MUHAMMAD ILYAS, J.---Jaffar son of Mohabat, caste Bata], aged 30 years cultivator, resident of Manakeywala, Police Station Jhawarian, District Sargodha, was tried by the Sessions Judge, Sargodha, on charge under section 302 of the Pakistan Penal Code, for having strangulated his wife, Mst. Bevi to death. By his order dated the 18th September, 1979, the learned Sessions Judge convicted him on the said charge and sentenced him to death. He was also punished with a. Fine of Rs. 2,000 which, on realisation, was required to be paid to the heirs of the deceased lady. The order of the learned Sessions Judge has been challenged by Jaffar by means of his appeal. There is also a reference by the learned Sessions Judge for the confirmation of death penalty awarded to the appellant. This judgment shall dispose of the appeal as well as the reference.
2. The prosecution case is that about six years before her murder, Mst. Bevi was married to the appellant and in exchange of that marriage a niece of the appellant was married to the real brother of Mst. Bevi. Mst. Bevi was pregnant of eight months by the time' of her death. The appellant, however, disliked her because she was a simpleton. He therefore, treated her with cruelty. On 29th November, 1978 at, about 8 a. m., the appellant told Muhammad Nawaz complainant (P. W. 4) and Soni khan, father of Mst. Bevi, that she was missing since last night. There was no clue of Mst. Bevi till 30th' November, 1978 when the complainant along with Muhammad Nazir son of Bhai Khan (P. W. 5) and Muhammad Nazir son of Muhammad Khan (P. W. 7) went to the dera of the appellant to enquire as to how she had disappeared. After some preverication, the appellant told them that on 28th November, 1978 at Eshawela, he had strangulated her to death in a field having sugar-cane crop and that he had done so because of his dislike for her. It was also added by the appellant that he could show them her dead body. Then he led them to her dead body which was lying in the sugar-cane crop. Thereafter, the complainant went to Police Station Jhawarian, and reported the matter, vide First Information Report Exh. P. C., which was recorded by Muhammad Shafi Sub-Inspector (P. W. 8).
3. After recording the F. I. R. The Sub-Inspector went to the spot there the said two Muhammad Nazirs (P. W. 5 and P. W. 7) produced before him the appellant whereupon he was arrested. The Sub-Inspector prepared injury statement Exh. P. E. And inquest report Exh. P. F. In respect of the dead body of Mst. Bevi which was lying in the sugar-cane crop and despatched it for post-mortem examination.
4. [Medical evidence].
5. It was Muhammad Shafi, Sub-Inspector, who investigated the case and challaned the appellant.
6. It was denied by the appellant that he was responsible for taking the life of his wife. According to him, he had not made any extra --judicial confession nor he had pointed out the dead body. When asked as to why he had been involved in this case he gave the following explanation :- ---I am innocent. Soni father of the deceased has been giving applications to the Authorities that he suspected the wife of Muhammad Nawaz P. W. And her sister for this murder. Copy of the Register of Petition Writer is submitted in this behalf."
He examined Muhammad Abdullah Petition Writer (D. W. 1) to support his plea.
7. The learned Sessions Judge was not impressed by the defence plea and found that the appellant was responsible for killing of two innocent lives practically for an inhuman motive. In the opinion of the learned Sessions Judge the appellant planned the murder by taking away the lady on a pretext during night time and strangulated her to death. Therefore, he convicted him under section 302, P. P. .C. And sentenced him as aforesaid.
8. It was contended by learned counsel for the appellant that the witnesses, who had furnished evidence of extra-judicial confession were not trustworthy and that in any case the said evidence required corroboration from independent source which was not forthcoming inasmuch as the witnesses of the extra-judicial confession were the same who were witnesses of the pointation of the dead body by the appellant. As for the motive, it was urged by him that the witnesses who had made statements saying that the appellant had a motive to take the life, of his wife were practically the same. The evidence on the question of motive is comprised of the statements of the witnesses of the extra-judicial confession and Aziz Khan (P. W. 3). According to learned counsel for the appellant, therefore, it was not a fit case for conviction. Without prejudice to the said submissions, it was also pointed out by learned counsel for the appellant that the complainant and the father of the deceased had pardoned the appellant and, there--fore, if the appellant's conviction was maintained it would not be appropriate to confirm the death sentence awarded to him.
9. In reply, it was submitted by learned counsel for the State that two of the witnesses of motive, recovery of dead body and extra-- judicial confession, namely, Muhammad Nawaz and Muhammad Nazir son of Muhammad Khan were not only related to the deceased but also to the appellant and since they and the other witnesses had no enmity against the appellant their evidence deserved credence. It was also maintained by him that the evidence of extra-judicial confession derived support from the medical evidence. He, therefore, did not find any thing wrong with the conviction of the appellant. Nothing was, however, said by learned counsel for the State against the plea that the complainant party had agreed to pardon the appellant.
10. In this case, the mainstay of the prosecution is extra-judicial confession of the appellant. It was made before Muhammad Nawaz (P. W. 4), Muhammad Nazir son of Bhai Khan (P. W. 5) and Muhammad Nazir son of Muhammad Khan (P. W. 7). Mst. Bevi deceased was daughter of the sister of Muhammad Nawaz. The elder sister of Muhammad Nawaz was married to the elder brother of the appellant while the appellant's sister was married to the younger brother of Muhammad Nawaz. The father of the appellant is cousin of the mother of Muhammad Nawaz. The second witness of the prosecution Muhammnd Nazir son of Bhai Khan (P. W. 5) is a Munshi of the third witness, namely Muhammad Nazir son of Muhammad Khan (P. W. 7). This is what was stated by Muhammad Nawaz. Muhammad Nazir son of Muhammad Khan is married to a consanguine sister of the wife of Muhammad Nawaz complainant. The father-in-law of the said witness (P. W. 7) is Khalazad of the father of the appellant, This means that Muhammad Nawaz and Muhammad Nazir son of Muhammad Khan are related to the deceased as well as the appellant but Muhammad Nazir son of Bhai Khan is not related to either side. He is, however, a Munshi of Muhammad Nazir son of Muhammad Khan. Nothing has been brought on the record to show that the said three witnesses were inimically disposed towards the appellant. It is, therefore, beyond our compre-- hension that they would falsely attribute extra-judicial confession to the appellant which was likely to take him to the gallows. We believe that A they would not have deposed against the appellant as done by them if they had not been convinced that it was the appellant and none else who was responsible for causing the death of Mst. Bevi. In this view of the matter, we are inclined to rely on the evidence of extra-judicial confession furnished 'by the said three witnesses.
11. The evidence of extra-judicial confession stands corroborated by the evidence of recovery of the dead body of Mst. Bevi at the instance of the appellant. It was lying in a sugar-cane crop. The evidence of its recovery also consists of the statements of the said two Nazirs and Muhammad Nawaz complainant and, as' discussed above we find no good reason to disbelieve them.
12. It was urged by learned counsel for the appellant that the dead body was not buried in the ground or kept in a secret place and, therefore, its recovery was of little consequence. It was also pointed out by him that there was a thoroughfare near the place of recovery and, therefore, if the dead body had been at the place from where it was recovered its presence could easily be noticed by the passersby during the two days intervening the disappearance of Mst. Bevi and the recovery of the dead body. It is true that the dead body had not been buried or artificially camouflaged before it was recovered but as it was lying in the grown up sugarcane crop it could pot catch the eye of any person unless he had gone very close to it. The fact that the dead body was lying in the said crop shows that the killer of the deceased wanted the dead body to lie hidden in the said crop so that it may not be conveniently located by anybody. As for the path referred to above, according to the site plan Exh. P. A., it is far away from the place where the dead body was lying.
Therefore, nobody treading on the said path could notice the dead body from such a long distance because it was hidden in the grown up sugar-cane crop. We, therefore, find little substance in the arguments raised by the learned counsel in regard to the recovery of the dead body on the pointation of the appellant.
13. The evidence of extra-judicial confession also derives support from the medical evidence. The confession made by the appellants was that he had strangulated Mst. Bevi to death and had also been reported by Dr. Mazher Rashid vide his report Exh. P. D., that she was throttled to death.
14. There is also the evidence of motive against the appellant. It consists of the statement of Muhammad Nawaz (P. W. 4), Muhammad Nazir son of Bhai Khan (P. W. 5). Muhammad Nazir son of Muhammad Khan (P. W. 7) and Aziz Khan (P. W. 3). It has also been noted that Muhammad Nawaz and Muhammad Nazir son of Muhammad Khan are related to the appellant as well as the deceased. We have already discussed the evidence of first three witnesses and found that they are reliable witnesses. As for the fourth one, namely Aziz Khan, there is nothing against him except, that his brother-in-law. Dost Muhammad and Zulfiqar, a cousin of the appellant, were bound down for keeping peace against each other over the theft of bedding belonging to Dost Muhammad. This was not a direct case of trouble between the appellant and Aziz Khan. Even if Aziz Khan's statement is exclud--ed from consideration there is evidence of three other witnesses which inspires confidence. In view of their testimony, therefore, we feel that the appellant had a motive to, put his wife (Mat. Bevi) to death as he did not like her and wanted to have another one. He could achieve his object by divorcing Mst. Bevi but it seems that be did not do so because she was married to him in connection with a vatta (exchange) marriage.
15. As for the plea raised by the appellant that the father of the deceased had been making applications to the effect that he suspected the wife of Muhammad Nawaz complainant and her sister for having killed Mst. Bevi, no suggestion in this behalf was made to the prosecu--tion witnesses. The plea appears to be an afterthought. There is nothing in support of this plea except Exh. D. B. Which is a copy of the entries of the register maintained by Muhammad Abdullah Petition Writer (D. W. 1) who was the only witness examined by the appellant in defence. It was stated by Muhammad Abdullah that he did not know. Soni, father of Mst. Bevi deceased, at whose instance he is said to have written the application reflected in the said enrties. According to the said Petition Writer it was possible that some one else might have represented Soni before him whereas he
(Soni) himself might not have come. He was, therefore, not certain that the application was got scribed by the father of the deceased. Moreover, even if the said entries are relied upon, they will be of little help to the appellant because in those entries there is no mention of suspicion against the complainant's wife and her sister. The application was addressed to the Crimes Branch Sargodha, and the request made therein was that the case be got investigated by an independent agency.
There is no other evidence to support the plea advanced by the appellant, it was, therefore, rightly rejected by the learned trial Court.
16. In view of the prosecution evidence discussed above, we are satisfied that the appellant had killed his wife and, therefore, we maintain his conviction under section 342, P. P. C.
17. As for the sentence, it .Has already been pointed out that Muhammad Nawaz complainant and Soni, father of Mst Devi deceased have filed affidavits stating that the complainant party has entered into a compromise with the appellant and have pardoned him with a view to promoting their relations inter se. This is a mitigating circumstance for which we are not inclined to uphold the death penalty awarded to the appellant. His death sentence is, therefore, not confirmed and it is altered to sentence of life imprisonment. The sentence of fine appears to be alright and is, therefore maintained. The appellant shall have the benefit of section 382-B of the Code of Criminal Procedure in the matter of running of his sentence.
18. The appeal and the reference are disposed of accordingly.
Death sentence not confirmed.