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Criminal Appeal No. 419/Murder Reference No. 92 of 1967, decided on 30th May 1968.
S. 164---Confession---Retracted confession.---Cannot be grade basis of conviction unless corroborated by some other evidence on record. Accused charged for offence of murder---Retracted confession can he corroborated by recovery of blood-stained hatchet and blond-stained clothes from person of accused.
Evidence--Prosecution evidence disbelieved--Statement of accused, in such case to be taken as a whole.
Ss. 302 & 304, Part I read with AIlG S. 300, Exception 1----Prosecution evidence against accused dis-believed----Retracted confession corroborated by recovery of blood- - stained hatchet and blood-stained clothes fro m person of accused---Accused in statement under S. 342, Cr. P. C., admitting to have killed deceased (his wife) under grave and sudden provocation-Conviction under S. 302 altered to that under S. 304, Part I.
S. 304, Part I read with S. 300, Exception 1----Accused killing his wife under grave and sudden provocation-Sentence-Quantum of-Each case depends upon its own facts-Accused found to have acted in most cruel manner-Sentence of 10 years' R. I., held, would meet ends, of justice, In circumstances of case.
Sh. Inayat Ali for Appellant.
Mustafa Khan for the State.
Date of hearing: 30th May 1968.
---Allah Ditta appellant was convicted under section 302, P. P. C. and sentenced to death for the murder of his wife, Mst. Anwar Mai, by the learned Sessions Judge, Bahawalpur. The appellant against his conviction and sentence has preferred this appeal. The learned Sessions Judge has made a reference under section 374, Cr. P. C. for the confirmation of death sentence awarded to the appellant. Since both the appeal and the reference arise out of the same judgment they will be disposed of together by this order.
2. The appellant had been married to the deceased for the last 14 or 15 years. Their relations were strained because she would not willingly submit to have sexual intercourse with him. A girl was born to the deceased who died subsequently. Later another girl and a boy were born, who are still alive.
3. On the day of occurrence, i.e. the 11th of May 1966, Muhammad Nawaz (P. W. 11) was coming back from the house of one Ghulam Shehbaz Zaildar where he had gone to collect the price of a bullock which he had sold to him and when he came to the canal path, Ahmad Bakhsh Chowkidar (not examined) met him. At about 10/11 a.m. when they had travelled a distance of about 5 or 7 acres and had reached rectangle No. 260/ 15 in Mauza Khrawala they heard cries for help from their left side. They both rushed towards the spot and when they were within 30 karams of the scene of offence they saw Allah Ditta appellant giving hatchet blows to his wife, Mst. Anwar Mai, who died soon after. When they tried to advance forward, the appellant threatened them with dire consequence, if they came near him. The appellant told them that he had killed his wife as she was of immoral character. Muhammad Nawaz P. W. went to the dera of Muhammad Hanif Chairman (P. W. 9) in order to inform him about the occurrence. At the dera he found the Chairman absent, but some other persons were sitting there and he informed them about the occurrence. The Chairman came to the dera later and then Muhammad Nawaz P. W. told him as to what had happened. While Muhammad Nawaz P. W. had gone to the Chairman, Ahmad Bakhsh Chowkidar went to the house of Sabz Ali Lambardar (P. W. 4) reaching there at about 11 or 12 mid-day and informed him that Allah Ditta appellant had murdered his wife. Sabz Ali P. W. and Ahmad Bakhsh then went together to the place of occurrence and found the appellant standing near the dead body of his wife, armed with hatchet Exh. P. 1. Other people had also collected there. Sabz Ali P. W. took away blood-stained hatchet Exh. P. 1 from the appellant and asked him as to why he had killed his wife. The appellant told him that he suspected his wife of having illicit relations with somebody and, therefore, had killed her after bringing her there on the .pretext of cutting wood. Ahmad Bakhsh Chowkidar was then sent by the Lambardar to the police station for reporting the incident. The Chowkidar met Sub-Inspector Abdur Rehman (P. W. 12) at Mauza Janunwala at about 5 p.m. and made statement Exh. P. A., which the Sub -Inspector recorded at his dictation. The said statement was then sent to Police Station Naushera Jadid where Assistant Sub -Inspector Sultan Mahmood (P. W. 3) at 6-15 p.m. on the same day drew up formal first information report Exh. P. A/1 on its basis. The Sub-Inspector after sending the statement to police station went to the place of occurrence after collecting Muhammad Hanif P. W. from his house at Mubarakpur. The Sub-Inspector prepared injury statement Exh. P. J. and inquest report Exh. P. H. of the dead body of Mst. Anwar Mai deceased and sent it to the mortuary for post-mortem examination. He arrested the appellant and from his person recovered shirt Exh. P. 2 and chaddar Exh. P. 3 (both blood-stained) vile memo. Exh. P. C. and made them into separate sealed parcels. Sabz Ali P. W. produced blood-stained hatchet Exh. P. 1, which the Sub-Inspector took into his possession vide memo. Exh. P. B. and made it into a sealed parcel. He also recovered blood-stained earth from the scene of offence ride memo. Exh. P. D. and made it into a sealed parcel. The above recoveries were witnessed by Muhammad Hanif (P. W. 9) and Sabz Ali (P. W. 4). According to report Exh. P. T. of the serologist the cloches and' the hatchet were found to be stained with human blood.
4. On the 12th of May 1966, the Sub-Inspector presented au application Exh. P. Q. before Mr. Taj Muhammad Khan Lodhi, Magistrate First Class (P. W. 5) at Rest House Naushera Jadid, where lie was camping, for the recording of confessional statement of Allah Ditta appellant. The Magistrate after taking all the necessary precautions recorded statement Exh. P. O./1 of the appellant at his dictation.
5. Dr. Abdullah Katpar (P. W. 6) on the 12th of May 1966, at 11-45 a.m. performed post-mortem examination .of the dead body of Mrs. Anwar Mai and found the following injuries:---
(1) The neck was cut by a sharp weapon from one side to the other and was only attached on the left side with the skin.
(2) A cut on the left wrist-joint.
(3) An incised would on the right elbow joint, the bones were broken.
(4) An incised wound, above the left ankle, bones were broken.
(5) An incised wound above the right ankle-joint, bones were broken.
(6) An incised wound on the right lower part of the thigh.
(7) An incised wound on the skull, bones were broken.
(8) An incised wound on the back of the neck at the seventh cervical vertebrae.
(9) An incised wound on the left thumb.
(10) Two incised wounds on the back of the right side just above the scapula.
(11) An incised wound on the left side of the abdomen.
On internal examination the scalp was found cut by a sharp weapon resulting in the skull bones and seventh cervical vertebra broken and membrances cut. Brain tissue in the front portion was also found cut and there was blood all around. Larynx and trachea were also found cut and so were blood vessels of the neck, legs and arms. Uterus was enlarged, congested and fertilised ovum was expelled out indicating that the deceased was pregnant. Muscles, of the neck and both the upper and lower limbs were cut by the respective wounds. Both the upper limbs and the wrist-joint and both the lower limbs at the ankle joints were cut. Skull bones were broken and so was the seventh cervical vertebra. In the opinion of the doctor the injuries, which the deceased had received, were sufficient in the ordinary course of nature to cause death.
6. The appellant denied his guilt and declined to produce any defence. Regarding his confession before the Committing Magistrate he stated that he had made it due to fear as he was told that if he did not make such a statement he would be beaten up. Regarding the actual occurrence he made the following statement:-
"That fact is that I was cutting wood in the jungle while at a distance of about three acres Mst. Anwar was having sexual intercourse with her paramour, Ghulam Rasool. I was enraged to see this and murdered her on account of ghairat and chased Ghulam Rasool, but he ran away. After that I went home and surrendered myself to Ghulam Hussain. There was none present at the spot. Then I produced myself before the Chairman along with hatchet and narrated the whole story."
At the trial regarding confession he stated that he did not remember, if he had mentioned that he had made that confession out of fear, but in actual fact it was not so. He admitted that hatchet Exh. P. 1 was the same with which he had killed his wife, but that he had not produced it before Sabi Ali P. W. He denied having made any extra judicial confession before Sabz Ali P. W. Regarding the actual occurrence he made the following statement:--
"I had come home on 2 or 3 days leave. My mother is an old lady. She asked me to bring some wood for her as in my absence she felt great difficulty. I went to the jungle with the hatchet. As I climbed the tree I saw my wife, Mst. Anwar Mai, having illicit intercourse with one Ghulam Rasool. Before 1 struck the first blow of the hatchet for cutting wood, I saw this. I came down, went to the spot and threw my hatchet. I do not know whether it struck or not. The paramour of my wife ran away and I gave hatchet blows to my wife out of ghairat. Then Ghulam Rasool ran away and 1 followed him for a distance of half a mile but he succeeded in escaping. There was none present at the scene of offence. I came home and surrendered myself to my cousin, Ghulam Hassan. Then I produced myself before the Chairman of the Union Council along with my hatchet."
7. The prosecution case against the appellant rests on:-
(1) Judicial confession Exh. P. O./1.
(2) Extra-judicial confession before Sabz Ali P. W. 4.
(3) Testimony of Muhammad Nawaz (P. W. 11), the alleged eye-witness in this case; and
(4) the recoveries of blood-stained hatchet and blood-stained clothes from the appellant.
8. The learned Sessions Judge placed no reliance on the testimony of Muhammad Nawaz and Sabz Ali Lambardar. P. Ws. for various reasons mentioned in his judgment. The view taken by him regarding .their evidence has not been disputed by the learned counsel for the State. We see no reason to disagree from the learned Sessions Judge as regards his appreciation of their evidence.
9. Now we are left with the confessional statement of the appellant Exh. P. O./ 1 and the recoveries of the blood-stained hatchet and blood-stained clothes from his person. In Exh. P. O./I the appellant made a lengthy statement. Sum and substance of that statement is to the effect that he had taken the deceased to the jungle for helping him in cutting wood and that when he asked her to catch hold of the wood which he had cut, she abused him filthily and he got so provoked that he started inflicting injuries to her with the hatchet which resulted in her death. It is a well-established rule of prudence that when the confession has been retracted no conviction should be based on it unless it is corroborated by some other evidence on the record. In the present case the corroboration is supplied by the recoveries of blood-stained hatchet and blood-stained clothes from the person of the appellant shortly after the occurrence. Even according to the statement of the appellant which was recorded under section 342, Cr. P. C. he admitted having killed the deceased under grave and sudden provocation because he had found her having sexual intercourse with one Ghulam Rasool, her paramour. Therefore, this recovery has corroborative value. It is a well-settled law that when all the prosecution evidence has been disbelieved the statement of the accused has to be taken as a whole. According to his own admission as already mentioned above he had killed the deceased under grave and sudden provocation which would fait under exception 1 to section 300, P. P. C. Under these circumstances) we set aside the conviction and sentence of the appellant under section 302, P. P. C. and convict him under section 304, Part I, P. P. C. As regards the quantum of sentence the learned counsel for the appellant cited some rulings in which under similar circumstances punishment from three months to five or six years had been awarded by this Court in different cases. Each case depends upon its own particular facts, and there is no authority which lays down that in all such cases the punishment should be awarded as desired by the learned counsel for the appellant. In the present case we find that the appellant had acted in a most. cruel manner and we consider that the sentence of 10 years would meet the ends of justice in his case and we order accordingly.
10. In the result, the appellant is convicted under section 304, Part I, P. P. C. and sentenced to 10 years' rigorous imprisonment. The sentence of death awarded to the appellant is not confirmed. The appeal is accepted to the above extent.
Appal partly accepted.
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