty at the scene of offence. This witness was not confronted with his Police statement on this point in his cross--examination obviously for the reason that he must have said so in that statement. This witness was confronted with his 164, Cr. P. C. Statement wherein he had not stated about the presence of crime empty at the spot specifically but he had stated therein that the appellant Karim Bux had reloaded the pistol with another cartridge and threatened the witnesses not to come near. Perusal of evidence -of both these witnesses induces us to hold that they have seen the incident as there are no material discrepancies in their evidence. We are further fortified in our view by the fact that F. I. R. Was lodged promptly without any delay. The incident took place at 5.00 p. m. When F. I. R. Was registered on the same day D at 7-00 p. m. After two hours when the distance between the scene of offence and police station is 8 miles. It is in the evidence of the eye--witnesses that after the departure of appellant they went near and turned injured Muhammad Saleh, who made a dying declaration as stated above and after a short while he expired. Complainant has deposed before the trial Court that he left other witnesses near the dead body and went to the Police Station Shahdadpur. He covered a distance of one mile on foot and came to bus stand from where he got bus and came to Shabdadpur. This explanation clearly shows that there was no delay in lodging the F. I. R. And. There was no time to manipulate t he story for false implication. We are, therefore, giving full credence to the ocular testimony furnished by the prosecution. We shall take up the allegation of enmity later on when we discuss the defence plea.
9. So far the piece of evidence with regard to dying declaration is concerned, criticism made by the learned counsel for the appellant is that the words uttered by the deceased in his dying declaration are not the same as testified by the two eye-witnesses. We do not find much difference in the gist of what was said by the deceased before his death.
Complainant Allah Bux has stated that deceased Muhammad Saleh told them that appellant hats come to him and told him that he had several times forbidden him not to have friendship with Doso Jokhio but since he was not listening to him, he was going to finish him. Then he gave him a slap and ultimately fired at him. On the other hand, P. W. 5 Bachal has stated before the trial Court that deceased Muhammad Saleh said to them that appellant had come to him and told him that 100 times he had told him not to have friendship with Doso Jokhio but since he was not coming round hence he was killing him and he (deceased) again told him that Doso Jokhio was his neighbour and had no bad connections with him. Appellant then fired at him and went away. Of course, there appears to be an addition in the version of P. W. Bachal about the deceased telling the appellant that he had no bad connections with Doso Jokhio. This slight addition is to be seen in the light of fact that the witnesses are illiterate and they were examined in the Court after lapse of more than three years. Even otherwise the gist is the same. The learned counsel for the appellant has cited before us the case of Tawaib Khan and another v. State (PLD 1979SC 13). This decision is not helpful to the argument raised by the learned counsel for the appellant because it lays down the general principle that dying declarations have sanctity under law but no rigid rule can be laid down that person under immediate apprehension of death would utter nothing but truth. It is further held that dying declaration like statement of interested witness requires close scrutiny. In the reported case deceased in his dying declaration had implicated two accused persons and the Supreme Court after deep scrutiny of the evidence on the record came to the conclusion that the case was made out against one accused only and the other was acquitted. In the instant ca a there is no question of false implication as there is only one accused and not more. Moreover, the gist of the dying declaration is that the present appellant had fired at him for the reason which need not be re-stated here. Further, in this case credibility of the dying man is not called in question but discrepancy in the statements of witnesses is pointed out. Apart from this both the witnesses testifying about the declaration are also the eye-witnesses of the incident. They have seen with their own eyes appellant firing at the deceased. The requirement of law is f that evidence with regard to dying declaration must be such that it inspires confidence and it does so in the present case. The learned counsel for the appellant has contended before us that dying declaration could not have been made as the doctor who conducted the post-mortem examination on the dead body has testified before the Court that deceased had died instantaneously. We have carefully checked that evidence of the doctor on this point. The doctor has deposed before the trial Court that the death must have been instantaneous and by that he meant within a very short period and did not mean immediately on receipt of injury. He has also deposed that on receipt of injury the deceased could have been in a position to speak for a few minutes. It was put to the doctor in cross-examination that he had not stated in his post-mortem notes that deceased could speak for a few minutes after receipt of injury and the doctor has explained that he did not have to say so in the post-mortem notes because there was no such column for this purpose. In the circumstances we do not find any reason to doubt evidence of witnesses about dying declaration. We also find that evidence of doctor support the ocular account of the incident in many material particulars. The doctor has stated that deceased must have received injury while he was standing. This supports the statements of the eye-Witnesses that deceased and appellant were talking together when the appellant fired at the deceased. The doctor has also stated that the seat of the injury was chest and there was charring present. This fact supports the eye-witness when they have stated that the appellant fired at the chest of the deceased from a very close range.
10. In the circumstantial evidence prosecution has examined (P. W. 7) Haji Ghulam Muhammad, who is a mashir and had produced mashirnama of wardat Exh. 19, inquest report Exh. 20, mashirnama of arrest of appellant and recovery of the blood-stained clothes Exh. 21 and mashir-- nama of recovery of pistol produced by the appellant Exh.
29. It may be mentioned here that crime empty was recovered from the spot which was put into a sealed parcel and subsequently after the arrest of the appellant, he led to the recovery of pistol from under the heap of dungs by the side of the hedge of his house which was put into a sealed parcel. Reports of Chemical Examiner and Ballistic Expert are to the effect that clothes of the appellant were stained with blood and the crime empty was fired from the crime weapon. We do not find any infirmity in the evidence of this mashir and hold that he is perfectly reliable. This mashir has been subjected to searching cross- examination but there is nothing in it to doubt his veracity. This witness is a Zamindar owning 103 acres of land in Taluka Sinjhoro and is a respectable person. It was suggested to him that he was tried for murder of Ahmed Khaskhaili alongwiih some other persons which he bad denied. It was further suggested to him that he was arrested under section 110, Cr. P. C. Which he has also denied.
He has admitted having been detained under D. P. R. But further stated that he was not arrested alongwith Mir Muhammad Wassan. It was contended by the learned counsel for the appellant that clothes of the appellant could not get stained with blood as according to prosecution deceased was fired at with the pistol, which must have been done from some distance. The record shows that both the eye-witnesses have stated that the shot was fired from a very close range, and before that both deceased and appellant were talking and appellant had slapped the deceased after which he took out his pistol and fired a shot at the deceased. This shows that both appellant and deceased were so close to each other that appellant had slapped the deceased before the shot was fired. Both the eye--witnesses have further stated that deceased after being injured fell down on his face. It is also in the evidence that the deceased had sustained injury in his chest from which blood had oozed. In the process of falling down in front of the appellant, who was so very close, clothes of the appellant could get smeared with blood. It is also in the evidence that there was blackening and charring present which fact has been confirmed by the doctor. In this context it was further submitted by the learned counsel for the appellant that there was delay in sending the parcels. It was pointed out that the S. H. O. Had stated in his deposition before the trial Court that on 12th he referred blood-stained articles to the Chemical Analyser and pistol and empty to the Ballistic Expert. Mr. Murtaza Hussain also drew our attention to the report of Chemical Analyser Exh. 24 in which reference is made to the letter of S. H. O. Dated 25th November, 1975 accompanying the parcels. Similarly in .The report of Ballistic Expert Exh. 25 date shown for receiving the parcels is 10th February, 1976. When the I.O. Was in the box before the trial Court no specific question was put to him to explain the delay. Had it been done, he would have given some explanation. It is not enough only to allege that there was delay but at the same time it is to be pointed out that parcels were tampered with. There is no such allegation that parcels were tampered with. It has been held in the case of Sikandar and others v. State (PLD 1981 SC 477) that articles found stained with blood having been secured under proper mashirnama and properly sealed and no suggestion is made of, any tampering with such articles and Investigating Officer is also not cross---examined as to delay in sending the parcels, reliance can be placed on the recoveries. In the instant case also we put full reliance on the evidence of mashir and the I.O. On the question of recovery of incriminating articles and their being put into sealed parcels. We, therefore, hold that evidence produced by the prosecution with regard to recovery of incriminating articles is fully worthy of reliance.
11. Now we come to the judicial confession which had been retracted by the appellant. This confession was made on the following day of the incident. P. W. 2, Mr. Muhammad Saliq, Mukhtiarkar & F. C. M., has recorded this confession and has deposed in the trial Court that he completed all the formalities, administered warnings properly before recording this confession which appeared to him truthful and voluntary. It was contended before us by the learned counsel for the appellant that this confession was not voluntary and was extracted from the appellant by the police. The Magistrate has deposed before the trial Court that he had examined the person of appellant before recording the confession and found no marks of violence. In cross-examination he had admitted that he had not written the question in the body of the confession whether the appellant had been maltreated by the police or not but he had stated specifically that he had written m the body of confession that there were no external marks of injuries on the person of the appellant. The appellant before the trial Court in his statement under section 342, Cr. P. C. Denied having made the judicial confession and stated that Mukhtiarkar had only obtained his signature and further he had been mercilessly beaten by the Police, therefore, he signed the judicial confession. It is worth noting that in the statement under section 342, Cr. P. C. Appellant bad not stated specifically that the S. H. O. Had thrust a danda into his, rectum and on the account he kept on bleeding. Before the trial Court as well as before us such an argument was raised on behalf of the appellant. It was also contended that such applications were made by the appellant before the trial Court sub--sequently. Now, the evidence of the Magistrate shows that no such allegation was made by the appellant when his judicial confession was recorded. When the I.O. Was examined before the trial Court it was put to him and he has denied that he had inserted piece of stick in the anus of the appellant due to which he started bleeding Had it been correct, the Magistrate would have found shalwar of the appellant stained with blood when he was brought for judicial confession. It may be mentioned here that the appellant had no reason to suppress this fact from the Magistrate because he was given to understand that whether he made judicial confession or not he would be sent to judicial custody and would not be given back to the Police. After the recording of judicial confession when appellant was remanded to judicial custody, he did not make any complaint to the jailor or medical officer of the jail with regard to the bleeding from anus. For the first time an application was made by Nabi Bux brother of the appellant on 21st October, 1975 which was after 11 days of recording of judicial confession and stay of appellant in jail. This application is on the record as Exh.
31. It is addressed to the Civil Judge & F. C. M., Shahdadpur. It is stated in this application that appellant was beaten by Police so much so that he became unconscious and when he regained senses he was again beaten up. It is further stated in Exh. 31 that appellant was bleeding while easing himself and had marks of injuries on his back. Request was made to the Court for treatment. It is obvious that even in this application no specific allegation is made that Police had thrust a danda in his rectum. On the other hand, it appears that due to beating internal damage was caused and appellant was bleeding on that account. Any way, even if that allegation as made in the application was correct we fail to understand why no such complaint was made to jail authorities and the jail doctor for as many as 11 days. Appellant has also produced before the trial Court order of the Court on that application which is on the record as Exh.
31. This order is dated 23rd October, 1975. It is stated in this order that appellant had no visible marks on his person and he admits that he has been produced by jail authorities before the medical officer for examination and treatment on various occasions. It is further stated in the order that it is the outlook of the Medical Officer to prescribe treatment and no further action was called for and the application was filed. Incidentally, it may be mentioned here that on 23rd October, 1975, when this order was passed by the Court as stated above, challan was also submitted in the same Court. Exh. 32 is affidavit of Nabi Bux, dated 21st October, 1975 in support of his application in which also no specific allegation has been made that danda was thrust by Police in the anus of the appellant. Exh. 33 is the application dated 24th October, 1975, made by appellant to the Civil Judge & F. C. M. In which the request is repeated for medical examination and allegation is made that appellant was beaten by Police as a result of that he was bleeding while easing himself. There is order of the Court dated 25th October, 1975, whereby the application was ordered to be filed in view of the order dated 23rd October, 1975 passed on similar previous application. Exh.
34 is again an application filed by counsel for the appellant before the trial Court in which the same request is repeated for medical examination and for the first time specific allegation . Is made that appellant was bleeding from his anus in which Police had thrust blunt weapon and further that judicial confession was extracted from the appellant after he was mercilessly beaten by the Police. There is order on this application of the Court dated 27th October, 1975 in which there is a direction that appellant be referred to the Medical Officer for examination and treatment. Exh.
35 is letter issued by the Court addressed to the jailor to produce the appellant before Medical Officer for examination on 28th October, 1975. Exh. 36 is letter to the Medical Officer from the Court dated 29th October, 1975 for examination of the appellant. The appellant had also examined (D. W.
1) Jamaluddin, a clerk of the District Court, Sanghar, who had brought record of Sessions case and produced applications and orders thereupon as stated above Exhs. 31 to 35. (D. W. 2), Muhammad Sawan, a clerk from Taluka Hospital, Shahdadpur, was examined by the trial Court and he produced register from the hospital showing entries Nos. 1342, 2844, 3065 and 3185 dated 15th October, 1975, 25th October, 1975, 27th October, 1975 and 28th October, 1975 respectively and copies of the entries have been produced and brought on record as Exhs. 39 to 42. These entries have been taken from outdoor register showing that appellant had attended the hospital for treatment.
These entries do not indicate what the complaint was and what treatment was given. One thing is clear from these documents that on the last date when the appellant was examined in the hospital was 28th October, 1975 and the orders of the Court for examination of the appellant were complied with. Still this evidence produced by the appellant does not prove that before recording the judicial confession danda was thrust in his rectum by the Police and judicial confession was not voluntary but was extracted from him on that account.
12. We propose to exclude from consideration judicial confession for other reasons. Story given in the judicial confession is not consistent with prosecution case on many material particulars. It is stated in the judicial confession that deceased Muhammad Saleh had first friendship with Doso Jokhio but later on became friend of appellant which annoyed Doso Jokhio, who came alongwith his brothers armed with lathis and threatened the appellant to give up friendship with Muhammad Saleh. Appellant told them that he had no concern with the by. Nabi Bux, brother of the appellant made entreaties to Doso Jokhio and others who went away. On the day of incident appellant took his unlicensed revolver and went to ditch for watering the cattle in the evening. Doso Jokhio was also standing on the ditch and deceased Muhammad Saleh was also going to Doso Jokhio.
Deceased Muhammad Saleh told the appellant that he should not go to the ditch as Doso Jokhio was present there and would fight with him. Appellant told the deceased that he was going with arrangement. Appellant further told the deceased that he should give up friendship with Doso Jokhio whereupon deceased replied that he had already given up friendship with him. Appellant became annoyed, took out pistol from the fold of his shalwar and fired a shot at Muhammad Saleh which hit him on the front side of his shoulder as a result whereof he fell down. The pistol was already loaded. Thereafter the appellant went to his house and sat there. Police came and captured him. Appellant produced his pistol to the Police.
The above narration made in the confessional statement clearly indicates that story of incidents as stated therein is different from the story in the prosecution case. Slap given by appellant to the deceased is not admitted in the confessional statement. Presence of eye-witnesses is not admitted. Throwing of empty and reloading of pistol and threats to eye-witnesses are not admitted. Soiling of clothes with blood and recovery of other incriminating articles by police is not admitted. Presence of Doso Jokhio at the spot is inconsistent with prosecution case. In the confessions) statement at one place revolver is mentioned and at the other pistol is mentioned. In the circumstances, we hold that confessional statement is very much different from the story of the prosecution and as a matter of precaution was rule out of consideration .The judicial profession.
13. So far the motive is concerned there is evidence of eye-witnesses complainant Allah Bux and Bachal as stated above and apart from this prosecution has also examined P. W. 6 Doso Jokhio who was bone of contention between the, appellant and deceased. Prosecution case is that appellant was annoyed on account of the fact that deceased was on friendly terms with Doso Jokhio and refused to give up that friendship in spite of the warnings given by the appellant. P. W.
Doso Jokhio has deposed that he had friendship with the deceased but had no bad connections with him. He has fully supported the prosecution case and has deposed that he and deceased had gone to Shahdapur on Eid of Ramazan before the incident and appellant Karim Bux met them at Cinema. Appellant threatened deceased Muhammad Saleh that if he would not give up company of Doso Jokhio he would kill him.' This witness has also deposed that on the day of incident in the morning appellant abused this witness and told him not to have friendship with the deceased. This witness was co-villager of the complainant and deceased. It was suggested to him in the cross- examination before the trial Court that he had killed Muhammad Saleh which fact is denied by him.
There is nothing in his cross-examination to suggest that he had given false evidence. This witness is Jokhio by caste and has no relationship with complainant. The prosecution has fully established its case on motive also.
13. Now we take up the defence plea of false implication because of enmity with Mir Muhammad Wassan. In his statement under section 342, Cr. P. C. Appellant has stated that all the witnesses who had appeared against him are the men of Mir Muhammad Wassan. Police had searched the houses of Mir Muhammad Wassan and his Haris and they suspected that appellant had a hand in getting their houses searched. It is further alleged that Mir Muhammad Wassan had disappeared during the regime of People's Party and when he came back appellant and his relatives demolished their houses and migrated away. About the search of the houses such suggestion was made to the complainant Allah Bux who has admitted that the houses of Mir Muhammad Wassan and his relatives were searched before the incident. He has also states in his cross-examination before the trial Court that houses of Rahim Bux Unar and Haji Unar were also searched in his village., He had specifically denied that appellant Karim Bux and his brother had served meals to Police when they had come to search the houses of Mir Muhammad Wassan and his relatives in his village. Complainant has also admitted that it was correct that on return of Mir Muhammad Wassan appellant had migrated away. P. W. 5, Bachal has stated before the trial Court that Police had not searched any house in his village after the arrest of Mir Muhammad Wassan. This witness has admitted before the trial Court that he is ---kamdar--- of Sukhio who is not related to Mir Muhammad Wassan. Complainant had admitted that Mir Muhammad Wassan is his nekmard and was tried under D. P. R. And was put in jail. It is admitted by the complainant that Mir Muhammad Wassan is murid of Pir Pagara and is his Khalifa. Trend of cross-examination shows that appellant wanted to make out a case that he has been implicated falsely because he assisted the Police in searching the houses of Mir Muhammad Wassan and his relatives but there is no evidence that he rendered any assistance to the police at the lime of search of the houses of Mir Muhammad Wassan and his relatives. It was contended on behalf of the appellant that appellant was supporter of People's Party while Mir Muhammad Wassan is Khalifa of Pir Pagara and during the regime of People's Party Mir Muhammad Wassan and his supporters were victimised and their houses were searched in which the appellant assisted the Police, hence appellant was falsely implicated in this case by the men of Mir Muhammad Wassan. This argument on the face of it is not plausible for the reason that incident took place in the month of October, 1975 when People's Party was very much in power and odds were against Mir Muhammad Wassan and in such circumstances how could the appellant, who was supporter of ruling party be implicated falsely on a murder charge. On the other hand, prosecution has produced overwhelming evidence to connect the appellant with the commission of crime as discussed above which fully establishes the case against the appellant beyond doubt.
14. There is also before us revision filed by the complainant for whom Mir Azizullah Shaikh, Advocate has appeared. The learned counsel has submitted before us that sentence of life imprisonment awarded by the learned trial judge is uncalled for and inadequate for the reason that there are no extenuating circumstances in this case to justify not awarding capital punishment which is normal sentence. We find that in the impugned judgment two grounds have been considered by the trial Court for not awarding death penalty. Firstly, that there was delay in the conduct of trial before the trial Court and, secondly, that the crime was committed on account of sexual jealousy and in that context the character of deceased by was also considered. The learned trial Judge has relied upon the case of Kambar Ali Shah v. State (PLD 1959 Kar, 460) in support of the proposition that lesser sentence is called for if there was delay in the conclu--sion of trial. In the reported case mentioned above lesser sentence was not awarded exclusively on the ground of delay but another important factor which was considered by the Court was absence of motive. In that case evidence disclosed that appellant and deceased had lived a happy married life for a long period of 22 years without any untoward incident having happened in their life and further the prosecution case was that on the day of incident appellant picked up a hatchet and brutally murdered his wife and what had really led to the murder was not explained by the prosecution In such circumstances the sentence was reduced on the ground of delay as well as absence of motive. So far the second ground of sexual jealousy, is, concerned we do not feel inclined to agree with learned trial Judge in proposition that this ground, is good enough to provide justification for reducing sentence from death to life imprison--ment particularly when the facts of the case point to passion for unnatural offence which is entirely immoral. Mr. Azizullah Shaikh ha cited before us judgment of D. B. Of Peshawar High Court in the case of Janat Gul v. State (M 1968 P Cr. L J 747) which deals with the question of reduction of sentence on exactly this ground. In the reported case murder was committed on account of rivalry over a by, and the trial Court refrained from awarding capital punishment on the ground that both appellant and deceased were guilty of pursuing a wicked cause and the conduct of the deceased was definitely immoral. The trial Court had further taken into consideration the fact that the deceased had taken the by to hujra for sleeping with him in the same room, which aggravated the situation and provoked appellant and he fired at him. The learned trial Judge observed in his judgment "that since the deceased met his death as a sequel to an affair, which offends against the notions of decency of the society he did not consider it expedient to visit the accused with capital punishment. The learned Judges of the Peshawar High Court observed :- ---If this is considered a mitigating circumstance, we disagree with it, the appellant being equally guilty of the same immorality.---
15. Now the question arises whether reduced sentence was justifiable only on the ground of delay.
The learned trial Judge m the instant case has stated in the judgment that trial concluded after three years and 4 months. Perusal of the case diary of the record of Sessions Court shows that challan was presented on 23-10-1975 in the Court of Civil Judge & F. C. M. Where it remained pending till 10-1-1976, when the case was sent to the Court of Session for trial as it was exclusively triable by the Court of Session after amendment in law. Case diary further indicates that the case was adjourned on several occasions for various reasons including non-attendance of witnesses. In such circum stances it cannot be said that there was inordinate delay in the conclusion of trial to justify awarding of lesser penalty. Mr. Azizullah Shaikh ha argued before us that in the normal course when the prosecution case stands fully established death penalty is to be awarded unless there are mitigating or extenuating circumstances and further that in the instant case no such circumstance is available. He has cited before us decision of the Supreme Court in the case of Muhammad Sharif and others v. State (PLD 1976 SC 452). In this reported case Supreme Court of Pakistan has taken serious exception to the tendency of the Courts in not awarding capital punishment id murder cases particularly when there are no extenuating circumstances. The Supreme Court has also laid down the guidelines, therefore it is necessary to reproduce the relevant paragraph verbatim, which is as under :- "It has come to the notice of this Court that in an increasing number of convictions on charge of murder there is a kind of inhibition or hesitancy on the part of the trial Courts in awarding the normal penalty of death. I cannot also avoid an impression that there is often a marked tendency in the High Courts to find a laboured pretext to alter the sentence of death to life imprisonment. No doubt having regard to the sanctity of human life and liberty, the law has taken all conceivable precautions to safeguard it. The law of evidence and in particular the rules of admissibility excluding confessions made before a person in authority, the rule of placing the onus on the prosecution, conceding to the accused the liberty of a privilege liar, the Courts responsibility to spell out reasonable existence of an unpleaded defence, if warranted by the facts and circumstances of the case and above all the golden rule of giving the benefit of doubt to the accused are measures aimed at the protection of human life against false implication and undeserved punishment. The matter does not end with the finality of judicial proceedings as the executive has also been invested with the power to meet the failures of legal justice and undo the mischief found to have been done by it. An equally important aspect of this sanctity of human life often lost sight of is that once conviction is finally upheld the deliberate extinction of life is visited with the normal penalty of death which is not confined to the actual killer but is also extended to the other co-accused sharing the community of intention as the case may be and found to be "constructively liable". The principal object behind this obviously is to avoid repetition of violent loss of life by awarding deterrent punishment. The exaggerated and distorted F. I. Rs., the reluctance of eye-witnesses to come forward, the dishonest investigation, the false witnesses and their frequent subornation and above all the lingering trial of appeals, all com--bine to help out the murderers of whom only a small fraction is brought to book. Viewed in this background, the marked propensity of the Courts to avoid death penalty at the trial or allow unjustified commutation in appeal followed by frequent remissions of sentence both earned and conferred is bound to take away the sting of deterrence, thus indirectly contributing to the incidence of heinous crime of which the Courts cannot fully escape the share of responsibility. Once the conviction is recorded under section 302, P. P. C. In case of premeditated and concerted attack launched with the intention of killing the invocation of section 34 or 149, P. P. C. Does not make tee slightest difference amongst the various convicts from whom ordinarily the normal penalty of death shall be evicted and no discrimination could justifiably be made on that score .In the matter of sentence. Reference may be made a this regard to Gurdev Singh and others v. Emperor a D. B. Judgment by Muhammad Munir and Muhammad Jan, JJ, as they then were, in which the revision petition for enhancement of sentence of transportation was allowed and sentence of death was awarded to four convicts on capital charge. The next relevant case is Khairdi Khan and others v. Crown again a Lahore judgment of high "authority by Muhammad Munir, C. J., and S. A. Rehman, J. Both of whom retired as Chief Justices of Pakistan. Here again accepting the revision petition the learned Judges enhanced to death the sentences of transportation for life awarded to three convicts in a case of double murder. The next judgment is Shaheb Ali v. State in which it was observed by this Court if several persons combined to destroy one human life dastardly and with a deliberate design with no extenuating circumstances to mitigate the offence of anyone of them, the long arm of the law, according to its dictates, must reach all of them sternly and remorselessly in an equal manner."
Earlier in the same judgment it was observed, --if on the facts of a given case, law and justice demand a heavier toll for the extinction of single life at the hands of more than one culprit, it has to be exacted". However, there may be a host of extenuat--ing and mitigating circumstances such as extreme youth, sudden provocation., influence of an elder, question of family honour, etc. Justifying the award of the lesser penalty of life imprisonment based on a chain of judicial pronouncements offering useful guidelines."
16. For the facts and reasons stated above we hold that prosecution has proved its case against the appellant beyond doubt by overwhelming evidence, hence we dismiss the appeal and allow revision by enhancing N sentence from life imprisonment to that of death as there are n extenuating or mitigating circumstances in this case.