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Criminal Acquittal Appeal No. 96 of 1967, decided on 30th July 1969.

S. 164, read with Evidence Act (I of 1872), S. 30‑Confession, retracted‑Accused voluntarily making confessional statement giving all circumstances culminating in murder of deceased and attributing to himself impor tant role of cutting throat‑Confession also corroborated by recoveries and retracted confession of co‑accused‑Trial Court completely discarding and doubting voluntary nature of confession on ground that it was couched in chaste' Urdu while accused was illiterate‑Accused however proved capable of reading and writing by evidence on record‑Retracted confession, held, fully corroborated, leaving no room for doubt regarding responsibility of confessing accused for murder.

Rahzan v. The State P L D 1960 Lah. 24 rel.

S. 164 read with Evidence Act (I of 1872), S. 30‑Confession, retracted‑Police apprehending co‑accused on clue given by accused in confessional statement‑Confession also corroborated by retracted confession of co‑accused and recoveries‑Accused's confession held voluntary and his participation in crime, proved beyond doubt.

Wali Zaar v. The State P L D 1960 Kar. 204 rel.

S. 302‑Murder‑Circumstantial evidence against accused very weak in character and not directly connecting accused with crime‑Retracted confession of co‑accused associating accused with commission of crime, held, no substantive evidence and can only be taken into consideration‑Nor can it be made basis of conviction by itself.

Joygun Bibi v. The State P L D 1960 S C 313, Maqbool Hussain v. The State P L D 1960 S C 382 and Ibrahim and another v. The State P L D 1963 Kar. 739 rel.

S. 302/34‑Murder Sentence‑Mitigation‑Murder committed in extremely brutal and cruel manner in spite of deceased's entreaties for mercy Counsel's contention that accused got expectation of life by virtue of acquittal‑Held, no matter for judicial consideration‑Normal penalty of death‑Adequate and just in cases of brutal murder Death sentence passed on co‑accused however converted into transportation for life in view of his minor part in crime.

S. Murtaza for the State.

Ahmed Saeed Qureshi for Respondents.

Dates of hearing : 18th, 21st and 22nd July 1969.

The four respondents in this acquittal appeal, namely, Khan Afsar son of Akbar aged 24 years, Muhammad Farid son of Dilawar aged 20 years, Javed Khan son of Laiq Khan aged 25 years and Muhammad Yousuf son of Mirzada aged 30 years were tried by the learned Additional Sessions Judge, Karachi (Mr. Ghulam Hussain S. Ansari) for offences under section 302 read with sections 120‑B and 379, P. P. C.

2. The charge against them was that on the night between 8th and 9th of January 1964, they committed theft of Taxi No. KAT‑6082, which was driven by deceased Nasir, aged 25 years and thereafter in pursuance of criminal conspiracy inten tionally caused the death of the said driver. One Ghulam Ahmed alias Soofi, who is also alleged to have taken part in this crime with the four respondents was absconding and has still not been arrested.

3. The prosecution cause in brief was that deceased Nasir Ahmed used to drive Taxi No. KAT‑6082 belonging to his uncle Sharafuddin. On 8‑1‑1964, he went out in his taxi in the evening with his younger brother Nazir. The latter returned home at 8 p.m. and informed his elder brother Bashir Ahmed, P. W. 5 that Nasir Ahmed had gone to Landhi carrying beef of his customer and would return home late if he got any passengers. When deceased Nasir Ahmed failed to turn up till next morning, a search was made for him but without success. On 10th January 1964, however, Bashir Ahmed and his uncle Sharafuddin found their taxi abandoned near the tram line in Saddar. They came to Artillary Maidan Police Station and reported the matter to the police. In the meantime one Karim Bux servant of P. W. Muhammad Hassan found a dead body lying in the well of his garden and conveyed the information to P. W. Muhammad Hassan, who came at the well and saw the dead body lying in a pool of blood. There were also stains of blood on the brink of the well. After leaving his brother, Noor Muhammad at the well, P. W. Muhammad Hassan went to Police Station Drigh Road and reported the discovery of the dead body the same day at 9 a.m. Mirza Sultan Baig, Sub‑Inspector Incharge after record ing this information accompanied Muhammad Hassan to the scene of occurrence which was in the garden of Muhammad Hassan and found the dead body inside a dry well. The throat of the deceased was cut by some sharp weapon. At 12 noon on the same day a case under section 302, P. P. C. was registered by Mirza Sultan Baig, S. H. O. at the same police station.

4. On 10th January 1964, the Artillary Maidan Police received information from Drigh Road Police Station about the recovery of the body which had been sent to the Civil Hospital for post‑mortem. As a result of this information P. W. 3 Bashir Ahmad brother of the deceased went to the Civil Hospital and identified the dead body to be that of his brother Nasir Ahmed. He found the clothes of the deceased, namely a shirt, a trousers and a banyan and identified them to those which the deceased was wearing when he was last seen alive.

5. After the preliminary investigation was done by Mirza Sultan Baig, S. H. O. Drigh Road the case was entrusted to C.I.A. for investigation. The C.I.A. Inspector Muhammad Ayub, P. W. 19, who was incharge of this case arrested respon dent Muhammad Yousuf on 1‑2‑1964, and thereafter, on his pointing out the remaining three respondents were also arrested by this police officer on the same day.

6. The same day respondent Khan Afsar took the police and mashir, Munawar Ali P. W. 17 to a kutcha but near a grave yard where he called one Hyder Zaman from the but and asked him to return the tin which he had given to him. On this request the said Hyder Zaman produced a tin which was secured by the police under a Mashirnama Exh. 30. It was a one gallon capacity tin and on its bottom the number of the stolen Taxi No. KAT‑6032 was found written in black.

7. Respondent Javed took the police and the Mashirs to Olympia Mill about three miles away and on the way he pointed out a driver's cap lying in the maidan. The police secured the cap under a Mashirnama Exh. 31. Thereafter, the party proceed ed towards Olympia Mills and arrested appellant Farid. The latter brought the party to the Liaquat National Hospital near Drigh Road and from some bushes near the said hospital he took out some torn pieces of the licence of the deceased which had been taken away from the stolen taxi. The torn pieces were secured under a Mashirnama Exh. 13.

8. Respondent Muhammad Yousuf, who was the first to be arrested and on whose pointing out it was possible for the police to get hold of the other three respondents, led the police to the shop of one Muhammad Yousuf on 2nd February 1964, in Khori Garden and asked the owner thereof to give the wheel spanner (liana) which had been deposited with him. Muhammad Yousuf produced the said spanner which was secured by the police in presence of Mashir P. W. 12, under Mashirnama Exh. 23/A. On the same day at the instance of respondent Muhammad Yousuf, one Ismail Kabari produced one jack without rod in the presence of Lal Din and Bashir Ahmed under Mashirnama Exh. 16.

9. All these articles, namely, the driver's cap, torn pieces of the deceased's driving licence, the spanner as well as the jack was subsequently identified to be the property of deceased Nasir Ahmed which were with him when he was last seen alive.

10. On 3rd and 7th February 1964, respondent Khan Asfar and the other three respondents were sent to Mr. Anwar Shaikh, Additional City Magistrate, Karachi for having their judicial confessions recorded. According to the evidence of the Magistrate, who has been examined in this case as P. W. 18, he received a letter from the City and A. D. M., Karachi on 3rd February 1964, for recording the confession of Khan Afsar. He removed the accused from the police custody and asked him if he wished to make a confession after giving him the warning that he was not bound to make a confession and that any statement which he would make could be used against him and could form the basis of his conviction. As the respondent was still ready and willing to make a confession, the Additional City Magistrate, took an additional precaution of remanding him to the judicial custody till 6‑2‑1964 for reflection. The respondent was also asked by the Magistrate if he had been beaten by the police or any inducement, threat or promise was made or offered to him. The respondent was informed by the Magistrate that he was not a police officer but a Magistrate and if he did not make a con fession he would not be sent to the police custody. The learned Magistrate assured the respondent that in any event he would be sent to judicial custody only and would under no circumstance be handed over to police custody.

11. On 5‑2‑1964, when this respondent was again produced before the learned Magistrate, he repeated all the warnings and assurances given to him on the earlier occasion. It was only when the Magistrate was thoroughly satisfied that the confession was being made voluntarily that he recorded the same. This confession Exh. 35 is a very lengthy document and gives all the details of the various incidents in which the four respondents were involved. For the purpose of this acquittal appeal we may only reproduce the relevant passage thereof which reads as follows :

"The police has arrested me for three cases of murder. It is now about one month and twenty‑five or twenty‑six days past when the first murder was committed. It was a murder of Taxi wala who had met me at Drigh Colony Jawed, Yousuf and Fareed were at that time with me. It was eight hours time at night then. All the four of us sat in this Taxi and went to Landhi. We went ahead of the Olympia Mills, where the road ends. The Taxiwalla stopped the vehicle and said that there was no passage ahead. When we alighted down along with its driver from the Taxi, I let a noose by means of a chadar around the driver's neck from behind. Then all the four of us joined and wrapping the chadar over the driver's mouth caused him to be laid below infront of the back seat. Then all of us took seats in the Taxi again. Yousuf drove the Taxi. But the said driver was making some sound so the Taxi was stopped during the way and he was once more tied with a rope and shifted him to the diggi of the said vehicle. There after we went to the hotel of Jawed Khan where Soofi met us. We told Soofi who also came and sat in the Taxi. Then Fareed told that there was a well in the garden near the Dalmia Cement Factory and proposed to go there. He had suggested that in order to kill the driver on reaching there. After that we went towards the Dalmia via Kaccha Road. The Taxi was stopped there near the garden. Then it was ten or half past ten hours time at night. We pulled the driver out of the diggi who entreated for being let off, after making money from him. Soofi replied to him that he would be kept there for the night in a house and that he would be fetched away by next morning. Jawed took out of the driver's pocket rupees twenty‑five. While we reached the well, Soofi, Jawad, Yousuf and Farid felled him down. Yousuf caught hold of his legs and Jawed pressed his throat while Farid held his head. Soofi was pressing and riding over him. I took out a knife from my pocket and cut the driver's throat with it myself. Then he was thrown inside the well. Jawed thrust his own handkerchief in the driver's mouth and it had been left there. When we had come up to a good distance from there, Soofi informed that his muffler had fallen there. We came to a petrol pump in the said taxi, which is situated near the Dalmia Cement Factory. We had caused a supply of petrol from there. An old man had provided petrol for the vehicle there and on our demand he had also given to all of us water to drink. Besides the said old man two other persons at the said Patrol pump, one of whore was asleep. . "

After recording this confession, the learned Magistrate appended a certificate as required under the provisions of sections 164 and 364, Cr. P. C. to the effect that he was fully satisfied that the confession was voluntary and genuine.

12. At this stage we cannot resist the temptation of saying that the steps taken by the learned Magistrate in recording the confession are really commendable and the manner in which this confession was recorded could be a model for all Magistrates to follow.

13. On 8‑2‑1954, respondent Muhammad Yusuf's confession was also recorded by the same Magistrate, as Exh. 36. The learned Magistrate took all the precautions which had taken in respect of the confession of respondent Khan Afsar. This con fession also is more or less to the same effect as that of Khan Afsar. The remaining two respondents Muhammad Farid and Jawed Khan did not make any confession after the Magistrate had given them the necessary warnings and they, accordingly were sent to judicial custody. We may also observe that Khan Afsar and Muhammad Yusuf who had made the confessions were also sent to judicial custody by the learned Magistrate immediately after the confessions were recorded. After the usual investiga tions were completed all the four respondents were challaned to stand their trial for the offences as stated above.

14. The defence of the respondents was a bare denial of the prosecution case. They failed to explain any of the circumstances appearing in evidence against them. When questioned about their confessions Khan Afsar stated before the committing Magistrate that he "did not give any confession". In the Sessions Court, however, he stated that the police had brought him to the Court twice or thrice for his confession and on the last occasion they brought him to the Court and made him sit in the verandah where they took his signature on a paper. According to the respondent Khan Afsar he did not know what was written on that paper as he was illiterate.

15. The defence of respondent Muhammad Yusuf is also identical inasmuch as in the Court of the committing Magistrate he denied having made a confession but tried to explain the same in the Sessions Court by saying that after his refusal to make a statement several times, the Sub‑Inspector of Police took his signature on some paper. In other words, both the respondents denied that any statement of their was recorded by the learned Magistrate. The respondents also denied that any recoveries were made from them or at their instance. About the witnesses they stated that they were the "man of the police" and that is why they were deposing against them. No witness was examined in defence by any of the four respondents.

16. The fact that deceased Nasir Ahmed met his end by violence is not disputed. Dr. Major Hassan, who performed the post‑mortem on the deceased found the following injuries on his person : ----

"(1) Gaping incised wound 3 " x 2" x 2" in front of the neck transverse, more to the right at the level of the middle of the thyroid cartilage cutting the skin deep tissues, muscles, thyroid cartilage and juglar vains. The right cartoid was intact and collapsed. The wound had more than one cuts on the skin but one clear cut in the throid cartilage.

(2) Abrasion 2" x " in front of the left side neck. 1" below No. 1.

(3) Abrasion 2" x " interrupted on right shoulder blade region.

(4) Abrasion " x " with slight swelling on left side upper lip.

Injury No. 1 was caused by sharp‑edged weapon such as knife and was sufficient in the ordinary course of nature to cause death. In his evidence, Dr. Major Hassan stated that injury No. 1 could be caused by weapons like knife, Article P/l and chhuri Article P/14, which were shown to him in the Court. The medical evidence, accordingly, leaves no room for doubt that deceased Nasir Ahmed was murdered.

17. The only question that needs consideration is whether there is sufficient, satisfactory and reliable evidence on record to connect the respondents or some of them with this crime. In this connection we propose to consider the evidence against each respondent separately.

18. We shall first deal with the case of respondent No. 1, namely, Khan Afsar. The prosecution case against him is based mainly on the judicial confession, relevant passages whereof have been reproduced in paragraph 11 of this judgment. As we have already stated respondent Khan Afsar was arrested on 1‑2‑1964 and produced before a Magistrate for remand on 2‑2‑1964. The very next day, i. e. on 3‑2‑1964, he was produced before Mr. Anwer Shaikh, Additional City Magistrate, Karachi who, before recording his confession explained to him that he was not bound to make a confession and that if he did so it would be used against him and he could be convicted on the basis thereof. After this, the Magistrate took the added precaution of remanding him to judicial custody for two days so that he had ample time for reflection while he was away from police influence. After the accused was produced again before him on 5‑2‑1964, the learned Magistrate repeated all the necessary warnings and in addition assured him that he would not be returned to police custody even if he refused to make a confession. It was only after the Magistrate was thoroughly satisfied about the voluntary nature of the confession that he took down the same. After the confession was recorded the Magistrate appended the necessary certificate at the end giving reasons as to why he considered the confession to be voluntary and true. The accused Khan Afsar was immediately thereafter sent to judicial custody.

As we have already observed the learned Magistrate had taken the maximum precautions in recording the confession and we find no reasons whatsoever for discarding it. The learned trial Judge while himself dealing with the confession in paragraph 6 of his judgment has observed that the accused "voluntarily gave the confession which was duly recorded." Subsequently, however, in paragraph 17 of his judgment, he went on to state as follows :‑

"It appears to me doubtful whether this confession was voluntary. The confession is in chaste Urdu. The confession of the other accused is also in chaste Urdu. Both the confessions more or less are in the same strain and language. The accused is illiterate and cannot talk Urdu so fluently and in chaste language. Since the accused has denied to have given the confession, it cannot be acted upon unless it is corroborated in material particulars. I shall, therefore, try to see whether the confession is corroborated by independent evidence."

It is by no means clear from these remarks whether the learned Judge was riot relying on the confession simply because by any reliable evidence or whether he was completely discarding it because its voluntary nature appeared doubtful to him. We may, however, state that merely because the confession was in "chaste" Urdu, it could not be a sufficient ground for discarding it. According to Oxford Dictionary "Chaste" means "simple in style" or "without too much ornament". We failed to see why the confession should be presumed to be involuntary, merely, because it was recorded in simple Urdu. The basis of the learned Judge's reasoning that the accused was illiterate is contrary to the evidence on record, as in the confession itself accused Khan Afsar had stated that he had studied up to Third Class and could read and write letters. In addition the accused had mentioned that he used to read newspapers also. We have ourselves seen the signature of the accused at the end of his confession and his writing appears to be that of an educated person. He has even put the date under his signature and that also in English. In his statement recorded by the committing Magistrate respondent Khan Afsar stated that he "did not give any confession". Later, at the trial he stated that the police took his signature on a paper on which something was already written; and that he could not read it as he was illiterate. This is impossible to believe, in view of the provisions of section 80 of the Evidence Act and the evidence of the Magistrate. Even the learned counsel appearing on behalf of the respondents conceded before us that this was absurd. The reasoning of the learned Additional Sessions Judge that "chaste Urdu" used in this confes sion makes its voluntary nature doubtful has not appealed to us at all. The narrative portion of the confession runs into five and half pages of the printed paper book arid it is impossible to conceive that the police could have made the accused memorize the whole of it in chaste Urdu.

19. It may be pointed out that the other accused, namely, Jawed Khan, who was sent to the learned Magistrate along with Khan Afsar, declined to make a confession, and was, thereafter sent to judicial custody. It was only because res pondent Khan Afsar was ready to make a confession voluntarily that the learned Magistrate recorded the same. We may also mention that there has been absolutely nothing in the cross‑examination of Inspector Muhammad Ayub to throw any doubt on the voluntary nature of the confession. The confession itself is elaborate and mentions all the details which could find a place only 1n a genuine document. Moreover, in his confession, Exh. 35, accused Khan Afsar has attributed the most important role of cutting the throat of the deceased to himself. As observed by Mr. Justice Sajjad Ahmad in the case of Rahzan v. The State (P L D 1960 Lah. 24) one basic test of the truthfulness of a confession is the role which the confessing accused attributes to himself in a given crime in relation to the other accused concerned in the same crime. Analysing the statement of accused Khan Afsar on the test stated above and considering the evidence of the Magistrate as well as the contents of the confession itself we have not the slightest doubt that the confession was voluntary and true.

20. This confession is also corroborated by the recovery of a tin from one Hyder Zaman at the instance of Khan Afsar. On 1‑2‑1966, immediately after his arrest, respondent No. 1 took the police to a but situated near a graveyard where he called P. W. Hyder Zaman from the but and asked him to return the tin which he had given to him. Hyder Zaman produced a tin which was secured by the police under a recovery memo. Exh. 30 in the presence of Mashir Munawar Ali P. W. 17. It was a tin of one gallon capacity with the words:

written in English on one of its side; while the number of the stolen taxi driven by deceased namely :‑

KAT

6082"

is also written in black on its bottom. All these details are mentioned in the memo. of recovery, Exh. 30. The learned trial Judge, however, discarded this evidence on the ground that "the tin produced in Court is an ordinary tin"; and that "there is no special mark of identification on it." As this was contrary to the record of the case, we sent for this tin in Court and ourselves examined the same in the presence of the learned Advocates appearing for the State and the respondents. The number of the stolen taxi is clearly written on the bottom of the tin in bold figures. Besides, the tin is not at all of such a common variety that it could not be easily identifiable. The learned Additional Sessions Judge also discarded this piece of evidence on the ground that Mashir "Munawar Ali Khan smacks to be the man of police and as already stated 1iis evidence carries no weight." We, how ever, find no material on record on the basis of which we can come to such a conclusion. Munawar Ali Khan is a respectable businessman being a cycle‑shop owner and nothing whatsoever has been brought out in his evidence to discredit his testimony. He denied the suggestion in cross‑examination that he had been in police service and the matter was not pursued further in this respect. If the witness had been really in police service this could not have been difficult to prove. In any case, the defence could have pursued this aspect a little further. The witness also denied the suggestion that he was a "man of the police". We accordingly find nothing on record which could throw slightest suspicion on the evi dence of P. W. Munawar Ali Khan. It is true that P. W. Hyder Zaman. has not supported the prosecution case with the rest it that he had been declared hostile by the Assistant Public Prosecutor. The witness in his evidence stated that the police came to his but at about 1 a.m. and woke him up and asked him to give a tin but he had no tin. This is hard to believe. Why should the police go to him and ask him for a tin If the Police wanted to foist the tin on Khan Afsar they need not have brought Hyder Zaman into the picture specially, as his evidence shows that he was not under their control. They could have said that Khan Afsar produced the tin himself. The evidence of Inspector Muhammad Ayub and Munawar Ali Khan conclusively estab lishes the fact that the tin bearing the number of the stolen taxi was recovered at the instance of respondent Khan Afsar and this tin was sealed at the spot. It is unfortunate that the learned Additional Sessions Judge did not care to examine the tin in spite of what was stated in the memo. of recovery, Exh. 30.

21. Mr. Ahmed Saeed, the learned counsel for the res pondents contended that although this tin may have been recovered at tile instance of Khan Afsar, this circumstance was consistent with Khan Afsar's having only the knowledge that it was lying with Hyder Zaman and he need not have necessarily given it himself to Hyder Zaman. We find no force in this contention. The tin having been secured at the instance of Khan Afsar, it was for him to explain as to how fir acquired the knowledge that it was with Hyder Zaman. Re offered no explanation but on the other hand denied having taken the police to the but of Hyder Zaman. The recovery of this tin at the instance of respondent Khan Afsar is accordingly, a very important piece of evidence, and provides ample corroboration to his retracted judicial confession even if" any corroboration was necessary. In addition the confession of co‑accused Muhammad Yousuf can also be taken into consideration against this respondent as provided under section 30 of the Evidence Act.

There is also evidence on record showing that the res pondents used to move about together and had gone to P. W. 9 Fadir Muhammad for charas. We shall discuss this evidence in detail while dealing with the case of respon dents Jawed Khan and Muhammad Farid. At this stage we may only state that this evidence is not conclusive as to the crime with which the respondents were charged, and we do not wish to place any evidence thereon.

The judicial confession of respondent Khan Afsar corro borated by the recovery of the tin and the retracted confes sion of the co‑accused Muhammad Yousuf leaves no room for doubt that Khan Afsar was responsible for the murder of deceased Nasir Ahmed.

22. We shall now consider the case of respondent No. 4, Muhammad Yousuf. As in the case of respondent Khan Afsar, the prosecution case against Muhammad Yusuf also rests on his judicial confession, Exh. 36 recorded on 8‑2‑1964 by the same Magistrate. The learned Magistrate took all the pre cautions which he took while recording the confession of Khan Afsar and we hold this confession to be voluntary and true substantially for the same reasons as we have given while dealing with the confession of Khan Afsar.

23. Mr. Ahmed Saeed, the learned counsel for the res pondents has made much of the fact that this confession was recorded on 8‑2‑1964 about a week after the arrest of the respondent; but we do not consider this to be a case where confession could be the result of prolonged police custody. The accused was sent to the Magistrate for confes sion on 7‑2‑1964 when, after all the warnings etc. he was sent to judicial custody for reflection till the next day. During this time he was not under police influence and the impression if any made on him must have been, in our opinion, fully removed. The confession would consequently be relevant by virtue of the provisions of section 28 of the Evidence Act, even if, it be assumed that there was some impression on the mind of the accused on account of being in police custody for six days. What is more, Muhammad Farid, who was produced before the Magistrate just before Muhammad Yusuf for the same purpose, in fact refused to make a confession and the Magistrate sent him to the judi cial custody. The learned Magistrate also assured Muhammad Yusuf that if he did not confess he too would be sent to judicial custody and would not in any case be returned to the police.

As the confession itself shows, this accused had studied up to VIII Class and was not an illiterate person. Under these circumstances, we find it difficult to discard this con fession which we hold to be voluntary as well as true.

24. There is also ample corroboration of this confession as against respondent Yonsuf. Indeed, it was this respondent who in fact, pointed out Khan Afsar and other co‑accused who were all arrested at this instance. This circumstance would be relevant as evidence against respondent Mohammad Yousuf, as held in the case of Wali Zaar v. The State (P L D 1960 Kar. 204).

Another circumstance against this respondent is that he led the police to the Khori Garden to the shop of one Ismail who at the instance of this respondent produced a jack on which the words (A) E. J. 1783' were engraved. This jack was secured under a recovery memo. Exh. 16, in presence of Bashir Ahmed, P. W. 8.

Thereafter, respondent Mohammad Yousuf took the police to the shop of Yousuf, P. W. 11, who is a mechanic and runs a shop near the Chakiwara and produced a wheel spanner. P. W. 11, Yousuf has stated that the said spanner was given to him by respondent Mohammad Yousuf. The recovery is also supported by the evidence of Rahmat Ali against whom nothing has been brought out in the cross‑examination to discredit his testimony. The only suggestion made to this witness was that he was "a man of C. I. A." This was denied by him. The witness also stated that he had not given evidence in any other case thereby showing that he was not a professional mashir. Both the jack as well as the wheel spanner were identified by the brother of the deceased, namely Bashir Ahmad. P. W. 8 who has not been cross‑examined at all on this point. The accused has not claimed these articles to be his own. Nor has he explained as to how and in what circumstances he left them with Ismail and P. W. 11 Yousuf. Taking into account the entice evidence of this point we have no doubt that both the jack as well as the wheel spanner which was identified as those belonging to the taxi of the deceased were in fact recovered at the instance of respondent Muhammad Yousuf. These recoveries coupled with the fact that it was this respondent, who pointed out all the co‑accused provide ample corroboration to his retracted judicial confession which we have already held to be voluntary as well as true. The judicial confession of respondent Khan Afsar which we have held to be voluntary as well as true can also be taken into consideration against respondent Mohammad Yousuf under section 30 of the Evidence Act. There is, accordingly, no doubt in our mind that the respondent Mohammad Yousuf was one of the participants in this crime.

25. This brings us to the case of the respondents Jawed Khan and Mohammad Farid. Mr. Murtaza Hussain, the learned counsel for the State has contended that in their case the retracted confessions of co‑accused Khan Afsar and Mohammad Yousuf are sufficiently corroborated by certain recoveries. We cannot, however, treat these retracted confessions of the co‑accused as substantive evidence against these respondents. Under section 30 of the Evidence Act these confessions can only be taken into consideration and they do not have the quality of evidence as held by their Lordships of the Supreme Court in the case of Joygun Bibi v. The State (P L D 1960 S C 313) and Maqbool Hussain v. The State (PLD 1960 S C 382). According to the later authority, there ought to be other evidence, whether direct or circumstantial, linking such a person with the crime, before a c6nfession made by a co‑accused can be adverted to, in adjudging the guilt of that person. As held by this Court in the case of Ibrahim and another v. The State (P L D 1963 Kar. 739) confession of a co‑accused cannot be made the foundation of conviction but it could be only taken into consideration to strengthen other evidence on record. It cannot be used even to "fill a gap in the prosecution evidence" if it "falls short of connecting the accused with the crime".

26. Keeping in view the above principles we have first to see what is the nature of the evidence against these respondents. The prosecution case against them rests on :‑‑‑‑

(a) The association of these two accused with their co accused Muhammad Yousuf and Khan Afsar, as deposed to by P. W. 6 Shafiur Rahman, P. W. 9 Faqir Muhammad son of Amiruddin, P. W. 13 Faqir Muhammad son of Baz Gul and P. W. 16 Karim Bux.

(b) Their implication in the confessions of co‑accused Khan Afsar and Mohammad Yousuf.

(c) Jawed Khan's handkerchief being discovered with the dead body of deceased Nasir Ahmed.

(d) Pointing out of torn pieces of deceased Nasir Ahmed's driving licence by respondent Mohammad Farid.

27. We shall first consider the evidence of P. Ws. Shafi ur‑Rehman, Faqir Mohammad son of Amiruddin, Faqir Mohammad son of Baz Gul and Karim Bux, P. W. Shafir‑ur Rehman P. W. 6 has stated that accused Farid and Jawed had opened a hotel near the Gammon Construction Co. where he used to work, and accused Khan Afsar and Mohammad Yousuf as well as absconder Soofi used to meet in tie hotel of the two accused. P. W. 9 Faqir Mohammad son of Amiruddin, who claimed to be a neighbour of Mohammad Yousuf, stated that about two years before he was examined in Court, Mohammad Yousuf respondent came to him at about mid‑night time in a taxi alongwith the remaining three respondents and absconder Soofi and also asked this witness to get him charas worth one rupee which the witness procured for him from the plot of Juman Shah. P. W. Faqir Muhammad son of Baz Gul, who is a fruit seller, doing his business near the hotel of Mohammad harid stated that he used to see the three accused in the hotel of Mohammad Farid. P. W. 16, Karim Bux is a bearer in Farid's hotel where Mohammad Yousuf used to come frequently for having tea. He stated that about two years before he was examined, at 12‑30 at night, the four respondents came to his hotel in a taxi and then left. All these witnesses were put to an identification test in respect of the respondent on 12‑2‑1964 at Central Jail, Karachi, in the presence of a Magistrate, Mr. Anwar Sheikh, P. W. 18. P. Ws. Faqir Mohammad and Karim Bug identified the three respondents except Yousuf as according to the evidence of the Magistrate, Faqir Mohammad and Karim Bux were not supposed to identify Mohammad Yousuf as he was well known to them. There is admittedly no enmity between the prosecution witnesses and any of the respondents and consequently nothing has come on record to show as to why they would give false evidence against them. Their evidence is, however, inclusive and do not consider it to have any bearing on the charge in the present case. We, therefore, do not propose to use this evidence against any of the four respondents.

28. As regards the evidence relating to the handkerchief of accused Jawed Khan, we agree with the learned Civil Judge that in the absence of any specific mark of identification on this handkerchief, its recovery from the scene of offences could not be used as a circumstance against Jawed Khan.

29. In the case of respondent Mohammad Farid the circumstances of his pointing out torn pieces of the licence of the deceased which were lying in the open cannot also be considered as evidence of conclusive nature. Although it is possible that a few pieces of the torn licence could have got stuck into the bushes and were on that account not blown away by the breeze, this circumstance is inconclusive as any passerby could have seen these torn pieces lying there. Lastly the retracted confessions of the co‑accused, as we have already stated above, cannot be the basis of conviction. We, accordingly, agree with the learned Additional Sessions Judge that the guilt of these two C respondents Jawed Khan and Mohammad Farid is not proved beyond a reasonable doubt. They are entitled to the benefit of doubt and we do not interfere with their acquittal.

30. As we have already stated we have come to the conclusion that there is cogent and convincing evidence against respondent Khan Afsar and Mohammad Yousuf. In arriving at this conclusion we have all along kept in mind the principles laid down by the Privy Council in the Sheo Swarup v. King. Emperor (AIR 1934 PG 227(2)) which have also been endorsed by our Supreme Court time and again. Throughout the hearing of this acquittal appeal while considering the items of evidence and before reaching our conclusions thereon we have given due weight and consideration to such matters as:-----

(1) the views of the trial Judge as to the credibility of the witnesses;

(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial;

(3) the right of the accused to the benefit of any doubt ; and

(4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

We may, however, observe that as the conviction of the two respondents is being based on their judicial confessions and not on any direct ocular evidence, the learned trial Judge did not have any particular advantage over us in this case of seeing the witnesses or observing their demeanour. We accordingly, convict respondents Khan Afsar and Mohammad Yousuf under section 379, P. P. C. and sentence each one of them to suffer R. I. for three years. In addition we convict respondent Khan Afsar under section 302, P. P. C. and respondent Mohammad Yousuf of under section 302/34, P. P. C. Although the charge against the respondents was under sections 302/120‑B, P. P. C. we consider that this is a technical defect and is curable by the provisions of section 225, Cr. P. C. as there is no prejudice to the respondents. The accused were aware throughout their trial that they were being tried for the murder of deceased Nasir Ahmad and their defence as well as the entire cross‑examination was on this line. We, therefore, consider that the mere non‑mention of section 34, P. F. C. in the charge is immaterial as it has not caused any prejudice to the respondents.

31. What remains to be considered is the question of sentence. Mr. Murtaza Hussain, the learned counsel appearing for the State has contended that the respondents had committed three different murders, one after the other of three innocent persons which are the subject‑matters of these three connected appeals (hearing Nos. 96, 97 and 98 of 1967). We regret that we cannot take this into consideration while judging the quantum of punishment in this case. We can only he guided by the facts and circumstances of this particular case. The deceased in this case was a young man of 25 years who, as the evidence shows, begged all the accused‑respondents to take away all his money and to spare his life as he had small children. In site of this respondent Khan Afsar cut his throat while he was lying helpless as the four others were holding his arms and legs. The murder was so brutal and was carried out in such a manner that we consider that only the extreme penalty of death would meet the ends of justice, in this respondent's case. Mr. Ahmed Saeed, the learned counsel for this respondent while conceding that this was an extremely cruel and brutal murder which would ordinarily merit death contended that in view of the fact that the accused had got an expectation of life by virtue of his acquittal and as about 21 years had elapsed thereafter, he may not be sentenced to death. These are considerations which may be considered by the Government under section 402, Cr. P. C Even if in an ordinary case we would have refrained from passing' the death sentence on account of this consideration, we feel that in such a case of a brutal murder committed without any semblance of justification only the normal penalty of death would be adequate in the case of respondent Khan Afsar. We, therefore, order that he shall be hanged by the neck till be is dead.

32. As regards respondent Mohammad Yousuf he has played a comparatively minor part, namely, that of catching hold of the legs of the deceased. In these circumstances we feel that the sentence of transportation for life would meet the ends of justice.

33. The upshot of the whole discussion is that the acquittal of respondents Mohammad Farid and Jawed Khan is maintained and this acquittal appeal is dismissed as against these two respondents. They are in jail and shall be released forthwith unless required in some other case. We accept the Government's appeal against respondent Khan Afsar and Mohammad Yousaf. Respondent Khan Afsar is sentenced to death under section 302, P. P. C. while respondent Mohammad Yousuf is sentenced to transportation for life under section 302/34, P. P. C. Both the respondents are also convicted under section 379, P. P. C. and sentenced to R. I. for three years each. The sentences passed on respondent Mohammad Yousuf shall run concurrently. In case of respondent Khan Afsar the sentence of R. I. for three years shall become effective only in case the death sentence is not executed. The appeal filed by the State is partly allowed to this extent.

Appeal partly allowed.

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