INAYAT ELAHI KHAN, J.--This appeal is by Razi Khan son of Zardad resident of village Bhalar Jogi, Police Station Hassan Abdal at present T & T Colony Haripur, who was tried for the murder of Daud son of Miskeen aged 24/25 years by the learned Additional Sessions .Judge, Abbottabad at Haripur and convicted under section 302, P.P.C. And sentenced to imprisonment for life with a fine of Rs.3,000 or in default thereof to 1i years .Further R.I. Out of the fine if realized Rs.2,000 are to be paid to the heirs of the deceased as compensation. The co-accused Fazal Dad was, however, acquitted.
2. The case for the prosecution is that on 13-2-1980 at about 7-30 p.m. Fazal Dad P.W.2, who was acting as senior Chowkidar T.I.P. Haripur, was sitting in Tip Top hotel T.I.P. He.Was informed by a Chowkidar that he heard somebody saying 'mardia' Fazal Dad then informed police post T.I.P. On telephone about the occurrence. Muhammad Aslam Khan A.S.I. Reached the spot within 15 minutes and found the dead body of Daud lying on the ground in the premises of T.I.P. Haripur. Muhammad Aslam Khan A.S.I. P.W.13 stated that having come to know of the incident Mst. Sikandar Jan, mother of the deceased also reached the scene of occurrence where her report was recorded in the form of a 'Murasla' Exh.P.A./1. He prepared the injury sheet Exh.P.D./2 and inquest report Exh.P.D./3 of the deceased and sent the dead body to the mortuary for post-mortem examination and then prepared the site plan Exh.P.B. At the instance of P.Ws. And recorded their statements. Fazal Dad co-accused was also arrested by him. He recovered blood-stained earth Exh.P.4 from the spot and took it into possession vide memo. Exh.P.W.2/2. He also recovered a 'Chadar' EXh.P.l and a pair of Jotti vide recovery memo. Exh.P.2 and two buttons in broken condition Exh.P.3 which were taken into possession vide recovery memo. Exh.P.W.2/1. He also received shirt, coat and two waist coats all blood stained and having corresponding cut marks belonging to the deceased from the doctor and took them into possession vide recovery memo. Exh.P.W.9/1. One Omex watch Exh.P.5, a Chapal
(half) Exh.P.6 and a Muffler Exh.P.7 allegedly belonging to the accused were also recovered by him from the spot which were taken into possession vide recovery memo. Exh.P.W.2/3. He then handed over the investigation to S. Muazam Shah S.H.O.
3. Dr. Muhammad Shafiq Ahmed P.W.12 performed autopsy on the dead body of the deceased on 14-2-1980 at about 9-30 a.m. And found the following injuries:- (1)Stab wound right side front of abdomen 3" to the right of median plane 2" below costal margin and is 1----- x ----- x deep.
(2)Stab wound chest in the fifth left inter costal space about 2" to the left of median plane and is 1" x----- deep.
(3)Incised wound front of right upper arm in middle and was 1" x -- x 1---.
(4)Stab wound chest in left fourth inter costal space in the mid axillary line is about 1----- x 1" x deep.
(5)Stab wound right side front of neck in the mid clavicular about half inch above the clavicle and was :bout 3/4" x ----- x deep.
On internal examination he found thorax walls, pleurae, left lung, right subclavian, abdomen walls, peritoneum and liver injured. He stated that the deceased died from haemorrhage and shock. The injuries of left lung, liver and right subclavian artery were caused by sharp object. He stated that the injuries individually and collectively were sufficient in the ordinary course of nature to cause death. He was of the opinion that the deceased was murdered between 6 to 7 p.m. He could not, however, say whether the injuries on the person of the deceased were caused by a single sharp- edged weapon or more.
4. Mst. Sikandar Jan (P.W.7), mother of the deceased, stated that she was present in her quarter situate in T & T Colony when Fazal Dad P.W. Came and informed her that Razi Khan and Fazal Dad had killed her son Daud. She rushed to the spot and found her son lying dead. She stated that on the day of occurrence at about 4-00 p.m. The deceased had left his house to accompany his sister Bilqees to Khalabat Township. About the motive for the offence she stated that about 2/3 months before the occurrence a quarrel had taken place between the deceased and the accused over some thing which led to the present occurrence. She further sated that after coming to the spot she left for the police post T.I.P. Colony where she lodged the report Exh.P.A./I. In her report she had stated that her son had no previous enmity with any one.
5. Abdul Majid A.S.I. (P.W.5) on receipt of 'Murasla' Exh.P.A./I registered the case against the accused vide F.I.R. Exh. P.A. Dilawar Khan (P.W.8) and Nisar Hussain Jafari (P.W.9) are the witnesses to the oral dying declaration made by the deceased. Both of them consistently stated that on the day of occurrence at about 7-30 p.m. They were present in their shops when they heard noise of 'mar gai' and 'bachaoo' from the side of the scene of occurrence. They rushed to the spot and also took a lantern with them. On reaching there they found deceased Daud in injured condition lying on the spot who was struggling for life and saying that he had been injured by Razi etc. Dilawar Khan (P.W.8) stated that the deceased was speaking slowly and with difficulty and blood was coming out of his mouth and when they left the spot the deceased was alive and breathing his last. Nisar Hussain Jafari (P.W.9) stated that they informed the Chowkidar of T&T Colony about the occurrence. He also accompanied the Chowkidar to the spot and another Chowkidar informed the police on telephone. He stated that he was present at the Gate of the Colony when the police arrived. He informed the police that the deceased had told him that he was injured by Razi etc. But the police did not record his report. The police then deputed some one to inform the mother of the deceased. After a while she reached the spot and her report was recorded. He was present when the Investigating Officer inspected the wounds of the deceased and put the dead body in a 'Suzuki' and sent it to the mortuary. He further stated that his statement was recorded by S.Muazam Shah S.H.O. On the next morning at about 9 a.m. In Police Post Haripur and that his statement was not recorded by Muhammad Aslam Khan A.S.I. Who reached the spot soon after the occurrence. S. Muazam Shah S.H.O. (P.W.11) arrested the appellant on 19-2-1980. On 20-2-1980 while in custody the appellant led the police to a house. And took out a dagger EXh.P.11 from beneath the hedges and produced the same to the S. H .O. Which was taken into possession vide recovery Memo. Exh.P.W.6/1 in the presence of the marginal witnesses. The said house was occupied by a relative of the appellant, namely, Juma Khan. The Investigating Officer stated that after his arrest the appellant wanted to make a confession and, therefore, he was produced before Azizullah Khan Magistrate (P.W.3) for recording his confessional statement. He then completed the investigation and submitted the challan against the accused 'in Court. He deposed that recovery of the dagger was effected in the presence of Abdul Jabbar P.W. Who is a resident of village Bharral Police Station Khanpur which is about 15/16 miles from the place of occurrence. The other marginal witness Fazalur Rehman is resident of village 'Talokar' which is at a distance of 2/3 miles from place of occurrence. He did not, summon any respectable resident of T.I.P. Colony at the time of recovery and search of the dagger although the said colony consists of huge population and has its own security staff and Chowkidars. He stated" that the appellant was arrested on 19-2-1980. And his police custody was obtained on 20-2-1980 for 4 days upto 24-2-1980 on which date the confessional statement of the appellant was recorded. About the dagger Exh. P.11 he said that it was not stained with blood.
6. Abdul Jabbar (P.W.6) is a marginal witness to the recovery memo. Exh.P.W.6/1 whereby the weapon of offence (dagger) was recovered at the instance of the appellant who was in hand-cuffs and led the police party to the house of Juma Khan in T.I.P. Colony. He stated that he belonged to village Bharral which is at a distance of 25/30 miles and the house from where the dagger was recovered was inhabited by several person including ladies.
7. Azizullah Khan M.I.C. (P.W.3) recorded the confessional statement of the appellant Exh. P.W.3/2 on 24-2-1980 at about 12-30 p.m . After observing all the legal formalities. He stated that he was fully satisfied that the statement made by the appellant was voluntary. According to the confessional statement the appellant remained in police custody for 6/7 days but he did not complain about any cruel treatment meted out to him by the police.
8. In his confessional statement Exh.P.W. 3/2 the appellant stated that Daud deceased was on friendly terms with him. They were so intimate that they used to visit the houses of each other and their ladies did not observe 'Parda' from them.' About 5/6 months before the occurrence the appellant suspected that the deceased was trying to develop illicit relations with Mst. Farooq Sultan wife of Juma Khan who is a maternal-cousin of the appellant. The appellant repeatedly prevented the deceased from going .On the path in front of the house of Juma Khan but he did not care. On the day of occurrence at evening time when the appellant was going towards the house of Juma Khan, he again saw the deceased running away from the house of Juma Khan. The appellant went in his persuit and stopped him near T.I.P. Club. He inquired from the deceased as to why he had again passed through that path near the house of Juma Khan. The deceased denied by swearing on Holy Qur'an. On this the appellant became annoyed and lost his temper. He gave a blow to the deceased with a dagger who started running. The appellant ran after him and caught hold of him near the barrier and gave him a few more blows with the dagger and killed him. Then he went to S. Mahmood Hussain Shah of Haripur who produced him before the S . H . O .
9. In his statement under section 342, Cr.P.C. The appellant pleaded innocence and stated that the confessional statement was obtained from him by the police by coercion, torture and undue influence. He denied the recovery of the weapon of offence at his instance and stated that it was planted by S.Muazam Shah S.H.O. In connivance with .Abdul Jabbar P.W., He further stated that the witnesses were connected with the complainant and at the instance of the local police they had conspired to depose against him. About Nisar Hussain Jafari and Dilawar Khan P. Ws. He stated that they were procured on the next day to strengthen the prosecution case. According to him the deceased was killed by some unidentified persons and the mother of the deceased suspected him and his brother for the murder.
10. By placing reliance on the evidence referred to above the appellant was convicted and sentenced by the learned trial Court as ` stated above. The co-accused Fazal Dad was, however, acquitted.
11. It is evident that there is no eye-witness to the occurrence and the prosecution case is entirely based on the retracted confession of the appellant, oral dying statement of the deceased, recovery of the weapon of offence and the motive.
12. The appeal was earlier heard on 13-9-1983 and in view of certain objections on behalf of the appellant the case was sent to the trial Court for recording additional evidence. The learned trial Court again examined Mst. Sikandar Jan who stated that Mst. Farooq Sultan is not the real sister of the appellant but is the wife of one Juma Khan who is a cousin of the appellant. Dr. Muhammad Shafiq Ahmed stated that on 20-2-1980 the appellant was examined by him and he found abrasions on the back of the medial three fingers each about 1/4" diameter and abrasions on the front of both the knees each about ----- diameter of the duration of about one week. Nature of injuries was simple. His report Exh.P.W.2/1 correctly bears his signatures. He stated that abrasions were normally healed up within a period of one week and the injuries mentioned above were not healed up. The duration of the injuries given by him was one week but he could not give the exact period of the injuries. Lady Doctor Mrs. Mumtaz Khattak stated that the appellant was produced to her .By the police on 24-2-1980 and she found that there were some old abrasions on his person which were noticed by Dr. Muhammad Shafiq Ahmed on 20-2-1980. Her report EXh.P.W. 3/2 correctly bears her signatures. The appellant was again examined by the trial Court and he stated that he was produced before the doctor after he was detained for 3/4 days before 20-2-1980 by the police and the medical officer did not examine him thoroughly. About his examination by Lady Doctor Mrs. Mumtaz Khattak he stated that he was never produced before any Lady Doctor for examination. He also denied that the deceased had made any oral dying statement and stated that Mst. Farooq Sultan is not related to him but she is the wife of one Juma Khan who is distantly related to him.
13. In support of the appeal it is contended that the confessional statement was not voluntary; that it was obtained by threat and torture by the police; that the motive for the offence has not been established; that the witnesses who deposed to the oral dying declaration were false and procured by the police and that the alleged recovery of the weapon of offence was not made at the instance of the appellant and it was planted by the police.
14. About the recovery of the dagger (Exh.P.11) at the instance of the appellant it may be mentioned that no one from the locality was asked by the Investigating Officer to witness the recovery. Instead one Abdul Jabbar (P.W.6), who is a resident of village Bharral Police Station Khanpur at a distance of 25; 30 miles, was made to witness the recovery. S. Muazam Shah S.H.O. Admitted that he was posted as Police Station Khanpur before his posting as S.H.0. Haripur. The inference would be that this witness was intentionally procured by the Investigating Officer to witness the recovery. Fazalur Rehman the other witness to the recovery is stated to be a resident of village Talokar which is at a distance of 2/3 miles. The Investigating Officer admitted that T.I.P. Colony consists of huge population including its security staff and Chowkidars. It is strange that none of the residents of the locality was asked to witness the recovery. The dagger in question was not stained with blood. The place of the alleged recovery of the dagger also appears to be accessible to the public. In these circumstances it is difficult to believe the prosecution case about the recovery of the weapon of offence. This evidence is, therefore, to be excluded from consideration. Regarding the oral dying statement of the deceased it is contended that the evidence of Dilawar Khan (P,,W.8) and Nisar Hussain Jafari (P.W.9) is discrepant in certain particulars inasmuch as according to Dilawar Khan both the witnesses left the spot before the arrival of the police whereas according to Nisar Hussain Jafari the police arrived at the, spot in his presence and he also informed the police about the oral dying declaration of the deceased but the police did not record his report. He stated that the mother of the deceased also reached the spot where her report was recorded by the police in his presence. But according to Muhammad Aslam Khan A.S.I. (P.W.13) none of the aforesaid witnesses was present at the scene of` occurrence when he reached there. The aforesaid witnesses were examined on the following morning by the police and in case they were present at the spot there was no reason why they should not have been examined on the same day. Further, according to the learned counsel, Nisar Hussain Jafari informed the Chowkidar about the occurrence but the said Chowkidar had not been produced as a witness. According to Fazal Dad (P.W.3) he was informed by another Chowkidar who heard some body saying 'mardia' but that Chowkidar was also not examined as witness in the case. The next contention is that the shops of the aforesaid witnesses are at a distance of 150 yards from the scene of occurrence and it was impossible for them to hear the cries of the deceased. After going through the evidence of Dilawar Khan and Nisar Hussain Jafari, however, we find that they are absolutely disinterested witnesses and nothing has been brought on the record as to why they should falsely depose against the appellant on a capital charge. Their evidence is consistent on the point that on hearing the cries of the deceased they rushed towards the scene of occurrence and found the deceased in injured condition who was struggling for life and saying that he had been injured by Razi etc. The discrepancies pointed out by the learned counsel in the statements of the witnesses, in our view, are not sufficient to detract from their credibility. In these circumstances their evidence in regard to the oral dying statement of the deceased appears to have been rightly relied upon by the learned trial Court.
Regarding the confessional statement 'of the appellant we also do not agree with the learned counsel that it was the result of torture by the police. It is in evidence that before and after his police custody the appellant was examined by the doctors and no fresh injury was found on his person. He was arrested on 19-2-1980 and the abrasion: sustained by him were found to be of a week duration by the doctor who examined him on 20-2-1980 before his police custody. After his police custody the appellant was again examined by a lady Doctor who found some old abrasions on his person which were already noticed by Dr. Muhammad Shafiq Ahmed on 20-2-1980. After going through the confessional statement and the evidence of Azizullah Khan M.I.C,. (P.W.3) we find that the confessional statement was recorded after due observance of all the legal formalities. It was not disclosed by the appellant before the Magistrate that he was making the statement due to pressure put upon him by the police nor did he complain about the injuries allegedly inflicted upon him by the police. The Magistrate stated that after fully satisfying himself that the appellant was voluntarily making the statement, his confession was recorded. The mere fact that the confession was recorded on 24-2-1980 after his police custody was obtained on 20-2-1980 would not by itself suggest that the confessional statement was the result of coercion or torture by the police. Thus, we find that the confession of the appellant has also been rightly relied upon by they learned trial Court. In regard to the motive for the offence it is clear that the prosecution evidence is silent about it excepting that Mst. Sikandar Jan (P.W.7), mother of the deceased, deposed that about 2/3 months prior to the occurrence a quarrel had taken place between the deceased and the accused over some thing. She was not aware as to the cause of the quarrel between them. In his confessional statement the appellant himself gave the motive and the circumstances in which the murder was committed. Therefore, we have to fall back on his confessional statement to find out the motive for the offence and the circumstances in which the murder was committed.' On behalf of the appellant it is contended that in such a situation the confession is to be taken into consideration as a whole and its exculpatory part cannot be excluded. In Abdur Rashid v. The Crown 1969 SCMR 403, it was observed: "if there had been no direct evidence and if the circumstances had not made it unequivocally clear that the appellant was responsible for the murder and we had been left only with the confession; surely the conviction based upon confession itself could not ignore a part of the version about the circumstances which had actuated the accused in committing the crime."
As already stated the oral dying statement of the deceased made to Dilawar Khan and Nisar Hussain Jafari speaks only of the appellant as one of the assailants and is absolutely silent about the circumstances I and the cause of the murder and for this purpose we have to look into the confessional statement which according to the learned counsel being partly exculpatory and partly Inculpatory is to be taken into consideration as a whole. While admitting his guilt in judicial confession the appellant appears to have taken the plea of grave and sudden provocation as according to him on seeing the deceased passing in front of the house of Juma Khan he lost the power of his self control and inflicted a dagger blow on the deceased who ran for his life but the appellant chased him and made him stop near the barrier where he again inflicted a number of blows and thereby caused his death. According to the learned counsel the case would thus, be covered by Exception I to section 300, P.P. C. Which provides that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of an other person by mistake or accident. However, it may be mentioned that it is not every provocation that reduces the offence of murder to that of culpable homicide not amounting to murder. The confessional statement shows that no doubt the question of family honour was involved as the deceased was suspected by the appellant of trying to develop illicit relations with Mst. Farooq Sultan, wife of his cousin, and on seeing him passing in front of the house of Juma Khan he lost the power of his self- control and inflicted as many as 5 stab wounds with a dagger on the person of the deceased but the question would be whether the appellant, in these circumstances, had acted under grave and sudden provocation within the meaning of Exception I to section 300, P.P.C. It is not a case where the appellant found the deceased and the wife of his cousin flagrante delicto so as to make him loose his mental balance. The immediate cause for causing the murder and the weapon used would not suggest that it was a case of grave and sudden provocation as envisaged by law. The fact that the appellant was carrying a dagger of sufficient length would not negative the element of preparation on his part and the intention to cause death even if it be assumed that on seeing the deceased passing in front of the house of his cousin the appellant was provoked to kill the deceased. The provocation could not be termed as grave and sudden to entitle the appellant to the benefit of Exception 1 to section 300, P. P. C.
14. Having given our thoughtful consideration to the facts and circumstances of the case we have come to the conclusion that even if the evidence of recovery of the dagger at the instance of the appellant is excluded from consideration there remains sufficient material against him for basing his conviction thereon and in the peculiar circumstances of the case the learned trial Court had already taken a lenient view by imposing the lesser sentence on the appellant. Therefore, we maintain the conviction and sentence of the appellant and dismiss his appeal. He shall be given the benefit of section 382-B, Cr.P.C. For the period of his detention as an undertrial prisoner. The appellant is on bail. He is to be taken into custody to serve out the sentence imposed upon him. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.