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Criminal Appeal No.68 of 1984, decided on 20th November, 1984.

‑‑‑Ss.302 & 300, Exceptions 1, 4 & 304‑‑Mere fact that accused not specifically pleading benefit of exception on his plea inconsistent with prosecution evidence, held, would not deprive him of benefit under S.300, Exception 1, P.P.C., if prosecution evidence itself making admission in favour of accused regarding grave and sudden provoca tion.‑‑[Grave and sudden provocation].

Sardar Ali v. The Crown P L D 1953 F C 93; Muhammad Aslam alias Aslam v. The Crown P L D 1953 F C 115; Sadiq v. The State PLD 1957 S C 356; Muhammad Boota v. The State 1980 P Cr. L J 232; Bati v. The State 1984 S C M R 384; Kamal v. The State P L D 1977 SC 153; Noukar Mouledino v. Emperor P. I R 1937 Sind 212 and Motiram Chandiram v. Emperor A I R 1941 Sind 117 ref.

‑‑‑Ss.302, 304(I) & 300, Exception 1‑‑Grave and sudden provocation, plea of‑‑Deceased wife and her alleged paramour seen by accused in his house and their bodies also found lying inside house soon after incident‑‑Circumstances, held, suggestive of fact that accused suspected his wife, having illicit connection with her paramour but not sufficient to cause such a degree of grave and sudden provocation to accused as to deprive him of power of self‑control‑‑Circumstances at best, held further, of mitigating nature, entitling accused to lesser sentence of imprisonment for life.‑‑[Sentence‑‑Grave and sudden provocation].

Azizullah K. Shaikh for Appellant.

Rashid Tariq for the State.

Date of hearing: 4th November, 1984.

This is an appeal from the judgment of IInd Additional Sessions Judge, Jacobabad, dated 20‑5‑1984, whereby the appellant was convicted of offence under section 302, P.P.C. on two counts for the murders of Abdul Sami and Mst. Sihat and sentenced to suffer imprisonment for life and to pay fine of Rs.10,000 or in default of payment of fine to undergo further R.I. for 6 months. Co‑accused Bakhar, who was also tried alongwith the appellant, was acquitted.

2. The case of the prosecution is that on 9th April, 1978 in the noon complainant Imam Bux alongwith deceased Abdul Sami, P.Ws. Kundhoo and Kamal were sitting in their Dera in the land of Abdullah Jakrani. According to complainant Imam Bux and the above witnesses some cattle of appellant Muhammad Alam had trespassed into their land, whereupon deceased Abdul Sami drove away the cattle to the house of Muhammad Alam, which was not very far away from complainant's Dera. Soon after Abdul Sami had reached the house of Muhammad Alam, complainant Imam Bux, Kundhoo and Hamal heard a commotion in the house of the appellant. They went there and found that Muhammad Alam and absconding accused Muhammad Haleem, who were both armed with guns, had fired at Abdul Sami as a result of which the latter had fallen down dead. Appellant Muhammad Alam and the absconding accused Muhammad Haleem are further alleged to have fired with' guns at Mst. Sihat wife of the appellant, who was also in the same house. She also fell down dead. Complainant Imam Bux left Kundhoo and Hamal at the scene of offence and went first to his Zamindar Saeed Khan to inform him about the incident. Thereafter, he went to Karim Bux Police Station, 20 miles away from the scene of offence and lodged report about the murders.

3. Mr. Muhammad Paryal Sub‑Inspector of Police was S.H.O. Karim Bux Police Station, who recorded the F.I.R. at 10 p.m. on the same day i.e.9‑4‑1978. In the following morning he went to the scene of offence which was pointed out by the complainant. It was in the village of Abdullah Karani, but surprisingly only the dead body of Abdul Sami was found near the house of the appellant. Dead body of Mst. Sihat was recovered on the next day from the bushes in the bed of Phul Canal which was half mile away from the house of the appellant where dead body of Abdul Sami was found. According to the prosecution case, both the murders were committed in the house of the appellant and it is also stated in the F.I.R. that the appellant as well as co‑accused Bakhar and absconding accused Muhammad Haleem had run away from the scene of offence after killing the two persons. It is also the case of the prosecution that when complainant Imam Bux and P.Ws. Khundhoo and Hamal reached the house of the appellant, the latter had declared that Abdul Sami and Mst. Sihat alias Sanat were killed because they were Karo and Kari. It is also admitted that both the parties are Bungtis by caste and are resident of the same village situated in Deh Abdullah Jakarani. Their houses are situated near each other. Appellant Muhammad Alam is son of maternal‑uncle of complainant Imam Bux. Absconding accused Muhammad Haleem is maternal‑uncle of the complainant. Acquitted co‑accused Bakhar is also maternal‑uncle of complainant Imam Bux. Deceased Abdul Sami was brother of the complainant and P.W. Hamal. P.W. Kundhoo is son of the complainant.

4. Mr. Muhammad Paryal despatched the dead body of Abdul Sami to Medical Officer Jacobabad for post‑mortem examination on 9‑4‑1978, while the dead body of Mst. Sihat was sent to Civil Hospital Jacobabad on 11‑4‑1978. The Investigating Officer recorded statements of P.Ws. Hamal and Kundhoo. Part of the Investigation was conducted by Darya Khan S.H.O. Karim Bux Police Station who had arrested the appellant on 19‑5‑1978 and a single barrel gun is alleged to have been recovered from him. Acquitted co‑accused Bakhar and absconding accused Muhammad Haleem could not be arrested. Hence initially only appellant Muhammad Alam was sent up for trial. During the trial co‑accused Bakhar was also arrested and sent up for trial, while Muhammad Haleem is still reported to be absconding.

5. Charge of offence under section 302, P.P.C. on two counts as to murders of Abdul Sami and Mst. Sihat was read over to the appellant and acquitted accused Bakhar to which they pleaded not guilty. In their statements, they have simply denied having any connection with these crimes and they have alleged that they have been implicated due to enmity.

6. In support of the prosecution case P.Ws. Imam Bux, Hamal and Kundhoo have been examined. Imam Bux was examined in the first instance, when only appellant Muhammad Alam was sent up for trial. After the arrest of acquitted co‑accused Bakhar, de novo trial was held, but before this P.W. Imam Bux had died. Hence his statement recorded earlier was treated as substantive evidence under section 33 of the Evidence Act and was marked as Exh. 13 on the application of the Public Prosecutor. All the above three witnesses have implicated the appellant and the absconding accused Muhammad Haleem. They did not attribute any specific part to acquitted co‑accused Bakhar, except that he had given Lathi blow to Abdul Sami deceased after he had fallen down as a result of gun shot injuries. However, no Lathi injuries were found on the dead body of Abdul Sami, according to the post‑mortem examination report. Hence giving him benefit of doubt Bakhar was acquitted. So far as the two murders are concerned, there is no doubt about it. Again it is also the prosecution case that both the murders of Abdul Sami and Mst. Sihat were committed inside the house of appellant Muhammad Alam. It is also the prosecution case that before shoting dead, the appellant and the absconding co‑accused Muhammad Haleem had declared that Abdul Sami and Mst. Sihat were being killed because they were Karo and Kari. It is also not denied that Mst. Sihat was wife of the appellant.

7. Complainant Imam Bux (Exh.13) was examined when only appellant Muhammad Alam was being tried. At a later stage when co‑accused Bakhar was also joined, the evidence of the complainant was brought on record under section 33 of the evidence Act. Since Bakhar is no more before this Court, hence it makes no difference that the acquitted accused had no opportunity to cross‑examine him. Since the previous statement of complainant Imam Bux is being considered only against appellant Muhammad Alam who alone has been convicted, therefore, it is immaterial whether the statement of complainant Imam Bux given in the first instance is treated as substantive evidence or his statement transferred to the record at the stage of de novo trial, is relied upon. The complainant has categorically stated that appellant Muhammad Alam is son of his maternal‑uncle. There has been no cross‑examination on this point. It is also established that the parties are not only inter related, but they are also residents of the same Deh and their houses are in the neighbourhood of each other. The incident had taken place during day time, when the presence of complainant Imam Bux and P.Ws. Hamal and Kundhoo on their land was quite natural. Hence all the three witnesses are natural witnesses and had no motive whatsoever to give false evidence against their own relative i.e. appellant Muhammad Alam. The appellant has not even explained in his statement under section 342, Cr.P.C. as to how his wife was murdered.

8. In view of the above state of evidence, Mr. Azizullah K. Shaikh learned counsel for the appellant has not seriously contested the connection of appellant Muhammad Alam with this double murder. He has relied on some admissions of the three eye‑witnesses to prove that the appellant has acted under grave and sudden provocation and that he was entitled to the benefit of Exception I to section 300, P. P. C. and thus according to him, the offence for which the appellant could have been convicted and sentenced would fall under section 304, Part I, P.P.C. He has referred to the F.I.R. in which the complainant has stated that Muhammad Alam had declared that he had killed his wife and Abdul Sami, because they were Karo and Kari. This fact has again been repeated by P.W. Kundhoo (Exh.8) in his examination‑in‑chief in the following words:

"Alam challenged Abdul Sami that since he was on illicit terms with his wife Mst. Sanat alias Sehat and he would not be spared. Thereafter, Bakhar accused thereatened us to go near them. Within our sight accused Alam and Haleem fired their guns at Abdul Sami which hit him and he fell down on the ground ........ . . . . . . . . . . Mst. Sanat wife of accused Alam who was present in the house standing under Manah was thereafter caught hold by the accused and Alam and absconding accused Haleem also killed her by firing their guns at her."

This is the admission of P.W. Kundhoo who is son of complainant Imam Bux and nephew of deceased Abdul Sami.

9. P.W. Hamal (Exh.10) is brother of complainant Imam Bux. He has made following admission in his examination‑in‑chief about the motive of these murders :

"I heard commotion coming from the house of accused when Abdul Sami had taken his goats to his house. I, P.W. Kundhoo and Imam Bux complainant went on the commotion, in the house of accused Alam where I found accused Alam, Muhammad Haleem and Bakhar. Muhammad Alam and Haleem were armed with guns and Bakhar was armed with Lathi. Muhammad Alam had declared that Abdul Sami since was Karo with his wife Mst. Sehat, he would not be spared. Muhammad Alam fired from his gun at Abdul Sami which hit him and he fell down on the ground. Muhammad Haleem thereafter fired from his gun at Abdul Sami which also hit him while he was lying on the ground. Thereafter, Bakhar came over and gave him Lathi blows. Mst. Sehat wife of accused Alam was sitting under Manah when she was fired at by accused Alam which hit her. Thereafter, Haleem also fired from his gun at Mst. Sehat which also hit her. Both of them died on spot."

10. On the basis of the above admissions it is argued by Mr. Azizullah K. Shaikh that the appellant is entitled to the benefit for Exception I to section 300, P.P.C. even without such plea having been taken by the appellant in his statement or during the cross‑examination of the witnesses. In support of this plea he has relied on the following cases:

(a) In Safdar Ali v. The Crown P L D 1953 F C 93 the learned Federal Court observed as under :‑

" In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt."

The above decision will not apply to the present case because no specific plea of grave and sudden provocation has been taken by the appellant.

(b) In Muhammad Aslam alias Aslam v. The Crown P L D 1953 F C 115 the Court observed as under:‑‑

"The essential consideration is that the accused person cannot be regarded as having acted in the ordinary case, with more than one intention. Either he must' be deemed to have acted with the intention to save himself, or with a criminal intention such as constitutes murder. For the determination of this question it is necessary that the Court should take into account fully all the facts and circumstances appearing on the entire record, including such portion of the evidence led for the defence as the Court finds worthy of belief, for even though such evidence may be insufficient to establish the special pleading, it cannot be without effect in relation to the opposing evidence led for the prosecution, since ex‑hypothesi, it relates to the same incident. The effect in such a case, may be to create the state of reasonable doubt of which the Court is bound to give the benefit to the accused."

It is not understood how the above decision is helpful to the appellant.

(c) In Sadiq v. The State P L D 1957 S C 356 it has been held that "visible defects of falsity and inconsistency in the statements of the accused persons cannot be relied upon, as furnishing proof in support of the prosecution case, whose acceptance must rest on a proper appreciation of the facts and circumstances proved. The correct principle is that falsities appearing in the statements of accused persons do not bar the allowance to them of an advantage that the law permits, on the basis of facts that are found on a consideration of all the evidence and circumstances that can be accepted in the case".

11. It has been argued that although the appellant has not specifically pleaded that he acted under grave and sudden provocation, still if from the prosecution evidence itself it can be inferred that the circum stances under which the appellant acted, were sufficient to cause him grave and sudden provocation, the appellant shall be entitled to the benefit of these admissions. There is no doubt that if the witnesses have made admissions in favour of the accused regarding grave and sudden provocation then this case shall fall within Exception‑I to section 300 of P.P.C. punishable under section 304, P.P.C. In the present case there is no admission to the effect that the deceased Adbul Sami and Mst. Sihat were seen in compromising position or were even seen together at the same place at the time of the incident. What the P.Ws have admitted is that deceased Abdul Sami had gone to the house of the appellant driving his (appellant's) cattle, that the appellant cried that he would not spare Abdul Sami because he was Karo and thereafter killed him by his gun. It further transpires that after killing Abdul Sami, appellant Muhammad Alam and the absconding accused Haleem also killed Mst. Sanat alias Sehat wife of the appellant, who was standing in the Manah of that house. The dead body of Abdul Sami was found near the house of the appellant. The dead body of Mst. Sanat alias Sehat was not found in the house. P.W. Kundhoo has suggested that while running away from the scene of offence the appellant alongwith the acquitted accused and the absconding accused had removed the dead body of Mst. Sanat and taken it away alon.gwith them. This version is not supported by complainant Imam Bux, who has stated that "Dead body of A. Sami was Iving in the courtyard while dead body of Mst. Sihat was lying inside the house of accused at a distance of 5‑6 paces away from each other. I left Hamal and Kundhoo at the Vardat and proceeded to Karim Bux Police Station for report". Thus, according to the complainant the appellant and his companions had run away from the scene of offence after leaving the two dead bodies in the house of the appellant. P.W. Hamal also has not supported the version of P.W. Kundhoo about removal of dead body of hat. Sehat by the appellant from his house. What he has stated is that "the accused thereafter ran away and took away their weapons. The dead bodies were lying in the house of accused Alam. I and Kundhoo sat near the dead bodies which were lying at a distance of 5‑6 feet from each other".

12. Thus, it is the prosecution case itself that both the murders were committed inside the house of appellant Muhammad Alam. But the question arises as to how the dead body of Mst. Sehat was missing from the scene of offence on 10‑4‑1978 in the morning when the Investigating officer had visited the place of incident. He had recovered the dead body from a place which was 1/2 mile away from the house of the appellant Muhammad Alam. The, presumption under these circum stances shall be that P.Ws. Hamal and Kundhoo who were the only persons present at the scene of offence and were in a position to tamper with the dead body had removed the same from the scene of offence to efface the evidence of the two deceased persons being together at the time of the incident. In the case of Muhammad Boota v. The State 1980 P Cr. L J 232 a learned Single Judge held that to cause grave and sudden provocation to an accused, it is not necessary that he should have seen his wife and paramour naked. If they were in compromising position that might itself be sufficient to cause grave and sudden provocation to the accused so as to entitle him to the benefit of Exception I to section 300, P.P.C.

13. However, in the case of Bati v. The State 1984 S C M R 384 the Supreme Court observed as under

"9. On going through the evidence and after hearing the learned counsel for the State we find that there is no charge against the character of the deceased even in the statement of the accused /appellant at the trial though in the F.I.R. Bati P.W. had stated that the accused suspected the deceased for having a liaison with Bashir but mere suspicion would not give him the cause to attack the deceased under the pretext of sudden and grave provocation. It is not a case of flagranto delicto which may bring the case of accused /appellant under Exception‑I of section 300, P.P.C.. Regarding the swabs which were taken from the person of the deceased and sent to the Chemical Examiner who found the same to be stained with semen; this would not be enough reason to hold that the deceased was seen actually in the company of any man at the time of occurrence. She being a married woman the semen could be there if she had sexual intercourse with her own husband, and, therefore, the story now put forward by the learned counsel cannot be believed. Hence, we find no reason to interfere with the impugned judgment of the Court."

14. In Kamal v. The State P L D 1977 S C 153 the facts of the case were that the appellant had seen his wife in compromising position her paramour. He shot dead both of them. It was observed about the liability of the accused who had acted under the above circumstances, as under :‑

"However, the evidence supports his plea to the extent that there was something a miss which amounted to grave and sudden provocation and as he killed his wife and her paramour, it cannot be said that there were any exceptional circumstances to warrant the imposition of the maximum penalty under the Ist part of section 304, P.P.C. therefore, in my humble opinion, the sentence of transportation for life would be excessive. On the other hand, I also cannot accept Mr. Kasuri's submission that on the case‑law the maximum, sentence should not have been more than 5 years' R.I."

15. Reference has also been made to the case of Noukar Mouledino v. Emperor A I R 1937 Sind 212. In this case the accused had found his wife and her paramour together in his house, but not in the actual act of sexual intercourse. On being provoked by this the accused killed his wife. It was held that under the circumstances the case fell within the Exception‑I to section 300, P.P.C., but about the sentence it was observed as under :‑

"That though under the circumstances the offence could be reduced from on of murder to one of cuplpable homicide not amounting to murder under section 304, Part I the case was not one where the provocation was so extreme as to call for alight sentence. There was grave and sudden provocation for the accused in the case but it was not so grave as in the case where the woman was found in the act of actual sexual intercourse with her paramour."

16. In the case of Motiram Chandiran v. Emperor A I R 1941 Sind 117 Davis, C.J. observed as under:

"If upon the evidence it appears that the murderer is entitled to the benefit of any one of the Exceptions of the Code neither the ignorance of the accused nor the falsity of his defence nor any mistake or omission of the lower Courts or Advocates should deprive him of the benefit of it."

17. From the above decisions it would appear that the plea of the accused which is inconsistent with the prosecution evidence, shall not deprive him of the benefit of admissions made by prosecution witnesses in favour of the accused. If from the prosecution evidence itself it appears that there was cause for grave and sudden provocation for the accused, then he shall be entitled to the benefit of Exception‑I to section 300, P. P. C., even if the accused has not specifically pleaded the benefit of that exception.

18. However, from the admissions of prosecution witnesses the fact should be clearly deducible that the circumstances under which the accused had seen his wife and her paramour were such so as to deprive him of his power of self‑control. In the present case the admissions of the prosecution witnesses quoted hereinabove do prove that the appellant had seen his wife and Abdul Sami in his house. It is also proved that both the dead bodies were lying inside the house of the appellant soon after the incident. These circumstances were sufficient at least to prove that the appellant had reason to suspect that his wife had illicit connection with deceased Abdul Sami, but this suspicion would not be sufficient to cause such a degree of grave and sudden provocation to the appellant so as to deprive him of the power of self‑control. This shall be a mitigating circumstance which would entitle the appellant to a lesser sentence of imprisonment for life which has been awarded by the learned trial Judge for the double murders committed by the appellant. In my view even if the conviction is altered from section 302 to Part I of section 304, P.P.C., the appellant shall be liable to the maximum punishment provided in the Part I of the above section which is imprisonment for life. Hence the alteration of conviction from section 302 to section 304, P.P.C. would not make any difference, so far as the sentence is concerned.

For the above reasons the appeal is dismissed.

S.G.D. Appeal dismissed

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