Appellant Muhammad Malook Mangsi has come up to this Court against the judgment dated 13-2- 1979 of the then Sessions Judge, Larkana convicting him under section 302, P.P.C., and sentencing him to Imprisonment for life and fine of Rs.1,000 or in default R.I. For one year more. It was further ordered that fine, if realised be paid to the heirs of the deceased as compensation.
2. Complainant Ghulam Hussain lodged F.I.R. At Police Station Kamber on 19-2-1977 at 7-30 a.m. He stated therein that deceased Mgt. Sonia was his niece. She was married to the appellant about four year ago. After her marriage the couple resided at Kamber. Complainant's brother Noor Din also resided at Kamber in the house of his father-in-law Yar Muhammad. On the day preceding the night of incident complainant had visited his brother Noor Din and that both of them had gone to Larkana. On their return from Larkana they visited the house of present appellant where Mat. Sonia met them alone and the appellant was not there in the house. She complained to them that appellant used to maltreat her. Soon thereafter appellant also arrived and both the complainant and P.W. Noor Din advised him to behave properly with his were. Thereafter, complainant accompanied Noor Din to his house and stayed there for the night. At about 5-00 a.m., complainant got up to proceed to his village. P.W. Noor Din accompanied him in order to see him of at the Bus Stand. When both of them reached in front of the house of present appellant they saw him coming out of his house carrying a blood-stained dagger in his hand. They challenged him but he made his good escape. Thereafter, both of them entered into the house of appellant and found there Mat. Soma lying dead and having injuries on her person. On their cries neighbourers responded, who were given the facts. The complainant left Noor Din at the scene of offence and went to Kamber Police Station, where he lodged F.I. R. The F.LR. Was taken down by A. S. I. Rajab Ali.
The A. S. I. Accompanied the complainant to the scene of offence, which was inside the house of appellant. He inspected the dead body of Mat. Sonia which was lying on the cot. He noted the injuries. He found blood on the cot and bedding. He secured the blood-stained piece of bedding and sealed it. He then held inquest on the dead body. He then despatched the dead body to the Medical Officer for post-mortem examination. He made enquiries from P.Ws. Noor Din and Ghulam Hyder. On 20-11-1977 he made enquiries from Mst. Bhagul and Ahmed Ali. Thereafter, S.H.O. Kamber Ghulam Rasool took over the investigation. On 9-5-1977 S. H.O. Ghulam Rasool arrested the appellant from Kamber Bus Stand and recovered a knife from the folds of his Shalwar. However, no blood was detected on it. He then interrogated the accused and produced him before the Civil Judge and F.C.M., Kamber where the appellant gave a judicial confession. The appellant was challaned on 23-5-1977.
3. In his statement under section 342, Cr.P.C., the appellant has denied to have caused the death of his were Mgt. Sonia. She has also denied to have given the judicial confession before the Civil Judge and F.C.M. Kamber. He has alleged that the police had detained his woman-folk as well as old parents and coerced him into giving this confession. He has alleged that P.Ws. Have deposed against him in order to render his condition miserable. The learned Sessions Judge framed the points for determination which related to the death of Mgt. Sonia being homicidal and the connection of the accused with the crime of murder of Mgt. Sonia. He has decided both the points in the affirmative and convicted and sentenced the appellant as shown above.
4. There can be no dispute with the finding of the learned trial Judge on the first point. There is abundant evidence on record to establish the fact that Mgt. Sonia had died and that her death was homicidal. The most important evidence on this point is that of Medical Officer Dr. Nanikram, who has stated that on 19-2-1977 he had held the post-mortem examination on the dead body of Mgt. Sonia which was sent to him by S.H.O. Kamber through P.C. Abdul Ghafoor. The dead body was identified by Ahmed Ali and Ghulam Hussain. It was of a female aged about 25 years well- nourished and cold and he found the following injuries on the person of deceased.
(1)Incised wound 4" x 2" x 2" on the right side of neck cutting the carotid vessels, trachea and other tissues.
(2)Incised wound --" x --" x --" on the front of neck.
(3)Incised wound --" x --" x skin deep on the left side chest below the clavicle.
The evidence of Medical Officer has not been challenged by the appellant. Hence it is proved beyond any doubt that Mst. Sonia had met an unnatural death on the fateful night and her death was a result of the injury caused to her with sharp cutting substance.
5. The second point is the most important and hotly contested point. The learned trial Court has passed the conviction of the appellant mainly relying upon the ocular evidence of complainant Ghulam Hussain and P.W. Noor Din, its corroboration by P.W. Ghulam Hyder and the judicial confession given by the accused. In addition he has relied upon the evidence of motive as shown above. Complainant Ghulam Hussain has stated on oath that he used to reside in village Behram.
On the day preceding the night of incident he had gone to Kamber to his brother Noor Din's house wherefrom he and Noor Din had gone to Larkana in connection with their work in Wapda. They returned in the evening to Kamber and first visited the house of appellant in order to meet their niece Mst. Sonia. They met her but the appellant was not present. According to the complainant Mst. Sonia complained to them that the appellant was harassing her. A little thereafter appellant also arrived and both of them advised him to behave properly with Mat. Sonia. The appellant left the house without making any reply to their advice. The complainant has further stated that thereafter he went and his brother Nuur Din. He got up at 5-00 a.m. And proceeded upwards his village Behram. His brother Noor Din also accompanied him to see him of. When they passed from in front of the house of appellant they saw coming out of the house with a blood-stained dagger in his hand. They challenged the appellant to stop but he made good his escape, without making any reply. They then went inside the house and found Mst. Sonia lying murdered on a cot and beddings as well as cot were soiled with blood. On their cries Ghulam Hyder and other neighbourers came and were apprised of the facts. Similar evidence has been given by complainant's brother P.W.
Noor Din which needs no repetition.
6. The evidence of these two witnesses has been challenged by the counsel for the appellant on the score that they are chance witnesses and that being related to the deceased, they were deposing falsely against the appellant and their evidence could not be believed as they were interested and partisan witnesses. So far as the term, "interested and partisan witness" used by the counsel for appellant for these two eye-witnesses is concerned, I have no hesitation in pointing out that the same would not apply to these witnesses. The mere fact that a witness is related to the deceased or the victim of the incident is not sufficient to treat that witness as an interested or a partisan witness. In order to call a witness, partisan witness, it must be shown that he is inimical to the appellant and has a reason to falsely implicate him. This has been the consistent view of the superior Courts of our country. In Alimuddin v. The State PLD 1982 Lah. 141, it has been held as under:-- "It may be noticed that an interested witness is one who has motive to falsely implicate an accused. The mere fact that the witness is related to the deceased would not make him an interested witness and it has been held by the Supreme Court in Shamaher etc. v. The State 1973 SCMR 69 that the mere relationship of the witness with the deceased is no ground for discarding his evidence. Same view was expressed in Mushtaque Ahmed v. Siddique Ullah PLD 1975 SC 61."
7. Complainant Ghulam Hussain and P.W. Noor Din were no doubt maternal-uncles of Mat. Sonia but they were also related to the appellant. No enmity whatsoever has been alleged against any one of them by the appellant nor has he alleged that they had any motive whatsoever to falsely implicate him. He has also not given any explanation whatsoever in his 342, Cr. P. C. Statement nor in the cross-examination as to why the appellants led implicated him falsely in this case or as to how Mst. Sonia was done to death. Mat. Sonia was admittedly the were of appellant and was found lying murdered in his house. However, in the cross-examination of complainant a suggestion was made to him by the appellants counsel that on the night of incident the complainant was sleeping in the house of appellant while the appellant was not present there. It has been further suggested that Ghulam Hussain murdered Mst. Sonia on finding him in compromising position with one Wadh.
It has been further suggested that the complainant was arrested by the police in connection with the murder of Mst. Sonia but later on the complainant and P.W. Noor Din conspired with police and foisted the case on the appellant. All these suggestions have been denied by the appellant. An illusory suggestion was also made to Noor Din in his cross-examination by the appellants counsel that Mst. Sonia was-murdered by complainant Ghulam Hussain and they had arranged with police and fabricated evidence against the appellant.
8. These allegations were not be repeated in the statement under section 342, Cr.P.C., which reflects adversely upon the truth of these allegations. This suggestion also amounts to an admission that complainant Ghulam Hussain was present in the town of Kamber on that night and had knowledge about the incident. It is also an admitted position that the house of Yar Muhammad, father-in-law of Noor Din was near the house of appellant and he was his uncle of the appellant as well. In these circumstances the allegation of P.W. Noor Din that he was residing in the house of his father-in-law or at least his presence therein and the presence of complainant Ghulam Hussain does not seem to be improbable or unnatural. It is the matter of common knowledge that tie villagers get-up early in the morning and the allegation that the complainant was to leave for his village at 5-00 a.m. By Bus is a phenomena which is quite common in a village life. Complainant and P.W. Noor Din have claimed to have seen the appellant on the light of electric bulb and identified him is also not difficult to believe particularly when we know that there is electric light in the streets of Kamber. No doubt that the appellant was not seen by these two witnesses actually giving dagger blows to Mat. Sonia, but the circumstances in which they had seen him coming out of the house viz. Carrying a blood-stained dagger in his hand is sufficient evidence of his crime and no other conclusion could be drawn in the circumstances of the case specially when on being challenged by them he did not give any reply and made good his escape.
Moreover if Mst. Sonia would have been murdered by Ghulam Hussain on having been found in compromising position with Wadh, he would not have attributed outright murder against her husband but as we know the habit of the people of this part of country, he would have alleged that she was done to death by Ghulam Hussain due to grave and sudden provocation, even if he wanted to save himself from the responsibility of causing her death and in those circumstances even the appellant would have been compelled by his relatives to claim in his confession that he had killed his were on grave and sudden provocation, but in this case neither the complainant has stated that Mst. Sonia was murdered by the appellant on grave and sudden provocation nor appellant gave his confession that he had killed her on finding her in compromising position with Wadh. On the contrary he has stated in his confession that he had killed her on a sudden impulse for no reason whatsoever at about mid-night and had silently made good his escape alongwith knife. The learned Sessions Judge has, therefore, rightly rejected the suggestion by branding it as fantastic.
9. The ocular evidence is very strong and comes from the mouth of unbiased and uninterest6a witnesses. They were the persons who were related to both the appellant and the deceased and no enmity whatsoever has been claimed against them. If some body other than the appellant would have killed Mat. Sonia they had no reason whatsoever to implicate the appellant in place of that man. The learned Sessions Judge has rightly pointed out that there were no material discrepancies or contradictions in the testimonies of these two witnesses. Referring to the 164, Cr.P.C., statement of Noor Din wherein he has stated that he was resident of Behram, he was rightly pointed out that this does not necessarily mean that he was not residing at the relevant time in his father-in-law's house at Kamber. His having shown Behram as his place of residence may be due to the fact that it was his permanent family home.
10. The evidence of these two eye-witnesses is corroborated by the evidence of P.W. Ghulam Hussain, who is the neighbourer of the appellant and had been attracted on cries and was given the facts by the complainant and P.W. Noor Din. The complainant and P.W. Noor Din are Mangsi by caste, so also the appellant where as P.W. Ghulam Hyder is Kalal by caste and absolutely an impartial witness. His evidence in the trial Court was recorded after about 11 years of the incident.
Hence in the beginning, he showed ignorance about his being attracted to the scene of offence immediately after the incident on the cries of complainant. However, when his memory was refreshed by the 164, Cr.P.C. Statement then he recollected and stated that he had reached the scene of offence on the cries of people and saw Ghulam Hussain and Noor Din in the house of appellant. He then informed them that appellant Malook had murdered his were and had gone away. They further told him that the appellant was carrying a blood-stained knife when he was running away. The statement and demeanour of Ghulam Hyder would show that he was neither a tutored witness nor was a witness who was determined to support the prosecution version whether it was true or false. He has given most natural evidence and in altogether interested and impartial manner. I am, therefore, satisfied that the learned trial Court was justified in placing reliance on the evidence of Ghulam Hussain and Noor Din. I am still more satisfied with the reliance placed by the trial Court in the evidence of Ghulam Hyder.
11. These pieces of evidence have been further corroborated by the judicial confession given by the appellant before a Civil Judge and F.C.M. The learned Magistrate was examined as a witness in the trial Court. He has fully supported the prosecution version and has produced the confession of appellant, which was recorded by him. The learned Sessions Judge has reproduced his evidence in detail which I need not I repeat. The finding of the trial Court that the learned Magistrate had correctly recorded the confession and had taken all the necessary precautions to guarantee the voluntary nature thereof seems to be justified. No doubt the confession was retracted by the appellant but that would not render it in admissible. A retracted confession can be made basis for conviction, if found true or voluntary. Such view wasp expressed in the case of Muhammad Ishaq v.
Islamic Republic of Pakistan. The Division Bench of Peshawar High Court consisting of Ghulam Safdar Shah, C.J. And Shah Zaman Babar, J. The case of State v. Meh alias Gul Hassan reported in PLD 1964 SC 815 was referred to in the above ruling where it was held: "Retracted confessions whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. As against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole, basis of his conviction if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
12. The learned counsel for appellant, has contended that the retracted confession as that of appellant in this case is, was not to be made sole basis for conviction and has cited Javed Iqbal v.
The State PLD 1975 Pesh. 230, where it was held: "Even if a retracted confessional statement is found to be voluntary and true, still the demand of prudence would be not to make it the sole basis of conviction unless it is corroborated by some circumstances aliunde."
He next cited the case of Amir Ali v. The State reported PLO 1960 (W.P.) Kar. 753 where a Division Bench consisting of Qadeeruddin Ahmed, I.B. Khamisani, JJ. Held that retracted confession was not sufficient for convicting the appellant person unless it is corroborated by independent evidence.
13. The third ruling cited by him is in the case of Qalander Bakhsh and others v. The State reported in PLD 1964 (W.P.) Kar. 269 where Ortcheson, J. Held as follows:-- "The position relating to retracted confession has been thus laid down in Monir's Law of Evidence, 4th Edition, at page 212 of Volume I. After discussing the value of retracted confession against a co- accused, the learned author remarks: As against its maker, however, a retracted confession may constitute a sufficient basis for conviction, provided it is true and voluntary, though even in such a case it is safer and usual to require corroboration.
Adopting the rule of caution referred to above, I am of the opinion that it would be entirely unsafe to convict Qalander Bakhsh and Mir Hassan on this evidence slope. Not only is corroboration lacking, but the facts throw some doubt on the truth of the confessions. The contention of the learned counsel for the defence that the confessions only set out what was already known to the police is by no means without substance."
14. There can be no cavel with the proposition of law propounded in these three rulings that retracted judicial confession should not be made sole basis for conviction until unless it is corroborated by independent evidence in material particulars. But I find and it has also been rightly pointed out by the learned Sessions Judge that the confession was corroborated by strong and independent evidence of Ghulam Hussain, Noor Din and Ghulam Hyder. Additionally there was evidence of abscondance against the appellant inasmuch as the offence was committed on 19-2- 1977 while he was arrested on 9-5-1977. His L remaining away from the police for these three months specially when the deceased was non-else than his own were and was done to death in his own house speaks volumes for itself. He has not offered any explanation for his absence from his own house soon after the murder of Mst. Sonia for all this period which reflects his guilty conscience about her murder.
15. Finally there is motive which also corroborates the above evidence against the appellant.
Complainant Ghulam Hussain and P.W. Noor Din have stated that the deceased had complained to them that the appellant was harassing and maltreating her. The learned Sessions Judge, who had convicted the appellant had the opportunity of watching the demeanour of the witnesses. He has given good and intelligent reasons for his decision to place reliance on the evidence of the witnesses. I am fully satisfied that the learned trial Court has applied its mind to all the pros and cons of the prosecution case and has arrived at right conclusions and has rightly convicted and sentenced the appellant. I have, therefore, no hesitation in upholding his judgment.
16. I, therefore, dismiss the appeal and uphold the coviction and sentence passed upon the appellant.