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Criminal Jail Appeal No. 269 and Confirmation Case No. 38 of 1976, decided on 15th August 1977.

---S. 300, Exception I read with S. 302-Grave and sudden provocation, plea of-Sentence-Quantum-Accused annoyed with deceased, his wife, for leaving him and getting his daughters married without his consent-Accused coming all way from Punjab to Sind with firm resolve to kill deceased-Plea of grave and sudden provocation taken up by accused, held, negative, in circumstances - Murders being premeditated, callous and brutal sentence of death maintained. [Grave and sudden provocation].

Nooruddin N: Ramzan for Appellant. Syed Nasiruddin for A: G. (Sind) for the State.

Dates of hearing: 10th and 15th August 1977.

-Appellant Ghulam Kader, a middle-aged man of about 55 years, was tried by a learned Additional Sessions Judge, Sukkur, in respect of two separate offences under section 302, P. P. C. for committing the murder of his wife Mst. Aisha and his son-in-law Ganhwar, and the learned additional Session Judge by his Judgment delivered on 20-9-1976 convicted the appellant of a said offences and sentenced him to death. The appellant has appealed from jail against his conviction and sentence and the learned Additional Sessions Judge for death sentence awarded to the applicant has also made a reference. This Judgment will dispose of the appeal and the reference.

2. The facts of the case, shortly stated, are that deceased Aisha was married to the appellant in the Punjab several years back and had three daughters and one son through him. Some three years prior to this incident, she left her husband and came arid settled in Sind in Mirpur Mathelo Taluka. Shortly thereafter she gave her eldest daughter, Mst. Bashiran, in marriage to deceased Ganhwar who was a clerk in .the office of the S. D. M. Mirpur Machelo. Subsequently, Mst. Aisha gave her second daughter in marriage to complainant Imam Bux, who is the elder brother of the deceased. After the two marriages, mot. Aisha alongwith her third daughter and her son, aged about 25 years, came and put up with deceased Ganhwar and complainant Imam Bux. On the night intervening between 6-5-1975 and 7-5-1975, complainant Imam Bux and other members of the family, Including deceased Aisha and Ganhwar, were sleeping in the open courtyard in front of their house, when at about 11 p.m, complainant Imam Bux woke up on some noise and saw, by the light of a lantern which was burning, the appellant giving a blow with a 'kaat' (Chopper) to Mst. Aisha who was sleeping on a nearby cot. At this spectacle, Imam Bux raised cries, which woke up Gulab, Piran and Mir Mohammed. However, in. the meanwhile, the appellant went up to the cot of the Ganhwar and within the view of the aforesaid witnesses gave a blow with his 'kaat' to Ganhwar. The appellant was chased and apprehended by Imam Bux and others at a distance of 20 or 25 paces from the house and the blood-stained 'kaat' was secured from his possession. It was found what both Mst. Aisha and Ganhwar had succumbed to the injuries caused to them by the appellant. Leaving theirs dead bodies and the appellant in charge of the other witnesses, Imam Bux repaired to Mirpur Mathelo P. S., four miles away, where he lodged his first information report the same night at 00-30 hours.

3. After recording the F. I. R., S. H. O. Hamidullah accompanied Imam Bux to the scene of offence where P. Ws. Gulab Piran and Mir Mohammed banded him over the appellant and the kaaa . The S. H. O. also secured, in the presence of Mashirs, the clothes of the appellant, which were found blood-stained. After sending the two dead bodies the Medical officer for post-mortem examination, the S. H. O. recorded the statements of P. Ws. Gulab Khan, Mir Mohammed and Piran. On the same day, namely, 7-5-1975, the S. H.. O. produced the appellant before the Mukhtiarkar and F. C. M., Mirpur Mathelo, to whom the appellant made a judicial Confession. After recording the statements of Mst. Bashiran and Mst. Parveen and sending the blood-stained 'kaat' and the clothes secured from the person of the appellant to the Chemical Examiner to tae Government, the S. H. O. challaned the appellant.

4. The autopsy on the two deceased was conducted by Dr. Bhajan Lal. He found the following external injuries on their persons, which in his opinion had been caused by a sharp-cutting weapon and which injuries were sufficient in the ordinary course of nature to cause death: -

Incised wound 5˝ X 2 ˝ x jugular vessels cut into spinal cord cut into mandible fracture on the right side of neck.

Incide wound 6˝ x jugular vessels cut into vertebrae out on the left side of neck.

5. We have heard Mr. Nooruddin Ramzan, who appeared for the pauper appellant, and Mr. Nasiruddin for the State. They have taken us through the entire evidence in the case. We have also heard the appellant who desired to be heard in person.

6. There i9 overwhelming evidence to the effect that the appellant had killed the deceased by means of a 'kaat'. All the three eye-witnesses examined in the case, namely. Imam Bux, Piran and Gulab have testified to having seen the appellant giving a blow with a 'kaat' to deceased Ganhwar on his neck in consequence of which he died instantaneously. They have further testified to having chased the appellant and apprehended him with the blood-stained 'kaat' at a distance of 20 to 25 paces from the complainant's house. P. W. Imam Bux, who was the first to wake up, has also deposed to having seen the appellant causing the fatal injury with the deadly 'kaat' to Mst. Aisha, upon which he raised cries, which roused the other family members. Although P. Ws. Gulab and Piran live in a separate house from that of the complainant, the sketch of the scene of offence prepared by the Tapedar shows that their houses are just opposite the house of the complainant and all these houses have a common open courtyard. They are thus natural witnesses and must have witnessed the incident.

7. In addition to the direct testimony of the above witnesses there is evidence of recovery of blood-stained clothes from the person of the appellant as also his judicial confession. S. H. O. Hamidullah and Mashir Behram have given evidence regarding .the recovery of the clothes. The report of the Chemical Examiner shows that these clothes as also the 'kaat' secured from the possession of the appellant were found stained with blood of human origin In his judicial confession, which was recorded by the Mukhtiarkar and F. C. M., Mirpur Mathelo, within a few hours of the appellant's arrest, he has unequivocally confessed to having killed Mst. Aisha and Ganhwar. Finally. The appellant in his statement in the Sessions Court admitted to having killed the two deceased.

8. The only point, which falls to be considered, is whether the appellant killed the two deceased whilst deprived of the power of self-control by grave and sudden provocation and as such is entitled to the benefit of Exception I to section 300, P. P. C. The defence of the appellant is that he killed the two deceased out of 'ghairat' as he found them sleeping on the same cot and having sexual intercourse. We, however, find no substance whatsoever in this defence which has evidently been concocted by the appellant to save his neck. Tire two murders were clearly committed in tire open courtyard in front of the houses of the complainant and P. Ws. Gulab, Piran and Mir Mohammad, where not only these witnesses but the daughters and grown-up son of the appellant and Mst. Aisha were also sleeping. The Mashirnama of the scene of offence and recovery of blood-stained earth from this open courtyard provide sufficient proof that the two murders were committed there. With so many persons sleeping in this open courtyard it is unthinkable that tire two deceased would either be having sexual inter course or even s1ecping together on tire same cot, especially when tire persons sleeping nearly included the grown-up daughters and sons of deceased Aisha and the wife of Ganhwar. It may also be pointed out that deceased Ganhwar was a young man of about 32 years, who could have had no attraction for Mst. Aisha, who was 55 years old and moreover his mother-in -law, specially in the presence of his much younger wife, Mst. Bashiran. The fact that bodies of both the deceased were fully clothed further militates against the allegation of the appellant. All the three eye-witnesses halve strongly denied that the two deceased were sleeping on the same cot and have stated that they were sleeping on separate cots. Finally, even in iris judicial confession the appellant has not claimed that he either found the two deceased having sexual intercourse or sleeping on the same cot. The confession is to the following effect: -

"About 3 years back, one butcher had abducted my wife arid one daughter from Punjab and brought them here and he had sold my daughter through Saindad Mahar to one Ganhwar for Rs. 5,500 and Kasai and my daughter remained with Ganhwar while my wife returned back to village at Punjab. My wife after living with me for six months brought my three daughters and one son from Punjab and came and lived with Ganhwar. I came to take them for three four times but she did not go back. Ganhwar and Rais Gulxb with Imam Bux, who is elder brother of deceased Ganhwar, married my second daughter. I was not present at the time of both the Nikah nor I have signed on the Nikahnamas. My wife, Saindad and Imam Bux for Rs. 4,000 to Noor Mohammad Bhutto, sold my third daughter. I again came to Imam Bux, deceased Ganhwar and Gulab and told them to return to me my remaining children. They did not give me. I went back to Punjab and brought my articles and came and settled with Saindad and lived with him for one year. Again I went to Punjab. Alongwith son, one daughter and me my wife also went to Punjab. After remain ing there for six days my wife brought my son and one daughter and returned back here and also brought my Rs. 1,2C0 in cash. I became enraged on this. I boarded the passenger train from Punjab and came to Rahim Yar Khan and from Rahim Yar Khan boarded in bus and came at the well of Kori at 7-00 p.m. I concealed myself and at about 10 or 11 p.m. in the night I went to hide myself in a vacant house near the house of Ganhwar. I jumped offer into the house of Ganhwar and first I killed my wife with toka (kaat) and then I murdered Ganhwar with same "kaat". I killed Ganhwar through mistake. In fact I had to kill Imam Bux. I was arrested at the spot."

The confession which appears to be both voluntary as well as substantially true, suggests that the appellant was annoyed with Mst. Aisha because she bad left him alongwith her children, had refused to return to him, had got his daughters married without his consent and not only pocketed the bridal money which she received from Ganhwar but had also taken away Rs. 1,200 belonging to the appellant. He was also annoyed with deceased Ganhwar and Imam Bux for marrying his daughters without leis consent The confession further shows that the murders were premeditated and the appellant had come all the way from Rahim Yar Khan with the firm resolve to kill Mst. Aisha and also Imam Bux, but instead of the latter he killed Ganhwar by "mistake".

9. We are accordingly in agreement with the view taken by the learned Additional Sessions Judge that the plea of grave and sudden provocation taken by the appellant is absurd. We also agree with him that there are no extenuating circumstances in this case which would call for the lesser sentence. The two murders were premeditated, callous and brutal. In the circumstances we consider that there is no merit in the appeal, whit we hereby dismiss, and confirm the death sentence awarded to the appellant.

Appeal dismissed.

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