NINDO MACHI Versus THE STATE

TUFAIL ALI A. REHMAN, C. J. ‑The appellant Nindo, his wife, the .deceased Mst. Muradi, and others who are related t4 him including the two .eye‑witnesses Shafi Mohammad and Abdullah accused used to reside and work as harris on the Kachelo Farm in Taluka Jamesabad. While they lived ‑there however the deceased contracted illicit intimacy with one Wali Mohammad, a caste‑fellow of the appellant, who also was living with him and indeed about eight or nine months before the present incident she eloped with this Wali Mohammad. A month after the elopement however she was restored back to the appellant through a faisla which was arrived at, presumably through the intervention of some other persons. Nevertheless feeling a sense of shame on account of the incident the appellant and his relations left the Kachelo farm and came to the village of Haji Moso in Taluka Samaro in the same district that is the district of Tharparkar. This village is also described as the village of Mohammad Umar who is the son of Haji Moso and who himself is a witness in this case.

2. The prosecution case is that at about mid‑night on the night between the 4th and the 5th May 1972 the appellant came to his cousin, prosecution witness Shafi Mohammad, and reported to him that his wife Mst. Muradi was missing from the house. On this account Shafi Mohammad, the .appellant himself and some others of their relations went in search of Mst. Muradi and continued search for her till the next morning but they ‑were quite unable to find her. The party then separated and, while the ‑appellant and Shafi Mohammad went on towards Jamesabad, the others returned to the village. In the evening, that is to say the evening of the 5th, these two also returned to the village and had to tell their .:relations that they were unable to trace Mst. Muradi. At the village however they came to know that Mst. Muradi had in fact in the meantime been found as she was concealing herself on a tree in the garden of the zamindar Umer whose name is borne by the village as I have already stated. The appellant was informed that the woman had been brought back to his house and he therefore went there, while Shafi Mohammad went to the house of Abdullah, another cousin of the appellant, and the two sat together in the courtyard of that house. The case of the prosecution then, is though the evidence given in the Sessions Court does not support it that the appellant reaching his house and seeing his wife abused her and gave her a hatchet blow on the head. The others tried to intervene and to save the woman but he felled her on the ground and gave her a number of kicks and fist blows but eventually they succeeded in preventing the appellant from hurting her further. If the story be true however he had already hurt her enough because these injuries have resulted in her death. Whether the witnesses thought that the incident was not serious or they thought that the appellant was, in some measure, justified ,in being angry with his wife and even chastising her, the fact remains that they all left for their own houses and nothing appears to have been done then 'by way of reporting the matter to the police or even to their own zamindar. In the morning however while Shafi Mohammad, Abdullah and others were working in their field one Mst. Fatima, apparently their relation who has not been examined as a witness in the trial, came to them and and told them that she had been to the house of the appellant and had found the wife of the appellant, Mst. Muradi, lying dead. Upon this all of them went to the house and verified the fact that Mst. Muradi was indeed dead and there after Shafi Mohammad went to Wadero Mohammad Umer and upon his .advice went to Police Station Kunri where his first information report was recorded at 1 p.m. on the 6th May 1972. The distance of the police station from the scene of offence is, according to the entry in the first information report seven miles but according to the evidence of prosecution witness Haji Khan who was the S. H. O. of the police station, ten miles and I think that the latter figure is more likely in the circumstances of the case to be correct.

3. This Haji Khan after recording the first information report accompanied the first informant, namely Shall Mohammad, to the scene where he carried out an investigation and two matters only in this investigation are important enough to need recital at this stage. The first is that the appellant being arrested was found to wear a blood‑stained shirt and a towel used as a loin cloth and that both these articles were secured by the police ; a hatchet was also produced by him but this was quite clearly not blood‑stained and, although it was secured by the police was not sent for chemical examination. The clothes however having been sent for chemical examination have been found to bear stains of human blood. The arrest having taken place on the 6th of May 1972 at 6 p.m., the appellant was sent to the Civil Judge and First Class Magistrate, Jamesabad at 10 a.m. on the 8th May 1972 and there his confession was recorded. In due course the appellant was sent to a Court and was eventually tried by the learned Sessions Judge, Tharparkar who has convicted of an offence under section 302, Pakistan Penal Code and has sentenced him to undergo imprisonment for life and to pay a fine of Rs. 1,000 or in default of payment of fine to undergo a rigorous imprisonment for one year more. Against this conviction and sentence the appellant has appealed.

4. The case of the prosecution rested upon the evidence of the two eye witnesses, Shafi Mohammad and Abdullah, the corroboratory evidence of Mohammad Umer, the evidence as to the recovery of the blood‑stained clothes and finally the Judicial confession of the appellant himself. Now the eye‑witnesses Shafi Mohammad and Abdullah completely failed to support the prosecution case in the Court of Sessions, resiling entirely from their previous depositions and statements. No doubt they were his close relations each of them being a cousin and therefore, even if the case against the appellant be a true one, this is quite understandable. Their statements recorded in the Court of committal Magistrate were brought up on the record under section 288 of the Criminal Procedure Code, and of course, in law these can be regarded as substantive evidence. It does not follow however that it is to be taken for granted that where witnesses who are friendly to the appellant give a version of the case favourable to the appellant, even if it is contradictory to their previous evidence, then their, present evidence must necessarily be rejected. It is the duty of the Court to examine both the statements and to take into consideration all the attendant circumstances A before coming to that conclusion and if as a result of such examination, there is still a doubt about the matter, the benefit of that doubt must go to the appellant. A conclusion that the witnesses are obliging witnesses on account of their relationship must not be reached without taking all these matters into account and certainly not as a facile assumption. In this case, however, I have examined the evidence with care and have come to the conclusion that the learned Sessions Judge who tried the case rightly held that their previous evidence was worthy of belief and that the subsequent evidence was the result of a natural desire to save their own close relation from the consequences of his own act.

5. Now the version of the case as put forward in the first information report the evidence of the two witnesses in the committal Court as I have already stated was namely that there had been an elopement of the lady with, one Wali Mohammad several months ago and that she had been restored to the appellant thereafter. After this elopement the family had shifted and once again the lady was found to have disappeared from the house ; it does not follow of course that she had eloped with Wali Mohammad but it would: surely not be unreasonable to think that her husband and her relations could not have regarded her absence from the house as being innocent. Their search for the woman failed and when they came back they found that she had been found in the garden of their Zamindar and had been brought back to the house. The version given by the witnesses at the Sessions Court however was somewhat strange. The witness Shafi Mohammad stated that when he and the appellant together with Abdullah, he himself and the appellant went in fact to the house of Abdullah but that the latter was not then present in his house and it is in the house of Abdullah that the two were informed by Mst. Sharifan, who is the daughter of appellant, and his wife Mst. Muradi, that Muradi had been brought to the house of the appellant by the Wadero Umer, where Abdullah had gone in the meantime we are not informed, but in any case, it is the appellant who went alone to the house and it is stated that Mst. Sharifan clung to her father and said "her mother was.. not speaking". This somewhat cryptic information gives us no clue as‑ to whether the failure of Mst. Muradi was due to any injury or because she was unwilling to speak. The witness then says that when he heard Mst. Sharifan saying this he also accompanied the appellant to the house though the appellant went a little ahead of him. In the house the witness saw the lady unconscious and the appellant standing near her and, on the questioning of the witness the appellant denied that he was annoyed with her but since she had disgraced him, he asked the witness to "samjhao" the lady. Shafi Mohammad, Abdullah and the appellant then went to Umer who was told of these facts. and, according to himself, it would seem that Umer was of the opinion that the woman was merely pretending. Everybody thereafter returned to their own house as if nothing very serious had happened. It is only in the morning that Fatima came and informed the witnesses that in the meantime Mst. Muradi had died. The evidence of Abdullah is substantially to the same effect.

6. Now in the case of both of these witnesses not only was there testimony, before the committing Magistrate which has been subjected to cross- examination but in each case there was also an earlier statement which could be made some basis of the test to see which of the versions was true. In the case of Shafi Mohammad there was a first information report and in the case of Abdullah there was previously recorded statement under section 164 of the Criminal Procedure Code. But, quite apart from testing the two depositions in the Court by referring to the previous statement, there are several matters. in the Sessions Court's deposition 'themselves which would tend to show that it was in the lower Court that they gave a truthful account rather than that in the Sessions Court. In the first place their allegation is that the previous statements bad been given at the instance of the zamindar Umer, but beyond the vaguest of allegations against this Umer, no reason is really assigned why Umer should take such an interest in implicating an innocent person. In the Sessions Court the witnesses admitted to the previous elopement with Wali Mohammad as also to the disappearance of the woman and their search for her. The presence of the lady in the house of her husband, the appellant, between the time that she was recovered and died is admitted. In the committal Court's evidence they gave the story that quite apart from the blow with a hatchet the appellant also gave kicks and fist blows to Mst. Muradi, a fact which is borne out by the medical evidence. All the circumstances of the case therefore make the committal Court far more probable and I therefore think that the learned Sessions Judge was quite right in accepting that version in preference to what they said in the Sessions Court, the motive for weakening the case against the appellant being obvious.

7. There is then the corroboratory evidence of the witness Umer and this only as to the fact that the disappearance of the woman was reported to him and while the search party was engaged in attempting to locate the woman she was found in his own garden. Whether she had left the house merely because of the fear of her husband or she had an assignation with her lover who failed to turn up we do not know and I do not think that it matters. The fact remains that she was found and was taken back by him to ‑the house of the appellant.

8. The murder took place undoubtedly in the house of the appellant and it is no body's case, not even the appellants, that he was not in his house at the time when the murder took place, and this by itself is a circumstance gravely incriminating against the appellant.

9. The case against the appellant :3 further strengthened by the recovery of the blood‑stained clothes which he was wearing and upon this we have the evidence of the police officer and the mashir named Bhoro Khan. Nothing has been brought out in the cross‑examination of either of these witnesses which would justify any doubt as to their credibility and I would therefore accept there evidence.

10. Finally there is the judicial confession against the appellant. In view of the fact that the appellant was arrested upon the 6th of May 1972 at 6 p.m. and the confession was recorded on the 8th May 1972 at 10 a.m. there is not at least such a delay as would suggest that the confession should be regarded as involuntary on that account. The appellant's own case was that it had been induced by police pressure and that with the influence of Mohammad Umer. I fail to see at all what interest Mohammad Umer could have had in using any influence that he might have in this direction. It is true, that there are admissions made by Shafi Mohammad and Abdullah as to coercion by the police but, in the light of what I have already said about the evidence of these two witnesses, I cannot regard their evidence on this point as worthy of serious consideration.

11. There is therefore no doubt in my mind that the person who was responsible for the killing of Mst. Muradi was the appellant himself and the only real question to be examined, I think is whether the case comes under section 302 or, by reason of the application of Exception 1 to section 300 of the Pakistan Penal Code, under section 304. The learned Assistant Advocate‑General argued that if this was a case where the conviction was s being based upon the confession alone then of course the confession must be accepted as a whole or rejected as a whole but that there being other evidence the confession need not to be accepted in full. Stated as a pure proposition of law I am in entire agreement with the learned Assistant Advocate‑General. The present of course was not a case in which the conviction was based upon the confession alone but it does not follow that merely because the confession contains some exculpatory part or at any rate matter which would reduce the offence to less grave than is alleged by the prosecution, the Court must necessarily reject that part of the confession. The body of the confession reads thus:

"I was living in the Kachhelo alongwith my wife. Wali Mohammad was living also in Kachhelo. My wife developed illicit intimacy with Wali Mohammad and eloped with him. Sheroo Punjabi brought my wife back to Kachhelo. Thereafter I left Kachhelo and started residing in Karchelo along with my wife Mst. Muradr and became hari of Mohammad Umar Jonejo. Five or six days back, my wife Mst. Muradi ran away from the house. We searched Mst. Muradi. She kept concealed on the tree in the garden of my Zamindar Mohammad Umar. My Zamindar Mohammad Umar was bringing Mst. Muradi to my house and hand over to my uncle Aleem son of Ramzan. My uncle took Mst. Muradi and came in my house. My uncle told me that my Zamindar had restored Mst. Muradi and had left in the house. I reached in the house at about 4‑00 p.m. where my wife was present. I was provoked on seeing my wife and gave a handle side hatchet blow to Muradi and punished her with kicks and fist blows. During the quarrel Abdullah and my daughter Sharifan intervened and got released Muradi. It was learnt in the morning that Muradi died."

It will be noticed that the appellant does allege grave and sudden provocation It is therefore somewhat surprising to find that the learned Judge dealt with the question in this language :‑

"26. It might have been alleged, though it has not been done so, that the accused acted in sudden and grave provocation and his act does not amount to murder. In my opinion, the provision of Exception to section 3C0, P. P. C. is also not attracted in the case of the accused. At no stage the defence even suggested such a case. It was incumbent upon the defence to have shown distinctly not only that the act of the accused was done under the influence of strong feeling which took away from him all control over his actions but also that such feeling had an adequate cause. The mere disappearance of the lady from the house cannot be construed to have given rise to grave and sudden provocation for the accused who did not fully know the reason for her disappearance."

I do not think that the learned Judge is entirely accurate in his summarising of the law on the point or even of the facts. It is not correct to say that it is incumbent upon the defence to show distinctly not only that the act of the accused was done under the influence of strong feeling which took away from him all control over his actions but also that such feelings had an adequate cause. The learned Judge does not say so in express language but clearly this means that the onus is entirely upon the accused. The correct position is that the onus upon the accused is in the sense that if there be no evidence upon the point the presumption is in favour of the prosecution and that the prosecution is not bound to establish negatively that there were no such circumstances as would attract the exception. Where however there is some evidence that such could have been the case then the Court must consider that evidence and if there is any reasonable doubt upon the matter then the benedt of that doubt, must go to the appellant. It is also wrong factually to state that "at no' stage the defence even suggested such a case". It is true that the defence did not suggest this in the course of the trial but a perusal of the confession which I have reproduced shows that it was suggested in that document.

12. Now there is no evidence on the record which contradicts this. So far as the evidence in the Sessions Court is concerned it exonerates the appellant completely and if the evidence before the Magistrate is to be preferred, as I think it is to be preferred, there is nothing in that evidence which shows that this allegation of the appellant made in the confession was false. Indeed the circumstances are such as would seem to lend support to what the appellant has said. It is true that the appellant did not come upon his wife sitting with her lover but that is not a requirement of Exception 1 to section 300. That exception comes into play when the offender "whilst deprived of the power of self‑control by grave and sudden provocation" causes the death of person etc. Here was a case of a person whose wife hid eloped before and who had suddenly disappeared ; he had gone in search of her and had spent some 18 hours trying to find her and comes back home to find her sitting in his house and I cannot but believe that the sight of hey ',g sitting like that must have caused him provocation which was both grave and sudden. In the class of society to which the appellant certainly belongs such a sight is one which is extremely likely to result in loss of self‑control. I am therefore of the opinion that Exception 1 to section 300 applies and that the offence committed by the appellant is one punishable under section 304, Part I of the Pakistan Penal Code.

13. The next question that requires consideration is one of sentence. Unlike the case of murder in most offences, including the offence under section 304, the Legislature has prescribed only a maximum and not a minimum of punishment and the inference, I think, quite legitimately to be drawn from this is that the Court must consider all the factors which are relevant to assessing the quantum of punishment and give what it considers an adequate sentence. This case is certainly not to be compared with one of those where a person comes upon his wife and her lover in very act of intercourse without any previous suspicion. On the other hand it is not a case of a fanciful suspicion. The woman had eloped before and this time she had run away from the house without any explanation whatever and the appellant had therefore good reason to believe that this time too she had left for no very laudable reason. In all the circumstances of the case I think a sentence of five years' rigorous imprisonment should be correct.

14. Before concluding this judgment however I should like to point out that, if the learned Judge thought, as he clearly did, that the offence of the appellant fell under section 302, Pakistan Penal Code, then I do not understand at all why he gave a sentence only of imprisonment and did not sentence the appellant to death. In the passage in which he determined the sentence hardly any reason is given as he states :‑

"The upshot of the above discussion is that I hold that the prosecution have brought home to the accused the guilt of the offence with which be is charged, beyond reasonable and probable doubt. I accordingly convict accused Nindo under section 302, P. P. C. for intentionally causing the death of Mst. Muradi and I sentence him to undergo imprisonment for life and a fine of Rs. 1,000 (Rupees one thousand) or in default to undergo R. 1. for one year more."

I cannot help. feeling that the learned Judge bas given him the benefit of a doubt which should have prevailed in reducing the conviction to one under' section 304 and the sentence under section 302, Pakistan Penal Code. It must be clearly understood that the benefit of any doubt must be reflected in the conviction or the acquittal of the accused of the offence under which he is convicted and not in the sentence which must be awarded upon the basis of the offence of which he has been convicted.

15. I would therefore alter the conviction of the appellant to one under section 304, Pakistan Penal Code and reduce the sentence imposed upon him to one of rigorous imprisonment for five years.

ABDUL HAFEEZ MEMON, J.‑I agree.

S. A. H. Conviction altered. Sentence reduced.