AGHA ALI HYDER, J.-The appellant was convicted by the learned Additional Sessions Judge, Sukkur, for an offence under section 302, P. P. C. And sentenced to be hanged by the neck till he be dead.
Aggrieved by the judgment of conviction and sentence, he has come in appeal. There is also a reference made by the learned Additional Sessions Judge as envisaged under section 374, Cr. P. C.
Both the reference and the appeal will be disposed of by a common judgment.
2. The prosecution story is that Muhammad Murad, the father of the appellant, came to be killed on 1-1-1970. Abdus Sattar, the father, and Mohammad Bux, the uncle of Didar, since deceased, were implicated in that crime, and were detained in the judicial lock-up at Shikarpur, awaiting their trial.
It is alleged that on 30-8-1970, Didar accompanied by his mater--nal grandfather Allahrakhio, had gone to the judicial lock up situated within the taluka office of Shikharpur to meet them. They were not permitted to meet the detents;it being a Sunday. At about 6 p. m., they left the taluka office.
After they had walked a distance of about 35 paces or so, and reached the road, the appellant is alleged to have appeared on the scene and hurled a number of hatchet blows on Didar resulting in his instantaneous death. Two persons, by the names of Khan Muhammad and Noor Muhammad were in the vicinity and with the assistance of two policemen, overpowered the appellant. He was taken to the Police Station where the report was loged by Allahrakhio. The appellant was arrested and enquiries were made from the witnesses. The appellant is stated to have shown his willingness to make a judicial confession some time after the arrest, but the confession was recorded on 1-9- 1970, late in the after--noon. After due investigation, the case was sent up in Court.
3. The appellant in his statement at the Court of Enquiry as well at the trial denied the various allegations made against him. He maintained that the witnesses were deposing against him due to enmity. He also re--tracted the confession:
4. The autopsy over the dead body was held by Dr. Illahi Bux, who found the following injuries on the person of the deceased:- External injuries:
(1) An incised wound 6'x1' x bone deep on the middle of the face towards the right lateral side of the face, cutting nose completely at its middle, on the rapture, right zeugmatic bone and eye ball fractured.
(2) An incised wound 4' x -- x bone deep on occipital region.
(3) An incised wound 4' x 2' x bone deep on top of the right shoulder.
(4) An incised wound 2' x 2' x neck vessels deep on the right side of the neck laterally.
(5) An incised wound 1' x 1/2' x skin deep on the left forearm 2' below the left elbow.
The internal examination revealed the following injuries
(1) Occipital bone fractured.
(2) Occipital region or brain matter full of clotted blood.
(3) Cerebral and neck vessels cut.
According to the Medical Officer, the injuries were ante-mortem in nature and had been caused by a sharp cutting weapon such as a hatchet. 'The death had occurred due to shock and 'haemorrhage as a result of injuries Nos. 1, 2.And 4 which were individually sufficient in the ordinary course of nature to cause death.
5. The eye-witness account in the case has been in the main furnished by Allahrakhio the complainant, Khan Muhammad and Noor Muhammad.
6. Allahrakhio is the maternal grandfather of the deceased and lived in Shikarpur town. He states to have gone to the judicial lock-up along--with Didar to meet his son-in-law Abdus Sattar. They were there for a while, and on being informed that the visit was not possible, they left for home. As soon as they had reached the road, only a few steps from the main gate, there was a challenge, and the appellant was warning him to keep away as he wanted to settle the score. The appellant then gave a number of hatchet blows to Didar, who was laid low on the ground. Thereafter he had raised cries, which had attracted two passers-by, who overpowered the appellant. Soon thereafter two policemen also turned up. The appellant was totally unknown to them. He learnt of his name when given to them by the appellant himself. The appellant was then taken to the nearby Police Station, where he lodged the report.
7. His presence is vouched by all the witnesses and also by Head Constable P. W. Mehar Khan, who had seen him a little earlier, near the judicial lock-up. It would also be difficult to imagine that Didar, a stripling of 5/6 years would venture to visit his father confined in the lock--up, unaccompanied by an elderly member of the family. There is nothing at all in the cross- examination to show, that he was not a witness of truth. The old man, that he was, he could hardly do anything to come to the rescue of the helpless child. He is fully supported by Khan Muhammad and Noor Muhammad.
8. Khan Muhammad was living at a short distance from the wardat He states that Noor Muhammad had come to him a little earlier and they had just left together to have a stroll.
Allahrakhio has stated that he did not know them, but that is not the version of these witnesses.
There is however no indication that they were more than mere acquaintances. After all they belonged to the same- town. It is no body's case that there was any ill-will between them and the appellant. There ate no contradictions worth the name. There is no reason to look askance at what they have to say.
9. It was contended by Mr. Naraindas that the mere fact that they) were not related to the complainant, would not mean that they are witness of truth. He referred us to the case of Bashir Ahmad v. Muhammad Azam and another (PLD 1969 SC 469). There is no quarrel with the proposition. But in the circumstances of the case, their veracity is hardly open to any doubt. Even the appellant in his statement at the trial did not muster courage to deny that it was they, who had apprehended him at the wardat. There are also no inconsistencies in their narration of event, which appears to be forthright and free from any contradiction.
10. It was however admitted by Khan Muhammad that - he ha appeared as a witness in a murder case, and a theft case. We do not know what actually he had to say there. Mr. Naraindas, learned counsel for the $ appellant, however, argued that a person, who has already acted as, panch should not be utilized as such by the Police. In that context, he referred us to the case of Simon Kaitan Fernandez v. State (AIR 1951 Bom. 468). I am afraid, the citation is rather inapt, as Khan Muhammad was only a witness of incident here.
11.They are further supported by H. C. Ghaus Bux. (P.C. Allahrakhio who had accompanied him to the wardat, could not be examined as he had retired from service, and as deposed by P. C. Ghulam Hyder, he could not be served). Ghaus Bux at the time of the incident was at the Police Station, though not on duty. He has stated that he was living within the compound of the Taluka office. All that he had seen, was the appellant pulling the hatchet while Didar was lying on the ground in a pool of blood. Later he had also assisted in the securing of the appellant. His version does not betray any strain, or anxiety, to overstep the mark. The mere fact that he is a policeman, in the absence of any other circumstance, would not be sufficient to cast any doubt on his testimony.
12. Allahrakhio, Khan Muhammad and Noor Muhammad have also talked of the extra judicial confession by the appellant, but that will be pin admissible, as according to them, it was made on the query of H. C. ID Bux.
13. There is also the evidence of judicial confession, which was retracted by tie appellant at the earliest opportunity. It was rejected by the learned Additional Sessions Judge, on the grounds that it was recorded with a delay of about 48 hours and also because it was at variance with the prosecution `story. The delay is inexplicable, as on the showing of the S. H. O. A.I Azam, the appellant soon after his arrest had expressed his desire to make the confession.
14. However, there is also the evidence of motive. The record shows that the father of the appellant was murdered some nine months before the incident, wherein the father and the uncle of the deceased Didar had been implicated and were awaiting their trial. The appellant wanted to avenge the murder and had no qualms of conscience even in taking the life of an innocent child.
15 The prosecution as will be seen, has proved its case beyond all reasonable doubt. It was a wanton, ghastly murder, and therefore the appellant deserved the supreme penalty under the law.
16. 1 will, therefore, maintain the conviction and sentence, and accept the reference. The appeal stands dismissed.