' AGRA ALI HYDER, J.-The appellant was convicted by the learned Additional Sessions Judge, Hyderabad, for an offence under section 302, P. P. C. And sentenced to suffer life imprisonment. Ho has come in appeal.
2. The prosecution story, in brief, is that, on the 30th of March 1973, at about the noon time, the appellant hacked his wife to death, because she had refused to serve him with meals, and rather curtly. Turpio, the uncle of the appellant, soon after the incident, had proceeded to Mulla Katiar Police Outpost, which was sixteen miles away, and lodged the First Information Report. A. S. Ghulam Ali, after recording the First Information Report, had sent the copy thereof to the S. H. O., Tando Mohammad Khan, for incorporation in the book maintained under section 154, Cr. P. C. Later, he proceeded, with the complainant, to the "wardat", reaching there after mid-night. The appellant was produced by P. Ws. Umar, Siloo and others, and came to be arrested in the presence of the Mashirs. Thereafter, Umar had produced a blood-stained hatchet, which came to be secured, and sealed at the spot. In the morning, the A. S. I., prepared the 'Mashirnama' of the 'wardat', and secured the blood-stained earth. Then, came the inquest report, and the dead body was despatched to the Medical Officer, Tando Muhammad Khan, for post-mortem examination.
Enquiries were then made from Judo, Siloo and Umar. As the appellant was willing to make a confession, he was sent to the Mukhtiarkar and First Class Magistrate, Tando Muhammad Khan, where his judicial confession was recorded on 2-4-1973. The blood-stained articles were sent by the S. H.
0. Muhammad Malook, to the Chemical Examiner, and, after duo investigation, the case came to be challaned.
3. The appellant in his statement at the Court of Enquiry denied the various allegations made against him. He also retracted the confession, saying that it had been procured from him as a result of maltreatment. At the trial, he added that he had enmity with one Gul Mohammad, who is the uncle of the wife of P. W. Imar.
4. Dr. Muhammad Azeem, who held the autopsy, found the following injuries on the body of the deceased
(1) Incised wound 2 3/4' a 1 deep to bone which is cut on palmer aspect proximal part of right hand thumb, oblique.
(2) Neck is completely severed with the only attachment of skin on the front, all the structures underneath were completely cut, spinal cord, spinal column, oesophagus, trachea, blood vessels and muscles were all cut at the level of 7th cervical vertebrae ; the injury appeared to have been caused with two strikes, one from back and one from front side.
(3) An incised wound x 1' x deep to muscles on the front of left forearm from above downwards oblique.
(4) An incised wound le x 3/4' a deep in muscles, transverse on the back of left shoulder.
' According to him, all the injuries had been caused with some sharp-cutting weapon, like a hatchet, and death, which would have been instantaneous, had occurred duo to shock and haemorrhage due to the injuries, out of which Injury No, 2 was individually sufficient to cause death in the ordinary course of nature. _
5. There are four eye-witnesses of the incident, namely, Turpio, Umar, Sulleman and Judo. Turpio is the uncle, and P. W. Umar, the first cousin of the appellant. All these four witnesses are 'Hub' of the same ZamIndar, namely, Haji Muhammad Yousuf. Turpio at the trial took a complete somersault, and stated that he was informed about the happenings by one Sadiq while returning from a neighbouring village, but he was never informed as to how and at whose hands the murder came to a pass. He had straightaway proceeded from there to the Mulla Katiar Police Outpost, where he had lodged the Report. He had probably nothing better to say at the Court of Enquiry either, because no attempt was made by the A. P. P. To get any passages transferred on the record under section 288 of the Criminal Procedure Code, as was done with the other witnesses. However, he could be still cross-examined by the A. P. P. And confronted with i4 the contents of the First Information Report. It is an axiomatic principle of law that the contents of the First Information Report will not be substantive evidence, but it should have been resorted to, to show that whatever the witness was speaking at the trial was a total departure from what he had to say at the earliest stage. Even the conduct of the witness in going post haste from there to the police outpost without even trying to ascertain the facts, or, knowing as to how it had been brought about, when all the details are categorically mentioned there, including even the extra-judicial confession of the appellant needed an explanation. Umar's performance, as was to be expected, was no better.
However, he was cross-examined by the learned A. P. P. And confronted with certain passages of his statement at the Court of Enquiry, which were duly brought on the record. He had stated there that they had seen the appellant giving hatchet blows to his wife, and that, when they had caught hold of him, he had gone to offer prayers at the mosque. He had also deposed there that on an enquiry, the appellant had informed them that he had demanded meals from his wife Mst.
Haleema, but she had retorted that he had better help himself with the meals, as she was not feeling well, which had annoyed him, resulting in the murder. He had also mentioned there that Turpio had gone to the Police Outpost thereafter. Sulleman and Julio also were cross-examined by the learned A. P. P. And certain passages from their earlier statements, which reflected their presence at the time of the diabolical murder, and the extra judicial confession made by the appellant, were duly transferred on the record.
6. I am of the opinion that the learned Additional Sessions Judge, looking to the blood ties of Umar and the influence they could exercise on Sulleman and Julio, and also in view of the fact, that there could not be the faintest possibility of their being biased against the appellant, exercised B proper discretion to rely on their earlier statements. All that need be said about Turpio is that whatever he had chosen to dole out at the trial, looking to the tenor of the First Information Report, was that he was not a witness of truth, and was just trying to divert the course of justice. (See Adatat v. Crown (1).
7. The next piece of evidence is the judicial confession made by the appellant. He was arrested in the early hours of the 31st of March, 1973, and his confession was recorded on 24-1973.
Demonstrably, it was after a del ay of more than forty-eight hours. There is no explanation for the delay, by the A. S.
1. On his own showing, he had returned to Tando Mohammad Khan on the 31st. Even if he had not returned, he could arrange to send the appellant, if he was willing to make a judicial confession of his own free-will and accord, without any loss of time. Tyre is a string of authorities that it there is undue delay in the recording of the judicial confession as it is in the present case no evidentiary value can be placel thereon. I will, therefore, rule it out of consideration. The hatchet had been sent to the Chemical Examiner. However, no blood was detected thereon. It is not necessary to examine this position any further, as, on the showing of the A. S. I., it was produced not by the appellant, but by P. W. Umar
8. The position, therefore, is that the case against the appellant depends only on the statements of three witnessed transferred on the record under sections 288 of the Code of Criminal Procedure.
Mr. Mohmmad Ali Shaikh, learned counsel for the appellant, referred to the cases of Wahid Bar v.
The State (2) and Mohammad Ahmad alias Mahanda v. The State (3). In the
(1) PLD 1956 FC 171 (2) PLD 1963 Kar. 837
(3) PLD 1970 SC 72 ' earlier case, it was held that, if the conviction was to be based totally upon the statements recorded in the committal Court, it will be setting a bad precedent and that in such cases some sort of corroboration would be necessary. In the said case, the appeal was allowed, but it was observed that there could be cases in which the evidence brought under section 288, Cr. P. C. "may be accepted and conviction based upon it." The same was the, view taken in the latter case, wherein it was observed that each case, however, has to be decided on its own facts, and each statement transferred in a case under section 288, Cr. P. C. Has to be adjudged on its own merits in the context of all the circumstances of the crime. In Alim v. The State (1) Cornelius, C. J. (as then he was) did not consider it safe to rely on the statements of three witnesses transferred on the record under section 288, Cr. P. C. The evidence of the fourth witness was discounted because of what he had to say at the Court of Enquiry because the reason for their faltering at the trial was "personal and internal", and that the only reason for their perfors. Mance could be that "they suffered from genuine doubts as to whether they were identifying the right person." The conviction was set aside, only because the extent of the opportunity for identification available to each of the witnesses had not been properly examined. His Lordship also enumerated the types of cases in which use could justifiably be made of the provisions under section 288 of the Code of Criminal Procedure. Four such categories were mentioned, but of course these cannot be said to be exhaustive. The first category dealt with cases of unchastity of a woman. The wayward performance of the witnesses therein is "attributable to a feeling that unchastity in a woman is a sufficient justification for killing."
In the instant case, it was the defiance of a woman to carry out the wishes of her overlord, the husband. In the rural areas, and specially among the poorer group, a woman is expected to be plaint and submissive. Actually, she is no better than a chattel. If she, therefore, has the temerity to stand up against him, even for some valid reason, and is taken to task, some times fatally, people will be prone to forget and forgive, not long after the event. We find some such thing here.
9. In Niaz v. The State (2) the rule enunciated was that the evidence of interested eye-witnesses having motive for false implication could, in certain cases, be acted upon for convicting the accused without corroboration, because suhstitution was a thing of rare occurrence, and cannot be assumed and he, who sets up the plea has to lay the foundation for it. Here, the witnesses had no earthly reason to bring the appellant to harm. Two of the witnesses are knot to the appellant with the closest ties. Umar, the obliging witness that he was, however, admitted that Gul Muhammad, the uncle of his wife, had murdered Soomar, the brother of Mst. Haleema, but nobody from the family of Mst. Haleema had appeared as a witness against the appellant. What is more, there axe no particulars either as to when all this had happened. Be that as it may, there was nothing the matter between him and the appellant The incident had taken place in broad daylight.
Turpio and the appellant were living in the same house, though separately. Even a sneeze at the house of the appellant would not go unnoticed in his house. The other witnesses were sitting with him. Turpio, after furnishing graphic details in the First Information Report, forgets all the details. The matter, so far as he is concerned' is beyond redemption, but there appears to be no reason not to act upon the earlier depositions of the other witnesses. They had no reason to bring the appellant to any harm. At the trial, they spun out tissues of lies to come to the rescue of the appellant.
(1) P D 1967 SC 307 (2) P -1 13 1960 SC 387
10. I am of the opinion that, in the circumstances of the case, it is safe enough to affirm the conviction of the appellant on the testimony of these witnesses transferred on the record under section 288 of the Code of Criminal Procedure. He has already been awarded the lesser sentence under the law. I will, therefore, dismiss the appeal.
' G. M. SHAH, J.--1 agree.