Z. A. CHANNA , J. Abdul Haque Kashkeli, his cousins Imamdin, and Haji and their relative Anwar have all been convicted by the learned Sessions Judge, Larkana, for an offence under section 302 read with section 34, P. P. C., for committing the murder of one Nazal son of Imam bux by intentionally causing fatal injuries to him with the sharp sides of hatchets and each of them has been awarded transportation for life. They have preferred an appeal against their conviction and sentence.
2. There are two versions as to how the death of deceased Nazal came about. One version is given by P. W. Abdur Raaaq, the nephew of the deceased, and the deceased's cousin P. W. Kassim, both of whom claim to be eye-witnesses to the incident. The other version is contained in the F. I. R. And is supported by the evidence of first informant Abdul Karim and also by the judicial confession of appellant Imamdin.
3. The version of the two alleged eye-witnesses, Abdur Razaq and Kassim, is that on the day of the incident (5-2-1970), they were threshing paddy crop in the dera of Ibrahim in deh Kallar, when at about tepahri time, the deceased, who had cultivated gram and lucern grass near the dera, asked them to stop threshing the paddy crop, to take the bullocks to their houses and after watering and tethering them, to bring sickles for cutting lucern grass from his land, and in the meanwhile he would be having a round of his lands. It is further alleged by these two witnesses that just as they reached the lucern patch of the deceased after performing the above chores, they heard cries of deceased Nazal and saw the four appellants inflicting blows on him with sharp sides of hatchets and dragging him to a dry water-course nearby, in the bottom of which they threw his body and made good their escape carrying away their hatchets. According to P. W. Abdur Razaq, he left P. W.
Kassim at the scene of offence and reported the matter to P. W. Abdul Wahid, the brother of the deceased, at fall village, where the latter had gone for some work.
4. The other version, which is contained in the F. I. R., is that the first informant Abdul Karim, was returning sometime after sunset to his village from Kambar Town, where he had gone to sell milk, when just out--side the town, he met his nephew, appellant Imamdin, who was armed with a blood-stained hatchet, and who informed him that after tethering his bullocks in his house at sunset time, he had gone out with his hatchet to the water-course near their village to ease himself, when in the bed of the water-course he found the deceased and his, cousin Noor Bibi, wife of Abdul Masood, in a naked condition and the deceased committing illicit intercourse with her ; that thereupon he gave blows with his hatchet to the deceased, while Mst. Noori ran away ; that as a result of the hatchet blows the deceased died ; that thereafter he (Imamdin) went to his house, where he narrated the incident to his maternal uncle Muhammad Bux who took him to the dry water-course and saw the deceased; and that leaving his uncle Muhammad Bux at the scene of offence, he was going to Kambar police station to surrender himself. Abdul Karim produced the appellant Imamdin, alongwith his blood-stained hatchet and clothes, at the police station, where they were seized in presence of mashirs Abdul Majid and Ghulam Hussain by A. S. I. P., Sodho.
5. The investigation of this case was conducted initially by A. S. I. P. Sodho, who immediately after recording the F .I. R., proceeded to the wardat, where he found only Muhammad Bux the maternal uncle of the appellant Imamdin. He sent for the relatives of the deceased Nazal and recorded the evidence of the two alleged eye-witnesses Abdur Razaq and Kassim and also the statement of Abdul Wabid, the brother of deceased Nazal. Early on the following morning, Muhammad Ashraf, S. H. O., Kambar Police Station, came to the scene of offence and took over the investigation of the case. In presence of mashirs Mutad Bux and Muhammad Amin the inspected the scene of offence, which was pointed out by Muhammad Bux, and secured a blood-stained hatchet, which was just lying near the body of the deceased and a cap which was found in a gram patch, about 112 feet away from the body of the deceased. Both the hatchet and the cap are said to be of the deceased.
Near the cap there was a patch of blood- stained earth. In the bed of the watercourse, under the body of the deceased, there was a large patch of blood-stained earth. The two blood-stained patches were found connected by a trail of blood accompanied by marks of dragging. The evidence against the appellant consists of the ocular testimony of P.W,s Abdur Razzaq and, Kassim, corroborative testimony of P. W. Abdul Wahid, the brother of the deceased, to whom the matter was reported by P. W. Abdur Razaq soon after the incident, the extra judicial confession made by appellant Imam Din to his uncle Abdul Karim, the securing b;;-- A. S. I. P. Sodho from the person of appellant Imamdin of a blood-stained hatchet and clothes, which according to the Chemical Examiner were stained with human blood and the circumstantial evidence of the blood at the gram cultivation of the deceased and in the dry bed of the water-course, where the body of the deceased was found, and the trail of blood and dragging marks connecting the two blood-stained places.
7. We have carefully considered the evidence of the two alleged eye--witnesses, Abdur Razaq and Kassim, and are of the opinion that their testimony does not ring true and cannot be relied upon. In the first place, both of them are interested witnesses. P. W. Abdur Razaq is the nephew of the deceased, while P. W. Kassim is the deceased's cousin and the brother-- in-law of P. W. Abdul Wahid, the brother of the deceased. Secondly, if they had witnessed the incident, as alleged by them, it is highly unlikely that they would, in view of their close relationship with the deceased, have left his body unattended or in charge of a relation of the culprits. It, however, appears from the evidence of A. S. I. P. Sodho that when he went to the scene of offence he found there only Muhammad Bux, the maternal uncle of appellant Imamdin, P. W. Razaq in his evidence has stated that only he had gone to the village to inform the brother of the deceased about the incident, leaving Kassim at the scene of offence, but P. W. Kassim has con--tradicted him on this material point and admitted that both of them had gone to the village to inform Abdul Wahid. In his deposition before the committal Court P. W. Kassim even went a step further and admitted that due to fear he did not go to the scene of offence. Thirdly, if the deceased, A after be was given hatchet blows in the gram patch, was dragged up to the bank of the water-course, a distance of 112 feet according to the testimony of the tape order, one would have expected to find numerous scratches and bruises on the body of the deceased, and the bleeding parts of his body would have been caked with mud. The medical evidence, however, dis--closes no other injuries on the deceased except those that were caused with a hatchet. There is also no evidence to indicate that any of the injuries on, or parts of, the deceased were covered or caked with mud, Lastly, the presence of the hatchet of the deceased in the bed of the water-course, by the side of his body, is contra-indicative of the deceased being dragged and thrown into the water-course. It is not possible to believe that after he was given deadly hatchet blows in his gram field, and even when he was being dragged for a distance of 112 feet, he managed to retain his bold on his hatchet, and relinquished his hold when he was flung into the bed of the water-course.
8. If the evidence of the two alleged eye-witnesses is excluded, and we are of the opinion that it should be excluded for the reasons given in the preceding paragraph, together with the evidence of P. W. Abdul Wahid, who was informed of the incident by these two eye-witnesses, there would be no evidence whatsoever left to connect appellants Abdul Haq, Anwar and Haji with the offence. We accordingly accept their appeal and set aside their conviction and sentence and order that they should be set at liberty forthwith if they are not required in any other case.
9. The case of appellant Imamdin, however, stands on a different footing. The evidence against him consists of hip extra-judicial confession made to first informant Abdul Karim and the securing from his person by, A S. I. Sodho soon after the incident, a hatchet and cloths which according to the report of the chemical examiner were stained with human with human blood. Furthermore, in his 362, Cr. P C. Statement in the trial Court he has admitted to having caused the death of deceased Nazal by giving him hatchet blows, and confessing his guilt to Abdul Karim who produced him at the police station where the police secured the hatchet, with which he had committed the murder, and his clothes, which had become blood-stained. His contention, however, is that he had found the deceased and his cousin Mat. Noor Bibi in a naked condition and having illicit intercourse in the dry bed of the water-course, where he had gone for the purpose of easing himself, whereupon he lost control over himself and killed the deceased by causing him injuries with a hatchet which he was carrying, while Mst. Noor Bibi ran away.
10. If the only evidence against appellant Imamdin had been the con--fession made by him to Abdul Karim and the admission of his guilt i& Court, the same would have to be accepted or rejected in their entirety. However, there is tangible evidence which contradicts the part of his con- -fession and statement regarding finding by him of the deceased and Mst. Noor Bibi naked and having sexual intercourse. S. H. O. Ashraf and mashir Murad Bux have testified that the body of the deceased was found by them fully clothed. Furthermore, if Mst. Noor Bibi had been found in a naked condition by appellant Imamdin, she would, in her haste to run away, most likely have left some item of her wearing apparel at or near the scene of offence, but nothing belonging to a woman was found anywhere near the scene of offence. It may also be pointed out that the post- mortem report in respect of the deceased, which was prepared by Dr. Nisar Ahmed, indicates that no semen marks were detected on the organs of generation of the deceased. It is, therefore, not possible to accept the plea of appellant Imamdin that he killed the deceased as a result of grave and sudden pro--vocation. It is a well-settled principle that a Court, while accepting the, incriminatory part of tae statement of facts made by an accused, is entitled to reject the exculpatory part thereof, if it is inconsistent with proved and established facts. In Ghulam Farid and another v. The State (PLD 1964 Posh. 12) Daud J. (with whose enunciation of law Shakirullah Jan, J.
Fully agreed) observed as follows- "The statement of facts, made by an accused person, when it is the only evidence in proof of his guilt, it should be accepted in its entirety or rejected in its entirety, but the part which is not deposition of facts but is merely his plea-such as plea of self-defence and which is a question of law, is required to be tested with the facts stated by the accused person, and a Court cannot abdicate its duty by accepting that plea straightaway without applying its mind if the statement of facts does or does not bear out his plea, and if the Court does not do so, it relegates its function to the accused himself and empowers him to sit on judgment of his own acts."
11. For the reasons stated above, we are unable to accept the plea of appellant Imamdin that he killed the deceased while under grave and sudden provocation and are of the opinion that this is a case of will full murder. We accordingly confirm his conviction and sentence and dismiss his appeal.