Z. A. CHANNA, J.--Appellant Ghulam Shabbir; a 21 years old Goldsmith, was tried by a learned Additional Sessions Judge, Larkana, on the charge of committing murder of Mst. Karimat Khatoon, by strangulation and inflicting of Danda blows, and also of dishonestly misappropriating the gold ornaments of the said Mst. Karimat Khatoon after doing her to death, and has been convicted for the former offence to death and for the latter offence to undergo R. I. For 3 years and, also to pay a fine of Rs. 1,000 or in default to undergo further R.I. For one year. The appellant has preferred an appeal against his convictions and sentences and we also have a reference from the learned Additional Sessions Judge for confirmation of the death sentence awarded by him to the appellant.
This judgment will dispose of both the appeal and the reference for confirmation.
2. Shortly stated, the prosecution case is that Mst. Karimat Khatoon, who was an old lady of 70 years and a widow, used to go to the houses in her neighbourhood in Lahori Mohalla, Larkana town, for giving lessons of Holy Qur'an to the children. On 20-11-1974, in the afternoon, she left her house as usual for her avocation. That was the last time that she was seen alive. When she did not turn up till late in the night, a search was organised for her but no clue as to her whereabouts could be obtained. The search continued un the next morning but to no avail. On the third namely 22-11-1974, first informant Moula Bux, with whom. Mst. Karimat had been putting up and who is her nephew, and his cousin, Aslam, recommenced the search for Mst. Karimat at Asur time. When they neared the cigarette shop of one Ghousbux Awan, they saw one person coming along the street from the north with a guny bag on his shoulders whom they identified in the light of the electric lamp to be the present appellant. On which he its the appellant is stated to have thrown down the gunny was carrying and taken to his heels The two witness went up to the gunny bag and on opening it found it to contain the dead body of the missing Mst. Karimat Khatoon. She bad injuries on her head which had bled. There was also a mark of strangulation around her neck. It was further found that the 18 gold ear-rings, the two nasbis and 3 gold rings, which she had been wearing when she was last seen, were missing. Leaving Aslam with the dead body, Mohlabux went to the house of the appellant, but found it to be closed from inside. He then informed his relations whom be brought to the place where the body was lying, Thereafter, he proceeded to the Larkana Police Station, where his first information report was recorded the same day, at 5-30 a.m., by S. H. O. Haji Mohammad.
3. The S. H. O. Accompanied Moulabux to the place where the body of Mst. Karimat was lying and found witnesses Aslam and Budhal with the dead body, whose statements he recorded. The dead body was still encased in the gunny bag but the covering Bachka (small hag) had been removed.
The S. H. O. Also noticed that there were injuries on the dead body and it was without any ornaments. The S. H. O. Then sent the dead body to the Civil Hospital, Larkana, for post-mortem examination. Thereafter, the S. H. O. Recorded the statement of Ghousbux. On the same day, at 3- 00 a.m., the S. H. O. Arrested the appellants in the presence of Mashirs Ghulam Rasool and Ghousbux. The appellant led the police and the Mashirs to his house, the door of which was locked.
He opened the locked with his key and took the police party inside the house. From a Chhapati (mezzanine floor), he brought out one Bachka (small gunny bag), which contained blood-stained trousers of the deceased, grey coloured trousers, which were also blood-stained, one shirt, one Dupata, one blood-stained RUN, one sponge chappal, one danda which appeared to have been washed but still was blood--stained and one dagger. The appellant next showed the police party a breach in the wall in-between his house and the abandoned house of one Ghulam Mohammad Abbasi. He pointed out in the abandoned house a ditch about 1-- feet long which was near the breach in the wall.
4. On 23-11-1974, the appellant was produced before the learned Resident Magistrate, Larkana, who recorded his judicial confession on the same day. That day the S. H. O. Recorded the statement of Goldsmith Haji Atta Mohammad who produced before him a piece of gold weighing 2 Tolas, 14 annas, one Rati and 2 Mungs. The appellant was ultimately challaned on 7-12-1974.
5. The defence of the appellant is one of complete denial. He, however, admitted that he had made a judicial confession, but alleged that it was false and that he and his relatives were beaten by the police and in consequence he was forced to make the confession. His further statement was as follows:---- "I am innocent. Prior to this incident complainant had exchanged abuses with me as he objected to my passing from in front of his house. Nothing was recovered from me. Recoveries were foisted, Police had arrested me at about 10-00 a.m. And had detained my father-in-law, mother-in-law and my would-be wife Asia and had disgraced us all. I was forced to make confession"
6. The autopsy on the deceased, which was conducted by Dr. Pahlaj Rai, disclosed the following external injuries on the deceased:-- "(1) One lacerated wound 3-- --- x 1/3--- x bone deep on the occipital bone.
(2) One lacerated wound 2--- x ----- x up to the bone on the parietal bone.
(3) One lacerated wound 1--- x --" up to bone one inch above the injury No. 1.
7. On external examination it was found that there was fracture of the occipital bone, rupture of the brain, fracture of thyroid cartilage and dislocation of the hyoid bone. The Medical Officer also found that there was bleeding from the nose and mouth, tongue was protruding out and there was ligature mark around the neck. In the opinion of the Medical Officer, the death was due to asphaxia as a result of strangulation. Lie further opined that injuries Nos. 1, 2 and 3 were caused by a blunt substance, such as a Lathi. He further opined that the probable time between injuries and death was within 5 minutes and the time between death and post-mortem was 20 hours.
8. We have been taken through the entire evidence in the case by Mr. Niazi A. Khalique, the learned counsel for the appellant, and Mr. Murtaza Hussain, who appeared for the State. In convicting the appellant, the learned Additional Sessions Judge mainly relied upon the judicial confession made by the appellant before the Resident Magistrate, Larkana, which confession, in the opinion of the learned Additional Sessions Judge, was fully corroborated by the testimony of P. Ws. Moulabux and Aslam, who had seen the appellant throwing down in the street the gunny bag from which the dead body of Mst. Karimat Khatoon was recovered, the recoveries of blood-stained clothes, dandy and articles belonging to the deceased at the pointation of the appellant, the evidence of Goldsmith Haji Atta Mohammad and lastly the medical evidence.
9. According to the S. H. O. Shafi Mohammad, who is corroborated by Mashir Ghulam Rasool, the appellant was arrested on 22-11-1974, that is the same day on which the F. I. R. Was recorded. The learned counsel for the appellant has pointed out a minor discrepancy between the evidence of the S. H. O. And that of mashir Ghulam Rasool as to the exact time of the arrest of the appellant.
According to the S. H. O. The appellant was arrested at 3-00. p.m. But the mashir has testified that he was arrested at 12-00 noon. Since the mashir was giving evidence after 11 years of the incident, while the S. H. O. Was giving evidence on the basis of the record and his diary, we are inclined to accept the evidence of the S. H. O. As to the time of the arrest of the appellant. In any case, we consider that nothing turns on the point whether he was arrested at 12-00 noon or at 3-00 p.m. The important point is that on the very next day, at 11-30 a.m., be was produced before Mr. Mohammad Azam who was then working as Resident Magistrate, Larkana, and who recorded his confession the same day at 2-30 p.m., after giving him time for reflection from 11-30 a.m. The learned Magistrate, who has been examined has stated that he had recorded the confession after observing all formalities and giving due warning to the appellant that he was not bound to make a confession.
As the confession forms the most important piece of evidence against the appellant, we consider it appropriate to set down the material part of it in extenso. It reads as follows :------ "I knew deceased Mst. Karimat as she belonged to our neighbourhood and she used to give lessons of Holy Quran in the neighbourhood. She used to visit our house. I reside in my house alone Mst.
Karimat had ear-rings in her ears and rings in her hangs. I was tempted. On 20-11-1974 in the evening at about 4-00 p.m. I was standing outside my house when Mst. Karimat passed from there.
I told her that my mother was calling her inside her house, who then entered my house inside. On coming inside she asked me as to where was mother, I told her that she is ill and sleeping inside the room. As we reached the door of the room, I took up 'danda' and gave her three blows on her head and she fell down. Then I removed her 'Dupata' and put in on her neck and strangulated her, who died subsequently. Then I removed 18 golden ear-rings from her ears, three rings from her bands as I had worked as goldsmith. Then I kept the dead body of the deceased in a 'Rilhi'. Then I made a breach in the southern wall of my house from the window adjacent to the house of Abbasi which is lying abandoned since last 10-12 years, where I tried to bury the dead body after digging the earth but I could not dare to do it and therefore I kept the dead body in my house. I locked my house from outside and went away. Then I kept consider--ing as to how the dead body should be disposed of. Then on 22-11-1974 at 3-00 a.m. I put the dead body in a gunny bag and took it on my shoulder, came out and threw the dead body outside the house of Ghous Bux Awan in the drain, in the street and returned to my house. I bad white trouser, blue shirt on my body which were stained with, blood. The 'danda' and the 'Dupata' of the deceased were also stained with blood, which were kept in my house. I had melted the golden ornaments of the deceased and after cleaning the gold I have sold it to Haji Atta Mohammad goldsmith. The total selling price of all the ornaments was Rs.
2,138 which I had taken from Atta Mohammad. Then my blood stained cloth, blood-stained 'danda' and 'Dupata' of the deceased and the dagger with which I caused the breach, were all put by me in a 'Bachka' (small gunny bag). I have given all these facts to the police also. I have spent the entire money in taking wine etc. On 22-11-1974 in the evening when I was going in Lahori Mohalla, the police made enquiry from me regarding the above incident. I admitted it. I give this statement with my on accord."
10. We are satisfied and agree with the learned Additional Sessions Judge that the confession is true and voluntary. No doubt, the appellant has resiled from his confession but on that account alone the confession cannot be discarded. We have carefully examined the confession and find that there is overwhelming corroboration thereto. The assertion made in the confession that Mst.
Karimat Khatoon used to give lessons of Holy Qur'an in the neighbourhood and was in the habit of wearing ear-rings in her ears and rings in her hand a corroborated by first informant Rasool Bux.
The further fact that she had left her house at about 4-00 p.m. And thereafter was not seen alive is corroborated both by Moulabux and to some extent by another nephew of hers Mohammad Aslam. The part of the confession relating to the giving of Wanda' blows to the deceased on the head and subsequently strangulating her is corroborated by the medical evidence which is to the effect that there were not only lacerated wounds on her head but also ligature mark round her neck. The statement in the confession that her gold ear--rings and her rings were removed finds support from the fact that when the body was discovered these ornaments were found missing.
The statement made in the confession regarding the breach being made in the wall adjoining the house of the appellant and the digging of a trench or ditch therein is corroborated by the S. H. O.
And Mashir Ghulam Rasool who found the broach and the freshly dug ditch or trench. The recovery of the body outside the house of Ghousbux on the early morning of 22-11-1974 is corroborated by P.
Ws. Moulabux and Aslam, who had gone out in search of their elderly aunt, as also the fact that the body was found in a gunny bag. The admission made in the confession that the appellant's clothes had got blood-stained as also the 'danda' with which the deceased was struck down arid the 'dupata' of the deceased, which was used in strangulation, is corroborated by the report of the Chemical Examiner which shows that the clothes of the appellant and the 'danda' were stained with blood of human origin. Human blood was also found, according to the Chemical Examiner's report, on the other shalwar of the appellant which, according to the confession, was used in wiping the blood which had flowed on the ground when the deceased was struck down.
Corroboration to the assertion made in the confession regarding the melting of the gold ornaments and their sale to Goldsmith Haji Atta Mohammad for Rs. 2,138 is provided by the testimony of the said Haji Atta Mohammad. The statement in the confession that the blood-stained articles were all put in a 'Bachka' (sma ll gunny bag) finds I support from the testimony of S. H. O.
Shafi Mohammad and mashir 8hularn Rasool who recovered these articles from the locked house of the appellant, which was opened by the appellant himself with a key possessed by him. Finally, the confession is corroborated as to the date of the arrest of the appellant by the S. H. O. And mashir Ghulam Rasool
11. Mr. Niazi A. Khalique, the learned counsel for the appellant, has submitted a number of objections to the acceptance of the prosecution evidence against the appellant and contended that it is untrustworthy and that in any case there are many missing links in the chain which make belief in the guilt of the appellant extremely doubtful. His first objection was that there was no evidences of the commission of the offence of murder except the confession itself. This submission, in our opinion, has no substance. The medical evidence shown that the deceased was given a number of blows on the head wits; a hard and blunt substance and was also strangulate in consequence of which she died. This evidence coupled with the confession, which we have held to be true and voluntary, establishes beyond reasonable doubt that the deceased was in fact murdered. It was next submitted by the learned counsel for the appellant that the confession was not legal and furthermore was not voluntary. The learned counsel, however, was unable to show us how it was not legal. The only flaw to the recording of the confession to which be was able to point out was that the learned Magistrate in one part of the confession has recorded that the accused was produced before him at 9-00 a.m. On 23-11-1974, when in another part of the confession, the learned Magistrate has recorded that the accused was produced before him at 11-30 a.m. The learned counsel from this wanted us to infer that the appellant was in fact given no time for reflection and the Magistrate simply reproduced the statement which had already been prepared by the police. We find no substance in this contention. It appears to us that the learned Magistrate has inadvertently recorded in one part of the confession that the accused was produced before him at 9-00 a.m., but later on he has corrected himself and throughout recorded that he was produced before him at 11-30 a.m. The fact that the appellant was produced before him at 11-30 a.m. Is supported by the fact that the learned Magistrate gave him time for reflection from 11-30 a.m. To 2-30 p.m. If the appellant had been produced before the learned Magistrate at 9-00 a.m., he would have been given time for reflection from 9-00 a.m. Not from 11-30 am. In any case, we consider that nothing turns on the fact whether he was produced in the Court of the learned Magistrate at 9-00 am. Or 11-30 a.m. We have already dealt at some length with the confession and have shown that it is true and is materially corroborated by substantial evidence. The learned counsel then submitted that the appellant was forced to give this confession because of police pressure and the police bad sent for his relatives, including ladies. Apart from the fact that this allegation is stoutly denied by S. H. O. Ghulam Mohammad there is not a particle of evidence, except the bare word of the appellant, in support of it. Even the relatives who are said to have been sent for and threatened were not examined by the appellant in his defence. We, accordingly, are of the view that this allegation is entirely without substance.
12. It was submitted by the learned counsel for the appellant that though the case of the prosecution is that the house of the appellant was locked and that the appellant bad opened the lock with a key which he had on his person, neither the lock nor the key have been produced. We do not consider that the production of the lock and key was necessary. The S. H. O. And Mashir Ghulam Rasool have testified to the appellant having opened his house with a key. Even if a lock and the key had been produced by the prosecution, that would not have strengthened the case against the appellant, for it could have been urged by the defence that the lock and key were fur--nished by the police and this was not the lock on the house of the appellant.
13. It was next submitted by the learned counsel for the appellant that there was conflict between the confession and the medical evidence as to the time of the death of Mst. Karimat Khatoon. The learned counsel pointed out that whereas according to the confession Ma. Karimat Khatoon was murdered at about 4-00 p.m. On 20-11-1974, shortly after she had been enticed into the house of the appellant by misrepresentations, according to the Medical Officer, her death had occurred.
Some 20 hours prior to the post-- mortem examination, which was conducted on 22-11-1974. At about 11-15 a.m , thus placing the murder of the deceased at about 3.00 p.m. On 21-11-74. No doubt, there is a discrepancy between the two pieces of evidence as to the time of Mst. Karimat Khatoon but we are inclined to think that the time of her death as given in the confession of the appellant is nearer the truth. It is well known that estimation of the time of death by post-mortem examination is only approximately correct. Even such an important factor for estimation of the time of death as rigor mortis is a very uncertain guide for determining the time of death, for numerous factors can either advance, retard or delay the setting of rigor mortis and its passing off. In the case of Allah Bux v. State (1968 SCMR 672) the prosecution case was that the occurrence had taken place at 9- 00 a.m. Whilst the post-mortem examination revealed the stomach to be empty. From this it was sought to be urged that the medical evidence was at variance with the ocular testimony as to the time of death. This contention was repelled by the Supreme Court on the ground that nothing turned on the mere statement that the deceased's stomach was found to be empty at the time of the autopsy, since it was not known when he had taken his last meal. In the case of Ibrahim v. State (1969 SCMR 773), the Supreme Court observed that the time required for digestion of food may vary in certain circumstances. It may be pointed out that in the instant case the Medical Officer has not indicated on what basis he has estimated the time of the death of the deceased. He has not even cared to mention either in his evidence or in the post-mortem notes whether rigor mortis had set in, and if so, when, and whether it had passed or was still present in any part of the body. All that he has stated is that there was bleeding from nose and mouth of the deceased. Post-mortem bleeding is the result of the contraction of the arteries and the stoppage of the pumping action of the heart, resulting in the oozing of blood from the damaged muscle or vein. However, from mere post-mortem bleeding, it is not possible to estimate the probable time of death with any degree of accuracy because different factors may retard or hasten the process of coagulation of the blood, as stated in Taylor's Medical Jurisprudence, Volume I (Seventh Edition). Similarly, the process of putrefication can also be considerable delayed because of different factors, including the temperature. Thus, the time of death based on post-mortem examination, when rigor mortis is not present and there are no signs of putrefication, can only be very approximate. In the circumstances, we are not inclined to give any great weight to the opinion of the Medical Officer as to his estimate of the time when the deceased died and are of the view that it is much more probable that the deceased died on 20-11-1974, shortly after 4-00 a.m. As stated by the appellant in his confession.
14. Next the learned counsel for the appellant assailed the evidence of Goldsmith Haji Atta Mohammad who has testified that the appellant had sold him gold for which he had paid the appellant a sum of Rs. 2,138. The learned counsel for the appellant submitted that firstly there was no evidence that the appellant was a goldsmith, and secondly, even if he was a goldsmith, in the absence of apparatus for melting gold, he could not convert ornaments into gold and sell the same to Haji Atta Mohammad. As to the first point. Haji Atta Mohammad has stated that he knew the appellant since 5 or 6 years prior to the incident as he used to work with other goldsmiths in the vicinity of his shop. Since the witness was the General Secretary of the Goldsmiths Association, it was but natural for him to know all persons doing the work of a goldsmith. It may also be stated that both before the committal Court as well as in the Session Court, the appellant has given his profession as that of a goldsmith. In regard, however, to the melting of the ornaments into gold by the appellant, there is of course only the assertion of the appellant to that effect in his confession, since there is no evidence that any apparatus for melting gold was found in the house of the appellant. However, even if the evidence on this point is excluded, there is sufficient other evidence to corroborate the judicial confession.
15. It was finally contended by the learned counsel for the appellant that inasmuch as there was no direct evidence of the commission of the offence of murder by the appellant, the offence established against him at best would be one under section 201, P. P. C. Support for this contention was sought to be obtained by him from the decision of the Lahore High Court in Izharul Haque v.
Sate (PLD 1972 Lah. 349). The facts of that case, however, were totally different from those of the present case. In that case there was no direct evidence of murder and the main evidence against the accused was that he had put to flames the house in which a human body was discovered burning. In the instant case, as already pointed out, there is detailed judicial confession of the appellant, admitting that he had killed the deceased by giving her 'danda' blow and strangulating her, the discovery of the 'danda and other incriminating articles, the medical evidence showing that the deceased died of the 'danda' blows and strangulation and finally evidence of the appellant being seen carrying and then dupping the gunny bag containing the dead body in the street.
16. For the foregoing reasons we are of opinion that the prosecution have fully established the guilt of the appellant, both on the charge of murder as well as under section 404, P. P. C. We accordingly uphold his conviction on both the counts. There are no mitigating circumstances in the case. The appellant has murdered an innocent old woman merely for the sake of her ornaments and the money obtained by him by his foul action w squandered away by him on wine, as stated by him in his confession to the circumstances, we consider that the death sentence awarded to him is proper and we hereby confirm the same. His appeal stands dismissed.