P (PLP)

MUHAMMAD SHAFI, J.‑

The judgment of the Court was delivered by Aziz‑ur‑Rahman, son of Ahmad, aged about 32 years, a Raj Put of Ganool village in the Hazara District, was in the Army from where he was discharged on the 9th of August 1946. He came to his village and married one Mst. Khanamji, daughter of one Aziz Ullah. She was already married to one Abdullah, who had died leaving behind three daughters amongst whom one was l11st. Khatoon (P. VV. 3), aged about 9 years. Aziz‑ur‑Rahman off and on was receiving news of the infidelity of Mst. Khanamji, and this seems to have perturbed him. Some time latel one day he saw Nasrullah, son of Barkatullah of Ganool talking to 161st. Khanamji, but on seeing him approaching, he fled away. Aziz‑ur‑Rahman repri manded his wife and asked leer to desist from talking to the strangers. Although lost. Khanamji had married Aziz‑ur Rahman, yet it is an admitted fact that she continued to live in the house of her former husband Abdullah. On the morning of the 9th of October 1949, Aziz‑ur‑Rahman went to cut grass. In the evening he went to his ancestral house, situated at Bela, where he took his meals, and thereafter he again got busy in cutting grass. He finished cutting grass at about midnight, when he returned to the house where his wife was living. Entering its court yard, he found the door of the kotha of the house closed from inside. He also heard the cracking sound of a cot and sus pecting that there was someone inside, he quietly thrust his hand and removing the wooden lever of the door opened it. He saw his wife and Nasruilah, son of Burk atullah lying together on a cot. Seeing him, Nasrullah got up and started putting the clothes on. Aziz‑ur‑Rahman picked up an axe, which was lying close by and dealt with it several blows to Nasrullah. who dropped down. Mst: Khanamji, who had no trousers on, started to run away. Aziz‑ur‑Rahman followed her, and also dealt axe blows to her with the result that she also dropped down. Aziz‑ur‑Rahman then went to Balakot Police Station, situated at a distance of 14'15 miles from the scene of occurrence and lodged a report there at 8 A.M., making a cleats breast of all what had happened. Muhammad Azim Khan, S. I. (P. W. 10), after recording the report .of Aziz‑ur‑Rahman, went to the scene of occurrence had found Mst. Khanamji lying dead without any trousers. Nasrullah was also lying dead on a charpai inside the kotha. , He was wearing the shirt, but one of his arms was outside the sleeve. Aziz‑ur‑Rahman was arrested and the two dead bodies were sent to the hospital for post‑mortem examination. Dr. Miss A. Diyal Chand (P. W. 1) performed the post‑mortem examination on the body of Mst. Khanamji, and found on her several incised wounds, bruises and abrasions. Dr. Muhammad Amin (P. W. 2) performed the Post‑mortem examination on the body of Nasrullah, and found four incised wounds on it :‑ (1) 2" x ", scalp deep, on the right side parietal region of scalp. (2) 3" x 1 " x 1" on, the left side neck associated with fracture of transverse process of 5th cervical vertebra. (3) 2" x 1 ", muscle deep, on the front of neck, associated with fracture of the thyroid cartilage. (4) 2" x 1 " x 1 " in front of the neck below No.

3. On the lath of October 1949, Aziz‑ur‑Rahman made a con fession before a Magistrate, in which he made almost a similar statement as he had in the F I .R. In due course he was committed to the Court of Session to stand his trial under section 302, Indian Penal Code. At the trial he stuck to big previous statements and admitted that he had murdered both his wife and Nasrullah, because he had seen them lying together on one charpai. The three assessors, who assisted the learned Sessions judge at the trial were of the opinion that the accused did commit the murder of the two deceased, but he did so under grave and sudden provocation. The learned trial judge disagreeing with the unanimous verdict of the assessors found the accused guilty under section 302, Indian Penal Code, and sentenced him to transportation for life. He appeal against his conviction and sentence from jail. Mst. Khanamji deceased, was living in her former husband's house as has been stated above along with her three daughters, one of whom was Mst. Khatoon (P. W 3), who is nine years old, and of quite an understandable age. It is proved beyond doubt that Nasrullah came to her house on the night of occurrence and lay down on the same charpai with her. No doubt Mst. Khatoon (P. W. 3) stated at the trial that Nasrullah came and lay down on a separate charpai; which was previously occupied by her mother, but reading her statement between the lines it is clear, that Nasrullah lay down on the same charpai with Mst. Khanamji. There was no purpose in Nasrullah's going to Mst. Khanamji's house and lying down on a separate charpai, because he had not gone. there just to sleep. Mst. Khanamji was not related to him, nor was he a normal resident of that house, so that he might go there. in order to sleep. It is definite that Lie went there with the set purpose of committing adultery with MO. Khanamji and in order to achieve that object, it can reason ably be presumed that he lay down on the same charpai with' Mst. Khanamji. The conduct of Mst. Khanarriji and Nasrullah to lie down to commit adultery was disgraceful enough, but to down with such purpose in presence of the former's children, particularly the girls, it was shamelessly disgraceful. These two persons were in the direct act of adultery when they were surprised by the appellant. This fact is not only proved by the statement of the accused‑appellant, which we have no reason to doubt, but also by the fact, that the, woman when murdered was without trousers and the man in the act of putting on the clothes. It is true, that Mst. Khatoon (P. W. 3) stated that the accused‑appellant since some time bad gone away from their house on the pretence of going down‑country to earn his livelihood but it Jas later discovered that he was in fact living in his ancestral house in Baila, and the latter part of her statement is corroborated by the evidence of Zaidullah (P. W. 6) and Ali Gohar (P. W. 7), yet on account of that reason alone it cannot be said that Mst. Khanamji ceased to be his wife, or that he was debarred in any way to come to that house. We cannot agree with the conclusions arrived at by the learned Sessions judge, that the accused‑appellant deliberately permitted Mst. Khanamji and her paramour to get together and then surprised and killed them. He had no hand in bringing Nasrullah to the house of Mst. Khanamji Nasrullah went to that house of his own accord, and with the evil intention of committing adultery with Mst. Khanamji. There was nothing wrong in Aziz-ur‑Rahman's seeking an opportunity to catch the two together, but from this it cannot be inferred that lie was seek ing the provocation for committing the murder. If that was his intention he should have gone about with some weapon in his hand, while as a matter of fact, when the accused‑appellant went to the crime house he was absolutely empty‑handed and took up the axe from there and dealt blows to the two deceased with it. We are not inclined to attach any importance to the statement of Mst. Khatoon, P. W . who states that the accused appellant had brought a dagger along with him with which he stabbed Nasrullah and then he picked p the axe and with that lie struck Mst Khanamji No dagger was found at the spot, and there is no allegation that the dagger was taken away by Aziz‑ur‑Rahman with him to the Police Station. We are in clined to accept the statement of the accused that oil the night. of occurrence it was just by chance that he, after, he had finished his work, went to his wife's house, where he was perfectly entitled to go at any time of the day or night. Going there he detected his wife and her paramour in flagrante delicto. Under these circumstances the blood of any husband, high or low, educated or uneducated, civilized or crude, will boil. The degree of boiling will perhaps vary with people of different countries and even with different persons in the same country. It all depends on the situation and character 'of the people, the state of general manner of a society and on many other incidental circumstances which may, to look at, be slight in themselves, but have most impor tant bearing on the feeling of the people. In this part of, the country where a mere casual talk by a woman with al stranger is looked upon by the relations and in particular the, husband of the women as well as the society with great, disapproval and resentment, the actual act of adultery must excite feelings incapable, of being explained in words. The husband seized the woman, whom he had legally married and who had promised and agreed to yield her body to him and him alone, submitting herself willingly to another man's lust and this alone, in our opinion, is sufficient to turn the husband mad. On the top of that has to be taken into account the height of degradation, which the husband has to suffer in the society. The accused‑appellant when he stated in the ' F I R that he had done something honourable by killing his perfidious faithless and immodest "wife' and her shameless paramour, he was giving vent to the feelings of the entire society, in which he was living. It is an unwritten but very well established law of the Code of morality of this country, that a man in order to maintain his honour has the right to kill his wife, who ceases he true to him and is guilty of illegal attachment with another man. The accused-appellant in this case did nothing but obeyed this Code and also perhaps the dictates of his conscience. The existing law of the land, however, does not excuse the murder under these circumstances, although it does give the offender the benefit of Exception 1 to section 300, Indian Penal Code. For the accused‑appellant to find Mst. Khanamji and Nasrullah in a compromising position, was a provocation grave and sudden enough to deprive him of the power of self‑control. If he com mitted the murder whilst still deprived of the power of self control his offence would certainly fall Under section 304 (Par I), Indian, Penal Code, and not under section 302, Indian Penal Code. We consequently alter the conviction of the accused appel lant accordingly. We have given very anxious consideration to the question of sentence, which should be awarded to the accused‑appellant. In view of what has been said above about the characteristics of the people of this country and the‑fact that it would have been quite impossible for the accused to live honourably in the society to which he belongs, if lie had not vindicated his honour, we think lie is entitled to get only a nominal punishment. We, therefore, reduce the sentence of tile accused‑appellant from transportation for life to that already undergone and order his re lease forthwith. The appeal is accepted to the extent mentioned above. Orders announced. K.M.A /A.H. Sentence reduced.