1. ANWARUL HAQ, J.-This judgment wily dispose of Criminal Appeals bearing Nos. K-5 and K-6 of 1972. e., ,, The appellant in the first case is Samano, and in the seconds Rajah Ali , who were both tried along with one Fateh Muhammad, by the learned Sessions Judge of Karachi, on charges falling under sections 143, 302 and 307 of the Pakistan Penal Code, read with section 149 thereof. While Fateh Muhammad was acquitted, the two appellants were convicted under sections 302 and 3u7 of the Pakistan Penal Code. On the first. Count each of them was sentenced to death and was also ordered to pay a fine of Rs.1,000 whereas on the second count each of them was awarded transpor--tation for life and a fine of Rs.1,000. In default of payment of fine each was ordered to suffer rigorous imprisonment for two years. Their appeals have been dismissed by a Division Bench of the High Court of Sind & Baluchistan by its judgment dated the 30th of June 1971, and the sentences of death have been confirmed.
2. According to' the prosecution, the two appellants, and five others including the acquitted accused Fateh Muhammad, were hired by Pit Gul Hassan to assassinate Abdul Qadir (P. W. 5) son of Pit Hassan Bakhsh (P. W. 9), owing to his resentment at the fact that Abdul Qadir bad married his daughter, Bilqis, against his wishes and without his consent. The marriage had been solemnised on the 31st of July 1964, and the Rukhsati was fixed for the 15th of November of that year. The assassination attempt was, therefore, made on the evening of the 10th of November 1964 just a few days before the date of the Rukhsati.
3. This matrimonial dispute has a background. Pit Gul Hassan is the Gaddi Nashin of the shrine of Luari in the District of Hyderabad. His father Pit Ahmad Zaman was a cousin of Pir Hassan Bakhsh.
4. Pit Gul Hassan was married to Mst. Aziz Bibi, a sister of Pit Hassan Bakhsh. She died in February 1938, leav--ing behind her an only child Bilqis, aged about 2J years at that time. The girl remained with her maternal uncle, Pir Hassar, Bakhsh and her maternal grand-mother, Mst. Maleka. In January 1949, Pir Gul Hassan filed an application under section 25 of the Guardians and Wards Act, for the custody of his daughter, but that application was dismissed by the Chief Court of Sind on the 30th of November 1951. Shortly before filing this application, Pir Gul Hassan had filed two civil suits against Pir Hassan Bakhsh and his -'brothers. The first suit was intended to restrain Pir Hassan Bakhsh from marrying his son Abdul Qadir to the plaintiff's daughter Bilqis; and the second suit was for partition of certain properties left by Fir Abdul Qadir, the father of Pir Hassan Bakhsh. In the first suit a consent decree was passed on the 30th of September 1949, under which Pir Hassan Bakhsh agreed not to marry his son Abdul Qadir to Bilqis. The second suit was, however, dismissed on the 8th of January 1951.
5. Besides this litigation between Pir Gul Hassan and his wife's brother Fir Hassan Bakhsh, there was also litigation between Pir Gul Hassan and his sister, Mst. Inayat Bibi, regarding the pro--perties left by their father, Fir Ahmad Zaman. The suit was compromised in September 1945. It is said that during that litigation Pir Mahfuz, a brother of Fir Hassan Bakhsh, sided with Mst. Inayat Bibi. All this litigation led to considerable bad blood between the two families, so much so that Fir Gul Hassan, who had a large number of Murids, made it virtually impossible for Pir Hassan Bakhsh to cultivate those of his lands which were situated adjacent to Pir Gul Hassan's lands. It is said that these circumstances compelled Fir Hassan Bakhsh to sell these lands to Pir Gul Hassan at a nominal price.
6. During these years of estrangement between her father and maternal uncle, Bilqis continued to reside with her uncle at Karachi. In 1964, when she was nearly 29 years of age, having been born on the 25th of May 1935, her uncle, Pir Hassan Bakhsh, approached her father for permission to marry her to Abdul Qadir. Pir Gul Hassan rejected the proposal outright and threatened Fir Hassan Bakbsh with dire consequences, but the latter was not deterred, and, in fact, solemnised the marriage, as already stated, on the 31st of July 1964. After the Nikah, Bilqis shifted to the house of her other maternal uncle Fir Mahfuz, where she was to reside until her Rukhsati on the 15th of November 1964.
7. As to the events immediately preceding the assault, it is alleged that for quite some time threatening messages were sent by Pir Gul Hassan to Fir Hassan Bakhsb, and for several days a jeep was seen moving suspiciously on the road in front of the house of Pir Hassan Bakhsh situated near Nishter Park. Appre--hending danger to his son's life, Pir Hassan Bakhsh advised Abdul Qadir not to go out alone. He engaged the deceased Allah Ditta, a young man of about 19 years of age and a brother of his driver Ibrahim (P. W. 13), to act as a body-guard to Abdul Qadir.
8. At 8-15 p.m., on the 10th of November 1964, Abdul Qadir accompanied by Allah Ditta, drove back to his house from a shopping trip, and parked the car in front of the gate of his house, with the right- side of the car parallel and nearest to the footpath. As Abdul Qadir was himself in the driver's seat Allah Ditta was sitting on his left. A jeep which had followed Abdul Qadir's car from the Sadar area, stopped a few paces away from the car. It is said that two men jumped out of the jeep, armed with revolvers or pistols, and both of them started firing at Abdul Qadir and Allah Ditta, who were still in the car. On being hit, Allah Ditta slumped on the seat but Abdul Qadir managed to open the door Anwaru of the car and fell out in an injured condition. It is alleged that he received one more shot while he had fallen out of the car. The alarm raised by Abdul Qadir attracted his driver Ibrahim (P.
9. W. 13) and Haji Muhammad Rahim (P. W. 14), who had just arrived at the house as a guest. A female neighbour by the name of Mrs. Salma Iqbal (P. W. 15) was also attracted to the scene as she was at that time standing on the footpath in front of her house on the opposite side of the road. The assailants immediately climbed into the jeep and drove away. The number of the jeep could not be noted as a piece of cloth was tied over the number-plate. However, Abdul Qadir, Ibrahim and Haji Muhammad Rahim were able to identify the two assailants, in the light of the street-lamp that was burning overhead, as the two appellants before us. The remaining occupants of the jeep could not be identified at that time, although Fateh Muhammad, the acquitted accused, was later picked up at a test identification parade.
10. Allah Ditta expired at the spot while Abdul Qadir was first taken by his father, Pir Hassan Bakhsh, to the Dispensary of Dr. Tajammul, from where he was directed to the Seventh Day Adventist Hospital and then to the Civil Hospital, Karachi. The body of Allah Ditta was also taken there.
11. The incident seems to have created quite a stir, and the machinery of law is said to have come into motion without loss of time. The Deputy Inspector-General of Police, Karachi, Mr. Asif Majid, sent a telephonic message to the Superintendent of Police of Thatta District at about Isha prayer time, intimating that a nephew of one Pir Mahfuz had been attacked at Karachi and that the assailants were on their way to Hyderabad. The Superintendent of Police passed on this message to the S. H.
12. O., Thatta, and the same was recorded in the station diary at serial No. 28 at 8 p.m. After giving the contents of the directions received from the D. I.-G., Karachi, the entry recites that the S. H. O. Along with his staff had started checking the vehicles after blocking the road, and similar information had been conveyed to the Traffic Branch, Thatta and A. S. P., Gharo.
13. Foot Constable, Mahbub Hussain (P. W. 12) was on patrol duty near Gate No. 1 of Patel Park (now named Nishter Park) when he saw a commotion near the house of Fir Hassan Bakhsh and was informed that some assailants had fired and injured a person. He rushed to the Police Station Sadar Bazar and con--veyed this information to Sub-Inspector Syed Asghar Hussain (P. W. 24).
14. Entry No. 54, timed at 20-20 hours was recorded in the station diary, mentioning that the injured persons bad been taken to the Civil Hospital, and the Police Officer was also proceeding there for verification and examination.
15. S.I. Asghar Hussain reached the Civil Hospital at about 9 p.m. And found the injured Abdul Qadir in the Casualty Ward.
16. He commenced recording Abdul Qadir's statement at 9-05 p.m. And concluded the same at 9-50 p.m. A copy of the statement is on the record as Exh. 11, and it was incorporated in the station diary of the Soldier Bazar Police Station at serial No. 56, timed at 22-15 hours, having been brought from the Civil Hospital by F. C. Mahbub Hussain. In this statement, Abdul Qadir gave a full account of the incident and clearly named the two assailants as Rajab Ali and Samano. He also asserted that "as there was sufficient municipal light lit on the said site of occurrence, I would be able to identify the remaining persons as well if they came before me." He also gave the motive for the assault.
17. While still at the Civil Hospital, S. I. Asghar Hussain also recorded the statement of driver Muhammad Ibrahim at about 10-30 p.m., and thereafter went to the place of occurrence, reach-- ing there at about 11 p.m. He recorded the statement of Haji Muhammad Rahim at about midnight.
18. On examination of the car in which Abdul Qadir and Allah Ditta had driven home, the Sub-inspector saw blood on the driver's seat, the foot-board and the rubber matting on the floor in front of the back-seat. He also found a broken tooth and a blood-stained cigarette packet lying in the car. On the 13th of November 1964 he handed over the investigation of the case to Inspector Pir Bakhsh Baloch (P. W. 25) of the blalir Police Station.
19. The road blocks put up by S. H. O. Muhammad Yousaf (P. W. 18) of Thatta Police Station were successful in intercepting a jeep at 1-50 a.m. The appellant, Rajab Ali was driving the vehicle while Samano was sitting by his side. From the personal search of Rajab Ali, a licensed revolver loaded with six cartridges and a bandolier containing 18 live cartridges were recovered. Samano was found to be in possession of an unlicensed revolver loaded with six cartridges and 15 live cartridges in the pocket of his waist-coat. One unlicensed sword was found lying in the jeep. All these articles were seized in the presence of a local witness, Muhammad Achar (P. W. 20). The appellants, as well as the articles seized from them, were brought to Karachi and handed over to Police Station Soldier Bazar at 13-30 hours on the 11th of November 1964.
20. On the 17th of November 1.964, the appellants were produced before Mr. Anwar Sheikh, a Magistrate of the 1st Class at Karachi, for recording their confessions. While the confession of Rajab Ali was recorded the same day, that of Samano was recorded the next day, i.e., the 18th of November 1964.
21. In these confessional statements, the appellants gave details of the preparations they had made for the assassination of Abdul Qadir under the direc--tions of Pir Gul Hassan and confessed that they had actually carried out the attack in the manner alleged by the prosecution. They ended by saying that they thought both men had been killed at the spot. They also admitted their interception and arrest by the Thatta Police.
22. The autopsy of the dead body of Allah Ditta, as performed by Dr. Maj. A. Hassan (P. W. 21) showed that the deceased had sustained five gun-shot wounds, on the mouth, the frontal lower part of the neck, the right scapular region and the left arm. Three of these injuries were wounds of inlet and two were wounds Stare of exit, thus showing that at least three shots had hit him from close range.
23. The injuries on the mouth and the lower part of the neck were individually sufficient to cause death in the ordinary Nag course of nature.
24. The injured Abdul Qadir was first examined by Dr. Shuja-ul--Islam Zuberi, who was, however, not available for giving evidence during the commitment proceedings or the trial, and accordingly the medico-legal report prepared by him at the time of examina--tion was proved by Maj. Hassan.
25. Ghulam Muhammad (P. W. 11), a clerk of the Civil Hospital, Karachi, deposed about the non--- availability of Dr. Shuja-ul-Islam Zuberi. According to Dr. Zuberi's report, Abdul Qadir was found to have sustained three injuries of the following description :-
(1) Gunshot wound on right hypochondrium -- " in diameter with inverted edges and with positive tattooing of the skin all round in mid clavicular line.
(2) Gunshot wound on left hychondrium in the anterior axillary line ----- in diameter with inverted edges and tattooing of the skin all round.
(3) Gunshot wound on left thigh outer aspect 4" in diameter with inverted edges and tattooing of the skin all round and there was no wound of exit present.
26. The weapon used in the opinion of the C. M. O: was a projectile weapon like a revolver fired from a close range. The duration of injuries was recent and their nature was dangerous to life.
27. As Abdul Qadir's condition was serious and he needed specialist attention, It.-Col. Saeed Ahmad (C. W. 1) then posted as Professor of Surgery in the Dow Medical College, Karachi, was called in, and apparently he performed an emergency operation. It is, however, surprising that at the time he gave evidence at the trial the notes prepared by him were not made available to him by the prosecution. Accordingly, he made a brief statement from memory and could only recall that "The injured Abdul Qadir had gun-shot wounds. I cannot accurately say what was the effect of injuries which he had. But I can recall this one that he was talking a lot in excited manner. I cannot say whether he was talking sense. The injured was surrounded by a huge crowd and at this stage I cannot recall whether he was examined by the police in my presence."
28. A bullet recovered from the body of the deceased Allah Ditta as well as the two revolvers and the live cartridges recovered from the appellants were examined by the Forensic Expert, Khurshid Ahmad Qureshi (P. W. 20). And he came to the conclusion that the bullet had not been fired from the revolver secured from the appellant Samano, while he could not give any definite opinion whether it had been fired from the revolver recovered from Rajab Ali'.
29. Both the appellants pleaded not guilty at the trial, and asserted that they had been falsely implicated by witnesses who were either related to Pir Abdul Qadir or were his servants. They retracted their confessions alleging that the same had been extracted from them by the police through torture and coercion.
30. Rajab Ali admitted that he was in the employment of Pir Gut Hassan as a part-time clerk but stated that he had left his service a month before the present incident because Pir Gut Hassan was intending to go abroad. He admitted his arrest by the Thatta Police, but insisted that he was arrested at evening time on the 10th of November 1964, when he was sitting in his jeep. He explained that he had gone to village Shoro, which is about three miles f om Thatta towards the ferry crossing on Indus River and passed through Thatta on his way back to his native village which is situate beyond Hyderabad. He also alleged that he did not know Samano at all prior to the proceedings in this case.
31. The appellant Samano described himself as a resident of Sanghar and a Murid of Pir Abdullah Shah of Thatta. He admitted his arrest at Thatta, but explained that he had gone to the Dargah of Pir Abdullah Shah and was waiting at the bus stop for going to Hyderabad when the police took him away to the police station.
32. In convicting the two appellants, the learned trial Judge accepted the prosecution case as regards the motive for the crime, and also relied upon the ocular evidence of Abdul Qadir, Muhammad Ibrahim and Haji Muhammad Rahim. He found corroboration in the testimony of Pir Hassan Bakhsh, and the circumstances of the arrest of the appellants by the Thatta Police and the recovery of weapons from their possession. Finally, the learned Judge expressed the view that the confessions made by the appellants before the Magistrate were voluntary and true, and were corroborated in material particulars. The learned Sessions Judge did not, however, place any reliance on the testimony of Mrs. Salma Iqbal.
33. When the case came up before the High Court in appeal and confirmation proceedings, the learned Judges felt that certain crucial features bearing upon the guilt or innocence of the accused had not been explained by the prosecution, and accordingly they recorded additional evidence under section 375 of the Code of Criminal Procedure by examining Mr. Fazal Mahmood who was Superintendent of Police, Thatta, at the relevant time, and Syed Asghar Hussain Shah, Sub-Inspector, who had conducted the initial investigation and recorded the first information report. As a result of the examination of these two officials, certain entries from the station diaries were brought on the record as Exhs. C. W. 1/1 to C. W. 1/7.
34. After an elaborate examination of the entire evidence brought on the record and the extensive criticism offered against it on behalf of the appellants, the High Court has agreed with the findings of the trial Court to the effect that the ocular account of the incident given by Abdul Qadir, Muhammad Ibrahim and Haji Muhammad Rahim was worthy of credit, that the two appellants were identified by these witnesses, and that the ocular evidence was corroborated by the circumstances of the arrest of _ the appellants at Thatta during the middle of the night, as well as by their confessions. The learned Judges have observed that the confessions must be regarded not only as having been voluntarily made, but has also containing a truthful account of the matters narrated therein for the reason that certain details disclosed by them were such as could only be known to the appellants, who were the faithful Murids of Pir Gut Hassan and had been taken into confidence by him regarding his feelings in the matter of Abdul Qadir's marriage to his daughter, Bilqis.
35. Leave to appeal was granted in this case to examine, inter alia, the contentions that the identification of the appellants by the eye-witnesses was not free from doubt in view of the fact that their names were not mentioned in several telephonic messages which passed between various Police Officers before the apprehen--sion of the appellants at Thatta, and that they appeared to have been introduced in the first information report and other statements under section 161 of the Cr. P. C. After their particulars became known through the Thatta Police ; that the ocular evidence had not received the necessary scrutiny in the High Court ; and that there was intrinsic evidence to show that the confessions attributed to the appellants were not voluntary and were, in fact, the result of police torture and duress.
36. The facts constituting the background of, and the motive for, the crime have not been contested before us. Similarly, the fact that the incident took place in front of the house of Pir Hassan Bakhsh is not disputed, nor is there any doubt regarding the fact that the deceased Allah Ditta and the injured Abdul Qadir were fired upon when they were still sitting in their car. The presence of blood, a broken tooth and a blood-stained packet of cigarette, in the car confirms this position. It is also in evidence that an electric street-lamp was burning overhead, giving sufficient light to enable identification of the assailants, provided they were known to the witnesses. The first question, therefore, is whether the two appellants were sufficiently known to Abdul Qadir and the other two witnesses sty that they could he identified even during a sudden attack.
37. As far as Rajab Ali is concerned, there is overwhelming evi--dence that he was fully known to the complainant side, as he had been working as the Mukhtar of Pir Gut Hassan for some years before the present occurrence. He was prosecuting several cases on behalf of Pir Gut Hassan and describing himself as Manager of the Pir. Copies of two such applications are on the record as Exh.
38. 34 and Exh.
35. On the 17th of September 1964. He made an application (Exh. 26) for the grant of a revolver licence, describing himself as attorney of Pir Gut Hassan of Luari Shatif and showing his residence as Bungalow No. 87, Flyns Street Garden East, Karachi, which admittedly belongs to Pir Gut Hassan. The licence was granted to him on the 19th of September 1964, and the same particulars were incorporated in the relevant register (Exh.27) Beside he himself admits that he had been working as a part time clerk to Pir Gul Hassan. Pir Hassan Bakhsh and his son Abdul Qadir, being closely related to Pir Gul Hassan, were bound to know each other's servants and employees, even if their mutual relations were strained. There can thus be no manner of doubt that Abdul Qadir as well as the other two witnesses, who are intimately connected with the family of Abdul Qadir, fully knew Rajah Ali from before.
39. As regards Samano, there is, in the first place, the assertion made by Ibrahim that he knew this man from before. He was cross-examined on this point and he asserted that he knew Rajab Ali as well as Samano from before because he used to go on duty to Pir Gul Hassan. It seems to us that what he intended to convey by this statement was that as the driver of Pir Hassan Bakhsh, it was part of his duty to go to the hr se of Pir Gul Hassan: presumably with the members of the family.
40. There is no suggestion that during the years of friction and estranb ent the members of the two families did not at all visit each other; on the contrary it appears that during the several disputes arising between them, certain meetings and negotiations must have take place. We do not, therefore, see anything improbable in the assertion made by driver Ibrahim that he knew Samano from before. The evidence of this witness of course implies that Samano was an employee of Pir Gul Hassan.
41. Abdul Qadir derived his knowledge of Samano from the deceased Allah Ditta, about two months before the occurrence. It appears that by that time Abdul Qadir had become apprehensive of the designs of Pir Gul Hassan, and it was for this reason that Allah Ditta had been engaged as his body-guard. Allah Ditta showed Samano to Abdul Qadir when the former was taking tea in a Restaurant. The position is not clearly spelt out in the deposition of Abdul Qadir, but the statements made by him in this connection leave no doubt that Allah Ditta, as his body--guard, had come to suspect that Samano had been hired as an assassin by Pir Gul Hassan and it was for this reason that Allah Ditta showed Samano to Abdul Qadir. The cross-examination of Abdul Qadir on this particular point does not appear to have yielded any result.
42. Haji Muhammad Rabim saw Samano with Rajab Ali in Soldier Bazar two or three months before the incident when this man was pointed out to him by driver Ibrahim as the man of pir Gul Hassan. The implication of this statement is clear and confirms the impression that two or three months before this occurrence Abdul Qadir, his father Hassan Bakhsh, his employees and friends were all apprehending danger at the hands of Pir Gul Hassan, and they had come to know that Saman was one of the men hired for this purpose. Reading the evident of the three witnesses together, no doubt is left in my mind that Rajah Ali was fully known to them, and Samano's face and features were also fixed in their mind as a possible assassin. Such being the case, the witnesses would be able to identify both of them, provided the circumstances of the assault permitted of identification.
43. According to Abdul Qadir the two appellants had jumped out of the jeep when it stopped along.
44. Side his car. The same fact is repeated by Ibrahim and Haji Muhammad Rahim. If the two men did indeed jump out of the jeep before opening fire on Abdul Qadir and Allah Ditta, then it is clear that they must have been fully recognised by Abdul Qadir and the witnesses, in the light of the street- lamp burning overhead, especially because the medical evidence shows that both the deceased and Abdul Qadir were hit from a very close range. Mr. Manzoor Qadir is, per--haps, right in saying that if the assailants remained sitting in the jeep, their identification would be difficult as a shadow.
45. Would be cast upon their faces by the hood of the jeep.
46. The theory put forward by the learned counsel for the appellants is that, irrespective of the statements made by the three eye--witnesses, the probabilities are that the shots were fired by one person alone, by stretching his arm from his seat in the jeep, and then bolting away without even waiting to ascertain whether the intended victim, Abdul Qadir, had been properly finished or not. In support of this theory, reliance is placed on the fact that all the inlet wounds sustained by the deceased Allah Ditta were on the left side of his body, thus showing that the assailant was on the left side of the car, namely, in the jeep standing parallel to the car. It is further submitted that a close examina--tion of the medical evidence relating to the injuries sustained by Abdul Qadir also yields the same result. It appears to the learned counsel that out of the three injuries found on Abdul Qadir, the one on the right hypochondrium must have been a wound of exit although the bullet did not in fact come out of the body, and it is for this reason that Dr. Zuberi did not describe this injury explicitly as a wound of exit. The learned counsel points out that Abdul Qadir admits that one bullet was taken out of his stomach by Col. Saeed during the operation. The argu--ment of the learned counsel, in other words, is that all the injuries received by Abdul Qadir were also on the left of his body, thus strongly suggesting that it was the same hand, which had fired at Allah Ditta through the door of the car, that fired another two shots in quick succession at Abdul Qadir, with the necessary result that Abdul Qadir and the witnesses had no opportunity whatsoever to see the face of the assailant.
47. I have given my anxious consideration to the very elaborate argument put forward by the learned counsel in this behalf, but I am unable to accept the same. It is true that the oral account given by Abdul Qadir and the two witnesses, Ibrahim and Haji Rahim, as to the manner of the assault and distance from which the culprits fired, is not fully consistent with each other, but all the three are united in saying that two men had jumped out of the jeep before opening fire. The genuineness of this statement seems to me to find corroboration from the Medical evidence. It is correct that the injuries sustained by Allah Ditta were all on the left side of his body, and accordingly they could have been caused by a person sitting in the jeep parked along side the car, but injuries sustained by Abdul Qadir are not susceptible of this explanation. The medico-legal report of these injuries (Exh. 23). As preparedby Dr. Shuja-ul-Islam Zuberi, was proved at the trial by Maj. A. Hassan (P. W.
48. 21) who had also initialed the same, the next day after its preparation, in his capacity as Police ,Surgeon, Karachi. On a close study of this report, Major Hassan gave the opinion that the presence of inverted margins and tattooing of the skin on all the injuries suggested that they were wounds of entrance and none of them was a wound of exit. He further opined that the two injuries on the hypochondrium ofAbdul Qadir also showed that the assault was made from the front of the injured.
49. These facts and opinions leave no room for the argument that all the three injuries sustained by Abdul Qadir were inflicted by a hand stretched into the car through the left front window of the car.
50. At least two of his injuries were caused from close range by an assailant standing in front of the injured, a position which was not possible in the case of an assailant firing from the safety of his seat in the jeep. I am, therefore, of the view that the description of theassault given by Abdul Qadir, and the two supporting witnesses, finds corroboration from the medical evidence. As a result, it becomes clear that the persons who fired on Abdul Qadir 'and Allah Dittamust have jumped out of the jeep and thus afforded a chance for their identification,, in spite of the precautions which they had otherwise taken by concealing the number-plate of the vehicle. This position is, in my view, not at all affected by the discrepant statements made by Abdul Qadir, in cross-examination, on the question whether the two men had jumped out of the jeep from the left side or the right side, or whether Samano was the one who was driving the jeep or not, The assault having taken place suddenly, and Abdul Qadir having been naturally shaken at the turn of events; could not be expected to form an accurate idea as to the identity of the man who was driving the jeep before jumping out. However, it must be said to Abdul Qadir s credit that ultimately he stuck to the position that the description given by him in his first statement (Exh. 11) was more correct than whatever he had said in cross-examination.
51. Having reached the conclusion that the witnesses knew the appellants, and that the manner of the assault permitted of their identification, I now take up the question whether in fact the witnesses named the two appellants at the earliest possible oppor--tunity, or whether the names were inspired by the interception of the appellants by the Thatta Policeat 1-50 a. m. During the night between the 10th and 11th of November 1 y 64, The prosecution asserts that Abdul Qadir---s statement (Exh. 11) was recorded by the Investigating Officer from 9-OS p. m. To 9-0 p. m., that Ibrahim was examined at the Hospital soon thereafter, and Haji Mohammad Rahim was examined at the wardat at about midnight, well before the arrest of the appellants at Ihatta. The cross- examination of the witnesses, as well as of the Investigating Officer, as to the time at which these statements were recorded hasnot brought out any contrary indication, but the defence relies strongly on certain entries made in the station diaries at Soldier Bazar Police Station in Karachi, as well as at Thatta.
52. It has already been Stated that the first entry, in point of time, is the one made by S. H. O.
53. Mohammad Yousaf (P. W. 18) at Thatta Police Station. 'This is timed at 20-00 hours on 10-11-64 and does not name the culprits, but merely recites that four or five Sindhies are escaping in a jeep towards Hyderabad after attacking a nephew of one Pir Mahfuz. The information was conveyed by the D. L-G. Of Karachi to the Superintendent of Police, Thatta, who, in turn, passed it on to the S. H. O.
54. Of that place. The absence of the names of the culprits in this report is easily explained by the fact that immediately after the assault, the injured Abdul Qadir was rushed to the Hospital for medical aid and no one was available to name the culprits. From the tenor of the evidence given by Mr. Fazal 1vlahmood, the then Superintendent of Police at Thatta, it becomes clear that Pir Mahfuz must have got into touch with the D. L-G. Of Karachi immediately on hearing of the assault, and without waiting for the details, so that the escaping culprits could be apprehended. It seems to me, therefore, that no adverse inference could be drawn against the prosecution from the absence of names in the report Exh. 57 recorded at Thatta Police Station.
55. The next entry is entry No. 54, made at 2----20 hours at Soldier Bazar Police Station on information supplied by Foot Constable Mahbub Hussain (P. W. 12). This report again does not contain the names of the culprits for the simple reason that when the Police constable reached the spot he found that the injured persons had been taken to the Civil Hospital. The Constable does not say that he met any one at the spot who was in a post--tion to give him any details of the incident.
56. However, this entry does recite that the S. H. O. Was proceeding to tine Civil Hospital for verification and examination.
57. Next in sequence comes entry No. 56 (Exh. C. IV. 1(7) timed at 22-1 a hours, which embodies the gist of Abdul Qadir's state--ment recorded at the Civil Hospital by the Investigating Officer, and brought to the police station by F. C. Mahbub Hussain. This entry contains the names of Rajab Ali and Samano as being among the assailants.
58. The next entry is also given the serial No. 56 although it is tinted at 22-20 hours, and is just one line to the effect that a Constable was being sent to the Civil Hospital as desired by S. H. O. Syed Asghar Hussain, This second entry bearing serial No. 56 is then followed by entry at serial No. 57, timed at 22-25 hours (Exh. C. W. 1/1), to the effect that Syed Asghar Hussain, Sub-Inspector, had telephoned from the Civil Hospital that messages be sent to the Station House Officers of Ihatta and Hyderabad that four or five Sindhies, armed with revolvers were escaping in a green jeep car after killing one man and injuring another. No names were given although the Sub-Inspector indicated the telephone numbers of the two Police Officers to whom this message was to he transmitted.
59. The contention on behalf of the appellants is that the repetition of serial No. 56 for two entries timed at 22-15 and 22-21 hours res--pectively, and the absence of the names of the culprits in the entry recorded at serial No.57 at 22-25 hours is indicative of the fact that entry No. 56 containing the names of the culprits was in fact not made at 22-15 hours, but was inserted later in blank space left in the relevant register when the names of the arrested persons were made known by the Thatta Police, the next morning. The argument appears attractive at first sight, but cannot stand further scrutiny in the light of the other entries and available evidence having a bearing on this question. In the first place, the fact that the serial No. 56 was repeated twice is of no significance, as the second entry is just one line regarding the dispatch of a Constable to the Civil Hospital, and has no bearing on the identity of the culprits. If the Officer preparing the station diary was indeed''' fabricating these entries by leaving a blank space for entering the naives of the culprits in the first entry at serial No. 56, there was no reason for him to repeat the said number again at 22-20 hours, It seems to me to be a mere clerical mistake on the part of the official who made the second entry.
60. As regards the entry at serial No. 57, the Investigating Officer, Syed Asghar Hussain, has explained that as he had already sent Abdul Qadir's statement down to the police station for being incorporated in the station diary and the F.
1. R. Register, he did not repeat the names of the culprits again, while instructing his staff to send messages to Thatta and Hyderabad. The explanation seems to me to be plausible, as in this message even the names of the deceased and the injured Abdul Qadir were not given, although they were definitely known by that time. The intention of sending out this message, presumably in ignorance of the action already taken by the D. I.-G.
61. Before 20-00 hours, was to focus attention on the fact that the fleeing jeep contained four or five Sindhies. I am, therefore, inclined to the view that the absence of names in the entry at serial No. 57 made at the Soldier Bazar Police Station at 22-25 hours does not show that the names were not known by that time.
62. Although the appellants were - intercepted by the Thatta Police on the National Highway at 1-50 a.m. On the 11th of November 1964, and this information was conveyed by S. Hl. 0 Mohammad Yousaf to S. P. Thatta, in the morning, there is no evidence that S. H. O., Thatta informed the Soldier Bazar Police Station, Karachi, about the names and other particulars of the appellants and the weapons recovered from them before leaving Thatta for Karachi. However Pir Hassan Bakhsh sass that he was informed of the arrest of the appellants at 8 or 9 a. Rn. The next morning by D. S. P., Gul Mohammad Soornro, on the phone. The two relevant entries in the station diary of Thatta Police Station are the one at serial No. 2 at 02-05 hours or: 11-11-64 relating to the apprehension of the appellants at 1-50 a. m., and the other at serial No. 8 showing the departure of the two appellants from Thatta at 10 a. m. For being taken to Soldier Bazar Police Station. The arrival of the two appellants at Soldier Bazar Police Station is evidenced by entry at serial No. 20, made at 13-30 hours on 11-11-64 (Exh. 18).
63. We tray now turn to four other entries appearing in the station diary of Police Station Soldier Bazar for 11-11-64. The first one is time at 8-01 a.m. Which is the opening entry of this day. It mentions that three persons were held in the police lock-up, namely
(1) Ibrahim s/o Jumtna
(2) Rajab Ali s/o
(3) Samano s/o Against the names of Rajab Ali and Samano the parentage is not indicated and in the last column relating to the date of remand the entry is that they are required in the said case, although the date of their arrest is shown as 1~-;-11-64. In the second entry made at 8-OS a. m. A. S. 1. Khurshid Alain has mentioned that there is only one accused person in the lock-up. Again in entry at serial No. 7, made at 09-21 a, m. It is repeated that only one accuse) is present in the lock-up. The fourth entry is at serial. No.12 of the same date recorded at 09-55 hours, which also shows that only one person was present in the lock-up of the police station. This entry was brought on the record as C.
64. W. 1/6, ~, . ...
65. It was contended by the learned counsel for the appellants that these entries cannot be reconciled with each other and clearly show that the officials at Soldier Bazar Police Station had received prior intimation from Thatta regarding the arrest of the appellants, and that is why their names were included in entry No. 1 made at 08-01 a. m. On 11-11-64.
66. A perusal of the original entries appearing in the relevant register shows that this is not the correct interpretation of these entries. As far as the entries made at 8-05, 9-21 and 9-55 a. m. Are concerned it is clear that they all recite that only one accused person was present in the police station lock-up. The only question is about the contents of entry No. 1 made at 8-01 a. m. It will be seen that the parentage of Rajab Ali and Samano is not given in this entry, and the last column shows that they are wanted in the said case. These two facts indicate beyond doubt that the two appellants had not yet been apprehended, although the date of their arrest is shown as 10-11-64. If their names had been included in this entry on receiving information from Thatta, then there is no explanation why their parentage was not entered, as is the case with the first name appearing in this entry, namely, Ibrahim son of Jumma, nor is there any explanation for the remarks appearing under the last column to the effect that these accused persons were wanted in the said case. Syed Asghar Hussain Shah, who was the S. H. O. Stated that he had not made this entry and the official making the same, must have done so under some misapprehension, for the obvious reason that an entry had already been made on the previous evening at 22-15 hours naming these two persons as the culprits in the murder case. On the other hand, the said entry No. 1, instead of proving that it was made after receiving information from Thatta, shows on the contrary that no such particulars had yet been received from the Thatta Police Station, and that the entry was in fact a consequential entry on the basis of the information already revealed by Abdul Qadir the previous evening.
67. It is also significant that in the statement made by Abdul Qadir (Exh. 11) and in the corresponding entry made in the police station diary at serial No. 56 at 22-15 hours on 10-11-64, the parentage, caste and residence of Rajab Ali and Samano are not given, and only their names are mentioned.
68. Now, it is well --known, and judicial notice may be taken of this fact, that police officials are fond of giving full particulars of the accused persons in all such statements if such particulars are at all ascertainable from any of the concerned parties. If Abdul Qadir had not made any statement, as alleged by the prosecution, and if Exh. 11 as well as entry No. 56 had been fabricated after receiving intimation from Thatta, there is no explanation at all as to why the full particulars of Rajab Ali and Samano do not find a place in these two documents. It seems to me that the absence of these parti--culars is a strong indication that Abdul Qadir had named the two appellants much before their interception and arrest by the Thatta Police. The three entries appearing in the station diary of Soldier Bazar Police Station on the 11th of November 1964, are also consistent with this position, as the parentage of the two appellants is missing from entry No. 1 and the remarks column shows that they were wanted in the said case.
69. Another point made in this connection was that although Abdul Qadir had stated in Exh. 11 that the jeep was of blue colour, yet the Investigating Officer mention--d the colour as green in the message which he dictated from the Civil Hospital for being passed on to the S. H. Os. Of Hyderabad and Thatta as embodied in entry No. 57, timed at 22-25 hours. It was contended that as the jeep actually intercepted at Thatta when carrying the two appellants was of blue colour, it would appear that whereas the S. H. O.'s message was before the interception, Abdul Qadir's statement and the corresponding entry at serial No. 56 were made after the interception. Although Sub-Inspector Asghar Hussain was cross-examined at some length at the trial and was also recalled for additional evidence in the High Court, this question does not appear to have been pointedly put to him, and it is, therefore, not clear as to what explanation he would have given in this behalf. However, in view of my examination of the entries and evidence having a bearing on the arrest of the accused and the intimation of their particulars to the Soldier Bazar Police Station, I cannot regard this discrepancy as being of any conse--quence; it may simply be a mistake on the part of the S. H. O. While dictating the message from the Civil Hospital or on the part of the official who recorded the message in the station diary.
70. For the foregoing reasons I am satisfied that the appellants had been named by Abdul Qadir and the other two witnesses much before the receipt of any information from the Thatta Police regarding their arrest on the National Highway. Although there was enmity between Pir Gul Hassan and the complainant party, yet not a single fact or circumstance has been brought on the record to show that the witnesses had any motive whatsoever to falsely implicate either of the appellants, if indeed they were not the persons who had launched the assault by jumping out of the jeep.
71. Although Rajab Ali was the Mukhtar of Pir Gul Hassan and thus occupied a special position, yet Samano was only one of a multitude of Murids of Pir Gul Hassan and could not have been named as the assailant if he was not identified at the spot. The naming of the two appellants is not the result of any inspiration received from the Thatta Police.
72. It was next contended that Abdul Qadir was so seriously injured that he could not have been in a position to make a statement, even if he had identified his assailants. It was sub--mitted that on reaching the Hospital he must have been immedi--ately rushed to the Operation Theatre and thus placed beyond the reach of the Police Officer. In support of this submission reliance was placed on three statements made respectively by Abdul Qader, Pir Hassan Bakhsh and the Investigating Officer Syed Asghar Hussain. Abdul Qadir had stated that he did not see his uncle Pir Mahfuz at the Civil Hospital, Pir Hassan Bakhsh had stated that Pir Mahfuz came to the Hospital when Abdul Qadir had been taken to the Operation Theatre, and the Investi--gating Officer admitted that Pir Mahfuz was present at the Hospital when he reached there. On the basis of these statements the integrated picture sought to be built up is that when the investigating Officer arrived at the Hospital Abdul Qadir had already been taken away from the Casualty ward and perhaps put under anethesia for the purpose of an emergency operation.
73. It seems to me that the question whether Abdul Qadir was indeed in a position to make any statement can hardly be decided on the basis of the presence or otherwise of Pir Mahfuz at the Hospital, in or outside the Operation Theatre. It would obviously be more rational and much safer, to rely on the evidence of the medical witnesses who had the occasion to observe Abdul Qadir at the relevant time. It is correct that the statement Exh. 11, as recorded by the 'Investigating Officer, does not bear a certificate from the doctor to the effect that the patient was in a fit state to make a statement, but this deficiency is fully made up by the observation appearing in the medico-legal report (Exh. P. 23) to the effect that "the Police was informed to record dying declara--tion". This report was prepared by Dr. Shuja-ul-Islam Zuberi at 8-30 p. m., immediately on the arrival of Abdul Qadir at the Hospital. It is reasonable to infer from this statement that Dr. Zuberi must have formed the opinion that the patient was in a fit condition to make a dying statement, otherwise there was no point in his calling the police for this purpose.
74. There is also the evidence of It.-Col. Saeed Ahmad, then Professor of Surgery in the Dow Medical College, Karachi. As already stated, he was called in as a specialist to perform an emergency operation on Abdul Qadir. He stated during the course of the commitment proceedings, that he could recall that Abdul Qadir was talking a lot in an excited manner, although he could not say whether he was talking sense. This observation clearly establishes the fact that Abdul Qadir was not unconscious and was able to speak before the operation.
75. Relying on Nand Singh v. Emperor (AIR 1943 Lah. 101), it was contended by Mr. Manzoor Qddir that this part of the evidence of It.-Col. Saeed Ahmad, could not have been brought on the record of the trial under section 509 of the Code of Criminal Procedure, as this section related to the deposition of a medical witness and did not permit the transfer of that portion of his testimony which related to matters other than medical. He submitted that if me prose--cution wanted to rely on this part of It.-Col. Saeed Ahmad's evidence then they should have summoned him as an ordinary witness at the trial so that he could be subjected to the necessary cross-examination.
76. I regret I can see no substance in this argument, for the reason that the question whether a critically injured person is in a position to speak or not is very much a question of medical opinion, and it is for this reason that as a general rule a medical certificate is obtained in such cases before Police Officers or 9 Magistrates start recording dying statements. It is therefore, difficult to accept the contention that such evidence is not covered by the provisions of section 509 of the Code of Criminal Procedure.
77. As against the evidence of Dr. Shuja-ul-Islam Zuberi and of It.-Col. Saeed Ahmad, who had the opportunity of actually observing the condition of Abdul Qadir at the relevant time, there is the opinion of Maj. A. Hassan to the elect that "The details mentioned in Exh. P. 23 regarding the rapidity of pulse, the nature of injuries, arrangement of blood transfusion and intravenous medication and dangerous condition at the time of examination give a suggestion that the injured was not possibly conscious". The two Courts below have expressed the view that this theoretical opinion cannot override the factual observation of the other two doctors. I can see no reason to disagree with this view. While the opinion expressed by an expert witness is undoubtedly entitled to great weight, yet it cannot override the factual observation by other equally competent expert witnesses B recorded at the relevant time. I would, therefore, hold that it is established on the record that Abdul Qadir, although critically injured, was in a position to make a statement, and that he in fact did so before the Investigating Officer.
78. Interesting corroboration of this conclusion is provided by the unsophisticated testimony of Abdul Qadir's father Pir Hassan Bakhsh (P. W. 9). In cross-examination he made the following replies to questions on this point:- "I cannot say whether police recorded my statement first or that of Abdul Qadir. We were in the Casualty Ward when the police came and the statements were recorded there . . . . . . . P. W. Abdul Qadir was not stationary. Doctors were taking him from place to place. The police wanted to record his statement and the doctors wanted to save his life. His state--ment was however recorded before he entered the Operation Theatre."
79. These words, to my mind, fully depict the anguish of the anxious father of a critically injured son, and ring true.
80. Before I leave the question of identification, it is necessary to deal briefly with the contention that an adverse inference should be drawn against the prosecution on account of its failure to hold a test identification parade, although both the appellants had asked for it and had repeatedly protested that they were not known to the witnesses. It is correct that an application was made on behalf of both the appellants on 22-3-65 asking for the holding of an identification parade, but this application was rejected by the learned Sub-divisional Magistrate on 24-3-65 on the ground that the accused had been arrested nearly four months ago, and they had been brought to Court at various hearings of the case and, therefore there was no point in holding a test identifi--cation parade at that stage. The learned Magistrate remarked that the prosecution should have done that much earlier if it was necessary. A second application to the same effect was made on 9-4-65 and this was also rejected by a Deputy Superintendent of Police for the reasons that the accused persons were known to the witnesses and had been specifically mentioned in the first information report. It seems to me that in view of the fact that the appellants had been specifically named by Abdul Qadir and the other two eye-witnesses, there was indeed little point in holding a teat identification parade, especially when several months had elapsed since their arrest. Even if they had been picked out at such a test identification, it would not have had much evidentiary value.
81. This is exactly what has happened in the case of the acquitted accuse3 Fateh Mohammad.
82. An attempt was made to contend that Mohammad Ibrahim and Haji Rahim were probably not present at the spot when the occurrence took place. It was submitted that Ibrahim had gone to witness the mela in Patel Park and might not have returned by the time the shooting took place; and that it was too much of a coincidence that Haji Mohammad Rahim should have arrived to stay at the house just a few minutes before the occurrence.
83. It is correct that Mohammad Ibrahim did state in cross---examination that he had gone to see the mela in Patel Park, but this statement was made in the context of the time at which Abdul Qadir had gone out in the car with the deceased Allah Ditta. As regards the time of the occurrence itself, Ibrahim's statement is that he was standing on the footpath in front of his quarter when the car and the jeep arrived and the assault was launched. According to the description given by him, his quarter is on the ground floor of the main building and there is no compound wall in between the building and the footpath. Such being the case, his presence on the footpath in front of his quarter would be natural in the circumstances. It may be mentioned that Patel Park or Nishter Park is situated at a distance of only 60 yards from the Wardat. There is, therefore, nothing improbable in Ibrahim's having gone to see the Mela and returned to his quarter within a short time. He admittedly resides on the ground floor of the house of the injured Abdul Qadir.
84. As regards the presence of Haji Mohammad Rahim, the position stated by the witness is that in those days he used to live in one room on the ground floor of the house of Pir Hassan Bakhsh, that he bad gone on three days leave to village Badin and had returned to Karachi at about ~ p.m. That evening and had just put his luggage in the room when the firing took place. The position taken up by this witness is supported by Ibrahim who has asserted that he carried Haji Mohammad Rahim's luggage into the house when he arrived from village Badin. It is true that Mohammad Rahim has close and long association with the family of Pir Hassan Bakhsh, the two having known each other from childhood and having had business partnerships, yet the fact remains that if Haji Mohammad Rahim was not present at the spot, he could not have been named as a witness by Abdul Qadir. He had gone to Badin and it could not have been known that he would return during the night so as to be available for examination by the police. In these circumstances, I am inclined to accept the statement made by him that he had returned from Badin at about 8 p.m., and was talking to Driver Ibrahim when the two vehicles drew up among side the footpath and the firing started. It also strikes me as significant that if Mohammad Rahim was a false witness, there was no point in his mentioning his visit to Badin and return to Karachi that evening. He could have merely taken up the position that as a resident of a room on the ground floor of the house of Pir Hassan Bakhsh he witnessed the occurrence. I consider, therefore, that there is no basis for holding that Ibrahim and Mohammad Rahim were not present at the time of the incident.
85. It was next submitted that the fact that the evidence of the eye-witnesses had not been relied upon as against Fateh Mohammad, would react on its credibility as against the present. Appellants as well. The argument of course proceeds on the remise that the credit of a witness is indivisible, but the maxim 'alsus in 'uno, falsus in omnibus has rot been followed by the Courts in this sub- continent, and it has been repeatedly held that in the context of the conditions prevailing in the country, the Courts have a duty to sift the grain from the chaff. It is to be noticed that Fateh Mohammad was given the benefit of doubt., primarily for the reason that he was not named at the earliest: opportunity, and that the test identification parade did not have; much value as Fateh Mohammad could not have been properly identified while he remained sitting in the jeep during the assault. These reasons do not obtain in the case of the appellants who were known to the witnesses and were named as the culprits at the earliest possible opportunity.
86. Having found that the two appellants were identified at the time of the assault, and that they were named by Abdul Qadir and the other two eye-witnesses several hours before their inter--ception and arrest at Thatta, I consider that this last circumstance provides strong corroboration of the ocular testimony against the appellants. They had been seen escaping from the spot in a blue jeep, after they had opened fire with pistols or revolvers and it was alleged that they were escaping in the direction of Hyderabad. These allegations were confirmed by their in at Thatta on the National Highway in the middle of the, night, when they were found travelling in a blue jeep and were also found in possession of revolvers, as well as a sword. They had no reasonable explanation to give for their presence on the Highway in such circumstances. The explanations given by them to the effect that although they were arrested at Thatta but not inthe circumstances alleged by the prosecution, have been rightly rejected by the Courts below. The learned counsel appearing for appellants did not contest the fact of the apprehension of the appellants by the Thatta Police during the middle of the night; nor did they challenge the recovery of the weapons, even though a learned Magistrate had thought fit to discharge the appellants in the case relating to the possession of unlicensed weapons.
87. Coming now to the judicial confessions said to have been made by the two appellants before Mr. Anwar Sheikh, Additional City Magistrate, it has already been stated that they were retracted by the appellants during the course of the trial. Apart from this retraction, 1 am of the view that the Courts below have not given proper consideration to the facts having a bearing on the question whether the confessions were voluntarily made. It is in evidence that on the 16th of November 1964, an application was made by the counsel for the appellants, namely, Mr. Mohammad Ibrahim Abbasi, Advocate (D. W. 1) complaining that "From the day the remand has been obtained the accused have been put to various tortures by the police, just to make them to confess the guilt". It was prayed that they should be sent for medical examination so that their injuries could be verified. This application came up for orders before Mr. Naeem-ud-Din Siddiqi (D. W. 2), who was then S. D. M., New Town, Karachi. He directed that the two appellants be produced before him on the 17th of November 1964. They appeared before him on that day at about 9-30 a. m. When he recorded that the accused stated that they had been beaten by the police, but they were unable to show any marks of injury on their persons. Accordingly, he sent them back to police custody until the 19th of November 1964, to which date they had already been remanded. It is interesting, however, that immediately after Mr. Naeem-ud-Din Siddiqi had passed this order, sending the appellants back to police custody, Inspector Pir Bakhsh, to whom the investigation had been entrusted after being taken over from the S. H. O. Of Police Station Soldier Bazar, produced the two appellants before Mr. Anwar A. Sheikh, Additional City Magistrate, for the purpose of recording their confessions. The Police Officer had obtained this nomination from the City & Additional District Magistrate, Karachi.
88. When the appellants were produced before Mr. Anwar A. Sheikh, no mention was made of the fact that only half-an-hour earlier they had appeared before another Magistrate, namely, Mr. Naeem- ud-Din Siddiqi, to complain of police torture for the purpose of extracting a confession from them.
89. No explanation has come on the record for this behaviour of the Police Officer. If indeed the appellants were in a mood to make voluntary confessions, it is difficult to understand how, only half-an-hour earlier, they complained to Mr. Naeem-ud-Din Siddiqi that the police had given them a beating for the purpose of extracting a confession. It seems to me, therefore, that in these circumstances it would be highly unsafe to hold that the confessions were made voluntarily by the two appellants.
90. While the confession of Rajab Ali was recorded on the 17th of November 1964 that of Samano was recorded the next day. On the 19th of November 1904, Mr. Abbasi, Advocate, made an application to the Magistrate concerned stating that the appellants wanted to retract their confessions. It will be seen, therefore, that this is a case where the appellants had protested against police torture before their confessions were recorded, and they had retracted the confessions one or two days afterwards. It was alleged on behalf of the appellants that Inspector Pir Bakhsh had been specially selected for investigating this case because of his friendship with Abdul Qadir's uncle Pir Mahfuz, and that the Magistrate Mr. Anwar A. Sheikh was similarly selected for recording the confessions because of some enmity which he bore towards Pir Gul Hassan owing to an incident which had taken place between the two when Mr. Anwar A. Sheikh was still a college student. 1t is not necessary for me to go into these allegations, as the circumstances narrated in the preceding paragraph make it abundantly clear that the confessions cannot be regarded as having been voluntarily made. Such being the case they are clearly hit by the prohibition contained in section 24 of the Evidence Act, irrespective of the fact that the Courts below have found intrinsic evidence of the truth of their contents. The confessions must, therefore, be ruled out of consideration.
91. It was contended by Mr. Manzoor Qadir that although the witnesses had spoken of the two appellants in the same breath and in a manner indicating that the two were equally involved, yet there were certain important points of distinction between their cases. According to the learned counsel, the first distinguishing feature was that whereas Rajab Ali was fully known to the witnesses, Samano was not known to them at all and could not, therefore, have been identified; in the second place, in the first statement made by Abdul Qadir the major part was assigned to Rajab Ali who was the one to open fire, and Samano was only described as having jumped from the jeep with a pistol or revolver in his hand; and, lastly, the revolver recovered from Samano was not found to be connected at all with the only crime bullet available in the case, whereas the opinion expressed by the Expert in relation to Rajab Ali was more incriminating, although not positive.
92. On an examination of the available medical evidence, I have already expressed the opinion that it is not possible to accept the defence theory that the injuries suffered by the deceased Allah Ditta and the witness Abdul Qadir were caused by one man firing from his seat in the jeep. The two injuries found on the stomach of Abdul Qadir appear to have been inflicted by a person standing in front of Abdul Qadir, and not on the left side. It thus becomes clear that although Rajab Ali was the first to open fire, he was assisted by an accomplice who had also jumped out of the jeep. As to the identity of this accomplice, Abdul Qadir and the two supporting witnesses Ibrahim and Haji Mohammad Rahim have clearly named him as Samano and have asserted that they had come to know him at least two months before the incident. I have already given my reasons for accepting this part of the evidence. It seems to me, therefore, that the points of distinction relied upon by Mr. Manzoor Qadir do not have any substance.
93. Once the ocular evidence is accepted, and it is held that the two appellants were identified at the time of the assault, and that they were named immediately thereafter, without the witnesses receiving any inspiration, or confirmation of their suspicions, by the interception and arrest of the appellants at Thatta in the middle of the night, the guilt of the appellants stands proved beyond any reasonable doubt. I have already held that Abdul Qadir, Ibrahim and Haji Mohammad Rahim had no motive whatsoever to falsely name the two appellants, even though there was, admittedly, enmity between Pir Gul Hassan on the one side and Pir Hassan Bakhsh and his son Abdul Qadir on the other. The ocular evidence connecting the two appellants with the crime can, in the circumstances, be safely relied upon for convicting them. Even though Samano was not the first to have opened fire, yet his presence with a revolver in his -hand would fully establish his common object, along with Rajab and the other occupants of the jeep, to commit the murder of Allah Ditta and the attempted murder of Abdul Qadir. The medical evidence, however, establishes the fact that both men fired. No benefit can, therefore, accrue to Samano on the basis of the description of the assault given by Abdul Qadir.
94. The circumstances of the arrest of the appellants at Thatta provide useful corroboration of the ocular evidence against both the appellants. On this view of the matter, the mere fact that the revolver recovered from Samano was found to be not at all connected with the crime bullet would not make Jany material difference in his favour.
95. I am, therefore, of the view that both the appellants have been rightly convicted and no distinction can be made between the two.
96. As regards the sentence, it is true that the incident took place as long ago as November 1954, but the mere length of time taken in concluding the trial and in deciding the appeals filed by the appellants would not by itself constitute an extenuat--ing circumstance justifying the imposition of the lesser penalty. The appellants acted in a cruel and cold-blooded manner by allowing themselves to be hired as assassins. They do not deserve any leniency in the matter of punishment. I would, therefore, maintain their sentences and dismiss both the appeals.