1983 P Cr (PLP)

Appellant above‑named, being aggrieved by the judgment dated 19th December, 1979, of the learned Additional Sessions Judge, Nawabshah, in Sessions Case No. 92/77, by which appellant has been convicted under section 302, P. P. C. and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000 or in default to suffer further R. I. for one year under section 302, P. P. C. and has been sentenced to suffer R. I. for 10 years and a fine of Rs. 2,000 or in default to suffer further R. I. for one year under section 307, P. P. C. has preferred the above appeal, on the following facts and grounds.

2. Complainant Abdul Hafeez filed the F. I. R. at P. P. Bhiria Road as under :‑ The complaint is that I run the tailoring shop in the 2 of Bhiria Road and after doing my job, I go back to my house.' My cousin Ali Nawaz, his brother‑in‑law Muhammad Arif and Ghulam Muhammad have got their house within the same enclosure. Since about 13‑14 years, Muhammad Arif and Ghulam Muhammad had suspected that Mst. Azmat W/o Ghulam Muhammad was on illicit terms with Ali Nawaz and, therefore, Ali Nawaz took oath before them, Today evening, I returned to my house after doing my job and then I went to Wadero Mehrab Khan at his Otaq for work. At about 9 a.m. I was going to my house from the village street and when I reached near house of Ali Nawaz, I heard cries of Ali Nawaz from his house and, therefore I went there running. A lamp was litting in the that ched house of Ali Nawaz, I saw that Muhammad Arif.was causing hatchet injuries to Ali Nawaz and Mst. Azmat was standing there and she was also raising cries. While causing hatchet blows to Ali Nawaz, the hatchet of Muhammad Arif fell down and Ali Nawaz also fell down and then Muhammad Arif took up a wooden fork, with which he started giving blows to MO. Azmat, who also fell down. Ghulam Muhammad tried to rescue his wife Mst. Azmat and he tried to catch hold of Muhammad Arif in his arm, Muhammad Arif also caused injuries with wooden fork, to Ghulam Muhammad and wooden fork was broken. Due to the cries, Master Abdul Ghafoor, Abdul Hakim and other villagers came and they also saw the appellant causing injuries to Ali Nawaz, Mst. Azmat and Ghulam Muhammad, but then the accused ran away to the western direction. When the complainant and his witnesses saw, that Ali Nawaz and Mst. Azmat became unconscious and they were bleeding from their injuries. Ghulam Muhammad also received injuries and he related the whole story to the said witness. The complainant also related the above story to their Nekmard Mehrab Khan, who came at the vardat and saw Ali Nawaz, Mst. Azmat and Ghulam Muhanmmad and directed the complainant to file the F. I. R. As such, the complainant proceeded to P: P. Bhiria Road, where he lodged his F. I. R. alleging that Muhammad Arif caused injuries to above‑named persons with intent to commit their murder, because he has suspected his sister Mst. Azmat to be on illicit terms With Ali Nawaz. It is further alleged, that Ali Nawaz died on account of that injuries.

3. The most unfortunate aspect of this case is that A. S. I. Kadir Bux who recorded the entry in the roznamcha (daily diary of P. P. Bhiria Road) has died before trial of this case and, therefore, the prosecution had examined W. P. C. Muhammad Ramzan, who has produced original copy of roznamcha which was written by A. S. I. Kadir Bux. W. P. C. Muhammad Ramzan is well‑acquainted with the signature of A. S. I. Kadir Bux and he has identified the signature of late A. S. I. Kadir Bux on the original copy of roznamcha, which is F.I.R. of this case. Another aspect is, that except for said Muhammad Ramzan, no other police officer has been examined by the prosecution in respect of investigation conducted by the police. It further appears, that on 17th March, 1977, police recorded the F. I. R. under sections 307, 326, 325, 324 and 323, P. P. C., but later on the F. I. R. was recorded under section 302, P. P. C. after the death of Ali Nawaz. It further transpires from the evidence of medical evidence of Dr. Fazal Muhammad Dahri, that A. S. I. Niaz Ahmed took with him the dead body of Ali Nawaz on 17th March, 1977. at 0‑45 a. m. for post‑mortem examination and certifi cate. The autopsy was conducted on the same day at 7 a.m. and unnatural death of Ali Nawaz due to injuries was certified. Injured Mst. Azmat and Ghulam Muhammad were also referred to the same Medical officer on 17th March, 1977 at about 4 a. m. and the doctor examined and treated them also. As already disclosed no other Police officer has been examined by the prosecution, on account of death of Investigating Officer A. S. I. Kadir Bux, but it transpires that police conducted usual investi gation. Police visited the vardat in presence of Mashirs Haji Azizullah and Muhammad Musa and saw injuries on the person of Mst. Azmat, Ghulam Muhammad and Ali Nawaz, who were referred to Medical Officer as stated above. According to Mashir Haji Azizullah, Police also arrested appellant Muhammad Arif and as per Mashirnama Exh. 17 Police secured blood‑stained shirt from the person of appellant Arif. From the evidence of Mr. Ikram Hussain Jafri, the then learned Civil Judge and F. C. M., Naushero Feroze, appellant Muhammad Arif was produced before him on 26th March, 1977 and the said appellant made his judicial confession. After usual investigation, the appellant was challaned as stated above.

4. The appellant .had denied the prosecution allegations and pro claimed innocence. He has stated that Wadero Mehrab Khan wanted to purchase the land from him and on his refusal to sell land to him, he has implicated him in this case. P. Ws. Abdul Ghafoor and Abdul Hakim are related to Wadero Mehrab Khan and they have deposed on his instigation. With regard to his confession, the appellant has stated, that Police took him and his wife Mst. Ameena to the P. S. and police maltreated and dis graced them and thereafter extorted confession from him. The appellant has however, admitted to have given confession and he has admitted his thumb‑impression thereon.

5. The prosecution had examined complainant Abdul Hafeez, Mst Azmat, Ghulam Muhammad, Master Abdul Ghafoor, Mashir Haji Azizullah; Muhammad Musa, Tapedar Mir Muhammad Abdul Haki, Dr. Fazal Muhammad Dahri, Mr. Ikram Hussain Jafri and lastly W‑ g‑ C. Muhammad Ramzan. No defence evidence has been produced.

6. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant as hereinbefore mentioned consequently the appellant has filed the above appeal, on the grounds mentioned in e memo. of appeal.

7. The learned Advocate for the appellant at the outset submitted, that he was not attacking impugned judgment on the merits of the case, but in view of the prosecution evidence on record, the conviction of the appellant could have been based only on his judicial confession and conse quently the appellant could have been convicted under section 304(1), P.P.C. as his judicial confession is to be considered and accepted as a whole. In support of this contention the learned Advocate for the appellant relied upon case reported in P L D 1978 S C

200. The learned Advocate for the appellant further submitted, that the appellant has remained in custody right from 26th March, 1977 up to 14th March, 1982 and this fact be taken into consideration, while awarding the sentence.

8. The learned Advocate appearing for the State at the outset submit ted, that the conviction of the appellant under section 302, P. P. C., cannot be sustained in view of his judicial confession, on which alone the convic tion of the appellant could be sustained, and as such the conviction of the appellant may be altered from section 302, P. P. C. to section 304(1), P.P.C., as suggested by the learned Advocate for the appellant.

9. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court and impugned judgment and the cases cited by the learned Advocate for the appellant.

10. P. W. 1 Abdul Hafiz, P. W. 2 Mst. Azmat and P. W. 3 Ghulam Muhammad have not supported the prosecution case, but still they were not declared hostile. P. W. 4 Abdul Ghafoor and P. W. 5 Abdul Hakim have supported the prosecution case, but both of them are related to deceased and inter se, and as such their statements require independent corroboration, which is not available in present case, in my opinion, as alleged recoveries from the appellant were not supported by Mashirs P. Ws. Muhammad Musa, and Azizullah, who were not declared hostile by prosecution and as such the same cannot be used as corroborative piece of evidence. In view of this in my opinion conviction .of the appellant can only be based on his retracted confession only, as the said confession has been duly proved to be voluntary by P. W. 10 Ikram Hussain, Civil Judge and F. C. M., Naushero Feroze, as well as by the statement of the appel lant under section 342, Cr. P. C. However, appellant has said, that it was given under coercion. In view of this, contention of the learned Advocate for the appellant, that confession of the appellant be taken .as whole, has B great force; in view of case reported in P L D 1978 S C

200. The judicial confession of the appellant establishes grave and sudden provocation, received by the appellant and as such offence committed by appellant amounts to culpable homicide not amounting to murder:

11. Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant from section 302, P. P. C., to one under section 304(1), P. P, C. and consequently reduce his sentence from life imprisonment to 4 years' R. L. and maintain fine of Rs. 5,000 under section 302, P. P. C. and in default of payment of said fine to suffer further R. I. for one year and also maintain his conviction under section 307, P. P. C. but reduce the sentence awarded to the appellant from 10 years' R. I. to 4 years' R. I. and maintain fine of Rs. 2,000 on this account and in default of payment of fine to suffer further R. I. for one year: However, 'I direct that both the sentences to run concurrently. I further direct, that benefit of provisions of section 382‑B, Cr. P.C. be given to appellant in respect of his period of detention, as under trial prisoner, towards his substantive sentences, in addition to all other remissions to which he may be entitled in accordance with rules.

12. Appellant is on bail, his bail bonds are cancelled and learned trial Court is directed to issue non‑bailable warrants for arrest of the appellant and on his arrest to remand him back to judicial custody to serve out remaining sentences awarded to him by this judgment.

13. The above appeal stands dismissed, in terms of the above judgment. Appeal dismissed.