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Criminal Appeal No. 373 of 1966, decided on 11th May 1967.

S. 304, Part I‑Accused finding his sister and her paramour in flagrante delicto and such grave and sudden provocation leading him to kill both instantan eously‑Offence, held, falls under S. 304, Part I‑Sentence of 7 years' R. I. considered to be unduly excessive, reduced to 3 years' R. I.

State v. Akbar P L D 1961 Lah. 24 ref.

Ss. 423 & 439‑Two accused convicted under S. 403, Part I, P. P. C. and sentenced to 7 hears' R. I.‑High Court, on appeal by one of accused, reducing his sentence‑Sentence of co‑accused, not filing an appeal, also reduced in exercise of revisional jurisdiction.

Asmat Ullah v. The State P L D 1961 Lah. 506 ref.

Muhammad Ibrahim Abbasi for Appellant.

Nooruddin Sarki for A. A.‑G. for the State.

Dates of hearing : 9th and 11th May 1967.

Appellant Khair Muhammad Brohi along with one Bugro son of Doob Brohi were tried by the learned Additional Sessions Judge, Jacobabad for an offence under section 302/34, P. P. C. In the result they were each convicted under section 304(1)/34, P. P. C. and sentenced to undergo R. I. for 7 years. From this conviction and sentence the appellant Khair Muhammad alone has appealed.

2. This is a case of Karo Kari murders, the Karo being one Dildar son of Jehangir and the Kari Mst. Zar Bibi widowed sister of co‑accused Bugro and sister‑in‑law (deceased brother's wife) of the appellant. The complainant in this case is one Shahdino son of the deceased Mst. Zar Bibi and his complaint was that at sohmani time on 24‑10‑65 as he was sleeping in his house in Deh Garhi Khairo, District Jacobabad he awoke on the cries of murder, murder' and on running in that direction he found his maternal‑uncle Bugro and his uncle Khair Muhammad the present appellant giving hatchet blows to his mother who was then raising cries. He asked them to spare her to which they replied that they were killing her as they had caught her in the sexual act with Karo Dildar whom they had already killed and they threatened complainant Shah Dino not to come nearer. Thereafter having killed Mst. Zar Bibi the appellant and Bugro went away carrying their hatchets with them. Shah Dino went up and found his mother lying dead on the ground naked from the waist downwards. On her cries Muhammad Mir Jat P. W. 4 had also arrived at the scene and was informed by Shah Dino of what had happened and was given the names of the appellant and Bugro as the assailants of Mst. Zar Bibi. This witness advised Shah Dino to go and report the matter to the police and accord ingly complainant Shah Dino P. W. 3 went to Garhi Khairo Police Station where his F. I. R. was recorded at 9‑30 p.m. on 24‑10‑65 by S. H. O., Ghulam Abbas P. W. 6.

3. S. H. O., Ghulam Abbas after recording the F. I. R. and even before he could set out for the scene of offence some 2 miles away from his police station was surprised to receive co‑accused Bugro at his police station who came there to surrender himself along with his blood‑stained hatchet and shirt both of which ‑were secured under mashirnama Exh. 18. The S. H. O. then repaired to the scene and there just outside the house of the complainant he saw the dead body of Mst. Zar Bibi lying in a pool of blood. He also found the dead body of the Karo Dildar just 91 paces away from the deceased Mst. Zar Bibi. He held the necessary inquest and sent the dead bodies for post‑mortem examination, to the Medical Officer, Garhi Khairo through Constable Faiz Muhammad. That same day Bugro who had earlier surrendered himself at the Garhi Khairo Police Station was produced before the Mukhtiarkar and F. C. M., Garhi Khairo who recorded his judicial confession Exh. 21. Appellant Khair Muhammad was secured that same evening and he led the police party to his house from where he produced a blood‑stained hatchet and a blood‑stained shirt of which were secured under mashirnama Exh. 15. The blood‑stained articles were sent to the Chemical Examiner who found all stained with human blood. The prosecution witnesses were examined. On concluding his investigation into this case the S. H. O. challaned the appellant and co‑accused Bugro in Court.

4. The appellant in his examination under section 342, Cr. P. C. denied every allegation put to him. He denied having murdered the Karo and the Kari or having produced his blood stained hatchet and shirt before the police. When questioned about his involvement in the judicial confession of co‑accused Bugro he claimed enmity with Bugro.

5. Now the case against the appellant rests upon the oral testimony of complainant Shah Dino, extra‑judicial confession made to him by co‑accused Bugro, the judicial confession of this Bugro, the evidence of Muhammad Mir Jat P. W. 4 and the recovery of blood‑stained shirt and hatchet from the house of the present appellant.

6. With regard to complainant Shah Dino it is noticeable that whereas in his F. I. R. he stated that he saw his maternal‑uncle Bugro and his uncle Khair Muhammad giving hatchet blows to his mother, in his deposition in Court he has said that an hearing the shrieks from his mother he ran up there and found her lying murdered in a pool of blood at a distance of some 30 paces from his house. His maternal‑uncle Bugro was standing there with a blood‑stained hatchet in his hand and with his clothes also soiled with blood and he told him that he had killed his mother (his own sister) declaring her Kari with Dildar whom he had also murdered. While they were there, appellant Khair Muhammad arrived as well as Muhammad Mir Jat P. W. 4 and Shah Dino informed them of what he had learnt from co‑accused Bugro. What is striking in this case is the calculated and determined effort on the part of the prosecution witnesses to save the neck of appellant Khair Muhammad by laying the entire blame for this double murder at the door of co‑accused Bugro. Thus Shah Dino has denied in his evidence in Court that he had stated in his F. I. R. that on coming to the scene on the cries of his mother he saw Bugro and the present appellant both giving hatchet blows to his mother. Muhammad Mir Jat P. W. 4 although he has stated in his examination‑in‑chief that on coming to the scene and making inquiries from Shah Dino he learnt that his mother had been murdered by both Khair Muhammad and Bugro yet he has denied his presence as a mashir when the police searched the house of appellant Khair Muhammad and. recovered from there a blood‑stained shirt and a blood‑stained hatchet. Co‑accused Bugro in his judicial confession recorded on the morning after the incident has fully implicated both himself and appellant Khair Muhammad as being responsible for the double murders in this case : but yet in his examination under section 342, Cr. P. C. he has excluded the present appellant from liability in this case and has taken all the blame upon himself. These efforts on the part of the prosecution and the co‑accused Bugro to save the appellant Khair Muhammad are so puerile as to demand no credence at all. The medical evidence of Dr. Muhammad Abdul Hakim makes it plain that both the Karo and the Kari had brutally been done to death with hatchets. Karo Dildar received an incised wound 5" x 1 transversely on the upper part of his back on the right side of the neck cutting: the lower part of the second cervical vertebra, the spinal cord and the portion of the right angle of the mendible. The Kari Mst. Zar Bibi received no less than 7 incised injuries, some on the front and some on her back, thereby clearly indicating that this was the work of 2 assailants and not one. This doctor has plainly slated that the injuries sustained by the two deceased were sufficient in the ordinary course of nature to cause death. In the face of this evidence I find it difficult to believe that any doubt whatsoever attaches to the conviction of the present appellant and in that view I would dismiss his appeal.

7. There remains, then, the question of sentence. It is admitted on all hands that the appellant and co‑accused Bugro found the Karo and Kari "in fiagrante delicto" and this grave and sudden provocation led them to killing both instantaneously. It is also in evidence and the medical evidence also makes it clear that Mst. Zar Bibi was then naked from the waist downwards. In view of this grave provocation the offence has rightly been held to fall under section 304 (1), P. P. C. But the sentence of 7 years upon each of the two accused is unduly excessive. It is true that Bugro has filed no appeal but inasmuch as his case is on all fours with that of the present appellant although Bugro has not appealed I am fully justified in dealing with his case as, though he was also before me. In the case of Asmat Ullah v. The State (P L D 1961 Lah. 506) it was held that where two out of three convicts preferred separate appeals against their conviction and the third convict had not appealed, the High Court found that the offence of the convict who had not appealed under section 324, P. P. C. and it was empowered to reduce his conviction and sentence even though he had not filed an appeal. Similarly here, in the exercise of my revisional jurisdiction, I would reduce the sentence imposed upon Bugro even though he has filed no appeal in this case. In the case of State v. Akbar (P L D 1961 Lah. 24) it was held that :‑

"Considering the moral values and notions of honour and chastity, as well as social customs, which prevail in the society in this country particularly among the respectable families in the rural areas, it must be regarded as provocation of the gravest kind for a man to actually witness the degrading spectacle of a woman of his family being subjected to illicit intercourse. If he loses self‑control under the impact of such grave and sudden provocation and assaults the person responsible for bringing this disgrace to him and his family, his act is clearly such as requites to be viewed in a light different from that in which ordinary criminal acts are regarded. It would follow, that the punishment to be meted out in such a case would have to be measured by a different yardstick.

It is for this reason that Courts are reluctant to impose heavy punishments on such offenders. It is not easy to prescribe any particular period of imprisonment which may apply as a general rule in such cases, nor is it desirable to do so, but it would appear that a sentence of a few months' rigorous imprisonment should generally meet the ends of justice in most cases."

8. The appellant and co‑accused Bugro have been in jail since their arrest in this case on 25‑10‑65. They were convicted on 31‑10‑66. Thus they have spent a whole year as under-trial prisoners. Having regard to these circumstances while dismissing this appeal I would reduce the sentences of both the present appellant and co‑accused Burgo to one of 3 years' R. I. only.

Sentence reduced.

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