' The appellant in this case was convicted on 24th September, 1978 by the Sessions Judge, Jacobabad under section 304 (I), P.P.C. And sentenced to suffer R.I. For 4 years and to pay the fine of Rs,-1,000 or in default to further suffer R.I. For 6 months. The fine if being paid the half of the amount was to be given to heirs of Mst. Namat under section 544-A, Cr. P. C. Except the accused himself.
' F.I.R. In this case was filed on 26th October, 1977 at 8 a.m. -by the present appellant Ali Nawaz s/o Lal caste Buriro at Police Station Karim Bux, District Jacobabad, it is Exh.
25. It was registered under section 302, P.P.C. All Nawaz has stated that he and his brothers, namely Fazal and Lakhno and nephew Ghulam were residents of Deh Bahangar and used to cultivate the land of Zamindar Haji Mohammad Ayub Khan. A day before, the brother of All Nawaz had gone to Thul, and on the same day some relatives Abdullah sit Soomar and Naseer Ahmed s/o Salah had come to the house of Ali Nawaz's brother Fazal for visit. Ali Nawaz states that he had been married with Mst. Namat for the last 10 years. Ali Nawaz continued that the day before he had gone to village of Nasir Khoso for business of bullocks, and he reached his house back at somani time, and found on moon light his nephew Gulab in condition of committing illicit intercourse with his wife Namat. Upon this, Ali Nawaz got ghairat and he challenged Gulab as Karo. Upon this Gulab got down from the cot and ran away, and his wife got up from the cot. Ali Nawaz inflicted three or four sharp-edged hatchet blows on her neck. His wife fell down and died. On commotion, Abdullah and Nazeer came there to whom Ali Nawaz narrated the incident. He further stated in the F.I.R. That he kept the hatchet in the shed of the house. Due to late hours of night he stayed in the jungle and in the morning he came to report to the police. The house of Ali Nawaz was described in the F.I.R. To be 12 miles from the Police Station. Report was recorded by Mohammad Paryal S.H.O. Who arrested the accused secured blood-stained loin clothes from his person in presence of Mashirs under Memo Exh.
11. All Nawaz then took the police to the vardat which was in his house where the dead body of Mst.
Namat was lying. S.H.O. Secured blood-stained earth, and prepared Memo of vardat Exh.
8. The Memo of securing hatchet is Exh.
9. And Memo of securing blood-stained loin clothes from the person of accused is Exh.
12. On the next day the S.H.O. Recorded the statements of witnesses, and also produced the accused appellant Ali Nawaz before S.D.M., Thul, who recorded his confession which is Exh.
22. The blood-stained earth and loin clothes and hatchet were sent to chemical examiner, and thereafter, the appellant was challaned under section 302, P.P.C.
' The learned Sessions Judge framed the following points for determination (1) whether Mst. Namat was murdered, (2) whether the accused murdered Mst. Namat :- ' The Medical Officer Mr. Santho Ram found the following four injuries on the person of Mst. Namat
(1) Incised wound 5" x 4" x 4" on chain and left side of mandible cutting lower part of the mandible, blood vessels, muscles, pharynx and fracturing in remaining part of the mandible in pieces.
(2) Incised wound 2k" x k" x deep vertebral column on left lower neck anteriorly cutting blood vessels, trachea and muscles.
(3) Incised wound I" x I" on left upper neck.
(4) Incised wound 2" x I" x 2/3" on left dorsurn of hand cutting left second metacarpal bone."
' The Doctor was of the opinion that the death was due hemorrhage as a result of external injuries which appear caused by sharp-cutting weapon like hatchet.
' In respect of the investment of Ali Nawaz in the crime the prosecution had relied upon (1) Extra Judicial confession made by the accused to P. W. Abdullah and Naweer who too also saw the accused with blood-stained hatchet. (2) The accused himself lodged the report at the police station. (3) Police secured blood-stained loin cloth from the accused. (4) the accused took the police to the vardat where he voluntarily produced blood-stained hatchet. (5) Retracted judicial confession of the accused.
' At the trial P. W. 2 Mohammad Siddiq mashir of recovery of hatchet and vardat, P. W. 3 Vakil mashir of vardat and securing of hatchet P. W. 4 Bashir Ahmed mashir of arrest of the accused and securing of loin clothes from him and P. W. 5 Gul Sher mashir of arrest of accused and securing of loin clothes from him, did not support the prosecution. P.W. 6 Nazeer also denied that the accused.
Ali Nawaz who was present in Court was the same Ali Nawaz who murdered Mst. Namat, but otherwise, he supported the prosecution case and orally deposed that he is nephew of Ali Nawaz brother of Fazal, and that he had seen Mst. Namat lying dead with hatchet injury by Ali Nawaz, who was present there, All Nawaz told him, that he had seen Mst. Namat in actual sexual intercourse with Gulab and he had murdered Mst. Namat while .Gulab had run away. He was declared hostile, and was cross-examined by D.P.P. He stated that assailant Ali Nawaz is son or Ramzan, and further admitted that assailant Ali Nawaz was his uncle. In the same manner P. W. 7 Abdullah who was husband of sister of Fazal stated he and Nazeer went to the house of All Nawaz on hearing cries, and found Mst. Namat wife of Ali Nawaz lying dead with hatchet injury and Ali Nawaz was holding blood-stained hatchet, and All Nawaz told him that he had seen Mst. Namat and Gulab in compromising position, and Gulab had run away, and he murdered Mst. Namat, but he also stated that the accused person in Court was not the same Ali Nawaz. He was declared hostile and was cross-examined. He denied that he was giving false evidence as he was brother-in-law of accused. He stated that Sardar Mohd. Ayub Khan had implicated the present accused to save the real assailant Ali Nawaz. It may be stated here that P. W. 6 Nazeer Ahmed and Abdullah, in their earlier 164, Cr. P. C. Statement before S. D. M., Thul on 27th October 1977 had involved appellant Ali Nawaz with the crime, but since, the appellant had not been given an opportunity to cross- examine them, therefore, these statements could not be used. The confession of the accused was proved by P. W. 9 Ghulam Muhammad, S. D. M. Who stated that he was satisfied that accused had made the voluntary confession. He identified the present appellant as the person, who had made the confession. He stated that accused was brought before him on 27th October 1977 at 12.30 noon.
He got hand cuff removed and directed the police to leave the Court Room, and inquired from accused about any maltreatment by the police, but he did not complain. He stated that he had told the accused that he was the First Class Magistrate, and accused was not bound to make the confession, and if he made any confession it would be used against him. He also told the accused that whether he made or did not make any confession he would not be returned to police custody.
He had given time for reflection to the accused till 1.15 p. m. And then recorded the confession of the accused. The confession was recorded in English as form of confession was in English. He said that he was Sindhi, and knew Sindhi language and had translated the confession recorded by him and explained to the accused in Sindhi. He, however, admitted in cross-examination that he had not mentioned in the confession that the accused was told that he would not be returned to police custody. He has denied the suggestion that accused was not produced before him. The: I.
0. In the case was P. W. 1I Mohd. Paryal who identified the accused as the person who had come to the police station, and he lodged the F. I. R. He arrested the accused and secured his blood-stained loin-clothes and made the investigation by going to the site of offence, and he secured the blood- stained hatchet, which was produced by the accused from the inside of his house. He is the only person, therefore, who had proved the recovery of the blood stained loin-clothes from the person of the present appellant as well as the securing of the blood-stained hatchet and produced him on the next day for judicial confession. In the crass-examination he denied suggestion that he had left the real culprit All Nawaz at the instance of Sardar Mohammad Ayub Khan, and had falsely involved the present appellant. In his statement under section 342, Cr. P.C. The appellant denied that Mst. Namat was his wife. He further denied that he filed the F. I. R. Or that he made any confession and he stated that he was implicated at the instance of Sardar Mohammad Ayub Khan.
' The appellant has been convicted by the learned Sessions Judge on the basis of certain circumstances including statements of the P. Ws Nazeer Ahmed and Abdullah who had reached the vardat immediately on hearing the cries and had seen Mst. Namat lying murdered and Ali Nawaz standing there and Ali Nawaz had made extra judicial confession before them that he had killed Mst. Namat as he had found her in compromising position with Gulab and he had declared her as Kari. These witnesses had been relied upon in spite of the fact these two P. Ws. Had stated that accused Ali Nawaz was not the same Ali Nawaz, whom they had seen at the vardat. This part of their statement was found to be false by the learned Sessions Judge on the ground that it was the accused present in Court who had filed the F. I. R. Exh. 25, and had thus moved the law in motion. These portions of the F. I. R. Which are not incriminating, but where he had given the relationship with his brothers Makhno and Fazal, and stated that Mst. Namat was married to him and that Fazal and Makhno hid gone to Thul to attend a Fatsla and P. Ws. Nazir and Abdullah had come to the house of his brother Fazal on the day that accused had gone to village Naseer Khoso for business of bullocks and had returned to his house at Somhani time was used to show that it was the accused Ali Nawaz himself about whom P. Ws. Naseer and Abdullah had deposed, who had made the extra judicial confession before them. To establish the identity of the particular accused his retracted judicial confession Exh. 22, was also used where the accused had stated that he had gone for purchasing bullocks and returned at Somhani time and finding Gulab and his wise committing zina, he killed his wife on the spot with hatchet and Nazeer and Abdullah, who were staying there came running and the accused told them the whole facts.
' I have seen all these statements, F.I.R. And the judicial confession, and I agree with the learned Sessions Judge that it was the appellant All Nawaz himself about Whom P. Ws. Nazir and Abdullah had deposed as the person who had killed his wife and made extra judicial confession before them and their failure to identify the appellant in Court was merely an obliging statement as P.W.
Abdullah was the brother-in-law of the accused and P. W. Nazeer is the nephew of Abdullah. Mr. Munawar Malik states that F. I. R. Should have been left out of consideration as it was a statement made by an accused before a police officer. But, I fine that the incriminating part of F. I. R. Has been left out of consideration and only that portion of the F. I. R. Has been used which only gives relationship and shows the arrival of the P. Ws. At the house, and it is clear that these portions of F. I.
R. We're not the confession of guilt before a police officer, and there was, therefore, no bar in law to their being used. Moreover, I find that there was no allegation made against the police officer personally of either any maltreatment or corruption, and therefore, it could not be challenged that it was the appellant Ali Nawaz himself, who had lodged the F. I. R. The suggestion that real Ali Nawaz has been left and this Ali Nawaz has been involved at the instance of Sardar Mohd Ayub is hardly tenable as no dispute between the appellant and Ayub has been established or even suggested and on the other hand I find that the appellant himself cultivates the land of Ayub and P. W. Nazir and P. W. Abdullah, who are relations of the accused, have admitted that Sardar Ayub is Sardar of community. P. W. Nazir has even admitted that his father is maternal uncle of Shah Bux, who is father-in-law of Sardar Ayub Therefore, it is hardly reasonable to suggest that in such circumstances Sardar Ayub would get the appellant falsely involved, Sardar Ayub should in fact be interested, if at all, to save the appellant. Therefore, the lodging of the F. I. R. By appellant cannot be challenged and its introductory portion can be used against the maker of the F. I. R. Without the confessional part.
' Further, circumstance used is the judicial confession Exh.
22. Mr. Munawar says that confession is not recorded in accordance with law and hence it should be ignored. I do not find any justification to do so. It was recorded on the next day of the arrest of the accused and hence there is hardly any delay. Mr. Ghulam Mohd, who recorded the confession, has stated on oath that he satisfied himself before recording the confession that accused was making a voluntary statement, that he had given time for reflection of about 45 minutes and had removed the police from the Court and had examined the body of accused and had not found any marks of Injury on his person, which is sufficient to show that confession had been voluntary. Mr. Munawar says that the confession had been recorded in English while accused did not know English, but in his statement the Magistrate has categorically stated that he knows Sindhi, and he had explained and translated in Sindhi, the confession recorded by him. This is a sufficient explanation and dispels all doubts. The Magistrate has further stated that he had told the accused that whether he made the confession or not he would not be returned to Police custody and although the Magistrate had made no such note in the body of confession, but there is no reason to doubt the statement of the magistrate .Made in Court, more particularly so when there is no allegation of any torture and beating by police and the accused in his statement before Court has even denied that he made such a confession and a question in cross-examination has been put to the Magistrate that the accused was not produced before him and the Magistrate has himself written the confession on the basis of statements of P. Ws. Which suggestion has been denied by the Magistrate. I see no justification on record to put such a question to the magistrate against whom no allegation of any partiality had been suggested. The judicial confession was therefore voluntarily made and it would have been made the sole basis of conviction. But the learned Sessions Judge has, for abundant caution, sought its corroboration, which is provided by the statements of P. Ws Nazir and Abduliah as mentioned above. Apart of this confession appears to be in conformity with the non-incriminating part of F.
1. R. The statement in confession that the accused killed his wife with a hatchet is corroborated by the statement by Dr. Santhoram P.W.
5. Postmortem Report Exh. 20 showing that 4 incised wounds were inflicted on the person of deceased Namat.
' Still further corroboration of the judicial confession and support to the prosecution is provided by the Investigating Officer P. W. 11 Mohd. Paryal who has proved that accused lodged F.I.R. And he arrested accused on 26th October 1977 and he found the accused wearing blood-stained clothes which he secured and put in sealed parcel after making a memo Exh.
11. He has also proved that the accused produced blood-stained hatchet from his house on the same day vide memo. Exh.
9. These clothes of accused and hatchet were sent to Chemical Examiner and report of the Chemical Examiner Exh. 28 shows that they were stained with human blood. Mr. Munawar argues that the mashirnama cannot be looked into as no mashir has proved them and hence recoveries are doubtful. It is correct that these recoveries have not been supported by the Mashirs but I find that they have been proved in accordance with law by the statement of the Investigating Officer and there is no reason to disbelieve his testimony. I have already held that F. I. R. Had been lodged by the present appellant and that the suggestion that the police have wrongly involved the appellant is without any basis. There is no other challenge to the testimony of the Investigating Officer who seems to have performed his duty properly and regularly and hence there is no reason to disbelieve him on the point of recoveries, and therefore the recoveries of blood-stained clothes from the person of the accused and the production of blood-stained hatchet by the accused supported by positive report from the handwriting expert have been correctly relied upon.
' The net result of the above discussion is that case against the accused has been amply proved and he has been .Rightly convicted under section 304 (I), P. P. C. As from the very beginning case against the accused was that he had acted under grave and sudden provocation as he had seen the deceased and Gulab in compromising position. There was thus no case of murder under section 302, P. P. C.
' So far as the question of sentence is concerned, I find that a sentence from 2 years to 5 years has been awarded in different cases in this Court and the Lahore High Court under section 304 (I) of P.
P. C. And there is nothing brought to my notice as to why the sentence should be interfered with. I do find that there is nothing to contradict the appellant on the point of grave and sudden provocation of seeing the deceased in compromising position with Gulab, but his allegation that both of them were naked does not find support from the circumstances. Gulab could have hardly run away if he was holding his clothes or was trying to put them on and if he had run away naked then at least his loin-cloth should have left at the spot and could have been seized by the police but that was . Not don and hence the allegation of nakedness is not proved. In respect of M.o.
Namat it has been clearly established by P. W. Abdullah that she was no naked and was wearing the clothes, therefore, the allegation about nudity of Karo and Kari is found disproved and hence the accused saw them only in compromising position and not naked. Moreover no semen was detected.
' In these circumstances, 4 years' R. I. And fine of Rs, 1,000 does not appear to be such a sentence which should be interfered with by the High Court.
' Appeal is therefore dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.