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Criminal Appeal No. 787 of 1957, decided on 18th March 1958 from the order of Malik Muhammad Aslam Khan, Sessions Judge, Dera Ghazi Khan, dated the 23rd September 1957.
S. 33‑Witness of tender age ---Not answering questions but crying due to nervousness‑Statement of witness before Committing Magistrate cannot be transferred to Sessions file under S. 33.
A small girl cited as a prosecution witness in a murder case was given up by the Public Prosecutor, presumably because of her tender age (about seven years), but the Sessions Judge examined her as a Court witness. When the Sessions Judge pro ceeded to examine her, she started crying, due to nervousness. Thereupon, the Sessions Judge decided to transfer her statement before the committing Magistrate, purportedly under section 33 of the Evidence Act.
Held, that provisions of section 33, Evidence Act were not applicable.
Where a witness proves shy and speechless in the Sessions Court, section 33 of the Evidence Act does not apply and the evidence before the committing Magistrate cannot be ipso facto treated as evidence at the trial. The proper course in such cases would be to allow the prosecution, under section 154 of the Evidence Act, to ask the witness a leading question and then to get an admission or denial.
Moti Ram v. Emperor 75 I C 152 rel.
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Extra‑judicial‑Incorporated in First Informa tion Report lodged by accused‑May be safely acted upon.
S. 300, Exception 1‑Grave and sudden provocation‑Conviction under S. 302, P. P. C. based on confession containing plea of grave and sudden provocation--- Conviction altered to one under S. 304, P. P. C.
Shah Rahman Ansari for Appellant (at Government expense.)
Mushtaq Ahmad for Respondent.
Date of hearing: 18th March 1958.
--This is an appeal, through jail, by Mewa, who has been convicted under section 302 of the P. P. C. by the learned Sessions Judge, Dera Ghazi Khan, and has been sentenced to death for the murder of his brother's wife Mst. Durnaz, on the 12th of February 1957, at 1‑30 p.m., in the area of Mauza Miranpur, District Dera Ghazi Khan. The case is also before us under section 374 of the Code of Criminal Procedure for the confirmation of the death sentence. This judgment will dispose of the appeal as well as the reference for the confirmation of the death sentence.
2. The prosecution case is that on the eventful day, at zoharwela, Sahiban, (P. W. 7) wa's sitting at his besakh in village Nasir Khan, with Rahim Bakhsh Chowkidar (P. W. 8) when Mewa appellant appeared, with the blood‑stained hatchet (Exh. P. 1) in his hand, and stated:‑
"I went out of my house to bring fodder. I looked for my brother's wife Mst. Durnaz . . . . . ., who had preceded me to the fields to pluck peas, in the company of Mst. Da ji, aged six years, daughter of Islam, but she was missing from the field. I found Mst. Daji alone in the field. On further looking round for Mst. Durnaz, I saw her sitting in a cluster of kikar trees with Dahu . . . . . . When I shouted for her, Dahu ran away and so did Mst. Durnaz. But I overtook her and gave blows on her head with the blunt side of the hatchet. She fell down and 1 hit her again on the head, which resulted in the fracture of her skull. She has died. I have come to you with the hatchet so that you may produce me before the police."
Sahiban P. W. took the blood‑stained hatchet (Exh. P. 1) from the appellant and left for the police station accompanied by Rahim Bakhsh P. W. and 'the appellant. On reaching Police Station Rojhan, which is at a distance of seven miles from the I spot, Sahiban P. W. lodged the first information report Exh. P: K. at 4 p.m.
3. Sahiban (P. W. 7) produced the blood‑stained hatchet (Exh. P. 1) before Head Constable Abdul Ghafoor (P. W. 10) who sealed it into a parcel vide memo. Exh. P. F. The Head Con stable observed blood‑stains on the appellant's shirt (Exh. P. 2) and chadar (Exh. P. 3). He removed these garments from the appellant's person and sealed them into a parcel vide memo. Exh. P. E. On reaching the spot at 6 p.m., the Head Constable prepared the injury statement and the inquest report and then sent Mst. Durnaz's dead body to the mortuary for post‑mortem examination. The Head Constable collected bloodstained earth from the place where the dead body of Mst. Durnaz was lying, and sealed it into a parcel vide memo. Exh. P. H.
4. The appellant offered to make a confessional statement. Accordingly, he was produced before Mr. Shafiq Ahmad Khan, Magistrate 1st Class, (P. W. 6), on the 14th of February 1957. The Magistrate, after satisfying himself that the appellant was making a statement voluntarily, recorded the appellant's confes sional statement (Exh. P. O.), which is as follows:‑
"Day before yesterday, 1 pehrs after dawn, my sister‑in‑law (brother's wife) Mst. Durnaz, went to the field to pluck peas. When after some time 1 went to the field, I saw Dahu, son of Dheengan, sitting with Mst. Durnaz in circumstances which suggested that they had committed adultery. I got enraged and lost control of myself. On seeing me, Dahu ran away. In rage, I aimed a kulhari blow on Mst. Durnaz which fell on her head. I then gave a second blow on her head. Some time later she died. A small girl, named Mst. Daji, daughter of Idan, (sic) was present there. I asked her to go and inform Pirak that I had murdered Mst. Durnaz on the ground of her being a kali (adulterous). When I left the place of occurrence, Gaman and Phero met me on the way. I narrated the entire occurrence to them. From there I went to Miranpur and informed Shah Muhammad Khair Lambardar of the occurrence. Shah Muhammad Khan sent the chowkidar to the spot and directed me to go to Police Station Rojhan. I was going to the police station when Sahiban Balachani met me on the way. I appeared at the police station along with him. I had related the entire occurrence to Sahiban also on the way. I appeared at the police station."
5. Dr. Ghulam Ahmad, who conducted the post‑mortem examination, on the 13th of February 1957, observed the following injuries on Mst. Durnaz's dead body:‑
(1) A contused wound, " x " x bone deep, on the right temple bone, " above and front of right ear. The bone under neath was fractured.
(2) A contused wound " x " x bone deep, 2 " above the right eye‑brow, outer end. The bone underneath was fractured.
(3) A contused wound, " x " x brain deep. The brain matter was protruding out. On the right side of the scalp 3" vertically above the root of ear from middle.
(4) A contused wound l.1/3" x " x brain deep, " behind injury No. 3. Brain matter was protruding out.
(5) A contused wound, 2" x " x bone deep, just behind injury No. 4. The bone underneath was fractured.
(6) A contused wound, " x " x bone deep, on the back of the right side of scalp, 2 " from midline and 2 " above the root of right ear. The bone underneath was fractured.
(7) A contused wound cross‑shaped, 3" x 1 " x brain deep, at the vault of the skull, more on the back and right side of the skull, 5 " from the left ear, starting from the centre going towards right. Bone underneath was fractured.
According to the doctor, death was the result of multiple fractures of the head.
6. The appellant pleaded not guilty to the charge and denied having made the extra‑judicial confession. As regards the judicial confession, lie stated that he had made it under the pressure of the police. He, however, led no evidence in defence.
7. Mst. Daji, to whom the appellant had referred in his confessional statements, was given up by the learned Public Prosecutor presumably because of her tender age (about seven years), but the learned Sessions Judge examined her as a Court witness. When the learned Sessions Judge proceeded to examine her, she started crying, due no doubt to nervousness. Thereupon, the learned Sessions Judge decided to transfer her statement before the committing Magistrate, purportedly under section 33 of the Evidence Act. In our opinion, the provisions of section 33 of the Evidence Act are not applicable to the circumstances of the case. It has been held in Moti Ram v. Emperor (75 I C 152) which was analogous to the present case, that where a witness proves shy and speechless in the Sessions Court, section 33 of the Evidence Act does not apply and the evidence before' the Com mitting Magistrate cannot be ipso facto treated as evidence at the trial. The proper course in such cases would be to allow the) prosecution, under section 154 of the Evidence Act, to ask the witness a leading question and then to get an admission or denial I. We respectfully agree with the views expressed in that case, and hold that as the matter stands, the evidence of Mst. Daji must be ruled out.
8. The case thus rests on the evidence of the‑‑.
(i) extra‑judicial confession;
(ii) recoveries of the incriminating articles referred to above;
and
(iii) retracted judicial confession.
The recoveries of the incriminating articles are established by the evidence of Sahiban P. W. and Head Constable Abdul Ghafoor. The extra judicial confession is incorporated in the first information report which was made soon after the admission of guilt by the appellant. It can, therefore, be safely acted upon. As regards the judicial confession, there is nothing on the record to show that it was the result of any threat, promise or coercion. Moreover, there are no material discrepancies between the judicial confession and the extra judicial con fession. We, therefore, see no reason to exclude them from consideration.
9. The confessions, however, show that the appellant killed) Mst. Durnaz under grave and sudden provocation. He should, therefore, have been convicted under section 304 Part I of the P. P. C. Accordingly, we alter his conviction from section 302 to one under section 304 Part I of the P. P. C., and sentence him to three years' rigorous imprisonment.
10. The sentence of death is not confirmed.
A. H. Conviction altered.
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