1. SAJJAD ALI SHAH, J.-----After bearing the learned Advocates appearing for each side, on 18th December, 1978, by a short order we hat: dismissed this appeal with modification by reducing the sentence from death to life imprisonment. The reasons follow now.
2. Appellant has filed this appeal against the judgment dated 19th December, 1977 of the learned Sessions Judge, Badin, whereby he has been convicted for offence under section 302, P.P.C. And sentenced to death with a fine of Rs. 1,000, in default of the payment whereof further R. I. For one year. There was also reference before us for confirmation of death sentence.
3. Briefly stated prosecution story is that Mst. Sharifan, mother of appellant Abdul Ghafoor, eloped with deceased Sadiq about eight years prior to the incident and married him when appellant was still a child. Mst. Sharifan also had a daughter by name Mst. Kausar from her previous husband and she stayed with her mother and the deceased. Appellant demanded the hand of his sister from the deceased which was refused. The appellant, therefore, nurtured a twin-grudge against the deceased for having abducted his mother and also for refusing to give custody of his sister to him.
4. On the day preceding the incident, complainant Nazir Ahmad, brother of the deceased, came to meet the deceased in his village Fazal Muhammad in Deh Kapoori, Taluka Tando Bago. On the same day appellant had also come to visit the house of the deceased and both the complainant and the appellant stayed over night. On the following morning i. e. On 8th October, 1974, deceased Sadiq and appellant Ghafoor took one spade and left together to cultivate the land of Sadiq. At about 9-30 a.m. Farzand, nephew of complainant, came and informed the complainant in the house of Sadiq that he saw spade lying in the field of Sadiq with stains of blood and also some fresh blood was lying there and both appellant and the deceased were not present in the field. On receiving such information complainant and Farzand both repaired to the land of Sadiq and saw blood and blood-stained spade. They also found trail of blood and dragging marks which they followed and found at a distance of 1042 feet in sugar-cane cultivation dead body of Sadiq with injuries on head and neck. In the meantime Ghulam Rasool, maternal uncle of complainant came to the vardat and was duly informed about the incident. Ghulam Rasool sent his younger brother Abdul Ghafoor to Ramzan Hajam to bring mare for search of the appellant. After a while Abdul Ghafoor, brother of Ghulam Rasool came back to inform that be was told by Ramzan that his mare was sick and appellant Abdul Ghafoor, had a little while ago, approached him to borrow the mare as he wanted to go to Numberdar Bahadur Khan but Ramzan refused to give him the mare, for the reason that she was sick. Upon this complainant sent Farzand to Numberdar Bahadur Khan and be came to the house of Sadiq and informed his wife Mst. Sharifan about the incident. Thereafter complainant and Ghulam Rasool came to police station Pangrio and lodged F.I.R. At 3-30 p.m. The distance between the police station and the place of occurrence was 13 miles.
5. After F.I.R. Was registered, Bahadur Khan brought appellant at the police station at 3-55 p.m.
6. Appellant was wearing blood-stained clothes and he produced blood-stained knife. Appellant was arrested and blood-stained articles, as mentioned above, were seized by police and made into sealed parcel by S.H.O. Abdul Quddus. Appellant also volunteered to give confession as such he was sent to mukhtiarkar and F.C.M. Tando Bago. S.H.O. Recorded statement of Bahadur Khan and then proceeded to the place of occurrence along with the comp--lainant. Vardat was situate in the land of Fateh Muhammad Arain in Deh Kapoori where dead body of Sadiq was found lying in a pool of blood in sugar-cane cultivation. There were dragging marks up to 7-8-feet towards north, where there was found blood on the ground and one blood-stained spade was also lying there.
7. S.H.O. Secured blood-stained earth from both places and also the spade which he put into sealed parcels. He prepared mashirnama of vardat and inquest report, after which he despatched the dead body for post-mortem examination. On 14th October, 1974, he recorded statements under section 164, Cr. P. C. Of the three witnesses before the Mukhtiarkar and F.C.M. Tando Bago. After completing other steps of investigation challan was presented in the Court.
8. Prosecution has examined 10 witnesses in support of its case. P. W. 1 Nazir Ahmad complainant, P.
9. W. 2 Ghulam Rasool and P. W. 3 Farzand Ali have testified before the trial Court as stated above. P.
10. W. 4 Bahadur Khan has deposed before the trial Court about extra --judicial confession of appellant admitting to have killed Sadiq. At the request of appellant, this witness took him to the police station where he was arrested and blood-stained clothes and knife were recovered from him by the police. P. W. 5 is doctor Muzaffar Hussain. P. W. 6 is mashir Muhammad Sharif who has attested mashirnama Exh. 16 of recovery of blood-stained knife and clothes from the appellant. P.
11. W. 7 Muharam Khan constable was corpse bearer. P. W. 8 Abdul Quddus S.H.O. Has investigated the case. P. W. 9 is Mr. Muhammad Usma n Mukhtiarkar and F.C.M. Tando Bago who recorded judicial confession of the appellant on 10th October, 1974 and produced the same as Exh.
24. P. W. l0 is mashir Ghulam Muhammad who had attested mashirnama of vardat Exh. 19 and inquest report Exh.20.
12. Post-mortem examination was performed by Dr. Muzafar Hussain on 9th October, 1974, at hospital Tando Bago, On external examina--tion he found the following injuries :---
(1) Incised wound, 7' x 1' x 2" on the front of neck.
(2) Incised wound, 1" x --" cutting the pinna of left ear.
(3) Oval bruise, --" on the, left maxillary sinus region.
(4) Blackish bruise, 9--" on the abdomen.
(5) Abrasion, 1-- " x --" on the left lower leg.
13. On internal examination he found the following :-- Larynx was cut due to the external injury No. 1. All chambers of the heart were empty. All the vessels of the neck were cut due to the external injury No. 1. There was black transverse bruise on the abdominal wall internally. Qesophagus were due to injury No. 1. Stomach was containing some semi-disgusted food.
14. From both external and internal examination he was of the opinion that the death of the deceased was caused by shock and haemorrhage as a result of external injury No. 1. The injury No. 1 could be caused by some sharp cutting weapon such as a dagger or a big knife, the injury No. 2 was also caused by some sharp-cutting weapon such as a big knife, and the rest could be caused by some hard blunt substance such as lathi or back side of the spade.
15. The death was instantaneous. The probable time between death and post-mortem was about 24 hours. All the injuries were ante-mortem.
16. The defence of the appellant before the trial Court in his statement under section 342, Cr. P. C. Was total denial of all the prosecution allegations. He retracted from the, judicial confession and stated that be was compelled to make it under pressure of police and maltreatment. He further stated that first he was taken before the Civil Judge and F.C.M. Where he refused to give confession and complained of maltreatment of police after he was taken back to the police station and severely beaten, where after he was produced before Mukhtiarkar and F. M. C. Tando Bago where S. H. O.
17. Was present and due to fear in reply to the question of Magistrate about the incident he only said yes. There--after his thumb-impression was taken on a paper and his confessional statement was not recorded. The appellant further claimed in his statement under section 342, Cr. P. C. That he was falsely implicated in the case. His mother married Sadiq after the death of his father and he had come to stay with his mother about three or four days before the incident. Some unknown persons had killed Sadiq and police arrested him from the house of the deceased in collusion with deceased's brother Nazir Ahmed and Numberdar Bahadur Khan. Numberdar Bahadur Khan is a fast friend of complainant Nazir Ahmed and "khas" man of police. Appellant declined to produce any Witness in his defence.
18. We have carefully examined the record of this case in the light of arguments advanced by learned counsel appearing for both sides. There is no ocular evidence in this case and nobody has seen the actual, commission of the said crime. The pivotal evidence is judicial confes--sion made by the appellant which was subsequently retracted by the appellant. This evidence is further supported by other corroborating evidence of extra-judicial confession, circumstantial evidence of recovery of crime weapon and clothes of appellant which were found by the Chemical Examiner to be stained with human blood, evidence of. Last seen and that of motive.
19. So far the judicial confession is concerned, it is the case of prose--cution that the appellant had voluntarily appeared at the police station on the same day of incident along with P. W. Bahadur. He produced his blood-stained clothes and knife at the police station and also volunteered to make judicial confession. According to P. W. 8 S. H. O. Abdul Quddus, who arrested the appellant, he issued letter to A. S. I. For getting the confession recorded on the same day but the record shows that the confession was recorded by Mukhtiarkar and F. C. M. On 10th October 1974, at 9-30-a.m.
20. Appellant has alleged that he was first taken to the Civil Judge and F. C. M., before whom he complained about the maltreatment of police and his confession was not recorded and he was brought back to the police station where he was maltreated again and was taken to Mukhtiarkar and F. C. M. Before whom his confession was recorded. It is stated by the appellant that before Mukhtiarkar, also he replied in affirmative only to the pointed question whether he had committed the murder and his thumb impression was taken on some paper. Perusal of evidence of Mr. Muhammad Usman, Mukhtiarkar and F. C. M. And the contents of judicial confession Exh. 24 on the record indicate that the confession was given by the appellant voluntarily and also it has the ring of truth, which is supported by other independent confirmatory circumstances. The very fact that appellant had volume. Tarry appeared at the police station on the same day of incident is confirmed by complainant Nazir Ahmed, P. W. 2 Ghulam Rasool, who were present at the police station for lodging the report. P. W. 4 Bahadur, who had brought the appellant to the police station and P. W. $ Abdul Quddus, S. H. O. Who recorded F.I.R. And arrested the appellant at the police station and F. W. 6 Muhammad Sharif mashir in whose presence blood-stained clothes and knife were recovered from the appellant at the police station. No such allegation was made before the Magistrate regarding coercion that appellant was maltreated by the police. The body of the appellant was examined by the Magistrate and no marks of violence were found. F. I. R. Was registered on 8th October, 1974 at 3.30 p.m. And the appellant also appeared at the police station after the registration of F. I. R. And some time was taken in making recoveries from him. It is stated by the S. H. O. That he issued the letter for recording confessional statement of the appellant and handed him over to A. S. I. Then in the circumstances since it was late in the day, the confession was not recorded on the same day, is understandable but there is no explanation on the record as to why the confession was not recorded on the following day, i.e. 9th October 1974. The original confession on the record shows that appellant was produced before Mukhtiarkar and F. C. M. On 10 October 1974, by Muhammad Ismail Wariah, who has not been examined as a witness. This confirms the assertion of S. H. O. That he sent the letter and handed over appellant to another A. S. I.
21. And himself proceeded with further investigation of this case. Furthermore all other cautions and warnings were duly administered by the Magistrate, who was fully satisfied that the appellant, was giving his confessional statement voluntarily. Objection was raised that some of the warnings were not recorded in the pro forma of judicial confession but the Magistrate has testified that he had administered all such warnings which were required under the law orally, which were not incorporated in the printed pro forma. The appellant has stated in his confessional statement that on 8th October 1974, after the incident he came to the police station of his own accord at 4 or 5 p.m. And on 9th October 1974 he was brought to Tando Bago and on the same day in the evening he was taken back to Pangrio, where he stayed for the night and on 10th October 1974, he was brought to the Court. The relevant portion of the confessional statement is reproduced as under :-- "No body threatened me or gave hope nor the police has tutored me. On 8th October 1974, at 9 a.m.
22. In the morning one acre away from village towards northern side jute crop in the fields I caused three injuries with spade to Sadiq son of Badruddin. One blow on head and two injuries on the left side of the forehead. Then I cut the throat with knife and immediately he died. Then I dragged the dead body and left it in sugar-cane crop. I left the spade there and produced the knife at Thana. At that time no other person wag available except two of us. I killed him due to this that 8 years back when I was younger, he abducted my mother Mst. Sharifan from Dadu. I wanted to take revenge and I was in search of time. On the day of incident 1 got a fair chance and I killed him. After committing murder I went to Numberdar Babadur Khan but he was not in village and he was in the leased land. I took him and in the evening appeared at the thana."
23. This confessional statement is truthful for the reason that it is fully supported by other material and evidence produced on the record by the prosecution. First of all blood and blood-stained spade were found at exactly the same place as stated in the confession. As per mashirnama of vardat Exh. 19, dead body of Sadiq was found in sugar-cane crop on the northern side of the village at the distance of 7-8 feet where blood and blood-stained spade were found in the ploughing land, which is the place of occurrence. It is also stated in the mashirnama that there was trail of blood and dragging marks from the place of vardat to the place where the dead body was lying. This fact is supported by the Investigating Officer and Mashir Ghulam Muhammad. The assertion of the appellant in the confession that he first caused three injuries with spade to Sadiq on head then cut his. Throat with knife is also fully supported by the medical evidence. The doctor who performed the post-mortem examination has testified that he found 5 injuries out of which two were incised andth were seated on the front of neck and left ear. They were caused by sharp cutting weapon such as a dagger on a big knife. Due to injury No. I on the front of neck larynx, vessels of the neck and oesophagus were cut. About the remaining injuries the doctor has stated that they were caused by some harp and blunt weapon such as lathi or back side of the spade. The only slight contradiction between the seat of injuries alleged by the appellant to have been caused by spade in the confession and the medical evidence is that according to appellant he caused three injuries with spade on the head and accor--ding to doctor there was one injury, which was oval bruise on the left maxillary sinus region; which is part of face near the nose and the other two bruises were on the abdomen and left leg. It appears that the bruises on the abdomen and the left leg might have been caused by a fall. Otherwise the version of appellant in confession is very much the same as found by the doctor on post-mortem examination so far incised wounds are concerned. Secondly the age of the injuries as stated by the doctor in his post-mortem notes to be about 24 hours, brings back the time of incident to 9 a.m. Which is exactly the time given by the appellant as that of incident in his confession.
24. The appellant in his confession has also spoken about P. W. Bahadur that he went to him and took him to the police station, which is duly confirmed by P. W. Bahadur himself in his deposition before the trial Court and after Investigating Officer and the witnesses who were present at the police station. The appellant also admits having left behind spade at the vardat and taken with him the knife which he produced at the police station. Recovery of blood-stained knife from the possession of the appellant and his blood-stained clothes at the police station is established by the prosecution. Motive stated in the confession is also proved by the evidence of prosecution witnesses.
25. P. W. 6 Bahadur has testified before the trial Court about extra-- judicial confession having been made by the appellant after the incident. It is stated by this witness that appellant came to him and admitted having killed Sadiq and requested this witness to produce him before the police. He further deposed that P. W. Farzand Ali met him and informed him that Sadiq had been murdered.
26. He took the appellant and Farzand in his jeep and went to Police Station Pangrio where Ghulam Rasool and Nazir were already present, who bad come to file the F. I. R. Police arrested appellant and recovered his blood-stained clothes and appellant further took out knife from the fold of his loin, cloth and produced the same before the police. There is nothing adverse in the cross- examination of this witness except one thing that he has made gratuitous concession by staying that he did not see blood marks on the clothes or knife of appellant. Otherwise no enmity has been alleged against this witness and there does not appear to be any reason for this witness to falsely depose against the appellant. It was argued that since he was a Numberdar and a person of authority, hence extra-judicial confession made before him was inadmissible. In the Province of Sind we do not have Numberdars and what appears is that this witness may have been called Numberdar in the sense that be is Nekmard of the area. He cannot be said to be a person of any authority, as such it is not correct to say that extra-judicial confession made before him was not in accordance with the requirements laid down under section; 24 of the Evidence Act. So far the assertion of this witness about blood marks is concerned we do not attach to it significance for the reason that it appears to be a confession made by him in favour of appellant and secondly he is not a mashir of the recovery of incriminating articles.
27. Blood-stained clothes and knife were recovered from the appellant at the police station, where he appeared voluntarily. This recovery was witnessed by P. W. 6 mashir Muhammad Sharif, Knife and clothes were sealed into parcels which were sent to Chemical Examiner. The report of the Chemical Examiner is that these articles were found to be stained with human blood and also the spade which was recovered from the vardat. Appellant hag mentioned the use of spade in the commission of crime and leaving it at the vardat, in his confession. We do not find any reason to disbelieve mashir Muhammad Sharif who has supported the above-mentioned recoveries in his deposition before the trial Court. He is independent and not related to the complainant. The only thing alleged against him was that 6 or 7 years ago he had appeared as mashir in one murder case. This is not sufficient to say that he is stock witness of the police. He has testified that he came to the police station and at that time the appellant was brought there and recoveries were to be made from him as such he was asked by S. H. O. To act as a mashir and so he did. There is nothing adverse in his cross --examination and no enmity has been attributed to him and. We find that he had absolutely no reason or motive to falsely depose or implicate the appellant in this case. In any case the Investigating Officer-has also sup--ported these recoveries.
28. Lastly we cover the evidence of last seen by complainant and that of motive. P. W. 1 complainant Nazir Ahmed is brother of deceased. At the time of incident be lived in Deh Chaubandi. One day prior to the incident he came to see his brother deceased Sadiq and stayed over night. According to him appellant also came to see `Sadiq and stayed in that house for the night. In the morning both appellant and Sadiq went together to the field of Sadiq with a spade for the purpose of cultivation. At about 9 a.m. P. W. Farzand Ali came and informed that he saw blood and blood- stained spade in the field of Sadiq and both Sadiq and appellant Abdul Ghafoor were not present there. Both these witnesses went together and followed the trail of blood and dragging marks, and found the dead body. They sent for P. W. Ghulam Rasool who-also came to the village. Abdul Ghafoor brother of P. W. Ghulam Rasool was sent to Ramzan to borrow his mare but Abdul Ghafoor brother of Ghulam Rasool came back and informed that Ramzan had told him that appellant Abdul Ghafoor also came to borrow the mare to go to Bahadur Khan Numberdar but since his mare was sick he refused him. Farzand Ali was then sent to Numberdar and he saw appellant with Bahadur and also went to police station with them in jeep. Bahadur Khan has admitted that Farzand Ali had come to him and he took appellant Abdul Ghafoor and Farzand Ali in his jeep to the police station. There is no dispute about the fact that Ghulam Rasool and Farzand Ali are both related to the complainant. Farzand Ali is nephew of complainant Nazir. Ghulam Rasool is also nephew of complainant Nazir but there is nothing in the cross-examination of these witnesses to suggest that they bad any motive or ill-will against the appellant to falsely involve him in this case.
29. They have narrated the facts of incident in a straightforward manner and have not attempted to say anything more than what they found. For that matter even complainant does not bear any enmity against the appellant. There a is no reason why complainant should depose falsely against the appellant. In the absence of any enmity it is impossible to imagine that these witnesses would substitute the appellant for real culprit particularly when they have no animus against him. On the contrary appellant was step--son of the deceased and one sister of the appellant was living in the house of the deceased. Mother of appellant was married to the deceased. For these reasons there appears to be no reason for these witnesses who are related to the deceased to falsely implicate the appellant. So far the question of motive is concerned, the bare fact that appellant was young when his mother Mst. Sharifan married the deceased is frankly admitted by the prosecution witnesses as well a the appellant himself in his judicial confession. 1t is possible that the appellant might have resented this marriage and wanted his sister not to live in the house of the deceased but live with him, may be for the reason that after he gets the custody of his sister, and she grows up, he may get her married in return for some monetary benefit. When deceased refused to hand over the custody of the girl to the appellant, he might have resented still more. As per admission of the appellant himself in his confession, he was on the look out for taking revenge from the deceased. - In these circumstances, the motive also stands established.
30. The prosecution has proved its case against the appellant beyond any doubt and there is overwhelming evidence of incriminatory nature to connect the appellant with the commission of crime. The only extenuating circumstance appears to be that the appellant was a young boy when he was deprived of the care of his mother Mst. Sharifan, who married the deceased about 7 or 8 years prior to the incident which took place in the year 1974. It also appears from the record that though the young sister of the appellant came with her mother and stayed in the house of the deceased but appellant lived separately and was deprived of maternal care of his mother. It is also on the record, that mother of the appellant was abducted by the deceased and then he, married her. Appellant took ill of it and resented it. Refusal of deceased to hand over the kid-sister of the appellant to him aggravated his anger. We did not have the benefit of seeing the appellant but as it is evident from the record that before the trial Court when the statement under section 342, Cr. P.
31. C. Of the appellant was recorded on 10th October, 1974, the age of the appellant, as observed by the trial Court and entered in that statement is 22 years, which shows that at the time of incident in the year 1974 the appellant was hardly 19 years old. In view of the young age of the appellant and other concomitant circumstances of the case, as discussed above, we consider that capital punishment is not called for. We therefore, uphold the conviction under section 3G2, P. P. C. And reduce the sentence from death to: life imprisonment. With this modification the appeal is dismissed.