AGHA ALI HYDER, J.-----The appellant was convicted by the learned Sessions Judge, Tharparkar at Mirpurkhas for an offence under section 302. P. P. C. And sentenced to imprisonment for life and a fine of Rs. 2,000 or in default to suffer R. I. For two ears more. He has come in appeal.
2. The Appellant was married to his cousin by the name of Mst. Sakina eight years before the incident. There were two sons born from the said union. Muhammad Khan, the father of the appellant who was the first informant of the case and also the grandfather lived together. There was a `Kote' around the house and the Otak was outside. On the 7th of June, 1975, Muhammad Khan and his cousin P. W. Muhammad Hasham were sitting in the otak at about 4/4-30 p. m. When they had heard two gunshot reports from inside the `Kote'. They had run in the direction and learnt that Mst. Sakina bad been killed by the Appellant. The Appellant was detained in the custody of the family members, who had arrived in the wake of the commotion raised, and Muhammad Khan had proceeded to Taluka Police Station, Mirpurkhas which was some five miles away and lodged the report. At about 6-30 p. m. The S. H. O., Haji Noor Ali, had accompanied him to the vardat, prepared the mashirnama thereof, and also the post-mortem report. A gun containing two empties was produced before the S. H. O. Which came to be duly secured. On the 9th of June, 1975, the Appellant was produced before the Mukhtiarkar and F. C. M. Where his judicial confession was recorded. Later inquiry was made from a number of people. The empties and the gun were sent to the Ballistic expert and the clothes and other articles sent to the Chemical Examiner. After due investigation, the case came to be challaned in Court.
3. The appellant in his statement at the Court of inquiry denied the various allegations made against him and maintained that the judicial confession had been extorted from him due to torture. The witnesses were deposing against him as they were interested. But it was not amplified any further. At the trial, he stated that they had not deposed against him at all. Otherwise his stand continued as before.
4. According to the Medical Officer, two injuries were found on the person of the deceased Mst.
Sakina which are as follows :-
(1) Entrance gun shot wound circular shaped 2' in diameter above the right breast and 1--' below the right clavical going inside the chest cavity. Charring marks present around the wound.
(2) Entrance gun shot wound 1' in diameter going inside the abdominal cavity at the left hypochordrium. Charring was present over the wound.
The death, according to the Medical Officer, was instantaneous and both the injuries were sufficient to cause death in the ordinary course of nature.
5. There is no eye-witness account in the case. The children were too young and there is no indication if any family member was present at the time of the incident. Anyway, the gruesome tragedy took place all of a sudden. Muhammad Khan and Muhammad Hashim were at the otak which was somewhat away from the vardat and appear to have arrived first on the scene on hearing the gun reports. Muhammad Khan at the trial stated that they had met the Appellant near about the gate of the `Kote'. He stated that it was Muhammad Hashim who had made inquiries from the Appellant about the happenings, to which the appellant had replied that it was he who was responsible for the killing and was going to surrender to the Police Station. This was in departure from what he had to say in the F. I. R. It was thereafter that his relations including Shafi Muhammad had turned up and the appellant was left in their custody. After verifying the details, he had proceeded to the Police Station to lodge the report. He has also stated that the appellant at the time of the incident was a Metric student and could not say as to under what circumstances the matter came to such a pass: However, the suggestion in the cross-- examination was that his father was displeased with Mst. Sakina as she used to seek permission from him for visiting her parents. In the cross-examination, he categorically denied that the police had beaten the accused to extort the confession. However, later on, he did concede that the police had asked him to get the confession from the Appellant. Muhammad Hashim has, however, stated that it was he who had inquired from the appellant and it was in reply thereto that the latter had owned the guilt. There were only three questions put to him in the cross-examination and they are absolutely inconsequential. Shafi Muhammad is again a relation and had reached the vardat while the appellant was with his father and Muhammad Hashim. According to him, the details of the murder had been furnished to him by Muhammad Khan. However, he admitted that he had kept watch over the appellant with other persons till the arrival of the police.
6. Mr. Muhammad Hayat Junejo, learned counsel for the appellant, contended that Muhammad Khan had not stated at the trial that the appellant had made an extra judicial confession on his inquiry. Having remained reticent at the trial, what he had to say in this regard in the F. I. R. Would not be substantive evidence. There is no quarrel about the latter proposition. However, Muhammad Hashim has maintained that it was he who had made the enquiries, whereupon the appellant had made a clean breast of the whole affair. There was nothing to show that he had something different to say at the earlier stages. The fact that the F. I. R. Was silent about the query being made by him. In the circumstances of the case, can not possibly detract from his version. He is very closely related to the Appellant and there was no unpleasantness in the family at alt. Even the concession made by Muhammad Khan, the father of the appellant, can very easily be appreciated.
After all blood is thicker than water. Nor there is any thing suspicious about the testimony of Shafi Muhammad. It is safe to rely on the narration of events given by them.
7. Then there is the judicial confession, It is true that the same had been retracted, but to suggest that any police persuasion was involved is very much wide of the mark. It is inconceivable that the informant would be interested about it, or for the matter of that, any body else in the family. The confession was recorded with care and with all the necessary precautions. It is true that it was not recorded exactly within 24 hours of the arrest, which limit expired in the night. However, the Appellant was produced before the Magistrate the next working day. In the circumstances of the case, it will be making a fetish of the principle, to say that the judicial confes--sion should be disregarded only for a slight delay. Nothing smacks of any foul play or the sleight of hand on the part of the police. And the very reading of it shows as to hew wantonly Mst. Sakina came to be killed by the appellant. Patently, he was a good-for-nothing young man, hot tempered and having no value even for human life, for next to no reason. The suggestion that it would be a case of suicide was answered in the negative by the Medical Officer and I might as well add that the learned counsel did not say any further than drawing our attention to the attempt made in that regard at the trial Court.
8. There was a gun in the house which was easily accessible to the appellant, but it is not necessary to refer to the opinion of the ballistic expert for the simple reason that it was not produced by the appellant himself. Anyway, the evidence against the appellant is beyond any shadow of doubt. He has also been awarded lesser punishment under the law. There is, therefore, no occasion for any interference with the judgment or the sentence awarded to the appellant.
9. As a result, the Appeal is dismissed.