1976 P Cr (PLP)

MUHAMMAD HALEEM. J.

Appellant Ghulam Hussain was tried along with Ghulam Rasool and Ghulam for the murders of Gahi and Mst. Bakhtawar, convicted under section 302 P. P. C. and sentenced to death by the learned sessions Judge, Khairpur Mir, vide judgment dated 2nd May 19741. Ghulam Rasool and Ghulam were, however, acquitted by the same judgment. The appellant has appealed to assail hi; conviction and sentence, while the learned Sessions Judge has referred his case for the confirmation of death sentence. The State has also appealed against the acquittal of Ghulam Rasool and Ghulam. This judgment will dispose of the two appeals and the reference.

2. According to the prosecution case, the incident occurred do a toad about a survey number from the village of the appellant, which connected Ranipur with village Thati, at 2 p. m. on 21st October 1972. It was alleged that at 6 a. m. the deceased and his brother, Sipahi, left for village Sardah riding a mare. At Serdah, Sipahi got down to visit his relative Jam while the deceased proceeded to Ranipur hospital to visit his relative Soobaro Jotoi. Sipahi left for his village at 2. p. m. and on the way he saw his brother Gahi ahead of him riding a mare. At that moment the appellant and the two acquitted accused stood on the way and as the deceased passed by them Ghulam Rasool caught hold of the reins of the mare while the appellant fired his pistol at him, as a result of which the deceased fell down from the mare. The appellant again fired a shot, whereupon he raised cries and ran towards him. The cries and the gun reports attracted the villagers including Inayatullah and Fakeer Muhammad and seeing them approaching the wardat the appellant and the acquitted accused escaped from there Moments later Ameer Bux, who is the headman, also came there. To him, Sipahi narrated the farts and i; was then that he heard another gun report which came from the aide of the appellant's house. Sipahi was then directed to lodge the report and as he was proceeding towards police station Gambat he met Sikiladho Jatoi who told him that the appellant had also murdered his wife, Mst. Bakhtawar by firing his pistol at her. He lodged the F. I. R. at 4 p. m. the same day which was recorded by Wazeer Hussain A. S. I.

3. After recording the report Wazeer Hussain repaired to the wardat which was on the road‑near village Machi. He saw the dead body of Gahee lying there and so also two crime empties and one paddle (stirrup). which he secured, but he did not notice any blood on tire ground. He despatched the dead body for post‑mortem examination to the medical officer, Gambat. He then proceeded to the house of the appellant, where he saw, the dead body of Mst. Bakhtawar‑lying in the compound of the house from where he secured blood‑stained earth He next despatched her body for post‑mortem examination to the medical officer, Gambat. He examined Moharem, Shabazi and Mst. Izat. On the next day he examined Waris, Iqbal and Ghulam Nabi. The same day the mare was produced by Sipahi which was also secured but later given back to the complainant. Thereafter the appellant was arrested and he produced a "Chanjoor" and one pistol from a room of his house which were secured. There is no evidence on record to show as to whether the earth or Chanjoor was sent for chemical analysis. There is also no material on record to show whether the two crime empties were sent alongwith the pistol for matching to the forensic laboratory.

4. Dr Ahmed Ali performed autopsy on the dead body of Gahee and noticed the following injuries:‑ "(1) One gunshot wound infront on the left side of chest 1'x 1' apart blackening of skin fracture of left 5th rib ruptured of left lung at upper and lower lobe, rupture of, heart left auricle and ventricle fracture of left 11th, 12th rib at the root 2 pellets found in left chest cavity 2 pellets found in vertebrae. (2) Fracture of body of 7th, 8th, 9th vertebrae 4 pellets removed from the body of 8th, 9th and 7th thorax vertebrae." which, in his opinion, were caused by the discharge from a firearm and that injury No. I was sufficient in the ordinary course of nature to cause death. On the same day, he performed autopsy on the dead body of Mst. Bakhtawar and noticed the following injuries:‑ "(1) One gunshot wound, wound of the entrance infront of the right shoulder 5 x 3' apart muscle deep, dots and pellets removed from the wound on opening wound goes in front of right side of chest and left ride also dots and pellets removed. (2) One gunshot wound in anterior aspect of right arm upper and middle 1/3rd, 4"x 2 " apart muscle deep, pellets removed. (3) One incised wound in left occipital region behind left ear 2 apart brain deep 7', brain is involved, brain matter was cut. Brain was affected cut (in left occipital region)." According to him, injuries I and 2 were caused by the discharge from a firearm while injury No. 3 was caused by .a sharp cutting weapon and individually sufficient to cause death in the ordinary course of nature.

5. The stand of the appellant has been consistent in both the Courts. Before the inquiry Magistrate he pleaded that he had killed Gahi on account of grave and sudden provocation when he found him "in compromising position" with his wife. Mst. Bakhtawar. As for the pistol, he admitted that he bad produced it but he said nothing about the production of Chanjoor. He denied any dispute over land. At the trial he took the same plea. He also denied the participation of other persons in the crime.

6. The trial Court after appraising the ocular testimony of Sipahi, Inayatullah and Fakir Muhammad held that the presence of these eye witnesses was doubtful and, therefore, it did not accept their evidence. But this was not all. It dissected the admission o: the appellant qua the plea of grave and sudden provocation and held that the appellant has not been able to establish his plea so as to bring his case within exception 1 to section 300, P. P. C Summarising the inherent improbabilities in the version which led the trial Court to take this view, the first is that it held that admittedly Gahee, was murdered on the road in broad day light. This conclusion could have been reached only if the ocular testimony was accepted. Having held it to be doubtful, there was no evidence to sustain that the deceased was in fact killed on the road when no blood was even found there and the blood on the clothes and the injuries had dried up. The second is that if the deceased was surprised then he would have run for his life and in that view of the matter he should have been shot from a distance while running, but that is not so for the injury is from a point blank range. The third is that it was an unusual feature that he would carry a pistol, which he could use on having surprised the deceased. The fourth is that if his wife Bakhtawar had an opportunity to escape then she would not have remained in the house but would have gone to the jungle or made herself scarce to avoid being killed. Again, the injuries on her indicate that they were caused by two types of weapons, namely a gun anti a sharp‑cutting weapon, which suggest the participation of some other person while the appellant had taken it upon himself the causing of the two injuries. Concluding, therefore, it did not accept‑the admission in the statement in its entirety and repelled the plea while convicting him under section 302, P. P. C.

7. Since the State has preferred an appeal against the acquittal of Ghulam Rasool and Ghulam, we are, therefore, called upon to assess whether their acquittal was justified. The trial Court, while scrutinising the ocular testimony, has held them to be chance witnesses, a finding, which we find to be reasonable on the evidence as it stands. In the first place, according to the F. I. R. Sipahi has given out that he was behind deceased Ghaee who was riding the mare. If this was so, then he could have asked him to give him a lift on the mare at a time when it was hot, which again appears to us to be an unusual feature, for the attempt seems to be to avoid being alongwith him as there was a likelihood that he could also have been injured. Again, the deceased was returning from Ranipur which was about 4 miles from his village. It is a matter of sheer chance that Sipahi also left at a time to be near him. Such a probability is highly suspicious, and what is of more significance is that two shots were stated by him to have been fired, one of course at the deceased and the other he has refrained from stating as to under what circumstances it was fired and at whom. Two crime empties were found at the wardat. Since Gahee had one injury, Sipahi cleverly avoided mentioning in the F. I. R. as to on whom the second shot was fired as that shot necessarily had to be explained. As for the two eye‑witnesses he stated that they came from the village alongwith the villagers on hearing the cries and gun reports. The story at the trial is however different. An impression is given that both of them returned together as he was picked up from the village by the deceased on the way back. But that is not so according to the F. I. R. Apparently, the stand was changed so that it could be taken that he was also alongwith the deceased at the time of the incident which cannot but be an improvement in the case. Again a part is assigned to Ghulam Rasool for having caught hold of the reins of the mare while Ghulam having pulled down the deceased from the mare. One shot is explained by stating that it was fired in the air and the other at the chest of the deceased. This again is not consistent with the earlier version. As for the two P. Ws an impression is given in the cross‑examination that they were coming from the opposite direction at the time of the incident whereas in the F. I. R. they were stated to nave come alongwith the other co‑villagers and had seen the appellant escaping. This is not without a reason, for they at the trial posed as eye witnesses .of the incident, which cannot but be under some influence. Inayatullah gave out that he was proceeding to collect grass from Muhammad Bux Vandiar while Fakeer Muhammad stated that he was going to Serdah to request the people for Vangar". The reasons given by both the witnesses lack substance and may it be said that they were fabricated to show their presence near about the incident. Inayatullah at that time resided bout three‑fourth of a mile away from the place of the incident and his Presence alongwith the co‑villagers who came to the wardat on hearing the cries, is not sufficiently explained. As for Fakeer Muhammad, there is the admission of Sipahee that he is his cousin and resided in another village vide Exh. 7, although Fakeer Muhammad himself stated that tie resided in the same village. The fact about his residence is also not beyond doubt and in this context the meeting of these two witnesses, namely Inayatullah and Fakeer Muhammad, immediately before the incident is a matter of sheer coincidence, which cannot but be described as highly improbable. The version of Inayatullah in the Court is that the first shot hissed the deceased, whereupon he was pulled down by all the three and then the second shot was fired by the appellant. As for Fakeer Muhammad, he stated that it was Ghulam Rasool who had caught the reins of the mare and Ghulam had held the arms of the deceased while the appellant fired his pistol at him, but the shot missed the target. The appellant then pulled him down from the mare and fired the second shot. Thus their version is not consistent, for it is impossible to conceive that a shot fired from such a close range would miss its target. Therefore, there is no satisfactory explanation about the firing of the second shot though another crime empty was found at the wardat. In this strain, it is difficult to accept that what the witnesses stated was the true account of the incident. The absence of blood, which was an unlikely feature, reflects on the assertion as to whether he was ire fact shot at while on the road. The paddle has not been connected with the saddle which, according to the mashirnama, was seized but the prosecution did not care to elicit the fact from the mouth of the mashie or the Investigating Officer. Its presence, therefore, cannot establish that the deceased at that time was riding a mare. What has surprised, us most is that the blood coming out of the injury had completely dried up which, to our mind, suggests that the deceased must have been killed a few hours before, otherwise there was no reason for the blood not to spurt out on the ground. The other feature which stares at us is that the two witnesses, Inayatullah and Fakeer Muhammad, were not available at the wardat when the Investigating Officer arrived there. What was the necessity to disappear, has not been explained. Though their names transpire in the F. I. R., yet they were examined on 26th October 1972, which feature again shows that they were named in the hope of supporting the prosecution case and it must have been after persuasion that they had volunteered to give their statements five days after the occurrence. It is in the afore-stated circumstances that the trial Court reached the conclusion that the presence of the witnesses was doubtful. It cannot be said that such an opinion was unreasonable or could not be formed on the evidence as it stands.

8. Concluding, therefore, we are constrained to hold that if the presence of Sipahi is doubtful, then the naming of these witnesses in the F. I. R. will gives no weight to their testimony. Besides, Sipahi has not been able to explain the various improbable features in the case to give guarantee to his testimony. It transpires in the F. I. R. that Amir Bux had come immediately after the occurrence but he too has not been examined to provide corroboration of the ocular testimony. Similarly Sikiladho, who is stated to have met Sipahi on his way to the police station and had given to him the information that it was the appellant who had killed Mst. Bakhtawar, was also not examined. There is, therefore, no corroborative evidence either to support the ocular testimony of Sipahi and the other two, or any evidence as to the murder of Mst. Bakhtawar. In this view of the matter, the State has failed to establish any case against the two acquitted accused.

9. As for the appellant, he has admitted having killed the two deceased upon having seen them in a compromising position. The trial Court erroneously on conjectures, disregarded the exculpatory portion of his admission and rested conviction on the inculpatory portion, to which the learned counsel for the appellant has taken exception. According to him, if the statement was the only material upon which conviction could be founded then it had to be acted upon in its entirety. In support of his contention he relied on Balmakind v. Emperor (A I R 1931 All. 1) wherein it was held:‑ "But, be the particular reason what it may, this rule of practice has been established slid acted on for the last 100 years, beginning wits the case of Rex v. Sarah Jone & Mary Jones (1827) 2 Carrington and Payne 629)" The ratio, therefore, was that it had to be accepted as a whole. This view has followed in A I R 1935 Lab.

671. In the case of Hanumant Govind Nargundkar and another v. State of Madhya Pradesh (A I R 1952 S C 343) it was held that:‑ "it is settled law that admission made by a person whether amounting to a confession or not cannot be split up and a part of it used against him. An admission must be used either as a whole or not at all." such view was also taken by the Federal Court in Rahim Bux Crown (P L D 1952 F C 1) and it was held that if the conviction of the petitioner is to be based solely on a statement in Court it is obvious that this statement should be taken into consideration in its entirety. The trial Court seems to have misread the judgment of the Supreme Court in Abdul Rashid v. The Crown (1969 S C M R 403) in which the facts were quite different. There was ocular testimony and so also a confession and their Lordships of the Supreme Court accepted the ocular testimony in preference to the plea raised in the confession and held that the appellant had failed to bring his case within the exception, However, it was further observed at page 404 that "if there had been no direct evidence and if the circumstances had not made it unequivocally clear that the appellant was responsible for the murder and we had been left only with the confession, surely the conviction based upon confession itself could not ignore a part of the version about the circumstances which had actuated the accused in committing the crime". The trial Court appears to have omitted to consider the above with the result that it misconceived the ratio of the case and wrongly applied it. Here, after rejecting the ocular testimony there was no other circumstances to establish that the deceased had been killed on the road by the appellant and, therefore, there was nothing left except the admission 5f the appellant which had to be taken into consideration as a whole. In this view of the matter, the plea of grave and sudden provocation could not nave been avoided on conjectural basis.

10. In the result, for the foregoing reasons we do not find any substance in the acquittal appeal, which we dismiss. As for the appellant's appeal, we alter his conviction to section 304, Part I, P. P. C., and substitute x sentence of five years rigorous imprisonment. The sentence of death is not confirmed and tale reference is rejected. Order accordingly.