P L D 1957 (W (PLP)

ORTCHESON, J.‑

Ghulam Haider, aged 29 years, has been convicted under section 302, P. P. C. by the learned Sessions Judge, .Dera Ghazi Khan, and sentenced to death for the murder of his sister Mst. Jindan, wife of Imam Bakhsh (P. W. 3). He has appealed and the case is also before us for confirmation of the death sentence under section 374, Criminal P. C. The appellant arid the deceased were residents of Chah Dosewala. According to the prosecution, the deceased's husband Imam Bakhsh suspected his wife of having illicit connection with one Ilahi Bakhsh alias Ilahu. Although, according to Imam Bakhsh, he did not communicate his suspicions to the appellant,' the latter some how learned of the liaison. At about midday on the 30th of September 1956, Sohanra (P. W. 9) was grazing his goats near Chah Dosewala when the appellant passed him, armed with the dang (Exh. P. 1), and went to the house of the deceased. Shortly afterwards Sohanra heard an alarm coming from the direction of the house and ran to the spot, where he found Mst. Jindan being beaten by the appellant. He called on him to stop but the appellant told him to mind his own business, and as the appellant's uncle Ramza had also arrived and was trying to rescue Mst. Jindan, Sohanra decided not to interfere, and went back to his flock. Not long afterwards the appellant came out of the house, carrying the dang, which had mean while been broken. After killing his victim the appellant went to village Samina and made an extra‑judicial confession to Khuda Bakhsh Shah Lambardar (P. W. 7) and Ahmad Bakhsh (P. W. 8), who were sitting together at the former's baithak. The appellant gave as his reason for his action that he had been informed by Mst. Jindan's brother‑in‑law Rahim (P. W. 10) that the latter had seen her with Ilahu. Khuda Bakhsh Shah proceeded to Police Station Drahma, at a distance of seven miles from the spot, where the first information report Exh. P. B. was recorded on the basis of his statement by Chaudhri Rasul Bakhsh, Sub‑Inspector (P. W. 11). On proceeding to the spot the Sub‑Inspector arrested the appellant and took possession of the broken dang. On the 1st of October 1956 the appellant expressed a desire to make a judicial confession and was produced before Mr. A. K. Mirza, Magistrate 1st Class (P. W. 2), who, after taking the usual precautions to ensure that the appellant's statement was voluntary, recorded his confession Exh. P. J./1 which runs :‑ "Mst. Jindan is my real sister. She is married to Imam Bakhsh who lives with us. Imam Bakhsh said to me that your sister Mst. Jindan has illicit connection with Ellahu, Bhitara. I have rebuked her, you also make her to under stand'. Since seven or ten days have passed I told him that I would take care of my sister and then I will be able to say something about this matter, if she would be proved guilty, I would to take her to task (sic.) otherwise not. Yesterday at Sunday I reached the house of Imam Bakhsh to see my sister. My uncle Ramzan was present there. I was still at some distance from the house that I saw that Ellahu was sitting with my sister Mst. Jindan about whom Imam Bakhsh complained. He suspected my arrival or any body else. So he ran away from there. I reached there. I was under grave and sudden provocation. I beat my sister with the stick under this provocation. I gave her five or seven sticks. She was destined to die with these injuries so she was finished and died. So I reached Khuda Bakhsh Lambardar for information. He took me with him and produced me to the Police Station." The post‑mortem examination of the body of the deceased was carried out by Dr. Muhammad Ali (P. W. 1). A total of seventeen injuries was found, consisting of contusions on various parts of the body. No. 16 had broken the thigh bone while No. 17 had fractured the skull. Death was due to shock and haemorrhage. Before the Committing Magistrate the appellant admitted having made a judicial confession. At the trial he denied having done so, but admitted having killed his sister, alleging that he had caught her red‑handed in adultery. He produced no defence. The learned Sessions Judge, while believing the judicial confession to have been voluntarily made, rejected the exculpatory portion, being of the opinion that Ilahu had not been with Mst. Jindan immediately before the occurrence, and that this story was introduced by the appellant to minimise his offence. Since the appellant has admitted killing his sister, the main question for decision is the nature of his offence. In our opinion, the appellant's contention that he caused the death of Mst. Jindan under grave and sudden provocation cannot be rejected out of hand. Although Sohanra (P. W. 9) did not specifically admit having seen 1lahu in the neighbour hood at the time of the occurrence, he conceded that he saw a man running at a distance of six or seven killas from the house of Mst. Jindan. In answer to a Court question he alleged that the man in question did not come anywhere near the house of Mst. Jindan, nor was he running from that direction, but the site plan shows that before the occurrence Sohanra was standing to the east of Chah Dosewala, and since the unidentified man was running from west to north of the witness, the possibility that he had started from Mst. Jindan's house cannot be safely excluded. Rahim (P. W. 10), has gone further and made the categorical statement that he and Ramza saw Ilahu running from the direction of the deceased's house, and adds that when he saw the body of Mst. Jindan it was without a shalwar, being subsequently re‑clothed by the witness's wife. He further stated that the shalwar had been put on before Khuda Bakhsh Shah (P. W. 7) arrived at the spot. It may well be that the learned Sessions judge is correct in his conclusion that Rahim has been won over by the defence, but in view of the statement of Sohanra that he saw some one running near the spot the possibility that Rahim is speaking the truth cannot be entirely excluded. We accordingly consider it safer to hold the appellant guilty of an offence under section 304 Part II, P. P. C. and alter his conviction accordingly. On the question of punishment, if the appellant committed the murder under grave and sudden provocation a sentence of three years' rigorous imprisonment is, in the circumstances, sufficient to meet the ends of justice, and we order accordingly. The sentence of death is not confirmed. Before we conclude, one matter calls for comment. One of the reasons advanced by the learned Sessions judge for coming to the conclusion that Imam Bakhsh (P. W. 3) was not telling the truth in stating at the trial that he saw Ilahu coming from his house, and that Ilahu informed him that he had been sitting at the house with Mst. Jindan, is that Imam Bakhsh made no mention of these and other matters in his statement to the police. In employing this argument the learned Sessions Judge has committed the serious error of using an omission in the statement of a witness recorded under section 161, Criminal P. C., in favour of the prosecu tion. There is some conflict of judicial authority as to whether an omission in such a statement can be utilised, but on one point at least all the High Courts are unanimous, namely, that only the accused can claim to use the previous statement of a prosecution witness for the purpose specified in the proviso to section 162, Criminal P. C., and that the prosecution cannot use it against the accused either to corro borate a witness or to contradict him if he has been declared' hostile. Further, it has been held (for example in A I R 1942 Cal. 425 that the Court cannot circumvent the provisions of section 162, Criminal P. C., by a process of deduction. We trust that the learned Sessions judge will note the above remarks for his future guidance. Z.A.S./A.H. Conviction altered.