ABDUL SHAKURUL SALAM, J.---This order will dispose of Murder Reference No. 214 of 1979 and Crl.
Appeal No. 858 of 1979 as these ,concern the same incident.
2. According to the prosecution case, Mohammad Hussain, Imam Bakhsh, Ramzan and Mst. Sakina, wife of Mohammad Hussain were sleeping in the courtyard of the house of Mohammad Hussain when in the latter part of the night, on the cry of Mohammad Hussain all the aforesaid woke up and saw Mohammad Amin who had given hatchet blow on the head of Mohammad Hussain pulling out the hatchet and running away, alongwith Mushtaq who was empty handed. The injured Muhammad Hussain was taken to Civil Hospital where he died on 6.30 a. m. On 30th July, 1975.
3. Ramzan lodged F. I. R. Exh. P. B. Which was recorded by Mukhtar Ahmad Inspector P. W. 11 at 6-40 a. m. On 30th July, 1975. He prepared the injury statement Exh. P. K. And inquest report Exh. P. L. Of the deceased Mohammad Hussain. He collected blood-stained earth from under neath the cot of the deceased, blood-stained pillow, khais and cot, vide memo, Exh. P. E. He got medically examined Mst. Nasim Akhtar (a little girl aged 8/9 years of the deceased who was also injured). He arrested the accused Mohammad Amin and Mushtaq and the former led to the recovery of the blood- stained hatchet P. 6 which was taken into possession, vide memo. Exh. P. G. The accused also led to the recovery of his blood-stained Bunyan P. 4 and blood-stained chaddar P. 5 which were taken into possession, vide memo. Exh. P. F. He produced Mohammad Amin accused before a Magistrate on 1 August, 1975 for recording his statement under section 164, Cr. P. C. Which was done by Mr. Azmat Ali Khan the same date, vide Exh. P. J.
Dr. Akhtar Hussain Jafri P. W. 8 performed post-mortem examina--tion of the deceased Mohammad Hussain and found the following injury :-st
(1) An incised wound 7 cm x 2 cm x skull bone's cut on the left side of the head and face cutting through and through the tragus and the anterior portion a the pinna of the left ear, and going up and dividing the left temporal bone to expose the brain substance. The blood was coming out of the right ear.
Dissection : The skin, subcutaneous tissues, muscles of temporal area were cut under injury No. 1. The skull bone over the temporal area was fractured into fragments. The meanings were cut under injury No. 1, and brain substance lacerated and contused. Left ventrical of the brain was full of blood.
Sphenoid bone of the left side fractured scalp and skull as mentioned were injured. Membranes, brain were also injured as mentioned.
Thorax : All the organs and the chest wall were healthy.
Abdomen : The wall of the abdomen alongwith all the internal organs were healthy. Stomach was healthy and contained some altered blood.
Small intestines were healthy and contained semi-digested matter. Large intestine were healthy and contained faecal matter. Bladder was healthy and empty.
Remarks by Medical Officer Death had occurred in this case as a result of shock and haemorrhage caused by injury No. 1, which was grievous in nature and inflicted during life by sharp-edged heavy weapon. Such an injury was sufficient to cause death under ordinary course of nature. Probable time between injury and death was within six hours, and time between death and post-mortem with--in eight hours.
4. After investigation and its, completion, Mohammad Amin, appel--lant and Mushtaq were put to trial under section 302/34, P. P. C.
5. Imam Bakhsh, Ramzan and Mst. Sakina appeared as P. W. 5, P. W. 6 and P. W. 7 respectively and deposed that they saw the appellant Mohammad Amin pulling out the hatchet from the head of the deceased and recognized him in the moonlit night as they knew him previously being the neighbour. They also deposed about the motive that the deceased wanted to take the appellant's sister Mst. Manzooran as second wife. Nawaz appeared as a recovery witness P. W. 9 and Mr. Azmat Ali Khan, Magistrate 1 Class as P. W. 10 deposed about the recording of the confessional statement Exh. P. J. Of the appellant. The accused in his statement under section 342, Cr. P. C. Denied the allegations against him and stated that he had been falsely implicated on account of suspicion and the P. Ws. Were related to the deceased who was inimical towards him. He also denied that he had made the judicial confession voluntarily and that that "was secured under promise, duress, threat, torture and induce--ment also". He pleaded innocence.
6. The learned Additional Sessions Judge, Vehari, trying the case found the co-accused Mushtaq as not guilty and acquitted him. However, he found the appellant Mohammad Amin guilty under section 302, P. P. C, and sentenced him to death subject to confirmation by this Court and also a fine of Rs. 3,000 in default to suffer R. I. For a period of three years. The amount if recovered, was to be paid to the heirs of the deceased. This is, vide order dated 11 June, 1979.
7. Mohammad Amin has come up in appeal and his learned counsel has submitted that there was a delay in the lodging of the F. I. R. ; the alleged two eye-witnesses Imam Bakhsh P. W. 5 and Mohammad Ramzan P. W. 6 were not only related to the deceased being uncle and brother but had no reason to be in his house when they could have gone to their own houses which were only 4/5 squares away ; Mst. Nasim Akhtar who was not produced, so also Allah Ditta who was alleged to have seen the accused running away ; that it was night time occurrence and identification was .Not possible. Solitary statement of Mst. Sakina P. W. 7, wife of the deceased, is not enough she being an interested witness. He also stated that the judicial confession Exh. P. J. Is not admissible forst th the reason that the learned Magistrate acted as if he was cross-examining the appellant. This is contrary to the provisions of sections 164 and 364, Cr. P. C. He has referred to Wali Muhammad v.
Crown (PLD 1950 Lah. 212). Lastly, he submitted that the sentence is extreme and as the family honour was involved, extreme penalty of death is not called for. He has placed reliance on 1982 SCMR 51 (1977 P. Cr. L J 1178) and Nazar Hussain v. The State (1978 E Cr. L J 239). The learned counsel appearing for the State has supported the judgment of the learned trial Court.
8. We have been taken through the evidence on record by the learned counsel appearing for the appellant. First of all we will take up his last contention about tire validity of the judicial confession.
The learned Magistrate Mr. Azmat Ullah Khan appearing as P. W. 10 stated that he put the following questions to the appellant : "Q.
1. Do you know that you are not bound to make the statement ?
A. Yes.
Q. 2.Do you know that if you would make the confessional statement it would be treated as evidence against you ?
A.Yes.
Q.
3. Did the Police put pressure on you to make confessional statement ?
A.No. Q. 4.Did the Police ask you to make confession and then the Court will take the lenient view ?
A.Yes.
Q. 5.Do you make confessional statement voluntarily and without any duress ?
A.Yes.
Q.
6. What do you want to say in your confessional statement ?
A. Muhammad Hussain deceased had illicit connection with his sister Mst. Manzuran and due to Ghairat had committed the murder of Mohammad Hussain.
Q.
7. How did you murder Mohammad Hussain ?
A. Mohammad Hussain deceased had illicit intimacy with my sister about two months, earlier and it was in my knowledge since then. I asked Mohammad Hussain not to indulge in this illicit connection but he did not shed. I bad stopped him a day early to his murder and then on the following day I had murdered him in the night.
Q.
8. When you thought for committing the murder of Muhammad Hussain ?
A.I thought in the day hours and on the night I murdered Mohammad Hussain.
Q.
9. From where you had obtained the weapon of murder ?
A.I had picked up hatchet from my house at about 12-00 midnight.
Q.
10. Where you had gone after lifting hatchet ?
A.The house of Mohammad Hussain deceased is situated near my house. In the night I took hatchet and went to the house of Mohammad, Hussain. Mohammad Hussain was sleeping in the courtyard of his house, and I gave hatchet blows while he was asleep.
Q.
11. What happened after the blow ?
A. The wife of Mohammad Hussain raised alarm on which I had come to my house. First of all I placed the hatchet in the bath room and after that the hatchet was concealed under the wood.
Q.
12. Where the wood were lying underneath which you had con--cealed the hatchet ?
A. Those wood were lying along my house.
Q.
13. When did the Police effect your arrest?
A. The Police had arrested me at about 3-30 in the day, and after that I brought the Police at the spot and I had taken out the hatchet from underneath the wood.
Q.
14. Did you consult any person or obtain any aid from anybody in respect of this murder ?
A.No I have done this act all alone.
Q.
15. Do you want to say anything further ?
A. Nobody else has hand in this murder."
He deposed that : "after putting the above-mentioned questions to the accused Mohammad Amin and after securing answers from the said accused I had read over the questions and answers to the accused person and then Mohammad Amin accused thumb marked, in token of its correctness. The above-mentioned questions and answers are Exh. P. J./2 which are in my hand and are signed by me. The thumb impression of Mohammad Amin accused is Exh. P. J./3. After recording the confessional statement of Amin accused I gave a footnote Exh. P. J./4 which is to the effect that it was explained to Amin accused that he was not bound to make the confessional statement and his statement could be treated as evidence against him. Amin accused had made the confessional statement voluntarily and of his own accord, which was recorded by me. The confessional statement was recorded correctly and after admitting it as correct Mohammad Amin accused had thumb marked the same. After the completion of the confessional statement I had sent the accused person to judicial lock-up and directed to produce him before the Court on 8 August, 1975." In cross-examination, he stated that : - "According to Exh. P. H. The Police had requested that since recovery from Amin and Mushtaq had been effected therefore, they may be allowed to be sent in judicial lock-up. On that application I recorded my order Exh. P. H./ 1 and in which I allowed the application tos end both the accused to judicial lock-up. Again there is Exh. P. J,/5 by which I sent Amin accused in judicial lock-up after recording his confessional statement. I did not ask any person from judicial lock--up to produce Mohammad Amin accused before me. No such request was made by the Police. 1 had written Exh.
P. H./1 and P. J./5 on the same day and mostly at the same time. According to Exh. P. H. Both the accused were present in Court and so is the case in Exh. P. H./1. It is correct that in whole proceeding under section 364/ 164, Cr. P. C. And even in remand papers it had not been mentioned that Mushtaq accused may be separated from Amin accused so that the statement of Amin may be taken down. I did make the accused understand that you are present in Court of a Magistrate, though I have not written it. 1 did not ask the accused as what necessity he was feeling to make the confession. I did not inform the accused that if he does not make the confessional statement he would not be sent to police custody rather would be sent in judicial lock up. I did not ask the accused if he was promised anything from the police. I did not ask about the induce--ment offered by the police. I have not asked the time when I recorded the statement. It was in my knowledge that the police officer, who produced the accused before me was investigating the case. I did not ask him if he was conducting the investigation. I did not ask accused that from where he was brought. I did not ask him to have consultation with a lawyer. It has, not been mentioned in Exh. P.
J./2 and at the close, of this statement that the accused was made to understand his confession.
After Exh. P. J./2 there is no break in the statement of the accused. I do not remember if the confessional statement was sealed or not. It is correct that if the confessional statement would have been sealed the other relevant papers e.g. Envelope would have been present in the file. It is incorrect that I have put maximum questions to the accused person to corner him like investigating officer in the alleged offence of murder. It is also incorrect that I had not probed thoroughly and carefully that whether the accused persons was tutored by the police offered any inducement, promise and threat. It is also incorrect that the accused had not made confessional statement voluntarily."
9. In the judgment relied upon by the learned counsel for the appel--lant, a point was raised that a confessional statement was not recorded in the form of questions and answers, therefore, that should be excluded from consideration. The contention was rejected and after considering the relevant provisions, an outstanding Chief Justice, if I may say so with respect, Mr. Justice Mohammad Munir observed ;th I am of the view that that portion of section 364, which requires the examination of an accused person to be taken down in the form of questions and answers, is not applicable to confessions made under section 164, and cannot accept the correct the contention that even where the confession of an accused person is recorded during the course of police investigation, it cannot be taken down in a narra--tive form and must be recorded in the form of questions and answers. In fact, such questions have generally to be avoided so as not to provide ground for the objection that the confession was the result of cross-examination by the Magistrate and, therefore, in-- voluntary. It may be that while a prisoner is telling a story, an intelligent Magistrate may put him a few questions here and there and if he does that, it would obviously be his duty to indicate the questions that he put and the answers that the accused gave to them. But as a rule the Magistrate will find it impracticable to put questions to a prisoner and he will be acting unfairly and indiscri-- minately if he put a series of searching questions to him. Indeed, the result of any such action on his part may be to make the respon--sive confession wholly irrelevant. Whets section 164 of the Criminal Procedure Code says that the confession of an accused shall be recorded in the manner in which the examination of an accused has to be recorded under section 364, it means no more than that the confession should be recorded in the language in which the accused is examined and that the record of the statement should be shown or read or interpreted to the accused, signed by both the accused and the Magistrate, and certified that it is a true record of the examination taken in the presence and hearing of the Magistrate. The Magistrate acting under section 164 has, as required by section 364, also to make a memorandum, of the confession in his own band in the language of the Court and to sign and annex it to the record if he does not record the confession himself. If he is unable to make a memorandum, he must state the reason of such inability. Of course, as already pointed out, all questions put by the Magistrate in order to ascertain whether the confession, is voluntary or not, have got to be taken down together with their replies as also any questions that may be put while the prisoner is making the statement and the reply to them."
10. The proper course to record a confessional statement by Magistrate is to inform accused person that he is a Magistrate and a statement made before him may be used against the maker.
Further; that the accuse is not bound to, nor, obliged to make any statement ; and that he will not be given back to the Police. Then, in order to ensure that the accused understood the proceedings, the Magistrate should put questions to the accused to find out as to why the latter was making the statement, whether voluntarily or on promise or under pressure. Questioning is permissible for ascertaining the voluntriness of the statement. Thereafter, the Magistrate is to allow the accused to make statement in his own way. If the accused rambles or goes astray, he may be asked to relate the relevant portions of the story and this may lib done by asking an innocent question or two, neither leading, nor, in the nature of cross-examination. Having been satisfied that the statement is voluntary and understood by the make and that it has been recorded according to the statutory provisions, the Magistrate is to certify that. From the-proceedings of the Magistrate and his deposition, quoted above, in extenso it is quite clear that the confession has not been recorded according to the requirements of law. The Magistrate put incriminating questions in such a manner that the answers must be yes or no. The accused was virtually interrogated, cornered and pinned down to the offence. No effort was made to ensure that the accused was to feel free to make the confession. On the other hand, the Magistrate must have appeared to the accused to be acing to plead guilty, to all the incriminating circumstances. The confession does not appear to be voluntarily made without fear or promise, nor, it is in accordance with 'statutory provisions 'and the law. Therefore, it is ruled out of consi--deration.
11. Coming to the other contentions of the learned counsel for the appellant, we do not find that there is any inordinate delay in lodging the F. I. R. Rather it was prompt. The injured was brought to the- hospital in the morning and the F. I. R. Was lodged at 6.40 a. m. Naturally, the person concerned had first to attend to the injured who had a hatchet blow on his head with which he died afterwards before they could think of lodging the F. I. R. So there was no question of delay in the circumstances of the case. Non-production of Mst. Naseem Akhtar, a little girl of 8/9 years, and of Allah Ditta who was said to have seen the accused going away from the place of occurrence, is not fatal for the reasons that the girl was too small to be examined in Court and could hardly be expected to give clear and coherent answers about the occurrence and Allah Ditta was not an eye-witness. The conten--tion that identification in the night was difficult has no force for the reason that according to the evidence it was moonlit night and the eye-witnesses knew the appellant as the latter was next door neighbour of the deceased. The eye-witness account has also been given by the wife of the deceased Mst. Sakina P. W. 7 whose presence in the house was normal and natural. The presence of the other two eye-witnesses Imam Bakhsh and Muhammad Ramzan P. W. 5 and P. W. 6 respectively was challenged on the ground that they are uncle and brother of the deceased, and so interested, and could have gone to their own houses which were only 4/5 squares away --rather than stay in the house of the deceased. Relationship per se is no ground to reject their testimony. They are not shown to be inimical to the appellant. Their stay in the house of the deceased in the night while B returning from Vehari cannot be doubted simply because they could reach their own houses. There is nothing on the record to show that their houses were only 4/5 squares away as urged by the learned counsel. The contention that the recovery witness Muhammad Nawaz P. W. 9 lived away and was not a resident of the place and therefore, his testimony being contrary to the requirements of section 103, Cr. P. C is inadmissible, has no force for the reason that he had come to the place of occurrence where his relative had been murdered and he could be a witness of the recoveries.
12. We have carefully examined the matter and on the basis of evidence on record, we find that the case against the appellant of the murder of Muhammad Hussain has been made out. As regards the sen--tence, we agree with the learned counsel for the appellant that extreme penalty of death is not called for the reason that according to the prosecu--tion case itself, the deceased had wanted to take as second wife, the sister of the appellant, Mst. Manzooran and that the appellant had prohibited the deceased from coming to his house a few days earlier as he had suspected the deceased to be carrying on illicit relationship with his sister. He was a young lad of 20 years when he was examined by the learned Additional Sessions Judge on 4th June, 1979. The occurrence had taken place on 30th July, 1975. Therefore, he would be about 16 years of age at the time of occurrence. Because of the family honour involved and adolescent age of the appellant at the time of occurrence, alternate sen--tence of life imprisonment will serve the ends of justice.
Therefore, the sentence of death is not confirmed and is substituted by life imprison--ment.
Sentence of fine of Rs. 3,000 is maintained but in case of default instead of undergoing R. I. For three years .As ordered by the learned Additional Sessions Judge; be shall undergo further imprisonment for a period of six months only. The reference and appeal are thus disposed of.