P L D 1963 (W (PLP)

BASHIRUDDIN AHMAD, J.‑--Kamir, who was tried by the learned Additional Sessions Judge, Lyallpur Division at Jhang, for the murder of his brother's wife Mst. Satto, on the 19th of March 1962, was convicted and sentenced under section 302, P. P. Code to suffer death and pay a fine of Rs.

50. The condemned person has appealed, and the case is also before us under section 374, Cr. P. Code for confirmation of the sentence of death. This judgment will dispose of the appeal as well as the reference.

2. According to the prosecution, the appellant lived in a kotha opposite to the kotha of his brother Ahmad but, being a bachelor, he used to have his food with Ahmad. The story goes that the appellant started making advances towards Mst. Satto, but the deceased did not surrender her virtue and Ahmad discontinued speaking to the appellant who started nursing a grudge against the deceased.

3. A couple 'of days before the occurrence under con sideration, Nabi Bakhsh (P. W. 10) went to the house of Ahmad to install a hand‑pump. The appellant came there and greeted Nabi Bakhsh but did not wish his brother Ahmad. Nabi Bakhsh told the appellant to make up with his brother but the appellant retorted that Nabi Bakhsh had no business to interfere in their affairs.

4. On the fateful day, at digarwela, the appellant went to the field of one Ghulam where the deceased was busy cutting the grass. The appellant challenged his brother Ahmad who was also present there. Ahmad fled. The appellant turned his attention towards the deceased and attacked her with a hatchet killing her at the spot. The cries raised by the husband of the deceased attracted Ahmad son of Sultan (not produced) and Ramzan to the spot. They also saw the occurrence. The appellant escaped towards the bela.

5. The report regarding the occurrence was made by the husband of the deceased at 8 a.m. on the 20th of March 1962, at Qadirpur Police Station, which is at a distance of nine miles from the scene of the crime.

6. The case was investigated by Sub‑Inspector Umar Hayat (P. W 18) who went to the spot, prepared the injury statement and the inquest report and then despatched the dead body to the mortuary for post‑mortem examination.

7. The Sub‑Inspector took into possession blood‑stained earth from the spot and sealed it into a parcel vide memo. Exh. P. H. The investigating officer also took into possession sickle (Exh. P. 10) and a heap of grass including kan etc. vide memo. Exh. P. J.

8. The appellant surrendered to Chaudhry Habib Ullah Khan, District Inspector of Police, P. W. 9, on the 20th of March 1962, in his office with the application Exh. P. F. The Inspector of Police removed blood‑stained chadar Exh. P. 8 and shirt Exh. P. 9 from the person of the appellant and sealed them into a parcel vide memo. Exh. P. E. The appellant was then put under arrest.

9. On the following day the appellant led to the recovery of blood‑stained hatchet Exh. P. I from a wheat‑field and the same was taken into possession and sealed into a parcel vide memo. Exh. P. K. by the police.

10. Doctor Yusuf Ali, District Health Officer, Jhang, P. W. 1, who conducted the post‑mortem examination on the body of the deceased on the 21st of March 1962, at 7‑45 a.m., observed the following injuries thereon (1) An incised wound, 5 " x 4" x 4" on the back of the neck, just below the head, cutting‑off the hair, first cervical vertebra and up to mouth cavity, and also lower lobe of the right ear. (2) An incised wound, 3" x 1" x 2", on the left side of the neck, just below the left end of injury No. 1. (3) An incised wound, 3" x 1" x 2", on the right side of the back of neck, almost in line with injury No. 2. (4) An incised wound, 4" x 1" x 1 " on the back of neck, just above the shoulder. (5) An incised wound 4 " x 1 " x 2' on the left side of the head, cutting left ear to its middle. (6) An incised wound, 2" x 1" x " on the back, between the shoulder bone. On the dissection the doctor found that the first cervical vertebra, the spinal cord, the larynx, the blood vessels of the back of neck and the left side of neck were cut. Death, in the opinion of the doctor, was due to the cutting of the spinal cord from head and of the blood vessels. Injuries Nos. 1 and 5, according to the doctor, were sufficient in the ordinary course of nature to cause the death.

11. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. He came forward with the version that he had taken a hatchet and had gone out to cut wood when he found the deceased flagrante delicto with one Dilla and deprived of the power of self‑control he attacked the deceased after her paramour had managed to escape and caused her injuries under sudden and grave provocation. Defence evidence was not called.

12. The occurrence being admitted, the question that needs consideration is which of the two rival stories is correct. The prosecution case rests on the statement of Ahmad alone which he made before the Committing Magistrate. Since Ahmad made a different statement at the trial, his statement which he made in the Committing Court was brought on the record under section 288 of the Code of Criminal Procedure. Ramzan, who was examined as the seventeenth witness for the prosecution, was declared hostile. He was allowed to be cross‑examined. Ramzan stated during cross‑examination that Ahmad son of Raja told him that Mst. Satto deceased was found in a compromising position with Dilla when Kamir appellant surprised them and killed her. It is also in the statement of this witness that Ahmad son of Raja did not tell him that he himself saw the occurrence. Ahmad son of Sultan was given up by the prosecution. We are thus left with the statement of Ahmad son of Raja. He made different statements at different stages in the case. He stated before the Committing Magistrate that at digarwela he went to the bela which is at a distance of 1 miles from the village, and found the deceased present there with a bundle of grass. Continuing the witness stated that Kamir appeared on the scene armed with a hatchet. He challenged Ahmad and his wife. Ahmad took to his heels. Mst. Satto could not run as she was in a family way. She was given hatchet blows by the appellant, and when Ahmad son of Sultan (not produced) and Ramzan (P. W. 17) turned up on hearing the outcries, the appellant managed to escape. The complainant took a complete somersault in his statement at the trial. He disowned the first information report and gave an utterly different version at the trial. He said in his statement that when he went to the bela, at digarwela, to help his wife in lifting the bundle of grass, he found that the deceased had cut only a small quantity of grass. He asked her what she had been doing the whole day in the bela and she replied that grass was scarce. Ahmad said further that Dilla (P. W. 14) came up and told him to go and cut fodder from his field. Ahmad says that Dilla was talking to the deceased when he left for the field of Dilla and had gone to a distance of two or two and a half killas when he heard an alarm and noticed Kamir giving injuries to Mst. Satto. He questioned Kamir who called Ahmad a shameless person. Ahmad admitted during cross -examination that he noticed Dilla running away from the spot with his loin‑cloth in his hand and that the loin‑cloth of the deceased was lying at some distance. The deceased was naked and that Kamir told Ahmad that he had seen the deceased in a compromising position with Dilla. 13. learned Additional Sessions Judge decided to rely on statement of Ahmad which he made to the Committing Court. The statement could be used as evidence, but the question is whether it is safe to rely on it to base conviction on. The question was considered in Subhan Khan and others v. The State (P L D 1960 Lah. 1) and it was held:‑ "Technically there may be no legal objection for a conviction being based on such depositions transferred under section 288, Cr. P. C., but as a rule of prudence, now well recognises, Courts must look for positive and material corroboration of such statements. The basic thing to consider as in all types of evidence, is, whether the evidence furnished by these statements is true. The mere fact that a witness has gone back on his previous statement and is helping the accused for one reason or another will not raise any presumption that the previous statement is true and the statement made at the trial is false as both may be untrue." It has been laid down in Lal and others v. The Crown (P L D 1954 F C 95) that while the Court has discretion to prefer the earlier statement of a witness, which has been transferred under section 288, Cr. P. C. to his later statement at the trial, that discretion must be exercised with great care, on a careful scrutiny of the two conflicting statements in relation to all other evidence and circumstances appearing from the record and not on mere surmise or con jectures as to possible reasons for the witness having resiled from his earlier statement. The learned Advocate‑General also cited Abdul Majid v. The State (P L D 1959 S C (Pak.) 486); Adalat and another v. The Crown (P L D 1956 F C 171) and Sarja v. The Crown (P L D 1951 Lah. 126). These decisions proceed on their own facts and are clearly distinguishable.

14. In the instant case we consider it unsafe to make the statement of Ahmad transferred under the provisions of section 288, Cr. P. Code, as the basis for a conviction on a capital charge. The delay of more than 12 hours in making the report to the police makes the prosecution case all the more doubtful. Since we have decided not to act upon the uncorroborated testimony of the complainant, who stands discredited by the evidence of Ramzan (P. W. 17), we accept the version put forth by the appellant. He gave his version in the application Exh. P. F. when he surrendered to the District Inspector of Police. The deceased had no business to remain in the bela, which is at a distance of 1 miles from the village, till digarwela, and we are inclined to believe the statement of Kamir when he says that he found the deceased flagrante delicto and deprived of the power of self‑control he killed her by means of a hatchet under sudden and grave provocation. In a somewhat similar case, reported as Muso v. The State (P L D 1960 Kar. 966) where the accused, a Baloch and Chandio by caste, asked the deceased, wife of his brother, whether, she was on terms of illicit intimacy with a third person, she replied in the affirmative, and this admission highly provoked Muso and it was on that account that he killed the deceased. It was held that there was grave and sudden provocation, and the case fell within exception to section 300 of the Penal Code. We are in respectful agreement with the view expressed above. We, therefore, set aside the conviction of the appellant for the offence under section 302, P. P. Code and the sentence passed upon him by the learned Additional Sessions Judge. We convict Kamir under section 304 Part 1, P. P. Code and sentence him to undergo rigorous imprisonment for a period of three years. The appeal is accepted to that extent, and the sentence of death is not confirmed. The fine, if paid, shall be refunded. K. B. A. Appeal partly accepted.