2006 PLP 3128(2) (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts leading to the present appeal are that on 16-10-1992 the complainant A.S.-I., Wali Muhammad along with P.Ws. HC Muhammad Ilyas, PC Roshan Ali, HC Muhammad Murad were on patrol duty. At about 6-00 p.m. they reached near the house of appellant situated in Deh Katlo Pitafi, Taluka Mirpur. Mathelo, where they heard cries coming from inside the house of the appellant. They went there and found the appellant throwing his wife Mst. Aisha on the ground and caused hatchet blow on her neck with the result that she died on the spot. The appellant tried to run but he was apprehended. The complainant secured the blood stained hatchet from his possession. The appellant and the property were brought to the police post Dad Leghari where the complainant lodged the report at 7-25 p.m. A copy of the Roznamcha of Police Post was sent to Police Station, Mirpur Mathelo where the F.I.R. was registered at 9-40 p.m. on the next day, the appellant was produced before the Magistrate where the Magistrate recorded his confession. After completing the investigation, the appellant was challaned in the Court. The learned IIIrd Additional Sessions Judge, Mirpur Mathelo tried and convicted the appellant for offence punishable under section 302(c), P.P.C. and sentenced him to suffer imprisonment for 25 years and fine of Rs. two lacs or in default thereof to suffer R.I. for two years with benefit of section 382-B, Cr.P.C. The learned trial Judge further ordered that if the fine was recovered then the same be paid to the legal heirs of deceased under the impugned judgment dated 26-4-2004. I have heard the appellant in person, Assistant Advocate General for the State and perused the record of this case very carefully. After going through the evidence with the assistance of learned Asstt. A.-G., I found that the case rests upon three pieces of evidence;

1. Ocular testimony,

2. Confession and

3. Recovery. In order to prove the ocular testimony the prosecution examined three witnesses namely P.W.1, HC Ilyas Khan, P.W.2, PC Roshan Ali and P.W.6, HC, Muhammad Murad. The complainant A.S.-I., Wall Muhammad was not examined as he had died. The perusal of the evidence of all the three eye-witnesses shows that on the day of incident, during patrolling at 6-00 p.m: when they reached near the house of appellant in village Choohar Pitafi, they heard cries coming from inside the house. They went there and found appellant throwing his wife deceased Mst. Aisha on the ground and then he caused hatchet (Kulhara) injury on her neck and she died there. The appellant tried to run but he was apprehended and bloodstained hatchet was secured from his possession. All the three witnesses were subjected to cross-examination but they successfully passed such test as there are no material 16 contradictions, discrepancies or omissions in their statements. It further appears that the defence counsel did not seriously challenged the incident itself as no cross-examination was conducted denying the fact that the appellant did not cause hatchet injury to the deceased. All the three prosecution witnesses are police officials. They have no enmity whatsoever with the appellant nor any enmity was suggested. Therefore, they had no reason to implicate the appellant in this heinous offence. From their evidence it is clear that the appellant was caught red-handed at the place of incident at the time of commission of murder of his wife. As regards the confession, the prosecution examined Magistrate P.W.4, Gulsher. His evidence reveals that after completing all the legal formalities, he recorded the confession of the appellant. The confession has been produced as Exh.14. A perusal of confession reveals that on 16-10-1992 at about 6-00 p.m. the appellant returned to his house where he found his four children present but they were weeping for their mother as she was not present in the house. He was standing in the courtyard of his house when he saw the deceased and one Niaz Hussain Pitafi coming out together from the room of adjoining house of Niaz Hussain. After seeing him, Niaz Hussain ran away whereas his wife came inside the house, then due to Ghairat he took hatchet, pushed her on the ground and then caused hatchet injury on her neck with the result that she died there. In the meanwhile police arrived there and they arrested and secured bloodstained hatchet from his possession. The above confession has been fully supported or corroborated by the ocular testimony as discussed in the earlier part of the judgment. Thus the confession has been corroborated on material particulars. It is well-settled principle of law that a retracted confession can be made the basis for conviction if the same is found to be voluntary and true without any corroboration but as a rule of procedure and prudence, the same is required to be corroborated on material particulars. Reliance is placed on the case of Haq Nawaz v. State 2000 SCMR

785. As such the prosecution has proved the confession which is sufficient to convict the appellant. As regards the recovery of blood stained hatchet, the prosecution examined three witnesses viz. P.Ws.1, 2 and

6. Their evidence is already mentioned in the earlier part of the judgment. They specifically stated that after apprehending the appellant bloodstained hatchet was secured from his possession. The said hatchet was sent to Chemical Analyser, who reported that the hatchet was stained with human blood. As such the recovery has also been proved which further corroborates the confessional statement of the appellant. After considering the material available on the record, I am of the considered view that the prosecution has proved the case against the appellant beyond any reasonable doubt. Above are the reasons of my short order dated 15-8-2006 by which I had dismissed the appeal. H.B.T./M-122/K Appeal dismissed.