K. M. A. Samadani and Abdul Shakurul Salam Versus THE STATE

ABDUL SHAKURUL SALAM J .-Ghulam Rasul appellant has filed Criminal Appeal No. 71 of 1975/BWP against his conviction under section 302, Pakistan Penal Code on two counts and sentence of death, as well as- fine of Rs. 4.000 on each count, in case of default, further four years rigorous imprisonment awarded to him by the learned Sessions Judge, Bahawalpur vide order dated 6-2-1975. Hid case is also before us for confirmation of sentence of death bearing Murder Reference No. 23 of 2975/B WP. The order will dispose of both the matters.

2. According to the prosecution case as stated by Muhammad Yousuf in this F. I. R. lodged on 20-6-1975 at 9 a. m. Ghulam Rasul appellant had complained to him about 8/i0 days earlier that his son Abdul Ghani aged 18 years had teased his (appellant's) wife although that was wrong. On tile previous night, his two sons Abdul Ghana aged 18 years and Khalid Mahmood aged 12/13 years were sleeping in the Behk. He and his brothers Akbar Ali Bashir Ahmed and Latif were also sleeping in the Behk to look after their cattle s nearby. At midnight, he heard a thud and then a shriek. It was moonlit night. He saw that Ghulam Rasul appellant was killing Abdul Ghani with iron kassi, and, the injured his younger sort Khalid Mahmood with three or four kassi blows. On the noise, his three brothers Akbar Ali, Bashir Ahmad, Abdul Latif and one Muhammad Nawaz who teas sleeping nearby on his Behk woke up- and saw the occurrence. Effort was made, to catch. Ghulam Rasul (appellant) but the latter rata away with the Kassi. They saw that both the sons, Abdul Ghani and Khalid Mahmood, who were on their charpais at a distance of one yard from cane another, were injured with the kassi and had died. Ghulam Rasul (appellant) had murdered his two soars on account of the suspicion of teasing of his wife. After recording the report, Ghulam Qadir S, I. (P. W. 10) reached the place of occurrence and took into possession blood-stained earth from two places under the cots whereon the deceased were lying and made it into sealed parcels vide memo. Exhs. P. B. and P. C. He also took into possession two pairs of shoes of the two deceased vide memo Exh. P. D. He arrested Ghulam Rasul appellant, and got recovered blood-stained chadar (P. 3.) from the house of the appel lant vide memo. Exh. P. E. and also blood-stained kassi (P. 4) from a sugar cane field vide memo Exh. P. F. Both these were found to be stained with blood by the Chemical Examiner vide his report Exh. P. T.

3. The post-mortem examination of Abdul Ghani (deceased) was conduc ted by Dr. Muhammad Ali, who appeared as P. W. 1 and stated that the deceased had suffered the following injuries

"(1) A cut wound 6' x 1'on the front of neck cutting all the soft struc tures underneath, in transverse direction.

(2) A cut wound 3 x 1" x 1 on the right side of neck downward and backward cutting the soft structures of neck.

(3) A out wound 2 x x " on the left side of the front of neck in transverse direction.

(4) A out: wound 6" x 1 x 2' en the lower part of front of neck cutting the soft structure, windpipe, food pipe and the sixth cervicle vertebrae.

(5) A cut wound 5' x 1 x 2' on the back of lower part of neck in trans verse directions, cutting the back bone (7th cervicle).

(6) An oblique out 3' x 1' x on the back of upper part of neck in downward direction and to the left side."

He further deposed that

"The verteba cut have already been described. The spinal cord had a cut on it in the depth of injury No. 5. The stomach had about 4 ounces of digested food. The bladder was full of clear urine. Ali organs of the body were healthy. Cause of death in the opinion of the doctor was shock and haemorrhage due to cutting of main blood vessels in the neck injuries and cut on spinal cord. All injuries were of ante-mortem and caused by sharp-edged weapon. Injuries Nos. 1 to 6 were sufficient to cause death in the ordinary course of nature. It was an instantaneous death after the receipt of injuries. The post mortem examination was performed within 36 hours of the death."

4. He also conducted the post-mortem examination of Khalid Mahmood (deceased) aged about 13/14 years and stated that the deceased suffered the following injuries

(1) A gapping cut wound 5' x 2 x 2' on the front of neck in transverse directions, cutting all the soft structures of the neck and blood vessels.

(2) A cut wound 1 ' x ' x ' on the right side of neck transverse in direction.

(3) A cut wound 2 x 1 x 1 on the right side of upper part of nook in backward direction.

(4) A. cut x 1/4' x 1/6" on the front of right shoulder in transverse direction.

He, further, deposed teat

On internal examination it was found that the stomach had about 8 ounces of digested food. The bladder was full of clear urine. All organs of the body were healthy. Cause of death in the opinion of the doctor was shook and haemorrhage by cutting of blood vessels of the neck in injury No. 1 caused by a sharp-edged weapon. All the injuries were ante-mortem and caused by sharp-edged weapon. Injury No. 1 was sufficient to cause death in the ordinary course of nature. It was an instantaneous death after the receipt of injuries.

5. On 24-7-1975. Ghulam Qadir S. I. (P. W. 10) made an application (Exh. P. J) to a Magistrate for recording confessional statement of the appellant which was recorded by Mian Atta Mohammad Zafar, Magistrate First Class (P. W. 2) the same day vide Exh. P. K. After investigation, the appellant was challaned.

6. At the trial Muhammad Yousuf (P. W. 6), Muhammad Nawaz (P. W. 7) and Bashir Ahmad (P. W. 8) appeared to support the prosecution. The appellant had stated before the committing Magistrate, that the state ment made by him before the Magistrate on 24-7-1975 was "under the pressure of the Police" and that "the real facts of the case are that I saw Abdul Ghani deceased with my wife in compromising position white Khalid Mahmood deceased was taking care of their safety, I injured Abdul Ghani and Khalid Mahmood out of a sense of honour wish a kassi picked up from the spot and they died afterwards. I ran to kill any wife also bat she succeeded in running away. The karat was left on the spot." At the trial before the learned Sessions Judge, he stated that his statement before the committing Magistrate was correct but the judicial confession earlier recorded was "due to the coercion of the police". Ha also stated that "my wife was sitting in the veranda of my house. Abdul Ghani became naked at the top of the house and Khalid Mahmud was making indecent gestures to her. I was offering the Maghrab prayer at my house when this happened. At abort midnight I found that my wife was not on her bed. I went in search of her. I found my wife sleeping in the cot of Abdul Ghani. Khalid Mahmud was also sitting there keeping a guard. I was provoked and last my self-control. I picked up a kassi from that field and gave the attack on the neck of Abdul Ghani. Khalid Mahmud grappled with me I also attacked Khalid Mahmood. In the meantime my wife ran away. I also went in search of her but she was not available. None of my uncles or anybody else was present near the place of occurrence". Learned Sessions Judge relying on the eye-witnesses account as corroborated by the medical evidence as well as the judicial confession of the appellant found him guilty and sentenced him as stated above.

7. Learned counsel appearing for the appellant has contended that the judicial confession recorded on 24-7-1975 in which the appellant is said to have admitted the crime cannot be used against him for the reasons that the appellant was produced by Ghulam Qadir S. I, (P. W. 10) before the learned Magistrate and, soon after the recording of the statement, he was handed over back to the same police officer. The appellant had made the statement under coercion and, therefore the same was not voluntary. The fact that the appellant was in the judicial lock-up during the period is of no consequence because the judicial lock-up was situated within the premises of the police station itself whose Incharge was Ghulam Qadir S. I. (P. W. 10). It is next contended that two of the eye-witness namely Mohammad Yousuf (P. W. 6) and Bashir Ahmad (P. W. 8) are respectively tile father and the uncle of the deceased and are, therefore, interested. Muhammad Nawaz (P. W. 7) the third eye-witness was not present on the place of occurrence. It is further contended teat the eye-witnesses if present would not have allowed, without intervention, the appellant to kill the deceased and after the other and would have in stay case, caught the appellant before the latter could run away. It is also submitted that the statement of Muhammad Nawaz (P. W. 7) and Bashir Ahmad (P. W. 8) were got recorded under section 164 of the Code of Criminal Procedure so as to bind them to support the prosecution case, otherwise, there was no way of sating that they would have supported the prosecution case at the trial. It is then, contended that the account given by the eye-witnesses of the route the appellant took to run away could not be nave been taken by him because chat lay on the way of the eye-witnesses who allegedly came to the spot. It is, lastly, contended that the appellant has acted under the grave and sudden provocation as tae deceased had teased the appellant wife and on the day of occurrence his wife was sleeping on the cot of Abdul Ghani (deceased) and Khalid Mahmud (deceased) was also sitting there keeping a guard.

8. Taking the first contention of the learned counsel for the appellant that the judicial confession Exh. P. K. cannot be used against the appellant, It is to be noticed that Ghulam Qadir S. I, (P. W 10) had stated in leis application dated 24-7-19-5 for getting the confession recorded that the appellant had expressed his desire to mike a confessional state neat before a Court at the time of his arrest viz. 20-7-1475, bat he could not get the statement recorded as the appellant was sent to the Judicial lock-up and he himself remained busy with this and other cases. During the period the appellant remained in the judicial lock-up, the judicial lock-up was situated within the premises of the police station whose Incharge was Ghulam Qadir S. I. (P. W. 10). Mian Atta Muhammad Zafar Magistrate (P. W. 2) who recorded the confessional statement Paid that the appellant was produced before him by Ghulam Qadir S. I. He gave hire two hours to think over. In cross-examination, he said that, after recording the statement, the appellant was returned to the same officer. Further, the learned Magistrate said that the accused was summoned through a summons though it was not specifically mentioned in his order, nor was that available on the record. This part of the statement of the Magistrate would hardly be correct when it had already been said that the appellant was produced by the Sub-Inspector, and, there is nothing on the record to show that the appellant had been summoned. There is another aspect of the matter and that is that the Magistrate had said that the appellant was produced before him at 10:11 a. m. and he had given him one or two hours before recording the statement and that he recorded the statement at about 1/2 p. m. However, when the Police Officer who had got the statement recorded appeared as P. W. 10 and was asked about the time wren he had made the application before the Magistrate he said that be did not remember and that he may have mentioned the time in the Zimni of making the application before the learned Magistrate. When he was asked to refresh his memory by seeing the Zimni, he declined to do so. But on the order of the learned Sessions Judge when he was required to do so, he said that "I had copied out the confessional statement made by the accused before the Magistrate at 11-00 a. m. on 24-7-1975." From this it would be quite clear that the confessional statement was recorded before 11 a. m. as it was copied out at this time in the Zimni and the learned Magistrate who recorded the statement was not quite correct when hp stated brat re had recorded the statement at 1/2 p. m., the statement being inconsistent with contemporaneous record. In all these circumstances, when the appellant was brought by the S. H. O., Investigating Officer, for getting the confessional statement recorded and after the recording thereof was delivered back to the same officer and when the appellant had remained in the precincts of the police station, though technically called a Judicial lock up, it is riot quite safe to rely on the judicial confession. Consequently, this part of the prosecution evidence has to be exclude. In this behalf a reference may be made to the case of Wazir and others v. The State (P L D 1960 Kar. 674) wherein it was held that the persons who had made the confessions having been returned to the police, the statements could not be taken to be of voluntary nature. The fact that in the present case the appellant was sent back to the judicial lock up and not given in police custody is only a matter of appearance and formalism otherwise the appellant was brought and handed over back to the incharge of the police station in whose precincts the judicial lock-up was situated. Therefore, in all the circumstances, the judicial confession cannot be used against the appellant.

9. Now coming to the eye-witnesses account it is to be seen that no doubt the two witnesses, namely, Muhammad Yousuf (P. W. 6) and Bashir Ahmad (P. W. 8) are the father and uncle of the deceased boys, yet, at the same time the appellant is nobody but heir own nephew. Too witnesses would hardly be falsely implicating the appellant. In any rise, the factum of killing of the two deceased being admitted by the appellant before the trial Curt, it cannot be said that the appellant is not the person who had killed the two deceased boys. As regards the presence of these two witnesses at the spot that is quite natural because they were sleeping near the cattle at the Behk where the two deceased were alto sleeping. Muhammad Nawaz (P. W. 7) who bas corroborated the eye-witnesses account in all particulars is totally an independent witness having no interest in the prosecution or any enmity against the appellant. His statement cannot be disbelieved on any premise. The contention: that if the witnesses were there they would have caught hold of the appellant is to be seen in the context that the appellant had killed the two young boys and had run away. The witnesses would be more inclined to look to the two injured bays and to find out as to whether they were alive, or, any help could be rendered to then than straightway run behind the appellant, and it could take no time to the appellant to run away in the sugarcane field nearby as deposed to by the witnesses and he would hardly be caught red handed. The contention that tae appellant is said to have run away towards the sugar-cane field from the side the witnesses were corning and, therefore that would be unlikely is without much sugarcane fear the reasons that that was the direction where the appellant could hide himself in the sugarcane field and where there was crop of sufficient height to dodge the pursuers. Therefore, after having carefully gone through the evidence of the eye-witnesses and hearing tire Darned counsel for the appel lant, we are satisfied that the witnesses had seen the appellant committing the crime. The other piece of evidence is that of the recovery of toe chador and kassi from the appellant. Both were said to be stained with blood by the Chemical Examiner. The report of the Serologist is not on the record. But this is of not much consequence because the killing of the two deceased is admitted by the appellant.

10. Considering the plea of the appellant that he had acted under grave and sudden provocation, it is to be seen that in the statement he made before the committing Court on 5-11-1975 which he admitted to be correct before the learned Sessions Judge on 3-12-1975 he had said that the real facts of the case are that I saw Abdul Ghani deceased with my wife in compromising position while Khalid Mahmood deceased was taking care of their safety. I injures Abdul Ghani and Khalid Mahmood out of a sense of honour with a kassi picked up from the spat and they died afterwards. I ran to kill my wife also but she succeeded in running away. The kassi was left on the spot". Not only there is a variation in the statement made before the trial Court but the latter statement is more elaborate which is to the following effect "My wife was sitting in the veranda of my house. Abdul Ghani became naked at the top of the house and Khalid Mahmud as making indecent gestures to her. I was offering the Maghrab prayer at my house when this happened. At about midnight I found that my wife was not on her bad. I went in search of her. I found my wife sleeping in the cot of Abdul Ghani. Khalid Mahmud was also sitting there keeping a guard. I was provoked and let my self-control. I picked up a kassi from that field and gave the attack on the neck of Abdul Ghani. Khalid Mahmud grappled with me. I also attacked Khalid Mahmud. In the meantime my wife ran away, I also went in search of her but sire was not available". From the above, it would be clear that the statement made before the committing Magistrate that the appellant had found his wife in compromising position with Abdul Ghani was not adhered to when the appellant appeared before the trial Court, so that part of his previous statement that his wife was in a compromising position with Abdul Ghani stands repudiated. Now, examining the plea taken before the learned trial Court the appellant had raid that he found his wife sleeping on the cot of Abdul Ghani. If that were so, either his wife would have been found around, or would have been injured alongwith Abdul Ghani. When the latter was done to death, the appellant's wife was not found around, nor, any injuries on her. As regards his statement that Khalid Mahmood was also sitting there keeping a guard and that the latter grappled with him is totally inconsistent with the medical evidence as Khalid Mahmood had received four injuries on his neck as deposed to by Dr. Muhammad Ali (P. W 1) and if he were keeping a guard and were to grapple wish tae appellant, he would not have received theca injuries. Moreover, this young boy of 12/13 years would have seen his brother being done to death and when he himself was attacked, he would have either run away or tried to save himself in some manner by which it could have warded off the attack and not allowed his own neck to be cut. The injuries on the deceased Khalid Mahmood leave no doubt that the latter was asleep when he was done to death with the kassi blows. Moreover, the plea that Abdul Ghani had become naked at the top of the house and Khalid Mahmood had been making indecent gestures to his wife while the appellant was offering his Maghrab prayer, even correct, cannot be said to have given rise to the provocation in the sense that that would be grave and allow the appellant to kill the two young boys and at the mid of night which would also mean that the provocation cannot be said to be sudden. It appears that the appellant was suffering from some kind off stress in his early day of married life and took an exaggerated view of the jokes cut by the deceased, if any, with his wife omitting to consider that the young boys being dewars of his wife even if had made some jokes, had done nothing of the kind which could give rise to an ordinary reasonable man such a kind of provocation that that may lead him to commit cold blooded doubly murder. 'The plea grave and sudden provocation is not available in the circumstances of the case to the appellant. In this view of the matter, the plea is rejected altogether. Relying on the eye-witness account of the occurrence, the appellant it clearly guilty of double murder of the two young boys, He was, therefore rightly found guilty and sentenced by the learned Sessions Judge. There are no mitigating circumstances to warrant arty interference with the sentence of death awarded to the appellant for the double murder. Therefore, the sentences of death are confirmed. The contention of the learned counsel for the appellant that the sentence of fine is excessive is untenable in the circumstances of the case. The two youths in their teens have been cold- bloodedly and brutally murdered. Therefore, no alteration is called for in the sentences.

11. For the foregoing reasons, the appeal is dismissed. The sentences of death are confirmed

.

Appeal dismissed.