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Criminal Appeal No. J-39 and Confirmation Case No. 7 of 1981, decided on 24th November, 1982.

-- S. 25-Confession of guilt made by accused to witness in presence of police--Cannot be used against him.--[Confession].

--- S. 302-Evidence Act (I of 1872), S. 24-Double murder-Sentence-Accused giving two conflicting versions one in judicial and other in extra-judicial confession as to motive for killing his mother and sister and there being no supporting evidence none of versions coming out to be true-Origin of dispute leading to double murder not established-No one witnessing occurrence and real and immediate cause of killing remaining in mystery-Death sentence altered to imprisonment for life in circumstances.-[Sentence].

Ghulam Nazir v. The State 1981 S C M R 809; Mukhtiar v. The State 1979 P Cr. L J 851 and Baggar. Khan v. The State P L D 1971 Lab. 189 rel.

Ghulam Kadir for Appellant.

S. Sarfraz Ahmed, A. A.G. for the State

Date of hearing: 24th November, 1982.

.-The appellant Ghulam Rasool was tried on the charges of double murder of his mother, Mst. Hajran and his sister, Mst. Waziran and also of committing suicide, by the III-Additional Sessions Judge, Sukkur (Mr: Shabbir Ahmed), who by his judgment dated 8th February, 1981 convicted him under section 302/309, P. P. C. and sentenced him to death on first count and R. I. for one year on second count. The appellant has preferred this appeal against his conviction and sentence and the case has also been referred to us for confirmation of the death sentence.

2. The factual background from which the case has arisen is briefly stated as follows. The deceased, Mst. Hajran who was mother of the accused/appellant, Ghulam Rasool after her divorce by her first husband Allah Bux remarried with Khawand Bux Soomro. However with the latter's permission, the deceased Mst. Hajran and her daughter deceased asst. Waziran were living with the accused/appellant in Daherki. The accused/ appellant who lives on hawking had pressed his mother to arrange for his marriage whereupon she told him that until his sister Mst. Waziran became grown-up he would not get the hand of any girl in exchange. She further advised him to save enough money to meet the expenses of his marriage. As the accused/appellant continually pestered his mother on this issue, she got annoyed and reprimanded him not to bother her any more otherwise she would hand him over to police.

3. On the night of occurrence, which took place on 14th October, 1978, Mst. Hajran and her minor daughter Mst. Waziran were asleep on the same cot. The accused/appellant who woke up at about mid-night, was agitated by the thought that after getting him sent to jail, his mother might take away his sister to Kot Subzal (village of her second husband). Therefore he took hatchet and inflicted injuries to his mother and his sister. Although his sister died instantaneously, his mother succumbed to the injuries later on. The accused/appellant after causing injuries to the two ladies, attempted to commit suicide by cutting his neck with scissor but somehow he could not succeed. He then went to Abdur Rasheed husband of his mother's sister and made a clean breast of the facts to him. He also apprised Muhammad Anis brother of Abdul Rasheed. Both the brother accompanied the accused/appellant to his house, leaving them at the vardat, he went to police station, Daherki and lodged report.

4. A. S. I. Sher Muhammad, who was incharge of the Police Station recorded the statement of the accused/appellant in presence of mashirs Ali Murad and Badal, and put him under arrest. The A. S.-I. also secured blood-stained clothes from the accused/appellant's person. He then proceeded to the place of occurrence where in presence of same mashirs he prepared inquest report of the dead body of Mst. Waziran (Exh. 12), and forwarded the same to the hospital through P. C. Muhammad Afzal for post-mortem examination. He also prepared memo. of injuries found by him on person of Mst. Hajran who was still alive. The A. S. I. also secured blood-stained earth from vardat and took into his possession, the hatchet and the scissor, which were both blood-stained. He secured these articles at the pointation of the accused /appellant, which were sealed into parcels under memo, Exh. 11. The A. S.-I. recorded statements of P. W. Abdur Rasheed, Muhammad Anis, Badal and Ali Murad. He then produced the accused in Court for judicial confession but the same could not be recorded on account of non-availability of the Magistrate. He then handed over case papers to the S. H, O. Agha Muhammad Tahir, who got recorded the confession of the accused and the statements of the witnesses under section 164, Cr. P. C. The chemical report received from the Chemical Expert has been produced as Exh. 26, After completion of due investigation, the accused was sent up to take his trial in Court of law.

5. The accused/appellant has denied the prosecution allegations in his statement under section 342, Cr. P. C. adding therein that one Suleman had murdered his mother and sister. He has further stated that as he went to police station to lodge report against the said Suleman he was arrested by the police. As for judicial confession, his allegation is that it was extorted under police pressure. It is, however, admitted by him that the clothes that he was wearing at the time of his arrest were stained with blood. He has further admitted that he had pointed out the blood stained scissors and hatchet, which were secured by police from the vardat.

6. It would appear that the autopsy of the two deceased ladies was conducted by different doctors. Dr. Yar Muhammad (Exh. 18) who con ducted .the post-mortem examination of the dead body of' Mst. Waziran found the following external injunction on her person: -

(1) "Incised wound 4' x 1" bone deep horizontal from right ear upto eye below on right side face.

(2) Incised wound 4" x 1" x bone deep with fracture of mandible and maxillary bone below injury No. 1.

(3) Incised wound 6n x 2" x bone deep with fracture of mandible and teeth, right carotid and jegular vessels were cut."

7. On internal examination of the dead body, the doctor found fracture of right maxilla and mandible. From both external and internal examination of the deceased Mst. Waziran, the doctor formed an opinion that her death had occurred due to shock and haemorrhage resulting from the said injuries.

8. The autopsy of the dead body of Mst. Hajran was conducted by Dr. Abdul Karim (Exh. 27), who found the following injuries on external examination of the dead body: -

(1) "Incised wound 3" x 1 " x muscle, blood vessels and nerves deep on the left lateral side of neck, vertibral bone also cut.

(2) Incised wound 5" x 2 " x muscle, blood vessels and nerves cut on the left lateral side of neck, upper part of injury extending from nape of neck upto the pinna of left ear,

(3) Incised wound 2" x 1" x muscle deep on the left occipital region.

(4) Abrasion 3" x 2 " on the left shoulder."

9. On internal examination, he found the damage having been caused to cranium and spinal cord. He further found that brain was pale and enemic and large blood vessels on the left side of neck were cut through. In the opinion of the doctor the external injuries 1 and 2, which had resulted in shock and haemorrhage were collectively sufficient to cause death.

10. From the medical evidence, as stated above, it is established that both Mst. Waziran and Mst. Hajran died of the injuries they bad suffered.

11. According to prosecution case, the accused /appellant was responsible for the injuries found on the persons of the two ladies. On this point the prosecution case rests on judicial confession, extra-judicial confession and recovery of incriminating articles.

12. Mr. Ghulam Qadir Malik, who appeared on behalf of the accused/appellant did not press the appeal on merits. Therefore, we need not go into detailed scrutiny of the evidence. Suffice it to say that the conclusions reached by trial Court are correct that on the evidence avail able on record it stands proved that the accused/appellant was the author of the injuries found on the persons of the two deceased ladies.

13 The learned counsel for the accused/appellant laid stress on the quantum of the sentence, strongly pleading for its reduction. He urged that although motive has been advanced as a piece of evidence, yet the prosecution have failed to prove the same. In this connection he parti cularly pointed out to the two conflicting versions of the accused/appellant one disclosed in his judicial confession and another appearing in his extra--judicial confession. The learned counsel submitted that in view of this inconsistency, the real cause for commission of the two murders has not come to light. Since it is unknown, he further argued, as to what prompted the accused/appellant to take the lives of his mother and sister, the benefit of doubt should go to him and accordingly the accused/appellant is entitled to reduction of the sentence.

14. It is stated that the accused/appellant had made extra-judicial confession to Abdul Rashid, Badal and Ali Murad. As he confessed his guilt to the last two witnesses in presence of Police, his confession is hit by section 25 of the Evidence Act and cannot be used against him. Abdul Rashid has, however, deposed that while confessing to him that he had killed his mother and sister, the accused/ appellant told him that the incident had occurred following a dispute between him and his mother over the question of his marriage. On the other hand it is disclosed in the judicial confession of the accused/appellant that he committed the murder of his mother on account of ghairat', as she had illicit connections with Suleman Soomro. There is no corroborating evidence in support of either of these versions. Therefore, it is difficult to hold which of the two versions is true. Accordingly we are of the view that the real origin of the dispute, which led to double murder has not been established.

15. The learned A. A.-G., who initially made a faint attempt to induce us to believe the earlier version of the accused/appellant contained in his extra-judicial confession, was constrained to concede that motive for committing the crime is not free from suspicion.

16. To reinforce his arguments, the learned counsel for the accused/ appellant has cited some authorities. The first case referred by him in this connection is of Ghulam Nazir v. The State (1981 S C M R 809) wherein the appellant had without success sought the- hand of the lady he had done to death. There was no indication that the deceased lady had in any manner spurned the appellant. It was held:

"It would, therefore, appeal that the real motive is shrouded in secrecy. It these circumstances, the learned Advocate-General stated that interest of justice will be sufficiently met if the sentence of death is altered to life imprisonment. We will, therefore, while not disturbing the other sentences alter the death sentence to life imprisonment."

17. In the second case of Mukhtiar v. The State (1979 P Cr. L J 851) relied upon by the learned counsel, the Division Bench of this Court observed: "On the other hand, motive alleged in the judicial confession is also not believable as already discussed above hence motive in this case is not proved. It is a settled proposition of law that when there is sufficient evidence in the case to connect the accused with the commission of crime but motive is not proved or is weak then capital punishment is not called for. Reliance is placed on the decision in Bahadur v. The State (P L D 1959 Kar. 57.8).

18. The third case is of Baggar Khan v. The State (P L D 1971 Lah. 189) wherein the death sentence was converted into transportation of life in the circumstances stated as follows

"What transpired between the appellant and his sister before he shot her dead is not clear, as nobody was present in the Jhuggi of Abdur Rasul at that time. The possibility about the lady having made some remark or said something which provoked the appellant, an impulsive young man, who is a Pathan to take her life is there. We, therefore, uphold the conviction of the appellant under section 302, P. P. C. but substitute the sentence of death into transportation of life."

As pointed out above, in the case in hand the accused has given two conflicting versions as regards motive for killing his mother and sister. In absence of any supporting evidence, it is difficult to decide which of the two versions is true. May be the deaths were caused in entirely different circumstances. It is not known what transpired between the deceased and the accused immediately before the incident. As no one witnessed the occurrence, we only have the word of the accused /appellant to throw light on the circumstances leading to loss of two human lives. In view of the fact that the accused/appellant has not been straightforward in coming out with the true story, the real and immediate cause of the killing has remained a mystery. Therefore, following the rule of law enunciated in the above reported cases, we substitute the death sentence for the sentence of life imprisonment without disturbing the other sentence. However, we direct that the imprisonment under section 309, P. P. C. will be simple and the sentences of imprisonment will run concurrently. As required by the law, in addition to the sentence of life imprisonment, we impose on the accused/appellant fine of Rs. 3,000 or in default R. I. for six months. The amount of fine, if realized, would be shared equally by the heirs of the two deceased ladies. We further direct that while computing the sentence of imprisonment, the jail authorities will extend to the accused/appellant the benefit of section 382-B, Cr. P. C. Accordingly the appeal is partly accepted to the extent of the modifications in sentences as stated above.

M. Y. H. Appeal partly accepted.

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