' RANA BHAGWAN DAS, J.---This judgment shall dispose of Criminal Appeal No,49 of 1990 and Criminal Appeal No,58 of 1990 directed against the judgment of conviction, dated 7th May, 1990 recorded by Additional Sessions Judges Sukkur convicting both the appellants under sections 460 and 380, P.P.C. As under:-- Under section 460, P.P.C.
' Imprisonment for life and fine of Rs.15,000 each or in default to undergo R.I. For one year.
Under section 380, P.P.C. R.I. For one year.
' Both the sentences were ordered to run concurrently with a further direction that if the amount of fine be realized half of the amount may be paid to the legal representatives of the deceased.
Criminal Revision No,56 of 1990 arises out of the same judgment, seeking enhancement of sentence of death for the offence under section 460, P.P.C. Criminal Appeal No,50 of 1990 and Criminal Jail Appeal No,59 of 1990 are directed against judgments and conviction of the same date convicting each of the appellants under section 13(d), Arms Ordinance and sentencing each of them to undergo R.I. For one year.
2. Facts in brief as appearing in the judgments under appeal appear to be that on the night intervening 5th and 6th October, 1986 both the appellants committed lurking house trespass in the house of Malik Zafar and Safdar Abbas and caused murder of Malik Elyas, Muhammad Zafar and Vakeel Ahmed by means of a 'Hathora' (Hammer) purportedly used by appellant Adalat alias Muhammad Ali. It is further alleged that after committing lurking trespass by night both the appellants committed theft of the articles belonging to the aforesaid three deceased persons cosisting of brief cases, clothes and cash amount. Report of the incident was lodged by complainant Muhammad Razak working as clerk in New Malik Forwarding Agency Daherki where Safdar Abbas was also employed as Munshi. It was chowkidar Atta Muhammad who informed Muhammad Razak about the tragedy who accompanied by the former knocked at the door of Malik Elyas but received no response. He peeped through the wall inside the house and found Malik Elyas bleeding from his head. On his part chowkidar Atta Muhammad went and awakened Malik Muhammad Zafar and Vakeel Ahmed and on return informed the complainant that both of them were also bleeding. Both the witnesses returned to the place of Malik Elyas; complainant Muhammad Razak scaled the wall of the house, opened the door and noticed Malik Elyas lying unconcious and bleeding from head injury. He then in company of chowkidar Atta Muhammad went to the courtyard of Malik Zafar and Vakeel Ahmed and found them lying unconscious and brainmatter coming out near the 'charpai' of Malik Muhammad Zafar. Both the witnesses found a hammer at the site. On opening the room they noticed that many articles appeared to have been stolen. With the assistance of the witnesses he removed the dead bodies to. Taluka Hospital Daharki and lodged report at police station which was invetigatted by S.H.O. Ghulam Shabir. This officer secured blood-stained earth, hammer and a piece of brick, sealed them separately and prepared a memo. He recorded statements of material witnesses and received information from the hospital that Malik Elyas had expired. On 10-10-1986 A.S.I.P. Incharge Police Station Daharki received intimation from the hopital that injured Malik Muhammad Zafar had expired at Rahimyar Khan hospital. On 13-10-1986 S.H.O. Ghulam Shabir in presence of H.C. Sher Muhammad and A.S.I.P.
Abdul Sattar arrested both the appellants near Reti Railway Station. On personal search of both the appellants he secured certain clothes, silver ornaments, wrist watch and a knife from appellant Adalat and a revolver of .32 bore each from the possession of appellants. These properties were identified by the complaiant as belonging to deceased Muhammad Elyas, Muhammad Zafar as well as himself. Police registered separate F.I.Rs. Under Arms Ordinance against both the appellants. On 14-10-1986 appellant Adalat led him and mashirs and produced clothes, cheque books and one brief-case from the rice cultivation which was secured under a memo. In presence of Sher Muhammad and Abdul Sattar. Likewise appellant Baboolal voluntarily led the S.H.O. And mashirs and produced two brief-cases; one in black colour and the other in red, colour lying under a Sheesham tree. P.W. Safdar Abbas identified the clothes lying in black brief-case to be of deceased Malik Zafar and those inside red brief case belonging to himself. On 14-10-1986 foot print test in respect of both the appellants was held under the supervision of P.W. Ghous Bux Assistant Mukhtiarkar and Third Class Magistrate Ubauro. Both the appellants were also produced before Mr. Rasool Bux Solangi Mukhtiarkar and FCM Ubauro who recorded their judicial confessions. On completion of investigation both the appellants were brought to trial which culminated in their conviction as stated above.
3. Unnatural death of deceased Malik Zafar Hussain stands conclusively established by evidence of Dr. Ehsanul Haq, Medical Officer Civil Hospital Rahimyar Khan who has opined that the death of deceased was due to cardiopulmonary arrest as a result of severe brain damage and haemorrhage. Likewisae Dr. Abdul Karim, Medical Officer Daharki testified that in the first instance he had received injured Malik Elyas, Malik Zafar Hussain and Vakeel Ahmed with lacerated wounds on their persons. He had referred three injured persons for X-Ray examination to Civil Hospital Sukkur and later received dead bodies of Malik Elyas and Vakeel Ahmed for conducting post- mortem examination. In his opinion cause of death of both the deceased was shock and haemorrhage and damage to brain. Probable time between injuries and death was ten days. His evidence having not been seriously controverted, it is safe and proper to conclude that all these deceased persons died unnatural death. The points for determination, thus, would be:--
(1) Whether the appellants were rightly convicted for the offence of committing lurking trespass at night and caused death of deceased persons named above.
' The next point for consideration is whether both the appellants were rightly found guilty of commission of theft from a dwelling house and lastly whether they were rightly convicted for possessing unlicensed weapons.
4. Adverting to the evidence on point No,1 we regret to note that Mr. Mqbool Ahmed Awan, Advocate who filed appeals on behalf of appellant Adalat alias Muhamamd Ali though sought time to prepare the brief on the last date of hearing, has preferred to remain absent without any intimation. This attitude on the part of the counsel can hardly be appreciated and we express our sense of displeasure with regard to this practice. Reverting to the evidence on record with the assistance of M/s Mumtaz Ali Siddiqui and Ghulam Sarwar Korai, we find that there is strong and reliable circumstantial evidence furnished by P.Ws. Complainantd Muhammad Razak and chowkidar Atta Muhammad who found the deceased persons in early hours of the day in state of unconsciousnesses and bleeding from their head injuries. Obviously this could be act of one of the appellants but he being accompanied by another appellant and guilty of offence of lurking house trespass by night, culminating in unnatural death of a person would also involve the other companions for his criminal act. Thus, the natural and logical conclusion which can be spelt out from the definition of offence as expressed in section 460, P.P.C., would be that both appellants are guilty of offences. There is further circumstantial evidence by P.W. Nawab foot-tracker who had tracked the foot prints of the criminals at the instance of the complainant and opined the same to be of the present appellants. He was put to identify foot prints before Assistant Mukhtiarkar, namely, P.W. Ghous Bux. While he supported the act of tracking foot prints of the appellants for reasons best known to him he retracted from the act having identified such prints before the Assistant Mukhtiarkar and Third Class Magistrate who supervised the same. P.W. Nawab and Assistant Mukhtiarkar Ghous Bux have not fully supported this aspect of the case we do not think it fit and proper to place much reliance on this circumstantial piece of evidence.
5. We then revert to judicial confession recorded by appellant Adalat alias Muhammad Ali and Baboolal before P.W. Rasool Bux Mukhtiarkar and FCM Ubvauro on 14-10-1986. In his evidence the Magistrate has testified that both the appellants were produced before him alongwith relevant papers by the Investigating Officer for recording their judicial confession. He made hand-cuffs of both the appellants removed and took their custody from police and handed over the same to his office peon. He directed the S.H.O. To go away from the office premises and both the appellants made to sit in the Court room. It is his evidence that he explained to the appellants that they were not bound to make confessions of their guilt and if they make any confessional statement, the same shall be used against them in evidence. He introduced himself to the appellants and assured that after recording the confessions, they would be remanded to judicial custody. After allowing one hour time to appellant Baboolal and two hours time to appellant Adalat for reflection he inquired whether each of the appellant was ready to make confession who replied in affirmative.
He has stated on oath that he recorded their confessions verbatim. Upon examination of the confessional statement of appellant Adalat alias Muhammad Ali it intends to show that all possible precautions were taken to ensure that the confession was recorded voluntarily and free from any threat, coercion or inducement. Besides strict warnings as enunciated in law were administered to him to reassure him he was not bound to make a confession and if he made such statement that shall be used as evidence against him. Perusal of such statement reflects exculpatory and voluntary nature of the confessional statement on the part of appellant Adalat alias Muhammad Ali who has unequivocally stated that he inflicted 'Hathora' blow over the head of the deceased with the result that they went unconscious whereafter he as well as Baboolal searched the house and dishonestly removed valuable aricles like clothes, brief-cases, watches and cash amount.
Similarly appellant Baboolal has corroborated the stand taken by appellant Adalat alias Muhammad Ali which circumstance by itself lends substantiated by adequate and satisfactory circumstantial evidence which has been rightly relied upon by the trial Court. The assessment of evidence done by the trial Court. The assessment of evidence done by the trial Judge does not appear to suffer from an element of arbitrariness or misreading of evidence. Admittedly all incriminating pieces of evidence were put to the appellants in their statements under section 342, Cr.P.C. No doubt they denied the allegations against them and retracted from their confessions there is no apparent reason to discord the disinterested and natural evidence of the Magistrate First Class who had apparently no reason to give false evidence at the trial. It was well-settled that if a judicial confession is truly and voluntarily made and on the face of it could be relied upon, conviction for offence so made out can be recorded. It is not an inflexible rule of law that confessional statement must always be supported by other independent evidence. The fact that the appellants were arrested one day prior to the making of the judicial confession and the Magistrate had satisfied himself with the voluntary and true character of the confessional statements and appended such certificate we are of the view that statement is sufficient to warrant a finding that the confessions were voluntarily made and an element of truth is reflected in such statements.
6. There is another aspect of the case. Both the appellants are residents of Baloch Mohalla Khushab city (Punjab) and village Haji Fateh Muhammad Daras District Mirpur Khas (Sindh) whereas they were arrested by the Investigating Officer with the jurisdiction of Police Station Daharki after the death of'the deceased persons in the hospital. There is no other circumstance to indicate that they were falsely implicated or that the witnesses or the Investigating Officer had any animosity against them. The circumtance that they recorded their confessional statement on the next day of their arrest fortifies the view that in all probability the same was not actuated by threat, coercion and inducement. There are, therefore, sufficiently strong reasons to concur with the view taken by the trial Court which is neither unreasonable nor arbitrary.
7. Adverting to the offence of commission of theft from a dwelling house, there is adequate, satisfactory evidence furnished by complainant Muhammad Razak and chowkidar Atta Muhamamd to suggest that valuable articles brief-cases, clothes etc. We dishonestly removed by appellants after causing the murder of the deceased. This evidence is confirmed by the evidence relating to recovery of such properties from the possession of the appellants by the Investigating Officer which was duly identified, owned and acknowledged by the complainant Muhammad Razzak as well as P.W. Atta Muhammad. Apparently there is no strong reason to disbelieve this piece of evidence more so when we have expressed our concurrence with the assessment of evidence on the charge of causing the death of the deceased after committing lurkinghouse trespass in their house. Furthermore, there is evidence of Maqbool Hussain Shah coupled with the evidence of Assistant Mukhtiarkar Ghous Bux who supervised the identification test in respect of the property recovered at the behest of the appellants. Evidence on this aspect of the case is also strong enough to warrant a finding of involvement of the appellants in the commission of the offence immediately after assaulting at the deceased by means of a 'Hathora'.
8. Having held above we turn to the appeals arising out of cases registered under the Arms Ordinance for possessing prohibited weapons without any valid licence. Perusal of the judgments in both the appeals was duly supported by S.H.O. Ghulam Shabir and H.C. Gul Hasan whose evidence has been accepted by the trial Court who had the benefit of watching the demeanour of the witnesses. On the face of the record we see no adequate reason to disbelieve their evidence which appears to have been rightly relied upon by the Trial Court. It is true that private mashir P.W.
Sher Muhammad was given up by the prosecution but the reason incorporated in the application submitted by the complainant is nothing else but to manifest that this witness had been won over the by appellant. It was for this reason that this witness was given up and not examined at the trial.
Fact of the matter, however, remains that police officials are as good witnesses as any other witness. In fact it is the quality of evidence rather than quantity which ought to be the determining factor for acceptance or rejection of a piece of evidence. There is no gain reiterating that the case does not appear to be of mistaken identity or flase implication on the face of it. We are, therefore, inclined to the view that conviction of both the appellants for the offence under Arms Ordinance is also valid and lawful.
9. For all these reasons criminal appeals preferred by the appellants are dismissed.
10. Before parting with this judgment it would be proper to dilate upon the merits of the criminal revision for enhancement of sentence filed at the instance of complainant Muhammad Razak.
Suffice it to say learned counsel engaged for this purpose after admission of the revision application in 1990 has not cared to pursue this matter and remained absent despite repeated notices. As the revision application was admitted to regular hearing in law we are supposed to dipose it of on merits rather than on technical knock-out. Suffice it to observe that there is hardly any strong and ocular evidence with a plausible motive for commission of the murders. Evidence adduced by the prosecution in support of the cases is circumstantial in nature which circumstance by itself is adequate to warrant of lesser punishment. This has been the consistent view of the superior Courts which may not be deviated in the absence of compelling reasons. As on the face of the record we see no strong reason to enhance the sentence of imprisonment of life to death, we would dismiss this revision application and recall the notice issued to each of the appellants.