P L D 1966 (W (PLP)

(4) An incised wound, 1 " x " x skin deep on the front of left chest near the upper piece of sternum, transverse in direction. (5) An incised wound on the dorsal surface of right hand in the middle of fingers. The little finger was cut and attached to the hand by a tag of skin on palmer side. The ring, middle and index fingers were missing from the middle. The wound also extended to the palmer surface of the thumb. Cause of death, in the opinion of the doctor, was due to shock and haemorrhage as a result of multiple incised wounds on the body. Injuries Nos. 1 and 2 were individually sufficient to cause death in the ordinary course of nature.

5. On 19th October 1962, at 9‑30 a. m. the same doctor conducted the post‑mortem examination on the dead body of Mst. Piro and found the following injuries:‑ (1) An incised wound, 6" x 1 " on the brain cutting deep on the left parietal region longitudinal in direction. The parietal bone was cut 2" deep. (2) An incised wound 7" x 4" cutting the neck almost completely on the right side of neck, oblique in direction (11 to 5 O'clock). All the structures of neck were completely cut. The head was attached to the body by a tag of skin on the left side. The wound passed over the thyroid cartilage. All other organs of the body were healthy. Death, in the opinion of the doctor, was due to shock and haemorrhage as a result of incised wounds on the head and neck, due to which the main structures of neck and brain were injured. Both the injuries were individually fatal in the ordinary course of nature and were caused with sharp‑edged weapon.

6. Miru, appellant at the trial made the following state ment :‑ "I killed Mauj Ali and Mst. Piro out of grave and sudden provocation, when I saw them actually committing adultery. Mst. Piro was my relative."

7. Imam Din (P. W. 8) was produced by the prosecution to depose about the occurrence regarding the murder of Mauj Ali deceased and Mst. Haleema (P. W. 9) and Syed Amir Shah. (P. W. 10) appeared as eye‑witnesses of the murder of Mst. Piro deceased. The learned Additional Sessions Judge rejected the testimony of all the three eye‑witnesses and held that none of them was present at the spot and that no reliance whatsoever could be placed on their testimony. Since the learned counsel for the State did not challenge the observation of the learned Additional Sessions Judge that these three witnesses were present at the spot, at the time of the occurrence, we do not think it necessary to dilate upon this part of the prosecution case. We, however, have gone through the evidence of these witnesses and the reasoning advanced by the learned Additional Sessions Judge for rejecting their testimony. We are satisfied that the learned Additional Sessions Judge has given cogent reasons for discarding the testimony of these witnesses.

8. The blood on hatchet, Exh. P.3, allegedly produced by Miru appellant and on shirt, Exh. P.4, and chaddar, Exh. P. 5 allegedly removed from the person of Miru was found to be disintegrated and its origin could not be determined by the Serologist. Therefore, these recoveries are of no help to the prosecution.

9. However, Miru appellant admitted before the trial Court that he had killed Maui Ali and Mst. Piro under grave and sudden provocation when he saw them actually committing adultery. He claimed Mst. Piro to be his relative. The statement of the appellant finds support from the medical evidence. The uretheral swabs of Mst. Piro taken by the doctor, performing the post -mortem examination of her dead body, were sent to the Chemical Examiner, for examination and opinion. The report of the Chemical Examiner, Exh. P. R. shows that, the swabs, were stained with semen. In view of the statement of the appellant and the medical evidence on the record we are satisfied that Miru, appellant is responsible for the injuries caused to Mauj Ali and Mst. Piro deceased as a result of which both of them died.

10. The learned counsel appearing for the appellant had vehemently contended that the appellant had committed the murders of Mst, Piro and Mauj Ali under &rave and sudden provocation finding that the appellant's brother‑in‑law was committing adultery with a woman named Piro, a relation of his, and thus his case falls under Exception 1 to section 300 of the Pakistan Penal Code. We have viewed this aspect of the case with much consideration. There is nothing on the record to suggest that Mst. Piro was a close relation of the appellant, except the appellant's statement. In case Mauj Ali, was committing adultery with Mst. Piro, the appellant was not justified in causing the murders of both, because the appellant was not related to Mst. Piro in such a degree, as to cause him grave provocation. It was contended that the appellant's sister is married to Mauj Ali and that the appellant was justified for causing the murders of both, because, the appellant got provoked finding that his sister's husband is committing adultery with Mst. Piro, therefore, he was justified in causing their murders. We are of the view that the appellant must have been provoked,) seeing his brother‑in‑law committing sexual intercourse with Mst. Piro but this provocation was not such, as to bring his case within the ambit of Exception 1 to section 300 of the Pakistan Penal Code. In the circumstances the appellant was rightly convicted under section 302, P. P. C., but we cannot lose sight of the fact that the appellant must have been provoked seeing his brother‑in‑law committing adultery with a distant relation. Therefore, it would be a sufficient justification to set aside the sentence of death of the appellant.

11. Therefore, the death sentence of the appellant is not confirmed and the appeal of the appellant is accepted to the extent that while upholding the conviction of the appellant under section 302, P. P. C., on both counts, we reduce the sentence to transportation for life. With this modification in the sentence, the appeal is otherwise dismissed. Both the sentences shall run concurrently. S. Q. Sentence reduced.