P L D 1966 (W (PLP)

6. Doctor Feroze Khan (P. W. 9), Medical Officer, Civil Hospital, Mailsi, who conducted the post‑mortem examination of the dead body of the deceased on 8th August 1963, at 11 a.m. observed the following injury on the corpse:‑ "An incised (cut), wound on the front and right side of the neck, 5 " x 4", cutting all the big and small blood vessels, nerves, oesophagus and trachea. Under this injury coagulated blood was present in the wound as well as on the sides of the wound." The internal examination revealed that the larynx and trachea had been cut through and through. Blood vessels of the right side of the neck were cut and the 4th cervical vertebra was broken. The stomach contained semi‑fluid paste of cream colour. Small intestines had gas only while large intestines contained some faeces. Urinary bladder was full of urine. All other organs were healthy. The left ventrical of the heart was empty and the right ventrical had semifluid dark blood. Death, in the opinion of the doctor, was due to the injury by a heavy cutting weapon on the front and right side of the neck resulting in injuries to the blood vessels and cutting of the oesophagus and trachea completely, thus stopping the air supply to the lungs, causing shock and haemorrhage. This injury was sufficient to cause death.

7. The appellant pleaded not guilty and denied the prosecution allegations against him. He made the following statement: "It is correct that I demanded the hand of Mst. Rehmatay but it is incorrect that Jalal Din did not agree. In fact he had agreed to give Mst. Rehmatay to me in marriage. Qadir Bakhsh had also demanded the hand of Mst. Rehmatay for his brother‑in‑law and so had Muhammad Ali. Jalal Din deceased had previously agreed to give Mst. Rehmatay in marriage to the brother‑in‑law of Qadir Bakhsh but later when he agreed to give the girl to me he rejected the proposal of the brother‑in‑law of Qadir Bakhsh and I have been falsely implicated in this case by the Police because the thanedar demanded illegal money from me which I could not pay. Although Qadir Bakhsh and Muhammad Ali had also been arrested but they were subsequently let off and I was challaned."

8. The question that needs consideration is whether the appellant had committed the murder of Jalal Din deceased or Qadir Bakhsh and Muhammad Ali, who according to the appellant were arrested, were responsible for this crime.

9. The eye‑witnesses account of the occurrence was given at the trial by Mst. Noor Sain (P. W. 4) widow of the deceased, Mst. Janat Bibi (P. W. 5), a guest in the house of Jalal Din deceased, Safar Ali (P. W. 6), Shamsul Huda (P. W. 7) and Alamgir (P. W. 8) neighbours of the deceased. Excepting Mst. Noor Sain P. W. all the prosecution witnesses have supported the prosecution case in its entirety. Mst. Janat Bibi (P. W. 5) and Safar Ali (P. W. 6) are the eye‑witnesses of the actual assault. According to their version they actually saw the appellant inflicting a blow with the hatchet, Exh. P. 1 on the neck of the deceased. They were attracted by a sound and their cries attracted Shamsul Huda (P. W. 7) and Alamgir (P. W. 8). The careful reading of their statements to us show that it is possible by the time these two witnesses woke up, the appellant after the infliction of the hatchet blow was taking out the blade of the hatchet out of the wound. Therefore, there is nothing improbable if the witnesses had deposed that when they woke up, they saw the appellant inflicting a blow to the deceased. In fact, to us, this appears to be no discrepancy at all and if it is claimed to be a discrepancy, then in our view, it is of such a minor character that it is not sufficient for rejecting the testimony of the ocular witnesses, because the witnesses saw the appellant dealing with the hatchet, Exh. P.

1. The presence of Mst. Janat Bibi (P. W. 5) at the house of Jalal Din deceased cannot be doubted. She came on the day preceding the night of the occurrence to the Tehsil to get certificate pertaining to evacuee agricultural land transferred from Mailsi to District Mirpur Khas in Sind. She could not get the despatch number on that day. Therefore, Jalal Din deceased requested her to stay at his house, as she also used to stay with him. She has been cross‑examined at length but nothing substantial has been brought out to help the appellant. Even the appellant admitted in his statement that Mst. Janat Bibi P. W. used to visit the house of the deceased prior to the occurrence. So the stay of Mst. Janat Bibi on the day of the occurrence was nothing unusual or extraordinary in the house of the deceased and we hold that Mst. Janat Bibi was staying on the fateful day in the house of the deceased and had witnessed the occurrence. The presence of Safar Ali (P. W. 6) in the house of Jalal Din deceased is also quite natural. According to his statement, he used to sleep in this house on account of shortage of accommodation in their own house. There is no denying the fact that Mst. Noor Sain has not supported the prosecution version and has deposed that she was awakened by a sound and saw that the deceased had fallen from his cot on account of epileptic fit. In her statement she also deposed that Qadir Bakhsh who was a partner of the deceased, was demanding the hand of Mst. Rehmatay for his relation, but the deceased had refused him and that Qadir Bakhsh was found missing after the occurrence and the door of the house was lying open. The A. S.

1. Muhammad Abbas Shah (P. W. 10) also admits that Qadir Bakhsh was not found present at the spot on his arrival. It may be true, but that itself is not enough to hold that Qadir Bakhsh was responsible for the murder of the deceased. He might have slipped away in order to avoid becoming a witness in the case, because the appellant being a pichhlagh son of Mst. Noor Sain P. W., it is quite possible that he found himself in a difficult situation. It has come in the statement of Alamgir (P. W. 8), that on his arrival he found that Mst. Noor Sain was holding the charpai of the deceased and was wailing and crying and was also abusing the appellant for having murdered her husband. The subsequent conduct of this witness proves that she was blaming the appellant as the assailant of the deceased, but in order to save his son, she took a somersault at the trial. Excepting the actual assault by the appellant, Mst. Noor Sain P. W. supports the remaining version of the prosecution. She admits the presence of Safar Ali, Shamsul Huda and Alamgir P. Ws. Naturally no mother will be prepared to depose against her son and this equally applied to Mst. Noor Sain P. W., the mother of the appellant. Shamsul Huda and Alamgir P. Ws., who were attracted to the spot, found the deceased lying on the charpai and in their presence the appellant threw the hatchet, Exh. P. 1, on the ground, which was picked up by Shamsul Huda P. W. and passed on to Alamgir P. W. The latter produced the same before the A. S. I. Both these witnesses are the neighbours of the deceased and after the alarm being raised by the eye‑witnesses they were attracted to the spot and their presence is quite natural. Both the eye‑witnesses, namely, Mst. Jannat Bibi (P. W. 5) and Safar Ali (P. W. 6), as narrated above, have unanimously deposed that they saw the appellant dealing a hatchet blow at the deceased. The prosecution witnesses, namely, Mst. Janat Bibi (P. W. 5), Safar Ali (P. W. 6). Shamsul Huda (P. W. 7) and Alamgir (P. W. 8) are independent and had no motive to falsely implicate the appellant on a capital charge. The statements of these witnesses find corro boration from the recovery of hatchet, Exh. P. 1 and the loin‑cloth, Exh. P. 4, removed from the person of the appellant, which according to the report, Exh. P. Q., of the Serologist have been found to be stained with human blood. There is nothing to make out the prosecution evidence doubtful which has been detailed above and we have no hesitation in accepting the prosecution evidence that it was the appellant, who inflicted a hatchet blow on the deceased. Therefore, we hold that it has been proved beyond reasonable doubt, that the incident, which resulted in the death of the deceased, Jalal Din, occurred in the manner at the time and place mentioned by the prosecution witnesses referred to above.

10. The learned counsel for the appellant has vehemently argued that the first information was recorded after the investigation of the case at the spot and not at the crossing as stated by Muhammad Abbas Shah, A. S. I. (P. W. 10). We find force in the contention raised by the counsel for the appellant. It is in the statement of Mst. Jannat Bibi (P. W. 5) and Shamsul Huda (P. W. 7) that the A. S. I. came to the spot and recorded the statements of all the P. Ws. including Shamsul Huda P. W. on the spot. The statements of Mst. Jannat Bibi and Shamsul Buda P. Ws. find support from fact that in the first information report, we find the names, parentages and addresses of the witnesses. Shamsul Huda did not claim that he gave the particulars. This leads us to irresistible conclusion that the first information report was recorded at the spot after the investigation was taken in hand by the A. S. I. Indeed the A. S. I. has deposed that he recorded the first information report before he had gone to make the investigation in the case. In the presence of the clear statements of the important witnesses of the prosecution, namely, Mst. Jannat Bibi and Shamsul Huda, it is very difficult for us to accept the version of the statement of Muhammad Abbas Shah, A. S. I. (P. W. 10). We are not prepared to believe the statement of the A. S. I. to this context. We are, therefore, constrained to hold that the A. S. I. had gone to the place of occurrence for investigation and that the witnesses gave him the information of the murder of the deceased.

11. It has come to our notice in several Criminal cases that Police Officers conveniently show themselves to be present) somewhere in the vicinity where the occurrence has taken place. The inference is unavoidable, in such cases and the Court has to presume that the first information report was recorded at the place of occurrence after preliminary investigation by the Investigating Officer. We, as a matter of caution warn the Police Officers to make a departure from this old practice and put the case of the prosecution in a straightforward manner to the Courts, and not to thwart the administration of justice and enable the Courts in coming to correct conclusion. A first information report after the police investigation has started, being a statement of a person before the Police, is inadmissible in evidence and cannot be taken into consideration. Therefore, in the instant case we hold that there is no first information report, the same being inadmissible in evidence.

12. It is in the evidence of Mst. Noor Sain, Mst. Jannat Bibi, Safar Ali, Shamsul Huda and Alamgir P. Ws. that the appellant wanted the hand of Mst. Rehmatay, niece of the deceased. It has also come in evidence that one Qadir Bakhsh wanted Mst. Rehmatay to be married to his relation, while Muhammad Ali was also aspiring for the marriage with Mst. Rehmatay. We find in evidence that prior to this occurrence, i.e., in the evening of the day of occurrence, there had been an altercation between the deceased and the appellant on this issue. To us the appellant appears to be a keen aspirant for the hand of Mst. Rehmatay. We hold that the appellant had a motive to cause the murder of the deceased, besides it has also come in evidence that Mst. Nur Sain was living with the deceased without nikah and the appellant also wanted to avenge himself for the abduction of his mother to vindicate his lost honour.

13. Doctor Feroze Khan (P. W. 9) who performed the post mortem examination deposed that rigor‑mortis was present and the stomach of the deceased had semi‑fluid paste of cream colour. Therefore, the learned counsel argued that from the condition of the stomach of the deceased it appears that the deceased had taken his meals 3/4 hours before his death, and since the prosecution witnesses had deposed that the deceased had taken his meals at maghrab time or between maghrab and isha time, the deceased must have been done to death at about 11 p.m. The food normally is digested in the stomach in about four hours. Even if it is accepted that the deceased took his meals between maghrab and isha time on the 7th August 1963, the approximate time would come to 8‑30 or 9 p.m. Therefore, the deceased must have been killed some time at about 1 a.m. Again we cannot overlook the fact that the idea of time with illiterate village folks is often very vague and such folks cannot be expected to give the time with mathematical accuracy. Besides the state of digestion or the condition of the stomach is some time used as a means of fixing the hours of death, but we have great doubt if it is a reliable test. Besides the process o: C digestion is affected by various factors. Sometimes fear or shock can retard digestion to an appreciable degree. The digestion disorder may be another factor. In the absence of full and reliable data on the point involved, it would, therefore, be futile to make any attempt to find out by this method the exact time of the death of the deceased. It was also argued that the A. S. I. found that the limbs of the dead body were stiff and that according to the doctor's statement, the deceased had been done to death about four hours before the arrival of the A. S.

1. But by reading the statement of the doctor, it is clear that in case of instantaneous death the rigor mortis sets in earlier than in other cases and that in a normal case the rigor‑mortis sets in about three hours after death.

14. We have carefully examined the evidence and have come to the conclusion that the witnesses are truthful, and gave consistent evidence as to the incident which has been substantially corroborated by the medical evidence. In the circumstances we find no sufficient justification for holding that any reasonable doubt as to the guilt of the accused person has been made out in the case. Direct testimony of the eye‑witnesses, as we have already indicated is of straightforward character, which has in no manner been shaken in cross‑examination.

15. The question of sentence requires some consideration in this case. It is in evidence that Mst. Noor Sain P. W. was abducted by the deceased and was living with the deceased without nikah. To us it appears that the appellant, who was staying in the house of the deceased six months before the occurrence had a grievance that the deceased was responsible for the abduction of his mother, who was living in sin. Therefore, he was in mental agony and wanted to avenge the insult and he committed the murder of~ the dece4sed. This circumstance is further fortified by the fact that the appellant after the commission of the crime was found puffing a cigarette as if he had done a good deed. Therefore, in the present case, we are of the opinion that the appellant had committed the murder under provocation. We, therefore, uphold the conviction of the appellant under section 302, P. P. C. but reduce the sentence to one of transportation for life. The appeal is accepted to that extent and the sentence of death is not confirmed.

16. Before parting with this judgment we may say that the A. S. I. has deliberately made a false statement to the effect that the first information report was recorded at the crossing and not at the spot. He has been belied by two witnesses as discussed above. We propose to take action against the A. S. 1. to ensure purity in the administration of public justice. We accordingly direct the Registrar to draw up a complaint under section 193, P. P. C. against Muhammad Abbas Shah, A. S. I., and send it to the District Magistrate with the direction that he should either hear the case himself or entrust it to a Magistrate subordinate to him. K. B. A. Appeal partly accepted.