P L D 1961 (W (PLP)

G. B. CONSTANTINE, J.‑-The appellant Siddiq son of Jumo Wahlro has been convicted under section 302, P.P.C by the learned Sessions Judge, Hyderabad '(Mr. Feroze Nana Ghulamally) in disagreement with the three assessors. The proceedings are before us by way of appeal and confirmation of the sentence of death. The prosecution case is that before sunset time on 11‑7‑1960 the appellant murdered his wife Fatima by causing her five injuries on the head, chest and arm (four being individually sufficient to cause death in the ordinary course of nature) with his spade cultivation. P. W. Jaffar Wahlro saw the blows but did not dare to arrest the appellant. P. W. Bidu Wahlro, a resident of the village, P. W. Kangal Sangu, a grazier passing through, and later the first informant Kassim Wahlro were attracted by a commotion in the village. Others also, in cluding the defence witness Hamzo, were also present. Muhammad brother of the appellant Siddiq, said that Siddiq had killed his wife with a spade, and Siddiq, who was carrying a spade, also said he had done so and was going to the outpost at Belo. Accordingly Siddiq followed by Kassim, Kangal, Bidu and Hamzo went to the outpost, about 2 miles away; On the way Muhammad Samo, a shopkeeper of Belo, having heard of trouble in the Wahlro's village, met Siddiq carrying a spade, and on inquiry Siddiq told him that he had killed Fatima because he suspected, she had helped Soni (his daughter by a previous wife married to one Sumaro to elope with one Achar. Shortly after this, witness, Muhammad Samo, met the villagers following Siddiq, and went with them to the outpost. At the outpost, Siddiq was arrested, and mashirnamas of the seizure of his shirt and spade were made by Mounted Constable Ramzan temporarily in charge. He gave a chit Exh. 5 to Kassim addressed to the Station House officer, Sujawal (15 miles away) in the following terms: "A murder has been committed in Valras village within the jurisdiction of Belo and the accused having been arrested im mediately, the complainant is being sent to the Sujawal Police Station. Enquiries may be made from him and the report be registered." Kassim's statement was recorded by the S. H. O., Abdul Sattar, as the first information, and this gives the prosecution case. The motive stated is that Soni had once before eloped with Achar, and the appellant, her father, had got her returned through the intervention of K. B. Haji Fazal Muhammad Khan. No mention is made of the eye‑witness Jaffer who from fear and to avoid trouble had made a detour to a neighbouring village; he was not examined by the police till the 12th, the next day. The accused in the Committal Court contented himself with denying killing his wife, he had gone to Belo to report, but no shirt or spade were secured from him. Son: had eloped, but he did not suspect Fatima. His brother, Aru, had enticed away Mst. Hawa, the wife of Juman Ranto and sister of Jumo Ranto who is married to a niece of Kassim. Hence Kassim, a nekmard and the prosecution witnesses disposed falsely. In the Sessions Court, defence witnesses were produced, Amir Bux (the son of the appellant), Fakir Muhammad and Hamzo. Amir Bux deposed to a case, not foreshadowed by any cross -examination, that Achar and other Rantos came to the field and started to drag away Soni, and her step‑mother intervening was hacked to death by Achar. The witness ran to his father working about 2 call's distance away, and his father left to report at Belo. Fakir Muhammad Sumro states, he met the appellant without spade or shirt going to Belo, and was told he was on his way to report the abduction of Soni and the murder of his wife by Achar and other Rantos. The witness lives in the village of Haji Fazil Sumro, who is the zamindar of the appellant. Hamzo Wahlro, a step‑brother of the P. W. Bidu, denies that he ever met Kassim and the others or that appellant made any confession to them. Appellant is his cousin, while Kassim is his uncle. The appellant himself in the Sessions Court gave the same version as his son. He met Fakir Muhammad on the way to Belo, but not Muhammad Samo, though he and other villagers followed him to the outpost. All the assessors considered the prosecution case false. Two assessors thought Achar and others had committed the murder the first assessor stultified himself by saying that while Amir Bttx was a trathful witness, he did not believe Achar had murdered Fatima. The learned Sessions Judge commented that as usual they had shirked responsibility and their opinion was worthless. Mr. Murtaza has applied that these remarks should be expunged. In so far as the learned Sessions Judge has said "as usual" we think he goes too far, but he probably meant no more than "as often." and while we deprecate remarks which may be construed as a criticism of the Legislature or as implying that the opinions of assessors should normally be disregarded, this is no ground to expunge the remarks. The learned Judge is entitled to say as regards the assessors who heard the case that he thinks the perversity of their opinion shows a shirking of responsibility and in so far as the particular assessors might be aggrieved on this head the appellant and his advocate do not present them and have no standing. We agree with the learned Sessions Judge that this is a plan case. It is common ground that the appellant went to Belo outpost and that the prosecution witnesses also presented themselves there, including Muhammad Samo. The chit signed by Constable Ramzan shews that he was arrested then and there; it is true, as Mr. Murtuza points out, that no name is mentioned, but none-- not even Mr. Murtuza‑-has suggested that anyone but the appellant was so arrested. We disbelieve the accused's story that the S. H. O. sided with his enemies and the implication that not only the chit, but the mashirnamas securing the shirt and the spade were also forgeries. The first information giving the prosecution story was promptly lodged by Kassim, and the enmity alleged against Kassim, Bidu and Jafar all Wahlors like the appellant and belonging to the same village is too remote to justify any inference that they would aside with Achar and falsely charge the appellant. Mst Hawa alleged to have been enticed by the appellant's brother, is a distant con nection, and the only prosecution witnesses to whom it was put Kassim and Bidu, deny the elopement. The other ground of enmity alleged is that because the appellant when he got Soni returned after her first elopement with Achar refused to let her go to her husband Sumar, the other Wahlros were angry with him and drove him out of the village for sometime: the witnesses deny this and their denial appears probable. This case was not put to Saleh Muhammad, the Kamdar of K. B. Lighari, who was asked in cross‑examination about the first recovery by his master of Soni. Kangal and Muhammad Samo are not Wahlros, and no enmity against the appellant is alleged. They admittedly went to the outpost, and thus their earlier connection with the case is established. We consider, therefore, that the extra‑judicial confessions were made to Kassim, Bidu, Kangal and Muhammad. The eye‑witness Jaffar was examined the next day by their police. The learned Judge has accepted him as a witness of truth: his conduct in going to another village is equivocal, but his explanation that he feared the appellant is not improbable, and his, explanation how he came to be near enough is again perfectly possible. We see no reason to reject the learned Judge's appreciation of his evidence, except the contrary opinion of the assessors, and that opinion which considers Achar responsible is clearly wrong. As to the defence version, we agree that a woman should, receive so many injuries merely because she resisted her step daughter's abduction is most improbable, whereas the anger which this number denotes is ascribable to the appellant according to the prosecution version. The defence version is falsified by the appellant's immediate treatment by the police at Belo outpost. It appears that the appellant's Zamindar has secured the defence evidence of Fakir Muhammad Sumro and Hamzo. We see no reason to reduce the sentence. For the above reasons, we dismiss the appeal, maintain the conviction of the appellant under section 302, P. P. C, and confirm the sentence of death. S. B. Appeal dismissed.