P L D 1960 (W (PLP)

ABDUL AZIZ KHAN, J.‑

Khan Muhammad was tried by the learned Additional Sessions Judge, Montgomery, under section 302 of the Pakistan Penal Code, the allegations against him being that, on the night between the 20th and 21st of August 1959, at about 3‑30 a.m., he had murdered his wife Mst. Saidan, in his house situated in Mohalla Galla Mandi, Montgomery. By his order dated the 12th of October 1959, the learned Additional Sessions Judge convicted Khan Muhammad and sentenced him to death. The condemned person has appealed to this Court against his conviction and sentence through the jail authorities. The cash is also before us under section 374 of the Code of Criminal Procedure. This judgment will dispose of the appeal as well as the reference for confirmation of the death sentence.

2. Briefly stated the facts out of which this appeal arises are that on the night of occurrence, i.e., 20th and 21st of August 1959, while Siraj Din (P. W. 2), Kamir (P. W. 3) and one Imam Din were on patrol duty in Galla Mandi, Montgomery, Siraj Din P, W. left his companions and proceeded towards his house in order to have a drink of water. The house of the appellant adjoins that of Siraj Din P. W. while Siraj Din P. W. was in his house, he heard a noise from the house of the appellant. Siraj Din P. W. went on to the roof of his house and looked into the courtyard of the appellant's house from over the common wall. Siraj Din P. W. saw that the appellant was holding his wife Mst. Saidan deceased with one hand and had a toka in the other. Siraj Din P. W. heard Mst. Saidan entreating the appellant to spare her. The appellant paid no heed to her entreaties and gave toka blows on her head and then dragged her into the kotha of his house. Siraj Din P. W. raised an alarm which attracted Kamir P. W. and Imam Din to the scene of occurrence. Siraj Din and Kamir P. Ws. and Imam Din tried to apprehend the appellant who succeeded in making good his escape. Thereafter, a number of people assembled at the spot. The prosecution witnesses went into the house of the appellant and saw Mst. Saidan lying dead in her kotha. Siraj Din P. W. went to Police Station Saddar and lodged the first information report Exh. P. A./1 on the 21st of August 1959; at about 5‑30 a.m.

3. Assistant Sub‑Inspector Muhammad Ramzan (P. W. 14) reached the spot at 5‑30 a.m. and saw Mst. Saidan's dead body lying in the kotha of the appellant's house. The A.S.I, prepared the inquest report and sent the dead body to the mortuary for post‑mortem examination. The A. S. I. collected bloodstained earth from the courtyard of the appellant's house and sealed it into a parcel vide memo. Exh. P.B. He also collected blood stained earth from the kotha of the house of the appellant anti sealed it into a parcel vide memo. Exh. P. C.

4. The A. S. I. arrested the appellant on the 23rd of August 1959, at village Jandwala, District Bahawalnagar, At the time of the arrest, the appellant was wearing the dopatta Exh. P. 8 and a piece of cloth Exh. P. 9 round his neck. As these garments bore bloodstains, the A. S. I. took them into possession and sealed them into a parcel vide memo. Exh. P. F. On the 24th of August 1959, the appellant led the A. S. I. and others to a graveyard and produced the toka Exh. P. 1 which the A. S. I. sealed into a parcel vide memo. Exh. P. D.

5. Doctor Abdul Qayyum Malik (P. W. 1), who conducted the post‑mortem examination on the 21st of August 1959, at 5‑30 p.m., observed the following injuries on Mst. Saidan's dead body:‑-- (1) Two incised wounds, 4" x 1" x 2 ", and 3 " x 1" x 2" on the left side of her neck, parallel to each other. (2) A bruise, 4" X 2", between the two wounds. (3) An incised wound, 1" x " x 1", below the right clavicle. (4) A contusion, '' x ", on the outer side of the right knee. Death, in the opinion of the doctor, was the result of bleeding from incised wounds to the neck. The doctor was also of the opinion that injuries Nos. 1 and 3 could have been caused with the toka Exh. P. 1.

6. While making his statement before the committing Magistrate, the appellant admitted having given a toka blow to his wife Mst. Saidan in the courtyard of his house and having produced the toka Exh. P.

1. He further admitted that at the time of his arrest the A. S. I. removed the dopatta Exh. P. 8 and the piece of cloth Exh. P. 9 from his person.

7. At the trial, the appellant admitted that his statement before the Committing Magistrate was correct. He, however, added:‑-- "The toka Exh. P. 1 belongs to me. I murdered my wife with it. This was because on return from the cinema at about midnight. I found her lying on the bed with Mistri Abdul Ghani and in fact I killed her then and there, and not at 3‑30 a.m. Abdul Ghani ran away."

8. The conviction is based on (1) the statement of Siraj Din (P. W. 2), the eye‑witness of the occurrence, (2) the statement of Kamir (P. W. 3), who saw the appellant running away from his house after the occurrence, (3) the recoveries referred to above, and (4) the admission of the appellant before the Committing Magistrate and at the trial.

9. We have carefully perused the site plan Exh. P. J. According to the site plan, the roof of the house of the appellant and that of the house of Siraj Din P. W. are separated by a common wall. Thus, Siraj Din P. W., who is a neighbour of the appellant, could have looked into the courtyard of the appellant's house. We have carefully considered the evidence of Siraj Din P. W. He is a disinterested witness and has no motive to implicate his neighbour in a false case. The statement of Siraj Din P. W. is amply corroborated by Kamir P. W., who was on patrol duty along with Siraj Din P. W. on the night of the occurrence. Kamir P. W. stated that he was on patrol duty and that Siraj Din P. W. left him to go to his house to have a drink of water. A short while after, Siraj Din P. W. raised an alarm saying that the appellant was killing his wife. On this alarm, the witness and his other companions went towards the house of the appellant. On reaching there, they saw the appellant come out of the lane with a toka in his hand. The above statement of Kamir P. W. substantially corroborates the statement of Siraj Din P. W. Karim P. W. too had no motive to implicate the appellant in a false case. In the circumstances, we have no hesitation in holding that Siraj Din P.W. saw the occurrence as alleged by him.

10. A. S. I. Muhammad Ramzan (P. W. 14) removed the bloodstained earth from the courtyard and the room of the house of the appellant. According to the Serologist the two packets of earth forwarded to him were stained with human blood. This circumstance also supports the statement of Siraj Din P. W. that the appellant caused the first injury to his wife in the court yard and then dragged her into the kotha. The recovery of the dopatta and the chadar is admitted by the appellant. It is, there fore, unnecessary to refer to the evidence of the attesting witnesses. According to the Serologist's report, the dopatta and the chadar were stained with human blood.

11. Relying on the statement of the appellant that on his return from the cinema he saw his wife Mst. Saidan lying with Mistri Abdul Ghani on the same charpoy, the learned counsel argued that the appellant murdered Mst. Saidan under grave and sudden provocation.

12. Learned counsel for the appellant urged that the appellant's statement at the trial; which is a qualified admission, has to be accepted or rejected as a whole. He, however, did not refer to any authorities. It is a well‑established principle of law that where the circumstances of a case compel the Tribunal to reject all the other evidence and act only upon a confession, the confession must be used literatim et verbatim. But when there is other evidence, direct or circumstantial, showing that the exculpatory part is false, the Court is at liberty to reject it an a act upon the inculpatory part. For instance, where a confession, A comprises of two elements, viz. (a) an account of how the accused killed the victim, and an exculpatory part, (b) an account of the reasons for doing so. If the inculpatory part commands belief, while the exculpatory part is shown to be false by direct or circumstantial evidence on the record, the Court in such a case; may accept and act on part (a) and reject part (b).

13. In Balmukand v. Emperor (A I R 1930 All. 1), a Full Bench of five Judges held "Where there is no other evidence to show affirmatively that any portion of the exculpatory statement in the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently incredible." The principles enunciated in Balmukand's case have been acted upon in the following cases.

14. Jumma Fateh Muhammad v. Emperor (A I R 1932 Lah. 438). The facts of this case were that the accused had stated at the trial that on the day in question, his wife had gone to his haveli to clean it, and that while he was outside the haveli, he heard his wife's screams. He went inside and saw that the deceased had caught hold of his wife by the waist and had thrown her down. The deceased and the accused then grappled together and the latter picked up an axe which happened to be lying there and inflicted a blow upon the head of the deceased with it. The learned counsel for the appellant urged that the confessional statement of the accused must be taken as a whole. Their Lordships observed that a perusal of the record showed that the exculpatory statement was not true. Their Lordships, therefore, did not act on the exculpatory part and only acted on the inculpatory part.

15. In Sher Gul v. Emperor (A I R 1935 Lah.671), the learned Sessions Judge disbelieved all the eye‑witnesses and convicted Sher Gul solely on his own statement. On appeal, it was argued that Sher Gul's statement that he had killed the victim in self‑defence should have been taken in its entirety. Young, C. J. and Abdul Rashid, J. observed :‑ "Where there is no other evidence to show affirmatively that any exculpatory statement in the confession is false, the Court must accept or reject the confession as a whole."

16. Addison and Din Muhammad, JJ. considered this proposition of law in Ghulam Nab! v. Emperor (A I R 1938 Lah.850) and held :‑ "Where there is evidence to show that any portion of the exculpatory statement in a confession of the accused is inherently improbable, the Court is at liberty to reject that portion of the statement which appears to it to be so improb able and to act only upon that part of the statement which is inculpatory."

17. In Nihal Singh v. Emperor (A I R 1940 Lah. 157), Young, C. J. and Tek Chand, J. observed :‑ "Where a part of the confession by the accused is found to be false, the Court may consider only the part which is found to be true and need not take into account the confession as a whole."

18. We have carefully considered the evidence on the record. With the exception of the appellant's own statement, which is a belated one, there is no other material on the record to show that Abdul Ghani was in the house or was seen near the house of the appellant at the material time. In fact, Siraj Din and Kamir P. Ws. were not cross‑examined on this point at the trial. There is, however, evidence on the record that for some time before the occurrence the appellant had been saying that his wife was of an immoral character. In cross‑examination Siraj Din P. W. stated as follows:‑-- "It was the accused alone who gave out that the deceased had illicit intimacy with Muhammad, brother of the accused, and then later said that his suspicion about Muhammad was incorrect and that he knew that she had illicit intimacy with this Abdul Ghani Mistri. The mother of the deceased told me of this, a few days before the occurrence. Before the murder the accused was saying to the deceased that she was unfaithful to him, but he did not name anyone with whom she was unfaithful in my presence." The above statement of Siraj Din P. W. shows that the appellant] seriously suspected his wife's fidelity. It appears that the appellant had been brooding over her infidelity and then decided to get rid of her to save his reputation and good name. This would not amount to grave and sudden provocation. It may, however, be an extenuating circumstance for not imposing the normal penalty of death.

19. For the reasons given above we maintain the conviction of the appellant under section 302 of the Pakistan Penal Code, but alter his sentence from death to transportation for life. Except for the modification made above, the appeal is dismissed. The sentence of death is not confirmed. K.B.A. Sentence altered.