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Criminal Appeal No. 14 of 1956, decided on 18th January 1956.

(On appeal from the judgment and order of the Chief Court of Sind at Karachi (now West Pakistan High Court, Karachi Bench, Karachi), dated the 14th July 1955, in Confirmation Case No. 21 of 1955/Criminal Appeal No. 138 of 1955).

S. 300‑Offence of murder whether mitigated by any of Exceptions enumerated under section‑Burden of proof lies on person relying on Exception.

S. 300, Exception I‑ Woman, divorced by accused found by hurt in act of copulation with another‑Misconduct on her part, held, did not constitute valid reason for accused to stab her to death‑Exception I to S. 300 did not cover such act of accused.

Dost Muhammad Khan, Advocate Federal Court of Pakistan (at Government expense) for Appellant.

Asadullah Khan, Advocate Federal Court instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 18th January 1956.

.‑This is an appeal by special leave from the judgment and order of the Chief Court of Sind at Karachi, dated 14th of July 1955, by which the appellant's appeal against his conviction under section 302, Pakistan Penal Code, was dismissed and the sentence of death passed upon him was confirmed.

The appellant was charged with the murder of his own wife Mst. Niamatbi on 6th November 1953 in Lalukhet. Accord ing to the prosecution, at about 2‑30 or 2‑45 Maqbool Ahmad (P. W. 2) heard the cries of a woman. He came out of his quarter and discovered the appellant holding the deceased woman with one hand and stabbing her with a knife. He called upon the accused not to inflict the injuries, but he himself was threatened. Prosecution witness No. 2 then ran towards a water tap nearby where he met Chhutto and Pir Bux. He told them what he had seen and all the three rushed to the spot. The appellant was still causing injuries and the woman was kneeling on the ground. Mahmood, a relation of Chhoto Khan, was immediately despatched to the Police Station Lalukhet to lodge the report. The Sub‑Inspector arrived at the spot at 13‑15 p. m. The appellant was taken into custody and the blood‑stained knife was snatched from him. His clothes were drenched in blood.

On Chemical analysis, the knife and the clothes were found to be stained with human blood.

On the following day, i.e. 7th November 1953, the appellant was produced before a Magistrate where he made his confession. In this he admitted that he had killed his own wife and his story was that he went to Lalukhet to his parents‑in‑law's house to fetch her. He detected her in actual sexual intercourse with another person. That man succeeded in making good his escape and in a fit of anger, he caused her injuries resulting in her death. It was further mentioned that he had not divorced Mst. Niamatbi but as a result of coercion, he was made to affix the thumb‑impression upon a paper which was described as a deed of divorce.

Leave to appeal was specifically given to consider "whether the facts in confession quoted above and accepted as true would constitute a valid dissolution of marriage under the Muhammadan Law and amount to murder under section 302, Penal Code. It also appears that sections 164 (3) and 360, Cr. P. C. had not been complied with and it would therefore be necessary further to determine whether the course pursued at the trial was defective in the mode of the trial itself, not curable under section 537, Cr. P. C."

On examining the record, the allegation of divorce under compulsion loses all its importance. The case of the appellant both in the Committing Magistrate's Court and at the trial had been that he had divorced his wife Mst. Niamatbi. In the face of this statement Mst. Niamatbi was no longer his wife and any misconduct on her part, could not, therefore, constitute a valid reason for stabbing her to death and as such it would not be covered by Exception I to section 300, Penal Code.

Keeping the confession made on the 7th November 1953 wholly out of consideration, there is the direct evidence of Maqbool Ahmed (P. W. 2) corroborated by that of the other neighbours that the appellant had killed Mst. Niamatbi and in addition there was recovered from his possession the bloodstained knife and the blood‑stained clothes.

The question whether an offence of murder was mitigated by any of the Exceptions enumerated under section 300, P. P. C. was primarily to be answered by the person relying on the Exception. The only material on the record which might suggest that the crime was committed under the impulse of provocation is contained in the confessional statement itself and there is no other material in support of it. 1f there had been no direct evidence and if the circumstances had not made it unequivocally clear that the appellant was responsible for the murder and we had been left only with the confession; surely the conviction based upon confession itself could not ignore a hart of the version about the circumstances which had actuated the accused in committing the crime. Since the conviction is not based upon confession alone, but upon direct and circumstan tial evidence, the plea of provocation had to be affirmatively established. This has not been done and the conviction for murder was, therefore, perfectly in order.

The case was tried by jury and a unanimous verdict of guilty was returned. It is not disputed that there was any misdirection to the jury in the course of the trial.

The appeal, consequently, fails and it is hereby dismissed.

Appeal dismissed.

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