1980 P Cr (PLP)

(2) One incised wound 2" x 1/4" x skin deep blow chin. (3) One incised wound 4" x 2" x bone deep on right side in front of neck. (4) One incised wound 3" x " muscle deep below injury No. 3. (5) One incised wound 4" x 1 " x bone deep on back of neck. (6) One abrasion 2" x 1" on right scapular region. (7) One abrasion 1" x below injury No. 6.

8. In the opinion of the doctor the death was due to shock and haemorrhage, as a result of injuries Nos. 1, 3 and 5, which were anti‑mortem, and appeared to have been caused by a sharp‑cutting weapon, such as a hatchet, except injuries Nos. 6 and 7, which appeared to have been caused by some hard and blunt substance. Injuries Nos. 1, 3 and 5 were individually sufficient for causing the death of the deceased, in the ordinary course of nature. The death was‑ instantaneous. Time between death and post mortem was found to be between 18 hours.

9. In his statement under section 342, 'Cr. P. C. he denied having intentionally committed the murder of his wife Mst. Amirzadi, by giving her hatchet blows. He however admitted that ' on the day of incident, he was returning from his work and when he reached his house, with the hatchet in his hand, he, found his wife and Mushtaq in compromising position and kissing each other, and were naked. He challenged them, on which Mushtaq picked up his loin‑cloth, and ran away. He pursued him for some distance, but could .not succeed in apprehending him. He returned and gave hatchet blows to his wife as he had lost his self control due to sudden and grave provocation on seeing them in naked and compromising position. He further stated that his wife was chaste and he had no suspicion against her. She had also given birth to a child from him. He further admitted having locked the room after killing his wife and left her lying inside the room. He also admitted having threatened villagers, not to enter his house, while he was armed with a hatchet out side the room. He further admitted that after killing his wife, he went to the taluka police station; with the blood‑stained hatchet and wearing shirt and loin‑cloth which were both blood‑stained. All the articles, viz. the shirt, loin‑.cloth and hatchet, were secured by the police. He had himself reported the ‑matter to the S. H. O.; regarding killing of his wife Mst. Amirzadi. He went on to admit that he led the police party and the Mashirs to his house, where he unlocked the room, with the key, which was in his possession and pointed out the body of Mst. Amirzadi lying inside the room. Finally, he admitted haying given a confession on the following day (2nd April 1978) before the Resident Magistrate Larkana and admitted its contents to be true. He however, stated that the witnesses who had deposed against him were interested and hostile.

10. We have heard Mr. Faqir Mohammad Jafri learned counsel for the appellant and Mr. Murtaza Hussain for the State. With their assistance, we have also gone through the entire evidence in the case. The main contention of the learned counsel, Mr. Jafri is that this is a ,clear case of `Kari', where the motive, for committing the crime, was to wipe off the disgrace caused to the family by the shameful conduct of the deceased. He has further argued that the appellant was throughout consistent in his defence right from the time of occurrence when he had informed the villagers not to come near him as he had killed his wife as 'Kari' and the conclusion of the case when his statement was recorded. It is further contended that the appellant had himself reported the matter to the police and lodged the F. I. R. He had produced the blood‑stained hatchet, with which he bad killed his wife. His clothes were blood‑stained, which were secured by the police. It is further pointed out that the evidence of the Investigation Officer Mohammad Iqbal S. H. O. who had visited the vardat shows that the appellant himself had pointed out the room, in which the dead body of the deceased was found lying and the room was Rocked from outside. The appellant had the key, with which he had opened the lock. He pointed out the dead body to the police. The police found the dead body, with hatchet injuries on the neck and other parts of the body. It has also been emphasised by Mr. Jafferi that the manner in which the shalwar was lying near the feet of the deceased and was inverted (Ubati), suggested that the deceased had put it off anti size was involved in shameful act, with her paramour Mushtaq. It has further been argued that the appellant had made a judicial confession voluntarily which was consistent with the circumstances of the case. Since in his statement, under section 342, Cr. P. C., the appellant had admitted having made the judicial confession, the prosecution did not examine the Magistrate who had recorded the confession, which was accepted in evidence under section 80 of the Evidence Act. The plea of the appellant is further found supported by the medical evidence.

11. The learned trial Judge had observed in the judgment that in his confession, the appellant, had clearly shown suspicion against his wife as a `Kari' with Mushtaq, but later on, in his statement under section

342. Cr. P. C. he had changed his stand, in order .to make out the case under section 304, Part (1), P. P. C., by stating that he had found his wife and Mushtaq in compromising position and kissing each other and were naked. He therefore, challenged them, on which Mushtaq picked up his lion cloth and ran away. He followed him for some distance but could not catch him. He returned and gave hatchet blows to his wife, due to grave and sudden provocation, as he had lost self control, on seeing them naked and in a compromising position. The learned Judge, therefore, found the case of the prosecution, for intentionally murdering his wife, proved against the appellant, under section 302, P. P. C. and sentenced him to death.

12. Mr. Murtaza Hussain has, also supported the judgment and has argued that the. offence, as indicated, falls under section 302, P. P. C. and the appellant cannot be given the benefit of Exception I of section 300, P.P.C. We find no force in this contention. On the basis of the record and the consistent stand taken by the appellant, we are inclined to accept his version, as is argued by Mr. Jafri, and we are of the opinion that the offence would fall under section 304 (1) P. P. C. and not under section 302, P. P. C.

13. There are three material witnesses examined in support of the prosecution case. They are Mst. Badarun Nisa (P: W. 3) aged about 10 Sears sister of the deceased Mst. Amirzadi, Haji Sanwa] P. W. 4 and Roshan.

14. We are not impressed with the version given by Mst. Badarun Nisa. In her examination‑in‑chief, she has stated that her mother and sister Razia had gone with Mushtaq to Larkana. This Mushtaq appears to be the same person, who was allegedly the `Karo' with the deceased. The association of this witness and of her mother with Mushtaq has great significance in this case. It was only on that day and not ever before that 1'0ushtaq had taken this witness, her mother and sister Razia to Larkana. On her return from Larkana her mother had brought some sweets, which this witness was asked to go and deliver to the deceased at exactly the time of occurrence. It is rather unusal, and such a coincidence does not take place in the ordinary circumstances. It was by chance that she had witnessed the occurrence. Her statement further was that she saw appellant and the deceased sitting on a cot in their house, when she gave sweets to the deceased. At that time, the appellant is stated to have dragged the deceased by holding her arm, inside the room, where he inflicted hatchet injuries to the deceased. This version does not inspire confidence, and appears to be cooked up story. After witnessing the occurrence, she went running to that same Mustaq who was sitting in the otaq of Siraj Faiz Mohammad with Haji Sanwal Rafiq, Natho and others. She told them that the appellant was giving hatchet blows to the deceased. There after, she went and informed her mother, who accompanied her to the house of the appellant, where a crowd of the villagers had collected and they had stopped them from going inside the house as the appellant was armed with a hatchet. Shah Nawaz who had his house adjacent to the house of the appellant, and one Mewo were admittedly present at the vardat. None of the witnesses present at the vardat were produced and examined in the case.

15. The next witness is Haji Sanwa] (P. W. 4) He came to the place of occurrence on being informed by Mst. Badarun Nisa. His contention was that the appellant was also present in the Otaq of Faiz Mohammad and had played cards with them. At 3 p. m. the appellant accompanied by Nadho Mirbahar and Rafique Jatoi had left the Otaq together. This is not the case of the prosecution. He admitted that on reaching the vardat. the women collected there, told him that the appellant was saying that he had killed his wife, because she was `Kari' with Mushtaq. This witness was playing cards with Mushtaq in. the Otaq of Sirai Faiz Mohammad. He had not witnessed the occurrence. He went to the vardat with Nadho Mirbahar, Rafique Jatoi and Mushtaq. The women collected there had stopped them from going inside the house of the appellant therefore, they returned to the Otaq. The statement of this witness is palapably false. His conduct is unnatural and his version does not support the case of the prosecution.

16. The last witness is Roshan (P. W. 5). In his examination‑in‑chief, lie had admitted that the appellant had told all those present at the vardat that he had killed his wife as `Karl'. ;Ibis witness is also not eye‑witness of the occurrence. He had reached the vardat and stood outside the hedge of the house of the appellant. When this witness had reached the place of occurrence, nobody else had reached there. As per his statement, he was the first person who had reached there. He did not see any body coming outside of the house of the appellant. His version belies the statement of Mst. Badarun Nisa. This witness further admits that the appellant had informed him that he had killed his wife as `Karl' with Mushtaq. From the statement of this witness, it is obvious that Mst. Badarun Nisa who. was of a tender age of 10 years was introduced in the case in order to deprive the appellant of the benefit of exception I of sec tion 300, P. P. C.

17. The evidence of witness Roshan is brief, and mentions only the fact that when he reached the vardat the appellant told them that he had killed the deceased as Kari, whereas, witness Ramzan who is the Mashir of the arrest and recovery of clothes of the appellant and the hatchet and Qurban Ali, the Mashir of the vardat, speak of facts which are admitted 'A by the appellant.

18. As a result of the above discussion of the evidence, we have no material, to place implicit reliance, _ upon the version deposed by the witnesses.

19. White referring to the evidence of the Investigation Officer, we find that his evidence is not disputed by the appellant, in respect of lodging of the F. I. R. by the appellant and recoveries of his clothes and hatchet from him. This witness was taken by the appellant himself, who had pointed out the place of occurrence and had opened the room in which the half‑naked body of the deceased was lying. This witness has admitted that the body bad no shalwar on and it was lying near the feet. It is evident therefore, that there is great force in the contention of Mr. Jafri.

20. From the facts narrated in the confession, we find that they are more or less in conformity with the F. I. R., as well as the other pieces of circumstantial evidence which have been discussed herein above. The evidence indicates that suspicion had arisen in the mind of the appellant about his wife being Kari with Mushtaq and such a suspicion cannot be considered as groundless. In support of his contention. Mr. Jafri, has cited several authorities out of which, we think 1979 S C M R 48 and 1979 P Cr. L J 10 are relevant. We find that the case of the appellant is such, whereby he can safely be given the benefit of Exception I to sec tion 300, P. P. C. The offence would accordingly fall under section 304 (I), P. P. C.

21. The appellant is Jatoi by caste. In our society the male members and particularly the husbands do take upon themselves to control the actions of their women folk, particularly the wives. When he found his wife involved in a shameful act, the natural reaction, would be of deprivation of the power of his self‑control by grave and sudden provocation. We further find that the appellant has remained in custody since the day of occurrence (1st April, 1978) and as a condemned prisoner, after the pro nouncement of the judgment (30th September, 1978).

22. We would accordingly alter the conviction from 302, P. P. C. to 304 (I), P. P. C., and reject the reference. As far as the sentence is concerned, we feel that the sentence already undergone would meet the ends of justice. The appeal is partly allowed. The appellant shall be set at liberty forthwith if not required in any other case. GHAUS ALI SHAH, J.‑I agree. Order accordingly.