SHAFIUR RAHMAN, J.---Leave to appeal was granted to examine whether the acquittal of the respondent No.1 Syed Azeem Shah recorded by the High Court on appeal against conviction under section 302, P.P.C. And sentence of death was in accord with correct principles of criminal jurisprudence.
2. The prosecution case was that Syed Azeem Shah was employed as a Peon in the Planning and Development Department of the Government of Baluchistan. The deceased Masood Ahmad who was at one time employed in the Zakat Administration had become his acquaintance. Their friendship had become intimate. The deceased had left his employment and started further studies in the University. He had developed friendship with certain other residents of Mohalla Shaldra. The accused/respondent felt hurt over it and protested against the deceased's developing friendship with those persons. The deceased did not care for his protest and warnings.
3. On the 7th of June, 1985 just after the Friday's prayers in the month of Ramazan, when the deceased came out of the mosque, the respondent No.1 again repeated his warning but finding that the deceased was paying no attention to it, he pulled out a knife and inflicted a number of blows on the person of the deceased. On receiving the injuries the deceased had walked, boarded a Rickshaw and asked the driver of the Rickshaw (Babar Micheal P.W. 2) to take him to Shaldra but on way he collapsed and on pouring some water on his head by the driver (Babar Micheal P.W. 2) he regained his senses. The driver took him to the Civil Hospital where the deceased expired within minutes.
4. Zainuddin (P.W. 4) a boy aged 11 years who, was sitting in a Kokha (cabin) near the place where the occurrence had taken place and Muhammad Rashid Malik (P.W. 5) an Assistant Director in the Geological Survey of Pakistan, who had come to offer the prayers had witnessed the occurrence.
5. Mr. Muhammad Sharif (P.W. 13) S.H.O., City Police Station, Quetta received a telephonic message from the Casualty Ward of the Civil Hospital, Quetta informing him that an unknown injured person had been brought there who had expired. He made entry in the daily diary at 3-15 p.m. And reached the Hospital. He recorded the statement of Babar Micheal (P.W. 2), the Rickshaw driver on the basis of which the First Information Report was registered. The S.H.O., then accompanied the Rickshaw driver (Babar Micheal P.W. 2) to the place from where the injured had been picked up. He did not find any mark of blood or of struggle near that place. It was late in the night that the father of the deceased came to the Police Station and identified the dead body of his son. The post- mortem was performed the next day at 9-30 a.m. The doctor found the following injuries on the dead body:-- "(1) Abrasion on the left elbow, 3" x 2".
(2) Stab wound on the back side of chest 1-1/2" in length 1/2" breadth and chest cavity deep.
(3) Stab wound below the injury No.2, 1/2" x 1/2" chest cavity deep.
(4) Stab wound on the left upper arm in front 1" x 1/2" muscle deep.'
(5) Stab wound on the left upper arm 2" below the injury No.4, 1/2" x 1/4" muscle deep.
(6) Stab wound on the left upper arm on the back sid 1/2" x 1/4" muscle deep.
(7) Stab wound 3" x 1/4" x 4" below injury No.6.
(8) Stab wound front of chest left side near the niple 3/4" x 1/2" x chest cavity deep.
(9) Stab wound 2" below the injury No.8,1" x 1/2" x chest cavity deep."
6. Zainuddin (P.W. 4) was shown an Album containing the photographs of the friends of the deceased and it was one of the photographs therein which was identified by Zainuddin P.W. 4 as of the person whom he had seen causing the injuries to the deceased. Muhammad Sharif S.H.O. (P.W.
13) arrested the accused/respondent No.1 from Killi Sheikh Manda alongwith a pistol and seven live cartridges and three missed cartridges of .32 bore. On the pointing out of the respondent No.1/accused, the blood-stained knife was recovered from the roof of one of the shops close to the scene of occurrence and it was found to be stained with blood of the same group as was found on the clothes of the deceased himself. The respondent No.1/accused was identified in an identification parade conducted by P.W. 6 (Hussain Bux Umrani) and he made a judicial confession before Mir Sher Dil Khan, Extra-Assistant Commissioner/Magistrate 1st Class on 13-6-1985. In that confession the accused/respondent No.1 admitted having caused the death of Masood Ahmad, his friend, because he had not heeded his advice and warning so far as friendship with others was concerned.
7. At the trial the respondent No.1/accused admitted his friendship with the deceased but denied having caused his death or objected to his friendship with others. He denied having got recovered the knife. He denied his arrest and recovery of fire-arms from him. As regards the judicial confession before the Magistrate/EA.C., he stated as hereunder:-- "I was produced before the Magistrate. Nothing was asked from me. Only my signatures were taken on a blank paler."
8. He appeared as his own witness and was examined on oath. He stated that at the time when the occurrence took place, he was in a different village. As regards the judicial confession, he stated as hereunder:-- "I was not produced before the Magistrate on 13-6-1985. It is not a fact that the Magistrate had turned out the police from his Court after I was produced before him. (Voluntarily said that the police was present there). It is not a fact that my handcuffs were removed. It is not a fact that no one was present in Court except the Magistrate and myself. (Voluntarily said that the police was present there). It is not a fact that the Magistrate informed me that I was at liberty to make the statement or not and if I .Did not make any statement I would not be remanded back to police custody. The Magistrate had not informed me that any statement if made by me would be used against me as an evidence. It is not a fact that the Magistrate gave me 45 minutes for reflection. It is not a fact that after the period of reflection, I volunteered myself to give statement. The confession statement Ex. P/H bears my several signatures:"
He produced three witnesses in defence to prove his alibi and called Abdul Majeed, one of the prosecution witnesses for the recovery of the knife in defence as D.W. 4.
9. The trial Court considered Zainuddin (P.W. 4), who was considered hostile, to be a natural and truthful witness. All the same, it was noted that located as he was, he could not see the actual occurrence where the respondent No.1/accused allegedly gave knife blows to the deceased. He stated about the purchasing of the Cigarette by the respondent/accused from his Stall and then after the occurrence, passing by the Stall. He further stated about his identifying the respondent No.1/accused by the photographs shows to him and having been kept at the Police Station while the arrest of the respondent was being attempted. The trial Court also believed the eye-witness Rashid Malik (P.W. 5); the recovery of the blood-stained knife at the instance of the respondent and the voluntary and true character of the confession made by him. The plea of alibi taken by the respondent was rejected. The Court found the respondent guilty of the offence under section 302, P.P.C., convicted him and sentenced him to death, subject to confirmation of the sentence by the High Court, and to a fine of Rs.5,000 and compensation of Rs.15,000 or in default to suffer R.I. For six months.
10. While seized of the question of the confirmation of the death sentence and the appeal filed by the respondent against his conviction and sentence, the High Court considered the ocular evidence, the recovery and the confession, all not proved, beyond doubt, and accepting the appeal of the respondent/accused,' acquitted him of the charge, and answered the Murder Reference in negative.
11. Ch. Muhammad Yousaf, Advocate, the learned counsel for the appellant m assailing the acquittal of the respondent/accused contended that the record has been misread by the High Court on material points and for that reason conclusions unsupportable from the record have been drawn, such as cannot be allowed to stand on a correct reading of it. He has taken us through the entire evidence in order to show that a consistent and a plausible case beyond all reasonable doubt was established by the evidence produced at the trial and the. Conviction recorded and the sentence imposed by the trial Court was the only proper one, requiring no interference by the High Court.
12. Mr. Azizullah K. Sheikh, Advocate, the learned counsel for the respondent/accused on the other hand drew our attention to the principles invoked in dealing with an appeal against acquittal as recognised by this Court in Mian Syed Baghdad v. Said Mian and 2 others 1983 SCMR 117, Billu alias Inayatullah v. The State PLD 1979 SC 934 at 937 and Abdul Majid v. Superintendent and Remembrancer of Legal Affairs, Government of East Pakistan PLD 1964 SC 422 to contend that if those principles are applied. No fault can be found with the acquittal of the respondent/accused.
He considered the statement of Rashid Malik (P.W. 5) to be intrinsically inconsistent, unsound, incapable of establishing the guilt of the respondent/accused. According to the learned counsel, each piece of evidence brought against the respondent was so weak and infirm that it cannot serve the purpose of providing the requisite corroboration on a capital charge.
13. We have noted a few instances of misreading of the record by the High Court. For example, at one place, the High Court observed as hereunder:-- "In so far as P.W. 5 Muhammad Rashid Malik is concerned it has to be borne in mind that he is a close neighbour of the deceased. On the day of occurrence he was passing through the Masjid Road after offering Juma prayers and by chance he saw the occurrence. However, his conduct with regard to the alleged fight and in so far as the deceased was concerned is most questionable. He has stated that he saw the appellant and the deceased fighting with each other. He also saw the appellant allegedly giving knife blows to the deceased. He also saw the deceased going away in a rikshaw. But he did not care to inform the relatives of the deceased about the occurrence although he had immediately thereafter gone to his house. He also did not try to find out from the house of the deceased if he had safely reached his house. Although this witness is not related to the deceased but he is a close neight5our and if he had seen the occurrence then he would have at least tried to make sure that the deceased had reached his house safe and sound. Although he.
Had immediately gone to his house after the incident but he kept quiet for 5/6 hours and did not inform any of the relatives of the deceased about the occurrence."
14. The deceased was a resident of Fatima Jinnah Road, Quetta as stated by Mian Hassan Ahmed (P.W. 3), the elder brother of the deceased. Muhammad Rashid Malik (P.W. 5) was a resident of Federal Lodge No.3, Central Government Servants Colony, Quetta. The two are not the places close to each other. Besides, this witness has accounted for his presence by stating that on holidays, he used to visit his maternal-uncle whose house was situated at Art School Road, Quetta. It happened to be Friday, when the occurrence took place, and as usual he went to the house of maternal-uncle and from there went to offer prayer in the mosque. After the prayers, he went back to his house in the Colony. Therefore, the entire evidence built upon the neighbourliness of this witness to the deceased family gets demolished.
15. As regards the place of recovery of the knife from the roof of a shop, the High Court noted in paragraph 8 of its judgment that "it has also not been brought on record whether the place' from where the recovery was made is contiguous to the place of incident or is far away therefrom". The site plan exhibited as Exh. PJ. Shows the spot where the injury was inflicted and also the shop over the roof of which the knife was thrown. It is just across the street.
16. Muhammad Sharif S.H.O. (P.W. 3) had stated that while pointing out to the recovery of the knife, the respondent had stated having used it and shown his readiness to get it recovered and in fact had got it recovered. From this the learned Judges of the High Court have concluded that at that very time the respondent was willing and ready to make a judicial confession and the Police Officer delayed it at a great risk. To get the weapon recovered and to make a statement in respect of it is one thing and to be ready to make a judicial confession is another. There is nothing on the record to show that the respondent was ready and willing to make a judicial confession and was not produced before the Magistrate promptly. The High Court dealt with this matter as hereunder:-- "The appellant was arrested on 8-6-1985 and it has come in evidence of P.W. 13 Muhammad Sharif that on the same day he had confessed his guilt and had also led the police party to the place from where the alleged weapon of offence was recovered. It is clearly indicated from this evidence that the appellant had made a confession of his guilt on the same day when he was arrested.
However, he was produced before the Magistrate for the purpose of recording his confession five days thereafter. The reason for this delay as explained by P.W. 13 Muhammad Sharif was that he was busy with other works in the mean--time. This explanation to justify delay in recording the confession after five days does not appeal to reason. It is quite possible that in the meantime the appellant could have resiled from the confession. What was the guarantee that the appellant would stick to his confessional statement for five days. If the appellant had made the confession on the very first day of his arrest then certainly P.W. 13 would have taken him on the same day to the Magistrate for recording the same. The delay of five days clearly indicates that the appellant had not made a confession and it was either extracted from him or he was coerced into making the same or some inducement was offered to him for making the confession."
17. As regards the coercion, inducement and extraction of the confession, the statement of the respondent was that he was made to sign on a blank paper. Even in his statement on oath he made no allegation with regard to duress, coercion or inducement. The conclusion drawn with regard to the confession gets no support from the record. On the contrary, it is contradicted by the record.
18. As regards the absence of blood at the spot, the High Court observed as hereunder:-- "To us the place of occurrence also appears to be doubtful. The doctor has stated that all the external injuries received by the deceased must be bleeding. It has also come in the evidence of P.W. 1.0 Raja Muhammad Irshad, Sub-Inspector that there was bleeding from the wounds of the deceased when they saw the deceased in the hospital. However, not a drop of blood was found at the alleged place from where the deceased was picked up by P.W. 2 Babar Micheal or which has been designated as the place of fight by the two eye-witnesses."
19. What the doctor had stated was ,that "the external injuries which do not open into the body there must be bleeding outside them". At the time of post--mortem, the doctor had noticed extensive internal injuries and profuse bleeding inside the body. The deceased had walked away erect from the spot. He had not fallen on the ground. The occurrence had taken place in a street after the Jumma prayers. In this background to expect marks of a scuffle on the ground or blood, would not appear quite reasonable.
20. The law laid down by this Court from time to time on acquittal appeals has been all summarised in the case of Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11. One of the principles extracted was that the acquittal can be interfered with if the High Court had disregarded material evidence, misread such evidence or received such evidence illegally.
21. There was only one eye-witness of the occurrence and it was Rashid Malik (P.W. 5) who was not in any way related or connected with the parties. He is stated to be a colleague of Mian Hassan Ahmad (P.W. 3), brother of the deceased. He claimed to have known the deceased but not through his brother or the colleague but because the deceased and the respondent used to visit a body-- building Club where he also used to go some times. He has accounted for his presence at that mosque outside which the occurrence took place. His conduct is not unnatural. He saw the respondent infecting few knife blows on the deceased and the deceased walking to the Rickshaw and boarding it in the normal course. He questioned the deceased and he told that he was alright.
Neither the Rickshaw driver nor this witness suspected that the deceased had received fatal injuries. He got satisfied with his reply and went to his residence. It was only when he learnt about the death that he did what any concerned eye-witness would have done. The contention of the learned counsel for the respondent that after receiving such injuries, so deep and fatal, the deceased could not have walked that destination, boarded the Rickshaw, as if nothing had happened to him is not supported by any material on record. It was a matter of stamina and health. The injury was fresh. The deceased himself was unaware of its gravity. He wanted to be taken to Shaldara, to his friends, not to his house or to the hospital.
22. The learned counsel for the respondent has also attacked the testimony of Rashid Malik (P.W. 5) on the ground that he was a colleague and friend of the brother of the deceased and further behaved in a most inhumane and heartless fashion, which cannot on any hypothesis be expected of a friend or even of an acquaintance. He did not come to the help of the deceased. He did not report the occurrence to anyone. He did not take any remedial measures as could be expected of such a person. The witness having seen the deceased walking and boarding a Rickshaw and having received the reply from the victim himself that he was alright, could not feel greatly concerned about his welfare so as to prompt him to take all the steps which otherwise he would have necessarily taken. The injuries on the person of the deceased were such that he could, for some distance walk erect and also behave in the manner in which he is said to have behaved.
Soon after boarding the Rickshaw he collapsed. It was thereafter, that he was taken to the Hospital.
23. As regards the recovery and the voluntary character of the confession, we are satisfied, considering every aspect of the case that it stands proved. The accused did not make any grievance of. Having been coerced, tortured or roughly dealt with. The Magistrate has appeared. He has made the statement that he had not only completed the prescribed formalities for recording the confession but had also satisfied himself personally about voluntary character of the statement to be made by the accused/respondent before he started recording it.
24. We find that the guilt of the accused/respondent was fully brought out from the material produced at the trial and the trial Court had rightly convicted and sentenced him. We would accept this appeal, set aside the acquittal of the accused/respondent No.1 and convict him under section 302, P.P.C. As regards the sentence, we find that in the interregnum, Presidential amnesty has intervened to benefit all those who were convicted and sentenced to death before December, 1988. In the circumstances and consistent with it, on restoring the conviction of the accused/respondent under section 302, P.P.C., we would sentence him to life imprisonment and a fine of Rs.10,000 or in default to undergo two years' R.I. The fine, in its entirety or any portion of it, when recovered, shall be paid as compensation to the heirs of the deceased.