P L D 1976 Karachi 1222 (PLP)

JAMALUDDIN H. AHMAD, J.-The appellant, alongwith three others i.e. Shafi Mohammad, his father Hasan and Ghulam Rasul, his brother-in-law, was tried for an offence under section 302 read with section 34, P. P. C. for causing murder of one Mithal. The First Additional Sessions Judge, Larkana by his judgment dated 6-12-1912 acquitted the three co-accused of the appellant, but finding him guilty of the offence under section 302, P. P. C. sentenced him to suffer rigorous imprisonment for life The appellant has filed this Jail Appeal, to challenge his above-said conviction and sentence.

2. The F. I. R. in this case was lodged by one Mahmood son of Mewo brother of the deceased on 11-10-1972 at 24-00 hours at the Police Outpost Badah which was recorded by P. W. A. S.

1. Shahabuddin, who sent I a copy of which to the S. H. O. Dokri Police Station for registration of the crime. The complainant alleged that on that day, at 9 p. m. he along with P. Ws. Ghulam Rasool, Arz Mohammad and Khan Muhammad were going back ,to their houses after offering tarawih prayers, when they met Mithal deceased under the otaq of Hasan. On inquiries he disclosed that he was going to his house which was in fact within the same enclosure as that of the complainant himself. However, Mithal went a little ahead of them and at about 9-30 p.m. when he reached the door of the house of Shafi Mohammad he suddenly raised cries. The complainant and the other witnesses went there running, and found that Shafi Mohammad and Hasan were armed with dandas while Ghulam Rasool and appellant Miral were armed with hatchets. All the four dragged Mithal inside their house and the witnesses also followed them. They saw the four of them giving danda and hatchet blows to Mithal. They threatened the witnesses not to coarse near as Mithal was Kari with cost. Waziran wife of the appellant Miral. Mithal was thus killed within the sight of the complainant and the three witnesses but they could not render any help. Leaving the dead body there, the complainant proceeded to lodge the report at the above-said outpost. After recording this report A. S.

1. Shahabuddin proceeded to the scene of offence, a mashirnama of which he prepared in the morning in presence of mashir Mohammad Kassim and Mohammad Umer. The dead body of Mithal was lying under a shed in the house of Shafi Mohammad. He secured the blood-stained earth from the spot and also prepared a rnashirnama of the injuries on the dead body whereafter he sent the same to the Medical Officer, Dokri for post-mortem examination. He then examined P. Ws. Ghulam Rasool, Arz Mohammad and Khan Muhammad besides Mst. Waziran wife of deceased Mithal. He also examined same persons of the locality, namely, Hidayatullah, Mira], Ghulam Hussain, Waris and Wali Mohammad. According to him he had searched the house of the accused but was not able to secure anything incriminating. The S. H. O , Dokri Police Station P. W. Mohammad Usman on receiving the copy of the F. I. R., registered the same at 7 a.m. on 12-10-1972 which is Exh. 13-A, and he then went over to the place of incident. He received the investigation papers from A. S. I., P. Shahabuddin and verified the same. On 13-10- 1972, the appellant and the other three acquitted accused were produced before him by Wadero Ghulam Rasool whom he arrested, and in the presence of mashits Muhammad Kassim and Muhammad Soomar he secured a white shirt from accused Shafi Muhammad, a loin cloth from accused Ghulam Rasool, a blue shirt from accused Hassan and a loin cloth from the person of the appellant Miral ; which all were stained with blood. He sealed the same in parcels, but under a joint Mashirnama Exh. 12-A. Accused Shafi Muhammad led the police and produced a blood-stained danda. Accused Ghulam Rasool produced a blood-stained hatchet. Similarly the appellant also led the S. H. O. and the mashirs to his house and took out from inside the beddings lying on the cot a hatchet which was also blood-stained. A separate parcel was prepared and sealed, in the presence of the same mashirs under a Mashirnama Exh. 12-C. On 14-JO-1972 the S. H. O. produced P. Ws. Ghulam Rasool, Arz Mohammad and Khan Muhammad before the Mukhtiarkar and First Class Magistrate, nokri who recorded their statements under section 164, Cr. P. C. On 26-10-1972 he sent the blood-stained earth, clothes and the weapons to the Chemical Analyser whose report was produced by him in Court as Exh. 13-B. It shows the presence of human blood on all the articles secured from the appellant and the other co-accused. The appellant and other co-accused were then challaned in the Court of Extra Joint Civil Judge and First Class Magistrate, Larkana.

3. At the trial the prosecution examined the complainant Mahmood. P. W. 3 , Arz Muhammad P. W. 4, Khan Muhammad P. W. 5 and Ghulam Rasool P. W. 6 as eye-witnesses of the incident excepting Ghulam Rasool who belongs to the. same caste, the other three witnesses are admittedly related to the deceased Mithal. These witnesses have claimed to have seen the whole incident at about 9-30 p. m. after they were returning from the mosque and to have identified the accused in the moonlight. They have however not been believed by the trial Court on several grounds ; that the date of incident being 3rd of Ramzan there would be no moonlight at that time, as alleged, that the actual murder had taken place in the house of Shafi Muhammad under a shed to which place the deceased was said to be taken from the street but no marks of dragging or struggle were at all found in the street or the house of Shall Muhammad ; that the First Information Report was belated even on the admission of the complainant ; and although people belonging to different castes had admittedly come out from the mosque, and come up on cries, no independent witness was examined in this case. The trial Court also considered the conduct of the three witnesses in going away to Badah after the murder, as strange and came to an overall conclusion that no implicit reliance could be placed on the evidence of these witnesses. The reasons for considering the evidence of these eye-witnesses as unworthy of implicit reliance, appear to be substantial and the learned counsel for the State also agrees with the same. This piece of evidence therefore cannot, be made use of against the appellant, as it is obviously doubtful whether these eye-witnesses bad seen the occurrence or that the same happened in the manner described by them.

4. The other evidence examined by the prosecution is that of recovery of dandas and hatchets from the appellant and the acquitted accused. It is the case of the prosecution that the acquitted accused and the appellant were arrested by the S. H. O. on 13-10-1972 at 4 p. m. as they were produced by Wadero Ghulam Rasool. The loin cloth of the appellant, which was ultimately found to have been stained with human blood was secured from his person at the time of arrest. Similarly the hatchet which he produced before the police was also certified by the Chemical Analyser to be stained with human, blood. Evidence of the same type was also produced by the prosecution against the other acquitted co-accused. However, the trial Court disbelieved this evidence as against all on account of certain contradictions that appeared in the evidence of the complainant, mashir Muhammad Soomar and the S. H. O. Muhammad Usman and it was observed "No doubt the Chemical Analyser had found human blood on the clothes and weapons alleged to have been secured from the accused, but the recoveries of those clothes and weapons are doubtful in character. As the case of the appellant alone is under consideration, this piece of evidence appears to be consistent with his own statement in Court wherein he admitted the production of the hatchet alone before the police. There is therefore no reason to disbelieve the evidence to that extent, against the appellant, irrespective of the observation made by the trial Court to the contrary.

5. The prosecution further relied upon the point of motive. It was alleged even in the first information report that the deceased was said to be suspected on illicit terms with Mst. Waziran wife of the appellant and was therefore killed as a `Kayo'. On this aspect of the case the statement at the trial, made by the appellant himself is in these terms, "In fact I was staying on my land as I had to look after the paddy-produce lying there. In the small hours of the morning of the day of the incident I had gone to my house and had seen my wife Mst. Waziran in compromising position with deceased Mithal in my house. I was having hatchet in my hand. On seeing my wife in objectionable position I lost my self-control and gave hatchet blows to Mithal and caused his death under grave and sudden provocation. Then I had voluntarily gone to the Badah police outpost and had given them the information regarding the death of Mithal. But the police did not record my information, and they falsely received the report from Mahmood brother of Mithal against me, my father Shafi Mohammad and my brothers-in- law Hassan and Ghulam Rasul are innocent". Furthermore Mst. Waziran herself was called as a Court witness and examined on the request made by the defence. She also admitted her illicit intimacy with deceased Mithal and further added that the appellant Miral had committed his murder when he had returned from fields looking after the Jowar produce lying in the dera at about Asur (Dawn) time. According to her the appellant had both lathi and a hatchet in his hands. He gave hatchet blows to the deceased whereupon she ran away to the house of her parents. In her cross-examina tion she added that the appellant had even come there, after her with the hatchet in his hands, but she concealed herself in the house of her father. According to her the appellant had never expressed that he would kill, but he used to suspect her always. She denied that the deceased was brought in the house by Miral appellant and the acquitted accused Hussain, Shall Muhammad and Ghulam Rasool, from the street by bodily lifting him and then killing him in the house. The medical evidence consisting that of Dr. Abdul Ghani Shah, who examined the dead body and also held the post-mortem examination supported the prosecution. According to him there were in all 16 injuries on the person of deceased Mithal which are as under :- (1) One incised wound 4' x 1" x scalp deep on the right parietal region of the skull. (2) One contused wound 1 x 1 x scalp deep on the left side of the octoral region of the skull. (3) One flapped incised wound 2' x 1' scalp deep on the left parietal region of the skull. (4) One incised wound 1/3 x x skin deep on the lower one-third on the extenso aspect of the right fore-arm. (5) One incised wound 1/3 x on the back of right elbow. (6) One incised wound 1/3' x 1/6' skin deep on the left upper arm. (7) One bruise 3' x on the left side of the abdomen. (8) One bruise 5' x 2' on the left hip on lateral side. (9) One incised wound 1' x 1/6' x skin deep on the outer side of the left thigh. (10) One lacerated wound x 1/3' x skin deep on the upper foruth of the left lower leg, surrounded by contusion 5' x 4' tibia and fibula bones were fractured. (11) One incised wound 1/3' x 1/6' x skin deep on the lateral side of the left ankle-joint. (12) One incised wound 1' x x skin deep on the upper one-third of the right lower leg on the front. (13) One incised wound 1' x skin deep on the middle one third of the right lower leg on the front. (14) One abrasion 1"x 1/6' on the back on the right loin. (15) One abrasion x just above the right iliac chest. (16) One contusion 3' x 2' on the right hypochandrium. Injuries Nos. 1, 3, 4, 5, 6, 9,11, 12 and 13 appeared to him to have been caused by some sharp cutting weapon such as a hatchet and the rest of the injuries in his opinion were caused by a blunt substance such as a laths or back side of the hatchet. In his opinion injury No. 16 individually was sufficient to, cause death in the ordinary course of nature and the rest of the injuries would also be collectively so sufficient. He admitted that these injuries were caused in quick succession and could be by even a single man.

6. As stated above the case of the accused was not that of denial. He however denied that any blood-stained loin cloth was secured from his person or that it was found to be stained with human blood. About the production of the hatchet from the tied bedding lying in his house he stated that it had not been so secured but that he had himself produced the blood-stained hatchet before the police at the police station. He owned the hatchet and admitted it to be stained with blood. The case of the three acquitted accused however was that of denial with regard to participation in the murder and even about the production of the incriminating articles. Their case was that they had been falsey implicated on account of their relationship with appellant Miral who had murdered the deceased on finding the latter in a compromising position with his wife Mst. Waziran. The appellant thus set up the plea of having killed the deceased on account of grave and sudden provocation.

7. The trial Court however believed that the murder of Mithal had been committed by the appellant Miral as was admitted by him, but it further came to the conclusion that the same had not been committed under grave and sudden provocation. It did not believe the defence theory as totally true as the medical examination revealed that the death of the deceased had occurred about 18 hours before the post-mortem examination which had been conducted between 4 p.m. and 5 p.m. on 12-10-1972. Thus calculated the time of murder would be 9 or 10 p.m. on 11-10-1972 as against what Mst. Waziran deposed in Court. The Court therefore did not consider the killing of deceased Mithal to be on account of sudden and grave provocation, but still observed, "all the same I am convinced that deceased Mithal has not been gilled under grave and sudden provocation as asserted by accused Mira), but somehow the deceased went inside the house of accused Miral and Miral finding the paramour of his wife in his house has killed him on slightest provocation and that is why Mst. Waziran was not hurt at all."

8. Now the appellant in this case had admitted the causing of the injuries to the deceased and also the recovery of the blood-stained hatchet from him. These facts are corroborated by medical evidence and the report of the Chemical Analyser. The First Information Report disclosed that he suspected that his wife Mst. Waziran was on illicit terms with the deceased and in the opinion of the Medical Officer the injuries resulting in the murder could have been caused even by one man. The appellant was therefore rightly found to be responsible for the murder of the deceased. In this state of evidence the question requiring further consideration is as to what offence has been committed by the appellant. The trial Court while holding that the offence fell under section 302, P. P. C., observed, "It is not premeditated murder on the part of the accused Mlral. He had done Mithal to death in the state of agony of his mind;" and on this consideration death penalty was not inflicted but treating these as mitigating circumstances, the lesser sentence of life imprisonment was awarded to the appellant. Mr. Murtaza Hussain who appeared for the State in this case pointed out to these very circumstances and considerations which had weighed with the trial Court, and frankly stated that in the circumstances that the conviction is based on the admission of the appellant himself, it should be believed as a whole, and the offence would not then be one under section 302, P. P. C. but it would clearly fall under section 304 Part (1), P. P. C. He further suggested a reduction of sentence in case his argument was accepted and the offence held to be under section 304 (I), P. P. C. He referred to the case of Babu v. State (P L D 1961 Kar. 240), but that case is an authority only on the principle of criminal trial that, where there is no other evidence the reasons given by the accused in his confession, for committing the crime, whether fully established by other evidence or not, need be taken into consideration. In that case the accused had not only confessed his guilt but had even gone over to the police station himself to make a report of the occurrence and finally the sentence was reduced from death to transportation for life without changing the conviction which was under section 302, P. P. C. In the present case also the confessional statement of the appellant mad in Court is to be used against him. It is supported by other evidence of production of a blood-stained hatchet, but the exact circumstances in which the offence was committed came out only from his statement and must be therefore believed in entirety. However as these circumstances do make out a case of grave and sudden provocation, and as the other co-accused have all been acquitted on account of there being no reliable evidence, the confessional statement of the appellant is to be given full weight. His conviction Is, therefore, altered to one under section 304 Part (I) and he is sentenced to 5 years' R. I. Subject to the above modification his appeal is dismissed. M. A. RASHID, J. -I agree. S. Q. Order accordingly