1. ' Gul Bahar son of Karimdad Chandio the appellant alongwith Allah Rakhio son of Muhammad Hussain Bajwa was tried for committing robbery in respect of Taxi Car No, 325-964 of 1966-78, Hyderabad and for murder of the Driver Muhammad Aslam by the Ilnd Additional Sessions Judge, Nawabshah, who acquitted Allah Rakhio son of Muhammad Hussain Bajwa giving him the benefit of doubt and convicted the appellant under section 394, P.P.C. And sentenced him to R.I. For 10 years and to pay a fine amounting to R8.1,000 or in default to suffer R.I. For six months more and under section 302, P.P.C. To suffer imprisonment for life and to pay a fine amounting to Rs,2,000 or in default to suffer R.I. For one year. Both the sentences were ordered to run concurrently.
2. ' The appellant has filed the instant appeal from jail against the aforesaid conviction and sentence.
3. ' The record of the case has been perused with care with the assistance of Mr. Rashid Tariq the learned counsel appearing on behalf of the State.
4. ' The facts of the case briefly stated are that deceased Muhammad Aslam was Driver of taxi cab owned by Kamal Muhammad son of Nazar Muhammad, a resident of Khawaja Chowk in Hyderabad. Muhammad Khan son of Fan! Din Pathan, who is transporter by profession and occupation and who runs several taxis in Hyderabad, also used' to help Kamal Muhammad in the maintenance and running of his taxi. On 3-7-1978 at about 1 or 2 p.m. Muhabat Khan was sitting at the taxi stand, Hyderabad where several taxis were parked. Since he was running taxis himself, it was part of his duty to supervise and, therefore, it was usual for him to be there. He noticed the appellant who was trying to hire a taxi and was approaching the various taxi drivers for the purpose. After talking to two other drivers who did not agree to go with him, the appellant spoke to Muhammad Aslam deceased who was sitting in the taxi. The deceased appeared to have agreed to have his taxi hired, since Muhabat Khan saw the appellant sitting on the front seat of the taxi next to the driver. While Aslam was driving off, Muhabat Khan stopped him and asked him as to where he was going. The deceased pointed to the appellant and said that he was hiring the taxi to go to Sukkur for about three four days. P.W. Shafaullah cleaner was also there as he was the cleaner for the taxi to the appellant on condition that he would pay' Rs,200 per day and the petrol charges. Deceased Muhammad Aslam said that he had to have change of clothes and his meals at his home and, therefore, he and Shafaullah cleaner took the appellant in the cab and went to his house where he changed his clothes and took meals. When they were returning from the house of deceased the appellant told them that since he had to take his family, therefore the cleaner should not sit in the cab. Shafaullah then asked deceased Muhammad Aslam that he should leave him at Gharikhata Taxi Stand, and he was dropped there. He last saw the appellant sitting in the taxi and the deceased driving to away.
5. ' The next day P.W. Muharam, who is also a taxi driver, informed Muhabat Khan, Shafaullah and others that he had seen the taxi of Kamal parked near Kotri Muhammad Kabir on the National Highway with the doors open. On hearing this, Muhabat Khan took Muhammad Kamal, Shafaullah and relations of deceased, namely, Muhammad Younus and the mother of the deceased near the place of incident. They saw taxi of Kamal parked and some policemen standing there. They were told that one dead body was lying on the Meharabpur Road at a distance from the place and they all went there and found that the dead body was of deceased Muhammad Aslam.
6. ' In the meantime, Fateh Muhammad son of Umer Din was working in his field which is near the National Highway near village Kotri Muhammad Kabir and at about 10 a.m. On 4th June, 1978 saw on the entrance of his land just by the road side the dead body of a human being lying. He went to his Zamindar Mian Ghous Bux and informed him about the finding of the dead body. Ghous Box asked his servant Hakim to accompany Fateh Muhammad to go and report the matter to the police. Fateh Muhammad and Hakim went back, saw the dead body and went to the Police Station Muhabatdero Jatoi which is at a distance of 20 miles and lodged the F.I.R. With A.S.1. Fazal Hussain who at that time was incharge of the police station. After recording the F.I.R. And registering it, he took some constable of the police station and proceeded to the scene of offence which was shown to him by the first informer Fateh Muhammad. It was in the uncultivated land of Mian Gous Bux Pirzado in Deh Kotri Muhammad Kabir Taluka Kandiaro adjacent to the link road between Mehrabpur and Kotri Muhammad Kabir. They saw the dead body having knife injuries and, there was blood at the scene of offence. Fazal Hussain secured some of the blood-stained earth and sealed it in a packet and also prepared Mashirnama of the scene of offence in the presence of Ilahi Bux son of Gul Sher Baloch and Allanditto son of Khan Muhammad. He next prepared Theinquest report of the dead body in the presence of the same Mashirs. In the meantime, the party from Hyderabad headed by Muhabat Khan and Kamal, including Muhammad Younus brother also came on the scene of offence and identified the dead body of Muhammad Aslam deceased. Fazal Hussain next recorded statements of Ghulam Hussain Police Constable from Mehrabpur Chauki, Shafaullah cleaner, Muhammad Younus, brother of the deceased and Muhabat Khan Pathan. Lie also recorded statement of the owner of the taxi, namely, Muhammad Kamal and one Muhammad Sidik. Next he went to the place where the taxi cab, which was a Toyota car of white colour, was lying. It had in the first instance been secured under section 550, Cr.P.C. As being unclaimed property in the presence of Mashirs Ghulam Ali and Muharam Ali. Fazal Hussain then handed over the papers of the investigation to S.H.O. Muhammad Abid Shah for further investigation. Before the version with regard to investigation by Fazal Hussain is ended, it may here be stated that, according to the prosecution case, on 10-9-1979 he was informed by Thatta Police that they had arrested the appellant and, therefore, he went to Thatta and brought the arrested appellant after taking him in his custody for which he prepared Mashirnama in the presence of Muhammad Urs and Jumo. On 5-7-1978 Syed Abid Shah, S.H.O. Police Station Muhabatdero Jatoi returned from leave and A.S.I. Fazal Hussain handed him over the papers of the case. He continued the investigation at Hyderabad and other places and on 12-9-1978 be sent the appellant to the Court of Mukhtiarkar and F.C.M. Kandiaro for recording of his judicial confession which was recorded. He then called prosecution witnesses Shafaullah and Muhabat Khan for purpose of identification of the appellant. The identification test was held before Third Class Magistrate Kandiaro in which the witnesses successfully picked out the appellant. After completing the investigation, the case was sent up for trial. Incidentally, before sending the facts of the prosecution case it may here be stated that Police Constable, Ghulam Hussain, who was attached to the Police Post Mehrabpur and who was doing the duty of patrolling in the town of Mehrabpur had seen the taxi cab in question driven by the deceased with the appellant and co-accused Allah Rakhio sitting on the back seat.
7. According to him, he was suffering from cold and, therefore, he had gone to the hotel for a cup of tea when he saw the taxi coming. The taxi cab went to the station and returned after a few minutes and it passed on the road at a distance of about two yards from the place where he was sitting, and he had noticed the two accused and the deceased in the car. The two accused and the driver had got down and had come into Ilyas Hotel which was near the hotel in which he was drinking tea.
8. They took about four-five minutes in taking tea and went in the same car. Incidentally, Ghulam Hussain previously knew both the accused and, therefore, he could remember having seen them in the car. A Press Reporter had informed him about dead body of an unknown person being found and the securing of a car with the particular number plate. On hearing the news, therefore, he immediately told the Press Reporter that he had seen the driver and the two passengers at Mehrabpur and he, therefore, considered it necessary to report the facts to A.S.I.P. Who directed him to go to the scene of offence. On arrival there he saw Muhabatdero Jatoi Police making investigation and he identified the dead body and also made his statement before the investigating police.
9. ' A careful perusal of the evidence on record would show that, although there is no direct ocular evidence implicating the appellant, there is very strend circumstantial evidence against him connecting him with the commission of the crime.
10. ' Firstly, there is the evidence of prosecution witnesses Muhabat Khan, the Transport Contractor and Shafaullah, the Cleaner of the taxi cab involved who had last seen the deceased whose taxi was engaged by the appellant. Shafaullah has explained the circumstances under which he was dropped from the taxi at the Gharikhata Stand at the instance of the appellant which goes to support the prosecution that he was concerned in the robbery of the taxi and the incidental murder of the taxi driver. There is also the evidence of Police Constable Ghulam Hussain for whatever it is worth which has been believed by the learned Additional Sessions Judge specially in view of the fact that both the accused were previously known to him and he had stated on oath having seen them in the taxi cab being driven by the deceased.
11. ' There is the judicial confession of the appellant before Mr. Faiz Muhammad, the Mukhtiarkar and F.C.M. Kandiaro who was examined a prosecution witness. It is apparent from the perusal of the record that all the precautions usually taken before recording the confession were duly taken by him and that the confession was voluntarily made. It is true that the appellant has retracted from the confession, but since the same is corroborated in all material particulars by independent evidence which has not been challenged, the due weight has rightly been given to the confession by the 'earned Additional Sessions Judge. It may here be briefly stated that the particulars with regard to the hiring of the taxi, the robbing of the same while armed with deadly weapon, the murder of the driver, all these particulars are corroborated by testimony, by way of circumstantial evidence about the finding of the dead body of the driver, the finding of the taxi cab, and as already stated, the evidence of the person who last saw the deceased with the appellant also goes to support the confessional statement as made by the appellant. It may also here be mentioned that the evidence of Doctor Illahi Bux Soomro, who performed the post-mortem examination of the dead body corroborates the confession with regard to the nature and manner of the injuries inflicted. There is also evidence of the witnesses who saw the dead body and the arms of the deceased had been tied at the back with the taps taken out of the Shalwar.
12. ' There is evidence of Syed Abid Shah S.H.O. That the appellant voluntarily led him and Mashirs'
13. Habibullah and Ghulam Asghar to a place near the place of incident and produced a blood- stained knife from a bush. The recovery of the knife was due to its being indicated by the appellant, as otherwise it could not have been found from the bushes. There is evidence of the Mashirs with regard to this recovery of knife at the pointing out by the appellant. The blood-stained knife was sent to the Chemical Analyser who gave a positive report that the knife was stained with human blood.
14. ' It is true that co-accused Allah Rakhio son of Muhammad Hussain was acquitted and in the confession by the appellant major part in the kiling of the driver was attributed to the aforesaid Allah Rakhio. However, even if the part which the appellant, according to his own confession, performed in the murder, he is guilty not only of the armed robbery but also of the murder. The learned Additional Sessions Judge has given cogent reason for acquitting Allah Rakhio son of Muhammad Hussain .Bajwa as none 'of the prosecution witnesses, except Ghulam Hussain, stated in the Court that they had even seen Allah Rakhio and, as rightly concluded by the learned Additional Sessions Judgd, the evidence against Allah Rakhio was not sufficient to sustain his conviction.
15. ' In the circumstances of the case, I find no merit in this appeal which is accordingly dismissed.