P L D 1964 (W (PLP)

6. The two points of importance for determination in this appeal are whether there is sufficient evidence on record to establish the appellant as being the assailant of deceased Misri and, secondly, whether if the first point is proved, his offence is one of murder or of culpable homicide not amounting to murder. We have heard Mr. Azizullah Shaikh the learned counsel appearing on behalf of the appellant and Mr. M. Haleem Assistant Advocate General at great length upon these two points. But, it seems to us that before setting out their arguments and considering the wealth of case‑law quoted by each of them it would be advisable to review briefly the evidence upon which the appellant has been convicted of murder and sentenced to death.

7. Now, this evidence consists of the statements of the three eye‑witnesses Abdul Rahman, Lal Bux and Din Mohammad P. Ws. 5, 6 and 7, who reside near the scene of offence, came rushing up on hearing the cries of deceased Misri and saw the appel lant belabouring him with the Killa in his hand. A glance at the sketch Exh. 4‑A prepared by the Tapedar Nazar Husain P. W. 1 shows that the houses of these eye‑witnesses are quite near to the spot where the attack upon the deceased Misri is said to have commenced. There is next the evidence of Mst. Naz Khatoon the wife of Shadman elder brother of the appellant. Her evidence is that on coming to learn of the arrival in the village of her Phuphat Misri she went and met him to enquire after her relations residing in the village of Bilawal Khan from where Misri had come. Whilst she was thus engaged in conversation with Misri the appellant came up armed with a Killa with which he started striking Misri. Misri tried to escape but the appellant pursued him and thus Mst. Naz Khatoon was enabled to run away and conceal herself in the house of her neighbours. Then, there is the report lodged by the appellant with the S. H. O. Ratodero Police Station that same evening his production of the blood‑stained Killa from his house the next day as per mashirnama Exh. 6‑C and his judicial confession to the Sub‑Judge and F. C. M. Ratodero Mr. Hyder Shah P. W. 9 on 9‑2‑1963. On the strength of this evidence the learned Sessions Judge convicted the appellant under section 302, P. P. C. and sentenced him to death.

8. The first contention of Mr. Azizullah Shaikh appearing on behalf of the appellant is that the whole trial of the appellant In this case is vitiated by reason of the fact that the Magistrate Mr. Hyder Shah P. W. 9 who recorded his judicial confession also held the committal proceedings. In support of this contention the learned counsel placed before us a ruling of Muhammad Shafi, J. in the case of Gulab Shah v. The Stare (P L D 1957 Pesh.128). It was held in this judgment that the trial of an accused person by a Magistrate who had recorded his confession is bad in law because the Magistrate having recorded the confession becomes "personally interested" within the meaning of section 556, Cr. P. C. and, is, therefore, disqualified from trying such a case. Of course, an obvious point of distinction between this reported case and the instant case is that in the reported case the Magistrate was a trial Magistrate trying the accused whereas in the present case he was only a committing Magistrate conducting committal proceedings. But, the learned counsel next referred us to the case of Ghulam Rasul v. The Crown (P L D 1951 F C 62), in which the then Federal Court viewed with disfavour the conduct of a Legal Remembrancer advising the State to file an acquittal appeal and subsequently on being appointed a Judge of the High Court sitting as a member of the Bench which heard that appeal. Their Lordships of the Federal Court held that the impropriety in the constitution of the Bench was not merely an irregularity but an illegality vitiating the decision of that Bench, which had, therefore, to be set aside.

9. On the other hand, Mr. Haleem the learned Assistant Advocate‑General has placed before us decided cases in which the expression "personally interested" has come in for judicial interpretation. In the matter of the petition of Ganeshi decided by a Full Bench of six Judges presided over by the then Chief Justice of the Allahabad High Court and reported in I L R 15 All. 19 it was held that the words "personally interested" cannot refer to any very remote interest in the matter and must refer to some particular and immediate personal interest in the case and in its A results. It must be a substantial interest giving rise to a real bias and not merely to a possibility of a bias. It was decided in this Full Bench case that a Magistrate in charge of the Excise and Opium Administration of a District is not "personally interested" in such cases and is, therefore, not precluded from exercis ing jurisdiction in respect of offences against the Excise and Opium Laws. In the case of Mohandas v. Emperor (A I R 1927 Bind 98), Rupchand Bilaram, A. J. C. after reviewing the English Law on the question reached the conclusion that the expression "personally interested" implies a direct personal pecuniary interest, however small, in the result of the case and where such interest is not pecuniary the disqualifying interest should have substantially the same effect so as to create a reasonable suspicion of bias. It was pointed out again in this case that :‑ "the mere possibility of a bias is, however, not enough." In the case of Ram Prasad and others v. The Emperor (A I R 1927 Oudh 369), it was held by a Division Bench that a committing Magistrate conducting identification proceedings and thereafter giving evidence before himself of these proceedings the subsequent trial is not vitiated. It was explained by their Lordships in this case that : "although it certainly would appear to be open to objection for a Magistrate to decide on the value of his own evidence but where the Magistrate, as here, had not to decide but solely to commit, there is nothing objectionable to the course adopted by him and his action has not vitiated the commital or trial" In ‑the case of Rameshwar Bhartia v. The State (AIR 1952 S C 405), it was stated that: "The question whether a Magistrate is personally interested of not is essentially to be decided on the facts in each case. Pecuniary interest, however small, will be a disqualification, but as regards other kinds of interest there is no measure o B standard except that it should be a substantial one, giving rise to a real bias or a reasonable apprehension on the part of the accused of such bias."

10. It seems to us that in a case such as this where the committal proceedings are held by a Magistrate in a small town in the Muffassil, the fact that that same Magistrate because of dearth of Magistrates has to perform a dual function such as recording a confession of an accused or conducting an identification parade or recording a dying declaration and at the same time conducting the committal proceedings in the same case would not prejudicially affect such committal proceedings. Indeed, in the case of Ghulam Rasool v. The Emperor (A I R 1945 Posh. 1), it was held that "there is nothing in section 556 which should debar a trying Magistrate from taking committal proceedings in a case in connection with which he has acted in his Magisterial capacity, to wit, he has either recorded the statement of the accused or conducted an identification parade or recorded a dying declaration, or done some other such thing." Very recently in Confirmation Case No. 18/1963 decided by us on 24‑10‑1963 the question of the admissibility of the confession rejected by the trial Judge arose for consideration. In our judgment in that case in which we relied upon the confession we referred to the case of Barindra Kumar Ghose and others v. The Emperor ((1909) I L R 37 Cal. 467), at pages 494‑498 where it was pointed out by Sir Lawrence Jenkins, C. J. that there is no legal objection to the same Magistrate recording the confession of the accused and then proceeding to hold committal proceedings against him. This very case went up in appeal before the Supreme Court and a Bench of that Court presided over by Chief Justice Cornelius dismissed the appeal in these words "We think the case is perfectly clear. There was full confession before the committing Court. Its subsequent retrac tion at theretial is without effect. There is circumstantial evidence also which is sufficient to exclude the possibility of the petitioners being innocent. We would dismiss .this Petition." It would appear from this short order of their Lordships of the Supreme Court that they saw nothing illegal or wrong in the same Magistrate recording the confession and then proceeding to hold committal proceedings against the same accused. Hence, in view C of this pronouncement of our own Supreme Court we feel that the trial against the appellant in this case has not been vitiated.

11. The next contention urged with vehemence before us by the learned counsel appearing on behalf of the appellant is that the murder in this case is a result of grave and sudden provocation and, therefore, the offence by reason of Exception 1 to section 300 P. P. C. is reduced to that of culpable homicide not amounting to murder. Developing this point Mr. Azizullah emphasised how in the month of Ramzan when on account of the fast the people in the Muffassil retire to sleep at noon, the deceased Misri came from his village of Bilawal Khan to the village of Biland Khan to have a secret Liaison with Mst. Naz Khatoon. Deceased Misri and Mst. Naz Khatoon were found by the appellant alone together at this time of the day in a Manah or shed and Mst. Naz Khatoon being the appellant's brother's wife the appellant was deprived of the power of self‑control by grave and sudden provocation and thus driven to attack the Karo as well as the Kari who, in the meanwhile, had escaped. Mr. Azizullah further pointed how the appcllant immediately after killing the deceased went to the Ratodero Police Station where he made a. clean breast of it all and did not even attempt to improve upon the actual facts by saying that the Karo and Kari were either in the act of sexual intercourse or were so seated as to suggest sexual intercourse. He relied for these submissions upon the case of Mewa v. The State (P L D 1958 Lah. 468), where a Bench composed of Abdul Aziz Khan and J. Ortcheson, JJ. held that the conviction of the appellants should be altered from section 302 to section 304(1), P: P. C. because he found his brother's wife deceased Mst. Durnaz who had preceded him to the field sitting in a cluster of kikar trees with her lover Dahu in circumstances which suggested that they had committed adultery. Mr. Azizullah also relied upon two more cases Muso v. The State (P L D 1960 Kar. 966) and Kamir v. The State (P L D 1963 Lah. 585).

12. The above arguments of the learned counsel appearing on behalf of the appellant were repelled by Mr. Haleem the Assistant Advocate‑General appearing on behalf of the State. He pointed out that barring the word of the appellant as contained in his F. I. R. as well as in his confession there is no evidence on record to show that a Manah or shed was anywhere near the place where the attack on Misri deceased commenced. Nor, have the three prosecution eye‑witnesses who saw the attack been asked whether there was any shed at that place or whether Mst. Naz Khatoon was at all seen by them there at that time. Mr. Haleem argued that Mst. Naz Khatoon was the first cousin of the deceased and that it would certainly be strange if first cousins were not to be permitted to converse with one another without at once being taken for Karo and Kari. Mr. Haleem further pointed out that the woman Mst. Naz Khatoon had been secured by the police only as late as the 11th February 1963 four days after the murder and that in her evidence she has stoutly denied that there was at all any liaison or intimacy between her and deceased Misri whom she regarded as her own brother. He relied upon the cases of Lal Khan v. The Emperor (A I R 1948 Lah. 43) and Jadeja Danubha v. The State (A I R 1952 Saur. 3).

13. We have carefully considered this aspect of the case, namely, as to whether the offence of the appellant falls under section 304 or under section 302, P. P. C. It is apparent to us that Mr. Azizullah in urging this point of grave and sudden provocation was up against the difficulty that in the trial Court this line of defence had not been taken and hence no material placed on record in support of it. It has struck us as somewhat strange that the appellant who at first took this line of defence both in his F. I. R. as well as in his confessional statement; yet fn his two statements in the two Courts below has abandoned this defence and has denied his presence at the scene at all. Neverthe less, despite these difficulties in the way of Mr. Azizullah we heard him at great length on this question and we have ourselves examined the record with great care to find whether there is any material in support of this contention of Mr. Azizullah. We have reached the conclusion that the utmost that can be found in support of this version of the appellant is that Mst. Naz Khatoon went out that afternoon in the month of Ramzan and met deceased Misri and perhaps was even seen by the appellant talking to him. But, these bare facts cannot serve to entitle the appellant to the benefit of Exception 1 to section 300, P. P. C. In the case reported in A I R 1952 Saur. 3 the accused who was charged with the murder of his wife pleaded grave and sudden provocation The defence was that there were rumours regarding the bad character of the wife and when he returned home on the night of the occurrence he saw a person in the `Osri' of his house and going away. On account of this provocation he dealt numerous `Dharya' blows to his wife and killed her. It was held that the mere presence of a stranger in the `Osri' would not constitute either grave or sudden provocation; nor would it be such provocation as to deprive the appellant of his self‑control. In the Lahore case reported in A I R 1948 Lah. 43 which is closely parallel to the facts of the present case, although Rehana deceased was seen in the jungle sitting by Mst. Shado before he was attacked it was held by the Bench presided over by Munir, J. as he then was that "this fact, if true, may not amount to grave and sudden provocation so as to reduce the offence from murder to culpable homicide, yet, it would, 9n our opinion, be a sufficient justifica tion to withhold the death sentence in this case."

14. In the result, then, we feel that the appellant has rightly been convicted of the murder of deceased Misri. However, having regard to the facts of this case and the conduct of Mst. Naz Khatoon in leaving her house on the afternoon of a day in the month of Ramzan in order to meet deceased Misri and being seen along with him by the appellant, we would, as held by E Munir and Marten, JJ. in A I R 1948 Lah. 43, reduce the sentence imposed upon the appellant from death to that of transportation for life. With this modification in the sentence, this appeal stands dismissed. K. B. A. Appeal dismissed with certain modification.