1. SALAHUDDIN AHMED, J.---The appellant has been convicted and sentenced to death under section 302 of the Pakistan Penal Code for the murder of one Mahmood Shah on the 14th of March 1908, at 1 a. m. In the Badminton Hall of K. M. C. Club, Karachi. This appeal by special leave is from the order of a Division Bench of the High Court of Sind & Baluchistan at Karachi maintaining the conviction of the appellant and confirm--ing the sentence of death passed on him.
2. Leave was granted to consider whether the conviction of the appellant was based on sound principles of criminal justice.
3. The first information report was lodged by one Muhammad Jan (P. W. 1) on the 14th of March 1968, at 9 a. m. At Police Station Eidgah, Karachi, 4 furlongs off the place of occurrence. The complainant is a Chaukidar of the club and he stated in his report that Yousuf Khan (P. W. 3), who was Tennis Marker in the Club resided in the family quarter situated in the premises of the club. Besides, Yousuf Khan's wife, his three brothers-in-law Gulfam (appellant), Aman Khan and Rehman Khan and the mother-in-law and sister-in-law of Yousuf Khan resided in his house. Gulfam was unemployed for about a month and used to visit the club and help the members play Squash and remained in the club for the whole day and night. On the previous night at 10 p.m. When the complainant left the club Chiragh Din (P. W. 4), another Chaukidar of the club, and Gulfam were present in the club.
4. Allah Mehr (P. W. 2) who dealt in iron springs used to visit the club and slept there at night. Next morning at 7-30 a. m., while the complainant was busy correcting the net in the tennis ground, he saw P. Ws. Allah Mehr and Yousuf Khan talking. When the complainant approached them P. W.
5. Yousuf Khan said that his wife had told him that blood-stained freshly washed clothes of Gulfam were hanging on the rope. P. W. Allah Mehr was also stated to have said that Gulfam had killed one man whose dead body was lying covered under the stones in the lane adjoining the Badminton Hall. Thereupon, they all three went to the lane and found there the dead body of a person with both his hands and feet tied up with rope and his throat cut. A hand--kerchief was tied on the eyes and the dead body was covered with stones. On inquiry P. W. Yousuf Khan expressed his ignorance of the identity of the body. The complainant then went to the Police Station and lodged the report.
6. In his evidence before the Sessions Court the complainant supported his first information report, and added that the hands of the deceased were found tied with electric wire.
7. The prosecution case as disclosed in the evidence of witnesses for the prosecution was that Mahmood Shah deceased aged 25 years came to Karachi in search of employment. Appellant Gulfam promised the deceased a job and the former was paid by the latter Rs.
35. The appellant used to train the deceased how to catch a thief, and for that purpose they used to tie each other.
8. On the 13th of March 1968, the deceased was found by P. W. Allah Mehr sitting in front of the gate of the club at 8 p. m. And the latter asked the former about Gulfam. When Gulfam arrived P. W. Allah Mehr told him that his friend was calling him. Sometime after P. W. Allah Mehr went out to purchase cigarettes, and when he came back he heard the voice "untie me, untie me" coming from the Badminton Hall. All the windows were shut. P. W. Allah Mehr opened the upper shutter and saw the appellant cutting the throat of the deceased. Some electric bulbs were on as usual in the hall. As the witness cried out to the appellant as to what the latter was doing, the appellant chased the former with a knife in his hand and asked him not to tell any one. The witness promised and went into his room and shut himself up. On the next morning the witness informed P. W. Yousuf Khan that Gulfam had killed the deceased. P. W. Allah Mehr categorically denied the suggestion that he had killed the deceased.
9. In course of the investigation the appellant was arrested from the house of P. W. Yousuf Khan on the 14th of March 1968, and a blood-stained shalwar and a blood-stained shirt were recovered from his person. Both these clothes were, subsequently, found by the Chemical Examiner to contain human blood. The appellant also volunteered to produce the knife and he produced a blood-- stained knife from a cup board of the house of P. W. Yousuf Khan. The knife, too, was subsequently found by the Chemical Examiner to contain human blood. The appellant also produced some portions of wire similar to those with which the deceased was found tied. All these articles were seized by the various Mashirnamas. According to Talib Hussain (P. W. 7), who is a witness to the seizure of blood-stained earth sand some other articles, he found marks of blood in the Badminton Hall and also found the place where the murder had apparently taken place to have been washed and to contain marks of blood.
10. The trial Court as well as the High Court relied on the evidence of P. W. Allah Mehr as corroborated" by the medical evidence and the evidence of recoveries for basing the conviction of the appellant.
11. P. W. Allah Mehr appears to be quite an independent person against whom no suggestion of enmity with the appellant was even suggested. He knew deceased only about a week before the occurrence. The deceased was practically a stranger to the witness and he had no reason to act as a partisan witness. The evidence of the witness has been sought to be impugned by Mr. Khalid M. Ishaque, learned counsel for the appellant, on the ground that although he had seen the occurrence at about 1 a. m., he did not disclose it to any body until 8 or 9 a. m. A reasonable explanation for the delay is furnished by his own evidence where he stated that on his discovering the occurrence he was himself chased by the appellant and threatened not to disclose it to any body and the witness promised to do so, and he went and shut himself up in his room evidently out of fear, and dared not move until daylight. No reason has been suggested as to why P. W. Allah Mehr would falsely implicate the appellant. The evidence of P. W. Allah Mehr found convincing support from the recovery of blood-stained shalwar and shirt from the person of the appellant on the very next day of the occurrence, and the recovery of the blood-stained knife at his instance.
12. Mr. Ishaque sought to challenge the authenticity of the recovery of the shalwar and the shirt of the appellant on the ground that one of the two seizure list witnesses Badruddin (P. W. 8) said that when he arrived at the house of the appellant the clothes of the appellant were lying and the police told him that they were the clothes of the appellant in the presence of the appellant. The witness further said that the clothes were not taken in his presence from the person of the appellant. When recalled the witness stated that he saw the appellant in different clothes. The Investi--gating Officer Ghulam Rasul (P. W. 10) has, however, categorically stated that the blood-stained shalwar and shirt were secured from the person of the appellant, and denied the suggestion that the clothes were not secured from the person of the appellant. Such seizure is corroborated by another witness of the seizure, namely, Talib Hussain (P. W. 7), who stated that the police secured the blood-stained shalwar and shirt from the person of the appellant and that the appellant changed into another set of clothes brought from his house. This witness also clearly stated that the clothes were seized and sealed by the police. The Investigating Officer also stated that he sealed the articles himself. The memorandum of seizure also supports the fact that the clothes were sealed.
13. There--fore, there was no chance of any tampering with the shalwar and shirt of the appellant and it was not even suggested to any witness that they were tampered with. Both the seizure list witnesses, Badruddin and Talib Hussain, stated that the appellant had produced the knife from a cup-board in his house. As we have stated earlier, the shalwar and the shirt and the knife were all found by the Chemical Examiner to contain human blood. The size of the blade of the knife as it appears from the memorandum of recovery is 8" long. From the sketch of this knife it does not appear to be an ordinary kitchen knife used for cutting vegetables as D. W. Zarina wife of P. W.
14. Yousuf Khan tried to represent. D. W. Zarina is the sister of the appellant and it is not unnatural for her to try to save her brother. It appears clear from the evidence of prosecution that she had at one stage told her husband P. W. Yousuf Khan about the washed clothes of the appellant containing indications of blood. Although there is unimpeachable evidence to show that the appellant had brought out the knife from a cup-board of the house of Yusuf Khan, D. W. Zarina said that she did not have any cup-board in her house. Furthermore, she said that the appellant was wearing a militia shalwar and blue stripped shirt although there is good evidence to show that the appellant was wearing a shalwar of white Lathha cloth and a shirt of black and blue stripes. P. W. Yousuf Khan also went back on his evidence before the committing Court in an apparent effort to save his brother-in-law (the appellant) inasmu ch as although he had categorically said in his evidence before the committing Court that P. W. Allah Mehr had told him that the appellant had murdered a man and that the wife of P. W. Yousuf Khan had told him that she had seen blood spots on the shalwar of the appellant, in his evidence before the learned Sessions Judge he said that P. W. Allah Mehr had only told him that a man was lying killed in the gall at the back of the Badminton Hall. P.
15. W. Yousuf Khan, contrary to his evidence before the committing Court to which his attention had been drawn, denied that his wife had told him that the clothes of Gulfam were blood-stained. His committing Court evidence has been brought on record evidently under section 244 of the Code of Criminal Procedure. There is, therefore, no doubt about the fact that P. W. Yousuf Khan was trying to shield his brother-in-law, appellant Gulfam. P. W. Talib Hussain, who witnessed the seizure of the clothes of the appellant and the knife produced by him, is a disinterested person, and we see no reason to disbelieve him. Similarly we see no reason to discard the evidence of the S. H. O. P. W.
16. Ghulam Rasul who seized those articles, and the evidence of the other seizure list witness P. W.
17. Badruddin, in so far as it related to the production of the knife by the appellant. It may be that P. W.
18. Badruddin came a little later and did not actually see the removal of the clothes from the person of the appellant. This, however, does not, in our opinion, in any way affect the other reliable evidence on this point. We, accord--ingly, hold that the recovery of the blood-stained shalwar and shirt from the person of the appellant and the production of a blood-stained knife by him have been rightly relied on by both the Courts.
19. The medical evidence further supports the prosecution case. Muhammad Umar Khan (P. W. 5)
20. Police Surgeon, who held the post-mortem examination found an incised wound on the front of neck just below the chin 6" x 2--- cutting the carotid arteries, trachea and oesophagus up to the cervical vertebrae above the thyroid cartilage. The Police Surgeon also found some bruises on the hands and legs of the deceased and he also found both the wrists of the deceased injured. In the opinion of the Surgeon, the cause of death was haemorrhage and shock due to the cutting of the neck, and that the weapon used for causing the injury was a sharp-edged one.
21. Further corroboration is furnished by P. Ws. Chiragh Din and the complainant. P. W. Chiragh Din, a Chaukidar of the K. M. C. Club has said in his evidence that at about 9 p. m. On the 12th of March 1968, he saw the appellant tying the hands of the deceased and in turn the deceased tying the hands of the appellant. On the next day at 6 p. m. The deceased again came and he inquired about Gulfam and on the inquiry of the witness the deceased said that he had given money to the appellant to get a job and that he had come to take the money back. At 10-30 a. m. On the night of the 13th of March 1968, P. W. Chiragh Din found P. W. Allah Mehr, the deceased and the appellant sitting together. The witness said that at 1 a. m. In the night appellant Gulfam knocked at the door, and when the witness opened the door the appellant gave him the key of the Badminton Hall which the appellant said he had taken out from the bunch of keys lying in the drawers. P. W. Chiragh Din is an independent person and nothing has been suggested against him as to why he would falsely depose and say that it was the appellant who had given him the key of the Badminton Hall at about 1 a.m. In the night or rather in the morning of the 14th of March 1968. His evidence has received corroboration from the evidence of P. W. Muhammad Jan, another independent witness.
22. We think that the evidence of P. W. Chiragh Din has settled the question when he said it was the appellant who gave him the key on the night of occurrence.
23. The complainant also had no ill-will against the appellant and his evidence was also rightly accepted by the Courts.
24. Mr. Ishaque has strenuously contended that having regard to the fact that the deceased, a young man of 25 years of age, was found securely tied up, and completely disabled before his neck was cut, it was impossible that the crime could be committed by the appellant of almost the same age, all by himself. In this con--nection our attention has been drawn to the suggestion put to P. W. Allah Mehr that he had killed the deceased, and to the fact that P. W. Yousuf Khan was also suspected and he was kept in the police station for three days. We are unable to accept this contention, for the evidence has clearly indicated that the deceased was thus disabled by the appellant apparently on the pretext of teaching the deceased how to catch a thief, 'preparatory to his obtaining the promised job. In any event the suggestion has been categorically denied by P. W.
25. Allah Mehr, and there is nothing to show that any one else was concerned in the crime. The police never suspected him and kept him in custody.
26. For the reasons stated above we think that the appellant has been rightly convicted and sentenced. The appeal is, accordingly, dismissed.