1981 P Cr (PLP)

NASIR ASLAM ZAHID, J.-The appellant Uris son of Haji Khaskheli has been convicted by the Ex-Officio Additional Sessions Judge, Badin under section 302, P. P. C. for murdering Mst. Noon and sentenced to death. The appellant has also been ordered to pay compensation of Ids. 5,000 to complainant Achar (father of deceased Noori) and in default of payment of compensation to suffer R. I. for three months. The appellant has filed this appeal under section 410, Cr. P. C. and the case has also been referred to this Court for confirmation of the death sentence. We had- heard arguments of the learned counsel for the appellant as well as the State on 12th July, 1980 and at the conclusion of the arguments by a short order we had dismissed the appeal as regards the conviction but reduced the sentence from death to imprisonment for life. We are giving here reasons for the order passed by us on 12thJuly, 1980. 2 The First Information Report was lodged by P. W. I Achar, at 6-30 a. m. on 18th May. 1976 at Police Station Pangrio, District Badin. According to the F. I. R. complainant resided in village Fazal Chandio alongwith with his mother-in-law, Mst. Khairi (P. W. 2) and two brothers, in law namely Choudhry (P. W. 3) and Jam. The complainant had two daughters Mst. Bhaghan and Mst. Noori (deceased) and deceased Mst. Noori was married to the appellant about a year before the filing of the report and in exchange Mst. Khatiani, sister of the appellant, was married to P. W. 3 Choudhry, complainant's brother-in-law. According to the F. I. R. after some time of the marriage the appellant started maltreating Mst. Noori and ultimately drove her out from his house and since then she was residing with the complainant and on account of this there were strained relations between the parties. After about three months of marriage Choudhry divorced appellant's sister Mst. Khatiani, and accord ing to baradari faisala appellant divorced Mst. Noori who continued to reside with the complainant. As she was young, the complainant got her married to one Ali Mohammad son of Mobin Khaskheli. This annoyed the appellant. On 17th May, 1976 at evening time the complainant was sitting in his house while his two brothers-in-law, Choudhary and Jam, had gone to their lands for their water turn and Mst. Noori and complainant's mother-in-law, Mst. Khairi, went there taking tea for them. After some time cries of "Ghora" "Ghora" were heard from the south of the village on which the complainant came out from his house and saw Ali Mohammad and other village people running to that place. When the complainant reached near the old bhada of watercourse he saw the dead body of his daughter Mst. Noori lying in water with hatchet injuries given with sharp side on her head and other parts of the body. The complainant saw Choudhry, Jam and Mst. Khairi standing over the dead body. On the complainant's inquiring from Choudhry, he informed that Choudhry and Jam were on turn of water in the field and Mst. Noori and Mst. Khairi after giving them tea were returning home and when they reached near bhada of the watercourse, Mst. Noori raised cries and they saw the appellant armed with a hatchet running behind Mst, Noori. Choudhry and Jam started running towards them and challenged the appellant not do anything wrong. In the meantime Mst. Noori fell down in the water and the appellant started giving hatchet blows to her with sharp side within sight of Choudhry and Jam. After killing her the appellant ran away with the blood-stained hatchet. The dead body was then placed on a cot under a tree. According to the complainant as it was night and on account of unavailability of conveyance, he remained at home and early next morning along with Ali Muhammad lodged the report at P. S. Pangrio.

3. The prosecution case is based on the ocular testimony of P. W. 2 Mst. Khairi and P. W. 3 Choudhry. Corroboration is through the evidence of the complainant P. W. 1 Achar. Further corroboration is from the fact of the appellant surrendering himself on the next day i.e. 18th May, 1978 before Police Constable Din Muhammad P. W. 4 at Jhudo Check Post wearing blood-stained clothes. Constable Din Muhammad informed S. H. O. of .Police Station Pangrio where the appellant was taken and mashirnama of arrest was prepared: The appellant then produced the blood-stained hatchet from his house. Chemical examiner's report was positive as regards the clothes and hatchet of the appellant. Then there is the judicial confession recorded on 19th May, 1976 before P. W. 7 Ali Mohammad Rizvi, Civil Judge and Magistrate First Class, Matli. The confession which was retracted by the appellant is in the following terms:- "Deceased Noori was my wife. Six months back she went to her mother and father. They detained her in their house. My father- in-law and mother-in-law were trying to marry her with Zamindar Ali Muhammad son of Mobin Khasklteli village Fazal Khan Chandio. Day before yesterday in the evening at 5 p. m. she was going to lands and I was also going to lands. I bad hatchet. On seeing her I became angry and ghairat came to me. I gave hatchet blow on her mouth. She fell down. I went to Jhudo. I kept hatchet in my home. I went to P. S. Jhudo and confessed my guilt. Today I am produced here."

4. P. W. 1, Achar, the complainant and father of the deceased Mst. Noori, had also produced a divorce deed (Exh. 6) executed by the appellant and the deceased Mst. Noori. The divorce deed is, witnessed by 16 persons.

5. In his statement before the trial Court under section 342, Cr. P. C. the appellant denied the charge as false and also denied the blood-stained clothes and hatchet to be his. In answer to the question regarding the judicial confession (Exh. 21) made by him on 19th May, 1976 before the Civil Judge and Ist Class Magistrate, Matli; the appellant replied that be was maltreated and his sister and brother's wife were disgraced by the Police and the confession was extracted falsely from him. In reply to the question whether he had anything else to say, the following reply was given by the appellant:- "Confession written in Urdu was not read over to me into Sindhi. I could not understand it. I had not divorced the deceased. My father-in-law had taken her and gad illegally married her with Ali Muhammad, old man of 60 years having one eye. My wife did not go to him. She was "coming to my house. P. Ws. killed her and implicated the falsely in this case."

6. The defence examined two witnesses, namely, Arzi son of Loung Khaskheli and Nimro son of Pir Muhammad Chandio, both residents of Fazal Khandio village. Both defence witnesses in their deposition before the trial Court stated that the appellant had not divorced the deceased but her father Achar P. W. 1, had taken her forcibly to his house sometime prior to her murder and wanted her to marry the old man Ali Mohammed but she refused to marry him and insisted in going back to her husband, the appellant. According to the defence witness Arzi, the complainant had killed her and according to the defence witness Nimro, her relations had killed her because she did not want to go with Ali Muhammad. Both the witnesses stated that the appellant had been falsely implicated in the case. However, in their respective cross-examination, both the witnesses admitted that they had no direct knowledge of the facts and their evidence regarding divorce, pressure of Achar on the deceased to marry Ali Muhammad and the murder of Mst. Noori was all hearsay evidence.

7. We have heard Mr. Muhammad Hayat Junejo, learned counsel for the appellant and Mr. Shaukat Zuberi for the State. Mr. Junejo for the appellant has questioned the veracity of the ocular evidence on the ground that both the eye-witnesses, namely, P. W. 2 Mst. Khairi and P. W. 3 Choudhry were interested witnesses and that there were some contradic tions in their testimony. Learned counsel has further argued that corrobo ration of the eye-witnesses through the evidence of P. W. 1, Achar, is also suspected inasmuch as the testimony of Achar is itself interested, he being the father of the deceased. His further contention was that jam, brother of P. W. Choudhry, who was an eye-witness according to the F. I. R. and the prosecution and Ali. Muhammad had not been examined and this had weakened the case of the prosecution.

8. We have not found any material contradictions or discrepancy in the testimony of Mst. Khairi and her son P. W. Choudhry who have confirmed the prosecution case as made out in the F. I. R. P. W. 1, Achar, the complainant, corroborates the evidence of these two eye. witnesses. Mr. Muhammad Hayat Junejo, learned counsel for the appellant had attacked the evidence of P. W. 1 Achar on the ground that in the F. I. R. he had not stated that he had seen the appellant at the time of the incident but he had only repeated what was told to him by the eyewitnesses Mst. Khairi and Choudhry, but in his evidence before the trial Court he had stated that he actually saw the accused running away. We agree with the learned counsel for the appellant to the extent that this is an improvement on the version given by him in the F. I. R. but this solitary factor in itself, according to our view, is not sufficient for rejecting the entire evidence of P. W. Achar. Except for this improvement, the evidence of P. W. Achar corroborates the evidence of the two eye-witnesses in all essential and material respects. The three witnesses are no doubt closely related to the deceased and their evidence requires scrutiny with care and caution. In our view, however, the trial Court has very carefully apprai sed the evidence of the two eye-witnesses and P. W. Achar and correctly believed their evidence that it was the appellant who had killed Mst. Noori.

9. The prosecution case built up on the ocular evidence of the two eye-witnesses finds further corroboration from the fact that the appellant had given himself up to the police on the next day after the incident and from the blood-stained clothes which the appellant was wearing at time he surrendered himself to the police and the blood-stained hatchet which was produced by the appellant from his house.

10. The judicial confession of the appellant is another piece of evi dence which was relied upon by the prosecution for corroboration purposes. This confession was retracted by the appellant while making his statement under section 342, Cr. P. C. and standing alone it could not sustain the conviction of the appellant but it can be brought into aid by the prosecution for corroboration. However, before the retracted judicial confession can be admitted for purpose of corroboration, it is to be seen whether precau tions prescribed by law have been duly observed by the Magistrate concern ed and other legal formalities complied with. In the present case the trial Court has rejected the judicial confession of the appellant on the following two grounds:- (i) The confession had been recorded in Urdu and there was nothing on the record that the confession was read over to the appellant with translation into Sindhi and that be had admitted the contents of the confession to be true. (ii) the Magistrate has not mentioned in the confessional form that he had informed the appellant that he was a First Class Magistrate and that he also bad not assured the appellant that he would not be remanded to police custody in any case."

11. We are not impressed with the reasons given by the Magistrate Just because it is not mentioned that the confession was read over to the appellant with translation into Sindhi does not necessarily mean that this was not done 'by the Magistrate. lit his cross-examination the Magistrate has stated that he understood Sindhi language and the appellant made his confession in Sindhi which was translated by the Magistrate in Urdu and he had read over the confession to the appellant in Urdu which he under stood and also admitted the same. As regards the other objection, the Magistrate in his evidence has clearly stated -that he had informed the appellant that he was a first class Magistrate and that he had assured the appellant that whether be makes a confession or not he would not be remanded back to police custody. In fact in his statement under section 342, Cr. P. C. he has admitted that he was taken before the Magistrate but that the confession was extracted from him. In the face of this evidence given by the Magistrate and as reasons for rejecting the confession given by the trial Court in its judgment are not material enough, the judicial confession could not be brushed aside only on the grounds men tioned by the trial Court. The judicial confession of the appellant therefore, is another piece of evidence which lends further support to the prosecution version, although in our view the prosecution case stands proved even if the judicial confession is excluded from consideration. The trial Court has rightly appraised the evidence and we see no ground for interfering with the judgment of the trial Court convicting the appellant under section 302, P. P. C.

12. For considering the question of sentence motive for the crime has assumed importance in the circumstances of the case. The motive for the crime advanced by the prosecution was that although the deceased Noori had been divorced by the appellant about an year before the incident the appellant was annoyed on account of Achar getting Mst. Noori married to the old man Ali Muhammad who had one eye only. In support of the allegation that Mst. Noori had been divorced, divorce deed was produced by the complainant Achar while giving evidence before the trial Court as Exhibit

6. On a perusal of the divorce it was found that the dissolution of marriage was supposed to have taken place by consent of both Mst. Noori and the appellant as matrimonial life had become miserable and husband and wife not being able to live together in spite of their best efforts. Mr. Muhammad Hayat Junejo, learned counsel for the appellant, has strongly attacked the genuineness of this document. His main attack against the divorce deed was the fact that the same was not put to the appellant. Additionally under the Family Laws Ordinance, 1961 a divorce does not complete until the expiry of 90 days counted from the date the copy of the divorce deed notice under section 7 of the Ordinance, 1961, is received by the Civil Judge concerned. In the present case there was no evidence that the prescribed formalities under the Family Laws Ordinance, 1961 had been complied with. We agree with the learned counsel for the appellant that no reliance can be placed upon this divorce deed for the reasons advanced by him and the same should have been rejected by the trial Court. Further the divorce deed is witnessed by as many as 16 persons out of whom some put their left thumb impressions and other their signatures on the document. A divorce deed is generally witnessed by two persons and on account of the fact as many as 16 persons are supposed to have witnessed this deed, serious doubt is, cast about the genuineness of this document. Then in case the divorce deed and its con tents are accepted as correct, there would remain no motive for the appellant to kill Mst. Noori as from the contents of the divorce deed it is evident that both parties by mutual consent had brought the bond of marriage to an end and the appellant bad voluntarily divorced Mst. Noori as the matrimonial life with her had become miserable. On the other hand if the divorce had not been pronounced by the appellant upon Mst. Noori there would be a strong motive for the appellant to kill Mst. Noori as then Mst. Noori would be living with Ali Muhammad in sin. In any case the divorce deed ought to have been rejected and not relied upon as it was never put to the appellant and other reasons given in this paragraph.

13. After having dealt with the question of motive we are of the view that the lesser sentence of imprisonment of life would meet the ends of justice in the facts and circumstances of the present case. It has come in the evidence of P. W. Achar, father of deceased that Mst. Noori had been married to the old man Ali Muhammad only three days before the incident. If the deceased had not been divorced by the appellant, and as observed in the previous paragraph we have not believed the divorce deed, it was a case where the appellant was provoked to kill his wife Mst. Noori when he suddenly came across her for the fist time after her marriage with Ali Muhammad.

14. In the circumstances the appeal of the appellant Uris son of Haji Khaskheli against his conviction under section 302, P. P. C. is dismiss ed but his sentence of death is reduced to imprisonment for life. Reference for confirmation of death sentence is rejected. Order accordingly.