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Criminal Jail Appeal No. 284 of 1972, decided on 28th February 1973.

‑‑----S. 304(I)‑Criminal trial‑Sentence‑Grave and sudden pro vocation‑Accused killing deceased finding him with his sister‑in‑law in a compromising position‑Benefit of provocation and lenient treatment, held, rightly given by trial Court‑Sentence of 5 years' R.I. maintained.

‑‑‑ S. 243‑Guilty, plea of‑Court under duty to discuss evidence on record and nature of plea of guilt‑Such formalities‑Very necessary.

Appellant though Jail.

Usman Ghani, Asstt. A.‑G. for the State.

Date of hearing: 28th February 1973.

This jail appeal is directed against the judgment of Mr. Ali Nawaz M. Budhani, Sessions Judge, Larkana dated 23‑9‑1972, whereby the appellant was convicted under section 304 (1), P. P. C. and was sentenced to suffer five years' R. I. and to pay a fine of Rs. 1,000 and in default one year R. I. more and the fine if paid was directed to be paid as compensation to the heirs of the deceased.

2. Briefly the facts are that one Jumo filed an F. I. R. stating that on the night of 19^th December, 1971 at about 9‑00 p.m. he along with deceased Ghulam Nabi had gone to the house of Mst. Ban to make enquiries about her health. While they were sitting with her inside the house, suddenly the appellant appeared armed with a hatchet and delivered hatchet blows to Ghulam Nabi who died on the spot. The appellant thereafter ran away and Jumo went to file the F. I. R. Before the arrival of Jumo to the Police Station, the appellant was present along with the hatchet and surrendered himself before the Police. He was arrested and after necessary enquiries the appellant was sent up for trial. The appellant made a judicial confession which is not retracted, recorded by the Mukhtiarkar & F.C.M., Dokri, stating that he had seen Mst. Ran in compromising position with the deceased Ghulam Nabi. Mst. Jian being his sister‑in‑law i.e. wife of his brother he was gravely provoked and on seeing them in such a position he could not control himself and delivered hatchet blows to the deceased. The appellant stuck to his confession and the statements made before the committal Court and the trial Court. The committal Court recorded the statement of Jumo, Ali Hassan and Mst. Jian being the main eye‑witnesses of the incident. This Mst. Jian stated that she was having an illicit intrigue with the deceased Ghulam Nabi at the time of incident when the appellant came and delivered hatchet blows to the deceased who fell down and subsequently died. The plea of guilt of the appellant was accepted by the trial Court and the charge was amended from 302, P. P. C. to 304 (i), P. P. C. and he was convicted as above. The appeal before me is only on the question of quantum of sentence. Although unfortunately the Sessions Court record does not contain the statements of the prosecution witnesses, F.I.R. and the confession made by the appellant. However, I find from the record of the Enquiry Magistrate that Ali Hasan husband of Mst. Jian, brother of the appellant stated that the appellant gave injuries to deceased Ghulam Nabi without any reason. In other words he attempted to belie the confession made by the appellant. But as the appellant pleaded guilty he has rightly been convicted by the trial Court under section 301 (1), P. P. C. on his own plea. The law as it stands does not permit to take the life of another person except in very rare circumstances. On the point of grave and sudden provocation with regard to sexual offences, the benefit if at all normally goes to the husband who seeing his wife in compromising position with somebody else takes the life of the paramour. But here the appellant has taken the life of the deceased seeing Mst. Ban his sister‑in‑law in com promising position with the deceased Chile the husband of Mst. Jian was alive. It is for the husband to take any drastic action if at all. However, it appears that the appellant was highly provoked when saw the deceased in compromising position with the wife of his brother and he pleaded guilty to that who has been already given benefit of provocation by the trial Court and has already been treated leniently by awarding him 5 years R. I. I do not see any reason to reduce the sentence.

3. The result is, I dismiss this appeal and sustain the order of the learned trial Court. Before parting with this case I may observe for the benefit of the learned trial Judge that it is expected of him that a statement of the witnesses be brought on record of this case as well as the confessional statement of the accused, F.I.R. and other necessary documents so that at the time of hearing of appeal in such cases this Court may not be handicapped and when the records of the Enquiry Magistrates particularly are mostly in Sindhi hand‑written. Besides, it is the duty of the learned trial Court even accepting the plea of guilt, to discuss the evidence on record, then the nature of the plea of guilt and convict the accused person. These formalities which are e very necessary are lacking on the record of the learned trial Court. Direc tions may be issued to him to take notice of these observations for his future guidance.

Appeal dismissed.

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