MUHAMMAD HALEEM, J.-Appellant Ghulam Hyder atlas Gullu (20) was tried by the Sessions Judge, Tharparkar, along with Faizoo (15) for the murder of Budh4 and both of them were convicted on a charge under section 302 read with section 34, P. P. C. And appellant Ghulam Hyder was alone sentenced to death. No sentence was, however, passed on Faizoo as he was a child offender within the meaning of section 4 of the Children Act and he was ordered to be detained in the Juvenile section of the jail or in the remand home at Landhi with a direction that his case be referred to the Provincial Government for orders. The reference, which is also before us for the confirmation of the death sentence, and the appeal will be disposed of by this judgment.
2. The report (Exh. 7) of the incident was lodged by Allahbachayo (P. W. 2) at Police Station Taluka (Mirpurkhas), which is at a distance of 14 miles from the uncultivated land of a Malhi in deh 134 where the incident occurred. The report was recorded by Dodo Khan S. H. O. (P. W. 5) at 1 a. m. On 23rd October 1967.
3. The facts of the prosecution case as revealed in this report are these on 22nd October 1967 at about Vichi prayer time while Allahbachayo, the complainant, was in his house, he saw deceased Budho, appellant Ghulam Hyder alias Gulu Khaskeli armed with a hatchet, Ismail and Faizoo armed with a lathi going by the side of his house. He asked them as to where they were going, for a walk.
He then asked Ismail about his father as to where he was as he wanted to get his labour wages for him. He replied that he was in his house. These persons then left towards the village of Uttar Khan and Saifal The complainant then left his house to purchase some provisions and also to get labour wages from Utter Khan While on the track in the uncultivated land of a Malhi he saw a pool of blood under a Babool tree which was on the south lank of the water course. He then found a trail of blood going up to the bed of the water course. There were also dragging marks and on reaching the bed of the water course he saw the dead body of deceased Budho who had hatchet injuries on his back. He then went and informed Uttar Khan who asked him to go and inform Saifal as deceased Budho was his paid servant. He then went towards the field of Saifal having cotton crop cultivation.
He saw Saifal going towards his house and although he called him out yet Saifal did not pay any heed to his call. The complainant then went and informed Uttar Khan and told him that Saifal had not responded to his call, whereupon Uttar Khan went and brought Saifal and informed him of the incident. They talked amongst themselves for some--time and then Uttar Khan told the complainant to go and lodge the report at the' Police Station.
4. Allahbachayo (P. W. 2) had, however, indicated his suspicion on the' persons whom he had seen along with him shortly before but did not give any reason as to why they had killed him,
5. P. W. Dodo Khan, the investigating officer, then proceeded towards the wardat and reached there at about 4-30 P.m. He found the dead body of deceased Budho lying on the bed of the dry water course and noticed a pool of blood under the Babool tree. He took into possession the blood- stained earth in the presence of Mashir Haji Obhayo (P. W. 4). He then sent the dead body of deceased Budho for post-mortem examination to the Resident Medical Officer, District Head Quarter Hospital, Mirpurkhas. P. W. Uttar Khan then sent for appellant Gullu and Faizoo and produced them before the said investigating officer on 23rd October 1967 at midday in the presence of mashir Haji Obhayo. Appellant Ghulam Hyder alias Gullu was arrested and from his person a Banyan and one loin-cloth were secured and sealed into a parcel as per Mashirnama (Exh. 13). He showed his inclination to produce his hatchet. He then lead the same mashir and the investigating officer to the garden of Saifal and from inside the bushes of Nim, Sar and Sumbhalo produced a hatchet, which was also secured and sealed into a parcel as per Mashirnama (Exh. 14).
Convict Faizoo was arrested in., the presence of Mashir Haji Obhayo as per Mashirnama (Exh. 16).
His clothes were however not blood-stained and they were not secured for that reason. He, however, led the investigating officer and produced a lathi in the presence of the same mashir, which was secured and sealed into a parcel as per Mashirnama (Exh. 17). His judicial confession was also recorded by the same Magistrate on 24-10-67 wherein he had implicated himself as well the appellant.
6. On 24th October 1967 appellant Ghulam Hyder was produced before the Mukhtiarkar and First Class Magistrate, Jamesabad, who recorded his judicial confession (Exh. 19). The incriminating articles were sent to the chemical analyser for his opinion and according to his report (Exh. 21) only the earth and the hatchet produced by appellant Ghulam Hyder were found to contain human blood. On other articles the blood had disintegrated and its origins could not be determined.
7. The autopsy on the dead body of deceased Budho was performed by Dr. Mansoor Ali who noticed two incised injuries on his person and, according to him, death had resulted' due to shock and haemorrhage and the injury on his neck was sufficient to cause death in the ordinary course of nature. It was further opined that the injuries were caused by a sharp cutting weapon, like a hatchet.
8. In the committal Court, appellant Ghulam Hyder had merely contended himself by denying the prosecution allegation and had further stated that he had been falsely implicated due to enmity.
As for the confession he had stated that the police had tortured him to give the confession. In the Sessions Court he stated that he had enmity with P.W. Ismail because his mother was the sister of his step sister and that his own mother was a Hindu. He maintained his stand taken in the committal Court that it was because of torture that he had given the confession. The appellant has led no evidence in defence.
9. The learned counsel for the appellant has not urged any--thing on the merits of the case to challenge his conviction. We have ourselves examined the evidence. Not only there is the ocular evidence of Muhammad Ismail (P. W.1), who is the appellant's cousin, which implicates him in the crime but there is also his retracted judicial confession, which was recorded on 24th October 1967, a day after his arrest, in which he has admitted having murdered deceased Budho. We have, however, observed that Ismail as well as the appellant in his judicial confession have ascribed a blow by lathi on the deceased to convict Faizoo although, according to the medical evidence, no injury by a blunt weapon was observed. This feature may have a bearing on the case of convict Faizoo but his appeal is not before us and we would refrain from expressing anything concerning him. However, in all other essential respects the version given by P. W. Ismail is consistent with that given by the appellant in his judicial confession. The presence of P. W. Ismail cannot also be doubted as the appellant himself in the judicial confession has admitted it. He is the first cousin of the appellant and there appears no reason for us to hold that he would falsely implicate his own relation. Nothing has also been suggested in his cross--examination to this effect. There is also the circumstantial evidence of P.W. Allahbachayo who had seen the deceased in the company of appellant Ghulam Hyder, convict Faizoo and P. W. Ismail shortly before the occurrence. No feature appears in the evidence as well to render, it suspicious. He is of a different caste and is a disinterested witness. We would accept his evidence, which also corroborates the judicial confession as well as the version given by Ismail to the extent that the deceased was seen in the company occurrence.
10. The confession although retracted is duly corroborated by the production of the hatchet by the appellant which was found to contain human blood. There appears nothing to discredit the evidence of the recovery witness, Haji Obhayo. No question was put in his cross-examination to challenge the recovery of the hatchet. All that was suggested was that the hatchet was not sealed at the spot, which suggestion was denied.
11. The judicial confession although subsequently retracted is, according to us, voluntary and in all essential respects is supported by the evidence of P. Ws. Ismail and Allahabachayo and duly corroborated by the recovery of the hatchet at the instance of the appellant. The reason for retraction of the confession as given by the appellant in his statement recorded under section 342, Cr. P. C. Also does not find support from any material on record. The confession was made the day following his arrest and we have found nothing on the record to detract us from holding that it was .Not voluntary. The confession of convict Faizoo also implicates him as the main actor in the drama which, when considered along with the other evidence, points to his guilt beyond reasonable doubt.
12. Thus, in view of the unchallenged evidence we have no hesitation in holding that .It was the appellant who had inflicted the hatchet blows on deceased Budho, which caused his death.
13. The motive for this murder appears to be as disclosed by P. W. Muhammad Ismail. Deceased Budho had won over two boys, namely Ibrahim and Abdullah, who were friends of appellant Ghulam Hyder and convict Faizoo about 15 days prior to this incident. It is stated that deceased Budho was in a habit of running after boys and that this change of affection induced by the deceased had infuriated the appellant to commit his murder. This motive also finds support in the confession as well. We see no reason to doubt it.
14. As for sentence, the learned counsel for the appellant relied on two circumstances for the reduction of sentence. The first was his youth as he was only 20 years old and the second was the provocation that he received, according to the learned counsel, because the appellant had won over the affection of his friend, Ibrahim, a by. In support of his plea of age as a factor, which would mitigate the offence, the learned counsel relied upon two decisions, one The State v. Tasiruddin (PLD 1962 Dacca 46) and the other as Sher Hassan v. The State (PLD 1959 SC (Pak.) 480). In the first case, there was not only the early youth, which was under consideration but also the fact the condemned person was a mere instrument of his clever and astute elder brother. The age factor was not thus theonly consideration and that, therefore; this authority cannot be of any help to the contention of the learned counsel for the appellant.It is true that their Lordships have observed that condemned prisoners in their early or middle teens should not the sentenced to death yet they have held at the same time that every case has to be decided on its particular facts and it is difficult to lay down in precise terms the exact limits of the principles, which would justify the awarding of the lesser sentence. In the second case also the condemned prisoner was 18 years of age and there was also the other factor that he was incited to commit murder by his elder brother.
The second factor constituted the ground for the reduction of the sentence. The decision of the Supreme Court is also distinguishable on facts for the above reason. In AIR 1928 Lah: 855 and AIR 1941 Lah. 220, it is laid down that youth alone does not constitute such an extenuating circumstance as would justify the imposition of the lesser penalty prescribed by the law. We are in respectful agreement with this observation. In the instant case, it was the appellant who had committed the murder without any incitement by any other person and, therefore, we are not prepared to accept the contention of the learned counsel for the appellant that his case also merits, consideration alone on the ground of age.
15. We are not inclined to accept the plea of provocation as we are of the opinion that the intentional killing of the deceased was rather due to jealousy then provocation as the deceased had been instrumental in winning over his "by keep", Ibrahim. There is yet another factor and that is of premeditation, which would disentitle him to any clemency in the matter of sentence. His confession as well as the confession of convict Faizoo and the evidence of P. W. Muhammad Ismail show that the appellant had wanted to kill the deceased and was trying to get an opportunity to kill him. This he had on the date of the incident when on the pretext of committing sodomy in a desolate place he gave him hatchet blows from behind.
16. We, therefore, find no substance in the above contention with regard to the presence of any extenuating circumstance for the reduction of the sentence. We would thus confirm the death sentence imposed by the trial Court and accept the reference The appeal is accordingly dismissed.