' under section 302, P. P. C., for committing the murder of his brother Allanditta, and has been sentenced to death for the said offence. The appellant has preferred an appeal from Jail against his conviction and sentence and his case is also before us for the confirmation of the capital sentence awarded to him. This judgment will dispose of both the appeal as well as the reference for the confirmation of the aeath sentence.
2. The prosecution version, shortly stated, is that the two brothers, deceased Allabditta and appellant Sher Shah, were residing together in a rented hut, belonging to one Taj Muhammad, which is located in Wahid Colony, Nazimabad, Karachi. The deceased was married and his wife, Mst. Fazal Bibi, was also residing with the deceased in the said hut. It is alleged that at about 10-00 p.m. On the last Friday in the month of Ramzan, in the year 1970, an altercation arose between the deceased and the appellant, as the appellant demanded the return from the deceased of the amount of Rs, 20 which he had loaned to the deceased but the latter showed his inability to repay the loan for the moment. The appellant is said to have persisted in his demand and on the deceased's again expressing his total inaoility to pay the loan for the moment, the appellant Is stated to have picked up a heavy iron bar (c.14-), which was lying nearby, and struck the deceased on the head, in consequence whereof the deceased fell down and died on the spot. It is further alleged that thereafter the appellant dug a grave in the but in which he buried the deceased and plastered over the grave with cement. The incident is said to have been seen by Mst. Fazal Bibi. The appellant continued to reside in the but with Neal Bibi for 3 dais and thereafter he shifted with her to another but in Lalukhet. During all this time the appellant is stated to have kept strict watch over Mst. Fazal Bibi and not permitted her to leave the but at any time. However, some 10 days after the appellant had shifted with Msr. Fazal Bibi to Lalukhet, Fazal Bibi managed to esape from the hut, while the appellant had gone out to bring milk, and reported the matter to one Ghulam Hussain alias Seth Gullu at the shop of one Viahandas. Several other persons were also present at that time.
Sometime after Mst. Fazal Bibi had unfolded her tale of woe to these witnesses, the appellant also came in search of her. He was questioned by Seth Gullu, and although he first denied to have had anything to do with the murder of his brother, he is later said to have admitted to have committed the crime. The matter was thereafter reported to the police and a first information report was lodged against the appellant on 11-12-1970 by Fazal Bibi.
3. The case was originally registered at Lalukhet Police Station but was later transferred to Nazimabad Police Station. The police went to the shop of Vishandas and apprehended the appellant. He is said to have pointed out the but in Wahid Colony where the crime was committed.
The but was locked. Its lock was broken open and on entering the place the appellant is stated to have pointed out the plastered place under which the deceased was buried. This place was dug up and the dead body of Allanditta was recovered. There was a head injury on the deceased. The police also recorded the statements of Seth Ghulam Hussain, Wahid Hussain, Mohammad Ramzan, Allah Buz and Visbandas, in whose presence the appellant is stated to have made an extra-judical confession. They also recorded the statements of Taj Muhammad, the owner of the hut, and one Miskin who claimed to have seen the appellant, on the night of the Incident. Throwing earth in the bed of the river close to the but jointly occupied by the deceased and the appellant. On 21-12-1970, the appellant is said to have led the police to the culvert in Moosa Colony, North Nazimabad, and dug out from under the culvert an iron rod, which the police secured in the presence of mashirs.
4. The autopsy on the deceased was conducted by Police Surgeon, Mohammad Umar Khan, who found the following external injuries on the deceased :- "(1) Swelling of right side skull 3" x 3' with sub-cutaneous haematoma.
(2) Lacerated wound right side parieto-frontal region 1" x X bone deep with depressed fracture of right frontal bone lr x 1" and also at right parietal bone 2' long and right temporal bone 2i" long."
5. On internal examination, the Police Surgeon found dark coloured thick liquid material on the brain matter. There was also liquid under the durameter. At the time of the post-mortem, the body was found decomposed. In the opinion of the Police. Surgeon, death of the deceased was caused by fracture of the skull and intra-cranial haemorrhage, as a result of blow with a hard and a blunt weapon such as an iron rod. In his opinion, external injury No, 2 was sufficient to cause death in the ordinary course of nature:
6. The appellant, while admitting that he had been putting up with his deceased brother, has denied that he was present in the but on the night of the murier or that he was in any way responsible for the murder of the deceased. In the lower Court be stated that the father of Mst.
Fazal Bibi, wno is his uncle, it a pimp, and he has got Allanditta murdered through goondm in order that Fazal Bibi might earn income for him through prostitution. In his statement in the Sessions Court, however, he alleged that Mst. Fazal Bibi had developed illicit relations with P. W. Ghulam Hussain's son, presumably suggesting thereby that either Ghulam Hussain or his son might have got the deceased murdered.
7. We have no doubt, in view of the evidence on record, that the deceased met his death in consequence of a blow with a heavy iron rod given to him by the appellant. The direct evidence on this point is furnished by Mst. Fazal Bibi. She has testified about the quarrel between the two brothers on account of failure on the part of the deceased to repay the loan of Rs, 20 to the appellant, and has further stated that in the course of the quarrel the appellant picked up an iron bar (ji...) and struck the deceased on the head in consequence of which the deceased fell down unconscious and died on the spot. It is true that Mst. Final Bibi is the solitary eye-witness to the incident and furthermore, the F.I.R. Has been lodged about a fortnight after the incident, but we are satisfied on a careful appraisal of her evidence, that she has given substantially a true version of the incident. She has testified that after killing the deceased the appellant threatened her to keep quiet and prevented her from leaving the hut. She has also stated that the appellant dug a grave in the hut, where he burried the deceased, and plastered over the grave with cement which was already in the hut. Continuing her tale of woe, the witness has testified that for 3 days she was made to stay with the appellant in the house where her husband was murdered and lay burried, and thereafter the appellant shifted her to a but in Lalukhet where he kept strict watch over her but on the 10th day of their stay at Lalukhet she managed to slip out and complained to certain persons, including Seth Gullu, about the whole matter. According to the appellant's own statement, this witness is a daughter of his real uncle, and no motive is sho :in for her to falsely implicate the appellant. In fact, as we will presently show, she has to a certain extent tried to shield the appellant and save his life, despite the treatment meted out by him to her.
8. The evidence of Mat. Fazal Bibi finds support from 3 separate pieces of evidence. The first of these is the extrajudicial confession made by the appellant. As many as 5 witnesses, namely Ghulam Hussain alias Seth Gullu, Wahid Hussain, Mohammad Ramzan, Allah Buz and Vishandas, have deposed that in their presence the appellant admitted to having killed his brother and buried him in the but where they were jointly residing. P. W. Ghulam Hussain has deposed that while he and the other witnesses mentioned above were sitting at the shop of Vishindas, of which he is a real owner, Asst. Fazal Bibi, who was not previously known to him, came there and complained to them that her brother-in-law had killed her husband and buried him in the but where they were jointly residing. The witness goes on to state that shortly thereafter the appellant came in search of Mat. Fazal Bibi, but when they prevented him from taking her away and questioned him whether he had murdered his brother, the appellant at first denied having committed the murder but ultimately he admitted that he had done so and burried the body in the but in which they were jointly putting up. These five witnesses are all independent witnesses, most of whom did not even known the appellant or the deceased previously and thus they have no reason to falsely implicate the appellant. Their names transpire in the F. I. R., which, though lodged late, presumably could not have been lodged earlier on account of the restraint which the appellant had placed over the movements of Mst. Fazal Bibi.
9. Mr. Abdul Razzak Siddlqui, the learned counsel for the pauper appellant, has assailed the evidence as to extra-judicial confession on the ground that though according to the witnesses the confession was made in the presence of Mst. Fasal Bibi, according to her the appellant did not admit killing the deceased and on the contrary denied having done so. We are not impressed with her denial on this point, firstly, because in the F. I. R. Lodged by her she has clearly stated that the appellant had made an extra-judicial confession before Seth Gullu and the other witnesses and secondly, it is possible that because of the 5 years lapse of time that intervened between her husband's death and the record of her evidence in the Sessions Court, she had got over her grief and apparently wanted to save the life of the appellant who is her real cousin.
10. The second piece of evidence which supports the version of Mat. Fazal Bibi is the pointing out by the appellant to the police and the mashirs of the but in which the murder was committed and the plastered grave of the deceased. It might be stated that the police had first asked Mst. Fazal Bibi to point out the scene of offence to them, but since she was a pardahnasheen lady and had little knowledge of the locality, she was unable to do so, as deposed by P. W. Ramzan. It was under these circumstances that the police interrogated the appellant who took them to the but where the crime was committed. The lock was broken and the appellant pointed out the plastered grave of the deceased, from where the body of the deceased was dug out. Evidence in this behalf has been given by mashir Fazal Hussain and S. H.
0. Mohammad Ayub. The evidence of these witnesses has not been shaken in cross-examination.
11. The third piece of evidence corroborating the version of Mat. Paul Bibi is the recovery by the police of an iron bar at the pointation of the appellant. S. I. P. Muhammad Shafi has deposed that on 21-12-1970, the appellant took him and the mashirs to a culvert in Moose Colony in North Nasimabad and dug out an iron bar (cjr.) which was buried in the earth under the culvert. The S. I. P.
Is corroborated by mashie Ails Rahman. Although the weapon was found from a public place, since I was buried under the earth, the appellant alone would be deemed to hav knowledge of its place of concealment, as hold in the case of Bakka v. State (1) by their Lordships of the Supreme Court.
The recovery of this weapon, in the circumstances, provides strong corroboration to the direct testimony of Mst. Fazal Bibi.
12. There is yet one more piece of evidence against the appellant which is furnished by P. W. Miskin, a neighbour of the appellant when he was residing in Wahid Colony. This witness has deposed that on the night of the incident he had seen the appellant throwing earth in the bed of the river. This witness could not be examined in the Sessions Court, as he was not available, and hence his evidence in the committal Court was transferred to the file of the Sessions Court under the provisions of section 33 of the Evidence Act. The evidence of this witness has not been challenged and suggests that the appellant had thrown in the river the earth which he collected while digging the grave of the deceased.
13. It remains to be considered whether the action of the appellant amounts to murder. There is no evidence that there was any previous dispute between the two brothers. On the contrary, the circumstance that they were putting up together would seem to indicate that they were on good relations with each other. The quarrel over the return of the money was not such a serious one that the appellant should have been driven to kill his own brother. The act of the deceased was in our opinion, an unpremeditated one and performed in the heat of passion. There is also the admission of Mst. Fasal Bibi that during the quarrel between the two brothers, the deceased had a knife and had shown the same to the appellant. In these circumstances, we do not think that the action of the appellant would amount to murder but his case falls within Exception IV to section 300, P. P. C.
We are fortified in our view by the decision of their Lordships of the Supreme Court in Masoom Baig v. Mohammad Muntr (2). In that cue, it was found that two friends fell out each other, but on being separated by mutual friends, one of them threatened the other not to visit a named Bazar any more. Despite this threat, however, the deceased visited that Baur, in consequence of which there was an altercation and exchange o abuses between the deceased and the accused, which led to grappling, and in the course of the grappling, the accused stabbed the deceased. It wa held that aNarently, the fatal blow was inflicted without premeditation in a sudden quarrel in the heat of the passion, and wsh a pen-knife, and accordingly the fourth exception to section 3a0, P. P. C. Seems applicable. In the instant case also the appellant appears to have struck the fatal blow without premeditation, in the heat of the moment, in a sight and without taking any undue advantage, since according to the testimony of Mst. Paul Bibi, the deceased also carried a knife.
15. We would accordingly alter the conviction and sentence of th {{FOOT NOTE}}
(1) 1977 SCM R 150 (2) 1971 SCM R 476 {{FOOT NOTE}} appellant from death under section 302, P. P. C. To 7 years R. I. Under] section 304, Part I. With this modification, the appeal is dismissed. They reference for the confirmation of the death sentence is rejected.