P L D 1983 Peshawar 7 (PLP)

(1) Fire‑arm injury on the right shoulder joint 6" in size. Hole of fracture. Charring on the shoulder present. This was inlet wound. (2) Fire‑arm injury on the right shoulder 4" in size. This was the outlet wound. A fire‑arm injury on the acromial. She also recovered two pellets from the body of the deceased of " x " in size. On internal examination she found stomach and its contents empty. Sex organs showed semen on the vulva, vagina. Vagina was full of semen discharge. She also stated that sexual intercourse had taken place within 3 to 4 hours. She stated that Exh. P. G. post‑mortem report and pictorial Exh. P. G. I were in her handwriting and correctly bear her signatures.

4. This Lady Doctor also worked with Dr. Haji Parvez Akbar Khan for sufficient time and she was well acquainted with his handwriting and signatures. As he had gone to Lahore for his further studies, the post‑mortem report of the deceased Ashrafuddin (Exh. P. H.) and the pictorial (Exh. P. H. I) prepared by the doctor were got proved through this witness.

5. Ahmadullah (P. W. 5) deposed that in his presence the 'shalwar' and 'swater' Exhs. P. 6 and P. 7 having. corresponding cut marks and charring belonging to Ashrafuddin deceased were produced to the Investiga ting Officer by Abdul Wadood F C who brought the same from the doctor. In his presence the aforesaid F C also brought the 'dopata', shirt and shalwar Exh. P. 8 apd P. 9 having corresponding cut and charring marks belonging to Mst. Jamshida deceased, and produced the same to the investigating Officer. This witness is a member of the Union Council and a landlord of the village. He stated that according to the Pashto code of honour if a son finds his father committing sexual intercourse with his wife, he would be justified to do any act in the heat of passion.

6. In the presence of Khaista Gul (P. W. 6) the Investigating Officer recovered the shot‑gun (Exh. P. 10) of .12 bore from the bath‑room of the house at the pointation of the accused which was smelling of freshly dis charged powder.

7. Mohammad Umar (P. W. 7) deposed that in his presence the Investi gating Officer took into possession some blood‑stained earth from two different spots where deceased Ashrafuddin and Mst. Jamshida were lying murdered. The Investigating Officer also recovered a 'charpai' having blood stains and also took into possession a pillow lying on the 'Charpai'. In his presence the Investigating Officer also recovered two empty shells of .12 bore, smelling of freshly discharged powder, 6 pellets and 5 card board discharges. This witness stated that he was a marred man and the pillow recovered from the centre of the 'Cbarpai' was meant to facilitate sexual intercourse.

8. Momin Khan Sub‑Inspector (P. W. 9) deposed that during the days of occurrence he was posted as S. H. O. Police Station Umarzai. He had investigated the case and referred to various recoveries from the spot. He arrested the accused on 7‑4‑1980 and at his pointation recovered SB shot gun from the bath room situated in the courtyard of the house of the accused. He also prepared the site plan (Exh. P. B.) and sent the blood stained earth to the Chemical Examiner, the result whereof is Exh. P. G. He also sent 'topak' alongwith empties recovered from the spot to the Arms Expert and received his. result Exh. P. G. 1 which was in the negative. He produced the accused to local Magistrate on 8‑4‑1980 for recording his confessional statement. He deposed that Abdur Rehman Moharrar Head Constable had remained with him for sufficient time and thus he was well acquainted with his signatures and hand‑writing and as the said 'Mobarrar' was seriously ill, the F. I. R. Exh. P. A. Injury sheet Exh. P. C. and inquest report Exh. P. C./1 of deceased Ashrafuddin and Injury‑sheet Exh. P. D. and inquest report Exh. P. D. 1 of deceased Mst. Jamshida which were prepared by the said Moharrar, were got proved through this witness.

9. Abdul Jalil Assistant Political Agent, Mohmand Agency (P. W. 11) was appointed as a Magistrate 1st Class, Charsadda during the days of occurrence. On 8‑4.1980 the accused‑appellant was brought before him by the police for recording his confessional statement and this witness after observing all the legal formalities recorded the confessional statement of the appellant (Exh. P. X.) which correctly bears his signature and also the thumb impression of the accused.

10. The accused when examined under section 342, Cr. P. C. in the trial Court, adheared to his confessional statement and pleaded for the mercy of the Court as he had acted under grave and sudden provocation on finding his father and his own wife in a compromising position. The confessional statement (Exh. P. X.) of the accused, recorded by the Magistrate on 8‑4‑1980, is to the following effect :‑ "On the day of occurrence I, my mother, my father and my wife took morning tea, after taking tea I went outside alongwith shot‑gun (produced in the Court), before going out my father told that he is going for labouring and my mother went to field to cut grass for the goats. At early noon I came to the hujra near to our house, as there was no one present, therefore, I went to my house, when I entered the house, I saw the door of the Kotha closed. I ‑ pushed the door and found my father Ashrafuddin and my wife Mst. Jamshida were lying in Charpai. They had put off their shalwars and were commit ting sexual intercourse. When they saw me my father jumped over me, I shot a fire at him by which he was hit. He again tried to over power me, but I fired another shot at him. Then I fired a shot at my wife by which she was hit and fell on the Charpai. After committing the murders of my father and wife I decamped from the spot. Three days after the occurrence Rashid Khan of our village brought me to P. S. where I was apprehended and on my instance the shot‑gun on which I have committed the offence was recovered and produced in this Court." From the perusal of the confessional statement and the record of the case it becomes abundantly clear that undoubtedly .the accused‑appellant is responsible for committing the murder of his own father Ashrafuddin an his own wife Mst. Jamshida, having seen them in the act of committing sexual intercourse, with the shot‑gun which he was already carrying for his self‑protection. Obviously the offence would, not be that of murder under section 302, P. P. C. as it is covered by the provisions of Exception I to section 300, P. P. C. whereunder culpable homicide is not murder if the offender whilst deprived of the power of self‑control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. It was quite natural that, on seeing both the deceased fragrante delicto the appellant lost the power of self control. No doubt the provocation was not only grave but also sudden and the appellant acted under the immediate impulse of provocation. The appellant, on opening the door of the room, all of a sudden found both his father and his wife naked and committing adultery. Thus there can be no manner of doubt that this was a case of gravest form of provocation and the accused‑appellant, by killing both of them, did not comit murder but had committed lesser offence, namely, culpable homicide not amounting to murder.

10. In the circumstances, the learned trial Court was fully justified in convicting the accused appellant under section 304 (Part I), P. P. C. by giving him the benefit of grave and sudden provocation and the learned counsel appearing for the state has not controverted this legal position.

11. Regarding the sentence of three years' R. I. imposed by the trial Court, the learned counsel for the appellant referred to Qada v. the State (P L D 1975 Lah. 1513) and prayed for the reduction of the sentence. In the cited case the accused was convicted under section 304 (Part 1I), P. P. C. and sentenced to 5 years' R. I. by the trial Court for committing the murder of his own wife and her paramour, while acting under grave provocation, but the High Court reduced the sentence to the period of imprisonment already undergone by him. A reference can also be made with the advantage to the case of Muhammad Shaft v. Crown (P L D 1950 B J 68), wherein the accused was charged for killing his wife who was found in actual act of intercourse with her paramour. He was sentenced to imprisonment already undergone by the High Court. Similarly in Azizur Rehman v. Crown (P L D 1950 Pesh. 76), the accused appellant found his wife in compromising position with a stranger and thus in the pulse of grave and sudden provocation, he committed the murder of his wife whilst deprived of the power of self‑control. His conviction under section 302, P. P, C. and sentence of transporation for life were set aside by the High Court and instead he was convicted under section 304 (Part 1), P. P. C. and sentenced to the period of imprisonment already undergone.

12. Thus having given full consideration to the question of sentence awarded to the appellant in this case, I have come to the conclusion that in the peculiar circumstances of the case, it would meet the ends of justice if the sentence of imprisonment is reduced to the period already undergone. Therefore, while dismissing the appeal, the sentence of imprisonment of the appellant is reduced to the period already undergone by him. S. A. H. Appeal dismissed. Sentence reduced.