P L D 1958 Peshawar 147 (PLP)

HABIBULLAH KHAN, J.‑This is an appeal by one Juma of village Shor Kot against the order of the Sessions Judge, Derajat which he has been convicted of offences under sections 302, P. P. C. and 201, P. P. C. and awarded transportation for life and five years' R. I. respectively. His two brothers Mandu and Khana, who were also placed in column No. 2 of the challan had been discharged earlier by the inquiry Court. It would be conducive to a correct appreciation of the facts of the case, if the relationship of the parties is given at the outset the murdered man was Khan Muhammad alias Khana of village Chah Musawala, which is situated at a distance of about 20 miles from Shor Kot, the' village of the appellant. Mst. Sakina is a daughter of the appellant and is married to Adil (P. W. 2), a son of the deceased. A daughter of the deceased is also married to Mandu, brother of the appellant, who was discharged by the Inquiry Court. Because of this relationship the parties used to visit each other's houses. Some days before the murder Mst. Jano, wife of the appellant and mother of Mst. Sakina, had visited the house of the deceased. After about 10 days the appellant went to the house of the deceased and brought his wife Mst. Jano back to his village. His daughter Mst. Sakina and his son‑in‑law Adil also accompanied them. Adil after staying for one night in the house of the appellant returned to his village, leaving his wife Mst. Sakina behind. After about two days Khan Muhammad deceased also followed his daughter‑in‑law to the house of the appellant. He had taken a cash of Rs. 500 with him in order to purchase some clothings in connection with the marriage of his other son Abdullah. When the deceased did not return to his house in time Adil set out in search of him after about four or five days. He contacted first Ranju in his village Sangar, who informed him that his father had come to his house but had left for village Shor Kot. On arrival in village Shor Kot Adil was told by the appellant and his relatives that his father had stayed with them for one night and thereafter left for D. I. Khan. Accordingly Adil taking his wife Mst. Sakina with him left for his village. In the way Mst. Sakina informed him that his father Khan Muhammad had been murdered by her father Juma and her uncles Mandu and Khana. Leaving Sakina in his house, Adil returned to Shor Kot and made further enquiries. After he felt satisfied that his father had been murdered he went to Police Station Saddar, D. I. Khan and lodged a report. The police reached village Shor Kot the same evening. On search the police recovered an axe from the house of the appellant, and the following day the appellant led the investigat ing officer to his field, about a mile away from the village, acid pointed out the place where the dead body of Khan Muhammad was buried. In the presence of a Magistrate and Doctor the dead body was recovered. It was decomposed. The Postmortem examination revealed that he had died of multiple fractures of left temporal, parietal and occipital bones caused with about three blows of a blunt weapon. The appellant was produced before a Magistrate, who recorded his confession. At the trial he adhered to this confession. Amplifying his confession he stated that when he returned to his house at evening time with his camels, which he wanted to tether in a kotha, he heard some human voice from inside the kotha which was chained. He pushed open the door forcibly. When he entered the kotha he found the deceased and his wife Mst. Jano committing adultery. Seized with grave and sudden provocation he attacked the deceased with his axe and killed him, while his wife ran away. There is no doubt whatsoever that the deceased has been murdered by the appellant, and his counsel, Mr. Abdul Latif Khan, has also frankly conceded, that his client is responsible for the death of the deceased, but he argues that his confession must be considered as a whole, and when so considered and accepted, his act would be covered by Exception I to section 300 P. P. C. and he would be guilty under section 304, P. P. C. The legal proposition put forward by the learned counsel is not quite correct and 1 consider it necessary to make it clear once more. The correct proposition of law as enunciated from time to time by differ ent High Courts is that if the only evidence in a case consists of the confession of an accused person and there is no other ocular or circumstantial evidence to connect him with the crime, the confession must be accepted or rejected as a whole. But if on the other hand, apart from the confession, there is evidence, A whether ocular or circumstantial, which contradicts a part of the confession, it is perfectly permissible to a Court to accept that part of the confession which is consistent with the evidence,[ and reject that part of the confession which is inconsistent with it. For example A is charged with the murder of B. A confesses that he killed B, but he did it after a murderous attack was made on him by the deceased. There is other evidence to shoe that the deceased was not armed and he never attacked the accused. In these circumstances the Court can accept the inculpatory portion of the confession, and reject the exculpatory portion as false. Reverting to the case in hand, the examination of the record reveals certain circumstances, which disprove the appellant's allegation, that he saw the deceased and his wife Mst. Jano committing adultery in the camel‑shed at evening time when he returned home. Mst. Zaino (P. W. 5), mother of the appellant, stated at the trial that she was asleep when at about midnight the appellant informed her that he killed the deceased, because he had seen him committing adultery with his wife. The same story has been repeated by Mst. Sakina (P. W. 4), daughter of the appellant. Accordingly to her she was ~ awakened from her sleep by her grandmother Mst. Zaino at midnight and was informed of the murder. The anxiety of these two witnesses to exculpate the appellant is quite evident from their statement. But the truth has unconciously escaped their lips when they stated that they learnt of the incident at midnight. It is signifi cant to point out here that the mother, wife and daughter of the appellant all live together in one house, and if the occurrence had taken place at evening time on the return of the appellant to his house with his camels in the manner related by him, the inmates of the house would have surely learnt of the murder at that very moment, having taken place inside the house, and not at midnight, when they were all asleep. It is also very hard to believe that the deceased, who was a guest, would have ventured to commit adultery with the mother -in‑law of his son at evening time, which is certainly an unusual hour for such a purpose, when other inmates of the house were present there, and presumably had not yet gone to sleep. The story that the deceased was committing adultery with Mst. Jano is also incredible when we take into account the fact, not disputed by the defence, that this Mst. Jano had stayed with the deceased in his house for about 10 nights and had returned home only a day or two before the murder. We agree with the learned Sessions Judge that if the deceased had any illicit connections with Mst. Jano, he must have enjoyed her in his own house during the 10 days she remained with him and there could not have been left any further sexual urge in him to force him to commit‑adultery with the woman at evening time, when the other occupants of the house were present. It is important to note here that the deceased was of about 55 years of age, while Mst. Jan o is 40 years old. Further, if the appellant had killed the deceased inside the kotha while committing adultery with his wife, one should have expected some blood there. The charpai, and the mat, on which adultery is alleged to have been committed, and the axe, the alleged weapon of offence, have been recovered from the house of the appellant, but no blood was found in any of them. The defence has been unable to explain the absence of blood on these articles, and as such the inference is inescapable, that the deceased was not murdered, when he was actually committing adultery, and not with the axe, which is supposed to have been used in the murder. According to the medical evidence the deceased was killed with a blunt weapon. If the appellant had killed the deceased with the axe, he in the normal course of human conduct must have used its sharp edge. It is very difficult to visualise that when the appellant saw the deceased committing adultery with his wife and he was deprived of self‑control, because of the grave and sudden provocation, he had still left in him sufficient discretion to use deliberately the blunt side of his axe. Loss of self‑control and presence of discretion seldom go together. It is against human conduct. There is also another strong circumstance which negatives the story of adultery. If the appellant had killed the deceased while he was actually committing adultery with his wife, there is no reason why he did not report the matter to some responsible person in the village or to the police. He rather behaved in an absolutely different manner. He secretly removed the dead body to his field at a distance of about one mile from his village, buried it there and kept quiet for a number of days. He did not reveal the true facts even to his son‑in‑law Adil, who had enquired from him about the disappearance of his father. It is obvious that the evidence and circumstances set out above belie that portion of the confession which relates to the allegations of adultery. There is no reason whatsoever to disbelieve this evidence which is furnished by the close relations of the appellant, and if it is accepted as true, the exculpatory portion of the confession must be rejected as false. Consequently for the reasons given above the appeal is dismissed. K. B. A. Appeal dismissed.