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Criminal Appeal No. 491 of 1977, decided on 3rd October, 1979.

--- Ss. 302 & 304, Part I read with S. 300, Exception I-Murder-Prosecution witnesses unable to explain immediate cause of attack by appellant -One prosecution witness admitting in cross-examina tion fact of deceased being a woman of easy virtues and compelling her daughters to adopt immoral life-Appellant also admitted by witness to have given such explanation then and there-Some witnesses giving only evasive answers and contradicted by others-Statement of appellant coupled with admission made by one of eye witnesses about fidelity of deceased and her conduct towards her daughter held, brought case within scope of Exception I to S. 300, Penal Code, 1860. -[Evidence].

-----S. 304, Part I-[Murder-case]-Neither Investigating Officer examined nor recovery witnesses produced by prosecution and given tip by prosecution as unnecessary-Examination of Investigating Officer-Necessary requirement---Non---examination of such Officer-Leaves entire investigation unproved and causes prejudice to accused-Held: Prejudice caused to accused pleading guilty ----Period of sentence already undergone by accused appellants sufficient to meet ends of justice in circumstances.

Appellant through Jail.

Younas Bhatti for the State.

Date of hearing: 3rd October, 1979.

Muhammad Yaqoob (70) resident of Jahanian, tehsil Khanewal district Multan was tried for the murder of his wife Mst. Maryam, by Mr. Muhammad Sharif. Sessions Judge, Multan. On 13^thDecember, 1976 he was convicted under section 304, Part I, and sentenced to 10 years' R. I. The convict has appealed through Jail.

2. Muhammad Yaqoob doubted the fidelity of his wife, he often used to quarrel with her. At Peshivela on 12th February, 1974 Muhammad Yaqoob attacked her with a knife ; the handle of the knife broke, he picked up a Taisi which was lying nearby and chopped off her neck with it. P. Ws. Munir Ahmad, Elahi Bakhsh and Abdul Sattar were attracted to the house of the appellant and saw the occurrence. They tried to apprehend the accused but he made good his escape. Police Station Jahanian was at a furlong from the place of occurrence. P. W. 1 Muhammad Munir went there and reported the matter to Muhammad Shafi, S. H. O. who recorded the F. I. R. Exh. P. D. The S. I. prepared the necessary documents and sent the dead body for its post-mortem exami nation.

3. P. W. 1 Dr. Riaz Hussain M. O. Civil Hospital, Jahanian held the autopsy on 13th February, 1974 and found following injuries on the dead body of Mst. Maryam:-

(1) Three incised wound on the dorsal side of forearm.

(2) Three incised wounds on the back of left-hand.

(3) Incised wound 2" x 1" x 1 " oil the root of left thumb, inner side.

(4) incised round 3" long on the inner side of right middle finger.

(5) Incised wound on the dorsal side of right palm.

(6) Contused wound on the left thigh.

(7) Multiple small incised wound on the nose, right eye-brow and left check.

(8) Multiple incised wounds on the back of skull.

(9) Spinal cord divided at the level of third cervical vertebrae, larynx divided at the level of epiglotis

4. After arrest the appellant got recovered Taisi P. 2 from within a stack of chaff near a railway crossing. It was taken into possession by Muhammad Shafi, S. I. its recovery was witnessed by P. Ws. Kalu Khan and did Shah Muhammad.

5. At the trial Muhammad Yaqoob appellant admitted having killed his wife, but according to him it was under grave and sudden provocation because she was an immoral woman. He however did not explain in detail the circumstances which deprived him of self-control.

6. In support of its case prosecution has relied on the evidence of three eye-witnesses, namely P. W. 2 Elahi Bakhsh, P. W. 3 Abdul Sattar. P. W. 4 Munir Ahmad, informant. These three witnesses have not been able to explain the immediate cause of attack by the appellant. In their cross-examination that some suggestions were made about the immoral character of the deceased. Abdul Sattar P. W. admitted that the deceas ed was a woman of easy virtue and she used to constrain her daughters to adopt immoral life. Further according to this witness the accused gave this explanation there and then. But P. W. Elahi Bakhsh took up a different position in the cross-examination. According to him the accused was an abnormal person and his wife was a religious woman. Elahi Bukhsh when inquired about his personal knowledge of the matter, replied that people used to say that the accused was a crack. Further on under cross-examination he admitted that he had no knowledge about the immoral character of the deceased. Elahi Bukhsh was evasive in answer ing questions; at times he said that the deceased offered prayers five tithes a day but in the same breath he said that he did not know if she was immoral. It appears that the witness was trying to conceal facts. It became evident from his answer to the question "whether he asked the accused as to why he had killed his wife". To this the witness replied in the negative, not only that this is highly improbable. Elahi Bukhsh on this-score is also contradicted by P. W. 3 Abdul Sattar. A similar position was taken up by P. W. 4 Muhammad Munir informant under cross -examination. I, therefore, conclude that the statement of the accused coupled with the admission made by one of the eye-witnesses about the fidelity of the deceased and her conduct towards her daughters, brought the case within the scope of the exception.

7. Neither the investigating officer nor the recovery witnesses have been produced by the prosecution in this case. They have been given up as unnecessary which to my mind was improper because the investigating officer must be examined if he is available. To give him up as an un necessary witness leaves the entire investigation unproved and also causes a prejudice to the defence. Normally I would have remanded the case for recording the statement of the Investigating Officer but in the circum stances of this case i.e. the admission of the accused I do not deem it fit to remand the case.

8. For the above analysis of the eye-witness account, I see no reason to differ with the conclusion arrived at by the trial Court. As to sentence, the appellant was arrested in February, 1974 and is in custody since then. The period of sentence already undergone by him would meet the ends of justice. He shall be released forthwith if not required in any case.

Order accordingly.

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