P L D 1962 (W (PLP)

INAMULLAH, J.‑The appellant has been convicted by the learned Additional Sessions Judge, Tharparkar at Sanghar on 30th July 1960 under section 302, P. Y. C. and sentenced to transporta tion for life. The facts giving rise to the appeal are these:‑ The complainant P. W. Changal is the father of the deceased Khan. P. W. All Muhammad alias Alu is the brother of the deceased. Deceased Mst. Chuttan was the wife of appellant Khuda Bux. Appellant Khuda Bux and deceased Khan lived at a distance of about one call from each other. One Haji who was a co‑accused with Khuda Bux but has been acquitted by the learned Additional Sessions Judge was the Hari of Khuda Bux.

2. It is said that Mst. Chuttan deceased was on terms of illicit intimacy with deceased Khan. Haji acted as a go‑between of the two. It is suggested by the prosecution that Haji in league with his landlord Khuda Bux decoyed deceased Khan on 21st February 1960 after sunset time and took him towards the house of Khuda Bux on the pretext that he was invited by Mst. Chuttan. Ali Muhammad met Khan and Haji on the way. Deceased Khan told his brother to accompany him in case he might require his assistance. It was Somani time when the deceased reached near the house of Khuda Bux. He concealed himself in the jungle nearby and Haji went to inform Mst. Chuttan. Ali Muhammad also hid himself at about 10 paces from deceased Khan. In the meantime, the appellant came over there in disguise covering his head with ajrak in order to give an appearance of a woman. When he reached near Khan he threw his ajrak and started giving blows to him. According to Ali Muhammad three other men also appeared and they also gave hatchet blows to Khan and killed him. All Muhammad Identified Khuda Bux and Ha ji as two of the assailants of Khan. All Muhammad ran to his house and informed his father complainant Changal. They came to the place of incident and saw the dead body of deceased Khan and that of Mst. Chuttan lying in a pool of blood near each other. P. W. All Muhammad Makrani told them to go away as their presence might lead to serious consequences.

3. It is suggested by the prosecution, the basis being dragging marks from the house to the place of incident that Khuda Bux dragged Mst. Chuttan out of his house and gave her hatchet blows.

4. Complainant Changal event to Tando Adam Police Station which was at a distance of 7 miles from the place of incident and lodged the F. I. R. at about 1‑30 a.m. during the course of the same night. While the F. I. R. was being recorded appellant Khuda Bux also appeared and surrendered himself to the police. He had an injury on the lower part of his leg and his clothes were also soiled with blood. The clothes were secured by the police.

5. S. H. O. Khaliqdad went to the vardat and saw the deceased Mst. Chuttan and Khan lying at a distance of about 4 0 paces from the house of the appellant. There was also a pool of blood in a pit at a distance of 80 paces from where the dead bodies were lying. There were dragging marks and a trail of blood between the pit and the dead bodies. A bloodstained hatchet with a broken handle was lying near the dead bodies, while another hatchet stained with blood and a country made pistol was lying in the pit. An ajrak and a juti were lying in the wheat cultivation at a distance of about 12 paces from the pit. S. H. O. Khaliqdad P. W. 8 found dragging marks leading from inside the house of Khuda Bux upto the dead bodies. He also noticed absence of any trail of blood between the house and the dead bodies.

6. The judicial confession of Khuda Bux was recorded by the Resident Magistrate, Tando Adam on 22nd February 1960 at about 5‑30 p.m.

7. There is no doubt that the deceased Khan and deceased Chuttan were murdered. The post‑mortem was performed by Dr. Noor Muhammad. He found 8 incised wounds and one contused wound on the dead body of deceased Khan and 16 incised wounds and one abrasion on the dead body of deceased Mst. Chuttan.

8. The defence was that Khuda Bux killed Khan as well as Mst. Chuttan as a result of grave and sudden provocation inasmuch as he saw them in a compromising position. Khuda Bux all along maintained before the committing Magistrate as well as before the Sessions Judge that he killed Khan and Mst. Chuttan as they were Karo Kari and that he saw them in compromising position.

9. The only question for' our consideration is whether the defence has been able to make out a case of grave and sudden provocation so as to bring the case within the exception 1 of sec tion 300, P. P. C.

10. So far as the ocular evidence is concerned, there is only the evidence of Ali Muhammad, the brother of the deceased. He stated that while he was coming to his house he met his brother deceased Khan and Haji. On his enquiries Khan told him that he had been sent for by deceased Mst. Chuttan for criminal intrigue. Khan asked him to accompany him in case he might need his help. When they reached near the house of the appellant they both hid themselves in the jungle and Haji went to intimate Mst. Chuttan about the arrival of Khan. In the meantime a person appeared wearing a head sheet and came near Khan. That person threw away the head sheet on the ground and started giving blows to Khan. In the meantime three other persons also appeared and gave blows to Khan. He ran away to his house and informed his father about what had happened. If the statement of All Muhammad was to be believed it would appear that Mst. Chuttan was not there at the time when Khan was attacked. The question that Khan and Mst. Chuttan were in compromising position would therefore not arise. There are however reasons why the statement of Ali Muhammad cannot be accepted without corroboration. His presence at the scene of offence no doubt is admitted in the statement of the appellant himself. The question is whether his statement is such which can be given Implicit reliance. Ali Muhammad denied to have given any injury to the appellant. The appellant stated in his confession that it was Ali Muhammad who had given him an injury on his leg. The doctor found an injury on the right leg of the appellant. Ali Muhammad however before the committing Magistrate had stated that be had given a hatchet blow to Khuda Bux and left the hatchet there. He also denied before the Sessions Judge that he stated before the com mitting Magistrate that Khan used to visit Mst. Chuttan. Before the committing Magistrate he had so stated. This would lead one to the conclusion that P. W. Ali Muhammad wanted to hide the fact that Khan was seen in a compromising position with Mst. Chuttan. The possibility of Ali Muhammad concealing the fact that he saw Mst. Chuttan and Khan together at the time when the incident took place cannot be overruled. In this connection It is difficult to ignore the F. I. R. which was made by Changal, the father of the deceased Khan. Changal stated in the F. I. R. as under:‑ "After about an hour, on the north side, there came cries of 'murder, murder' from the side of Khuda Bux Khoso's house. I stood up, when my son Alu came in the otak raising cries. Wali Muhammad and my son Nek also came there. Alu told that Khuda Bux has killed Khan inflicting hatchet blows on him and that he has also murdered his wife. Then I, Wali Muhammad, Ahmad and my son Nek went to the place of occurrence." Changal in cross‑examination admitted what he had stated in the F. I. R. He stated as under:‑ "Alu had told me that both the accused and others whom he did not identify had committed the murder of deceased Khan as well as Mst. Chuttan. I had stated so in my F. I. R. I had also stated in my F. I. R. that Alu had told me that accused Khuda Bux had committed the murder of his wife and deceased Khan." This statement of Changal would give a complete lie to the state ment of Ali Muhammad that he had seen the murder of Khan only. The earliest version of the prosecution case is that which is given in the F. I. R. This has been adhered to by the complainant who lodged the report. It is quite clear that All Muhammad realising that he would be supporting the appellant in his defence if he were to admit that he saw the murder of Khan as well as of Mst. Chuttan resiled from his statement which he gave to this father.

11. In view of the fact that complete reliance cannot be placed on the statement of P. W. Ali Muhammad, the question is whether there are circumstances which would demolish the defence theory that the appellant murdered Khan and Mst. Chuttan because he saw them In a compromising position. The learned Additional Sessions Judge relied on the following circumstances In support of his conclusion that it was not a case of grave and sudden provocation :‑ (1) that the statement of the accused that he saw Khan and Mst. Chuttan naked and in compromising position is not sup ported by the medical evidence as well as the mashirnama, Exh. 20 ; (2) that the appellant did not state to P. W. All Muhammad Makrani while admitting that he had killed Khan and Mst. Chuttan that he had seen them in compromising position ; (3) that the murder of Khan was pre‑planned. These grounds when examined do not lead one to the conclusion that the defence, In the absence of any positive evidence on behalf of the prosecution, is false. We propose to examine these grounds separately.

12. It is true that the mashirnama does not disclose that the dead bodies were naked. The appellant may have exaggerated by saying that he actually saw them in the act of sexual intercourse. What has to be considered is whether he saw his wife at night time with her paramour. This would be sufficient to give the appellant the protection of the Exception 1 of section 300, P. P. C. on the fact disclosed by the prosecution itself it would appear that Mst. Chuttan may well have come to meet her paramour. No reason is suggested as to why the appellant should kill Khan without making sure that his wife in fact was on terms of illicit intimacy with Khan. If the only object of the appellant was to kill Khan he A could have done it at any time. The fact that there are marks of dragging leading from the house to the place of incident would not necessarily lead one to the conclusion in the absence of any ocular evidence that the appellant, after having murdered Khan, dragged Mst. Chuttan from the house and then killed her. He may be that when Khuda Bux saw Khan and Mst. Chuttan to gether and started giving hatchet blows to Khan. Mst. Chuttan ran towards the house. He may well have caught her and dragged her to some distance and then killed her at the place of the In cident. As we have already mentioned the statement of complainant Changal would suggest that P. W. Ali Muhammad had seen the murder of both the persons and then gone and informed the complainant. If it was a fact that Mst. Chuttan was not at the place of incident and Khuda Bux had dragged her out from the house and then killed her this fact would have found place in the F. I. R. The absence of disclosure of this fact in the F. I. R. would suggest that Khan and Mst. Chuttan were seen together at the place of incident.

13. The fact that Khuda Bug did not tell P. W. Ali Muhammad Makrani that he had killed Khan and Mst. Chuttan as he had seen them in a compromising position would not lead one to the conclusion that in fact he did not see them in that position. The omission to state this would not lead one to the conclusion that it did not exist.

14. The learned Judge has dealt at some length that the murder of Mst. and Khan was pre‑planned. The circumstances which he has mentioned do not necessarily lead to that conclusion. The learned Judge has relied on the fact that Khan apprehended his murder and that is why he took Ali Muhammad with him. The apprehension on the part of Khan does not lead one to the con clusion that the murder was pre‑planned. Even if it is conceded that Haji took Khan to the place of incident it would not mean that he had done so at the instance of Khuda Bux. He may have as usual, taken Khan to the house of Khuda Bux not knowing that Khuda Bux will surprise Khan and Mst. Chuttan. There are, no doubt, a number of injuries on the dead bodies. This may be due to the fact that other persons also joined in the offence. On the cries raised by Khan some persons may have came and helped him to dispose of these two persons. On the other hand, there are more extensive injuries namely 17 in number on the body of deceased Mst. Chuttan. This would show that Khuda Bux gave her so many injuries because he was very much infuriated at her conduct. There are only 8 injuries on the dead body of deceased Khan. After Khan received one or two injuries on his person he must have been Incapacitated. It was not necessary to get the help of others to dispose him of. The fact that the deceased Khan was not able to offer resistance may be due to the fact that he was taken absolutely by surprise.

15. For the reasons given above, the plea that Khuda Bux killed Khan and Mst. Chuttan because of grave and sudden pro vocation cannot be overruled in the absence of any positive evidence to the contrary. We would, therefore, set aside the conviction and sentence of the appellant under section 302, P. P. C. and convict him under section 304, Part I, P. P. C. there are two questions now that require our consideration namely whether the appellant should be convicted under section 304, Part I, P. P. C. and as to what should be the sentence. The number of injuries on the person of Mst. Chuttan as well as on the person of Khan would show that the intention of the appellant was to kill them. We would sentence the appellant under section 304, Part I, P. P. C. to undergo 10 years' R. I. We have given the sentence of 10 years' R. I. as it is very common in this part of the country to murder the karo and kari on slightest suspicion. The punishment in such cases, to our mind, must be such which has the effect of being deterrent. S. B. Conviction altered.