1986 P Cr (PLP)

Date of hearing: 18th March, 1979. Inayat Masih son of Ayub Masih has filed this appeal against his conviction under section 302, P.P.C. and sentence of life imprisonment and a fine of Rs.2,000 or in default R.I. for one year more, vide judgment, dated 16‑11‑1977 of IIIrd Additional Sessions Judge, Karachi. There was also suo motu show‑cause notice issued by this Court for enhancement of sentence to capital punishment. After hearing the learned I Advocates appearing for each side on 18‑3‑1979, the appeal was dismissed and show‑cause notice was vacated for reasons to be recorded later, which follow now. Shortly stated prosecution case is that deceased Mst. Irshad Bibi aged about 25 years was wife of appellant Inayat Masih and was living with him in his House No. 686, Lane No. 3 in Azam Basti within the jurisdiction of Police Station Mahmoodabad, Karachi. It is alleged that the appellant caused death of his wife by throttling her neck in his house on the night between 29/30‑5‑1973. In the morning of 30‑5‑1973 complainant Mushtaq Masih, who is brother of deceased Mst. Irshad Bibi and resided in Mahmoodabad, near Slaughter House within the jurisdiction of Police Station, Baghdadi was informed by his maternal uncle Kaka that Irshad Bibi had expired, so he went to the house of the appellant in Azam Basti and on finding marks of violence on the neck and face of deceased, suspected that she was killed by the appellant and went to Police Station, Mahmoodabad where he lodged such report which was recorded by S.I. Islamul Haq in the station diary at Serial No.

24. This police officer then went to the Vardat, examined the dead body and prepared the inquest report. He also informed on telephone p.W.10 Nawab Hussain Police Inspector, who was S.H.O. of the said police station. In the meantime dead body was brought to the, police station and the S.H.O. also inspected the dead body and found marks of violence and swelling around the neck and the face. After that he registered F.I.R. under section 302, P.P.C. by incorporating the contents of entry No. 24 in the station diary, which was initial statement of the complainant. The dead body was then sent to the hospital for post‑mortem examination. S.H.O. Nawab Hussain then recorded further statement of complainant Mushtaq Masih and proceeded to the place of occurrence which was inspected by him in presence of Mashirs. He also recorded statement of P.W. Ishrat Ali, who claimed that he was an eye‑witness and say the incident by peeping through the door of the house of appellant. The S.H.O. arrested appellant Inayat Masih, who, while in custody, led to the recovery of blood‑stained Chadar, Khais, Dupatta and Jumper from the room of his house, which were sealed into a parcel and sent to the Chemical Examiner. The appellant was also found to have scratches and swelling below his eyes as such he was sent to Jinnah Hospital for treatment. The S.H.O. recorded statements of other witnesses and on 31‑5‑1973 he produced the appellant before Magistrate who recorded his judicial confession. After completing the steps of investigation challan was presented in the Court. Prosecution has examined 10 witnesses in support of its case. P.W.4 Ishrat Ali has been examined as eye‑witness who saw incident and informed about it to his father. P.W.1 Zahoor has been examined as corroborating witness. Statement of another corroborating witness namely, P.W. Anwar Ali recorded before the Inquiry Court was brought on the record of Sessions under section 33 of the Evidence Act. Prosecution has also examined P.W. Mushtaq complainant, P.W. 5 Sharif alias Kaka, P.W. 7 Mr. Abdullah Akhund, Magistrate who produced judicial confession of the appellant, P.W.8 Islamul Haq and P.W. 10 Nawab Hussain, the police officer who took part in the investigation. Other witnesses examined by prosecution are of formal nature. Before the trial Court in his statement under section 342, Cr.P.C. the appellant has denied allegations of prosecution and disowned his judicial confession. He has further stated that on the night of incident he had gone to the house of his aunt Hussain Bi and uncle Rehmat Masih as his uncle was sick and there was no male member to look after him so he went there to take care of him. He has not examined any witness in defence. In this case the only eye‑witness examined is P.W. Ishrat Ali. His evidence is to the effect that on the night of incident he was lying on the cot outside his house when he heard cries of 'Bachao Bachao' from the house of the appellant. He went to that house and saw from a hole in the door that appellant was sitting on the chest of his wife Mst. Irshad Bibi and was strangulating her. He knocked it the door whereupon the appellant got up and put out light of lantern after killing her. This witness further claims that thereafter he went and awakened Zahoor and his father Inayat Ali who were also sleeping nearby in the lane. Both these witnesses told him that they would not interfere because it was a quarrel between husband and wife and further that such quarrels were very common in that family. The learned trial Court has rightly disbelieved this eye‑witness. The record of the case also does not support the claim of this witness namely, Ishrat Ali that he saw the incident. Mashirnama of Vardat Exh. 6 on the record does not say that there was a hole or gaping space in the door from where Ishrat Ali could see the incident. E.W.2 Chaudhry Jalal, who attested Mashirnama of Vardat Exh.6 has not stated that there was any hole in the door of the house of appellant. Similarly the Investigating Officer who prepared the Mashirnama of Vardat also does not say so. Furthermore P.W.1 Zahoor who was examined by the trial Court deposed that he was informed by Ishrat Ali that cries were coming from the house of appellant on which he told Ishrat Ali to go and sleep as they would not interfere in the quarrel of husband and wife. P.W. Zahoor has not stated that Ishrat Ali also told him that he saw the incident from the hole in the door of the house of the appellant. P.W. Anwar Ali whose statement recorded before the Inquiry Court was transferred to the file of Sessions under section 33 of the Evidence Act, has deposed that. Ishrat Ali had informed him that he saw appellant Inayat Masih sitting over the chest of his wife and strangulating her but he has not further stated that Ishrat Ali had told him that he saw the incident through the hole in the door of the house of appellant or the appellant got up after killing‑his wife and put out the light of lantern when Ishrat Ali knocked at the door. Agreeing with the trial Court we also doubt very much that P.W. Ishrat Ali saw the incident from the hole in the door of the house of appellant, because had it been. so, he would have given the full story to his father Inayat Ali and also P.Ws. and on the bass of such statement the Investigating Officer would also have checked the door of the house of the appellant in order to find out whether there was a hole in it or not because that would have supported the assertion of the only eye‑witness in the case. Furthermore this assertion is inconsistent with the confessional statement of the appellant to which we shall advert later. When the assertion of the eye‑witness that fie saw the incident is held to be doubtful, the corroborating evidence of P.W. Inayat Ali on that point automatically is not to be relied upon because his statement is based on the information supplied by Ishrat Ali. It may be that P.W. Ishrat Ali might have heard the cries; and might have informed P.Ws. Zahoor and Anwar Ali but the said information can be believed only up to the extent of hearing the cries and not seeing the incident. There is also evidence of P.W.5 Sharif alias Kaka who is maternal‑uncle of deceased Mst. Irshad Bibi who has deposed that he saw and had talked with Mst. Irshad Bibi on the preceding evening of the incident and found her quite hale and heartily when next morning he was informed that Mst. Irshad Bibi had died and ire went to the house of the appellant and found that read body had also injuries on her chest and forehead. The persons present the house of deceased informed him that she had died of cholera. He suspected foul play and informed complainant Mushtaq who came to the house of the deceased and after verifying the facts went and lodged the report. Since these witnesses only suspected that death may be due to other causes as there were injuries on the person of Mst. Irshad Bibi and that she was quite healthy and was suffering from no ailment hence they asked the Investigating Officer for post‑mortem examination of the dead body as they suspected the appellant, who used to quarrel with his wife, might have killed her. That best evidence produced by the prosecution is judicial confession of the appellant from which he had resiled in the trial Court. Appellant was arrested at 1 p.m. on the same day when the report was lodged and on the following day i.e. 31‑5‑1973, his judicial confession was recorded by Mr. Abdullah Akhund, Additional City Magistrate. The Magistrate was examined in the trial Court and from his evidence it appears that he had administered all the requisite cautions and warnings and recorded judicial confession of the appellant in accordance with the procedure as laid down under section 164, Cr.P.C. The appellant in his statement under section

342. Cr.P.C. before the trial Court has denied that he was never taken, to the Court of Mr. Abdullah Akhund. An objection is also taken that the appellant was illiterate, not conversant with Urdu and could not make a signature. The judicial confession shows that it is signed by the appellant in Urdu. These objections are not sustainable for the reason that if the appellant only spoke Punjabi and could not speak or understand Urdu then he could have raised such objection at the time when his judicial confession was being recorded and such objection would have been noted. Such question was put to the learned Magistrate when he was being examined and he has stated categorically that the appellant could speak Urdu and could understand the same and the questions were put to him in Urdu. After his confession was recorded the same was read over to him which he admitted to be correct and signed in his presence. There is no other evidence available to disprove the statement of the learned Magistrate and we feel that the objection raised by the appellant is an afterthought and neither the learned Magistrate nor the Investigating Officer had any motive to be a party to false confession and foist the same upon appellant. On the other hand the confessional statement appears to be truthful and voluntary as it was recorded on the following day of the arrest of the appellant. The contents of the confession have ring of truth and apart from that there are many confirmatory circumstances which amply prove the voluntaries and truthfulness of the confession. The confessional statement is reproduced as under:‑- "Thereafter the accused was told that he is not bound to make the statement in spite of that he has given that following statement, which is recorded verbatim. 'Mat. Irshad was my wife, 3 months back she had gone to the house of her parents. Thereafter she came back and when I asked her to allow me to do sexual intercourse, she refused to the same and asked me that I should do the same with my mother and sister. I was overpowered by sexual desire while she was refusing. I got annoyed and throttled her neck with her Duppatta and she died on the spot. I have committed the same only last night. Since there was a gap of three months and so I find a lust for the sexual intercourse and I committed (this offence) because she had asked me that I should satisfy my lust with my mother and sister. After killing her I remained sitting there and told the people in the morning." The appellant has stated that his wife had gone to the house of her parents and returned after three months. This fact is confirmed by the complainant and the other witnesses that the appellant and his wife used to quarrel quite often and his wife used to stay away from the husband for sufficient length of time and this was a regular feature and the complainant used to send her back, secondly, the appellant has stated that on the night of incident he wanted to have sexual intercourse with her as she had come back after three months and she spurned his offer and further scorned him by suggesting that he should have sexual intercourse with his own mother and sister. The appellant has further explained that because of the intense urge for sex as there was a long interval of three months when he had his last intercourse and the insulting manner in which he was ridiculed and alighted by his wife, who suggested that he should have intercourse with, his own mother and sister, he lost temper and throttled her neck with her Dupatta and she died at the spot. This story of the incident as narrated by the appellant in his confession appears to be convincing. Furthermore dead body was also found in the room on the cot, which supports the assertion of the appellant that at the time of incident he attempted to have intercourse with his wife. It is in the evidence that there were other inmates in the house also and the father of the appellant was also living in the same house as such the assertion of the eye‑witness Ishrat Ali that he saw from the hole of the door appellant sitting on the chest of the deceased and strangulating her and after killing her put the light of the lantern out, is improbable as the appellant and his wife are not expected to have intercourse in the courtyard of the house with lantern alight particularly when the other inmates were present in the house. The incident took place in the month of May and discovery of the dead body on the cot in the room also confirms the fact that the appellant wanted to have sexual intercourse with his wife inside the room and when he was humiliated by her he killed her by throttling. Medical evidence also supports the fact that death was due to asphyxia due to injury No. 1 or the neck. There were also nail‑marks on her neck. The doctor has described other symptoms also which indicate that the death was due to throttling. The appellant has also led to the recovery of red Dupatta, pink shirt, coloured Chaddar and Khais from room from a corner. He admitted having strangulated his wife with red Dupatta. With the exception of the pink shirt the other articles were found to be stained with blood by the Chemical Examiner. Lastly, when the appellant was arrested there was injury on his face and swelling. He was medically examined and the doctor declared that injury to be simple in nature and caused within 24 hours of the exami nation, which tallies with the time of incident. The appellant himself has not explained this injury and in his 342, Cr.P.C. statement he E stated that he was never examined by doctor. This evidence is more than sufficient to corroborate in all material particulars, judicial confession of the appellant which appears to be truthful and voluntary. Prosecution has proved its case against the appellant beyond doubt as such appeal is dismissed. Appellant had committed that murder at the spur of the moment when he was insulted by his wife which made him lose his temper. In the circumstances sentence of life imprisonment is justifiable. Suo motu notice issued for enhancement sentence is vacated. S. G. D. Appeal/Revision dismissed.