ASLAM RIAZ HUSSAIN, J.-Ghazanfar Ali aged 25/26 years was tried by Mr. Mohammad Karam Shah, Sessions Judge, Sialkot, for offences under sections 302 and 309, P. P. C. For committing the murder of his wife Mst. Nafis Begum and attempting, thereafter, to commit suicide. The learned trial Court found him guilty of both the offences vide its order dated 20th March 1969, and sen--tenced him to death under section 302, P. P. C. And to one year's R. I. Under section 309, P. P. C. The sentence under section 309, P. P. C. Was to take effect in case the sentence of death was not confirmed by this Court.
2. Ghazanfar Ali appellant has filed an appeal against the above-noted order. The case is also before us for confirmation, of the death sentence under section 374, Cr. P. C. We propose to dispose of both, the appeal anal the murder reference, by this single judgment.
3. The facts of the prosecution case, briefly stated are that Ghazanfar Ali appellant was married to Mst. Nafis Begum deceased about 9/10 days before the occurrence. On the night between 18/19th'Jlaly 1967, Ghazanfar Ali appellant and his wife slept inside a kotha of their house. The door of the room was closed from inside. Early next morning Mst. Bashiran Bibi P. W. 14, the mother of Mst.
Nafis Begum came to their house and knocked at the door of their room, but there was no reply: Mst. Bashiran Bibi P. W. Then went back thinking that they were asleep: After a short interval, she came again but found that they had riot yet woken up, and therefore, returned to her house: After sometime, Ali Antar, the brother of the appellant peeped through the window. He perceived blood and found both Mst. Nafis Begum and Ghazanfar Ali were lying on the ground. He, therefore, broke open the window of the kotha. On entering the room, he found that Mst. Nafis Begum was lying dead on the ground with her pigtail and the paranda wrapped round her neck. Ghazanfar Ali appellant was also lying, on the ground with his face resting on a pillow. He had injuries on his neck, which were bleeding and a razor was lying nearby: In the meanwhile, Abdul Ghani, Nazar Hussain Shah, Talib Hussain, Mohammad Yusuf, and Mst. Bashiran Bibi P. Ws. Also reached there. Finding that Ghazanfar Ali was still alive, they placed 'hips on a cot, and brought him outside the room.
Some water was then given to him, as a result of which, he regained consciousness. He is then said to have admitted, in their presence, that he had killed Mst. Nafis Begum and informed them that there was a chit in his pocket wherein he bad confessed to the killing. Nazar Hussain Shah P. W. 12 thereupon brought out a Ruqqa Exh, P. E. From his pocket 'which is alleged to have been written by the appellant himself and wherein he had confessed that he had killed Mst. Nafis Begum because of her bad character. Talib Hussain P. W. 11, who is the father of Mst. Nafis Begum deceased proceeded to report the matter to the police. He met Sh. Fazal Hussain S. I. P. W. 16, S. H. O. Police Station, Chaprar, in the way, at village Kharota Syedan, at about 10 a.m. And narrated the story to him. The S. H. O. Recorded his statement (Exh. P. A.) and sent it to the police station through F. C.
Abdul Ghani, where the formal F. I. R. Exh. P. A./1 was recorded on its basis, at 12-50 p.m. On the same day (19th July 1967). The Investigating Officer then pro--ceeded to the spot. Finding Ghazanfar Ali appellant in an injured condition he prepared his injury statement Exh. P. N. And sent him to the hospital through a Foot Constable. He then prepared the injury statement Exh. P. O. And inquest report Exh. P. Q. Of Mst. Nafis Begum and sent her dead body for post--mortem. He recovered blood-stained earth from inside the room; a blood-stained pillow Exh. P. 4 and blood- stained parna Exh. P. 5 vide memo. Exh. P. F. He also took into possession blood-stained razor Exh. P.
6 vide memo. Exh. P. G. And made it into a sealed parcel and broken plank of the window. Exh. P. 7 vide memo. Exh. P. H. Nazar Hussain Shah P. W. Produced ruqqa Exh. P. E. Before him, which was then taken into possession vide memo. Exh. P. E./1. On 20th July 1967, A. S. I. Ezaz-ud-Din brought back the blood-stained clothes of the deceased from the hospital after her post-mortem examination including blood-stained paranda Exh. P. 8 of the deceased. On 20th July 1967; the S. H. O. Got the statement of Ali Antar P. W. The brother of the appellant recorded under section 164, Cr. P. C. After obtaining a certificate from the medical officer about the fitness of the appel--lant to make a statement, he produced him before Sh. Javid Sarwar, Tehsildar, Sialkot exercising the powers of a First Class Magistrate on 29th July 1967, for the recording of his confession, which was duly recorded on the same day (vide Exh. P.L./3). Before recording the statement, the Magistrate put some questions to the appellant in order to satisfy himself that he was able to make a voluntary statement. The questions and the answers of the appellant thereto are recorded to Exh. P. L./1. Exh.
P. L./2 is a certificate recorded by the Magistrate at the foot of the above---noted statement and is signed by him.
4. Dr. Mohammad Naeem Medical Officer, District Head--quarters Hospital, Sialkot, who performed the post-mortem examination on the body of Mst. Nafis Begum deceased on 20th July 1967, found the following injuries on her body :- There was ligature mark 1--" broad, situated on the lower part of neck (below the thyroid cartilage) encircling the neck horizontally all around. The margins of the groove were echymosed: The subcutaneous tissues under the ligature mark were echymosed and muscles on the front of neck were lacerated.
The face was swollen. Pupils were dilated. Lips were bluish---black: Tongue was swollen and protruding out of mouth. Rigor mortis was partly present in lower extremities. On dissection the membranes and the brain were found congested. The pleurae were congested. The larynx and trachea were also congested and the rings of trachea were broken under the ligature mark. The right lung was congested. The left lung was also congested. The internal walls of carotid arteries were ruptured and echymosed, The stomach contained semi-digested food weighing 4 ounces, Liver, spleen, pharynx and esophagus were congested.
Death in the opinion of the doctor was due to asphyxia as a result of a strangulation. The duration between injury and death was immediate and between death and post-mortem examination within 36 hours.
5. He had also examined Ghazanfar Ali appellant a day earlier and found the following injuries on his-per son :-
(i) Five incised wounds on the front of upper part of neck across the mid-line measuring from below upwards 2--" x --" deep to glottis, (Thyroid cartilage) 2" x --" deep to glottis, 1--" x -- deep to glottis, 1-- " x --" skin deep and 1--" x --" skin deep.
(ii) Incised wound --" x 1/16" cutting through less than --" the thickness of the skin.
(i.e) Incised wound --" x 1/16": cutting through less than --" the thickness of skin.
All wounds were placed slightly obliquely directed from left side of neck upward and the right. The injuries were caused with sharp-edged weapon within about 24 hours of examination. Injury No. 1 was kept under observation while injuries Nos. 2 and 3 were declared simple. Later on injury No. 1 was also declared to be simple. Exh. P. C. Is the copy of the medico-legal report. The doctor also issued certificate Exh. P. D./I that the accused was fit to make a statement.
6. The accused, when examined under section 342, Cr. P. C. Resiled from the judicial confession made by him before Sh. Javid Sarwar, Magistrate First Class and stated that he bad made it under police pressure. He further denied having made a confession before the prosecution witnesses that he had killed his wife as also the production of ruqqa Exh. P. E. From his pocket. He did not produce any evidence. He made the following statement before the trial Court :- "On the day of occurrence, it rained at about midnight. I and my wife who were sleeping in the courtyard of our house took the cots inside the room. About half an hour after that, I got pain in my stomach. I went outside of the room to ease myself. I came back after about half an hour or three- quarter of an hour. When I came back, I bolted the quar of the room inside. I, also bolted the window from inside as the wind storm was blowing. I lay down on my charpoy. I got up at 4 or 4-30 a. m. I called my wife 2 or 3 times. She did not speak. I called her again but she did not speak. I then lighted the Dia (Lamp) and found her lying dead. It shocked me. I then carried her from the cot placed her on ground. Then out of shock I felt like finishing myself as well. As such I took my own razor and started cutting my throat. I then became unconscious and do not know what happened next."
7. In this case there is no eye-witness of the occurrence, which took place in a closed room where only the appellant and his wife were sleeping. The wife was found dead in the morning, while the appellant himself was found in an injured condition as described above.
8. The prosecution has relied on the following evidence in support of the charge under sections 302 and 309, P. P. C.:--
(i) the evidence of judicial confession ;
(ii) the evidence of extra-judicial confession stated to have been made before Nazar Hussain Shah P. W. 12, Abdul Ghani P. W. 13 Mst. Bashiran Bibi P. W. 14 and Ali Antar P. W. 15 ; (i.e) the ruqqa Exh. P. E. Stated to have been written by the appellant himself wherein he admitted having killed his wife;
(iv) the evidence of recoveries including the razor Exh. P. 6 and blood-stained paranda Oaf the deceased Exh. P. 8;
(v) the ,evidence of motive, proved through Mst. Bashiran Bibi, the mother of the deceased, that the deceased was in her menses, and that the appellant wanted to cohabit with her in that condition, to which she apparently did not agree, and
(vi) the medical evidence showing that Mst. Nafis Begum had been strangulated and that the appellant had injuries over his throat which had been inflicted by a sharp-edged weapon.
9: We have heard the learned counsel for the defence and the learned counsel for the State. We have also gone through the entire record.
10. Before us, the learned counsel for the appellant straight--way conceded that Mst. Nafis Begum had died as a result of an at by the appellant. It was admitted that on the night of occur--rence the appellant and Mst. Nafis Begum were together in the room in question which had been bolted from inside. The position taken up by the learned counsel was that the appellant, who was very much in love with his wife, wanted to cohabit with her but she was not agreeable as she was going through her menstruation. The appellant, however, insisted. There was a struggle between them during which the paranda of Mst. Nafis Begum got wrapped around her neck. The appellant pulled her pigtail with some force in order to bring her close to him but Mst. Nafis Begum got chocked accidentally and died. It is contended that he had neither any motive nor the intention to kill his wife, whom he loved very much and that in these circumstances, the death of Mst. Nafis Begum does not amount to an offence under section 302, P. P. C. But could, at the most, amount to one under section 304.(II), P. P. C. Because although he had no intention to kill her, it 'could be said that he had the knowledge that his at was likely to result in death.
11. The learned State counsel on the other hand relied on the judicial confession, the extra judicial confession and the ruqqa Exh. P. E. Wherein the appellant bad admitted having killed his wife because of her bad character and argued that the offence amounted to murder.
12. We have considered all the three above-noted pieces of evidence. As already observed, the appellant has resiled from his judicial confession and has said that he made it due to pressure put on him by the police. In his confessional statement he has stated that his wife did not like him and that on the night of the occurrence they were discussing this matter in their house. During the arguments the appellant got extremely perturbed and took his cot inside the room while his wife remained outside. When he came .Out of the room after one and a half hours, he found that a man was sitting with her who rushed out on seeing him. As the night was dark, he could not recognise that man. The appellant then asked his wife as to the identity of that person, to or three times but she did not answer. He then took her in the room and again asked her many times, but she refused to tell him anything.
This part of the story appears to be absolutely unnatural to us. It is unbelievable that a stranger came into the house and sat down on the cot with Mst. Nafis Begum, in the courtyard, and that she connived at it when she knew that her husband was present in the room nearby. It seems that this story was introduced by the police, who must have convinced the appellant that this circumstance, if introduced, would go to exonerate him. In any case, the statement Exh. L./3 does not amount to a confession by the appellant of the commission of an offence under section 302, P. P. C. The relevant portion of the statement may be reproduced.
It is apparent that the appellant has not admitted that he had any intention to kill his wife. In fact, according to him, the death took place accidentally, which he regretted very much, so much so that he, took up a razor and inflicted five injuries with it on his own neck in order to commit suicide.
We find that this confession is neither voluntary nor entirely true and that the portion where he admits that Mst. Nafis Begum died due to his action does not amount to a confession of the commission of an offence of murder.
13. With regard to the evidence of extra-judicial confession, we are of the view that this version to was fabricated subse--quently so as to make out a fool-proof case against the appellant. This may have been due to a brain-wave on the part of Nazar Hussain, who, as stated by Talib Hussain P. W. Is a retired Police Head Constable. It is in evidence that when Ali Antar- P. W. Broke open the room, Ghazanfar Ali appellant was found- to be unconscious. There is also evidence that he remained uncon--scious throughout and regained consciousness only after he had been taken to the hospital. In this connection-reference may be made to the statement of Fazal Hussain P. W. 16, the investigating officer, who has stated during the cross-examination that when he arrived at the spot he found Ghazanfar Ali appellant unconscious and did not, therefore, record his statement and that he went to hospital in the evening to find whether the appellant had regained consciousness. This completely falsified the version that the appellant had made any confession before the P. Ws. Talib Hussain P. W. 11, the father of the girl, who was also present along with other P.
Ws. At the spot at the relevant the does not mention about the extra judicial confession at all either in the F. I. R. Or at the trial. Even assuming that hey had made the admission attributed to him before the P. Ws. It does not amount to a confession of the offence of murder. The admission attributed to him has been narrated by Nazar Hussain P. W. In the following words : "I inquired from the accused and he told me that he had killed his wife."
This much is being admitted on his behalf even now before us. The appellant is not denying that Mst. Nafis Begum died as a result of his action and merely because he used the expression that he had `killed' his wife, does not mean the committed a murder within the definition of section 300, P. P.
C. We, there--fore, find that the evidence with regard to the extra---judicial confession is very dubious, and that in any case the alleged statement does not amount to a confession of the commis--sion of murder.
14. We now come to the alleged recovery of Ruqqa Exh. P. E. From the person of the appellant. The main witness in this con--nection is Nazar Hussain P. W.
12. The relevant portion of his statement is as follows :- "I inquired from the accused and lie told 'me that lie had killed his wife: He also told me that he had a chid in his pocket so that no one else was involved. I took out that chit from his pocket and kept it with me. Exh. P. E. Is the same chit which. I had taken out of the pocket of the accused."
Talib-Hussain P. W. 11, the father of the girl was present at that the and has stated in this connection that "Nazar Hussain took out a ruqqa from the pocket of the accused Ghazanfar Ali." It is, however, pertinent to note that he did not take, this ruqqa along with him to the police station to produce it before the police nor has he mentioned anything about it in the F. I. R. Other wit--nesses, namely, Abdul Ghani P. W. 13 and Mst. Bashiran Bibi P. W. 14 have mentioned that Nazar Hussain P. W. 12 had taken out a ruqqa from the pocket of the appellant. They, however, do not say that the appellant had told Nazar Hussain P. W. That he had a ruqqa in his pocket. In fact, Mst. Bashiran Bibi P. W. Has stated that Nazar Hussain P. W. Had searched the pocket of the appellant when the latter was lying unconscious. Her statement in this connection is as follows :- "it is true that when I entered the room of the accused, I found Ghazanfar Ali accused lying unconscious. Nazar Hussain P. W. Searched the pocket of Ghazanfar, Ali accused and recovered the ruqqa."
This ruqqa was sent to the Government Handwriting Expert for comparison with the specimen writings of the appellant. The Handwriting Expert, however, gave a view that no definite opinion could be expressed regarding the authorship of the writing Exh. P. E. In the absence of sufficient identifying data. In view of this adverse opinion, the Handwriting Expert was not produced at the trial. We feel that the Ruqqa Exh. P. E. Was fabri--cated and introduced subsequently with a view to strengthen the prosecution case. As already observed, Talib Hussain P. W. Who is said to have been present at the the of the recovery of the ruqqa, did not take it to the. Police station nor made any mention in the F. I. R. This itself casts serious doubt on its recovery. Abdul Ghani P. W. 13 and Mst.
Bashiran Bibi P. W. 14 have stated that Nazar Hussain P. W. Searched the person of the appellant and brought out a ruqqa when the appellant was still unconscious. Nazar Hussain P. W. Has, however, embellished the version by saying that it was the appellant himself who informed him of the presence of the ruqqa in his pocket. It is obvious that Nazar Hussain is telling a lie here. He is contradicted on this point not only by Abdul Ghani and Mst. Bashiran Bibi P. Ws. But also by the investigating officer who has clearly stated that the appellant was unconscious even when he arrived at the spot. This recovery cannot therefore be believed and in any case, the ruqqa cannot be connected with the appellant in view of the opinion of the Hand--writing Expert.
It might be mentioned here that there is evidence on the record which goes to show that the F. I. R.
Was not recorded at the police station but was, in fact, recorded at the spot after the police had made preliminary inquiries in the village about the incident. In this connection some portions of the statement of Mohammad Yusuf P. W. 10 may be reproduced here :- "On the day of occurrence, I was directed by the Lambardar to go to Police Post, Kotli Loharan. I did so. A Sub-Inspector, one A. S. I. And Foot Constable came to Chak Kooba. I was with them . . . . . . The police had recorded` the statement of Talib Hussain at Chak Kooba after making inquiries about the occurrence in the village."
It has been argued that if the F. I. R. Had been recorded at the spot after the Police had made some inquiries, the extra-judicial confession and the Ruqqa Exh. P. E. Would have been mentioned in it.
This argument ignores this possibility that the story about those to items may have been invented much, later in order to strengthen the prosecution case.
15. In view of the above-mentioned facts and the position taken up by the learned defence counsel that the death of Mst. Nafis Begum was caused at the hands of the appellant, the only question that remains to be seen is as to under what section does the offence fall. The learned defence counsel has cited before us a decision of the Supreme Court, namely, M. A. Jalil v. The State (PLD1969SC552). In that case, the facts were comparable to those of the present one. In Ibat case also the deceased had been strangulated. It was found that he had met his death at the hands of the appellant or one or more of his companions but it was not estab--lished that they had any motive or intention to kill the deceased. There was also no evidence to show under what circumstances the violence was committed on the deceased. On these facts, their Lordships of the Supreme Court were pleased to hold that the offence fell under section 304 (11) of the Penal Code.
The relevant portion of the above-noted judgment is reproduced below ;- "There is no evidence to show under what circumstances violence was committed on the deceased inside his bed-room and by whom. It might be that on the deceased's remonstration against his immediate eviction the appellant himself or one or more of his companions, at his instance, caught hold of the deceased by his neck with a strong grip in order to turn him out of the house by force and that the deceased having resisted the fatal injuries were caused to him. This was the most likely thing that could have happened inside the deceased's bed-room. Having regard to the nature of the activities of the appellant throughout the entire period of his stay at Ghose's Bari up to the the of the occurrence and the fact that his only object was to oust the deceased from that house, it can be safely said that he or his companions bad no intention of causing the death of the deceased, or of causing such bodily injury as was likely to cause his death. At the most, the violence committed on the deceased, whoever committed it, was done with knowledge that it was likely to cause his death, but without any intention either to cause death or to cause such bodily injury as was likely to cause death. In this view of the matter, the offence committed in this case is clearly one falling under Part II of section 304 of the Pakistan Penal Code.
In the absence of any evidence as to who actually caused the fatal injuries to the deceased, the appellant who shared responsibility for his death is guilty under sec-- tion 304, Part 11, read with section 109 of the Pakistan Penal Code."
In the present case also it is quite obvious that the appellant had no intention to kill his wife. The motive put forward by the prosecution itself is that the appellant wanted to cohabit with his newly- married wife but she refused to co-operate as she was having her menstruations. This could not possibly constitute a sufficient motive on his part to kill her. In this connection it may be mentioned that Abdul Ghani P. W. 13 has stated as follows during his cross-examination :- "As a Lambardar of the village I knew that love existed between the spouses i. e. Ghazanfar Ali accused and his wife Mst. Nafis Begum deceased."
It is also apparent that Ghazanfar Ali was extremely grieved at having caused the death of his wife and in a fit of remorse even attempted to take his. Own life by cutting his throat with a razor. Had it been an intentional murder on account of the bad character, of his wife or because of having seen her, at night, sitting with a stranger in his own house, there would have been no such remorse or attempt of suicide.
16. We, therefore, hold that he had no intention to kill his wife or to cause such bodily injury as was likely to cause death. At the most, he can be said to have had the knowledge that what he was doing may result in her death. Therefore, respectfully following the above-mentioned authority of the Supreme Court, we hold that the offence committed by the appellant falls not/ under section 302, P. P. C. But under section 304, Part II, P. P. C.
As regards the attempt by the appellant to commit suicide, this fact stands proved from the circumstantial evidence including the recovery of the blood-stained razor (which was found to have been stained with human blood) and the medical evidence. The appellant himself has also admitted this fact at the trial. His counsel also conceded this fact before us.
17. In view of what has been observed above, we alter the conviction of the appellant from section 302, P. P. C. To one under section 304, Part II and reduce his sentence to seven fears` R. I. We however, maintain his. Conviction under section 309, P. P. C. As also the sentence thereunder. Both sentences are to run con--currently.
18. This disposes both the appeal as well as the murder reference.
Appeal partly allowed: