1977 P Cr (PLP)

2. The occurrence took place on the 18th of February 1971 at about peshiwela in the locality of village Khairapar, and the first information report about the occurrence was lodged by Jan Muhammad (P. W. 8), the same day at 4‑30 p.m. at Police Station, Ganda Singh Wala which was recorded by Sanaullah Sub‑Inspector (P. W. 12).

3. The motive, according to the prosecution, for the murder of Mst. Hamidan was that the appellant suspected her of illicit relations with Muhammad Sharif son of Ahmad Din.

4. After recording the first information report, the Sub‑Inspector proceeded to the place of occurrence. Jan Muhammad P. W. produced blood‑stained hatchet P.

1. Which was taken into possession and made into a sealed parcel vide memo. Exh. P. C. He arrested the appellant and also got removed blood‑stained shirt P. 2 and chadar P. 3 from his person and made them into a sealed parcel vide memo. P. D. He prepared the inquest report Exh. P. E. and injury statement Exh. P. F. of the deceased and despatched the dead body to the mortuary for post‑mortem examination.

5. Doctor Anis Ahmad Qureshi conducted post‑mortem examination of the dead body of Mst. Hamidan on the 19th of February 1971 at 8‑00 a.m. He found nine cut wounds and three abrasions on the dead body. Vaginal swabs sent by the doctor to the Chemical Examiner were found to be stained with semen.

6. Nobody saw the actual killing but the prosecution in support of its case relied on the extra judicial confession made by the appellant before Muhammad Sharif (P. W. 7) and Jan Muhammad (P. W. 8), the recovery of hatchet P. 1 and blood‑stained clothes removed from the person of the appellant as well as the confession recorded by Agha Ghazanfar Ali, Assistant Commissioner, Kasur.

7. A detailed reference to the statement made by the appellant would be necessary, because he admitted to have killed his wife and also admitted the recovery of hatchet P. 1 as well as the blood‑stained clothes but took up the plea that the murder was committed under grave and sudden provocation. When examined by the trial Court, it was admitted by the appellant that the deceased was married to him two years before the occurrence but after a short while the spouses fell out and Mst. Hamidan left the appellant and started living with her parents. When questioned as to whether he suspected his wife to be carrying on with Muhammad Sharif (P. W. 6), the appellant said that it was incorrect. However it was admitted by the appellant that he confessed his guilt before Muhammad Sharif and Jan Muhammad P. Ws. regarding the murder of his wife but stated that he had disclosed the reason why he did this. According to the appellant, he was grazing his sheep when he saw his wife in a compromising position with Mukhtar and therefore, killed her. He admitted that Jan Muhammad and Muhammad Sharif P. Ws. produced him before the police and that at that time he was wearing blood‑stained shirt P. 2 and chaddar P.

3. Similarly, it was also admitted by him that the hatchet, which he produced before Jan Muhammad who produced the same before the police, was stained with blood. Regarding the confession alleged to have been made by the appellant before Agha Ghazanfar Ali, his answer was:‑ "It is incorrect that I made a voluntary confession. In fact, the Sub‑Inspector tortured me and he forced me to make the confes sion. I stated whatever I was tutored by the police Sub‑Inspector. The Presiding Officer never told me that he was a Magistrate." When questioned as to why this case was against him, the appellant stated "My wife was bad character. I saw her in a compromising position and killed her out of grave and sudden provocation and therefore this case."

8. In view of the statement made by the appellant, the sole question to be considered is whether the appellant had successfully brought his case within the exception of grave and sudden provocation. For that a reference will have to be made to the evidence of extra judicial confession and even to motive. The appellant admitted to have made the extra judicial confession before Muhammad Sharif and Jan Muhammad P. Ws. but stated that the reason given by him was different than that of the prosecution. Both Muhammad Sharif and Jan Muhammad admitted that when they asked the appellant as to why he had killed his wife he told them that he had seen her in a compromising position with Mukhtar, a resident of their village. Under no circumstances, this evidence can be ignored specially when it finds support of the Chemical Examiner that the vaginal swabs were stained with semen. This is ample proof of the fact that Mst. Hamidan indulged in sexual intercourse before she was killed.

9. The next point to be considered is how much weight can be attached to the judicial confession alleged to have been made by the appellant. I have gone through this statement. Learned counsel for the appellant attacked this evidence on two grounds, firstly, it was argued that this deserved to be discarded on the ground that the Magistrate failed to fulfil the essential legal formalities before recording the confession. For this reliance was placed on Mst. Said Begum v. The State (P L D 1958 Lah. 559). It was next argued that it had not been established by the prosecution that the appellant made the confession voluntarily. There is nothing on the record to suggest that the presiding officer disclosed his identity, he did not even comply with the essential legal formalities. Learned counsel, therefore, rightly cited Mst. Said Begum v. The State.

10. The statement of the appellant finds support from the evidence of Muhammad Sharif and Jan Muhammad P. Ws. as well as from the report of the Chemical Examiner. It becomes, therefore, highly doubtful whether the appellant made the judicial confession voluntarily, as such it will have to be excluded from consideration.

11. The appellant was a shepherd by profession and there was nothing unusual for him to carry a kulhari with him. There is nothing on the record to suggest that the killing of Mst. Hamidan was pre‑planned. The detailed statement made by the appellant is very frank and straightforward confession of his guilt and I have no reason to disbelieve him. I am, therefore, of the view that the case of the appellant falls within Exception I to section 300, P. P. C. His conviction, therefore, under section 302, P. P. C. is not legally maintainable. I would therefore, alter his conviction under section 304, Part 1, P. P. C.

12. The appellant is a young man of 30 years. He had suffered enough. The sentence already undergone would, therefore, meet the ends of justice. I would, therefore, partly allow this appeal, alter the conviction of the appellant from section 302, P. P. C. to under section 304, Part I, P. P. C. and order that he would be released forthwith if not required in any other case. The sentence of fine is also remitted.