1. SALAHUDDIN AHMED, J.-This is a Reference under section 374 of the Code of Criminal Procedure made by Mr. Md. Maseeh, Additional Sessions Judge, Chittagong for confirmation of sentence of death passed upon Abut Kashem, son of late Noor Ahmed of mouza North Kalisish, Police Station Satkania, District Chittagong, who has been convicted and sentenced under section 302 read with section 34 of the Pakistan Penal Code. There is also an appeal by the condemned-prisoner. Both the Reference and the appeal have been heard together and they are now being disposed of under one judgment.
2. The prosecution case may briefly be stated as follows: On 27-6-67 corresponding to 12th Ashar, 1374 B. S. At about noon Ahmed 1-lossain Mukhtear of the Chittagong Criminal Bar was awaiting the call of his case before Mr. K. R. Ahmed, Magistrate, 1st Class in which he was an accused leaning or kneeling against the railing of the verandah to the north of the Courts of the said Magistrate and another 1st Class Magistrate Mr. Hazrat Ali. The Mukhtear was found surrounded by 8/9 persons. Suddenly one of the persons stabbed the Mukhtear on his back by a dagger and leaving the dagger stuck up in the body ran away. Almost simultaneously another person who has been identified to be the condemned-prisoner Abul Kashem started stabbing the Mukhtear with another dagger in quick succession. The occurrence and the noise created thereby attracted the attention of persons who were near the place of occurrence and one of then;. Namely, P. W. 1 Assistant Sub-inspector of Police Siddiqur Rahman rushed to the place and caught hold of the condemned-prisoner while he was trying to leave the scene of occurrence with the blood-stained dagger in his hand. The Mukhtear having thus been injured ran into the Court room of Magistrate Mr. Hazrat Ali and collapsed on the space between the dais and the benches where the lawyers were sitting. P. W. 6 Abut Bashar, Bench Clerk of the said Magistrate, took out the dagger stuck up in the body of Mukhtear Ahmed Hossain and placed it on the table in front of the Magistrate. Shortly after P. W. 1 Siddiqur Rahman along with some other persons dragged the condemned-prisoner inside, the Court room of Mr. Hazrat Ali and the witness placed they blood-stained dagger on the table in front of Mr. Hazrat Ali it is said that having been questioned by some of the persons present inside the said Court room the condemned-prisoner stated that he along with another person stabbed the Mukhtear on account of previous enmity over money and lands. The injured Mukhtear was then sent to the hospital in a baby taxi but he died on the way. P. W. Siddiqur Rahman seized the aforesaid two daggers after having made a seizure list for the same and having taken the condemned prisoner in his custody went to Kotwali Police Station and there lodged a first information report which has been marked as Exh. 3 in the case. This first information report was received by the officer on duty P. W. 5 Abdur Rahman who having put his endorsement thereon sent the same to P. W. 9 Sub-Inspector S. H. Siddique for investigation. P. W. 9 proceeded to the Medical College Hospital and held an inquest on the dead body of Mukhtear Ahmed Hossain at 3-45 on the same day. Sub-Inspector Siddiqui seized the wearing apparal of the deceased and sent the dead body for post-mortem examination. The same day at about 6 p.m. He visited the place of occurrence in the Court building, and seized some blood-- stained dust from the place where the deceased Mukhtear was stabbed and the place inside the Court room of Hazrat Ali where the deceased collapsed as a result of the injuries inflicted the same eveningP. W. Md. Ishaque, Circle Inspector and the then Superintendent of Police Mr. NurulMonem,P. S. P. Arrived at the police station to supervise the investigation of the case and they asked P. W. 9 Sub-Inspector Siddiqui to make over the investigation of the case to the Circle Inspector P. W. 30.Both the Superintendent of Police and the Circle Inspector asked P. W. Sub- Inspector Siddiqur Rahman to submit a Bengali transla--tion of the said first information report which had been recorded in English. Accordingly the next morning (28-6-67) P. W. I submitteda Bengali translation of Exh. 3 to P. W. 5 Sub-InspectorAbdur Rahman, the Officer on duty, and the latter made an endorsement and put the date as 27-6-67. The Circle Inspector of Police P. W. 30, however, was not satisfied with the Bengali translation of Exh. 3 and P. W. 1 had to write out another complaint at the dictation of the Circle Inspector, and this complaint was sent to the Court and formed part of the report of the case. The investigation changed hands several times and finally P.
3. W. 33 Mr. M. U. Talukdar, a member of the Criminal Investigation Department, East Pakistan conducted the investigation and under orders of the Deputy Inspector General, Criminal Investigation Department. East Pakistan handed over the investigation of the case to P. W. 32 Sub-- Inspector of Police, Criminal Intelligence Department, East Pakistan, Dacca and the last named Officer submitted a charge-- sheet against nine accused persons under sections 302 and 302/109 of the Pakistan Penal Code. The preliminary enquiry under Chapter XVIII was held by a Ist Class Magistrate who committed the eight persons to the -Court of Sessions to stand trial on the said charges.
4. In the Sessions Court, however, the charges were altered to one under section 302/34, Pakistan Penal Code and only one of the accused persons, namely, the condemned-prisoner before us was found guilty of the murder of Mukhtear Ahmed Hossain and he was convicted and sentenced to death under section 302/34, Pakistan Penal Code.
5. The trial was held with the aid of three Assessors all of whom were unanimously of opinion that the condemned-prisoner was guilty of the charge framed against him.
6. The death of Mukhtear Ahmed Hossain was never challenged at any point of time and this fact has been proved on good evidence. P. W. 9 Sub-Inspector Siddiqui held inquest on the dead body of the deceased Mukhtear on 27-6-67 at the Medical College Hospital, Chittagong on the identificatiotr of P. W. 25 Mofizur Rahman, a brother-in-law of the deceased Mukhtear, P. W: 7 Dr. N.
7. Talukdar held autopsy on the body of the Mukhtear on 28-6-67 on the identification of P. W. 3 Constable Abul Rashem to whom the body had been made over by P. W. 9 Sub-Inspector Siddiqui for the purpose of taking it to the morgue for post-mortem examination. The Dr. P. W. 7 found the follow--ing injuries on the body of deceased Mukhtear
(1) One incised wound 1 --"x -- " x -- "on the left side of middle of face.
(2) One penetrating wound 1" x -- " x 1 -- " on the- left side of neck, cutting the external and internal cartotre vessels corresponding the wound.
(3) Three penetrating wounds measuring 1" x -- " x bone x chest cavity deep (upper 2) and chest cavity deep (lower). Two of the wounds are situated on the upper part of left side of the back of chest and the other is on the lower part of back of chest-left side.
(4) One incised wound 1" x -- " muscle deep on the outer aspect of the back of chest on the left side 2?" medial to the left shoulder.
(5) One incised wound 1 -- " x -- " muscle deep on the upper part of back of right side of chest 2" medial to the right shoulder.
(6) One penetrating wound 2 -- " x 1" x 3" deep on the posteralateral aspect of right side of root of neck cutting the external and internal carotid vessels and nerves.
(7) One abrasion -- " x -- " on the left side of frontal region of head. All other organs except the few stated above are found healthy.
8. According to the doctor the injuries were anti-mortem and homicidal in nature and the death was due to shock and haemorrhage resulting from the injuries stated above. In the opinion of the doctor injuries Nos. 3 to 6 are from the back side. The doctor was further of opinion that except injury No. 7 all other injuries might be caused by daggers Exhs. I and II and that injury Nos. 7 might be caused by a fall on a .Hard substance such as cemented floor.
9. The main question for consideration before us is who is responsible for the death of the deceased Mukhtear.
10. Prosecution has relied on the evidence of several eye--witnesses as well as on an extra-judicial confession made by the condemned-prisoner which has since been retracted. Before, however, we proceed to discuss the evidence against the condemned-prisoner we think it desirable to dispose of the contention of Mr. Serajul Huq, learned Advocate appearing on behalf of the condemned- prisoner in regard to the several alleged first information reports that have appeared on record. It has been contended that right from the beginning the police tried to alter and improve the case against the accused persons including the condemned-prisoner and the benefit of the confusion created thereby should go to the condemned-prisoner. It has been also contended that although there is no mention of the condemned-prisoner's confession in Exh. 3 it has been mentioned in first information report marked X and this obviously was a clear attempt on the part of the prosecution to improve upon its earlier version of the case.
11. It is indeed curious and very unusual to find that several first information reports have appeared on record admittedly at the instance of the police themselves. On this point we have carefully examined the evidence of P. W. 1 Assistant Sub---Inspector Siddiqur Rahman as well as other evidence bearing on the point and we have felt that the learned Additional Sessions Judge rightly believed the evidence of P. W. I the Assistant Sub-Inspector. P. W. I Siddiqur Rahman has categorically stated that he lodged the first information report, which is Exh. 3 on record, at the time he produced the two seized daggers and the condemned-prisoner before the Officer-in-Charge (duty officer) P. W. 5 Sub-Inspector Abdur Rahman. P. W. 5 has fully corroborated P. W. I on this point and the endorsement of P. W. 5 appearing on Exh. 5 itself fully supports the veracity of P. W.
12. Siddiqur Rahman. The said endorsement of P. W. 5 reads as follows :- "Received and started Kotwali Police Station, Case No. 47, dated 27th June 1967, under section 302, P. P. C.
13. A. Rahman, S. I.
14. Kotwali P. S. at 14.00 hrs."
15. P. W. 1 has proceeded to state that on the order of his superior officers, namely, the Circle Inspector of Police P. W. 30 Md. Ishaque and the then Superintendent of Police he had to write out two more first information reports, namely, Exhs. `X' and `Y'. Exh. `Z' is the draft of Exh. `Y'. On this point, too P. W. 1 is fully corroborated by P. W. 5 Sub-Inspector Abdur Rahman. P. W. 9 Sub-Inspector Siddiqui has also corroborated P. W. I when he stated that he received a copy of Exh. 3 for the purpose of taking up investigation of the case and that there was an endorsement on it by the Duty Officer, P. W.
16. Abdur Rahman. There is no reason to disbelieve these three police officers. The history of the investigation also lends support to the suspicion that deliberate attempts were made to interfere with the true course of investigation in the case. In this connection the seizure list Exh. 2 dated 27-6- 67 at 12-00 hours whereby the two blood--stained daggers were seized of which one was found in the hand of the condemned-prisoner should also be considered because it lends support to the fact that Exh. 3 was the first information report lodged by P. W 1. On the contrary in the first information report marked `X' it is stated : "Accused Kashem's knife remained stuck to the back of the Mukhtear." P. W.
1. As well as other reliable witnesses have clearly stated that one of the daggers seized was seen in the hand of the condemned--prisoner Abut Kashem. In our opinion the learned Additional Sessions Judge rightly held that Exh. 3 was the first information report lodged by P. W. 1.
17. We .Do not think that these obvious attempts by some officers to interfere with the course of investigation have succeeded in creating confusion in the case to the benefit of the condemned- prisoner.
18. Coming to the eye-witnesses we have the evidence of no less than four persons to prove that the condemned-prisoner was actually seen stabbing the deceased Mukhteac. P. W. I is Assistant Sub- Inspector of police Siddiqur Rahman, who happened to be present in the Court building at the time of occurrence -in connection with the service of warrants upon some persons. The presence of this witness at the time of occurrence inside the Court building has been proved not only by documentary evidence such as O. D. No. 1875 dated 27-6-67 but also the seizure list Exh. 2 which was prepared in the Court building on 27-6-67 at 12-00 hours. His presence at the time of occurrence has also been proved among others by P. W. 23 Mr. Hazrat Ali, Magistrate, Ist Class in whose Court deceased' Mukhtear had collapsed after the occurrence. P. W. 1 has stated that on hearing cries he rushed to the place of occurrence and saw two persons stabbing with daggers Mukhtear Ahmed Hossain and he identified those persons as the condemned-prisoner Abut Kashem and Bashir Ahmed alias Bag Ali who has since been acquitted. P. W.' 1 has stated that while he was in front of the door of the Court of Mr. Hazrat Ali (this door opens out in the verandah to the north of the Court room .Of Mr. Hazrat Ali), the said accused Bashir Ahmed alias Bag Ali ran away on the verandah towards the west on seeing the witness and that there was nothing in the hand of the accused at the time. P. W. 1 has proceeded to state that the condemned --prisoner Abut Kashem was then still stabbing and the injured Mukhtear ran and entered the ,room of Mr. Hazrat Ali. The condemned-prisoner tried to run away but he was caught hold of by P. W. 1 on the staircase of the verandah in front of the door of the Court of Mr. Hazrat Ali with the blood-stained dagger in his hand. P. W. 1 has stated that among the persons who assisted him at the time of arresting the condemned-prisoner was P. W. 15 Belayet Hossain. P. W. 15 has fully corroborated P. W. 1 on this point. P. W. 15 has stated in his evidence that he helped the arrest of the condemned-prisoner Abut Kashem by catching hold of the collar of the shirt from behind. This witness has also corroborated P. W. 1 that the arrest was made near the staircase of the verandah and that the condemned -- Prisoner had a knife in his hand. Exh. 2 the seizure list whereby the two daggers were seized also corroborates the story given by P. W.
1. The evidence of P. W. 1 is consistent throughout and there is nothing to indicate as to why he should falsely implicate the condemned-prisoner. Mr. Serajul Huq, learned Advocate appearing on behalf of the condemned-prisoner was also unable to give any reason why P. W. 1 should be disbelieved. The only suggestion given to P. W. 1 is to the following effect: "It is not a fact that for temptation of promotion in service I have entangled the accused at the instance of others." No attempt was made to place before us any materials to substantiate the suggestion. In our opinion the evidence of P. W. 1 is thoroughly reliable and it is alone sufficient to maintain the conviction of the condemned-prisoner who was caught red-handed.
19. The next eye-witness is P. W. 2 Serjul Huq who happened to be present in the Court premises on the date of occurrence in connection with a murder case against him wherein he and his father were subsequently convicted' under section 325 of the Pakistan Penal Code. This case was pending in the Court of Mr. Mohsin. The Court room of Mr. Mohsin is on the ground floor and it is the evidence of P. W. 2 that while he was returning from a search of his lawyer he saw Ahmed Hossain Mukhtear standing against the railing of the verandah in front of the Court room of Mr. Hazrat Ali surrounded by several persons including the condemned-prisoner. P. W. 2 has further stated that he saw accused Baikay alias Bog Ali since acquitted suddenly striking at the back of the Mukhtear with a knife and running away leaving the knife stuck up in the body of the deceased. Soon after the condemned-prisoner started striking the Mukhtear with another dagger and the latter ran and.
20. Entered the room of Mr. Hazrat Ali. As the condemned-prisoner was running away from the verandah towards the north he was caught hold of by the police on the staircase. The witness denied the suggestion that he did not see the occurrence nor the arrest of the condemned- prisoner. He also denied that the condemned-prisoner was arrested by the public under a banian tree. The witness has stated that the assailant stabbed the Mukhtear from behind and that he did not see blood-stains on the person of anybody else. The witness denied in cross-examination that after he had made his statement before the investigating officer, he was exempted of the hard duties of the jail. That P. W. 2 was present in the Court building on the date of occurrence has been corroborated by his father P. W. 4 as well as their lawyer P. W. 13 Khemesh Chandra Nath. P. W. 13 has stated that both P. Ws. 2 and 4 were present in Court as their case had been fixed for 26th .And 27th June. P. W. 13, has, however, stated that it was known on 26-6-67 that the case would not be taken up as the witness failed to appear. Mr. Serajul Huq, Advocate has, therefore, contended that there was no reason for P. Ws. 2 and 4 to be present in the Court building on the 26th June 1967.
21. There is no substance in the contention. Both P. Ws. 2 and 4 were involved in a murder case they were out on bail and their lawyer P. W. 13 was lawyer surety for them and the case was fixed for 26th and 27th June 1967. If P. Ws. 2 and 4 were not present in Court on these two days, they ran the risk of cancellation of their bail if their case had been called and they were found absent. It was therefore, necessary for them to remain present on the days their case was fixed for hearing. The evidence of P. W. 2 has been assailed on the ground that he was convicted and sentenced under section 325 of the Pakistan Penal Code. We do no think that this alone is a valid reason for disbelieving the evidence of this witness particularly when it has received support from other reliable evidence.
22. P. W. 18 a sixty-year old Mukhtear Dalilur Rahman is another eye-witness of the occurrence: He too saw the Mukhtear surrounded by 5/6 persons about the time of occurrence and saw two persons stabbing the Mukhtear. The first to stab with a dagger was Bag Ali and his dagger remained stuck up in the body of the Mukhtear. The next man then to do so is the condemned-prisoner who started stabbing the Mukhtear in quick succession. The witness has proceeded to state that the condemned-prisoner was subsequently arrested by the police and the public on the staircase of the Court building. The witness has further stated that the condemned-prisoner had a knife in hand when he was arrested. This witness has also spoken about the extra judicial confession of the condemned-prisoner and we shall advert to this hereafter. The witness has fully corroborated P. W.
1. The witness while he stated in his examina--tion-in-chief that the condemned-prisoner stabbed from the front, in cross-examination he stated that the stabbing was from the back. Although it was suggested that the witness was not present to see the occurrence, it was never put to him that he was never present in the Court building on the date of occurrence. The witness has categorically denied that he was not present at the place of occurrence. No valid reason has been suggested to the witness as to why he should falsely implicate the condemned-prisoner.
23. The next witness is P. V. 29 Abdur Rahim who was present in the Court building on the date of occurrence as he was a witness in a complaint case brought by his mother-in-law which was fixed for hearing on that date in the Court of Mr. A. A. Mollah. The Court room of Mr. A. A. Mollah is on the second floor of the Court building. At the time of the occurrence the witness came down to look for his Mukhtear on the groundfloor and was proceeding towards the Court of Mr. M: H. Ali by the northern verandah when he saw Ahmad Hossain Mukhtear standing on the northern verandah in front of the room of Mr. K. R. Ahmed having 8/10 persons by his side. Among those persons the witness identified the condernned-prisoner. The witness has stated that two persons stabbed the deceased Mukhtear and one of them was caught by the public and his name transpired to be Abul Kashem. The witness has said that this man had " a blood-stained knife in his hand: The witness has further stated that the injured Mukhtear entered the Court room of Mr. Hazrat Ali having one knife stuck up in his back and both the knives, namely, one stuck up in the body as well as the knife in the hand of the condemned prisoner were kept on the table. This witness too had spoken about the extra--judicial confession of the condemned-prisoner and we shall them advert to it hereafter.
24. This witness is the only witness who has stated that Ahmed Hossain Mukhtear had said that Mansaf company killed him. The witness in identified the condemned-prisoner at the test identification parade held by a Magistrate. There was a case against this witness under the Arms Act and it was pending at the time he deposed in the Court. The witness, however, at an earlier stage of the cross- examination stated that there was no case against him. The witness denied that he was a tout who brought clients and share the litigation fees with Junior Mukhtears and that he was deposing falsely. The witness, however, never told the Investigating Officer that the deceased Mukhtear had stated that Mansaf company killed him. The presence of this witness in the Court building at the time of occurrence has been proved by his Mukhtear P. W. 13 Khemesh Chandra Nath.Mr. Serjarul Huq, learned Advocate has criticised this witness saying that he was an accused in a criminal case which he tried to conceal at one stage and that he had tried to implicate some of his enemies including one Kala Mia. It appears that one Kala Mia was identified by this witness. But there is no evidence to connect this Kala Mia with the Kala Mia who was supposed to be the enemy of the witness. No Kala Mia was, however, ever sent up for enquiry or trial. The mere fact that he was an accused m an Arms Act case does not appearto us to be a good reason for disbelieving the evidence of this witness.
25. There is another witness who may well be regarded as an eye-witness inasmuch as he clearly stated in his evidence before the Committing Court that he had seen the condemned-prisoner stabb--ing Ahmed Hossain with a dagger and that that the condemned-- prisoner was arrested in the staircase of the verandah of Mr. K. R. Ahmed. The attention of the witness had been duly drawn to this statement after he had been declared hostile by the prosecution. In his examination-in- chief, however, he has merely identified the condemned-prisoner as the. Person who was arrested on the spot. In the same breath, however, this witness stated in the examination-in-chief that the condemned--prisoner Abut kashem was arrested under the banian tree near the Court Malkhana.
26. It may have been noticed that before the committing Magistrate the witness said that Abut Kashem was arrested in the staircase of the verandah of the Court of Mr. K. R. Ahmed. It is convenient to note at this stage that the northern verandah where the occurrence took place adjoined the Court rooms of both the Magistrates, Messrs K. R. Ahmed and Hazrat Ali and that is the reason why some witnesses stated that he was on the verandah of Mr. K. R. Ahmed's Court and others stated that it was on the verandah of Mr. Hazrat Ali's Court. The verandah is the same and the two Court rooms lay adjacent to each other.
27. The eye-witnesses have been corroborated by a number of other witnesses, including P. W. 23 Mr. Hazrat Ali, Magistrate himself. The Magistrate P. W. 23 has stated that the occurrence took place at about 12 noon on 27-6-67 and 'that after the injured Mukhtear had entered his Court room and collapsed, one blood-stained dagger was placed on the table of the Magistrate and that dagger was of the type of Exhs. 1 and 11. After 2/3 minutes another blood-stained dagger was placed on his table. The Magistrate has said that the condemned-prisoner was found surrounded by the police and the member of the public and he was brought in his Court room in that condition and that the prisoner was charged that he was the assailant of deceased Abut Hossain Mukhtear. The Magistrate has also spoken about the extra judicial confession of the condemned-prisoner. In cross-examination ,the Magistrate has stated that Assistant Sub--Inspector Siddiqur Rahman entered the Court room when accused Abut Kashem was in the Court room. We have carefully read the evidence of the Magistrate and we place full reliance on his evidence. Among other witnesses of corroboration is P. W. 6 Abut Bashar who was the Bench Clerk of P. W. 23 Mr. M. H.14 Ali on the date of occurrence. P. W. 6 has stated that it was P. W. 11 Badiuzzaman who was,. Present in the Court room of Mr. M. H. Ali as an accused in a motor accident case who took off the knife embodied in the body of the deceased and kept it on the table of the Magistrate. The witness has stated that one man was found struggling and the police officer was keeping him under arms and that P. W. I gave another knife to the Bench Clerk that was found in the verandah and that the knife was smeared with blood. This witness was declared hostile and in course of his cross-examination admitted his statement before the committing Court that the knife Exh. 1 was recovered from the person who was stabbing the deceased Mukhtear. The witness further stated that his present statement that P. W. I stated to him that he got it on the verandah was a mistake. The witness also identified the condemned-prisoner as the person who was brought under arrest and was said to be the person who was found stabbing the deceased. This witness was an attesting witness in the seizure list Exh. 2 whereby the two daggers Exhs. I and 2 were seized. The witness has further stated that when the injured man was rolling in the Court room it was P. W. Siddiqur Rahman who entered the Court room with the man under arrest. The witness denied that the seizure list Exhs. 2, 4 and 5 were created afterwards. This Witness too has spoken about the alleged extra judicial confession of the condemned-prisoner. On a scrutiny of the evidence of this witness we find that he too has lent corroboration to the fact that the condemned- prisoner was arrested with a knife in hand. P. W. 8 is another practising Mukhtear of the Chittagong bar who has stated that P: W. 1 took away the blood-stained dagger which has been identified as Exh. 1, from the hand of the condemned-- prisoner while he was under arrest and being dragged inside the Court room of Mr. Hazrat Ali.This witness has also stated that P. W. 1 gave the said dagger to the Bench Clerk P. W. 6 who kept it on the table of the Magistrate. This witness has ' also spoken about the extra-judicial confession. There is hardly any reason to disbelieve this witness. P. W. 10 is another witness who was declared hostile and was cross-examined. In his examination-in-chief he identified the condemned-prisoner as the person who was arrested by the police and taken to the Court room of Mr. Hazrat Ali. He, however, stated that he did not see anything in the hand of the arrested person. In cross---examination his attention was drawn to his statement before the committing Court where he had stated that he had seen two persons stabbing the deceased with two daggers and that one of the assailants while making attempt to escape was arrested by the police with a dagger in hand. P. W. 11 as we have noticed already is the man who took off the dagger from the back of the deceased. The witness has stated. That he saw a man under arrest and being dragged on the staircase of the verandah., in front of the Court room of Mr. Hazrat Ali. He has said in cross---examination that the condemned-prisoner was the accused on the staircase of the verandah under arrest. It has not been suggested to this witness as to why he should falsely implicate the condemned-prisoner. P.
28. W. 15 Constable Belayet Hossain has also lent material support to the evidence of P. W. 1 and we see no reason to disbelieve his evidence.
29. There is a general criticism against all the witnesses except P. W. 1 that they were introduced and examined by the police several months after the occurrence. Although it is true that these witnesses were in fact examined several months after the occurrence we do not think on the facts and circumstances of the case this delay in examining them has in any .Way affected the prosecution case or the veracity of the witnesses. We have noticed already how right from the beginning attempts were made to interfere with the course of investigation with the result that several investigating officers had to be changed and the matter ultimately had to be investigated by the Criminal Investigation Department. Some of the witnesses who have been examined either as eye-witnesses or as witnesses of corroboration are highly respectable and against them we have found nothing which in any way either affects their credibility or the veracity of their evidence.
30. In- this connection we. Should also remember that attempts were made to create several first information reports, and that no less than five witnesses were declared hostile some of whom had to admit in course of their examination their evidence before the committing Court in favour of the prosecution case.
31. The mere fact that the names of the witnesses excepting P. Ws. 1, 6 and 23 were not mentioned in the first information report Exh. 3 does not appear to us to be a ground fordisbelieving, evidence of those witnesses whose names have not been mentioned in the first information report.
32. Next we come to the confession of the condemned-prisoner. The confession has been proved by at least four witnesses, namely, P. Ws. 6, 8, 18 and 23, Mr. Serajul Haq has conceded that the confession which was made in the Court room of Hazrat Ali' Magistrate at a time when the police officers were present near the prisoner is admissible under section 26 of the Evidence Act. In the absence of any evidence to show that there was any p attempt on the part of the police or any person in authority to induce or intimidate the prisoner to make the confession it is admissible. The evidence is that on the enquiry of some members of the public the condemned-prisoner stated that he had killed the deceased Mukhtear on account of enmity over money and property. It is true that P. W. 23 Hazrat Ali did not mention this in the written statement which he handed over to the police on the next day. The reason for such omission appears in the evidence of the Magistrate and we find that this omission has not in any way affected the clear evidence of the Magistrate that the condemned-prisoner in fact made the statement. The Bench Clerk P. W. 6 and the two Mukhtears P.
33. Ws. 8 and 18 have also stated that the condemned-prisoner made the confession. The confession has not been mentioned in the first information report Exh.
3. This omission too in the facts and circumstances of the case does not affect the evidence regarding confession. Having carefully scrutinised the evidence on the point we fully accept the confession voluntary and true.
34. The prosecution has sought to prove motive for the crime by examining a number of witnesses who said that the deceased Mukhtear had a number of enemies including Mansaf and that the condemned-prisoner was among the persons who was connected with the said Mansaf and was employed by him to kill the deceased. There are also documentary evidence in support of ill--- feeling existing between the deceased Mukhtear and a number of persons stated to be the enemies of the said Mukhtear. In our opinion the evidence is sufficient to hold that the condemned- - prisoner was employed by some of the enemies of the Mukhtear to kill him. Be that as it may, in a case where the offence ha been proved by direct evidence of reliable character the question of motive for the commission of the offence is not of vital importance.
35. We accordingly hold that the prosecution has succeeded in proving the charge against the condemned-prisoner beyond any, reasonable doubt.
36. There remains for us to consider the question of sentence. Mr. Serajul Ruq, learned Advocate appearing on behalf of the condemned-prisoner has directed our attention to the examination of the condemned-prisoner before the Court of Session under section 342, Criminal Procedure Code where the age of the prisoner has been mentioned as twenty years. Mr. Serajul Huq has consequently argued that on the date of occurrence he was about eighteen years and that being so the youth of the prisoner should be considered as an extenuating circumstance. Mr. Serajul Huq has also contended that the evidence shows that the condemned-prisoner although he admitted in his confession that he, killed the Mukhtear on account of some enmity had in fact no enmity with the Mukhtear and that the prisoner was merely a tool in the hands of designing persons.
37. The age of the prisoner in his examination under section 342, Criminal Procedure Code before the Committing Court appears to be thirty years. The ground of age does not appear to have been pressed before the learned Additional Sessions Judge inasmuch as there is no reference to it in his judgment in fact it does not. Appear that any extenuating circumstances was placed before the Additional Sessions Judge. There is no evidence that the condemned-prisoner is as young as he is claimed to be by Mr. Serajul Huq. The fact remains that it was a dastardly murder committed in the very presence of this seat of justice inside the Court premises in broad day light and in full view of the member of the legal profession and the litigant public who go to Courts for justice. The Mukhtear at the time was fully clothed in his professional garment and was present in the Court premises as an accused in an answer to a call of justice. Having considered these circumstances and given our anxious consideration to all aspects of the case we are unable to find any extenuating circumstances that can be urged in favour of the condemned.We, therefore, think that the sentence of death is the only proper sentence in the facts and circumstances of the, case.
38. The Reference is accordingly accepted. We maintain the conviction and confirm the sentence of death passed upon the condemned-prisoner. The prisoner's appeal is dismissed.
39. A. QUASIM, J.-I agree.
40. Appeal dismissed.