NAROO Versus THE STATE

1. SAJJAD ALI SHAH, J.‑‑ This appeal is filed against impugned Judgment, dated 23‑7‑1984 of learned Sessions Judge. Sanghar whereby appellant has been convicted for offence under section 302, P.P.C. and has been sentenced to death for committing double murder of his wife Shrimati Marvi and his relative Sodho. There is also before us reference for confirmation of death sentence. We propose to dispose of both the appeal and the reference by single judgment.

2. Briefly stated the prosecution case is that appellant on 26‑5‑1983 at "Tipahri" time was going alongwith his wife Sht. Marvi to meet their relatives when on the way they met a relative of appellant namely Sodho, who used to reside in the house of appellant prior to the incident. All the three proceeded together and appellant sought to be excused in order to ease himself. Hence Sht. Marvi and Sodho walked ahead. After easing himself the appellant found his wife Sht. Marvi and Sodho in compromising position in the uncultivated land of Jaffer Khan Pahore, hence he killed them both by inflicting on them injuries with hatchet. Appellant himself went to the Police Station, surrendered and lodged F.I.R. S.H.O. Abdul Ghafoor was present at Police Station, Khipro who registered F.I.R. in his own name as complainant on the basis of statement made by the appellant. Hatchet and Shalwar which were blood‑stained were recovered from the possession of the appellant and were put into sealed parcels. Scene of offence was visited and Mashirnama of Vardat was prepared. Dead bodies were found in the uncultivated land of Jaffer Khan Pahore near "Lana" bushes. Blood stained earth was secured and put into sealed parcel. Inquest reports were prepared and then dead bodies were sent to hospital for post‑mortem. After completion of other steps of investigation challan was presented.

3. Prosecution has examined in support of his case in the trial Court six witnesses. P.W. 1 is Dr. Faqir Muhammad who deposed before the Court that on 27‑5‑1983 at Taluka hospital, Khipro he conducted post‑mortem examination on the dead body of Sht. Marvi and found one incised wound 12 cm. x 4 cm. x spinal cord on the neck. In the result all vessels of neck were cut. Another injury was an abrasion on the right elbow 4 cm. x 2 cm. On the same day he performed post‑mortem examination on the dead body of Sodho and found one incised wound 8 cm. x 4 cm. x spinal cord on the neck. There was another incised wound 5 cm x 3 cm x spinal cord on the upper part of the neck. According to him death of both the deceased was due to shock and haemorrhage.

4. P.W. 2 is Dur Muhammad Constable who is corpse‑bearer. He escorted the dead bodies to the hospital. P.W. 3 is Jumman, Head Constable who was present at the police station on 27‑5‑1983 when appellant came there and disclosed the facts of the occurrence. P.W. 4 is Rano Mashir who has attested Mashirnama of Wardat Exh. 12, Inquest Report of Sht. Marvi Exh. 13 and Inquest Report of Sodho Exh.

14. P.W. 5 is Khan Muhammad Mashir who has attested Mashirnama of arrest of appellant Exh. 16 and Mashirnama of recovery of blood‑stained hatchet and Shalwar Exh.

17. These articles were put into sealed parcels in his presence.

5. A.P.P. incharge of the case before the trial Court made application on 16‑7‑1984 Exh. 18 on the record stating therein that since S.H.O. Abdul Ghafoor was posted in District Dadu which was a far‑off place hence another witness namely A.S.I. Ahmed Khan be allowed to be examined to identify the hand‑writing and signature of S.H.O. Abdul Ghafoor. This application was granted by the learned trial Judge.

6. P.W. 6 Ahmed Khan A.S.I. deposed before the trial Court that on 26‑5‑1983 he was posted as A.S.I. at Police Station, Khipro and he was well‑conversant with the handwriting and signature of S.H.O. Abdul Ghafoor. He further identified the signature and handwriting of S.H.O. Abdul Ghafoor in the F.I.R. Exh. 20, Mashirnama of Wardat Exh. 12, Inquest Reports Exh. 13 and 14, Mashirnama of arrest Exh. 16 and Mashirnama of recovery of hatchet and clothes Exh.

17. This witness also produced report of Chemical Examiner Exh. 21 according to which hatchet, Shalwar and earth were found to be stained with human blood. Prosecution cloned its came.

7. Appellant before the trial judge after the charge was read over to him pleaded guilty. He was represented by a counsel in the trial proceedings and no prosecution witness was cross‑examined with the exception of P.W. 1 Dr. Faqir Muhammad. In his statement under section 342, Cr.P.C. appellant admitted his guilt and stated that he murdered his wife Sht. Marvi and Sodho on account of 'Ghairat' having seen them in a compromising position.

8. Now so far the prosecution evidence is concerned there is no ocular testimony. The story of incident is divulged by the appellant himself in his statement to the police officer recorded at the police station on the basis of which F.I.R. was lodged. The part of statement of appellant to the police officer to the extent of being confessional and inculpatory in nature is not admissible in evidence and hit by section 25 of the Evidence Act. The said provision envisages that no confession made to a police officer shall be proved as against a person accused of any offence. In the circumstances whatever was told by appellant to the police officer with regard to committing murders of Sht. Marvi and Sodho would be inadmissible. If confessional part of the statement is excluded from the consideration, then the other parts may be considered such as appearance of appellant at Police Station with blood‑stained hatchet and clothes and recovery thereof. Now in this case we rely upon plea of guilt made by appellant at the very outset of the proceedings when the charge was read over to him and his admission of guilt in the statement recorded in the trial Court under section 342, Cr.P.C.

9. We have carefully examined the statement of appellant under section 342. Cr.P.C. and we find that in addition to answering questions in positive with regard to murder of Sht. Marvi and Sodho and recovery of crime weapon and blood‑stained clothes, he has further stated that witnesses had deposed against him correctly. These questions put to the appellant are based upon evidence collected and produced before the trial Court by the prosecution. As pointed out earlier there are legal flaws and infirmities in the evidence produced by the prosecution. There is no ocular evidence. The whole story is narrated by the appellant who is the culprit as well as sole eye‑witness of the incident. He has not made judicial confession but has made confessional statement at Police Station which is not admissible. We propose to rely on the last question which was put to him in the 342, Cr.P.C. statement to the effect as to what else he had to say. In reply to that question appellant stated as under:‑

10. "I have murdered my wife Shrimati Marvi and Sodho out of Ghairat as I saw them in compromising position."

11. In support of this plea of guilt there are corroborative pieces of evidence. P.W. 3 Jumman Head Constable had deposed that he saw appellant coming to the police station with blood‑stained hatchet and clothes and made a statement. A.S.I. Ahmed Khan P.W. 6 identified handwriting and signature of S.H.O. Abdul Ghafoor who recorded F.L.R. , Mashirnama of arrest, Mashirnama of recovery of incriminating articles, Mashirnama of Wardat and inquest reports. P.W. 4 Rano Mashir has attested Mashirnama of Wardat and inquest reports. Dead bodies were found at the Wardat in the 'Jungle' lying together. Evidence of doctor positively shows that death had occurred due to incised wounds inflicted with sharp cutting weapon such as hatchet. The place from where the dead bodies were found supports the version of the appellant that he found his wife and Sodho in compromising position. Age of Sht. Marvi as shown in the post‑mortem report is 12. years and age of Sodho is shown as 23 years. It is stated by the appellant that Sodho was otherwise related to him. Doctor had taken vaginal swabs of Sht. Marvi which was sent to the Chemical Examiner and the doctor in the Court produced report of Chemical Examiner according to which semen could not be detected. Doctor has stated that as per chemical report the parcels were sent to Laboratory on 30‑5‑1983 and were received at Karachi on 25‑8‑1983. Mr. Allahdino Memon, learned counsel for the appellant argued that such long delay would come in the way of proper and positive finding and secondly that it is nobody's case that sexual intercourse between the two deceased had really culminated into seminal discharge. In any case according to the appellant he saw both the deceased persons in compromising position. It was also pointed out to me that when the dead bodies were found none of the two was naked. Description of clothes shows that Sht. Marvi was wearing 'Gagra' and Sodho was wearing Shalwar. Again the reply will be that according to the appellant he saw them in compromising position only. Since there is no other evidence to the contrary and appellant has pleaded guilty and admitted his ‑guilt, there is no other way out for us except trusting his word in totality as stated by him in his statement under section 342, Cr.P.C., particularly in reply to the last question. That assertion is supported by other factors which have been described above. In the result, we have come to the conclusion that there is sufficient evidence available on the record to show that plea taken by the appellant in the trial Court is correct. There is no other reason for the appellant to kill his young wife aged about 12 years and also his relative against whom he has no enmity or animus.

12. We, therefore, alter conviction from section 302, P.P.C. to section B 304 Part‑I, P.P.C. and reduce sentence from death to R.I. for three years and impose a fine of Rs.1,000 in default of the payment whereof he would further suffer R.I. for six months. With this modification the appeal is dismissed. Reference for confirmation of death sentence is rejected. Jail authorities are directed to give benefit of section 382‑B, Cr. P.C. to the appellant at the time of computation of sentence.

13. S. G. D. Order accordingly.