P L D 1961 (W (PLP)

QADEERUDDIN AHMAD, J.‑--Babu son of Labu has been convicted under section 302, P. P. C. for murdering Wasim Gul and Paniro and sentenced to death. Babu has appealed from the order. The case is before us for confirmation of the order as well as for the decision of the appeal.

2. The facts according to the prosecution are that the appellant was a servant of a butcher by the name of Wasim .Gul, who had another boy servant called Paniro. They lived in a house in Bhan Singhabad, Mohallah Ramnagar, Taluka Mirpurkhas, District Tharparkar. On the 12th of June 1960, at about 1‑30 a.m., Umar, who was a neighbour of Wasim Gul, heard the cries of Paniro, and went out of his house to the door of Wasim Gul to enquire the reason for it. Paniro came out of the door of the house of Wasim Gul and told Umar that the appellant had murdered Wasim Gul and stabbed Paniro himself also. He then went back into the house. Umar informed Kasim and Ali Muhammad, two other neighbours, and all the three of them went to Sher Muhammad, who was a member of the Union Satellite Town. Then the four of them went to the police outpost of the Satellite Town, which was about two furlongs from the scene of offence and informed Dur Bux, head constable, who accompanied them to the place of the occurrence and found the dead bodies of Wasim Gul and Paniro lying on one' cot. The appellant was not there; therefore, Dur Bux commenced a search for him and instructed Umar to lodge a report at the Police station which was about a mile away from the scene of offence. The report was lodged at, about 4‑33 a.m. and was recorded by Abdul Hakim S. I. P. The appellant was not found by Dur Bux head constable. Therefore, Dur Bux went to the police station. He found the appellant at, the police station, who according to Abdul Hakim S. I. P. had reached the police station at about the time when Umar went there to lodge the report. He was, therefore, arrested, and the blood stained knife, which was in his hand, as well as the blood stained clothes which were on his person, were taken into possession. They were a cotton 'shirt, a silken `banian' and a cotton turban. The mashirnama which was prepared at the time of taking these articles into custody is Exh.

7. Abdul Hakim, S. I. P. investigated the case, prepared a mashirnama of the place of the occurrence, Exh. 8, and secured a part of the blood stained earth found in the house of Wasim Gul. He recorded statements of witnesses and sent the knife, the blood stained' earth and the clothes taken into possession by him for chemical analysis. The report of the Chemical Analyser (Exh. 12) shows that the blood stains on the shirt and the knife had disintegrated and, therefore, their origin could not be determined. The other articles were found to be stained with human blood. On the 13th of June 1960, the appellant was produced before Sheikh Manzoor Ahmed, Joint Sub‑Judge and A. R. M. Mirpurkhas for making a confes sion which was duly recorded. It is Exh.

17. The confession of the appellant is as follows:‑ "My statement is that I was serving as a servant from the last 12 years with Wasim Gul who was doing the, butcher's pro fession and used to cut mutton. About 21 years back Wasim Gul engaged another boy as his servant whom he used to call `Panira' who was about 15 years old. Wasim Gul used to call him `my son Panira' and used to sleep with him, i.e., used to have carnal intercourse with him. I used to prevent him from this and used to tell him that he was having beard and was offering prayers and he should desist from doing such an act but he never listened to me. Day before yesterday at night I saw him again having carnal intercourse with the same boy. Divine directions dawned on me and I took up a butcher's knife and stabbed both of them with it. I cannot say as to how many knife blows caused to them. I then went straight to Thana and lodged report and produced the blood stained butcher's knife I was arrested and my clothes were then secured by police. I have been produced here to‑day." 3 The appellant stated before the committing Court that he had committed the two murders, and that his confession was correctly recorded. In his trial before the Sessions Judge also he made the same statements.

4. The prosecution have examined five witnesses. P. W. 1 is Allahjurio, tapedar, who had prepared a sketch of the house of Wasim Gul showing on it the situation of the houses of Qasim and Umar. The sketch shows that the house of Umar was situated opposite to the house of Wasim Gul across the lane, and that the house of Qasim was situated adjacent to the house of Wasim Gul. P. W. 2 is Dur Bux, head constable of the outpost of the Satellite Town, who has supported the prosecution regarding the information received by him and his visit to the house of Wasim Gul. P. W. 3 is Sher Muhammad, a neighbour, who had gone with the other three neighbours to the police outpost. P. W. 4 is Umar, who had met Paniro and received the informa tion that the appellant had stabbed him and his master Wasim Gul, and had lodged the report. He has proved the first information report. Exh.

10. P. W. 5 is Abdul Hakim, S. I. P., who recorded the first information report and investigated the case. The Chemical Examiner's report is Exh. 12, and the statement of the doctor who performed the post‑mortem examina tion is Exh.

14. He was not examined in the Court of the Sessions Judge.

5. The doctor's evidence leaves no doubt that Wasim Gul and Paniro have died as a result of the injuries received by them. Wasim Gul had received four stab wounds, two of them were on the chest below the right anal left nipples, one of them was on the epigastrum region near those two wounds, and the fourth on the left deltoid region. The three wounds received on and near the chest were, according to' the doctor, sufficient in the ordinary course of nature to cause death. Paniro had received eight wounds in all, six of which were incised and two were caused by stabbing. Three of them were on and near the chest, and one on the right lumber region. The last mentioned wound was, according to the doctor, sufficient in the ordinary course of nature to cause death.

6. Counsel for the appellant has argued that the evidence does not conclusively prove that the appellant had committed the murders, and alternatively that the murders were committed because the appellant was angry, excited and unhinged in mind, and that, therefore, the appellant deserved the lesser sentence of transportation for life. He has supported the first argument by contending that the Statement of Umar that he had made enquiries from Paniro at the door of the house of Wasim Gul was not believable and, therefore, there was no evidence for the prosecution to establish that the appellant had committed the murders. He argued that there was no mention in. the first information report that Paniro had come out of the door of Wasim Gul's house and spoken to Umar. This was an improve ment made by the witness in his evidence given in Court. The probabilities of the prosecution witnesses making false improve ments were, according to counsel, supported by the facts that the first information report was lodged very late, and that Dur Bux, head constable, instead of performing his duty of immediately giving a chit to Umar and directing him to go and lodge the report, went along with him to the scene of offence. This gave an opportunity to the prosecution to procure witnesses and make tip a story. The suggestion of counsel that witnesses were falsely procured is, according to him, supported by the fact that Qasim and Ali Muhammad, whose names are mentioned in the first information report, have not been produced in Court as witnesses. Moreover, there is some discrepancy with regard to the circum stances in which Umar came across them and took them along with him to Sher Muhammad. We are not at all impressed by these arguments, because, the report was lodged by a neighbour who took time in consulting others and going to the police station for lodging the report. The delay is, therefore, under standable. Dur Bux head constable, we think, had acted with caution in first proceeding to the place of occurrence, because Umar had not yet seen Pantro dead and there were chances of recording the dying declaration by proceeding to the place of occurrence without loss of time. The witnesses who have been produced by the prosecution are sufficient to establish the prosecution's case, and it was unnecessary to produce Qasim and Ali Muhammad. Umar's statement that Paniro came out of the door of Wasim Gul's house and talked to him, is supported by the fact that, according to the evidence of the prosecution blood was found outside the door. This evidence combined with the judicial confession made by the appellant and his statements admitting the crime before the committing Court and the Sessions Court leave no doubt that the appellant had committed the murders.

7. In support of the second contention, counsel argued that Wasim Gul was a sodomist according to the confession of the appellant, and had employed Paniro, a boy of 15 years of age, to satisfy his lust. His habits were disliked by the appellant who had admonished him not to indulge in that practice. On the night on which the offence took place, the appellant had seen Wasim Gul and Paniro committing carnal intercourse, which aroused anger in the appellant's mind, as a result of which he was mentally unbalanced. He was a servant of Wasim Gul and there was no reason for him to murder his master and the boy servant. The only explanation of the murders, therefore, according to counsel, is that mentally the appellant ceased to be capable of taking a proper decision and committed the murders in excitement.

8. Counsel carefully supported this contention by advancing two arguments. Firstly, he argued that the appellant had seen Wasim Gul and Paniro actually engaged in sexual act, and secondly, that the state of mind of the appellant was such as to deprive him at the moment of the faculty of reasoning. In support of the first argument he pointed out that the dead bodies of Wasim Gul and Paniro were found over one another on one cot, and that the bodies were not examined by the doctor or by anybody else with the object of discovering whether there were traces on them of sexual act freshly committed. This omission has been admitted by Abdul Hakim, S. I. P. (P. W. 5) who investigated the crime, in his statement that he had not instructed the doctor to examine the private parts of the dead bodies for discovering marks of semen on them. Moreover, according to counsel, the mere absence of the discovery of such traces could not weaken his argument, because there was so much blood that no traces of semen could be discovered. The evidence on the record, however, does not support this contention of counsel, because the position in which the dead bodies were found indicates that Paniro was lying across over the dead body of Wasim Gill, which posture is consistent wish the statement of Umar that Paniro had gone out of the door of the house and talked to him and returned from there. It appears that on coming back to the cot on which Wasim Gul was lying dead, he fell on it. Additionally two cots were found in she house and there was blood on the cot which was unoccupied when the dead bodies were seen. This fact indicates that Paniro was wounded when he was on the other cot. Moreover, the bodies were not naked below their waists. Counsel tried to get over this difficulty by suggesting that both of them put on their clothes either immediately before or after the injuries were inflicted on them. The suggestion does not appear to be tenable to us, and we are not satisfied that there is proof of the fact that Wasim Gul and Paniro were actually committing sexual act when they were attacked by the appellant. On the contrary, there are reasons to believe that they were not performing the sexual act when the injuries were inflicted on them, because, as pointed out by learned A. A. G. for the State, both of them could not have in that case received injuries on their chests. Our conclusion, therefore, is that Wasim Gul and Paniro were not murdered while committing sexual crime.

9. The second argument of counsel is to be examined against this back ground. Counsel conceded that the auger and excite ment in which the appellant, according to counsel, committed the murders cannot be said to have been the result of grave and sudden provocation in terms of the first exception to section 300, P. P. C. He did not even question the possibility suggested by us that the appellant had committed the murders owing to jealousy with his master over the boy Paniro, but contended that reason ableness or unreasonableness, and piety or impiety of the reasons which might be the cause of loss of partial self‑control are im material if the state of mind of an offender can be said to be such as to make him unable to reason and distinguish clearly between right and wrong. In support of this contention he has cited a number of precedents, including:‑ (1) Mala Ho v. King Emperor A I R 1921 Pat. 63, (2) Abdullah v. King Emperor A 1 R 1924 All. 233, (3) Nga Po Swa. Emperor A I R 1936 Rang. I 13, (4) Sheo Ram v. Emperor A I R 1937 Oudh 457, (5) Piare Dusadh v. Emperor A I R 1944 F C 1, (6) Kali Charan v. Emperor A I R 1948 Nag. 20 (2). In the Patna case, the accused was sentenced to transportation for life because he had killed a woman owing to his belief that she was a witch and responsible for the illness of his wife and daughter. In the Allahabad case, the accused was sentenced to transportation for life because he had committed the murder believing in misrepresentations and promises of millennium. In the Rangoon case, the extreme penalty of death was not inflicted because the learned Judges held that the accused, though not through, insane, was in an abnormal mood, and did not understand the nature of his actions, as a result of which he committed murder because the deceased had caused too much noise and disturbed his sleep. In the Oudh case, the accused was not given the sentence of death, although it was held that there was no grave and sudden provocation, on the ground that he found his rival in the house of his mistress and striking three heavy blows with a lathi on his head, caused his death. In the case decided by the Federal Court, a young man of 25 years of age was given transportation for life because there was "some confusion as to the exact motive for the undoubtedly brutal assault" made by him on his aunt who was alleged to be a woman of loose character and had refused to become his mistress after he was widowed twice. The learned Judges held: "In committing the offence the appellant must have been actuated by jealousy or by indignation either of which tend further to disturb the balance of his mind. He has besides been awaiting the execution of his death sentence for over a year". The latter consideration was a weighty one for awarding the lesser punishment, but the former consideration was also given weight. In the Nagpur case, the accused had killed four persons in quick succession without any motive. It was found that his case did not fall within section 84 P. P. C. because he was not insane, but the lesser sentence of transportation for life was given on the ground that he was completely unhinged and had lost the balance of his mind so as to become incapable of resisting a sudden impulse.

10. We have given thumb nail summaries of the above mentioned case which are not meant to make prominent all of their salient aspects, but they are sufficient to enable us to state that in order to use in this case the common principle relating to punishment of those precedents counsel argued that there is no allegation of any motive against the appellant for committing the murders. If there was jealousy, he argued, between him and his master over the boy and he had been suffering from and smarting under it while all the three of them lived in one house, then it is possible that any provocation of a disturbing nature, whether it was sudden and grave or not, could have been sufficient for a man of his state of mind to lose full control over his emotions and impulses. After committing the murders he did not try to hide the crime because he himself went to the police station along with blood stained knife and surrendered himself. He confessed his crime before a Magistrate and has not resiled from it at any time afterwards, which shows his personal integrity. He should, therefore, be believed when he states in his con fession that he was angered to see Wasim Gul and Paniro engaged in unnatural sexual act on the night in which he committed the murders. Counsel urged that the entire statement made in his confession must be accepted as a whole without discriminating between the part in which he has confessed the crime as well as the part in which he has described the exculpatory circumstances. In support of the latter contention counsel has referred to Akhtar Ali v. Crown (P L D 1954 Lah. 210), Khuda Bux v. The Crown (P L D 195.4 Lah. 309) and Madan Lal Agarwala v. The State (P L D 1960 Dacca' 813). These judgments do not establish his contention, because the total effect of these three judgments, combined with the judgment in Ramzan Bibi v. The State (P L D 1959 Lah. 996.) is not inconsistent with the proposition that the entire confession must be accepted or rejected when the only acceptable evidence against the confessor is his own confession; but the inculpatory part of a confession can be accepted and exculpatory part rejected if there is corroborative evidence 'to support the inculpatory part.

11. In the present case, there is sufficient corroborative evidence to support the inculpatory part of the appellant's con fession. Additionally, the confession made by him before a Magistrate under section 164, Cr. P. C. in which the appellant has made an exculpatory statement is not the only statement of the appellant. He has unequivocally admitted his crime before the committing and the trial Courts, yet it must be said in favour of the argument pf counsel that the reason given by the appellant in his confession for committing the crime, whether fully established B by the evidence or not; needs to be taken into consideration.

12. There was no other motive of the murders excepting the unnatural relationship between Wasim Gul and Paniro. We are prepared to believe that the appellant was continuously dis tressed owing to it and used to tell his master to give it up. Whether the reason for it was his righteousness or jealousy, he had remained in that state of mental stress when the three of them lived together in the house. We can find no convincing reason for the murders committed on the night of the 12th of June, 1960 excepting that due to some incident, even if it was not actually carnal intercourse at the time of the murders, the appellant to a certain degree lost his self‑control. The probabilities are that there was no piety in it, because a pious person in the circum stances of this case would not have normally killed the evil‑doers. All the same there was probably no clearly deliberate decision to attack and kill. There is a distinction, which is sometime subtle but always real, between the sudden flare‑up of a base impulse resulting in partial loss of self‑control, and the decision of a man to commit murder as a result of enmity grown on and nourished by jealousy, but we have found no fact to conclude from it, or even a suggestion in the evidence that the appellant had harboured ill‑will or was disloyal and inimical towards his master or Paniro. He is a young man of 30 years of age who was living in the house of a butcher, which made a butcher's knife readily available at the critical moment. There is no proof that he had planned to commit the crime.

12. The A. A. G. for the State has argued that in the absence of proof of motive and in the presence of reasons to believe that there was a sudden impulse, in conditions of prolonged mental strain, to commit the murders, Courts have found" good grounds for awarding the lesser sentence of, transportation for life. In support of this stand he has cited (1) Bahadur v. Emperor A I R 1935 Pesh. 78, (2) In re Sankappa Shetty A I R 1941 Mad. 326, and (3) Mehnga Singh v. The Crown A I R 1949 E P 355.

13. We are led in the circumstances of this case to hold that there are sufficient reasons for reducing the sentence of death to that of transportation for life. We do so. Subject to this modification of the order of the learned Sessions Judge, the appeal is dismissed. K. B. A. Sentence reduced.