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Criminal Appeal No. 234 and Confirmation Case No. 41 of 1978, decided on 20thAugust, 1980.
----S. 164-Confessional statement, evidentiary value of-Judicial con fession recorded on a holiday and at residence of Recording Magis trate-Such confession, held, not to be discarded if recorded with due care and caution after observing all legal formalities, accompanied by plausible explanation for adopting such a course.-[Confession].
----S. 164-Confessional statement, divisibility of-Rule that confession must be accepted or rejected in its entirety-Applicable to cases where either no other evidence available or other evidence available but not trustworthy and only material for decision being bare confession of accused-Court not bound to believe or disbelieve confessional statement as a whole and open to it to believe one part and reject other if corroborated by other credible evidence-Ocular and corroborative evidence consistent with inclupatory part of confessional statement of accused---Held: Nothing prevents Court from rejecting exculpatory part and acting on residue referring to killing of deceased, in circumstances.-[confession].
----S. 302-Murder-Evidence, appreciation of--Ocular version of three eye-witnesses fully corroborated by medical evidence, motive for com. mission of offence as well as judicial confession of accused-Nothing attributed to prosecution witnesses for falsely implicating accused-Con viction and sentence maintained, in circumstances.-[Evidence].
Rochi Ram for Appellant.
Murtaza Hussain for the State.
Dates of hearing: 8th, and 9thJuly, 1980.
-Ghulam Nazir son of Shadman Khoso aged about 25 years and a resident of village Sakrio Khoso, Taluka Chachro stood his trial in the Court of the Sessions Judge, Tharparkar at Mirpurkhas under sections 302 and 323, P. P. C., for having committed murder of Mst. Dhayani daughter of Gul Muhammad and for having voluntarily caused hurt to Mst. Malookan wife of Gul Muhammad by causing them lathi blows. At the conclusion of the trial he was found guilty of the offences charged with and was convicted under section 302, P. P. C. for the murder of Mst. Dhayani and was sentenced to death. He was also convicted under section 323, P. P. C. for causing hurt to Mst. Malookan and sentenced to R. I. for one year. In case the death sentence of the accused is commuted, he was ordered under section 544(a), Cr. P. C. to pay compensation of Rs. 1,500.00 to the heirs of deceased Mst. Dhayani and in default in payment of compensation he would undergo imprisonment For a period of four months. He was also ordered to pay further compensation of Rs: 200.00 to injured Mst. Malookan and in default he would undergo R. f. for a further period of two months. We have also before us a reference from the learned Sessions Judge for confirmation of the death sentence awarded by him to the appellant.
The convict has challenged his conviction and sentence through the present appeal. This judgment will dispose of both the appeal preferred by the appellant and the reference made by the learned Sessions Judge for confirmation of the death sentence.
2. The facts of the prosecution case briefly stated are, that Mst. Dhayani was daughter of P. W. Gul Muhammad brother of the complainant Ahmed Khan. P.W. Malookan was the mother .of the deceased Dhayani and she was wife of .P. W. Gul Muhammad. Mst. Dhayani was betrothed with Hashim, sisters son of complainant Ahmed Khan about 5-6 years prior to the incident of murder. Ahmed Khan and his brother Gul Muhammad with their families used to live in Anihar village Taluka Chachro inside a common enclosure. Miro, sister's husband of the accused Ghulam Nazir had demanded the hand of Mst. Dhayani from her parents for the accused, about 10.11 years prior have incident. After her betrothel with Hashim, the accused appeared to lave been aggrieved on account of it. On the day of the incident, i.e. 10-3-1976, Muhammad Ali and Sardar Muhammad went to Ahmed Khan complainant and Gul Muhammad to their house for fixing the date of marriage of Mst. Dhayani with Hashim. P. W. Mohammad Ali lived at Chapar village about 5 miles away from the house of complainant Ahmed Khan and Gul Muhammad while Sardar Muhammad was Nek Mard of an adjoining village to the village of complainant Ahmed Khan and P. W. Gul Muhammad and was brought by Muhammad Ali for the purpose of fixing the Marriage date. Muhammad All was distant related to Hashim but Sardar Muhammad was not related to him. P.W. Gul Muhammad had gone to Chapar village to attend marriage ceremony while P. W. Malook his wife and deceased Mst. Dhayani his daughter wore in the house. Complainant Ahmed Khan informed Muhammad Ali and Sardar Muhammad that Gul Muhammad father of the girl had gone out and they shall wait till he came when the talks for fixing the marriage date may be materialised. The complainant Ahmed Khan went to the nearly well to give water to the cattles, whereas Mst. Malookan and Mist. Dhayani went to an adjoining cattle pen to lookafter the cattle. While they were at the cattle pen accused Ghulam Nazir appeared armed with his iron plated laths and told Mst. Malookan that they had refused to give hand of Mst. Dhayani in marriage to him and they were now getting her marriage a to Hashim and that he would kill her. Thereupon, he caused six lathi bows to Mot. Dhayani and fell her down. Milt. Malookan tried to Intervene with the result that the accused caused her also two lathi blows. The incident attracted P. Ws. Muhammad Ail and Sardar Khan who witnessed it. They saw the accused causing lathi blows to Mat. Malookan and deceased Dhayani and running away with a lathi. P. W. Muhammad All went to inform complainant Ahmad Khan at the well about the incident. He related the incident to him. Karim Khan was also with Ahmed Khan at the time as he had also come to the well to give water to the cattle and was informed about the incident. Ahmed Khan along with Karam Khan reached the scene of offence and found two ladies lying injured. Mst. Dhayani was unconscious, whereas Milt. Malookan related the entire incident to them informing them about the accused appellant having caused lathi blows to them and having run away. Complainant Ahmed Khan then sent P. W. Muhammad Ali to go and inform P. W. OW Muhammad and also Allah Bachayio the Nekmard of village Chapar where P. W. Gul Muhammad had gone. P W. Gul Muhammad and Allah Bachayio reached the scene of offence. The incident was related to them by Ahmed Khan, Sardar Muhammad and Mst. Malookan. Mst. Dhayani had expired before her father Gul Muhammad, and Allah Bachayio reached the scene of offence. Allah Bachayio directed the comp lainant Ahmed Khan to lodged report with the police at Police Outpost, Khensar of Chacharo Police Station.
3. Complainant Ahmed Khan went on foot to the police Outpost Khansar and reached at about 5 a. m. on 11-3-1976. Jiando Khan, A. S. I. P. incharge of the Police Outpost, Khanesar recorded the First Information Report lodged by complainant Ahmed Khan immediately at about 5 a. m. on 11-3-1976 vide Exh. 9. He then proceeded to the scene of offence which was situated at a distance of about 10 miles from the Police Outpost. He sent for mashirs Nabi Bux and Muhammad Hashim and inspected the scene of offence in their presence. The dead body of Mst. Dhayani was lying on a cot in open outside the Landhi of the house. She had injuries on her head. He prepared such mashirnama vide Exh. 25. He recovered the head cover of the deceased and prepared it in a sealed parcel. He also prepared an inquest report vide Exh. 27 and sent the dead body to Medical Officer, Umerkot through police constable Miari Dito for post-mortem examination. He also referred Mst. Malookan to the Medical Officer, Umerkot for examina tion and treatment of the injuries after he had recorded her statement. He then prepared mashirnama of the vardat which was situated in the cattle pen of the complainant Ahmed Khan. He secured blood-stained earth therefrom and prepared into a sealed parcel vide mashirnama Exh. 27. Tire mashirnama of injuries on the person of list. Malookan was prepared vide Exh. 28. He then recorded statements of P. W. Sardar Khan, Karam Khan and Muhammad Ali. On the same date, he made efforts to secure the accused who was not traceable until 14-3-1976. On 12-3-1976 he recorded statement of Allah Bachayio. On 13-3-1976 D. S. P. verified the investigation. On 14-3-1976, he arrested the accused from a bhada near the house of his brother Jamo, in deh Patho, Taluka Samaro. The accused was carrying a laths having iron plates on both sides, at the time of his arrest. He recovered the lathi from him and prepared it into a sealed parcel in presence of mashirs Shakildho and Vayun. On 15-3-1976 he produced the accused before Mr. Umed Ali Mukhtiarkar and F. C. M., Samaro for recording his judicial confession. After his judicial confession was recorded by the Mukhtiarkar and F.C.M. Samaro the accused was remanded to judicial custody. On 18-3-1976 statements under section 164, Cr. P. C. of P. Ws. Sardar Khan and Muhammad Ali were recorded by the Mukhtiarkar and F. C. M. Chachro. He then handed over the investigation papers to S. H. O. Mr. Muhammad Umer Baladi who verified the investigation. A.S.I.P. Abdul Hanif then submitted challan of the accused in Court.
4. Post-mortem examination on the dead body of Mst. Dhayani was conducted by Dr. Muhammad Ayub P.W. 1 on 12-3-1976 at 2-30 p. m. and the following injuries were found by him on external examination:-
(1) Contused would 2' x ' x bone deep. The bone was fractured on the hand on the middle right parietal part.
(2) Contused would 1 ' x 1' x bone deep on the head at the medial and of injury No. 1. The bone was fractured underneath.
(3) Contused wound 1' x ' x bone deep on the head right side frontal part.
(4) Contused wound ' x ' x bone on the head right side-parietal region. The bone was also fractured.
(5) Contused wound 2' x ' x bone deep on the right side of head occipital region.
(6) Contused wound 1 ' x ' x bone deep on the right side of bead of occipital part about 2' below injury No. 5.
On internal examination compound fracture of right frontal and parietal bones (bones were depressed) was found. He also found dislocation of Fronto parietal suture on right side and dislocation of middle parietal fracture. In the brain, membrane on right parietal part was found ruptured alongwith rupture of brain tissues. There was a clot of blood also. All other organs were normal. The injuries were anti-mortem. The above injuries appeared to have been caused by heavy blunt substance like a lathi or backside of a hatchet. Injuries Nos. 1, 2, 3 and 4 were even individually sufficient to cause death in the ordinary course of nature. The time between death and post-mortem may be about 45 hours. Death should have been instantaneous and was due to shock and haemorrhage on account of internal damage.
Mst. Malookan wife of Gul. Muhammad on examination by the same Medical Officer Dr. Muhammad Ayub P. W. 1 was found to have the following injuries:-
(1) Contusion with abrasion l' x 1' on the back lower thoracic region in the middle.
(2) Abrasion 1' x. ' about 2' below injury No. 1
(3) Contusion with abrasion 3' x 1' on the back of left buttocks.
She remained as an indoor patient from 12-3-1976 to 22-3-1976. She was referred for Peledis X-Ray to Mirpurkhas but the X-Ray plate and report received revealed no internal damage. The injuries were result of blow from blunt weapon and were simple in nature. Injury No. 1 could be a result of a fall on hard ground or on hard substance, and so also injury No. 2 but injury No. 3 could not be caused by fall on hard substance.
5. The prosecution examined 12 witnesses at the trial. The accused Ghulam Nazir son of Shadman when examined pleaded not guilty, professed innocence and attributed the case to enmity of Sikildho who yeas related to the prosecution witnesses, over land. He further added that he neither caused the murder of Mst. Dhayani nor caused injuries to her mother Mst. Malookan. He denied the alleged motive for the commission of the offence as according to him he did not demand the hand of Mst. Dhayani for marriage with him and that it was refused by her parents. According to him he was living with his brother in Samaro and was arrested from there but he was not carrying laths at the time of his arrest. He further adds that he did make the judicial confession but it is neither true nor voluntary. According to him he was told that he was being produced before a police officer and he must tell him the facts as dictated to him by the Police. He further adds that he was produced before a person at his residence and that he was in plain clothes and he neither informed him that he was a Magistrate nor did he tell him that even if he did not make the confession he will not be sent to police custody. According to him he made the confession under pressure his brother was also made to sit with the police and he was threatened that in case he did not make the confession his brother will be disrespected. He has examined no evidence in his defence.
6. The trial Court believed the prosecution evidence and held the accused guilty of the offences for which he was charged and convicted and sentenced him as stated above.
7. The question whether Mst. Dhayani died as a result of injuries received by her on 10-3-1976 is not disputed. It is also not disputed that her mother Mst. Malookan received simple injuries as alleged in the prosecution case. It is oven otherwise amply proved in the evidence on the record that Mst. Dhayani died as a result of injuries received by her on 10-3-1976 and Mst. Malookan received simple injuries at the time of the alleged incident.. The evidence of Dr: Muhammad Ayub, P. W. 1, who performed the post-mortem examination on the dead body of Mst, Dhayani clearly shows that she had as many as six injuries on her person. All the injuries were ante-mortem and the death was "instantaneous. From this medical evidence which has been narrated in detail above it is established beyond doubt that who ever inflicted the said injuries had intention to cause the death of the deceased Mst. Dhayani or intended to cause such bodily injuries as were in all probability sufficient in the ordinary course of nature to cause death. In our view, therefore, it is clear that the offence of murder has been established in the case of death of Mst. Dhayani. We are also clear in our minds that the offence of causing simple hurt to Mst. Malookan the mother of deceased Dhayani is also fully made out in the circumstances of the present case.
8. The question in the present case, however, is as to whether the accused Ghulam Nazir son of Shadman Khoso the present appellant caused the murder of Mst. Dhayani by intentionally causing her death by inflicting lathe blows and voluntarily caused simple hurt to her mother Mo. Malookan by means of laths blows. In order to fix the guilt on the appellant the prosecution have, in the main relied upon the ocular evidence of the injured P. W. Mat. Malookan and P. Ws. Sardar Khan and Muhammad Ali, corroborated by the evidence of the complainant Ahmed Khan and P. W. Gal Muhammad, the judicial confession of the accused and motive for commission of the offence. It may be stated here that the witnesses in the case supported prosecution version in all its material particulars.
9 The trial Judge very rightly has come to the conclusion that the ocular evidence was sufficient to prove the prosecution case beyond any shadow of doubt and that it also received support from the other pieces of evidence as corroborative in the circumstances of the present case.
10. We would in the first instance discuss the ocular evidence of P. Ws. Mst. Malookan the mother of deceased Mst. Dhayani and the injured witness and that of Sardar Khan and Muhammad Ali who appear as independent witnesses in the circumstances of the present case. At the very outset, there is nothing in the evidence to dispute the presence of P.W. Malookan at the time of the incident at the scene of offence. She admittedly is the mother of deceased Dhayani and is also an injured witness undisputedly in the present incident. Her presence therefore, at the time of incident of the scene of offence cannot be doubted and she definitely is an eye-witness to the incident' in the present case. According to her, while she and her daughter Mst. Dhayani were in the cattle-pen looking after the cattle at about 5.30 p. m. the accused appellant suddenly appeared with a lathi and told her that they had refused the hand of Mst. Dhayani to him and were now getting her married to Hashim and, therefore, be would now kill her. According to her further, the accused appellant having said so caused as many as six lathi blows to Mst. Dhiyani on her head with the result that she fell on tire ground. She further deposed that she intervened but the accused appellant caused her lathi blows on her back side and fell her down. The learned counsel appearing on behalf of the accused appellant has not been able to assail her evidence for the simple reason that nothing has been attributed to her, to have falsely implicated the accused appellant and that she or any other prosecution witnesses to the incident have not been in any manner connected with Sikildho with whom the accused appellant alleges enmity over land. We, therefore, find that the ocular testimony of this witness Mst. Malookan is natural as well as reliable, and worthy of credit as in the circumstances, the only reason that she is mother of the deceased Mst. Dhayani and related to her would not be enough to dub her as an interested witness in order to discredit her evidence, as apart from being a natural witness, she has no motive to falsely implicate the accused appellant. We therefore, find the evidence of this witness Mst. Malookan sufficient and satisfactory to connect the accused appellant with the offences,
11. However, we have got the ocular evidence of P. Ws. Sardar Khan and Muhammad Ali which is equally natural disinterested and reliable. P. W. Sardar Khan admittedly is not related to the complainant Ahmed Khan, P. W. Gul Muhammad and two ladies. He is, as disclosed in the evidence on the record, Nekmard of the next village to that of the complai nant and was present at the scene of offence at the time of the incident with the purpose as he was taken by Muhammad Ali, close relative of Hashim to the complainant Ahmed Khan and Gut Muhammad to fix the date of Hashim's marriage with Mst. Dhayani. His presence at the scene of offence being a Nekmard of the next village and with the purpose to get the marriage date fixed, also does not appear unnatural and uncalled for. As already stated above he is admittedly not at all related to the complainant Ahmed Khan his brother Gut Muhammad or the two ladies. He also therefore, cannot be dubbed as an interested and a chance witness in the circumstances of the present case. According to him he saw the incident while he was present alongwith Muhammad Ali at the house of the complainant, to the effect that accused/appellant appeared at the cattle-pen and finding the two ladies alone caused lathi blows to Mst. Dhayani and Mst. Malookan resulting in the death of the former and injuries to the latter. There is nothing in the evidence that this-witness has a motive to falsely implicate the appellant or he has been in any way connected with Sikildho with whom the accused appellant is alleging enmity over land. He, therefore, appears to us equally an independent and reliable witness in the case as Mo. Malookan, the mother of the deceased. The ocular evidence of P. W. Muhammad Ali does appear to us equally reliable and worthy of credit. There is nothing in the evidence on the record that this witness had no reason to be present at the scene of offence at the time of the incident. There is no dispute that Hashim is the son of his nephew and is closely related to him and that he was interested in his marriage with Mst. Dhayani. He bad, therefore, reason to approach Sardar Khan to accompany him to the complainant Ahmed Khan and his brother Gut Muhammad for getting the marriage date of Hashim with Mst. Dhayani fixed. Though be lives at a distance of about 5 miles from the scene of offence but for the purpose with which he had to go to the complainant and his brother Gut Muhammad for getting the marriage date fixed, there appears nothing unnatural so far his presence at the scene of offence is concerned. He has supported the version of Sardar Khan in that respectfully. In view of the version of Mst. Malookan and Sardar Khan corroborated by complainant Ahmed Khan in that respect there appears no doubt about the presence of this witness Muhammad Ali at the scene of offence at the time of the incident. This witness Muhammad Ali has also fully supported the caular version with regard to the identity of the accused/appellant and his causing lathi blows to the two ladies. The ocular version of these three eye-witnesses has been fully corroborated by that of complainant Ahmed Khan and P. W. Gut Muhammad who have deposed that on their arrival they were informed by them that the accused/appellant caused lathi blows to the two ladies resulting in the death of Mst. Dhayani and the injuries to Mst. Malookan and ran away and escaped. It is further corroborated by the fact that there has been no delay in filing the F. I. R. as the police out post Khensar undisputedly is at a distance of about 10 miles away from the vardat and the complainant Ahmed Khan, who covered the distance on fact must not have reached earlier than 5 a.m. on 11-3-1976, when the F. I. R. was recorded. There is no conflict between the ocular evidence and medical evidence as well.
12. The above-mentioned ocular version has been assailed on behalf of the accused appellant on two-fold ground. Firstly, that the eye-witnesses to the incident failed to catch hold of the accused appellant who was
armed with a lathi with the result that he escaped; and secondly, that admittedly his foot prints were tracked and had the appellant been identified as the accused there was no reason to track the foot prints. We find no force in any of the contentions raised. As regards the first contention Mst. Malookan is an old lady of 70 years, whereas P. W. Muhammad Ali is an old man of 75 years. Sardar Khan also seems to be 42 years of age and the only young-man amongst the eye-witnesses to the incident who were present at the scene of the offence at the time of the incident. We do not think it must have been possible for him to run after the accused appellant and catch hold of him or even challenge him and follow him when he was armed with iron plated lathi and when he caused as many as six lathi blows to Mst. Dhayani and also lathi blows to Mst. Malookan on her intervention within his sight. As regards the second contention, finding that the accused appellant had committed a grave offence of finishing a young innocent girl to death, the complainant party on account of their over-anxiety to catch hold of the accused at their earliest so that he should not abscond, appeared to have tracked the foot prints and such explanation advanced by the learned trial Court in that respect appears to be quite plausible. The fears in that respect of the complainant party do not appear to have been unfounded for the simple reason that the accused appellant was untraceable up to 14-3-1976 and that ultimately he admittedly was arrested from a bhada near the house of his brother Jumo situated in Deb Patho Taluka Samaro, obviously too far away from his own house. The ocular evidence therefore, which is amply supported by the two witnesses complainant Ahmed Khan and Gut Muhammad who appeared at the scene of the offence soon after the incident cannot be successfully assailed on the grounds above mentioned. It is also true that in the situation as in the present case, specially in the case of single accused, substitution of the accused appellant for real culprit would be extremely rare and unbelievable.
13. In view of the above discussion, therefore, we have no doubt that the ocular evidence of Mst. Malookan supported by Sardar Khan and Muhammad Ali and coupled with the corroborative evidence above mentioned connects the accused appellant with the alleged offences beyond a reasonable doubt.
14. However, the ocular evidence is amply corroborated by the other pieces of evidence as well, judicial confession of the accused appellant, as well as motive for commission of the offence.
15. As regards the judicial confession of the accused appellant it was recorded by Mr. Umed Ali, Mukhtiarkar and First Class Magistrate, Samaro, on 15-3-1976, within 24 hours of the arrest of the accused appellant. It has been assailed on two-fold ground; firstly, that it was not properly recorded, and secondly, that it was partly exculpatory and partly inculpatory and therefore is not true and voluntary and that it has to be discarded as a whole.
16. We find no substance in these contentions. We would deal with the first contention in the first instance and in that respect what is apparent on the record is, that the learned First Class Magistrate observed all the necessary legal formalities before he recorded the confessional statement of the accused/appellant. The plain reading of the judicial confession itself and the evidence of the First Class Magistrate would make that aspect of the case very clear. The contention raised is to the effect that it was not recorded in the judicial confession itself that the Magistrate had asked the accused appellant whether he was prepared to make the confession voluntarily. The further contention is that it is also not mentioned in the confession that the Magistrate informed the accused appellant that even in case be did not confess the guilt he will trot be sent back to police custody. The, learned Magistrate, though it is not so recorded in the judicial confession has deposed that he had put such question to the accused appellant as to whether be was prepared to make the judicial confession voluntarily to which he replied in the affirmative. He has further deposed that he had informed him that in case he does not confess his guilt he will not be sent back to the police custody. The version in that respect of the learned Magistrate is corroborated by the fact that the accused appellant was ultimately remanded to judicial custody after his judicial confession was recorded. There is no reason therefore to doubt the version of the Magistrate in that respect. The further contention raised on behalf of the accused appellant is that the judicial confession was recorded on a holiday and at the residence of the Magistrate. It is admitted on behalf of the accused appellant that there is no illegality about such recording of judicial confession on a holiday and at the residence of the Magistrate in case a plausible explanation is offered on behalf of the prosecution. What we find, as deposed by the Magistrate himself is, that the accused was arrested near Samaro and that the Police had come from Chhachro, which is a very far off place and that as the police wanted to go back he did not feel it feasible to refuse them to record a confession on a holiday which was a Eid-Miladun-Nabi holiday. According to the First Class Magistrate himself there is a room in his residence which is used as an office for the official work. We do not think the explanation offered by the Magistrate appears without substance for the simple reason that the Police had come from a far off place and that they had to go back, the occasion being Eid-Miladun-Nabi. In our view therefore, the explanation offered by the First Class Magistrate is plausible and judicial confession which appears on the face of it to have been recorded with due care and caution after observing all the legal formalities should not be discarded for reason of such contentions which are without force.
17. We would now discuss the second contention to the effect that the judicial confession which is partly inculpatory and partly exculpatory may be read as a whole. The judicial confession reads as under:
"I used to live with Abroad Khan Khoso since last three years and used to deposit my earnings with him. I used to cultivate the fields and graze the cattle. Ahmed Khan bad promised the that he shall marry his daughter Dhayani with me, and on this inducement I was working with him and he confirmed his promise that he would marry Mil. Dhayani with me. About 15/16 days ago Abated Khan refused to give ate the hand of Mst. Dhayani and after that promised to give the hand of Mst. Dhayani to Muhammad Yakoob's son Sakhi Muhammad. I disliked his refusal and I went to, my village. Ahmad Khan alone lives at Dhani. I was sent message by Mst. Dhayani that I should meet her. After receipt of such message I went to the Jari trees on northern side of Dhani. By that time Msr. Dhayani also reached there and told me that her father had "agreed to give her hand to the son of Muhammad Yakoob and it would be better rather to kill her. On heating the talk of Mst. Dhayani I was provoked that a girl offered tome cannot be given to other. Hence I gave 4/5 blows to Mst. Dhayani over her bead with an iron plated lathi which I had in my hand. By that time mother of Mst. Dhayani also reached there and I also gave her two lathi blows on her back, as Mst. Malukan had raised cries that I was going to kill Mst. Dhayani. Then I ran away leaving them there, because I felt that they will kill me with a licensed gun of Ahmed Khan. At daytime I hid himself in the jungle. After sun set time I directly went to Chhacbro. I reached Chhachro at 8/9 a.m. where a bus for Noakot was standing. I boarded that bus and reached Nowkot. I passed night at Naukot. Ou next morning I boarded a train and reached Samaro Road from where I went to Deh Photo from where I had been arrested by the Police."
18. The plain reading of the confessional statement of the accused appellant would clearly show that the earlier portion of the statement is exculpatory, whereas its latter portion is very clearly inculpatory, in the sense that he has confessed to have caused 4/5 lathi blows to Mst. Dhayani and two lathi blows to her mother Mst. Malukan on her raising cries. In its earlier portion he has made exculpatory statement in the sense that Mst. Dhayani herself invited him and offered to be killed on telling him that she was being married to Muhammad Yakoob's son and that on hearing it, he was provoked to have killed her considering that the girl offered to him cannot be married to anybody else. He has also made an exculpatory statement in the sense that he was working with Ahmed Khan and was depositing all the earnings with him on the promise that he would be married with Dhayani.
19. What we find that in spite of the exculpatory portion of the statement its inculpatory portion is corroborated in material particulars by the ocular evidence on the record, in respect of the number of blows caused by the accused appellant to Mst. Dhayani and her mother Mst. Malukan on her intervention, the weapon of offence used was an iron plated lathi and the motive for which he killed Mst. Dhayani and caused injuries to her mother. So far as the exculpatory portion of the judicial confession is concerned, the accused appellant, who is an author of the judicial confession has tried to show that Mst. Dhayani herself was a party to the incident of murder, having informed him that she was being married to somebody else, though offered to him and that he was provoked. He also tried to show that the place of incident was Jar trees.
20. The contention raised on behalf of the accused appellant while dealing with this aspect of the matter by his learned counsel has been that in such a situation the Court must accept or reject the confession as a whole and cannot accept inculpatory elements while rejecting the exculpatory element, as inherently improbable or false. He further adds that the exculpatory part of the confession was false even according to the prosecu tion case itself with the result that the whole of the confession should be discarded as being the false one. There is no doubt that a confession, like an admission has to be taken and considered as a whole because the confession is evidence against as well as the evidence for the, prisoner. The Court is not, however, bound to believe or disbelieve the confessional statement as a whole; it is open to it to believe one part of it and reject the other, where there is credible evidence in the case. The rule that the confession must be accepted or rejected in its entirely applies only to chest cases where there-is no other evidence in the case, where the other evidence is untrustworthy, and the only material for decision is the confession. In the present case, there is credible ocular and corroborative evidence on record to the effect that the accused appellant caused lathi blows to the deceased Mst. Dhayani and her mother Mst. Malukan on her intervention in broad daylight, resulting in the death of the former and injuries to the latter. This ocular and corroborative evidence is consistent with the said inculpatory part of the confessional statement of accused appellant. There is thus nothing to prevent the Court from rejecting the part of the confessional statement and acting on the residue which refers to the killing of Mst. Dhayani and causing injuries to her mother Mst. Malukan by the accused appellant as it is proved by sufficient and satisfactory evidence on record.
21. Much stress has been laid by the learned counsel for the appellant on the inadmissibility of motive in the case. He argued that on the basis of the prosecution case itself the hand of Mst. Dhayani was demanded by the accused appellant about ten or eleven 'years prior to the incident and was refused, whereas her betrothal with Hashim had taken place about 4/5 years prior to the incident and that such motive can only be considered inadequate rather than sufficient and satisfactory to be acted upon. It has further been contended that the evidence with regard to the motive on record is also not enough to serve as a corroborative piece of evidence against the accused appellant in the case. What we find is that the first information report is clearly to the effect that the accused appellant had demanded the hand of list. Dhayani but he was refused and that she was betrothed with Hashim Khoso over which the accused was annoyed. The version in the first information report is fully corroborated by the complai nant Ahmed Khan. Such -version is further corroborated by the ocular evidence of witnesses Mst. Malukan, Sardar Khan and Muhammad Ali who deposed that accused on reaching the scene of offence declared that Ahmed Khan bad promised the hand of Mst. Dhayani to him but she was now being married to Hashim and he would kill her and then he caused the lathi blows to her and on intervention to her mother Mst. Malukan. This version has not been substantially challenged in the evidence and we do not consider it insufficient in the circumstances of the present case to prove the motive for the accused to have committed this crime. The contention that the motive is inadequate, is also without force. We are, therefore, unable to subscribe to the View expressed by the learned counsel for the appellant. The instances are not wanting where on trifling matter murders have been committed. In view of the evidence on record, therefore, we would find that the prosecution has successfully proved by the credible evidence on record, even the motive for the accused appellant who have committed this crime.
22. We, therefore, find that the ocular version as discussed above is fully supported by the judicial confession in its material particulars. It is further supported by the evidence of motive and other corroborative evidence already discussed above. The prosecution evidence, therefore, on record very clearly connects the accused appellant with the offences charged with, beyond reasonable doubt. As to the question of sentence, we are of the view that the capital punishment awarded to the appellant by the trial Court under section 302, Pakistan Penal Code, is, under the circumstances, a normal penalty required to be imposed on him.
23. Accordingly, we maintain the conviction and sentences passed against the appellant and dismiss the appeal. We allow the reference and confirm the death sentence passed against the appellant.
Appeal dismissed.
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