P L D 1959 (W (PLP)

SHABIR AHMAD, J.--‑Jamalan, Gulsher, Ahmad, Mst. Durnaz wife of Jamalan and Mst. Kauri wife of Shahu were tried for an offence of murder but were acquitted by an order passed ‑on the 6th of August 1957 by Mr. M. M. Aslam Khan, the then Sessions Judge, Dera Ghazi Khan. Against the order of acquittal the Provincial Government presented an appeal to this Court under section 417 of the Code of Criminal. Procedure against all the acquitted accused. The appeal came up for a preliminary hearing on the 4th of March 1958 before two learned Judges of this Court who, while dismissing the appeal against the other accused, issued notice to Jamalan to show cause why his acquittal be not set aside.

2. The case related to the death of Mst. Gamni, wife of Habib. Habib, the husband of Mst. Gamni, is a brother of Jamalan, respondent to this appeal, and the prosecution case was that the deceased M.st. Gamni was done to death by the three male accused who were abetted by the two female accused. The motive was stated to be that Mst. Gamni was suspected by her relatives of sexual laxity. According to the prosecution Mst. Gamni was done to death at about 10 a.m. on the 31st of October 1956 in a maize field situated in village Matwah in the district of Dera Ghazi Khan. The report of the occurrence was made the same day at 4 p.m. by Ghazi alias Gaji at Police Station Rojhan, which is at a distance of about eight miles from the scene of occurrence. The report was based on an extrajudicial confession alleged to have been made by Jamalan, the respondent, to Ghazi. According to the prosecution, Jamalan had killed his sister‑in‑law while Ahmad and Gulsher, the other two male accused, held her down. No mention was made in the first information report about any part having been taken in the incident .by the two female accused.

3. During the course of investigation by the police, Jamalan respondent made a confession which was recorded by Mr. Ikram Ullah Qureshi, who was those days a Magistrate of the first class at Rojhan. According to this judicial confession recorded under section 164 of the Code of Criminal Procedure Jamalan alone had killed Mst. Gamni. In his confession to the Magistrate Jamalan said that he was passing a maize field when he heard voices coming from there. He entered the field and found that Mst. Gamni deceased and Roshan were sitting in the field. He had a kulhari in his hand with which he struck Mst. Gamni, and the handle of the weapon broke. He tried to catch Roshan but could not because he attacked him with the kulhari he had in his hand and escaped. Soon after a brother of Roshan, who appeared to have concealed himself somewhere near the place where Roshan was sitting with the deceased, attacked him with a kulhari. He received injuries at the hands of the brother of Roshan. Mst. Gamni died on the spot and he himself with the broken kulhari in his hand went to the police station and made a report.

4. After investigation the police sent up the five acquitted accused to be tried for the murder of Mst. Gamni. The final report submitted by the police under section 173 of the Code of Criminal Procedure was to the effect that Mst. Gamni had been killed by the three mate accused who were abetted by the two female accused. The commitment proceedings were conducted by Mr. M. A. Bari, Magistrate 1st Class, Rajanpur, who framed a charge under section 302/34 of the Pakistan Penal Code against the three male accused and a charge under section 302/114 of the Pakistan Penal Code against the two female accused. All the five accused were jointly tried by Mr. M. M. Aslam Khan who, as already mentioned, by his order dated the 6th of August 1957, acquitted all the five accused.

5. At the trial the prosecution produced Aru (P. W. 10) as the solitary eye‑witness of the occurrence. This witness deposed that on the day of the occurrence he was on his way from Matwah to Rojhan arid when he reached the maize field of Gulsher accused he heard a hue and cry. He went towards the place where the noise was coming from and saw that Jamalan accused was strangulating Mst. Gamni while Ahmad and Gulsher accused were dragging her. Maula Bakhsh and Khadim Husain arrived there and requested the witness to rescue Mst. Gamni. He asked Jamalan why Mst. Gamni was being killed and Jamalan replied that it was because of her adultery. . The witness added that the two female accused, namely, Mo. Durnaz and Mst. Kauri, were inciting the three male accused to‑ kill Mst. Gamni. Mst. Gamni was taken into another maize field where she was done to death with hatchet blows. Jamalan accused asked him to lodge a report at the police station, adding that if he did not do so, he himself would have to go to the police station. The witness deposed that he did not make a report to the police and went his own way. The witness was asked only two questions in cross‑examination. The first was whether it was not correct that when he saw Jamalan and his companions striking Mst. Gamni, Jamalan bore injuries on his person and the witness replied in the affirmative. He was asked if he knew who had caused the injuries to Jamalan and he replied in the negative. Maula Bakhsh who was mentioned in the state ment of Aru (P. W. 10) was probably a ten year old son of Mst. Gamni. This boy was produced as the eleventh witness for the prosecution and when asked: whether his mother was alive or dead, he replied that she was dead, but could not say what led to her death. Khadim Husain, the other person mentioned by Aru in his deposition in Court, was not examined as a witness and it is not known who that person was. Besides the direct evidence of Aru ' detailed above, the prosecution produced evidence about the extrajudicial confession of Jamalan made to Ghazi (P. W. 8) on which the first information report was based and with regard to the confession of Jamalan recorded under section 164 of the Code of Criminal Procedure by Mr. Ikram Ullah Qureshi, Magist rate Ist Class.

6. When questioned to explain the evidence against them, all the accused denied knowledge of the occurrence Jamalan when questioned by the Committing Magistrate to explain the four minor incised injuries and a bruise found on his person by Dr. M. Sleem Bajwa, Medical Officer, Rajanpur, on the 3rd of November 1956 replied that he will give his explanation to the Sessions Judge. When questioned by the learned trial Judge with regard to his confession made before Mr. Ikram Ullah Qureshi, Magistrate, Jamalan replied that he had been forced by the Sub‑Inspector of Police who investigated the case to make the confession which was neither true nor voluntary. With regard to the extra‑judicial confession alleged to have been made by Jamalan to Ghazi, he said both in the Committing Magistrate's Court and before the learned trial Judge that he had made no such confession. No evidence was produced in defence.

7. The post‑mortem examination on the dead body of Mst. Gamni was conducted by Dr. M. Saleem Bajwa, Medical Officer, Rajanpur, at 11 a.m. on the 2nd of November 1956. According to the deposition of this doctor, who appeared as the first witness for the prosecution at the trial, there was a glistening ligature mark on the neck between the chin and the thyroid carti lage, 4" long, and an incised wound on the right side of the skull, 6 " x 1 ", brain deep, which started from the back of the right ear and went slightly obliquely right up to interior fontanelle as well as a lacerated wound, " x ", skin deep, on the forehead, in the middle, obliquely, bending towards the right eye. The doctor added that the right temporal and the right parietal bones were cut under the incised injury on the skull and a chip of the frontal bone had also been cut off and that the right cerebral hemisphere with a piece of cerebellum had been completely cut off. The doctor expressed the view that the extensive injury to the brain and the strangulation had caused the death of the victim and that the injury to the skull and the brain was sufficient in the ordinary course of nature to cause death.

8. One of the reasons give by the learned trial Judge for acquitting the accused was that the prosecution had, according to him, led evidence to support three versions of the occurrence, the first being that contained in the extrajudiciat confession of Jamalan on which the first information report was based, the second being the judicial confession to Jamalan recorded by Mr. Ikram Ullah Qureshi, Magistrate 1st Class, under section 164 of the Code of Criminal Procedure and the third the statement of Aru (P. W. 10) who gave ocular evidence about the occurrence. The learned trial Judge said in his judgment that it was settled law that if there was more than one version of the occurrence, they cannot be tried at a joint trial of one or more sets of persons and in this connection relied on the remarks made by a Division Bench of the Lahore High Court in AM and others v. The Crown (P L D 1954 Lah. 183). The learned trial Judge also half‑heartedly expressed the view that the evidence relied upon by the prosecution was not entitled to any credence. The confession made by Jamalan respondent before Mr. Ikram Ullah Qureshi; Magistrate 1st Class, was, for some reasons which I confess I have not been able to discover, held by the learned trial Judge to be worthless and irrelevant besides being contradictory to the story of the prosecution as given in the charges framed against the five accused.

9. In coming to his conclusion that different versions before the Court could not form the basis of one trial, the learned trial Judge appears to have had in view the provisions of section 239 of the Code of Criminal Procedure which he mentioned. It appears to have escaped his notice that section 239 of the Code of Criminal Procedure was meant to apply to cases of the type of which the present one was. Section 239 of the Code permits joint trial of persons against whom the accusation is that they had committed the same offence in the course of the same transaction and also of persons accused of abetment of that offence. The final report of the police under section 173 of the Code of Criminal Procedure, as mentioned already, was to the effect that the three male accused had caused the death of Mst. 6amni and at the time of the incident the two female accused were egging them on to kill the victim. This kind of allegation clearly attracts clause (b) of section 239 of the Code of Criminal Procedure, and it is obvious that the reference of the learned trial Judge to section 239 of the Code of Criminal Procedure was entirely misplaced. He placed his reliance on the decision in Alli v. The Crown, but failed to notice that the facts of that case were so materially different from the facts of the present one that that case had absolutely no relevancy. The facts of the case relied upon by the learned trial Judge were that while the first information report made to the police said that a set of persons mentioned therein had committed a murder, the police, after investigation, sent their final report to the effect that some other persons, none of whom had been named in the first infor mation report, had committed the murder. The two sets of accused were tried at the same trial and it was in these circumstances that a Division Bench of the Lahore High Court held that the trial was not permitted by the provisions of law contained in section 239 of the Code of Criminal Procedure. In the present case the prose cution case has never been that anybody other than the three male accused was responsible for causing toe death of Mst. Gamni. It is true that the first information report made no mention of the two female accused being liable for the incident, but that omission is due to such obvious causes that it should have been overlooked altogether. The first information report was based on the extra judicial confession alleged to have been made by Jamalan to Ghazi (P. W. 8) and even if the two female accused had taken the part ascribed to theta, Jamalan would be unwilling to expose them to the risk of being tried for an offence.

9. The remarks of the learned trial Judge that the prosecu tion has put forward three versions is beyond my comprehension. The version of the prosecution, as is clear from the final report made by the police under section 173 of the Code of Criminal Procedure, was that all the five accused were liable for the murder, the three male accused as the actual perpetrators of the crime and the two female accused as their abettors. The mere fact that evidence was led to show that in his extrajudicial confession C Jamalan bad accused himself and his two male co‑accused and in his judicial confession had accused himself alone of the murder did not amount to the prosecution supporting three different versions of the occurrence. It is obvious that the prosecution case was deposed to by Ara (P. W. 10) whose statement, if accepted, would make all the five accused liable for the death of Mst. Gamni and the extrajudicial confession and the confession recorded by Mr. Ikram Ullah Qureshi, Magistrate, were relied upon by the prosecution to corroborate Ara (P. W. 10) in some of the details. If the view of the learned trial Judge that in the present case the prosecution has supported three versions of the incident were correct, the majority of serious cases will suffer from the defect that the prosecution supported two versions of the incident because in cases tried by the Court of Sessions and the High Court the prosecutor has by reason of section 287 of the Code of Criminal Procedure to tender the statement of the accused made in the Court of the Committing Magistrate and that statement has to be read as evidence in the case and as in the vast majority of cases the accused do not confess guilt in Court, the prosecution could .be accused of having in Court supported two versions of the incident. Cases of the present type are not as uncommon or defective as the learned trial Judge thought and I have no doubt in my mind that many cases of the present type dealt with by him have escaped the criticism to which the learned trial Judge thought fit to subject the present one. The prosecution case, if looked at properly, was that all the five accused were liable for the murder of Mst. Gamni and to support that case the prosecution relied upon the ocular evidence given by Ara (P. W. 10) with regard to all the accused upon the extrajudicial confession of Jamalan and the statement of Aru with regard to the three male accused and upon the judicial confession of Jamalan and the statement of Ara with regard to Jamalan himself. This was an entirely permissible way of leading evidence and could not .be condemned as an attempt on the part of the prosecution to put forward three versions of the same incident. In view of what I have said, I have no hesitation in holding that the prosecution case could not be thrown out on what the learned o trial Judge described as an attempt on the part of the prosecution to support three versions of the incident.

10. I now pass on to the consideration of the question whether or not the appeal of the Provincial Government against Jamalan respondent merits acceptance. The evidence against Jamalan is as follows:‑ (a) Eyewitness account of the occurrence given by Ara (P. W. 10). (b) The extrajudicial confession by Jamalan to Ghazi (P. W. 8) in which Jamalan not only implicated himself but the two other male accused. (c) The judicial confession made by Jamalan on the 2nd of November 1956 before Mr. Ikram Ullah Qureshi, Magistrate 1st Class, Rojhan. At the time when Ghazi made his report Jamalan was with him and was soon after taken into custody. There is not even a suggestion on the record that Ghazi (P. W. 8) had any motive to falsely implicate Jamalan. No more than two questions were asked from Ghazi (P. W. 8) in cross‑examination and neither of them was directed to show either that the version given by him was false or that he had made a false statement either to help the man who was really guilty or to wreak vengeance on Jamalan for something that he may have done to annoy him. In these circumstances I do not see why the statement of Ghazi (P. W. 8), which was incorporated in the first information report, should not be accepted as correct.

11. The next piece of evidence against Jamalan in point of time is his judicial confession. In this confession he admitted that it was at his hands that Mst. Gamni received the injuries that killed her. 1t is true that in the confession before the Magistrate Jamalan tried to set up a case which, if believed, would made his offence a less serious one than murder, but after considering the entire material on the record, I have arrived at the conclusion that the exculpatory part of the judicial confession made by Jamalan is false. It must be remembered that the judicial confession was made a couple of days after the incident and it appears that by the time he went before the Magistrate to have his confession recorded, Jamalan had been tortured with regard to his confession and it is for that reason that the confession exculpated the other accused entirely and exculpated himself to a very great extent. The learned counsel for the respondent urged that the fact that Jamalan was found to bear some injuries on his person when Aru (P. W. 10) saw him would suggest that the judicial confession was true in so far as it alleged that a brother of Roshan, the paramour of Mst. Gamni, had caused injuries to Jamalan. The absence of mention of Roshan and his brother from the extra judicial confession which was incorporated in the first information report made in the presence of Jamalan proves conclusively that the exculpatory part of the judicial confession is incorrect. I might, however, mention that the presence of injuries on the person of Jamalan is not as inexplicable on a theory other than that spon sored by Jamalan as the learned counsel for Jamalan would have one believe. It was mentioned in the first information report that in his extrajudicial confession Jamalan bad said that Mst. Gamni had gone to the maize field where he and his male co‑accused had followed her after some time and it may be safely presumed that she had gone there to cut maize and had a sickle with her. In these circumstances, it is by no means improbable that when attacked she tried to save herself and as Jamalan was the most active of her assailants, he received at her hands the very minor incised injuries which he wanted to use as proof of his belated assertion in his confession before the Magistrate on the 2nd November 1956 that he had been attacked. No doubt there is no direct evidence to the effect that the injuries found on the person of Jamalan had been given to him by Mst. Gamni but as the persons who were present at the time the injuries were probably given by Mst. Gamni are all favourably disposed towards Jamalan, absence of evidence on this point is not at all surprising. The presence of injuries on the person of Jamalan accused cannot in the face of the evidence on the record be taken to be proof of the version given by him in his judicial confession which, I might mention, was not adhered to even by him when he made his state ment in Court.

12. The statement of Aru (P. W. 10), the only eyewitness of the occurrence, may now be taken up. The learned counsel for Jamalan urged that the fact that Aru did not go to the police station to make a report would prove that he had not seen the occurrence which he claimed to have done. The learned counsel said that Aru was related to Mst. Gamni deceased and would not have failed to go to the police station if, as claimed by him, he had seen the occurrence. As to whether Aru (P. W. 10) is related to Mst. Gamni, the only material on the‑record is the statement off' Jamalan accused in the Court of Session, wherein he said that Aru (P. W. 10) who was .the paternal cousin of Mst. Gamni had him falsely implicated. No evidence was led by Jamalan accused with regard to the relationship which, he said, Aru had with the deceased, and it is of great significance that neither to Aru nor to any of the other witnesses for the prosecution was it even suggested that Aru had any relationship with the deceased. The first infor mation report makes mention of Aru as the eye‑witness which fact would, show that he had seen the occurrence. The learned counsel for Jamalan urged that even if it be held that Aru was an eye witness, the fact that he did not approach the police would make his evidence tainted and he could not but be considered an accom plice. All that Aru had seen was that a woman suspected of having lovers was being killed. Experience has shown that amongst the illiterate rural inhabitants of the Dera Ghazi Khan District a woman is looked upon as a chattel and cases have occurred in which an entirely innocent woman has been killed so that the muserer, who has killed a male enemy of his, may be in a position to plead that he had found the two persons he had killed in such intimate intercourse that he was gravely and suddenly provoked and had no option but to resort to the annihilation of the wrong doers. The plea of grave and sudden provocation kala kalf as it is called in the Dera Ghazi Khan District is so common in the district that if it were true in all cases in which it is set up, it would stand proved that illicit lovers of the District were very unlucky indeed because their promiscuous connections get dis covered by persons who they had been taking all precautions to ensure should not discover them. In almost every case in which a woman has been killed the plea on behalf of the accused is that it was a case of killing on grave and sudden provocation, and records of cases decided by Courts would show that in some at least of these cases it has been proved to the hilt that the plea was entirely baseless. Cases are on record in which a man and a woman were killed at some distance from each other but their dead bodies were placed together in order to plead that it was a case of killing on grave and sudden provocation. Aru (P. W. 10) is not proved to have any motive to give false evidence against Jamalan, and the fact that he did not go to the police to make a report, which omission is explained in the first information report wherein it is said that Aru had told Jamalan that he should himself go to the police station to make the report, cannot be looked at as seriously as it would be in an ordinary case. According to the extrajudicial confession Aru (P. W. 10) had been told by Jamalan that Mst. Gamni was being done to death because she was bringing a bad name to the family of her husband and Aru's omission to go to the police to make report would not be unnatural. Technically, however, Aru is no better than an accomplice, and prudence requires that his statement should be corroborated in material details before it can form the basis of the conviction of the accused. In the present case abundant corroboration of a very satisfactory type is provided by the extrajudicial and judicial confessions of Jamalan accused. The three pieces of evidence when taken together establish beyond all reasonable doubt that the death of Mst. Gamni resulted from an attack on her in which Jamalan took a prominent part.

13. This brings me to the question what offence is established against Jamalan. In the extrajudicial confession there is no indica tion that it was on grave and sudden' provocation that Jamalan killed his sister‑in‑law, Mst. Gamni. In the judicial confession there is some indication of grave and sudden provocation, but, as I have already indicated, the exculpatory part of the judicial confession cannot be accepted. The learned counsel for Jamalan urged that as the confession was being acted upon its exculpatory part could not be kept out of consideration. This contention has no force. It is only in cases in which the conviction is to be based on a confession alone that prudence requires that the exculpatory part p of the confession should not be excluded, but if there is evidence to show that the exculpatory part of the confession is either partly or wholly false, that part which is proved to be false can certainly be kept out of consideration. The statement of Aru, which I see no reason to doubt, proves that it was a case of a premediated attack to do away with a female relative who was suspected of sexual laxity by which she was bringing the name of the family into disgrace. None of the Exceptions can reasonably be applied to the case and I would hold that the person or persons who caused to Mst. Gamni the injuries which were found at the time of the post‑mortem examination on her dead body intended to cause her death. The case clearly falls under section 302 of the Pakistan Penal Code and I would, therefore, accept the Government appeal against Jamalan and convict him under section 302 of the Pakistan Penal Code. I might add that if the case of the other accused were before me, it is by no means improbable that I would have convicted them for the murder of Mst. Gamni, but as the Bench which heard the appeal at the preliminary hearing did not think fit to issue a notice to the other accused, I need say nothing more about them.

14. This brings me to the question of the sentence. The offence was a heinous one, because an unarmed woman was done to death by a man who was heavily armed. The o ther circum stances of the case, however, cannot be overlooked: It is clear that what actuated Jamalan was the actual or suspected bad charac ter of Mst. Gamni, who was his sister‑in‑law. It is true that the victim was not Jamalan's own wife but that of his brother, but in the society of which Jamalan is. a member, it is generally believed that a woman who sleeps with a man who is not her husband disgraces all members of the family. Considering all these circumstances and the fact that the offence was committed about two years and a half ago, I do not think that the extreme penalty should be exacted from Jamalan and consequently I sentence him to transportation for life. I agree‑--MASUD AHMAD, J. K. B. A Appeal accepted.