Appellant above-named, being aggrieved by judgment dated 29th July. 1982 of the learned IIIrd Additional Sessions Judge, Karachi, by which he has been convicted under section 302, P. P. C. And sentenced to suffer imprison--ment for life and to pay fine of Rs. 5,000 has preferred the above appeal, on the following facts and grounds :-
2. Prosecution case as unfolded at the trial is, that Sultan son of Ghulam Rasool used to reside in House No. 518, Nai Abbadi Baiss Colony, Karachi and was suffering from some illness. On the date of the incident viz. 12-10-1978 Abid Hussain Shah and his friend Muzaffar went to the house of deceased. Sultan asked the present appellant to do act of kindness for the deceased. Upon which appellant told the deceased, that what is act of kindness which he can do for him. Upon which deceased Sultan told the appellant, that he is fed up with his life and, therefore, deceased asked the appellant to tie his feets with the rope and kill him. It is further alleged, that the present appellant thereafter cut the throat of Sultan, who died due to this injury.
3. The present appellant thereafter proceeded to the Police out--post and gave 154, Cr. P. C.
Statement at 3-30 p. m. Which was recorded by A. S. I. The statement of the appellant was incorporated in 154, Cr. P. C. Book. According to 154, Cr. P. C. Statement the present appellant stated, that on 12-10-1978 at 2 p. m. He went to the house of the deceased alongwith his friend Muzaffar Ali, deceased told him that he was fed up with the life and he should be relieved of his life.
4. On the basis of this F.
1. R., S. H. O. Ghulam Qadir took up the investigation. Appellant Abid Hussain Shah who was arrested by A. S. I. Muhabat Khan alongwith blood-stained razor led the Police to the place of the incident and pointed out the place, where he had killed deceased Sultan. The wardat was inspected by the I. O. The inquest report was prepared in presence of the mashirs and the dead body was sent for post-mortem examination through Police constable.
5. The I.O. Interrogated the appellant and appellant was prepared to give confessional statement and, therefore, the appellant was sent to A. C. M., Korangi, Karachi and on 15-10-1978 the confessional statement was recorded.
6. After killing deceased appellant met Farid Khan and told him that he had murdered his friend and, therefore, he is going to Police post, for information. Farid Khan went after him to the Police post. The appellant reported his own crime to the police. The appellant had a razor, which was secured and sealed by the Police under Mashirnama.
7. The police after usual investigation challaned the appellant to stand trial in the Court.
8. The charge under section 302, P. P. C. Was framed and read over to the appellant, who pleaded not guilty and claimed to be tried.
9. Prosecution examined the following witnesses in support of its case :-
(1) P. W. 1 Gulistan Khan Exh. 5.
(2) Muzafar Ahmed witness Exh. 6.
(3) Fatal Elahi P. C. Exh. 7.
(4) P. W. 4 Farid Khan Mashir Exh.
(5) P. W. 5 Syed Samiuddin Ahmad Magistrate Exh. 22.
(6) P. W. 6 Muhammad Nafees H. C. Exh. 25.
(7) P. W. 7 Dr. Iqbal Ahmed M. O. Exh. 28.
(8) P. W. 8 Mubabat Khan 1. O. Exh. 30.
(9) P. W. 9 Ghulam Qadir I. O. Exh. 31.
10. The appellant was examined under section 342, Cr. P. C. And the appellant denied to have killed the deceased, as claimed by the prosecution. According to appellant Exh.
26. Bears his signature, but he does not know what is written in it. According to appellant the confessional statement is neither voluntary nor true. The confessional statement was taken after maltreatment of his parents and it was obtained after 5 days of his arrest. The confessional statement was obtained under duress. The appellant denied to have produced blood-stained razor and denied to have received any injury on his hand, while cutting the throat of the deceased.
11. According to appellant he is innocent and he has been falsely involved.
12. Appellant led no defence.
13. The learned trial Court taking into consideration the evidence adduced by the prosecution, convicted and sentenced the appellant, as hereinbefore mentioned and consequently the appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal.
14. The learned Advocate for the appellant in support of the above appeal submitted as under:-
(a) That there is no ocular evidence at all of the incident.
(b) That judicial confession of the appellant was recorded 3 days after his arrest, which was retracted by him and extra judicial confession is a week piece of evidence and as such no reliance can be placed on such confessions. In support of this the learned Advocate for the appellant relied upon cases reported in 1975 P Cr. L J 440, PLD 1982 Lah. 40, PLD 1981 Kar. 581, 1980 P Cr. L J 827 and 1980 SCMR75.
(c) The recovery Mashirs of knife P. W. 4 and P. W. 8 cannot be relied upon, as their statements are not convincing.
(d) F.I.R. Alleged to be lodged by F. I. R. No reliance can be placed on such F. I. R. In support of this learned Advocate for this appellant relied upon case reported in PLD 1956 SC 420.
15. The learned Advocate appearing for the State on the other hand submitted, that prosecution has proved its case beyond reasonable doubt against the appellant by statements of P. W. 4 and P.
W. 8 and on account of recovery of blood-stained razor from the possession of the appellant, as well as by his judicial and extra-judicial confessions, as no enmity at all is alleged against these P.
Ws. In addition to this, body of the deceased was recovered at the instance of the appellant.
However, the learned Advocate for the State submitted, the offence committed by appellant in view of the facts on record would fall under section 304(1), P. P. C. And not under section 302, P. P. C., in view of exception V to section 300, P. P. C.
16. 1 have carefully considered the above submissions made by the learned Advocate for the appellant as well as State counsel and have gone through the Record and Proceedings of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for the appellant.
17. The contention of the learned counsel, that judicial confession of the appellant be discarded, as the same was recorded three days after his arrest and the same was under duress, has great force. 1n this connection the cases cited by the learned Advocate for the appellant are applicable to the case of the appellant.
18. As far as extra judicial confession of the appellant made before P. W. 4 Farid Khan is concerned, I see no force in the argument of the learned Advocate for the appellant, as no doubt extra-judicial confession is a weak piece of evidence. However since no enmity whatsoever is alleged against this P. W. And in view of the fact that dead body of the deceased was recovered at the pointation if appellant, which has been established by evidence of P. W. 9 Ghulam Qadir (I.O.) and P. W. 4 Farid Khan. Evidence of these P. Ws. In respect of these facts was not at all shaken in their cross- examination nor appellant has alleged any enmity against these witness s. It may be further noted, that appellant voluntarily appeared at police post according to P. W. 8 Mohabat Khan and lodged F. I. R. And as such he was arrested and blood-stained razor was secured from his possession.
Statement of P. W. 4 has not at all been challenged by appellant in his cross-examination, although appellant was duly represented by able counsel. In view of these facts, even if, judicial confession of the appellant and F. I. R. Are discarded, still, in my opinion prosecution has established its case against appellant beyond reasonable doubt, by the statements of P. Ws. 4 carid Khan and P. W. 8 Mobabat Khar. And P. W. Ghulam Qadir (I. O.). However, the effence committed by appellant in view of prosecution evidence on record, would fall under section 304 (1), P. P. C. And not under section 302, P. P. C., as rightly submitted by the learned Advocate for the State.
19. Therefore, while dismissing the above appeal on merits. I alter the conviction of the appellant from 302, P. P. C. To one under section 304(1) P. P. C. And in view of the facts of the incident, I also reduce the sentence awarded to the appellant from life imprisonment to R. I. For 5 years only and impose fine of Rs. 1,000 in default to suffer further R. I. For six months. I further direct, that benefit of provisions of section 382-B, Cr. P. C. In, respect of the period of detention of appellant as under trial prisoner, be given to him towards his substantive sentence, in addition to all other remissions to which appellant may be entitled, in accordance with rules.