JAGDISH Versus STATE

1. SAIIAD ALI SHAH, J.‑ Appellants Zahoor and Mahboob have been convicted vide judgment dated 30th August, 1978 of the learned IIIrd Additional Sessions Judge, Sukkur against which they have filed appeals from Jail. Both have been convicted for offences under sections 302, 324, 458 read with section 34, P.P.C. Appellant Zahoor has been sentenced to death while appellant Mahboob has been sentenced to life imprisonment for offence under section 302/34, P.P.C. Both have further been sentenced to R.I. for six months for offence under section 324/34, P.P.C. and to five years' R.I. for offence under section 458, P.P.C. Appellant Zahoor has further been ordered to pay a sum of Rs.3,000 as compensation under section 544‑A, Cr. P. C. to the heirs of the deceased, in default of the payment whereof he would suffer R.I. for six months more. Likewise appellant Mahboob has been ordered to pay a sum of Rs. 2,000 as com pensation to the heirs of the deceased and in default to suffer R.I. for six months more. There is a reference before us for confirmation of death sentence of appellant Zahoor as required under section 374, Cr. P. C. which is proposed to be disposed of alongwith appeal by this common judgment.

2. Shortly stated prosecution case is that appellants Zahoor and Mahboob are brothers inter se and. ,were in the employ of deceased Nazar Mohd. who ran a laundry in town Dahrki and lived in the house nearby alongwith his wife Mst. Zainab. About 21 months prior to the incident both the appellants enticed away Mst. Zainab, upon which Nazar Mohd. filed a case of theft against the appellants and also his own wife Mst. Zainab. Appellant Mahboob and Mst. Zainab were challaned while appellant Zahoor had absconded in that case. Mst. Zainab patched up with Nazar Mohd. and sought pardon after which she came and started living in the house of her husband. That case was still pending in the Court when the incident took place. It is on that account both appellants felt aggrieved against Nazar Mohd. and his wife Mst. Zainab and also for the reason that both of them lost their jobs with Nazar Mohd. On the day of incident i.e. 29th November, 1972 at about 10‑30 p. m. P. Ws. Abdul Haq and Rabnawaz who were employees of Nazar Mohd. had come to his house after shutting the laundry and were present there when the two appellants named above came there after jumping over the wall. Both were armed with knives and after threatening the witnesses not to come near, opened attack. Appellant Zahoor inflicted injuries on Nazar Mohd. with knife while appellant Mahboob stabbed Mst. Zainab. The witnesses raised alarm and the appellants after causing injuries ran away. The witnesses went near and found Nazar Mohd. and his wife Mst. Zainab badly injured and were unconscious. The appellants left behind at the spot a chhuri, turban and one shawl. After the departure of the appellants many persons came to the spot., The witnesses got carried injured persons to the police station where report was registered by complainant Abdul Haq at 11 p. m. which is after 1 hours of the incident. The distance . between the police station and the vardat was two furlongs. Mehar Ali Head Constable after. recording F.I.R. prepared mashirnama of injuries of Nazar Mohd. and Mst. Zainab and sent them to the hospital. He also recovered blood‑stained knife and one chappal which were produced by the complainant. Knife was put into a sealed parcel. He went to the 'place of occurrence and did not prepare mashirnama of vardat as it was night and instead went in search of the appellants. He succeeded in arresting appellant Zahoor at 4 a.m. from railway station, Mirpur Mathelo, He secured blood‑stained shirt, shalwar and sweater from the person of Zahoor which he put into a sealed parcel. He came to the place of occurrence and prepared mashirnama of vardat on 30th November, 1972 at 7 a.m. from the spot he recovered two blood‑stained cots and beddings. He also recovered blood soaked in cotton from the spot and put into sealed parcel. He seized one black turban and one shawl from the courtyard of the house which were stained with blood. He came back to the police station and learnt that injured Nazar Mohd. had expired in the hospital without regaining his senses. He altered the section from 307 to 302, P.P.C. He produced appellant Zahoor for medical examination of his minor injuries on his hands. Subsequently he produced appellant Zahoor before the Magistrate who recorded his judicial confession. The Investigating Officer then recorded statements of the witnesses and handed over the papers of investigation to A.S I. Dost Mohd. who recorded statement of injured Mst. Zainab in the hospital. Subsequently A.S.I. Talib Hussain got recorded statements under section 164, Cr. P.C. of Mst. Zainab and Rabnawaz and challan was submitted in the Court by Ghulam Mohd. S.H.O.

3. Prosecution has examined 12 witnesses in support of its case. P.W. 1 Abdul Haq P.W. 2 Mst. Zainab and P.W. 3 Rabnawaz have been examined as eye‑witnesses of the incident. P.W. 4 Ghuiam Hussain Tapedar has prepared sketch of vardat Exh. 10 P.W. 5 Allah Din mashir has attested mashirnama of vnrdat Exh. 12, recovery of knife at police station Exh. 13, mashirnama of injuries of Nazar Mohd. and Mst. Zainab Exh. 14 and mashirnama of arrest of appellant Zahoor Exh.

15. P.W. 6 Abdul Ghaffar Head Constable has prepared inquest report of deceased Nazar Mohd. in the hospital on 30th November, 1972. P.W. 7 Mr. Ghulam Qadir Mukhtiarkar and F.C.M. recorded judicial confession of appellant Zahoor on 30th November, 1972. P.W. 8 doctor Habib Ahmed conducted post‑mortem examination on the dead body of Nazar Mohd. on 30th November, 1972. He found four incised wounds on the body of the deceased and gave opinion that the death was due to shock and haemorrhage as a result of these injuries. The same doctor had examined Mst. Zainab and found three incised injuries out of which one was on the right shoulder. He declared the injuries to be simple in, nature.

4. P.W. 9 Doctor Abdul Qadeer had examined appellant Zahoor on 30th November, 1972 and found three incised wounds simple in nature located on left hand. There was one contusion also on the left lower lip. This injury was also declared simple in nature. P. W. 10 Mehar Ali Head Constable, P:W. 11 Dost Mohd. A.S.I. and P.W. 12 Ghulam Mohd. S.H.O. have taken part in the conduct of investigation.

5. Trial Court has examined Ghulam Mujtaba, Head Constable as Court witness, who testified that Talib Hussain A.S.I. had died. He identified handwriting and signature of Talib Hussain who got recorded statements under section 164, Cr. P.C. of P.Ws. Mst. Zainab and Rabnawaz before the Mukhtiarkar and F.C. M.

6. Prosecution has produced report of Chemical Examiner Exh. 33, which is to the effect that chhuri, cotton soaked in blood and clothes recovered from appellant Zahoor were found to be stained with human blood. In their statements under section 342, Cr. P. C. both the appellants denied prosecution allegations. Appellant Zahoor admitted that deceased Nazar Mohd. had filed a theft case against him and further stated that it was a false case. He also denied to have been found with injuries on his person at the time of his arrest and claimed that these injuries were inflicted on him by police. He admitted having made judicial confession before Mukhtiarkar and F:C.M. but claimed that the same was the result of pressure and maltreatment of police. Appellant Zahoor further stated that witnesses deposed against. him on account of enmity and they were interested because they were employees of the deceased. Appellant Mahboob also denied prosecution allegations and claimed that he was involved in this case due to enmity of employees of deceased and further for the reason that he is real brother of Zahoor. Both the appellants did not lead any evidence in defence.

7. We have heard the learned Advocates appearing for each side and in the light of their arguments and submissions we have examined the evidence brought on the record. In this case ocular testimony is furnished by three eye‑witnesses but of them Mst. Zainab, who is injured eye‑witness, is wife of the deceased and is the cause of murder. She is the most natural eye‑witness being wife of the deceased and living in the same house with him at the time of incident. She has sustained knife injuries are medically proved as such her presence at the spot at the time of occurrence cannot be disputed. P. Ws. Abdul Haq complainant and Rabnawaz were employees of deceased Nazar Mohd. and worked for him at his laundry. They used to take meals in the house of the deceased and sleep in that house at night. . Incident took pace on 29th November 1972 at 10.30 p. m. and immediately thereafter F.I.R. was lodged by Abdul Haq complainant at I 1 p. m. at (police station‑Daherki which was at a distance of two furlongs from the scene of offence. Eye‑witnesses Mst. Zainab and Rabnawaz are mentioned in F.I.R. which contains details of the incident and also the background. Mst. Zainab and deceased Nazar Mohd who was still then alive, were brought on the cots to the police station by complainant Abdul Haq. Both the injured were in un conscious condition and were sent to the hospital. These circumstances show that all three eye‑witnesses mentioned above were present at the spot. Some discrepancies have been pointed out in the evidence of these three eye‑witnesses but they are explainable. It is. stated that all these three eye witnesses in their evidence before the Court have stated that appellant Zahoor was armed with a "chhuri" or "churra" but in F.I.R. it was men tioned that both the appellants were armed with knives. Chhuri or churra is also a knife and in F.I.R. towards the end it is mentioned specifi cally that appellants had. left chhuri and one chappal at the spot, which were picked up by complainant and brought to the police station. Since this chhuri or knife was recovered from the spot, it does not make much difference if it is named one way or the other. The eye‑witnesses have deposed in the Court that at the time of incident deceased Nazar Mohd. and his wife Mst. Zainab were lying on two cots in the room and com plainant Abdul Haq and P.W. Rabnawaz were sitting on third cot talking with them when the appellants came there and attacked. Complainant Abdul Haq had stated in F.I.R. that at the time of incident Mst. Zainab and Nazar ,Mohd. were sleeping on different cots. He has explained in his deposition before the trial Court that by sleeping he meant that both were lying down on their cots but were awake. Another objection was taken that the assertion of the prosecution to the effect that complainant Abdul Hack and Rabnawaz were sitting in the same room, on a cot while deceased Nazar Mohd. and his wife were lying d on the other two cots is not correct because only two cots were found in the room by the Investigating Officer when the mashirnama of vardat was prepared. P.W. 10 Mehar Ali Investigating Officer has testified . before the trial Court that when he prepared mashirnama of vardat he found only two cots in the room in which incident took place and he secured these two cots as they were stained with blood. He has also stated categorically that there was one other cot lying in the adjoining room. In the mashirnama of vardat Exh. 12 it is stated that apart from the two cots which were found to be stained with blood there was one "palang'' lying by the northern wall on which complainant Abdul Haq and PW Rabnawaz were said to be sitting at the time of incident. Sketch of vardat Exh. 10 denotes point A .where cots of deceased Nazar Mohd. and his wife Mst. Zainab were lying and at point B at a distance of seven feet from point A was the cot where witnesses Rabnawaz and Abdul Haq were stated to be sitting at the time of occurrence. From the evidence of P.W. 4 Ghulam Hussain Tapedar and sketch of vardar Exh. 10, it appears that the house of Nazar Mohd. was composed of one room and Court yard in which there was one kitchen. The room measured 18 feet and 6 inches in length and 14 feet and 10 inches in breadth. It is further explained by Mst. Zainab that the room in the house was big enough and was separated by a curtain. This clears the confusion which appears in the statement of P.W. 10 Mehar Ali Investi gating Officer who has stated that he found two blood‑stained cots in the room in which incident look place and found one other cot lying in the adjoining room. There is in fact one room with a curtain in the middle. which makes it took like two rooms. Had there been a second room, it would have been mentioned in the mashirnama of vardat and sketch of vardat. Moreover the Investigating Officer has admitted that one cot was lying in that other room which is only a part of the same room and the sketch also categorically mentions the presence of third cot. The presence of P.Ws. Abdul Haq and Rabnawaz cannot be disputed on the ground that Abdul Haq immediately after the occurrence took both Mst. Zainab and Nazar Mohd. in injured condition to the police station and lodged F.I.R. within the shortest possible time and P. W. Rabnawaz was left behind at the scene of offence and was found there when the Investigating Officer came to the spot. Evidence of these three eye‑witnesses is assailed on the ground that Mst. Zainab has admitted in the cross‑examination of her deposition before the trial Court that at the time of incident when she and her husband were being attacked, the two eye‑witnesses, namely Abdul Haq and Rab Nawaz had run away from the room as they were threat ened by the appellants and came back in the room again after the departure of the appellants. This assertion is factually incorrect because both Nazar Mohd. and his wife Mst. Zainab became unconscious after receipt of injuries and were taken to the police station in that condition by complainant Abdul Haq and their mashirnamas of injuries were prepared by . Investigat ing Officer Mehar Ali. who found them in unconscious condition arid this fact is also specifically mentioned at the bottom of F.I.R. Had Mst.‑Zainab been conscious, she would have dictated the F.1.R. herself or her statement under section 161, Cr.P.C. would have been recorded at the police station. This conclusively proves that Mst. Zainab had become unconscious after receipt of injuries. In the trial Court she was confronted with her previous statement in which she had admitted that she regained senses in the hospital after three ,days. of the incident. P.W. 11 Dost Mohd. A.S.I. recorded police statement of Mst. Zainab in the hospital on 2nd December 1972 when the incident took place on 29th November 1972. It clearly shows that Mst. Zainab was unconscious for about three days otherwise had she regained senses earlier than that, her statement would have been recorded earlier. .This gives a lie to the assertion of Mst. Zainab that eye‑witnesses Abdul Haq and Rabnawaz ran away when, injuries were being inflicted upon her and deceased Nazar Mohd: Complainant in .his F.I.R. which is registered promptly without any loss of time has attributed roles to the two appellants and has stated that appellant Zahoor caused injuries with knife to Nazar Mohd. and Mahboob caused injuries with knife to Mst. Zainab. Both Nazar Mohd. and Mst. Zainab' were un conscious and complainant could not have said so, had he not seen the incident himself. Mst. Zainab, when she regained senses, has also claimed that appellant Zahoor caused injuries to Nazar Mohd. and she was stabbed by appellant Mahboob. This clearly shows that eye‑witnesses have seen the incident. Mst. Zainab has also deposed before the trial Court that immediately after the incident and departure of the appellants P. W. Abdul Haq and Rabnawaz came back to the spot and other persons, namely Aslant, Shahnawaz and Ahmed Khan Samejo also came from Mohalla and since her husband was unconscious, she informed them about the incident. She has further stated that 10 minutes after the incident about 10‑12 policemen came to the vardat and they were carried to the police station with the assistance of the policemen. This assertion is also incorrect because such suggestion was made to Mehar Ali Investigating officer, who has denied it point blank. When complainant Abdul Haq was in the box no such suggestion that police came to the vardat before the registration of F.I.R was put to him. He‑ had admitted arrival of Shah Nawaz. Aslam and other persons at the vardat after the departure of appellants. 1t was pointed out on behalf of the appellants that the three eye‑witnesses including Mst. Zainab have stated. in their statements that the faces of the appellants were muffled at the time of incident. P.W. 1 Abdul Haq complainant has stated in his cross‑examination before the trial Court that both appellants had come with their faces open but appellants Zahoor had a turban on his head while Mahboob had a shawl on his head. He was confronted with his admission in his statement before the Inquiry Court which was to the effect that the faces of the two appellants were muffled, The witness explained that by saying so he did not mean that their faces were completely covered by the appellants but were dressed as stated above. This witness categorically asserted before the trial Court that the faces of the two appellants were not muffled. Likewise Mst. Zainab while fully supporting the case in her examination‑in‑chief before the trial Court half‑heartedly admitted in her cross‑examination that the faces of the two appellants were muffled with their turbans and further qualified this assertion with the explanation that their foreheads, eyes and noses were open. 1n the same manner P.W. 3 Rabnawaz has also fully supported the case in his examination‑in‑chief and during the cross -examination responded favourably to a suggestive. question and replied that the faces of two appellants were partly muffled and further explained that the faces were open and foreheads, eyes. noses and mouths were visible. This allegation is not supported by the record because in F.I.R. which was lodged promptly by complainant Abdul Haq no such assertion is made that faces of the appellants were muffled or semi‑muffled. Secondly both turban of appellant Zahoor and shawl of Mahboob were dropped by them at the spot at the time of incident which were subsequently recovered by the Investigating Officer who came to the vardat: Thirdly the eve‑witnesses have not stated so in their initial statements. This assertion is obviously an afterthought and is a concession made by the witnesses in favour of the appellants. It is well settled now that evidence of the witnesses is to be analysed in such a way so as to sift grain from chaff in order to come to the conclusion as to what is truthfully stated by the witnesses after ignoring, false and gratuitous concession made in favour of the accused. It is obvious that in the instant case Nazar Mohd. who was as important figure had died. He was husband of Mst. Zainab an employer of Abdul Haq complainant and Rabnawaz who are the eye‑witnesses. The appellants might have tried their level best to pursuade these witnesses to depose favourably towards them and succeeded to some extent in this respect. These are half‑hearted attempts by the witnesses to be little obliging when such suggestive questions were put to them in the cross‑examination other wise in their examination‑in‑chief they had supported the prosecution case. The learned trial Court also rightly ignored these gratuitous concessions made by these witnesses in favour of the appellants. The evidence of these witnesses which is consistent with the prosecution case finds adequate sup port from other evidence of confirmatory and circumstantial nature. The salient features of the ocular testimony on which the evidence of the eye witnesses is very much consistent are as under :‑ .

(a) Appellants Zahoor and Mahboob came to the house of the deceased armed with knives.

(b) Appellant Zahoor caused injuries with knife to Nazar Mohd. while Mahboob caused injuries to Mst. Zainab.

(c) At the time of incident Nazar Mohd. and Mst. Zainab‑ were lying tin two separate cots in the room while Abdul Haq and Rabnawaz were sitting on the third cot talking to them.

(d) Appellant Zahoor left behind his knife and chappal at the scene of offence.

8. On the points mentioned above there are no discrepancies in the evidence of the eye‑witnesses which is very much consistent and in line with the prosecution case. . All these three eye‑witnesses knew the appellants from before the incident and they have fully supported the, prosecution case on the point of motive also. Even Mst. Zainab had admitted that Nazar Mohd. had filed a case of theft against both appellants and she was also named in that case as an accused. She has also admitted that her husband had made an allegation against her of immorality and she left his house and that‑she was named as co‑accused in the theft .case and she was released on bail and subsequently she compro mised with her husband and came back to live with him. All the three eye‑witnesses have stated that both the appellants were previously in the employment of deceased and because of the theft case mentioned above and enticement of Mst. Zainab by the appellants they were shunted out from the service of the deceased hence they were motivated against Nazar Mohd. and Mst. Zainab.

9. Appellant Zahoor was arrested on the same day at about 4 a.m. from railway station; Mirpur Mathelo. Blood‑stained clothes viz. white trouser. one shirt with squares in green and yellow lines and one sweater with blue colour were ‑recovered from his person and put into a sealed parcel and sent to the Chemical Examiner. Knife allegedly used by appellant Zahoor was left at the vardat which was produced at the police station by complainant. This knife was stained with blood and was sent to the Chemical Examiner in a sealed parcel. Report of Chemical Examiner Exh. 33 is to the effect that chhuri or knife and clothes recovered from appellant Zahoor were found to be stained with human blood. It will be pertinent to point out at this stage that P.W. 5 Allah Din mashir who has attested these recoveries has not supported the prosecution case and has stated before the trial Court that although appellant Zahoor was arrested from railway station, Mirpur Mathelo and his blood‑stained clothes were taken into pos session by the police at the police station but he did not see any marks of blood and police made a parcel of these clothes and obtained the signature. He has also stated that police examined injuries of Mst. Zainab and deceased Nazar Mohd. whose dead body was lying on the ground outside his house. With all these assertions this witness was not declared hostile and was not cross‑examined. In such circumstances no reliance can be placed on the evidence of this mashir. Other mashir Khairatullah has not been examined by the prosecution. We do not find any reason to disbelieve the evidence of Investigating Officer Mehar Ali on these recoveries. He is as good as any other witness. There is nothing adverse in the cross-examination of Investigating Officer to suggest that he had bungled the investigation or had any motive to falsely implicate the appellant.

10. Appellant Zahoor when arrested was found with injuries on his hand and was referred to the hospital for examination. Mehar Ali Investigating officer has admitted that he did not prepare separate mashirnama of injuries of appellant Zahoor at the time of arrest but has mentioned this fact in the mashirnama of arrest Exh. 15 P.W. 9 Doctor Abdul Qadeer has deposed before the trial Court that on 30th November, 1972 he examined appellant Zahoor and found three incised wounds on his left hand. One incised wound 1 /2" x 1/6' was on left little finger, second 1/4" x 1/8" skin deep on left palm and third 1/2" x 1/6" skin deep on left index finger. The doctor also found one contusion on the inner side of the left lower lip. The doctor declared these injuries to be simple in nature and stated that injuries Nos. 1, 3 and 4 which were incised wounds, were caused by sharp‑edged weapon such as knife and injury No. 2 was caused by some blunt substance. An objection was raised that these injuries are not mentioned by the eye‑witnesses. The injuries mentioned above on the hand are very minor and as it .appears were caused while appellant Zahoor was inflicting injuries to Nazar Mohd. All these three injuries are on his band. Injury which is contusion on the inner side of the left lower lip could be caused due to a fall or stumbling of the appellant. Since it was on inner side of the left lower lip it could not be noticed. Fact cannot be lost sight that it is the case of prosecution that appellants had jumped over the wall. to come in the house of deceased at the time of incident and while running away they left their things behind at the spot. In that rush appellant Zahoor might have received this injury on the inner side of his left lower lip. Appellant Zahoor has failed to give a satisfactory explanation of these injuries. He has stated that these injuries were caused by police while he was in custody. This explanation is preposterous and it is unbelievable that police could cause injuries to the appellant on his hand ‑‑with ‑ knife. If the police had to use third degree methods then there would have been a beating and injuries would be hidden and‑not so open and visible as in the instant case. The injuries of the appellant Zahoor confirms the fact that he had participated in the attack with knife on Nazar Mohd. on the night of incident.

11. There is also judicial confession of appellant Zahoor recorded on the same day when he was arrested i.e. on 30th November, 1972. He was arrested at about 4 a.m. and was produced before Mukhtiarkar and F.C.M. on the same day at 11‑30 a.m. who recorded his judicial confession Exh.

19. Mr. Ghulam Qadir Mukhtiarkar and F.C.M. has testified that he observed all the formalities and was satisfied that the confession of appellant Zahoor was voluntary In this confession appellant Zahoor has stated as under :‑

12. I am original resident of Muzaffar Garb Bukhtari Muhallah and about 11 years ago I was servant of Nazar Mohd. Washerman Daherki and was getting salary of Rs. 130 p.m. and he used to give me meals also and I did not take salary in cash every month from him and I used to deposit the same with him. My one Radio. watch and cash were with him. About I1 months back he suspected me to be in toe, with his wife and he removed me from the services. I demanded my salary, Radio and watch but he refused to give me and drove me out from his house. I then went away to my village Muzaffar Garb. He then lodged case against me and my elder brother Mahboob at Daherki police station and the police started harassing us. I then being compelled came from my village Muzaffar Garb to Bahawalpur and from where I boarded Khybar Mail and came to Daherki Railway Station at about 10 p.m. I had one chhuri (knife) and came straightaway in the house of Nazar washerman at Daberki. I jumped over the wall of Nazar and entered and found that Nazar Mohd, and Rabnawaz and Abdul Haq were sitting in the room I give them threats to keep away as I would kill Nazar Mohd. as I have been troubled by him. They ran away I then went in another room where Nazar Mohd. was sleeping. alone on one cot and his wife was sleeping on another cot. I took out the knife from the folds of my trouser and gave knife blows to him (Nazar Mohd.) in hits stomach. This knife struck in the stomach of Nazar. I then jumped over the wall and while running away my cotton loi, tur ban and tyre chappal remained away inside the house. I then straightaway went by railway line to Mirpur Mathelo side and in the morning I reached Railway Station, Mirpur Mathelo and I saw one police constable at the railway station. I then went and surrendered myself before him and narrated the above incident of murder to him. He arrested me and brought me at Daherki police station and then produced me in this Court. I have committed this murder all alone and nobody was in collusion with me. I have committed this murder as I was being tortured by Nazar Mohd.

13. There is nothing in the evidence to suggest that this confession was not voluntarily made. This confession was recorded after about seven hours of the arrest of appellant Zahoor. He was arrested at 4‑30 a.m. on 30th November, 1972 and his confession was recorded on the same day. at 1 I‑30 a.m. Ev:n the reading of the confession shows that it has all the characteristics of voluntary confession. Although this confession is retracted by appellant Zahoor and he has stated in his 342, Cr. P.C. statement that he made this confession on the pressure and maltreatment of police and his other relatives were threatened to be involved if he did not make the confession. This allegation is not supported by the record. His brother appellant Mahboob was arrested on 5th December 1972, that is on the fifth day of the recording of judicial confession hence there is no truth in the assertion that relatives of appellant Zahoor were involved or threatened to involved by police if he did not make confession. However there is one thing in this judicial confession which is very clear that appellant Zahoor has taken upon himself the whole blame and has exculpated his brother Mahboob from the commission of this offence. 1t is the case of prosecution that Mahboob was also alongwith Zahoor and while Zahoor caused injuries with knife to Nazar Mohd. Mahboob caused injuries to Mst. Zainab. Confession of appellant Zahoor is consistent with prosecution case to a very great extent except the part played by appellant Mahboob. We propose to accept and use this confession as corroboratory evidence and so far as it is a consistent with prosecution case on material particulars. Prosecu tion case gets support from this confession on the point of motive which is admitted by appellant Zahoor the time and place of occurrence. It is stated in the confession that appellant Zahoor came at the Railway Station at 10 p.m. and then went to the house of deceased. In the confession it is admitted that injuries were caused to Nazar Mohd. with a knife which was left at the spot although in a different manner from the one suggested by the prosecution. In the confession there is admission that eye‑witnesses Abdul Haq, Rabnawaz and Mst. Zainab were also present at the spot. it is also admitted that Nazar Mohd. and Mst. Zainab were lying on the cots. Leaving at the spot of knife, turban and chappal by appellant Zahoor inside the house of deceased after incident is also admitted. Arrest of appellant at railway station Mirpur Mathelo is also admitted. Production for recording judicial confession on the same day is also admitted. Participation of appellant Mehboob in the commission of offence has been excluded. Injuries to Mst. Zainab allegedly caused by Mahboob are also not mentioned.

14. Prosecution case against appellant Zahoor therefore stands established on the basis of ocular testimony of three eye‑witnesses which is further supported on all material particulars of the incident as stated above by judicial confession of appellant Zahoor which is voluntary in nature and truthful so far his causing injuries to Nazar Mohd. with knife is concerned. Even motive is admitted in the judicial confession and is fully proved by the three eye‑witnesses. Appellant Zahoor was arrested on the same night of incident and his blood‑stained clothes were recovered which are stated in the report of Chemical Examiner to have been found with human blood. Injuries were found on the hand of appellant Zahoor which were caused while he was giving knife blows to Nazar Mohd. All these circumstance prove beyond doubt that appellant Zahoor had caused death of Nazar Mohd. by inflicting on him knife injuries at the time of incident. The case of appellant Mahboob however stands on a different footing: There is only ocular testimony of the three eye‑witnesses that he was present at the time of incident and had caused injuries to Mst. Zainab. Apart from oral testimony of these three eye‑witnesses, there is no other circumstantial evidence available on the record to connect appellant Mahboob with commission of crime. Judicial confession of appellant Zahoor excluded participation of Mahboob in the commission of crime. No other recovery is trade from Mahboob after his arrest connecting him with the commission of crime. No injuries were found on his person as were found on the body of appellant Zahoor. Standard and quality of evidence available against appellant Mahboob is different from the one available against appellant Zahoor. It is in these circumstances and for the facts and reason mentioned above that we have come to the conclusion that case against appellant Mahboob is free from doubt as such we set aside his conviction and sentence and acquit him. As against appellant Zahoor the evidence is plentiful which proves and confirms his participation in the crime beyond reasonable doubt. He is responsible for causing death of Nazar Mohd. as such we dismiss his appeal and confirm his death sentence.

15. The appeal stands disposed of in terms stated above.

16. Appeal disposed of.