1980 P Cr (PLP)

The Medical Officer Mr. Santho Ram found the following four injuries on the person of Mst. Namat :‑ (I) Incised wound 5" x 4" x 4" on chain and left side of mandible cutting lower part of the mandible, blood vessels; muscles, pharynx and fracturing in remaining part of the mandible in pieces. (2) Incised wound 2 " x " x deep vertebral column on left lower neck anteriorly cutting blood vessels, trachea and muscles. (3) Incised wound " x, " on left upper neck. (4) Incised wound 2" x " x 2/3" on left dorsum of band cutting left second metarcarpal bone." The Doctor was of the opinion that the death was due ;c: shock and haemorrhage as a result of external injuries which appear to have been caused by sharp‑cutting weapon like hatchet. In respect of the investment of Ali Nawaz in the crime the prosecution had relied upon (1) Extra Judicial confession made by the accused to P. W. Abdullah and Naweer who too also saw the accused with blood‑stained hatchet. (2) The accused himself lodged the report at the police station. (3) Police secured blood‑stained loin cloth from the accused. (4) the accused tool the police to the vandal where he voluntarily produced blood‑stained hatchet. (5) Retracted judicial confession of the accused. At the trial P. W. 2 Mohammad Siddiq mashir of recovery of Hatchet and vardat, P. W. 3 Vakil mashir of vardat and securing of hatchet P.W.4 Bashir Ahmed mashir of arrest of the accused and securing of loin clothes from him and P. W. 5 Gull Sher mashir of arrest of accused and securing of loin clothes from him, did not support the prosecution. P.W. 6 Nazeer also denied that the accused Ali Nawaz who was present in Court was the same Ali Nawaz who murdered Mst. Namat, but otherwise, he supported the prosecution case and orally deposed that he is nephew of Ali Nawaz brother of Fazal, and that he had seen Mst. Namat lying dead with hatchet injury by Ali Nawaz, who was present there, Ali Nawaz told him, that he hid seen Mst. Namat in actual sexual intercourse with Gulab and he had murdered Mst. Namat while Gulab had run away. He was declared hostile, and was cross‑examined by D.P.P. He stated that assailant Alt Nawaz is son of Ramzan, and further admitted that assailant Ali Nawaz was his uncle. In the same manner P. W. 7 Abdullah who was husband of sister of Fazal stated he and Nazeer went to the house of Ali Nawaz on hearing cries, and found Mst. Namat wife of Ali Nawaz lying dead with hatchet injury and Ali Nawaz was holding blood‑stained hatchet, and Ali Nawaz told him that he had seen Mst. Namat and Gulab in compromising position, and Gulab had run away, and he murdered Mst. Namat, but he also stated that the accused person in Court was not the same Ali Nawaz. He was declared hostile and was cross‑examined. He denied that he was giving false evidence as he was brother‑in‑law of accused. He stated that Sardar Mohd. Ayub Khan had implicated the present accused to save the real assailant Ali Nawaz, it may be stated here that P. W. 6 Nazeer Ahmed and Abdullah, in their earlier 164, Cr. P. C. statement before S. D. M.. Thul on 27th October 1977 had involved appellant All Nawaz with the crime, but since, the appellant had not been given an opportunity to cross‑examine them, therefore, these statements could not be used. The confession of the accused was proved by P. W. 9 Ghulam Muhammad, S. D. M. who stated that he was satisfied that accused had glade the voluntary confession. He identified the present appellant as the person; who had made the confession. He stated that accused was brought before him on 27th October 1977 at 12.30 noon. He got hand cuff removed and directed the police to leave the Court Room, and inquired from accused about any maltreatment by the police, but he did not complain. He stated that he had told the accused that he was the First Class magistrate, and accused was not bound to make the confession, and if he made any confession it would be used against him. He also told the accused that whether he made or did not make any confession he would not be returned to police custody He had given time for reflection to the accused till 1.15 p.m. and then, recorded the confession of the accused The confession was recorded in English as form of confession was in English. He said that he was Sindhi: and knew Sindhi language and had translated the confession recorded by him and explained to the accused in Sindhi. He. however, admitted is: cross‑examination that he had not mentioned in the confession that the accused was told that he would not be returned to police custody. He has denied the suggestion that accused was not produced before him. The I. O. in the case was P. .W.

11. Mohd. Paryal who identified the accused. as the person who had come to the police station, and he lodged the F. I. R. He arrested the accused and secured his blood‑stained loin‑clothes and made the investigation by going to the site of offence, and he secured the blood‑stained hatchet, which was produced by the accused from the inside of his house. He is the only person, therefore, who had proved the recovery of the blood stained loin‑clothes from the person of the present appellant as well as the securing of the blood‑stained hatchet and produced him on the next day for judicial confession. In the cross‑examination he denied suggestion that he had left the real culprit Ali Nawaz at the instance of Sardar Mohammad Ayub Khan, and had falsely involved the present appellant. In his statement under section 342, Cr. P.C the appellant denied that Mst. Namat was his wife. He further denied that he tiled the F. I. R. or that he made any confession and he stated that he was implicated at the instance of Sardar Mohammad Ayub Khan. The appellant has been convicted by the learned Sessions Judge on, the basis of certain circumstances including statements of the P. Ws Nazeer Mimed and Abdullah who had reached the vandal immediately on hearing the cries and had seen Mst. Namat lying murdered and Ali Nawaz standing there and Ali Nawaz had made extra judicial confession before them that he had killed Mst. Namat as he had found her in compromising position with Gulab and he had declared her as Kari. These witnesses had been relied upon to spite of the fact these two P. Ws. had stated that accused Ali Nawaz was not the same Ali Nawaz, whom they had seen at the vardat. This part of their statement was found to be false by the learned Sessions Judge on the ground that it was the accused present in Court who had filed the F. I. R. Exh. 25, and had thus moved the law in motion. These portions of the F. I. R. which are not incriminating, but where he had given the relationship with his brothers Makhno and Fazal, and stated that Mst. Namat was married to him and that Fazal and Makhno had gone to Thul to attend a Faisla and P. Ws. Nazir and Abdullah had come to the house of his brother Fazal on the day that accused had gone to village Naseer Khoso for business of bullocks and had returned to his house at Somhani time was used to show that it was the accused Ali Nawaz himself about whom P. Ws. Naseer and Abdullah had deposed, who had made the extra judicial confession before them. To establish the identity of the particular accused his retracted judicial confession Exh. 22, was also used where the accused had stated that he had gone for purchasing bullocks and returned at Somhani time and finding Gulab and his wise committing zina he killed his wife on the spot with hatchet and Nazeer and Abdullah, who were staying there came. running and the accused told them the whole facts. I have seen all these statements, F.I.R. and the judicial confession. and I agree with the learned Sessions Judge ;hat it was the appellant Ali Nawaz himself about whom P. Ws. Nazir aria Abdullah had deposed as the person who had killed hi, wife and made extra judicial confession before them and their failure to identify the appellant in Court was merely an obliging statement as P.W. Abdullah was the brother‑in‑law of the accused and P. W. Nazeer is the nephew of Abdullah. Mr. Munawar Malik states that F. I. R. should have been left out of consideration as it was a statement made by an accused before a police officer. But, I find that the incriminating part of F. I. R. has been left out of consideration and only that portion of the F. I. R. has been used which only gives relationship and shows the .arrival of the P. Ws. at the house, and it is clear that these portions of F. I. R. were not the confession of guilt before a police officer, and there was, therefore, no bar in law to their being used. Moreover, I find that there was no allegation made against the police officer personally of either any maltreatment or corruption, and therefore; it could not be challenged that it was the appellant Ali Nawaz himself, who had lodged the F. I. R. The suggestion that real Ali Nawaz has been left and this Ali Nawaz has been involved at the instance of Sardar Mohd. Ayub is hardly tenable as no dispute between the appellant and Ayub has been established or even suggested and on the other hand I find that the appellant himself cultivates the land of Ayub and P. W. Nazir and P. W. Abdullah, who are relations of the accused, have admitted that Sardar Ayub is Sardar of community. P. W. Nazir has even admitted that his father is maternal uncle of Shah Bux, who is father‑in‑law of Sardar Ayub. Therefore, it is hardly reasonable to suggest that in such circumstances Sardar Ayub would get the appellant falsely involved, Sardar Ayub should in fact be interested, if at all, to save the appellant. Therefore, the lodging of the F. I. R. by appellant cannot be challenged and its introductory portion can be used against the maker of the F. I. R. without the confessional part. Further, circumstance used is the judicial confession Exh.

22. Mr. Munawar says that confession is not recorded in accordance with law and hence it should be ignored. I do not find any justification to do so. It was recorded on the next day of the arrest of the accused and hence there is hardly any delay. Mr. Ghulam Mohd, who recorded the confession, has stated on oath that be satisfied himself before recording the confession that accused was making a voluntary statement, that he had given time for reflection of about 45 minutes and had removed the police from the Court and had examined the body of accused and had not found any marks of injury on his person, which is sufficient to show that confession had been voluntary. Mr. Munawar says that the confession had been recorded in English while accused did not know English, but in his statement the Magistrate has categorically stated that he knows Sindhi, and he had explained and translated in Sindhi, the confession recorded by him. This is a sufficient explanation and dispels all doubts. The Magistrate has further stated that he had told the accused that whether he made the con fession or not he would not be returned to Police custody and although the Magistrate had made no such note in the body of confession, but there is no reason to doubt the statement of the magistrate made in Court, more particularly so when there is no allegation of any torture and beating by police and the accused in his statement before Court has even denied that he made such a confession and a question in .cross‑examination has been put to the Magistrate that the accused was not produced :before him and the Magistrate has himself written the confession on the basis of statements of P. Ws. which suggestion has been denied by the Magistrate. I see no justification on record to put such a question to the magistrate against whom no allegation of any partiality had been suggested. The judicial confession was therefore voluntarily made and it would have been made the sole basis of conviction. But the learned Sessions Judge has, for abundant caution, sought its corroboration, which is provided by the statements of P. Ws Nazir and Abdullah as mentioned above. Apart of this confession appears to be in conformity with the non‑incriminating part of F. I. R. The statement in confession that the accused killed his wife with a hatchet is corroborated by the statement by Dr. Santhoram P.W.

5. Post mortem Report Exh. 20 showing that 4 incised wounds were inflicted on the person of deceased Namat. Still further corroboration of the judicial confession and support to the prosecution is provided by the Investigating Officer P. W. 11 Mohd. Paryal who has proved that accused lodged F.I.R. and he arrested accused on 26th October 1977 and he found the accused wearing blood‑stained clothes which he secured and put in sealed parcel after making a memo Exh.

11. He. has also proved that the accused produced blood‑stained hatchet from his house on the same day vide memo. Exh.

9. These clothes of accused and hatchet were sent to Chemical Examiner and report of the Chemical Exami ner Exh. 28 shows that they were stained with human blood. Mr. Munawar argues that the mashirnama cannot be looked into as no mashir has proved them and hence recoveries are doubtful. it is correct that these recoveries have not been supported by the mashirs but I find that they have been proved in accordance with law by the statement of the Investigating, Officer and there is no reason to disbelieve his testimony. I have already held that F. I. R. had been lodged by the present appellant and that the suggestion that the police have wrongly involved the appellant is without any basis. There is no other challenge to the testimony of the Investigating Officer who seems to have performed his duty properly and regularly and hence there is no reason to disbelieve him on the point of recoveries, and there fore the recoveries of blood‑stained clothes from the person of the accused and the production of blood‑stained hatchet by the accused supported by positive report from the handwriting expert have been correctly relied upon. The net result of the above discussion is that case against the accused has been amply proved and he has been ,rightly convicted under sec tion 304 (1), P. P. C. as from the very beginning case against the accused was that he had acted under grave and sudden provocation as he had seen the deceased and Gulab in compromising position. There was thus no case of murder under section 302, P. P. C. So far as the question of sentence is concerned, I find' that a sentence from 2 years to 5 years has been awarded in different cases in this Court and the Lahore High Court under section 304 (I) of P. P. C. and there is nothing brought to my notice as to why the sentence should be interfered with. I do find that there is nothing to contradict the appellant on the point of grave and sudden provocation of seeing the deceased in compro mising position with Gulab, but his allegation that both of them were naked does not find support from the circumstances. Gulab could have hardly run away if he was holding his clothes or was trying to put them on and if he had run away naked then at least his loin‑cloth should have been left at the spot and could have been seized by the police but that was not done and hence the allegation of nakedness is not proved. In respect of Mst. Namat it has been clearly established by P. W. Abdullah that she was not naked and was wearing the clothes, therefore, the allegation about nudity of Kato and Kari is found disproved and hence the accused saw them only in compromising position and not naked. Moreover no semen was detected. In these circumstances, 4 years' R. I. and fine of Rs. 1,000 does not appear to be such a sentence which should be interfered with by the High Court. Appeal is therefore dismissed. Appeal dismissed. .