AJMAL M1AN, J.-The appellant stands convicted under section 302, P. P. C. And has been sentenced to death and has also been ordered to pay Rs, 5,000 as compensation to the legal heirs of the deceased or in default to suffer R. I. For three months, through the judgment dated 21st September, 1981 given by the learned Sessions Judge, Sanghar, for murdering Mst. Gullan wife of Hasso on 9th June, 1980 at 12-30 hours in the house of the complainant Hasso, situated in village Quba, Shahdad Deh Quba, northpwest three miles from the Police Station Shahpur Chakar. The appellant has filed appeal against the above conviction and sentence, whereas the learned Sessions Judge has made a Reference to this Court for the confirmation of the death sentence. By a short order of even date, we have dismissed the appellant's above appeal with the modification that the life imprisonment has been substituted in place of death sentence, and, as result of the above substitution, the Reference for confirmation of the death sentence has been rejected. These are the reasons in pursuance of the above short order.
The prosecution case is that on 9th June, 1980 at 12-30 p. m., appelplant Usman Khaskheli entered the house of the complainant Hasso and inflicted injuries on Mst Gullan wife of the complainant Hasso in presence of her mother-in-law Mst. Siani. It was also alleged that the complainant Hasso, P. Ws. Allah Obhayo Lashari and Ismail after finishing the work of Batai were sitting under the Shade of Babool tree about fifty paces from the eastern side of the complainant's house from where the place where Mst. Gullan was attacked was visible, and that on hearing cries they rushed to the house and saw the accused inflicting injuries. It was further alleged that upon seeing the above eyewitnesses, the appellant ran towards his house, and that the above eye-witnesses followed him and raised cries that the appellant had committed murder, and on their cries P. W. 4 Kabil, a Zamindar and Councilor came out from his Otak and joined the above eyewitnesses in chasing the appellant, who entered into his house. It was also alleged that P. W. Kabil entered the appellant's house, and with the permission of the appellant's relation Ghulam Hussain, apprehended the accused and also seized the blood-stained hatchet and brought him with the bloodstained hatchet to the aforesaid Babool tree, where the above witnesses were sitting before the incident. It was further alleged that thereafter the complainant went to lodge the report, which was recorded by A. S. I. P. W. 8 Sultan Khan, who came to the place of wardat and arrested the accused and secured and sealed the blood-stained hatchet and blood-stained shirt, which the appellant was wearing.
2. The prosecution has relied upon the following evidence in order to prove the case against the appellant beyond reasonable doubt :-
(i) Four eye-witnesses, viz.
(a) P. W. 2 Mst. Saini, mother-in-law of the deceased and the mother of the complainant Hasso.
(b) P. W. I Hasso, the complainant.
(c) P. W. 3 Allah Obhayo.
(d) P. W. 6 Ismail.
(ii) P. W. 4 Kabil, a Zamindar and a Councillor of the Area, who allegedly apprehended the accused in the circumstances mentioned hereinabove.
(iii) Extra-judicial confession.
(iv) Judicial confession.
(v) Recoveries of the blood-stained hatchet and blood-stained clothes.
(vi) The fact that accused was apprehended immediately after the incident without loss of time.
In addition to the above evidence, the prosecution has also examined P. W. 7 Muhammad Khan, one of the mashirs to the mashirnamas of the place of wardat, arrest and recoveries, P. W. 8 Sultan Khan A. S. I., who recorded the First Information Report and investigated the case. P. W. 9 Abdullah, Magistrate, who recorded the judicial confession, P. W. 10 Sain Bux, Tapedar, who prepared the sketch of the place of wardat Exh. 22, and P. W. 11 Dr. Faqir Muhammad, Medical Officer of the Civil Hospital, Sanghar, who carried out the post-mortem and prepared post-mortem report Exh. 24.
The accused in his statement under section 342, Cr. P. C. Has denied the fact of having committed murder and has also denied the fact of having made extra-judicial confession or judicial confession. He has alleged that P. Ws. Kabil and Muhammad Khan are related inter se and that they have enmity with him as in the last election he had worked for the opponent of P. W. Kabil. He has also alleged that he is a Mureed of Peer Sahib Pagara, whereas the complainant and P. W.
Kabil are men of Makhdoom of Hala, and that the complainant party had killed the deceased as she was of a bad character.
3. (a) Mr. Ghulam Rasool Unar, learned counsel for the appellant, had made the following submissions :- That the mashirnama of place of wardat Exh. 13 does not reflect the fact that any Batai work was done on the day of the incident, and, therefore, the presence of the alleged eye-witnesses P. Ws.
Hasso, Allah Obhayo and Ismail is very much doubtful, and in fact the theory that the Batai work was done has been invented in order to furnish a plausible reason for their being present near the house at 12-30 p. m.
(ii) That even otherwise the alleged eye-witnesses are not reliable, as they are inter see related, and they are also related to the deceased, and that there are improvements and contradictions rendering their testimony doubtful.
(iii) That the extra-judicial confession is vague, and, therefore, cannot be relied upon.
(iv) The judicial confession Is not voluntary, and therefore, cannot be relied upon.
(v) That the recoveries cannot be relied upon as there was delay in the dispatch of the recovered articles, and also in the submission of the report.
(vi) P. W. Kabil had no justification to arrest the appellant, and his arrest by him adversely reflects on the prosecution case.
(b) On the other hand, Mr. S. Murtaza Hussain, learned counsel for the State, has urged that the prosecution has been also to prove the case against the appellant beyond reasonable doubt, the eye-witnesses are natural and truthful witnesses, and that neither the extra-judicial confession nor the judicial confession can be disregarded for the reasons urged by the learned counsel for the appellant. He has further urged that P. W. Kabil was entitled in law to apprehend the appellant in the circumstances of the instant case, and that a simple delay in the despatch of the recovered articles cannot be fatal to the Chemical Anaylser's Report.
4. Referring to the first contention of Mr. Gulam Rasool Unar that the mashirnama of place of wardat Exh. 13 does not reflect the fact that any Batai work was done on the day of the incident, and, therefore, the presence of the alleged eye-witnesses P. Ws. Hasso, Allah Obhayo and Ismail is very doubtful, and in fact the theory that the Batai work was done has been invented in order to furnish a plausible reason for their being present near the house at 12-30 p. m., it may be observed that the above contention is devoid of any force. The fact that the mashirnama of place of wardat does not reflect that any Batai work was done on the day of the incident before the incident, does not negate the presence of the above eye-witnesses at the place of wardat, as there is sufficient other material on record to conclude that the above eye-witnesses were in fact sitting under the shade of the Babool tree. P. W. 4 Kabil is a Zamindar and a Councillor of the place and has no motive to depose falsely against the appellant. He has deposed that on hearing the cries of P. Ws.
Hasso, Allah Obhayo and Ismail, he came out from his Oak and joined them in chasing the appellant. He has further deposed that the appellant entered into his house, and, thereafter he also entered and apprehended the appellant with the permission of his relation Ghulam Hussain alongwith the blood-stained hatchet and blood-stained shirt. If the above eye-witnesses would not have been present near the house, wherein the incident had taken place, they could not have chased the appellant in the manner stated by them and corroborated by P. W. Kabil. The reason of hostility attributed to P. W. Kabil by the defence, namely, that the appellant had worked and supported his (Kabil) opponent in the last local election has been rightly rejected by the learned Sessions Judge. The above alleged motive is highly improbable as the appellant apparently was of no significance. If P.W. Kabil wanted to implicate any one falsely he would have implicated his opponent and not an alleged supporter as rightly observed by the Sessions Judge. Their presence near the house stands proved beyond reasonable doubt.
5. As regards the second contention of Ghulam Rasool Unar that the alleged eye-witnesses are inter se related and also related to the deceased and that there are improvements and contradictions in their testimony, and therefore, the same cannot be relied upon, it may be stated that simpliciter the fact that eye-witnesses are inter se as related or that they are related to the deceased will not make them as [interested witnesses, unless it is shown that they had a motive to implicate appellant falsely. In the instant case, nothing concrete has been brought on record by the defence, from which it can be inferred that the above eyepwitnesses had any enimous to falsely implicate the appellant. Furthermore, their testimony stands corroborated by the independent witness P. W. 4 Kabil coupled with the extra-judicial confession, judicial confession and recovery of the blood-stained hatchet and shirt. Referring to the second limb of the argument, namely, that there are improvements and contradictions in the testimony of the above alleged eye-witnesses, and, therefore, the same cannot be relied upon, it may be mentioned that the incident had taken place in June, 1980 whereas the testimony was recorded in May, 1981 after a lapse of nearly a year. There are bound to be some contradictions. However, the contradictions referred to by the learned counsel for the appellant are not on material points rendering the testimony doubtful, nor there are improvements of the nature which cast doubt on the veracity of the testimony of the above eye-witnesses.
6. With reference to the next contention that the alleged extra-judicial confession was vague, and, therefore, it is not reliable, it may be observed that P. W. 4 Kabil has deposed that after entering into the house of the accused, he apprehended him and secured blood-stained hatchet, which was lying on the cot, and that the accused was wearing blood-stained shirt. He has further deposed that he enquired from the accused if he had committed murder, on which he said nothing but nodded his head in affirmative. The nodding in affirmative by the appellant in answer to the question, whether he had committed murder of Mst. Gullan cannot be said to be vague. However, even if we were to discard the above extra-judicial confession on the ground of being vague, it will not adversely affect the prosecution case as there is other sufficient evidence on record.
7. (a) Adverting to the contention of Mr. Gulam Rasool Unar that judicial confession was not voluntary, and, therefore, cannot be relied upon, it may be observed that to reinforce the above contention, Mr. Unar has urged that the alleged judicial confession was recorded even before the expiry of twenty-four hours. In order to prove the judicial confession as observed hereinabove, P. W.
9 Abdullah, Magistrate, who recorded the judicial confession, has been examined by the prosecution. He has asserted that he had complied with all the mandatory requirements of recording a judicial confession. The defence has not been able to bring anything on record through the cross-examination of the above witness to indicate that he had not in fact complied with the mandatory requirepments before recording the judicial confession. The appellant's judicial confession reads as follows :- "I Usman son of Budho aged about 26 years by caste Khaskhely, labourer resident of village Quba Shahdad Taluka Shahdadpur do hereby state that about 3-4 years ago Gullan wife of Khamiso Lashari had illicit connections with me. About one month ago Gullan has made another friend whose name is, Laloo Brohi. I reprimanded her for second friend but she refused. She told me that I do not raise objection otherwise she will manage for my arrest. Yesterday night I saw Brohi sitting near in her house. Her husband was not present in the house. After some time her husband had come. Before his arrival Brohi went away. When her husband went to sleep I went to Gullan and I asked her to leave Brohi. On this she was annoyed and awakened her husband saying that thieves have come. I ran away. I spent much money on Gullan and her mother-in-law Siani. Siani is mother of Khamiso. She was our tout. I spent money on them after taking loan. Yesterday at about 12 o'clock I went to the house of Gullan and again asked her to leave Brohi, but she raised cries and started running towards street. I came in front of her and inflicted hatchet blows to her. Gullan fell down. Thereafter, I ran away. Kabli Dahri caught hold of me and asked the relations of Gullan that they should not beat me and that they should lodge report with police. Obhayo asked that I should be detained there and report be lodged. I remained there. Relations of Gullan lodged report with police. Police arrested me. Police brought me at Police Station. Today I have been produced in Court."
(b) Reverting to the contention of Mr. Ghulam Rasool Unar that the judicial confession was recorded before the expiry of twentypfour hours, and, therefore, it cannot be treated as a valuntary judicial confession, it may be observed that factually the judicial confession was recorded after about twenty-four hours from the time when the accused was apprehended by P. W. 4 Kabil, and, after about twentyone hours from the time when he was arrested by the police. There is no rule of law that a judicial confession cannot be recorded before the expiry of twenty-four hours.The Court has to examine the facts of the case as a whole in order to arrive at a conclusion as to whether a confession was voluntary or not The instant case is not a case in which the solitary piece of evidence against the appellant is a judicial confession. There are eye-witnesses, there is recovery of blood-stained articles, including the weapon used. Taking into consideration the entire evidence on record, it can safely be inferred that the appellant's above judicial confession was voluntary.
There is sufficient evidence on record to indicate that the appellant was carrying on illicit affairs, with the deceased for some time and that about one month prior to the incident she had developed friendship with one Lalu Brohi. The above fact annoyed the appellant, and in spite of admonition by him the deceased did not give up her new friendship.
(c) It was also urged by Mr. Ghulam Rasool Unar that there are contradictions between the version of the prosecution witnesses and the version given in the judicial confession, and, therefore, it is liable to be discarded. In furtherance of the above argument, he has pointed out that the prosecution witnesses have denied the factum that the deceased was a woman of bad character, or, that she was having illicit affairs with the appellant or With anyone else. It will suffice to observe that P. W. 1 Hasso, the husband of the deceased, could not have admitted the factum that his wife was carrying on affairs with the appellant for the obvious reason. The fact is that P. W. Hasso was about fifty-five years old, whereas the deceased was about thirty years old, and because of the above disparity in the ages between the two spouses, it is not unlikely that the deceased might have developed illicit connection with the appellant. The fact that the appellant wanted to keep illicit connection with the deceased is reflected even in the First Information Report, which was lodged promptly without any delay. We are inclined to hold that there is no diversity between the version given by the prosecution eyewitnesses and the version given by the accused in his judicial confession on the material facts. The main reason for the commission of the murder in question was the appellant's desire to maintain illicit connection with the deceased. It may also be pertinent to observe that even if the above retracted judicial confession is to be rejected, there still remains sufficient evidence on record to sustain conviction against the appellant on the capital charge.
(d) Referring to Mr. Ghulam Rasool Unar's contention that there was delay in despatch of the recovered articles, namely, blood-stained hatchet and blood-stained shirt, it may be stated that the Chemical Analyser's Report (Exh. 17) indicates that four sealed parcels were despatched under covered letter, dated 2nd July, 1980 which was received in the office of the Chemical Examiner on 30th July, 1980. If we were to count the period from the da,te of the receipt, it is true that the Chemical Examiner had received the four parcels after the dxpiry of nearly seven weeks from the date of the recoveries. Mr. Unar has referred to the case of Muhammad Hafeez and another v.
State , in which a Division Bench of the Lahore High Court discarded the recoveries of the crime weapons as inordinate delay of 41 days in despatching the parcels of the crime weapons to the Chemical Examiner was not explained. Whereas Mr. S. Murtaza Hussain, learned counsel for the State has inter alia referred to the case of Sikandar and 2 others v. State , in which the contention of the learned counsel for the appellant that the delay simpliciter in despatching the articles could result in rejection of the evidence of the Chemical Analyser was repelled. The Supreme Court reiterated its view taken in the case of Noor Alam v. State , in which in spite of the delay in the despatch of the empties and the gun, the Report of the Expert was relied upon, and it was pointed out that nothing was brought by the defence to indicate that there was any tampering with the sealed parcels before they were despatched. The above view has also been reiterated by the Supreme Court recently in its judgment dated 9th September, 1981 given in the case of Khadim Hussain and another v. The State (Criminal Appeal No, K-4/1981).
In the instant case the defence has not brought out anything on record to ine'cate that there was any possibility of tampering with the sealed parcels containing inter alia blood-stained hatchet and shirt. In our view simpliciter delay in despatching of the recovered articles to a Chemical Examiner is not fatal to the Chemical Examiner's Report. In the instant case there is no lapse of time between the occurrence of the incident and the apprehension of the appellant by P. W. 4 Kabil. As a matter of fact, it can be said that the appellant was caught red-handed. The recoveries of the1 2 3 blood-stained hatchet and the shirt are not only proved by P. W. 1 Muhammad Khan, one of the mashirs and P. W. 8 Sultan Khan A. S. I., but also by the above eye-witnesses and also by P. W. 4 Kabil. There are no attending circumstances in the instant case which cast any doubt or suspicion about the genuineness of the recoveries. In this view of the matter, simpliciter, the above delay of about seven weeks is not sufficient to render the Chemical Analyser's Report Exh. 17 (which is positive), liable to be ignord.
8. (a) Reverting to the last contention of Mr. Ghulam RaSool Unar that the arrest effected by P. W. 4 Kabil was not justified, it may be observed that in support of the above contention, he has relied upon the case of State v. Muhammad Akbar in which it was held that under section 59 of the Criminal Procedure Code, 1898, the right of a private person to make an arrest is confined to arresting of any person who "in his view commits a non-bailable and cognizable offence". It was pointed out in the above case this was in contrast to the cover given to a Police Officer to arrest without warrant under section 54 of the Criminal Procedure Code, any person against whom a reasonable suspicion exists of having committed non-bailable or cognizable offence. On the other hand, Mr. S Murtaza Hussain has referred to the case of Sultan Ahmad and another v. The State , in which the following observation was made :- "In the precedent case of Muhammad Akbar relied upon by the learned counsel for the appellants, the decision of the Lahore High Court in Muhammad Ishaq's case has not been expressly approved or disapproved. The general observations made therein indicate that the protection under section 59, Cr. P. C., afforded to a private person for the apprehension of an offender who commits a cognizable and non-bailable offence in his presence would be available to him if he can establish his connection with the crime either by sight or by sound, that is to say, not only if he personally witnesses the crime but also if he comes to know of it from what he hears about it from persons concerned in the crime immediately after the commission of that crime. In our view, section 59 should not be construed so as to burden the Legislature with the intention that in providing the shield to private individuals to apprehend the culprits who commit cognizable and non-bailable offences in their presence, it had intended that this shield is to be limited only for those individuals who actually see the commission of the crime by their own eyes and is not available to those who come to their assistance on their outcry for help. Such a restricted view, in our opinion, would destroy the much wanted but rarely displayed public spirit on the part of the neighbours and others who might come to the rescue of the victims of dastardly crimes and help them in bringing the culprits to book. On this view of the matter and the circumstances of this case, we are of the opinion that Sultan had no justification whatsoever to fire at Ali Muhammad deceased and that his act amounted to clear murder."
(b) From the above-quoted passage from the above judgement of the Supreme Court, which is subsequent in time to the case relied upon by Mr. Ghulam Rasool Unar, it is evident that the restricted interpretation of section 59, Cr. P. C. Urged by the learned counsel for the appellant is in conflict with the above judgment of the Supreme Court of 1970. In our view a private person will be entitled to press into service section 59, Cr. P. C. If he can show that either the cognizable or non- bailable offence was committed in his presence or that be comes to know of it from what he heard about it from persons concerned in the crime immediately after the commission of that crime.In the instant case, P. Ws. Hasso, Allah Obhayo and Ismail were chasing the appellant and crying "murder, murder", whereupon P. W. 4 Kabil had come out from his Otak and joined the above witnesses and in fact himself found the appellant with blood-stained shirt and also found blood- stained hatchet lying on the cot, and upon his enquiry the appellant had allegedly made extra- judicial confession of having committed the above murder. In this view of the matter, it cannot be said that P. W. 4 Kabil was not entitled in law to apprehend the appellant and to hand him over to the Police.4 5
9. We have given our serious thoughts to the question of quantum of sentence. It was urged by Mr. Ghulam Rasool Unar that there was sufficient provocation, which could have infuriated the accused to commit the offence, and therefore, the penalty of capital punishment in the instant case is not justified. To fortify his above contention, he has referred to the case of Muhammad Siddiq v. The State , in which the sentence of transportation for life was substituted for death sentence. In the said case the facts were that the accused had been cohabiting together as lovers with the deceased woman for four/five years. But on the fatal day he found the woman in compromising circumstances in the field with another man and thereupon killed the woman with pistol shots. In these circumstances, it was held that the case was not fit for capital punishment.
The above case is distinguishable from the instant case as the appellant had not seen the deceased in compromising position with Lalu Brohi. However, it was submitted by Mr. S. Murtaza Hussain, learned counsel for the State that some concession on account of human weaknesses is to be given. In the instant case it seems that the appellant had gone armed with hatchet in order to stop the deceased from seeing Lalu Brohi which she declined, and thereupon he inflicted injuries reflected in the evidence of P. W. 11 Dr. Faqir Muhammad and post-mortem Report Exh.
24. There was some element of provocation, though not sufficient to bring the case within the purview of Exception I to section 300, P. P. C. We are, therefore, not inclined to hold that the appellant's case falls under Exception I to section 300, P. P. C. But there are some mitigating circumstances warranting the reduction of the sentence from death to life imprisonment, namely, that there was some element of provocation and that the appellant was of age of 22/23 years at the time of the incident. We, therefore, substitute life imprisonment in place of death sentence. With the above modification the appeal is dismissed, but the Reference is also rejected on account of substitution of life sentence. We have also given our thoughts to the question as to whether the appellant should also be given the benefit of adjustment under section 382-B, Cr. P. C. For the under-trial custody period. In our view since we have taken a very lenient view by substituting life imprisonment in place of death sentence, though admittedly the appellant had committed murder for which he had no justification, we are not inclined to extend the benefit of section 382-B, Cr. P. C.
To the appellant, and, therefore, we expressly observe that the appellant shall not be entitled to the benefit under the above provision for adjustment of the period of under-trial. 1978 P Cr. L J 57 PLD 1981 SC 477 PLD 1978 SC 137 PLD 1966 S C432 PLD 1970 SC 206 PLD 1958 Lah. 601