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Criminal Appeal No. 228 of 1978, decided on 15^thApril, 1979.

-----S. 302-[Murder case]-Murders where committed on account of 'ghairat' accused persons usually justified in committing such murders and make judicial confessions immediately after incident. [Confession].

-- S. 302/34 and Evidence Act (I of 1872), S. 24-Murder-None of eye-witnesses supporting prosecution case---Statement of complai nant also not worthy of reliance-Judicial confession retracted and alleged to have been extorted by Police-Confessional statement, held, not corroborated on any material particular and case against appel lant not proved beyond doubt--Conviction and sentence set aside.

Azizullah K. Shaikh for Appellant.

Murtaza Hussain for the State.

Date of hearing: 1st April, 1979.

---Appellant Majnoo son of Khawand Bux Lashari has filed this appeal against the judgment dated 28th September, 1978 of 1Ind Additional Sessions Judge, Jacobabad, whereby he has been convicted for offence under section 302, P. P. C. and sentenced to imprisonment for life and to pay a fine of Rs. 1,000 or in default R. I. for one year more. It is further directed in the judgment that if fine is realized, the same may be paid to the heirs of the deceased. The appellant was 'tried alongwith his co-accused namely Ghulam Qadir son of Rahim Bux for the said offence but the trial Court has acquitted the said co-accused for want of sufficient incriminating evidence against him.

Shortly stated prosecution case is that appellant Majnoo was married to deceased Mst. Karima sister of acquitted accused Ghulam Qadir. This marriage took place about 4 years before the incident and appellant Majnoo was living with his wife and mother-in-law deceased Mst. Janat in village Ghulam Mustafa Donki, Taluka Kashmore. Some days before the incident Mst. Janat brought Mst. Karima from the house of the appel lant without his permission to Jacobabad and stayed, in a house in family line in Jacobabad. Appellant resented this act of his mother-in-law and suspected that his mother-in-law had brought his wife to Jacobabad for immoral purposes. Thereafter appellant himself came to Jacobabad and met his brother-in-law acquitted accused Ghulam Qadir. It is further the case of prosecution that the appellant and the acquitted accused found out that Mst. Karima was in the house of Rasool Bux Khoso and oil 20th September, 1977 they decided among themselves to kill both the ladies as they were of bad character. At about 11 p. m. appellant Majnoo concealed himself in Juwar cultivation near Mazar of Lahori Baba in Jacobabad when acquitted accused Ghulam Qadir went and brought his sister Mst. Karima and his mother Mst. Janat from the house of Rasool Bux Khoso in family line on the pretext that his wife was ill and both ladies should see her and while he was bringing both the ladies for the purpose stated above and passed by the Mazar of Lahori Baba appellant Majnoo emerged from Juwar cultivation and both appellants Majnoo and acquitted Ghulam dragged the ladies in Juwar cultivation and attacked them with knives. In the result of attack both the ladies sustained injuries and their cries attracted P.. Ws. Dad Mohammad and Habib to the spot who saw the incident. The assailants prevented eye-witnesses from interfering and declared that they were killing their own ladies on account of 'Ghairat'. Both the ladies died at the spot due to knife injuries. After that appellant Majnoo went away to his village and acquitted accused Ghulam Qadir went to his house. Following morning Ghulam Qadir went and informed complainant Mughal alias Ladho and made extra-judicial confession before him. Complainant Mughal brought Ghulam Qadir to the Police Station City, Jacobabad and produced him there. Complainant filed F. I. R. which was registered at 6-30 a. m. Ghulam Qadir was taken in custody. His blood-stained clothes were recovered and sealed into a parcel. Ghulam Qadir also produced knife which was secured and put into a sealed parcel. Sultan Haider, Addi tional S. H. O., who registered F. I. R. and made recoveries mentioned above, inspected vardat which was pointed out by complainant Mughal. He found dead-bodies of Mst. Janat and Mst. Kanma in Juwar cultivation near Mazar of Lahori Baba with knife injuries. He prepared mashirnama of vardat, inquest report of the dead bodies and despatched the dead bodies to the hospital for autopsy. He recorded statements of P. Ws. Habib and Dad Mohammad on the same day. On 23^rdSeptember, 1977 he searched for appellant Majnoo but could not locate him. On 26^thSeptember, 1977 appellant Majnoo voluntarily appeared at Police Station at 10 a. m. and surrendered himself for arrest. He also - produced a blood-stained knife which was secured and put into a sealed parcel. On the same day appellant Majnoo was produced before Mukhtiarkar and F. C. M., Jacobabad, who recorded his judicial confession. After completing other steps of investigation challan was presented in the Court.

Before the trial Court 9 witnesses were examined. P. W. 3 Dad Mohammad and P. W. 4 Habib were examined as eye-witnesses of the occurrence but they did not support the prosecution case. P. W. 2 Mughal complainant before whom extra judicial confession was made by Ghulam Qadir also did not support the prosecution case. P. W. 5 Mr. Sadullah, Mukhtiarkar and F. C. M. was examined who produced confession of appellant Majnoo Exh. 18 P. W. 8 is Bakhtullah, Tupedar who has prepared sketch of vardat Exh. 27. P. W. 6 is Barkhurdar mashir who has attested mashirnama of vardat and inquest reports. He has also not supported the prosecution case. P. W. 9 is Sultan Haider, Investigating Officer. Chemical Examiner's report Exh, 30 is to the effect that clothes of Ghulam Qadir and knives recovered from him and also from appellant are stained with human blood. P. W. 1 Doctor Moolchand performed post-mortem examination on the dead bodies on 21st September 1977 at Civil Hospital, Jacobabad and he found the following injuries on the dead body of Mst. Jannat

(1) An incised wound 5" x 1 " x muscle deep on front and the right side of the neck.

(2) An incised wound 2" x 1" x muscle deep on left side of neck.

(3) An incised wound 3" x muscle deep in between left thumb and index finger.

(4) An incised wound 2" x ' x skin deep on mid of right leg.

(5) An incised wound 1 x " below injury No. 4 on right leg.

(6) An incised wound 1 " x muscle deep on right arm on its inner side with right axillary artery cut,

(7) An incised wound 2' x ' x muscle deep on back of right forearm just below elbow.

The doctor was of the opinion that death was due to shock and haemorrhage as a result of injuries which were caused by sharp cutting weapon such as hatchet or big knife.

On the same day he examined the dead body of Mst. Karima and found the following injuries on her person

(1) An incised wound 4" x 1' x structure deep on front of neck, with blood vessels of the neck and throat cut.

The doctor opined that death vas due to shock and haemorrhage as a result of the injury mentioned above which vas caused by sharp cutting weapon such as hatchet or big knife.

The defence of the appellant and acquitted accused before the trial Court was total dental of prosecution allegations and false implication. Appellant Majnoo has stated in his statement under section 342, Cr. P. C. that be was arrested by Police from his village .on the day of incident and he did not produce knife before Police. He repudiated his judicial confession and stated that be was tutored by Police to make that confession as his father and women-folks were called at the Police station and also that he was maltreated. No witness was examined in defence.

The learned trial Court has discarded the evidence of complainant Mughal and eye-witnesses Dad Mohammad and Habibullah, which means that ocular testimony and extra-judicial confession of Ghulam Qadir have been disbelieved. The trial Court has excluded from consideration the evidence of recovery of knives and clothes to be stained with human blood as reported, by the Chemical Examiner mainly for the reason that there was inordinate delay in sending the sealed parcels to the laboratory of Chemical Examiner and the prosecution has failed to furnish' any explanation for the delay. The trial Court therefore held that there was no evidence against Ghulam Qadir as such acquitted him but found the present appellant guilty of the offence and convicted and sentenced him as stated above on the ground that there was retracted judicial confession made by him which was corroborated by other circumstances.

After the careful analysis of the evidence produced by the prosecution in The light of arguments advanced by the learned counsel appearing for each side, we have come to the conclusion that the conviction of the present appellant is not sustainable. First of all we have to see whether the judicial confession which is retracted by the appellant, is truthful and voluntary. If it is so then there is hardly any need to 100 for corroboration. If it is not so then in order to be fully convinced about the truthfulness and voluntariness of the confession we may look for corroboration which must be strong in nature to support the confession in all material particulars so that the lurking doubt about it, as mentioned above, is completely wiped out.

In this case the incident took place on 20th September, 1977 at about 11 p.m. and as per the case of prosecution appellant Majnoo was arrested on 26th September, 1977 and on the same day his judicial confession was recorded. This very fact that the appellant was arrested or surrendered before Police as claimed by the prosecution, in itself raises doubt as to the voluntariness of the judicial confession. If the appellant had to admit his guilt and felt justified in killing his own wife on account of ghairat' as claimed by him, regardless of whatever value is to be attached to the motive he would not have disappeared for 5 days but would have gone to the Police station much earlier. Usually in cases where murders are committed on account of ghairat' the accused persons feeling justified in committing such murders make judicial confessions immediately after the incident. Secondly the story described by the appellant in his judicial confession is so elaborate that it raises doubt that the confessional statement is tutored. Thirdly the appellant has stated in his' confessional statement that he felled down his wife on the ground and slaughtered her neck with knife, in which case it can be presumed that he must have sat upon her holding in firm grip her both hands under his feet and then might have cut her throat but in that case is bound to have his clothes stained with blood but strangely enough no such blood-stained clothes have been recovered from him nor he says anything about his clothes being so stained with blood. Fourthly if, the appellant did not feel immediate remorse and decided not to surrender and admit his guilt then he could have washed the knife in Raj canal which was flowing at a distance of 30 paces from the place of occurrence as stated in mashirnama of vardat or even after that at his house where be was for 5 days before he ultimately surrendered on the 6th day of the incident as alleged by the prosecution. In such circumstances the claim of the prosecution that he produced the blood-stained knife on the 6th day of the incident when he surrendered before Police is not free from doubt. Lastly this confessional statement is disowned by the appellant for the reasons that it was tutored, untruthful and not voluntary. The reason assigned by him is that his father and other women-folks were detained by Police and be was maltreated. Such suggestive questions have been made to the Investigating Officers while he was in the box before the trial Court but he has denied them. Finally when the whole prosecution case has fallen down like a house of cards including the ocular testimony, extra-judicial confession, of acquitted accused and evidence of recoveries , lid on that ground the trial Court has acquitted the co-accused, we view with doubt for the reasons mentioned above the truthfulness and voluntariness of this judicial confession. Moreover we do not find any strong corroboration in the record for this confessional statement he learned trial Court has relied upon only two circumstances namely that appellant had confessed that he killed his wife by slaughtering her teak and the medical evidence also shows that there was big incised wound on the neck of Mst. Karima, hence it is a confirmatory circumstance. We feel that incised wound on the neck of Mst. Karima was Already known to the Police as inquest report was prepared and this fact was revealed in the post-mortem notes also hence possibility cannot ruled out that the appellant could be compelled to say so. Secondly the trial Court has held, that another circumstance in support of the confession was that the appellant had produced blood-stained knife at the police station as admitted by him in his confession. First of all the evidence of recovery of the weapons has been disbelieved and discarded the trial Courts. Secondly both mashirs for this recovery are Police constables of that police station out of them only Head Constable Hamza Ali has been produced and examined in the Court and in fact he has deposed about the recoveries of incriminating articles from the acquitted accused also. It is admitted on the record that there is bus stand opposite police station and so many persons from public were available for acting as mashirs but only constables of the same police station were selected for attesting these recoveries, It was stated by Burkhurdar mashir of vardat that both knives were lying near the dead bodies at the place of occurrence and lastly that the sketch of the said knife allegedly recovered from the appellant which is Exh. 25 on the record, shows that blade of knives only 3 " and the handle whereof is 3 . This knife appears to be an ordinary knife and is easily available. Moreover the doctor has stated that injury on the person of Mst. Karima could be caused by sharp-edged weapon such as hatchet or a big knife. This small knife with blade of 3 " hardly fits wish the description of knife given by the doctor. In these circumstances we hold that no reliance can be placed on the recovery of this knife to use it as strong corroboration to supplement the already defective confessional statement of the appellant. Additionally we would like to point out that according the confessional statement of the appellant the most vital part is played by Ghulam Qadir in the story of incident, which is to the effect that appellant complained to him about Mst. Janat that she took away his wife Mst. Karima from his house without permission and that both were leading immoral life at Jacobabad and further that Ghulam Qadir went and brought both the ladies to the place of occur rence on the pretext that they were to see his ailing wife, whereafter both Ghulam Qadir and appellant attacked ladies with knives. This Ghulam Qadir has been acquitted by the trial Court on the ground that there is no evidence against him so the most vital evidence is lost to the prosecution which was essential for the implication of the present appellant. So far the presence of the appellant at the spot is concerned it is mentioned in F. I. R. which was lodged by complainant on the basis of extra-judicial confession allegedly made by Ghulam Qadir but since Ghulam Qadir has not reiterated that statement and the complainant did not support the contents of F. I. R. the story depicted in F. I. R. can conveniently be said to be hearsay evidence. In any case complainant has been disbelieved by the trial Court hence his whole evidence stands wiped out and the trial Court has specifically stated that the evidence of complainant is ruled out of consideration. In such circumstances there is absolutely no other link in the record to connect the appellant with the commission of crime hence we hold that the confessional statement is not corroborated on any material particular and conviction made thereupon is not maintainable for the reason that the case against the appellant is not proved beyond doubt. We therefore, give benefit of doubt to the appellant and set aside his conviction and sentence. Appeal is allowed. Appellant may be released forthwith if he is not wanted in any other case.

Appeal allowed.

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