1977 P Cr (PLP)

Ehsan Qadir Shah for Appellant. Saeed K. Haq for the State. JAVID IQBAL, J.‑Faiz Muhammad son of Nur Muhammad, aged 26 years, has been convicted under section 302, P. P. C. for the murder of his‑wife Mst. Bevi and was sentenced to death vide judgment dated the 11th of October, 1973, of the Additional Sessions Judge, Sargodha. His co‑accused and uncle Fateh Muhammad was acquitted: The appeal of the convict is before us which is being disposed of by this judgment along with reference for the confirmation of death sentence awarded to him.

2. The occurrence took place at Nimashanwela on the 3rd of June 1972, in the but of the appellant in Chak No. 58/M.B., at a distance of 13 miles from Police Station Saddar Sargodha. F. I. R. (Exh. P. A.) Was lodged by Muhammad Hayat (P. W. 8) maternal uncle of the deceased at 11‑00 a.m. on the 6th of June 1972 (three days after the occurrence) and it was recorded by Muhammad Bashir A. S. I. (P. W. 12).

3. The motive for crime as set up by the prosecution is that the appel lant was not on good relations with his wife. She had quarrelled with him and was living with her parents. But three months before the occurrence he made peace with her and brought her to his hut. It is stated that he suspect ed the deceased of infidelity and for having illicit relations with one Muhammad Hassan.

4. There is only one eye‑witness of the occurrence produced by the prosecution, namely, Fateh Muhammad (P. W. 7) who is unconnected. There is also evidence of extra‑judicial confession having been made by the appellant in the presence of Muhammad Hayat (P. W. 8), Muhammad Khan lambardar (P. W. 9) and Muhammad Amir (P. W. 10). It may be noted that the deceased had disappeared a few days before the report was lodged and the F. I. R. was lodged on the same day when the appellant is stated to have made the extra‑judicial confession.

5. The appellant was arrested on the 6th of June 1972 by Muhammad Bashir A. S. 1. (P. W. 12). After his arrest he led to the recovery of the dead body of Mst. Bevi, which was buried at a short‑distance from his but and was taken into possession vide memo. Exh. P. B. dated 6th of June 1972. The attesting witnesses are Muhammad Hayat (P. W. 8), Muhammad Amir (P. W. 10) and Muhammad Bashir A. S. I. (P. W. 12). He also led to the recovery of blood‑stained toka P. 4 which was taken into possession vide memo Exh. P. H., dated the 6th of June, 1972. The recovery witnesses are Muhammad Khan (P. W. 9), Muhammad Amir (P. W. 10) and the inves tigating officer. He likewise produced his blood‑stained clothes from his house, i.e. shirt P. 6 and chaddar P. 7 that were taken into possession vide memo Exh. P. K. dated the 6th of June, 1972. The attesting witnesses are Muhammad Khan lambardar (P. W. 9) and Muhammad Amir (P. W. 10) besides the investigating officer. According to the Serologist's report (Exh. P. C.) Scrapings and cloth cuttings from the above‑mentioned articles were found to be stained with human blood.

6. Dr. Muhammad Obaid‑ur‑Reham (P. W. 1) conducted post‑mortem examination on the dead body of the deceased on the 6th of June 1972. The body was putrefied. He found on her person eight incised injuries on the head, face, neck and right forearm. The death, in his opinion, was due to shock and haemorrhage caused by injuries to vital organ like brain. All the injuries were caused by sharp‑edged weapon and were sufficient to cause death in the ordinary course of nature. According to him the time between death and post‑mortem examination was within 24 days.

7. The appellant in his statement before the Committing Magistrate had denied that he suspected the deceased for having an illicit liaison with one Muhammad Hassan. However, before the trial Court he totally denied having participated in the occurrence, disowned recoveries as well as extra judicial confession and stag‑d the dead body of tile deceased was not recovered at his pointing out. He further stated that he suspected the deceased of having illicit relations with Muhammad Hassan. According to him the deceased was a woman of easy virtue and that she had been roaming with men of loose character and was murdered by someone.

8. In the F. I. R. the occurrence is stated to have taken place in the following manner. The appellant was married to the deceased 8/9 years prior to the occurrence and in exchange the sister of the appellant Mst. Sahib Khatoon was married to the uncle of the deceased, namely, Nur Muhammad. Mst. Sahib Khatoon was happily married but the deceased did not have good relations with the appellant and frequently quarrelled with him and came to live with her parents. The appellant suspected that she was carrying on with one Muhammad Hassan. However, three months prior to the occurrence he reconciled with her and took her to his but. A day before the report was lodged Muhammad Hayat P. W. went to the mother of the 'deceased on her summons and was told that two days before the deceased had taken meals for the appellant but had not returned. Thereupon, Muhammad Hayat P. W. along with Muhammad Amir P. W. and Sardar Bakhsh (not produced) went to the appellant and inquired from him about the deceased. The appellant stated that on that day after giving him meals, she had left and that may be she had gone to visit some of her relatives. Muhammad Hayat P. W. made inquiries from all her relatives but could not trace her. However, on the day the F. I. R. was loged he went again to the appellant along with Muhammad Amir P. W. Sardar Bakhsh (not produced) and Muhammad Khan lambardar P. W. They again inquired from the appellant about the deceased. After great persuasion the appellant fell down on the feet of Muhammad Hayat and Muhammad Khan P. Ws. and in their presence stated that since the deceased was not willing to live with him and he was getting a bad name due to her, he murdered her with a toka in the company of his uncle Fateh Muhammad acquitted co‑accused who was armed with a hatchet at his dera in the chappri and thereafter dug a grave in a nearby field and buried her dead body. He stated that he could point out the place of her burial to the police. While the murder was being committed Fateh Muhammad (P. W. 7) was attracted to the scene of crime due to the shrieks of the deceased and had witnessed the occurrence. But the appellant and the acquitted co‑accused had pleaded to him not to men tion this to any one as it was their domestic affair. When the appellant had made this extra judicial confession Muhammad Hayat, Muhammad Amir and Muhammad Khan P. Ws. contacted Fateh Muhammad P. W. who had disclosed to them that on the foregone Saturday he was returning at Nimashanwela towards Chak No. 58/N.B. when he passed by the but of the appellant he heard the shrieks of the deceased and rushed to the scene of crime. A deva was burning in the but and he saw that the appellant was armed with toka and his uncle armed with a hatchet and both of them were murdering the deceased. At soon as they saw him they begged him not to tell to any one as to what lie had seen. On this account he maintained silence. Thereafter leaving the appellant in the care of Muhammad Khan lambardar and Muhammad Amir P. Ws, at the but, Muhammad Hayat P. W. went and lodged the report.

9. We have heard learned counsel for both the sides and carefully perused the record. Learned counsel for the appellant has attempted to make out a case that according to the medical evidence the time between the death and post‑mortem examination of the dead body of the deceased was within 24 days and when the medical officer conducted the post‑mortem examination the dead body had putrified, indicating that the deceased may nave been murdered many days before the report was lodged. It was argued that the single eye‑witness of the occurrence, namely, Fateh Muhammad P. W. was merely a chance witness and could have not possibly seen the occurrence. It was then argued that apparently the extra judicial, confession was unreliable for the reason that Muhammad Khan P. W. was lambardar, holding an office of authority, Muhammad Hayat P. W. was maternal uncle of the deceased and Muhammad Amir P. W. was a co‑tenant under the common landlord with the father of the deceased. The argument was that an extra judicial confession made before a person in authority and relatives or friends of the family of the deceased should not be relied upon. It was then submitted that the same persons had appeared as witnesses of the recoveries in this case; namely, of the dead body, toka P. 4 and blood‑stained clothes belonging to the appellant, i.e., shirt P. 6 and chaddar P.

7. Therefore, the recoveries should also be considered as doubtful. We have carefully examined the arguments of learned counsel but find them without any substance. The P. Ws. in this case are not in any way hostile to the appellant and they have no motive for implicating him falsely. It may be pointed out that the sister of the appellant namely, Mst. Sahib Khatoon, is happily married to the uncle of the deceased. According to the prosecution version, the appellant did not have good relations with the deceased and for this reason she stayed mostly with her parents. However, three months prior to the occurrence the appellant made reconciliation with her. That being so the relatives of the deceased could possibly have no enmity against him. It appears from the record that the appellant had made a but in the land of one Sher Muhammad and lived there as his tenant and the deceased would take meals for him from the house of her mother. She went to deliver his meals and was not heard of thereafter for a couple of days. Inquiries were made about her by her maternal uncle Muhammad Hayat P. W. but she could not be traced. This was the reason why the lodging of the report was delayed. It is further evident from the record that the F. I. R. was lodged on the very same day when the appellant had made an extra judicial confession for having committed the murder of the deceased in the presence of Muhammad Amir, Muhammad Hayat and Muhammad Khan P. Ws. Even if we were to disbelieve the ocular account of the sole eye‑witness, namely, Fateh Muhammad P. W. and were to discard his testimony as a chance witness, we have no reason to disbelieve the evidence of extra judicial confession made by the appellant in this` case for it is corroborated by the recoveries which were made at his pointing out. According to the prosecution version the dead body of the deceased was buried by the appellant at a short distance from his but in a field. It was not lying in the open. It could only be dug out at the pointing out of no other person than the one who had buried the deceased. According to the prosecution the dead body of the deceased was recovered from place of her burial at the pointing out of the appellant, just, as blood‑stained toka P. 4 and blood‑stained clothes P. 6 and P. 7 belonging to the appellant were recovered at his instance. We have already observed that the P. Ws. in this case have no motive to falsely implicate the appellant and if we are to rely on the extra‑judicial confession there is no reason why we should not rely on the testimony of the sole eye‑witness of the occurrence, namely, Fateh Muhammad P. W. In the light of the above discussion we are of the considered opinion that the prosecution has succeeded in establishing its case against the appel lant. Therefore, his conviction under section 302, P. P. C. was quite proper and is accordingly maintained. As for the sentence, we are of the view that admittedly the appellant had suspected that the deceased was not willing to ~ live with him because she had developed illicit relations with Muhammad Hassan. We consider this as an extenuating circumstance and are of the opinion that in the circumstance the infliction of the lesser penalty to the appellant would be sufficient to meet the ends of the justice. It is accordingly so ordered. The result is that the conviction of the appellant under section 302, P. P. C. is maintained but his sentence of death is altered to that of imprisonment for life. With this modification the appeal is dis missed.

10. The death sentence awarded to the appellant is not confirmed.