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Criminal Appeal No. 364 of 1949, decided on 14th February, 1950, from the order of Sessions Judge, Multan, dated 4th November, 1948.

S. 300, 4thly‑Accused killing wife on suspicion of intimacy with someone‑Multiple injuries with hatchet‑Three grievous‑Right carotid vessels cut‑Offence, murder.

Culpable homicide is murder, if the accused knows that his act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, un less it is cohered by one of the Exceptions to section 300 Pakistan Penal Code.

Where the accused killed his wife on a mere suspicion that she had intimacy with someone or that she had brought about his indisposition by means of some charms, and injuries inflicted with a hatchet were six in number out of which 3 were grievous, death in doctor's opinion being due to shock and bleeding caused by cutting of right carotid vessels.

Zahur Din Pal, for Advocate‑General for Appellant.

Nazar Muhammad, for Respondent.

Khushi Muhammad, aged 35 years, of, Chak No. 10215‑L. District Multan was tried on a charge under section 302, Indian Penal Code, for killing his wife Mst. Alain Bibi on 16th July 1948. He was convicted under section 304, Part II, Indian Penal Code, and sentenced to two years' rigor ous imprisonment. He has appealed from the order of convic tion and the Provincial Government has appealed from the order of his acquittal on the charge of murder. Both the appeals will be disposed of by this order.

The First Information report was made by Jan Muhammad (P. W. i) to Ghulam Muhammad, A. S. I., on 16th July at 12 noon. Jan Muhammad is the husband of Khushi Muhammad's sister and has deposed that he heard an outcry from the house of Khushi Muhammad at about 8 a.m. on the day of occurrence and went there along with Rehmat Ullah, Allah Ditta and some others. They found Alain Bibi lying murdered inside the house and Khushi Muhammad standing beside her with the blood stained hatchet P. 1, in his hand. Mst. Allah Dai, wife of Jan Muhammad, Suleman and some others were also there. They took away the hatchet from Khushi Muhammad and handed it over to Rehmat Ullah Lamdardar. Jan Muhammad then went and made the report. It was stated by Jan Muhammad in cross‑examination that the appellant was ill at the time of the occurrence and said that his indisposition was due to some charm secured by his wife.

Mst. Allah Dai, sister of the appellant, deposed that she had gone in the morning to fetch water. On her return she heard some screams from Khushi Muhammad's house which is situated in the same compound as her own. She tried to open the door but found it chained from inside. She called a neighbour, Aziz P. W., and on forcibly opening the door, with his assistance, saw her brother Khushi Muhammad striking his wife Alam Bibi with the hatchet (Exh. P. 1). They raised an alarm on which Allah Dai's husband Jan Muhammad and several other persons of the vil lage came to the appellant's house. They relieved him of his hatchet and took him into custody. In cross‑examination, Allah Dai said that the appellant suspected that his wife had intimacy with one Isa, belonging to the village, and that she had got some charm on account of which he was not keeping good health. Rehmat Ullah (P. W. 5) gave the same evidence as Jan Muhammad. Suleman, Aziz and Allah Ditta, mentioned above, were tendered by the prosecution for cross‑examination which was declined.

Dr. Nur Muhammad (P. W. 12) who performed the post -mortem examination found the following injuries on deceased.

1. An incised wound 1 " x " cutting through the left malor bone of the cheek.

2. An incised wound 1 " x " cutting through the outer table of the left parietal bone, 5 " above the left eye‑brow,

3. An incised wound 3 " x 1" deep to the vertebral column on right side of the neck, half an inch below the angle of the lower jaw. The large vessels of the right side of the neck were cut through.

4. A stab wound 1" x " x 1" on the lower part of neck, just on the right side of the middle line.

5. A stab wound 1" x " x " on the right side of the face, near the nose. The upper jaw was cut through underneath.

6. Six linear superficial cuts, five inches long each, side by side, over the upper part of the inter‑scapular region. The outer table of the left parietal bone was cut through. The right carotid vessels were cut under injury No. 3.

Death in the opinion of the doctor was due to shock and bleed ing caused by the cutting of the right carotid vessels as a result of injury No 3 which was sufficient in the ordinary course of nature to cause death. Injuries Nos. 1, 2 and 5 were grievous.

Ghulam Muhammad A. S. I. (P. W. 11) arrested the appellant on reaching the village and had his shirt and loin‑cloth (Exhs. P. 2 and 3) removed from his person as they appeared to be blood‑stained. These clothes and the hatchet were sent to the Chemical Examiner and found to be stained with blood.

The statement of the appellant was that on his return to the house from his work he found his wife with one Isa under suspicious circumstances Isa ran away, and he, having lost self‑control, picked up a kulhari and killed his wife.

The trial Court held that there was no evidence, direct or circumstantial, to support this statement. All that had been elicited in the cross examination of Jan Muhammad and Mst. Allah Dai, brother‑in‑law and sister of the appellant, was that he suspected his wife of having intimacy with one Isa and of making him ill by some charms; but, the trial Court observed, there was not the slightest suggestion in the statement of any of the witnesses that Isa was seen with Alain Bibi at the time of the occurrence or before that, nor was there any evidence that Isa was seen escaping at or about the time of the occurrence. The appellant was held to have had no justi fication for attacking his wife and his statement, that he had seen her in a compromising position with Isa, was held to be false. His offence was therefore, held not to be covered by Exception 1 to section 300, Indian Penal Code. Having come to this clear finding, the trial Court proceeded to say that apart from the suspected intimacy the appellant could have had no motive to kill his wife and there was no evidence that he intended to do so. Intention can be inferred from acts which in this case; judging from the injuries inflicted by the appellant, leave no room for doubt that he fully intended to do what he did. It was observed by the trial Court that what happened before the occurrence was left in obscurity but it appeared that, suspecting the infidelity of his wife, the appellant had become provoked and, in order to chastise her, had attacked her with the hatchet. Attacking a woman with a hatchet, cut ting off her neck and thereby causing her death, can hardly be called chastisement. The trial Court further held that the deadly nature 9f the weapon used and the number of injuries inflicted by the accused would justify the inference that he knee that he was likely to kill Alain Bibi. He was, therefore, convicted under section 304, Part TI Indian Penal Code and a sentence of two years rigorous imprisonment was considered sufficient meet the requirements of the case. It must be pointed out to the learned Sessions judge that culpable homicide is murder, if the accused knows that his act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, unless it is covered by one of the Exceptions to section 300 Indian Penal Code. The Exception pleaded by the appellant was held to be inap plicable and there was no other Exception under which the case of the appellant could have come. The offence committed by him was, therefore, murder and not culpable homicide punishable under section 304, Part II, Indian Penal Code. But even it were a case of mere culpable homicide, a sentence of two years rigorous imprisonment was grossly inadequate and could not possibly meet the requirement of a case in which the husband brutally kills his wife on a mere suspicion, which may be wholly unfounded and unjust, that she had intimacy with someone or that she had brought about his indisposition by means of some alarms.

We, therefore, accept the appeal filed by the Provincial Government and altering the conviction of Khushi Muhammad from section 304 to section 302 Indian Penal Code, we sentence him to transportation for life. The appeal filed by Kushi Muhammad is dismissed.

A. H. Appeal accepted.

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