MUHAMMAD HAYAT JUNEJO, J.-Appellant Ghulam Qadir son of Muhammad Chuttal a Tapedar (Patwari) employed in the Revenue Department has been convicted under section 302, P. P. C. And sentenced to transportation for life by the learned Sessions Judge, Sukkur, for committing murder of his wife deceased Mst. Siani, aged 25 years.
2. The prosecution case in brief was that about three years before this occurrence complainant Khamiso P. W. 5 married his daughter Mst. Siani deceased to his cousin, namely, appellant Ghulam Kadir. About six months before this incident, however, the appellant started suspecting Mst. Siani of having illicit relations with one Muhammad Bux Mangsi. On account of this suspicion he turned her out of the house with the result that the deceased went and stayed with her father P. W. Khamiso.
About 15 or 20 days before the occurrence there was, however, a compromise as a result of which Ghulam Kadir took her back to his own house.
3. On 4-4-1966, at about sun-set time P. Ws. Khamiso, Muhammad Arab and Raban Mangsi, who all lived next door heard the appellant and the deceased exchanging hot words. They, accordingly, went to prevent them from quarrelling and asked the appellant as to why he was rebuking the deceased. On this, the appellant went upstairs, brought this.Licensed gun and from a close range fired at the deceased killing her instantaneously. The appellant,. Thereafter ran away with his gun.
On the cries raised by P. Ws. Khamiso, Muhammad Arab and Raban Mangsi, several others came to the scene and the incident was narrated to them. P. W. Khamiso, there--after, left for Police Station Ghotki at a distance of three miles where he lodged his First Information Report, Exh. 3, the same evening at 10-30 p.m. It was recorded by P. W. 8 Anwar Ali, S. H. O. Ghotki and was to the following effect:- "Ghulam Kadir son of Muhammad Chhutal is my cousin, who is tapedar deh Hussain Bella. He lives in a separate house in our village. The house of Ghulam Kadir and others is double-storied. He resides in the upper storey and his brother Abdul Majid resides in. The ground floor. About three years back, I married my daughter Mst. Siani with Ghulam Kadir, from whom a child 'namely, Abdul Hamid aged about 7 or 8 months has been born. About 6 or 7 months back, Ghulam Kadir had turned out Mst. Siani from his house, suspecting her to be on illicit relation with one Muhammad Bux son of Kaloo Mangsi and continued living with me. About 15 or 16 days back from now the said Ghulam Kadir tapedar compromised through the good offices of teacher Muhammad Arab Mangsi and took his wife back to his house. Today at "sun-set, Ghulam Kudir came to his house and quarrelled with his wife Mst. Siani. I, my brother Muhammad Arab and Raban Mangsi went and found Ghulam Kadir and his wife Mst. Siam talking to each other in the house of Abdul Majid. We prevented him as to why he was rebuking `the lady Siani', whereupon he immediately went upstairs in his house and brought his licensed gun and soon after his arrival he within our sight fired gun- shot at Mst. Siani. Mst. Siani fell down on account of gun shot and Ghulam Kadir threatened us to go away. Mst. Siani expired on the spot as a result of gunfire. We stood at a distance due to fear.
Ghulam Kadir ran away through the street to eastwards with his gun. Thereafter, we saw that Mst.
Siani had receiv--ed gun-shot on her right side, which was bleeding. Upon our cries, the other villagers namely, Mail. Nihal Mangsi and others carne there. We narrated the above facts to them.
Thereafter leaving the below witnesses at the dead-body I have come to lodge the report that accused Ghulam Kadir Mangsi has killed my daughter Mst. Siani with gun-shot suspec--ting her to be on illicit relations with Muhammad Bux son of Kaloo Mangsi. Action be taken."
4. S. H. O. Anwar Ali after recording the First Informa--tion Report of P. W. Khamiso immediately left for the scene of occurrence and reached there at about 12 mid-night. He found the dead body of Mst. Siani lying in a pool of blood in a room at the ground floor of the house. The S. H. O. Recorded the statements of Muhammad Arab, Raban Mangsi, Abdul Majid, Muhammad faux and others in the course of the same night. In the morning h-. Prepared a mashirnama of the wardat; and as the accused was not present in his house he searched the same in his absence but nothing incriminating was found. As he could not get hold of the appellant lie wrote a letter to the Mukhtiarkar requesting him to surrender the accused who was a Tapedar under him. The reply from tile Mukhtiarkar, which is on record as Exh. 6/B, stated as follows: - "Munshi Ghulam Kadir Mangsi Tapedar of Tapa Tebi is not available in the office. It appears that he has absconded."
5. The accused was subsequently arrested on 6-4-1966 from the Lalu Ghotki Road in presence of mashirs Muhammad Umer and Muhammad Suleman. On being interrogated by the S. H. O. Lie took the Police and the mashies to a place about 20 paces from the place of his arrest and brought out his licensed gun which was lying concealed in the bushes. The gun was opened and found to contain an empty cartridge in its right barrel. The gun appeared to have been recently used as there was smoke and smell of gun-powder. It was sealed at the spot in presence of mashirs ride memo of recovery.
6. The next morning on 7-4-1966, the appellant was produced before the Magistrate, First Class, Ghotki for having his confession recorded by the said Magistrate. The learned Magistrate after issuing the necessary warnings and allowing the appellant ample time for reflection, recorded his confession, Exh. 5, which reads as follows:- "The Police or any other person has not given me any promise, threat or inducement. I, of my own free will make the following confession.
On 4-4-1966, in the evening I left my office for home and reached there at about 7-00 p. m. When I found a stranger, namely, Muhammad Bux Mangsi in my house talking with my wife. Upon this I got `Ghairat' and therefore, I picked up my licensed gun from the house and fired at both the stranger and my wife, but Muhammad Bux ran away and it did not hit him but hit my wife on her right side, as a result of which she fell down and expired on the spot. I went to jungle alongwith my gun with a view to hide the same. I hid the gun in the `Kapdi' tree and I was conceal--ing myself due to fear of police. Yesterday Police arrested me from Raloo village. I produce my gun alongwith empty cartridge before the Police. Police had produced me today before you. I am making this confession of my own free will." After the confession was recorded the accused was sent to judicial custody. As all the eye-witnesses of the occurrence were very closely related to the appellant, S. H. O. Anwar Ali very rightly took the precaution of having their statements under section 164, Cr. P. C. Recorded by the same Magistrate.
After the usual investigations were completed the appellant was challaned on 12-4-1966.
7. The defence of the appellant was of a bare denial of the prosecution case. When questioned before the com--mitting Magistrate whether he had made the judicial confession, he replied as follows: "No sir, I was tortured by the Police. Our women folk were insulted."
In the Sessions Court also he completely denied having made the confession, Exh. 5, and stated that a false case had been brought against him due to enmity with his father-in-law, P. W. 5 Khamiso. The appellant stated that he could not say as to how his gun was secured by the Police and added that:- "It might have been taken from my house in my absence."
The appellant stated that he was on duty all along thereby suggesting that he had not absconded at all. No evidence was led in defence.
8. It is not disputed before us that Mst. Siani met her and by violence as alleged by the prosecution.
The evidence of Dr. Abdul Jabbar who conducted the post-mortem on the dead body of Mst. Siani showed that she had the following injury on her person:- "1. Longitudinal lacerated wound 4" x 2j" x deep into abdominal cavity with scartched and tattooed margins on right side of abdomen starting from 12th right ribs and going downwards.
Liver and ascending colon was protruding out of wound. The injury was definitely ante-mortem.
The injury was definitely ante-mortem, according to the doctor, who stated that it was caused by discharge of a firearm at a close range within about 5 feet. The injury was individually sufficient to cause death in the ordinary course of nature. The medical evidence, accordingly, leaves no room for doubt that Mst. Siani was murdered. The only question that needs consideration in this case is whether it was the appellant who was responsible for the same injury and if so, what would be the nature of the offence committed by him.
9. The prosecution case against the appellant, rested mainly on the ocular evidence ofP. Ws.
Khamiso, Muhammad Arab and Raban Mangsi, P. W. 5 Khamiso was the first informant, who had fully implicated the appellant in his First Informa--tion Report, Exh. 16 The remaining two witnesses, namely, Muhammad Arab and Raban Mangsi had like--wise implicated the appellant for the murder of deceased Mst. Siani, in their statements recorded under section 164, Cr. P. C. All these three ~Nitnesses however, completely changed and stated in Court that on hearing a gun fire report they went to the house of the appellant and saw M.St. Siani lying murdered; but did not find any one else there. P. W. Khamiso stated that he had found Ghulam Kadir in the village on the day of the occurrence at about Telipahri time, but did not see him getting out of the house., These witnesses were declared hostile at the request of the public Prosecutor, who was permit--ted by the Court to cross-examine them. Accordingly, they were confronted with their First Information Report and their statements recorded under section 164, Cr. P. C.; in which they had given a completely different version of the incident implica--ting the appellant fully for the murder of Mst.
Siani. This change in the attitude of the witnesses was fully understandable in view of their relationship with the appellant. Moreso, as this murder was due to the suspected' illicit relations of Mst. Siani with one Muhammad Bux Mangsi. As observed by Chief Justice Cornelius, in the case of Alim v. State (PLD1967SC307) this is a typical case where witnesses change their statements in favour of the accused person and this is attributable. To a feeling that unehastity in a woman is a sufficient justification for killing. It is accordingly, obvious that the evidence given by the witnesses in Court is completely false. However, as we cannot treat the statements of these witnesses recorded under section 164, Cr. P. C. As substantive evidence, the evidence of these witnesses is not of any use to the prosecution. We shall, therefore, have to see what is the- evidence on record apart from the evidence of these witnesses on the basis of which the appellant could be convicted.
10. The learned Sessions Judge has relied on the following items of evidence against the appellant:-
(a) Retracted judicial confession of the appellant, Exh. 5
(b) The circumstance that although the appellant is alleged to be in the village in the after-noon, he disappeared there--from at or about the time of the murder and was arrested at another place, two days after the occurrence.
(c) Immediately after his arrest the appellant led the police to some bushes and produced his licensed gun which was lying concealed therein.
We shall discuss each of these items separately.
11. The appellant was arrested on 6-4-1966 and the very next day his confession was recorded by Mr. Amir Ali Shah, Mukhtiarkar and First Class Magistrate Ghotki, P. W.
1. In his evidence in Court the Magistrate stated that he warned the appellant that he was not bound to make a confession and if he did so it could be used against him and he could be convicted on the basis thereof. The Magistrate also examined the appellant and found no marks of violence on his person. Nor did the appellant complain to him to this effect. There--after, the Magistrate gave the appellant two hours time for reflection and when he was brought before the Magistrate the latter repeated all the warnings which he had given to the appellant earlier before the time for reflection. In addition, the Magistrate took the added precaution of assuring the appellant that whether he made a confession or not he would under no circumstances be sent back to Police custody. It was only after the Magistrate was thoroughly satisfied that the confession was voluntary that he recorded the same. All these facts are mentioned in the record of the confession itself and there is no doubt that they are correct. After the confession was recorded accused was remanded to judicial custody.
12. Mr. Azizullah K. Shaikh, the learned counsel for the appellant has assailed this confession on the ground that as the Magistrate who recorded this confession happened to be a superior officer of the appellant, being his Mukhtiarkar, it could be presumed that he must have given him some induce--ment or promise before recording his confession. We find ourselves unable to agree with 'this contention. No such ques--tion was even put to the Magistrate, who was examined in this case as P. W.
1. Section 24 of the Evidence. Act, on which reliance was placed by the learned counsel reads as follows:- "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, . Threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal "nature in reference to the proceedings against him."
It would be seen from the above that merely because the Magistrate, who recorded the confession was a person in authority vis-a-vis the appellant that would by itself be no reason for holding that the confession must necessarily be involun--tary. In addition, it appears to us that no inducement threat or promise was responsible for the making of the said confession. There is not even a suggestion to the Magistrate to this effect. It is no doubt true that P. W. Khamiso and his relations who are very closely related to the appellant, as well as mashir Muhammad Umar have made some obliging state--ments to the effect that the police had summoned the women folk elk the accused to the Police station, and were asked by the Police to persuade the accused to make confession. We have no doubt that these admissions are false and are yet another instance of the manner in which the witnesses have tried to favour the appellant. If the Police had tried to persuade the appellant to make a false confession they would have tried to make it consistent with the First Information Report and the statements of the eye-witnesses recorded under section 164, Cr, P. C. However, in his statement recorded in the Court of the committing Magistrate, as well as at the trial the appellant denied altogether having made any confes--sion. In reply to a question in the trial Court whether he had made a confession he denied having made the same. Keeping in view all these circumstances we have no doubt in our mind that the confession was made voluntarily.
13. We, have next to see whether it is sufficiently corroborated so as to make, it a safe basis for conviction in spite of the fact that it has been retracted.
14. It has come in the evidence of P. W. Khamiso that the appellant was present in the village in the afternoon of 4-4-1966 when `this incident took place at about sun-set time. That the appellant should have suddenly disappeared from his house with his gun at or about the time of the incident is obviously a pointer in the direction of his guilt. As the note of the Magistrate, Exh. 6-B, clearly shows he was not available in the office on 5-4-1966 and was absconding. 'this conduct on his part is absolutely inconsistent with his innocence.
15. We have also in evidence, that immediately after his arrest the appellant took the Police to some bushes about 20 paces away and from there took out his licensed gun which was lying concealed. The gun was secured under a recovery memo. Exh.
13. On opening the gun it was found that it was freshly fired as it was smelling of gun powder and one fire empty was also found in its right barrel. It was sealed on the spot and sent to the Ballistic Expert P. W. Shah Jehan Khan, who has stated that in his opinion the crime 12 bore empty which was lying inside the chamber of the gun (Article C) had been fired from the right barrel of the shot gun No. 2256, which is the licensed gun of the appellant. The appellant did not explain this circumstance against him. On the other hand he altogether denied having produced the gun. That the appellant should conceal his licensed gun in the bushes after the same was freshly fired is a circumstance which certainly weighs against him and amply corroborates his retracted confession.
16. The confession of the appellant corroborated as it is by his conduct in absconding for two days and pointing out his licensed gun from the bushes coupled with the evidence of the Ballistic Expert, leaves no room for doubt that the appellant was responsible for killing deceased Mss. Siani.
17. The only question that remains is about the nature of the offence committed by the accused. It is well settled that a confession has to be accepted or rejected as a whole unless there is some evidence to show-positively that a particular part thereof is false. In this connection we may observe that the appellant has clearly stated in his confession that he fired at the deceased as lie had found a stranger, namely, Muhammad Bux Mangsi in his house talking to her upon which he got "Ghairat". The learned Sessions Judge while, discussing this aspect of the case has observed as follows:- "The sight of meeting of the wife of the accused with a stranger in the house, as given by the accused in his statement, would no doubt be provocation but not a provoca--tion grave and sudden enough to prompt the accused to lose control of all his mental faculties and cause the death of his wife by firing at her."
We do not agree with this reasoning of the learned Judge. There is nothing on record to show that Muhammad Bux Mangsi was related to the appellant or his wife or that he was even on visiting terms with them. His presence in the house with Mst. Siani therefore, could be, for no other purpose except the one alleged by the prosecution itself in the First Information Report that he was having illicit relations with Mst. Siani. As mentioned in the First Information Report itself, the appellant in any event had a strong suspicion about this relationship. His seeing Muhammad Bux Mangsi alone 'C with his wife in his house must have confirmed his suspicion; and a person in his position could loose control of himself on account of grave and sudden provocation. We therefore, feel that on the findings of the learned Sessions Judge himself the offence committed by the appellant could more -appropriately fall under section 304 (1), P. P. C.
18. In view of what has been stated above, we alter the conviction of the appellant from section 302, P. P. C. To one under section 304 (1), P. P.' C. And reduce his sentence from transportation for life to R.
I. For ten years. With this modifica--tion the appeal stands dismissed.