P L D 1953 Baghdad﷓ul﷓Jadid 17 (PLP)

FAIZ MUHAMMAD,J.‑‑Ali Muhammad son of Rasoola, caste Sayal aged 25 years of tar Kahan Singh stood his trial in the Court of Sessions Judge, Bahawalpur under section 302, P. P. C. for causing the death of his wife list. Manzooran by inflicting injuries on her neck with a toka. The learned Sessions Judge convicted him of the said offence and sentenced him to transportation for life. Ali Muhammad has filed this appeal against his conviction and sentence. As he had not engaged any lawyer, Mr. Fida Husain Advocate was engaged by this Court to argue the appeal. Government Advocate appeared for the Crown. Stated briefly the prosecution story in this case was that the accused and the deceased had been living a normal married life in the house of Shaban the father of the woman till 3rd July, 1951 when a small incident led to a quarrel between them. It is alleged that on the fateful day a crow dipped his beak in a milk pot which was lying uncovered in the house and polluted the milk. When Ali Muhammad appellant saw this he accused Mst. Manzooran of negligence and hit her with a stick. This happened some time in the morning. Mst. Manzooran resented dais so much that the quarrel continued for the rest of the day. At night both slept in the open courtyard where Sajwara P. W. 9, Sona P. W. 10, Mst. Sharifan P. W. 12 and Mst. Kamo P. W, 13 were also sleeping. The night was still young when a strong wind gathered clouds and a drizzle followed. This drove the deceased and the appellant into their Jhugi. Some time later the witnesses named above heard a loud cry raised by Mst. Manzooran and rushed towards her Jhugi. On reaching near it they saw the appellant coming out of it and run away. On entering the Jhugi they saw that Mst. Manzooran was bleeding from wounds on her neck and while they were still there she breathed her last. The matter was reported to Chaukidar Goman P. W. 6 who informed the Lambardar Rahim Bakhsh P. W.

5. After this Goman and Sajwara proceeded to Macloadganj Police Station and lodged the F. I. R. Exh. P‑A at about 6‑30 a. m. on 4th July, 1951. The Police Station is at a distance of 3 miles from the place of occurrence. It is also alleged that the appellant who had run away after the commission of the offence met one Ali Muhammad P. W. 7 sometime later and confessed his guilt to him in the following words:‑ (I have caused the death of my wife and am in now a fix as to whether I should go to the Police Station or not). Ali Muhammad P. W. 7 offered to accompany him to the Police Station where they accordingly went and the appellant surrendered himself and was arrested. The appellant however denied all these allegations by asserting that on the night of occurrence he was not in the village and that he did not make the confession attributed to him. There is no direct evidence in the case to prove that the appellant caused the death of his wife as stated above. The prosecution has relied on circumstantial evidence consisting of motive, the fact that the appellant was last seen with his wife when they both entered the Jhugi shortly before the occurrence and lastly the fact that the appellant was seen running away from the Jhugi by the witnesses who rushed towards it on hearing the out‑cry of Mst. Manzooran. Along with these circumstances there is also the extra‑judicial confession which the appellant is said to have made to Ali Muhammad P. W.

7. I propose to deal with each of the circumstances set out above and evidence in support of it separately. Motive. From the evidence on record that is to say the statements of Sajwara P. W. 9, Sona P. W. 10, Mst. Sbarifan P. W. 12 and Mst. Kamo P. W. 13 it is, in my opinion, proved beyond any doubt that on the day preceding the night of occurrence a quarrel did take place between the deceased and the appellant over the trivial incident referred to above. The question which requires consideration however is whether this quarrel was so serious as to cause a permanent rift between the husband and wife who had been living happily together till then and whether it was sufficient in the ordinary course of things to have enraged the husband to the extent that he should cause such serious injuries to his wife as would lead to her death. Domestic quarrels of this kind are of daily occurrence in almost every house and it is not possible to believe that this alone was the responsible of the tragedy. It must therefore be presumed that something more infuriating must have happened which made the appellant lose his patience and commit the offence, if he committed it at all. What that something was we do not know because the only living person who could throw light on it has preferred to remain silent on the point. The learned Government Advocate has urged that absence or inadequacy of motive is no ground for disbelieving the prosecution story if it is otherwise proved. The "if" in this argument is a big one particularly when the alleged motive constitutes one of the circumstances on the strength of which it is sought to have an accused person convicted. Therefore I am inclined to agree with M. Fida Husain that the evidence of motive produced by the pro?secution is not by itself sufficient from which an inference of guilt can be necessarily drawn against the appellant. But we must take this evidence into consideration along with evidence relating to other circumstances of the case. The Appellant Last Seen With the Deceased. This fact is also deposed to by the same four witnesses namely Sajwara P. W. 9, Sona P. W. 10, Mst. Sharifan P. W. 12 and Mst. Kamon P. W.

13. Quite naturally the evidence of these witnesses was subjected to a good deal of cross‑examination in the trial Court and has been vehemently attacked by Mr. Fida Hussain before us. On carefully going through their statements I find that their evidence is very natural and although they are simple villagers they stood the cross‑examination well. Mr. Fida Hussain has attacked their evidence on the ground that they related to the deceased and for that reason their evidence cannot be regarded as disinterested. I am afraid I cannot attach much importance to this objection. It is not denied that Ali Muhammad appellant was living in the same courtyard in which these witnesses live and had a separate Jhugi allotted to him. Further there is nothing on record to show that any of these witnesses was in any manner inimically disposed towards him so as falsely to implicate him in a murder case. Mr. Fida Hussain's other ground of attack as far as the evidence of Sona P. W. 10 is concerned is that he admits that he heard the shout of Ali Muhammad also at the time of occurrence imply?ing thereby that Ali Muhammad appellant was the first to be attacked either by the deceased or by some one else unknown. That Sona P. W. 10 did make a statement to that effect is correct. But in view of the fact that the appellant himself did not make any statement to this effect Sona's evidence on the point becomes rather vague. Be this as it may it shows that either there was some further altercation between the deceased and the appellant or that there was a stranger in the Jhugi who attacked the appellant and made him utter a cry. The second alternative is however negatived by there fact that the witnesses saw only the appellant enter the Jhugi a short time before the occurrence and come out of it just after it and did not find any stranger in it. No doubt this is a very damning circumstance against the appellant that the probative value of which will be considered when other evidence in the case has been dealt with. Appellant Seen Coming Out of the Jhugi Soon After the Alleged Occurrence. Evidence about this fact also consists of the statements of four witnesses mentioned above. I have already commented upon their evidence and therefore need say no more. Mr. Fida Hussain's grounds of attack on this part of their evidence are firstly that the night of occurrence was pitch dark and therefore the witness could not possibly identify the person who came out of the Jhugi when they rushed towards it and secondly that the witnesses did not definitely say that they had identified the appellant when they first reported the occurrence to the Lambardar but merely gave expression to their suspicion. As far as the first ground of attack is con?cerned it is true that the night was dark and genuine doubt about the identification of the appellant can arise. But we have to take this part of their evidence along with the rest of it. There is no allegation that Mst. Mansooran was a woman of loose character. On the contrary it is in evidence that previous to the unhappy incident referred to above she and the appellant had been leading a happy life. This being the position I have no alternative but to reject the theory of the presence of a stranger in the Jhugi and his coming out of it immediately after the occurrence. Had that been the case the appellant would have certainly come out with the state?ment that he found a stranger in the Jhugi in a compromising position and that having caused injuries to his wife he the appellant rushed out to give chase to the stranger. Appellant's total denial of the occurrence reduces Mr. Fida Hussain's contention to a mere surmise. As regards the second of Mr. Fida Hussain's contention it would be enough to say that Lambardar Rahim Bakhsh P. W. 5 does not support him. The counsel has also attacked the evidence of these witnesses on this point on the ground that Sujwara and Sona P. Ws. made no attempt to arrest the appellant when they saw him coming out of the Jhugi. There?????????..is not much force in this objection which has also been satisfactorily met by the Sajwara P. W. when he says in cross‑examination that he did not chase the appellant at the time because he did not know what had actually happened. Taking all these circumstances into consideration I feel convinced that it is proved that the appellant was in the Jhugi at the time of occurrence and came out of it and ran away immediately after it. Extra‑Judicial Confession. Another circumstance relied upon by the prosecution is the extra‑judicial confession which the appellant is said to have made to Ali Muhammad P. W.

7. Ordinarily such con?fessions are considered unsafe to base conviction upon. But in the present case the extra‑judicial confession said to have been made by the appellant is attended by conditions which point to its being correct. As already indicated it is claimed by the prosecution that after committing the offence the appellant left his house and sometime later met Ali Muhammad P. W. 7 who noticed that he was in a perturbed state of mind. On enquiry he told Ali Muhammad that he had killed his wife and was wondering whether to surrender himself to the police or escape. Ali Muhammad P. W. 7 advised him to go to the Police Station and offered to accom?pany him. Both of them accordingly went to the Police Station where the appellant offered himself for arrest. Mr. Fida Husain has attacked this evidence on the ground that in his statement in the trial Court Ali Muhammad P. W. had said that he and the appellant reached the Police Station at about noon when the Sub‑Inspector told them that the occurrence had not been reported to him till then. Ali Muhammad P. W. further stated that it was a short while after this that Sajwara P. W. accompanied by Goma P. W. arrived at the Police Station and made the F. I. R. which purports to have been made at 6‑30 a. m. From this alleged discrepancy about the time when the report was made Mr. Fida Husain wants us to hold that Ali Muhammad P. W, did not go to the Police Station at all and that the appellant did not make any confes?sion to him. M. Abdul Ghafoor Sub‑Inspector P. W. 14 however definitely stated in the course of cross‑examination that it was wrong that Ali Muhammad P. W. reached the Police Station at about noon and not in the morning. Obviously there appears to be some misunderstanding about the words actually used by Ali Muhammad P. W. in connection with the time of his arrival at the Police Station. The words occurring in Ali Muhammad's statement in the trial Court are :‑ I am sure that this is a rendering of the learned Sessions Judge of what Ali Muhammad stated before him and not the exact words used by him. (Nisf Nihar) is an expression which few villagers can be expected to understand much less to use it. That this must be so is made clear when Ali Muhammad is shown to have said in the very next sentence that when he and the appellant reached the Police Station the Sub‑Inspector was sitting in the open outside the Police Station building. It is not possible for me to believe that the Sub‑Inspector would be sitting in the open between 11 A.M. and 12 A.M. for that would be about (Nisf Nihar ) in the month of July. There `is thus no real discrepancy between the time when the F. I. R. purports to have been made and the time which Ali Muhammad P. W. gives about his arrival at the Police Station. No question was put to the Sub‑Inspector about his having told Ali Muhammad P. W. that the occurrence had not been reported to him till then. It is not seriously contended that the appellant was arrested at the Police Station when he went there accompanied by Ali Muhammad P. W. All this goes to show that the appellant did make the confession to Ali Muhammad otherwise there was no sense in the two going together to the Police Station. Mr. Fida Hussain also takes up a perfectly untenable position when he wants us to believe Ali Muhammad's statement about the time of his arrival at the Police Station and reject the same witness's statement that the appellant confessed his guilt to him. The counsel has also pointed out some other minor discrepancies in the prosecution evidence which in my opinion are more imaginary than real. Taken separately the circumstances discussed above may or may not lead to an inference of guilt against the appellant but considered cumulatively they lead to only one conclusion and that is that the appellant and no one else caused the death of Mst. Manzooran. After carefully weighing the evidence produced by the prosecution I have also come to the conclusion that inculpatory facts proved by this evidence are incompatible with the innocence of the accused. I have also considered the evidence of alibi produced by the appellant and do not consider it worthy of credit. It is all oral. No document of any kind has been produced to support it. Such oral evidence can be easily manufactured. I think the appellant would have been Letter advised to make a clean breast of the matter and come out with real reasons for his unusal conduct than totally to deny all knowledge of the occurrence and take shelter behind a faked alibi. For reasons stated above I hold that the learned Sessions Judge rightly held the appellant guilty of having caused the death of his wife Mst. Manzooran. I cannot however with the same certainty hold that the offence falls within the purview of section 302, P P. C. Admission of Sona P. W. 10 to the effect that at the time of occurrence he had heard a shout or out‑cry of the appellant also goes to show that when the appellant and the deceased were alone in their Jhugi the latter said or did something very serious and annoying which exasperated the latter to an extent that he was forced to utter a cry. The Government Advocate urged that this was not enough to entitle the appellant to the benefit of exception No. (1) of section 300, P. P. C. His argument is that any one who claims the benefit of an exception must prove the facts entitling him to it. This is a correct exposition of law. But it does not preclude the Court from giving an accused person the benefit of an exception if there is material on record to justify the giving of it. Considering all the circumstances of this case, I am of the view that the appellant did receive provocation which was sudden and grave enough to make him utter a cry of anguish and lose control over himself. He found a toka which is an ordinary instrument to be found in every villager's house, lying close by and picking it up dealt blows with it to the deceased. His conduct after the occurrence justifies this inference. In particular the words in which he confessed his guilt to Ali Muhammad followed by his surrender to the Police shows that he was stricken with remorse at what he had done. His plea of alibi at the trial was in my opinion an after‑thought and most probably the ` result of wrong advice. For all these reasons I alter his conviction from section 302, P. P. C. to one under section 304, Part I and reduce his sentence to five years' R. I. and a fine of Rs. 500 in the default of payment of which he will undergo a further sentence of two years' R. I. ABDUL RASHID, J.‑I agree. A. H???????????????????????????????????????????????????????????????????????????????????????????????????? Conviction altered.