GUL MOHAMMAD Versus STATE
1. SAIJAD ALI SHAH, J. ---After hearing the arguments on 20th and 21st November, 1978; by a short order, we had allowed this appeal and rejected the reference made for confirmation of death sentence under section 374, Cr. P. C. We had directed in the short order that reasons would follow later. The reasons follow now.
2. The appellant narrated above was convicted under section 302, P. P. C. and was sentenced to death end to pay a fine Rs. 1,500 in default of the payment whereof, he was ordered to suffer R. I. for one year more. We had heard together the appeal and reference for confirmation of death sentence and disposed thereof as stated above.
3. Shortly stated prosecution story is that appellant Gul Mohammad was tried alongwith his father by name Wassan for having committed murder of Mst. Mehar Khatoon wife of Gul Mohammad appellant, in furtherance of their common intention, by causing hatchet injuries to her on 15-5-75 at breakfast time in the house of appellant Gul Mohammad in Deh Murad Ali Taluka Garhi Khairo, District Jacobabad. It was alleged that appellant Gul Mohammad inflicted hatchet blows to his wife at the instigation of his father Wassan. It is the case of the prosecution that on the day of the incident and at the time mentioned above Mst. Mehar Khatoon was preparing to go for taking a bout when her husband Gul Mohammad asked her to cook the breakfast for him, whereupon Kist. Mehar Khatoon replied that she would do so after taking her bath. Wassan father of appellant taunted the appellant his less wife, a woman of no consequence, had disobeyed him and he w as doing nothing about it. P. W. 4 Ghulam Abbas, a young boy of 13 years of age at that time and son of Mehar Khatoon and the appellant and P. W. 5 Shahnawaz, cousin brother of Mst. Mehar Khatoon were present at the spot. In the meantime, Mst. Mehar Khatoon took "mete" (a special kind of clay used for cleaning body) and other necessary articles and went inside " Khola taking bath. Appellant took hatchet and went towards "khola". Shortly afterwards cries of "murder ! murder !" were heard and P. Ws. Ghulam Abbas and Shahnawaz went there and saw appellant Gul Mohammad giving hatchet blows to his wife Mst. Mehar Khatoon while Wassan father of appellant kept on instigating. Appellant Gul Mohammad threatened the witnesses not to come near and after giving hatchet blows to Mehar Khatoon do her head and neck went away with Wassan alongwith his hatchet. The witnesses went near and found Mst. Mehar Khatoon having died of hatchet injuries. Leaving Shahnawaz near the dead body, P. W. Ghulam Abbas went and informed complainant Beero, who was a Gangman in Railways, at Mile No. 45 and informed him about the incident. Complainant also carne to the place of occurrence and after verifying the facts went to the Police Station, Garhi Khairo, where he lodged F. I. R. at 12-30 p.m. The distance between the police station and the vardat was four miles.
4. S. H. O. Ghulam Abbas Mari, after registering the F. I. R. came to the vardat which was pointed out by the complainant. He found the dead body of Mst. Mehar Khatoon with hatchet injuries lying in a room without root pear the house of appellant Gul Mohammad. He secured blood-stained earth and sealed it into a parcel. He prepared inquest report and sent the dead body to the hospital for post-mortem examination. He recorded 161, Cr. P. C. statement P. W. Shahnawaz who was present at the vardat. On 17-5-75 he recorded police statement of P. W. Ghulam Abbas. On 1-6-1975 appellant Gul Mohammad appeared at the police station and surrendered, The Investigating Officer arrested him. On 3-6-1975 appellant Gul Muhammad was produced before the Mukhtiarkar and F. C. M., Khairo who recorded his judicial confession. On 5-6-1975, the Investigating Officer arrested co-accused Wassan from his house, who produced the hatchet, allegedly used in the crime. On 7-6-1975 statements under section 164, Cr. P. C. of witnesses Shahnawaz and Ghulam Abbas were recorded before the Mukhtiarkar & F. C. M., Garhi Khairo. After completing other steps of investigation the challan was presented in the Court.
5. Prosecution has examined 8 witnesses in support of its case. P. W. 1, is tapedar Inayat Ali who prepared sketch of vardat Exh. No. 6 P. W. is Qadir Bux mashir who has attested mashirnama of vardat Exh. 9 and Mashirnama of recovery of hatchet Exh. 10, P. W. 3 Beero is complainant who was inform ed about the incident by eye-witness Ghulam Abbas. P. W. 4 Ghulam Abbas and P. W. 5 Shahnawaz have been examined as eye-witnesses of the incident. P. W. 6 Lal Bux Constable is corpse bearer. P. W. 7 Mohammad Khalid, Mukhtiarkar and F. C. M. had recorded judicial confession of the appellant and produced the same as Exh. 22, P. W. 8 Ghulam Abbas, S. H. O. had investigated the case and produced report of Chemical Examiner Exh. 24, which is to the effect that earth was stained with human blood.
6. Statement of Doctor Habibur Rehman recorded before the Committing Court was brought on the file of Sessions Court under section 509, Cr. P. C. He performed post-mortem examination on the dead body on 15-5-1975 at Garhi Khairo Hospital and found the following injuries :
(1) An incised woud 9 x 3 x cutting 3rd and 4th cervical vertebrae on the back of the neck.
(2) An incised wound 7 x 1 x cutting the brain matter on the left front prietal region.
7. On internal examination he found the following damages as result of external injuries :-
8. The frontal, left parietal bone were cut off. Spinal cord was cut off. The 3rd and 4th cervical vertebrae were cut off. Stomach was empty and urinal bladder was empty and other organs were healthy. From external and internal examination of the deceased he was of the opinion that the death was due to shock and haemorrhage as result of injuries by some heavy sharp-cutting weapon such as hatchet. Both injuries were ante-mortem. Both injuries were individually sufficient to cause death in ordinary course of nature. The probable time between injuries and death was instantaneous. The probable time between death and post-mortem within 12 hours.
9. Before the trial Court in his statement under section 342, Cr. P. C. the appellant has denied the prosecution allegations and proclaimed innocence. He has retracted from the judicial confession and stated that the same was extorted from him because he was maltreated and his women folk were humiliated by police. He has further stated that he has been implicated due to enmity and about one month prior to the incident there was a fight between complainant Beero and him over the land and the complainant threatened to involve him in a false case. He has further stated that P. Ws. Ghulam Abbas and Shahnawaz had deposed against him as they are under the influence of complainant Beero. The appellant declined to give any evidence in defence.
10. We have carefully examined the whole record in the light of arguments advanced by the learned Advocates appearing for each side. It would lx pertinent to point out here that the trial Court had acquitted co-accused Wassan on the ground that evidence produced by prosecution was insufficient to prove his complicity in the crime. Prosecution evidence consists of ocular testimony of two witnesses supported by complainant Beero retracted judicial confession and evidence of motive and also the medical evidence. So far the direct evidence is concerned both eye-witnesses are closely related to both the -parties. P. W. Ghulam Abbas is son of appellant Gul Muhammad and deceased Mehar Khatoon. P. W. Shahnawaz is cousin of deceased Mst. Mehar Khatoon. Since the incident took place inside the house, they can be natural witnesses but their evidence is to be examined with great care and caution to see whether they have really seen .the incident and whether they are speaking truth. It may be pointed out that P. W. Ghulam Abbas who is real son of deceased as well as the present appellant was 13 years old when he appeared before the trial Court to give his evidence. The trial Court put to him certain questions in order to satisfy itself whether child witness was in position to understand as to what he was talking about. The witness answered those questions satisfactorily and thereafter he was examined. He has implicated his father Gul Mohammad appellant as well his grandfather and has supported the story as stated above. He claims to have seen with his own eyes his father Gul Mohammad appellant inflicting hatchet blows to his mother. He also stated that Shahnawaz was present at the spot who also saw the incident. According to this witness, after the incident he went and informed complainant Beero who is his maternal uncle and was working on a railway track about 1 miles away from his house. He went on foot and brought back the complainant Beero to the vandal and after seeing the dead body complainant Beero went to the police station leaving him and Shahnawaz to look after the dead body. On the same day when the police came to the vardat his statement was recorded by the Police. Surprisingly the Investigating Officer Ghulam Abbas has very specially stated in his deposition before the trial Court that when he reached the vardat P. W. Shahnawaz was there whose statement he recorded and- then on the third day, i.e. 17-5-1975 he recorded police statement of P. W. Ghulam Abbas. In the cross-examination questions were put to tire Investigating Officer and he categorically asserted that P. W. Ghulam Abbas was not there at the spot at the time when he reached there. Secondly P. W. Ghulam Abbas has emphatically asserted that at the time of incident his mother had taken "mete" and other things and went into "Khola" for taking bath. It is stated by him before the trial Court that when complainant reached the vardat he also saw jar containing water and "mete" at the place where his mother was lying dead. Likewise P. W. Shahnawaz has also insisted in his testimony before the trilal Court that when police arrived at the vardat, "mete" and jar containing bath water, were available near the dead body.
11. As against this the Investigating Officer has stated before the trial Court that he did not see anything else except blood-stained earth near the dead body. In the mashirnama of vardat Exh. 8, is stated that dead body was lying in a room without roof with clothes on. No other thing is mentioned to be near the dead body except the blood. Now if the deceased at the time of incident was taking bath, the jar containing water and "mete" would have been found near her. P. W. Ghulam Abbas has further stated that after his father went to "Khola" with hatchet he heard cries of "murder! murder!". He and Shahnawaz ran there and saw with their own eyes appellant inflicting hatchet blows to Mst. Mehar Khatoon and at the instigation of grandfather Wassan, appellant gave another hatchet blow. P. W. Shahnawaz claims before the trial Court that he also saw appellant Gul Mohammad killing his wife with hatchet and he does not mention as to how many injuries were given by the appellant to the deceased. Medical evidence shows that only two injuries were found on the person of deceased. One was incised wound 9 x 3" on the back of the neck and the other was incised wound 7 x 1 on the frontoparietal region. These two injuries could be caused in quick succession and even if the witnesses were present in the house, it is not possible to believe that they ran and saw the infliction of injuries themselves. For these reasons it is difficult to place implicit reliance on the evidence of these two eye-witnesses and particularly P. W. Ghulam Abbas who was not present at the spot when police had arrived and whose statement was recorded on the third day of the incident.
12. Complainant Beero, who had heard the story of incident from P. W. Ghulam Abbas, came to the vardat and saw the dead body and thereafter went to the police station to lodge the report. He has also stated before the trial Court that when he saw the dead body, earthen jar containing water as well as a pot containing "mete" were lying near the dead body. He has further stated that when he reached the vardat for the second time alongwith police five or eight persons were already sitting at the vardat and they were Qadir Bux, Mehrab and others. He did not remember the names of others. It is surprising when some other independent witness was not examined who could at least say that he was informed by the alleged eye-witnesses that such and such assailant had committed murder. In any case this witness has repeated that he heard about the incident from P. W. Ghulam Abbas and when, we view with doubt evidence of the two eye witnesses Ghulam Abbas and Shahnawaz, no significance cart be attached to the evidence of this witness.
13. So far recovery of hatchet is concerned, it was not blood-stained and secondly it was produced by Wassan, father of the appellant when the allegation is that appellant caused injuries to his wife with hatchet. In any case the hatchet whether it is blood-stained or not is not produced by the appellant as such it doss not have any probative value.
14. The appellant was arrested on 1-6-1975 and his judicial confession was recorded on 3-6-1975, i.e. two days after his arrest. The operative part of confession is reproduced as under :-
15. "Story is like this that about two or three weeks before I was ploughing my field. It was 8 a.m. when I saw Gul Bahar son of Shahan Khan who was going along the Canal by western side and from there he turned and came to our town. I saw Gul Bahar going inside my house. It was vacant place. Then my wife Mst. Mehar Khatoon came out of her house and went to the place where Gul Bahar had gone. I turned from left side and saw that both were inside. When I reached inside the house the male Gul Bahar started running. Then I went inside and killed my wife Mst. Mehar Khatoon with hatchet. The hatchet was with me. I ran after 'karo' but he ran away. Then I went to the village of Sodho Jamali alongwith my hatchet. After 2-3 days my father brought Qur'an Sharif. I handed over my hatchet to father and myself went and appeared before the police station."
16. This confession is retracted by the appellant on the ground that he was pressurized by police and his women-folk were insulted, hence he was compelled to make confession which was not voluntary. Before we go into the question whether the confession was voluntary or not, it is to be pointed out that this confession is criticised by the learned Advocate for the appellant Mr. Azizullah K. Shaikh on many grounds. Firstly he submitted that the version given in the confession does not have ring of truth and it does not tally with the story put forward by the prosecution. It does not talk about the presence of the eye-witnesses, secondly it does not talk about the altercation between husband and wife over preparation of breakfast, thirdly it does not talk about taking bath by deceased. It also does not mention presence of co-accused Wassan. We also find that the story given in the confessional statement is palpably false as Mst. Mehar Khatoon was found by the Medical Officer, who performed the post-mortem examination to be 60 years old at the time of incident. Naturally a woman of 60 years of age is not expected in the ordinary course of nature to have criminal intimacy with another man, the confessional statement does not mention how many injuries were given and on which part of the body of the deceased. The place of murder pointed out in the confession is also not correct as the dead body was found by the Investigating Officer to be lying inside the house of the appellant.
17. P. W. 7 Mohammad Khalid, Mukhtiarkar and F. C. M. who recorded the confession has admitted before the trial Court that he had not mentioned in the confession the fact that handcuffs of the appellant were removed. He bus admitted not to have told appellant that be would not be handed over to the police. It appears that requisite cautions and warnings were not given by the Magistrate and the confession was .not recorded in the manner as is prescribed under the law. In any case, the confession is retracted and we find that the version contained herein is not truthful. Moreover the confessional statement is not corroborated by any other material available on the record. We therefore, rule out of consideration this confession as not proved.
18. In the circumstances as stated above we hold that prosecution has not proved the case against the appellant beyond reasonable doubt. The benefit whereof must go to the appellant. We therefore, set aside the conviction and sentence of the appellant and allow the appeal. Reference is rejected. Appellant be set free if not wanted in any other case.
19. Petition allowed.