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Criminal Appeal No. 543 and Murder Reference loo. 145 of 1964, decided on 12th January 1966.

S. 302 read with S. 300, Excep tion 1‑Grave and sudden provocation--‑Accused, seeing his sister's husband committing adultery with a woman distantly related to accused, murdering both‑Provocation, held, not such as to bring accused's case within ambit of Exception to S. 300‑Fact that accused must, in circumstances of case, have been provoked cannot, however, be lost sight of‑Sentence of death reduced to transporta tion for life.

Sh. Abdul Majid Asghar and Abdul Samad Hashmi for Appellant.

Mufti Nazar Muhammad for A.‑G. for the State.

Date of hearing: 14th December 1965.

Miru, son of Mebran, aged 25 years, along with Thejar and Hussain Bakhsh, was tried by Mr. Mahmood Khan, Additional Sessions Judge, Muzaffargarh, Camp Dera Ghazi Khan, for offence under section 302/34 of the Pakistan Penal Code, for having committed the murders of Mauj Ali and Mst. Piro, at zoher time (at about 5 p.m.) on the 17th of October 1962, in the area of village Nabi Shah, and was convicted under section 302 of the Pakistan Penal Code, and sentenced to death on two counts, subject to confirmation by this Court. His brother, Thejar, and nephew, Hussain Bakhsh, who were also tried along with Miru accused were acquitted by the learned Additional Sessions Judge. The appellant has filed an appeal, and the record of the case is also before us under section 374, Criminal Procedure Code, for the confirmation of death sentence imposed upon the appellant. This judgment will dispose of both the appeal as well as the reference together.

2. The prosecution story may be shortly narrated as follows. On the 16th of October 1962, Thejar accused (since acquitted) came to the house of Nasiban (P. W. 7), the father‑in‑law of his brother, Miru appellant, at about maghrabwela and asked for a pair of bullocks for ploughing his fields. Nasiban (P. W. 7), his brother's grandson Imam Din (P. W. 8) and his son Mauj Ali deceased, the husband of the sister of Miru appellant and Thejar accused took the bullocks to the field of Thejar accused, in the early hours of the day on the 17th October 1962, one pair of bullock was brought by the appellant, Nasiban and Imam Din P. Ws. Mauj Ali deceased, Miru appellant and Thejar accused ploughed the land of Thejar till midday. After the day's labour, all took their meals at the house of Thejar. Hussain Bakhsh accused (since acquitted) was also there. Mst. Halima (P. W. 9) daughter of Nasiban P. W. and Mst. Mehru, wife of Mauj Ali deceased, came to the house of Thejar to collect fodder for the bullocks. After the meals the deceased Mauj Ali and Nasiban and Imam Din P. Ws. left for their houses. They had hardly covered a distance of about one killa when Thejar accused called to Mauj Ali deceased to come back to lend help to Mst. Mehro. Accordingly, Mauj Ali deceased and Imam Din P. W. returned to the house of Thejar. At about 5 p. m. Imam Din P.W. went to Nasiban P. W. in his bajra field and informed him that Mauj Ali, had been done to death by Thejar arid Hussain Bakhsh accused and Miru appellant, when Thejar and Miru were armed with hatchets and Hussain Bakhsh was empty handed. On hearing this, Nasiban P. W. proceeded towards the spot, but on the way was told by Mst. Halima P. W. and Mst. Mehro that Thejar and Miru accused armed with hatchets, along with Husain Bakhsh, had murdered Mst. Piro near her house, and that after murdering her, they had put her body in a chaddar, which Hussain Bakhsh had lifted and taken the dead body towards the field of bajra. Mst. Halima P. W. also told Nasiban P. W. that Thejar accused had removed the blood‑stained earth with a kassi and that the occurrence had been witnessed, besides, Mst. Halima P. W. and Mst. Mehro, by Amir Shah (P. W. 10) and one Piran Bakhsh (not produced). Nasiban P. W, went to the place of occurrence in the company of one Mehr Ullah and saw in the bajra field the dead bodies of his son, Mauj Ali, and Mst. Piro, lying near each other. Leaving Mehr Ullah at the spot Nasiban P. W. went to Momin Shah P. W. and informed him of the occurrence, and he deputed the Chowkidar to accompany him to the police station and Nasiban, along with the Chowkidar went to Police Post Bangia Ichha to lodge the report, reaching there at about 10 p. m. the same day, after covering a distance of six miles from the place of occurrence, Nasiban P. W. lodged the first information report, Exh. P. A.

3. The first information report was recorded by A. S. 1. Malik Ahmad Khan (P. W. 12). After recording the report, Exh. P. A., the A. S. I. forwarded it to the Police Station Rojhan where the formal F. I. R. Exh. P. A. ‑I was recorded on the 18th of October 1962, at 5. p.m. by Ghulam Sarwar H. C. (P. W. 2). The Police Station Rojhan would be at a distance of about 13 miles from the place of occurrence. Malik Ahmad Khan, A. S. I. (P. W. 12) then proceeded towards the spot and reached the place of occurrence at 12‑30 midnight and saw the dead bodies of Maui Ali and Mst. Piro lying together. He prepared the injury state ment, Exh. P. O. and inquest report, Exh. P. Q. in respect of the dead body of Mauj Ali and injury statement, Exh. P. P. and inquest, report Exh. P. U. in respect of the dead body of Mst. Piro and despatched the dead bodies to the mortuary for post‑mortem examination. He took into his possession a part of the finger from near the dead body of Mauj Ali deceased vide memo. Exh. P. G. The A. S. I. also took into possession the pagri, Exh. P. 1 and coloured chaddar Exh. P. 2. from near the dead body of Mauj Ali deceased and sealed them in a parcel vide memo. Exh. P. F. He took into possession blood‑stained earth from four different places vide memos. Exhs. P. B., P. C., P. D., and P. E., respectively. When all the three accuse d appeared before him on the 19th of October 1962, the A. S‑ I. arrested them. Miru appellant after interrogation produced blood‑stained hatchet Exh. P. 3. from under the charpai at his sahl which was taken into possession by the A. S. I. and made into a sealed parcel vide memo. Exh. P. H. As the shirt, Exh. P. 4 and chaddar Exh. P. 5, which Miru appellant was wearing at the time of his arrest, were found to be stained with blood, the A. S. I. removed them from his person and made them into a sealed parcel vide memo. Exh. P. J. Thejar accused, after interrogation, produced a blood‑stained hatchet (Exh, P, 6), kaki Exh. P. 8 and a pair of shoes Exh. P. 9, which were taken into possession and were sealed into a separate parcel vide memo. Exh. P. Q. Thejar was wearing shirt, Exh. P. 20 at the time of his arrest, which appeared to be stained with blood. The same was also removed and taken into possession vide memo. Exh. P. L. Hussain Bakhsh, acquitted accused, was wearing shirt, Exh. P. 21 and chaddar Exh. P. 7. which appeared to be stained with blood, and were sealed into a parcel, vide memo. Exh. P. M. It may be incidentally mentioned that the bloodstains on these items, according to the report of the Serologist, Exh. P. A. A., were found to be disintegrated and so their origin could not be determined. He also got prepared the site plans, Exh. P. Y., P. Y.‑1 and P. Y.‑2 from Fateh Muhammad Patwari (P. W. 5).

4. Doctor Muhammad Rafi, (P. W. 1) M. O. Rojhan performed the post‑mortem examination of the dead body of Mauj Ali and found the following injuries:‑

(1) An incised wound, 7 " x 2" on the brain, cutting deep on the left side of face and head. The wound was situated at the level of the middle of the pinna. The left mandible the mastoid and occipital bone were cut. The posterior cranial fossa was found open. The brain was cut two inches deep in the posterior cranial fossa. The wound was transverse in direction.

(2) An incised wound, 7" x 4" on the spinal cord, deep on the left side of neck above the level of thyroid cartilage cutting the trachea, oesophagus, blood vessels on the left side of neck, and spinal cord. The neck was attached with the skin on the right side. The wound was transverse.

(3) An incised wound, 4" x 3" on the bone, cutting deep on the dorsal surface of right wrist joint. The radius and ulna bones were cut. Joint was open. The wound was transverse in direction.

(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.

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