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Criminal Appeal No. 581 of 1965, decided on 30th November 1967.

‑Witness‑Evidence‑Prosecution witness resiling in Sessions Court from statement made by him before com mitting Magistrate‑ Witness cross‑examined before committing Magistrate‑Conviction of accused cannot be based on statement of witness made before committing Magistrate.

Imtiaz Rabbani v. The Crown P L D 1956 Lah. 657 fol.

S. 24‑Confession‑Extra judicial confession‑Accused retracting confession and recoveries sought to corroborate same not connecting him with crime Conviction held cannot be based on such confession.

Ss. 302 & 304, Part I Accused finding his wife in compromising position with another, losing self‑control and killing her‑Murder, held, committed on grave and sudden provocation‑Conviction under S. 302 altered to that under S. 304, Part I and sentence of transportation for life reduced to 3 years' imprisonment.

Appellant present in police custody.

R. S. Sidwa for A: G. for the State.

‑Abdul Ghafur aged about 38 years was tried and convicted by the Sessions Judge, Dera Ghazi Khan under section 302 of the Pakistan Penal Code, for having murdered his wife Mst. Pathani on 15th August 1964, with a kassi (Exh. P. 1) in village Jhok Makwal and has been sentenced to transportation for life. Abdul Ghafur has appealed against the said judgment and this judgment will dispose of the appeal.

2. The prosecution case is that on the 14th August 1964, the accused had found his wife with one Budha in a compromising position, that he slapped Budha and that in consequence of this incident, Mst. Pathani left his house and went for safety to the house of her father, Khuda Bakhsh P. W. 9 and that the next morning between 8 and 9 a.m. the accused went to the house of Khuda Bakhsh and attacked his wife, Mst. Pathani, in the courtyard of Khuda Bakhsh' s house with a kassi Exh. P. 1 and killed her and that after committing the murder, the accused went to the dera of the Lambardar of the village, Malik Noor Muhammad, P. W. 10 and informed him that he had committed the murder and wanted to report to the police. Thereupon Noor Muhammad P. W. 10 took the accused to find the police and they found the police at village Chatool, which is about two miles from the place of occurrence. Noor Muhammad found Pir Bakhsh, Head Constable P. W. 15, who recorded his statement Exh. P. C. at about 10 a.m. This statement was brought by Foot Constable Abdul Ghani to the police station Harna and at about 1 p.m. on the same day and Sher Samad, Head Constable, P. W. 4, recorded the formal F. I. R. (Exh. P. C/1) and registered the case against the accused under section 302, P. P. C.

3. Pir Bakhsh also took into his possession at Chatool the bloodstained kassi P. 1 and the bloodstained chaddar Exh. P. 2 worn by the accused and sealed them into parcels vide recovery memos. Exhs. P. D. and P. E., respectively. Then he went to the place of occurrence, and took the body of the deceased into his possession from the house of Khuda Bakhsh P. W., the father of the deceased. He prepared the injury statement Exh. P. K. and the inquest report Exh. P. J. in respect of the body of the deceased, and sent the dead body through Foot Constable Muhammad Saeed, P: W. 2, to the mortuary at Jampur, where it was identified by Muhammad Bakhsh, P. W. 6, a cultivator of the village Jhok Makwal. Pir Bakhsh also recovered bloodstained earth from the house of Khuda Bakhsh vide recovery memo. Exh. P. F. and sealed it into a parcel. The house of the accused adjoined that of Khuda Bakhsh, and Pir Bakhsh got the Patwari Safdar Ali, P. W. 5, to prepare the site plans of the place of occurrence being Exh. P. H., Exh. P. H/1 and Exh. P. H/2. The place of occurrence was pointed out to Safdar Ali, P. W. 5, by Mst. Bakhto, P. W. 12, Mst. Zohra (not examined), Mst. Chanan, P. W. 13, and Yar Muhammad (not examined) Pir Bakhsh had brought the accused with him from Chatool and he arrested him at the place of occurrence, and handed over investigation to Sardar Ali A. S. I. P. W. 14, who thereafter conducted the investigation. Sardar Ali banded over the bloodstained clothes and other articles of the deceased Exhs. P. 3 to P. 6 vide recovery memo. Exh. P. G. prepared by him to Foot Constable Muhammad Azad, and Sardar Ali also recorded the statements of Nawab, Abdullah and Budha P. Ws. and challaned the accused. The sealed articles were forwarded to the Chemical Examiner, Lahore whose report is Exh. P. 1 dated the 25th August 1964. According to the said report, all the said exhibits were stained with blood and the Chemical Examiner forwarded the pieces and scrapings to the Seriologist. The report of the Seriologist is Exh. P. M. dated 28th December 1964, and, according to the said report, the bloodstains on the chaddar had disintegrated and their origin could not be determined, but the bloodstains on the kassi and the earth were found to be stained with human blood.

4. As to the body of the deceased Dr. M. Rafi, Medical Officer, Jampur, P. W. 1, had carried out the post‑mortem examination at 9‑30 a.m. on 16th August 1964, and Exh. P/A is a carbon copy of the said report. The report showed the following injuries:‑

(1) An incised wound 2' X " x bone deep on the top of the left parietal region 7 to 1 O' colck in direction, 5" above the left ear. The parietal bone was cut. Brain was injured 1" deep.

(2) An incised wound 1' x ' x ' deep on the left mostoid region, longitudinal.

(3) An incised wound 6' X " x 1" deep in the direction of the mandible concavity upwards on the left side of the neck and mandible. The mandible was cut. No injury to corotid vessels.

(4) An incised wound 1' x skin deep, 1" below injury No. 3, transverse.

(5) An incised wound 1" x " x skin deep, 1" below injury No. 4, transverse.

(6) An abrasion 1" X " X " deep, transverse on the left shoulder.

(7) An abrasion x on the dorsum of the right wrist joint.

According to Dr. Rafi P. W. 1, the first injury alone was fatal in the ordinary course of nature; the third injury was a grievous injury and the other injuries were simple. The first five injuries were caused by a sharpe‑edged weapon, and the other two injuries by a blunt weapon. The time between the injuries and death was 10 to 15 minutes, and between death and post‑mortem 20 to 30 hours. Further, according to Dr. Rafi P. W. 1 all the other organs of the deceased were healthy, the stomach and the small intestines were empty and Mst. Pathani was pregnant.

6. The prosecution case is based on the evidence of motive, the extra‑judicial confession alleged to have been made to Noor Muhammad P. W. 10, and Khadim Hussain P. W. 11, and the evidence of the eye‑witnesses. The accused has admitted the killing of the deceased, but stated that he had seen the deceased in the lap of Budha P. W. 7 on the day of the occurrence and had killed her under grave and sudden provocation. He also denied having made the extra‑judicial confession to Noor Muhammad P. W. 10 and Khadim Hussain P. W. 11. Therefore, the only question in this appeal is whether the act of the accused in killing the deceased amounts to an offence under section 302, P. P. C., or whether on account of his plea of sudden and grave provoca tion, be is only liable for culpable homicide not amounting to murder.

7. At the trial, the prosecution examined only Bhuda and Nawab on the question of motive. The evidence of Budha P. W. 7 was that he was a relation of the accused, that he used to visit their house, that on the day prior to the occurrence while passing by the house of the accused, he dropped in accidentally to drink water; and that the accused came suddenly and started quarrelling with him and beating him. In consequence of his shouts, Nawab and Abdullah came to his rescue, and he left the house of the deceased and spent the evening at his fields and did not know of the death of Mrt. Pathani till after her death. He also denied enmity with the accused. The evidence of Nawab P. W. 8 was that in the afternoon of the 14th August, he was in the Bazaar, and on hearing the rowdyism in the house of the accused, he went in and saw the accused slapping Budha. The learned Sessions Judge has accepted the evidence of these witnesses, and the prosecution story of the motive attributed to the accused in murdering his wife. We do not agree with the finding of the learned Sessions Judge that reliance can be placed on the evidence of Budha P. W. 7 and Nawab P. W. 8. Budha P. W. 7 has stated that being a relation of the accused, he used to visit the home of the accused and met Mst. Pathani even in the absence of the accused. However, in cross‑examination, he was not able to state what his relationship to the deceased was. We are not inclined to believe his statement that he used to visit the house of the accused and met his wife even in the absence of the accused. Further, be has stated that, on the day before the death of Mst. Pathani, he dropped into the house by accident to drink water from a glass as a pitcher of water was lying there. This was the explanation for his presence on the day. As stated, Budha P. W. 7 was surprised by the accused and claimed that he was assaulted and raised a hue and cry, in consequence of which Nawab P. W. 8 came to his rescue. Therefore, if the evidence of Budha P. W. 7 is correct, Nawab P. W. 8 would have seen the glass and pitcher, but Nawab P. W. 8 admitted in his cross examination that he did not see the glass and pitcher. We have also to observe that Nawab' s description of the alleged reaction of the accused in seeing his wife with Budha, P. W. 7 as rowdyism seems a strange observation on the part of a villager. We are of opinion that the learned Sessions Judge erred in accepting the evidence of Budha P. W. 7 and Nawab P. W. 8.

8. The learned Sessions Judge has also relied on the extra judicial confession alleged to have been made by the accused to Noor Muhammad P. W. 10 and Khadim Hussain P. W. 11. According to Noor Muhammad P. W. 10, he had borrowed a cycle of Khadim Hussain P. W. 11 and on the morning of the fateful day, he was sitting in his dera, and Khadim Hussain lead come to take his cycle back, but in fact he never took it back. The accused came and confessed to them that on account of his suspicion about his wife as a result of the incident of the previous day with Budha, his wife had run away to her father's house; and that in the morning, be had gone and killed her and wanted to report himself to the police. According to Noor Muhammad, besides confessing his guilt, he also produced his bloodstained ,kassi Exh. P/1, and he and his friend, Khadim Hussain, took him to the police and they found Head Constable Pir Bakhsh P. W. 15 at Chatool, a village two miles from the place of occurrence, where Noor Muhammad made the F. I. R. statement Exh. P. C. Both the witnesses denied having any enmity with the accused, and again the learned Sessions Judge has accepted their evidence and held that it was corroborated by the recovery of the bloodstained kassi and bloodstained clothes from the person of the accused. This evidence is also confirmed by the evidence of Pir ‑ Bakhsh, Head Constable P. W. 15. However, according to the evidence of Khuda Bakhsh P. W. 9, father of Mst. Pathani deceased, a few days before the occurrence, there had been a quarrel between the accused and Noor Muhammad P, W. 10 and Khadim Hussain P. W. I1 on account of a dispute about their right to the turn of water. We are, therefore, not inclined to accept the evidence of Noor Muhammad P. W 10 and Khadim Hussain P. W. 1 :, the more so as there has been delay in lodging the F, I. R. In any case, no reliance can be placed on this alleged extra‑judicial confession unless it is corroborated by other evidence. The learned Sessions Judge held that the statement was corroborated by the recovery of bloodstained kassi P/1, bloodstained chaddar P/2 worn by the accused and by the bloodstained earth. We do not think that the recovery of the kassi and chaddar of the accused connect the accused with the crime as alleged. The accused has not denied killing Mst. Pathani, but the question is of the manner of the killing. The recovery of the earth would help to connect the accused with the crime as alleged, if it could be shown that the earth was recovered not from the house of the accused, but from the house of Khuda Bakhsh P. W. 9 as alleged by the prosecution. However, as Safdar Ali Patwari P. W. 5 admitted that the site plans Exhs. P. H/1 and P. E/2 were drawn up by him on the statements of Mst. Bakhto P. W. 12, Mst. Channan P. W. 13, Mst. Zohra and Yar Muhammad, we have to examine the evidence of these witnesses on whom Safdar Ali, P. W. 5 relied, before it can be held that the bloodstained earth was recovered from the house of Khuda Bakhah P. W. 9 and not from the house of the accused.

9. The prosecution did not examine Mst. Zohra and Yar Muhammad, although they were eye‑witnesses. The only eye witnesses examined by them were Mst. Bakhto P. W. 12, a niece of the deceased, and Mst. Channan P. W. 13, a sister of the deceased. Khuda Bakhsh P. W. 9, the father of the deceased, also appears to have been treated as an eye‑witness but in fact he came to the scene after the occurrence. We have, therefore, to examine the evidence of Mst. Bakhto and Mst. Channan. According to Mst. Bakhto P. W. 12, on the morning of 15th August 1964, she was grinding flour in her house when she heard an alarm and rushed to the scene, and saw the accused giving kaki blows to Mst. Pathani in the storeroom or kotha of the house of the accused; and she further said that she saw Budha P. W. 7 running away at some distance, and that when she reached the spot, Mst. Channan P. W. 13, sister of Mst. Pathani, also reached there. As there were discrepancies between her evidence in the Sessions Court and her statement before the Committing Magistrate, the learned Sessions Judge allowed the request of the prosecution to cross‑examine her, but Mst. Bakhto P. W. 12 repudiated her statements before the Committing Magistrate. The learned Public Prosecutor requested that her statement before the Committing Magistrate be transferred to the file of the Sessions Court, but as she was only 12 years old, this was disallowed by the Court. The only other eye‑witness examined was Mst. Channan P. W. 13. She also stated in her evidence that on the morning of 15th August 1964, she was grinding flour in her house when she heard an alarm and on rushing to the scene, she saw Abdul Ghafoor accused giving kahi blows to Mst. Pathani inside the storeroom or kotha of the house of the accused. The Public Prosecutor submitted that Mst. Channan P. W. 13 had deviated from her statement before the Committing Magistrate and obtained permission to cross‑examine her. But this was to no purpose, and in her cross‑examination by the defence Mst. Channan P. W. 13 further stated that the accused had killed Mst. Pathani as he had been provoked on seeing her with Budha P. W. 7 whom she saw running away from the kotha. She also added that the accused had' himself gone over to the police and brought them to the scene of occurrence. The prosecution gave up the other two eye‑witnesses Mst. Zohra and Yar Muhammad as having been won over by the accused. But they examined Khuda Bakhsh P. W. 9, the father of Mst. Pathani deceased. Khuda Bakhsh P. W. 9 stated that he was not in the house when the occurrence took place, but on hearing of the murder of his daughter, he returned home and saw her dead body lying in the kotha of the accused ; and that on enquiries, he was told that the accused had killed her because he had found her in a compromising position with Budha P. W. 7. The learned Public Prosecutor again submitted that Khuda Bakhsh P. W. 9 had resiled from his statement before the Committing Magistrate that he should be allowed to cross‑examine Khuda Bakhsh P. W. 9 and that this request was allowed by the Court. However, Khuda Bakhsh P. W. 9 merely denied having made the statement attributed to him before the Committing Magistrate, and, as pointed out, he further stated in his cross‑examination that there was a dispute about water rights between the accused and Noor Muhammad P. W. 10 and Khadim Hussain P. W. 11. At the request of the learned Public Prosecutor, the statements of Mst. Channan P. W. 13 and Khuda Bakhsh P. W. 9, recorded before the Committing Magistrate, were brought on the record of the Sessions Court under section 288, Criminal Procedure Code.

10. The learned Sessions Judge has held that the eye witnesses (Mst. Bakhto P. W. 12, Mst. Channan P. W. 13 and Khuda Bakhsh P. W. 9) resiled from their statements made by them before the Committing Magistrate under pressure or influence and he based his conviction on their statements made before the Committing Magistrate. He held that these statements were corroborated by the extra‑judicial confession of the accused and the recoveries, namely, the kassi and the bloodstained earth and convicted the accused under section 302, P. P. C. for intentionally causing the death of Mst. Pathani with kassi Exh. P/l. However, in view of the fact that the accused had killed Mst. Pathani on account of his suspicion of her illicit relations with Budha P. W. 7, be reduced the sentence to transportation for life.

11. The conviction of the accused under section 302 of the Pakistan Penal Code by the learned Sessions Judge, is therefore, really based on the statements of Khuda Bakhsh P. W. 9, Mst. Bakhto P. W. 12 and Mst. Channan P. W. 13 before the Committing Magistrate, and the only question in this appeal is whether reliance can be placed on these statements, when these witnesses have resiled from them in the Sessions Court and, supported ‑the accused. In supporting the accused we have to bear in mind that khuda Bakbsh P. W. 9 implicated his own dead daughter of an illicit relationship and similarly Mst. Channan P. W. 13 implicated her dead sister of an illicit relationship. Therefore, the fact that they resiled from their earlier statements should have been considered very carefully by the learned Sessions Judge. The question whether a conviction in such circumstances can be based on the statements of prosecution witnesses before the Committing Magistrate has been considered by a Bench of this Court in Imtiaz Rabbani v. The Crown (P L D 1956 Lah. 657). In Imtiaz Rabbani' s case also witnesses had resiled in the Sessions Court from their statements made by then before the Com mitting Magistrate, but the learned Sessions Judge bad convicted the accused under section 302, P. P. C. on the basis of the statements of the prosecution witnesses before the Committing Magistrate. In the appeal filed against the conviction it was submitted that, as the prosecution witnesses had resiled from their previous statements, it would not be safe to base any conviction on the testimony of witnesses who stood self‑condemned as liars. However, all the witnesses had been cross‑examined before the Committing Magistrate and because they bad been so cross‑examined Mr. Justice Abdul Aziz Khan and Mr. Justice Yaqub Ali, upheld the conviction and held that the learned Sessions Judge was entitled to convict the accused on the basis of the said statements. The only other, evidence before him was of the extra judicial confession, which was denied by the accused and the recoveries. But even the recoveries, as explained, are of no value and do not connect the accused with the crime because the only material recovery that is of the bloodstained earth was based on the' evidence of Mst Bakhto P. W. 12 and Mst. Channan P. W. 13, who have resiled from their statements and other prosecution witnesses, who were not examined. The accused cannot be con victed on the extra‑judicial confession, apart from the question that this confession is open to grave doubt. In the absence of the ocular evidence, therefore, there is no basis for convicting the accused under section 302, P. P. C. and we have to hold that the prosecution has failed to prove its case beyond reasonable doubt. The accused has said in his statement in the Sessions Court that on the day of the occurrence (15th August 1964) he returned home unexpectedly and found Mst. Pathani deceased in a compromising position with Budha P. W. 7 and he lost his self‑control, and he attacked Mst. Pathani deceased an killed her. In the circumstances discussed, we hold that the accused killed Mst. Pathani when he saw her with Budha P. W.7 and that on account of this grave and sudden provocation he lost his self‑control and attacked his wife and killed her. Therefore, we set aside his conviction and sentence under section 302, P. P. C. and convict him under section 304, Part I, and sentence him to three years' imprisonment. The appeal is accepted to the above extent only.

Appeal partly accepted.

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