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Criminal Appeal No. 301 of 1961, decided on 4th December 1962.

Murder‑Provocation not sudden if same was anticipated and sought after‑Accused, suspecting chastity of sister, going out in search of her and killing both his sister and her paramour with hatchet blows‑Case not covered by Exception 1‑Offence under S. 302 and not under S. 304 (I).

Mahamdu alias Mahomed Baksh v. Emperor A I R 1945 Sind 42 ref.

Hassanally A. Rehman for Appellant.

M. Haleem for A. A. G. for Respondent.

Dates of bearing : 27th and 28th November 1962.

The appellant was tried along with two co‑accused, namely. Khan Muhammad and Ghulam Kadir by the Sessions Judge, Nawabshah for an offence under section 302, P. P. C. The two co‑accused were acquitted but the appellant was convicted under section 302, P. P. C. and was sentenced to transportation for life. He has appealed against this conviction and sentence.

2. The facts giving rise to this case are that Mst. Gori P. W. 3 lived with her family consisting of her sons Loung deceased, Arbab and Photo, her daughter Mst. Sahib Khatoon P. W. 5 and her daughter‑in‑law Loung's wife Mst. Jaman P. W. 4 in the village of Sardar Sher Muhammad some six miles away from Nawabshah town. The appellant Saleh lived at a distance of one athas from the village of Sardar Sher Muhammad. The appellant and deceased Loung had jointly cultivated the land of Sardar Sher Muhammad which land was not far from their village. On 26‑2‑1961 a little after sunrise Mst. Gori with her daughter, daughter‑in‑law and deceased Loung were seated in their house, Loung having just taken his breakfast, when he was called out by the two co‑accused who took him away with them. After a short while Allahdino P. W. 6 Kamdar of Sardar Sher Muhammad came running to the house of Mst. Gori and informed them that the Baloch with whom Loung was in partnership had killed Loung. On hearing this sad news Mst. Gori wanted to go to the scene of offence but she was prevented by her relations from doing so and instead she went to the police station at Nawabshah to lodge a report but the police refused to accept her report so that she returned disappointed to her village and remained there till she was summoned to the scene by the S. I. P.

3. It appears from the evidence of the S. H. O. Nawabshah Police Station S. I. P. Nawab Khan that on that same day namely 26‑2‑61 at about 11‑30 a.m. the appellant came to this police station carrying a blood‑stained hatchet and wearing blood‑stained clothes. He made a statement which was recorded by this S. I. P. in the presence of Allah Bachayo P. W. 9 and Meon Khan who were then present at this police station. This police officer then arrested the appellant, secured his blood‑stained hatchet and clothes as per mashirnama Exh. 20 and then left for the scene of offence. He there found the dead bodies of deceased Loung and Mst. Gullan, sister of the appellant lying in the wheat cultivation of the appellant and the deceased. There was blood on the ground and he secured the blood‑stained earth as per mashirnama Exh. 22. He then prepared the inquest report and sent the dead bodies to the hospital for post mortem examination. He then recorded the statements of witnesses and on the next day 27‑2‑1961 he sent the appellant to the Mukhtiarkar and F. C. M. Nawab shah who recorded his judicial confession. After completing his investigation he challaned the accused in Court.

4. The statement of the appellant in the two Courts below is that on the early morning of the day of the incident while he was going to his cultivation he found his sister Mst. Gullan and Loung in a compromising position and on account of grave and sudden provocation he killed them with hatchet blows. He admitted having made a judicial confession to the Mukhtiarkar and F. C. M. Nawabshah and said that it was both true and voluntary. This confession is in these words :‑

"Last night I woke up to observe fast but did not find my sister on her cot. I then went outside my house and heard some murmuring at the wheat cultivation on back side of my house. I went to that side and found Loung Khaskheli having a sexual intercourse with my sister. I became provoked and killed both of them with my hatchet there and then. My father and others inquired from me as to what I have done. I told them that I had committed murder. On this they directed me to lodge 'complaint at Thana. Then I had directly come to police station where I told the whole incident to the Sub -Inspector."

5. The case for the prosecution so far as the appellant is concerned rests in the main upon the conduct of the appellant in surrendering himself at the Nawabshah Police Station with his blood‑stained clothes and hatchet and making a statement before the S. H. O. there. On his way to the police station the appellant met Ghulam Haider P. W. 7 and Abdul Karim P. W. 8 whom he informed that he had killed his sister Mst. Gullan and Loung as Karo Kari and that he was on his way to report the matter to the police at Nawabshah. P. W. 8 Abdul Karim thereafter met P. W. 6 Allahdino the Kamdar of Sardar Sher Muhammad, informed him of what the appellant had told him and requested him to convey this information to the deceased's mother Mst. Gori P. W. 3. There is also the evidence of Allah Bachayo ‑P. W. 9 who happened to be sitting at the police station when the appellant arrived there and surrendered himself along with his blood‑stained clothes and hatchet and who was also a mashir of the mashirnama Exh. 20 under which these articles were secured by the police. Then there is the judicial confession of the appel lant made the very next day to the Mukhtiarkar and F. C. M. Nawabshah. In addition to all this evidence appearing on the record against the appellant there are also the depositions of the deceased Loung's mother Mst. Gori P. W. 3, his wife Mst. Jaman P. W. 4, and his sister Mst. Sahib Khatoon P. W. 5. But the evidence of these three ladies is really directed against the two co‑accused who have been acquitted and consequently is not of importance so far as the case against this appellant is concerned.

6. The medical evidence in this case consists of the state merit of Dr. Muhammad Bux the then Sub‑Charge, Civil Hospital, Nawabshah who performed the post mortem examination on the dead bodies of Mst. Gullan and Loung. He found Mst. Gullan to have been a young woman of about 18 years of age having on her person one external injury namely an incised wound 6" x 2" x cutting all the structures, vessels, 7th cervical vertebra and spinal cord of the neck and leaving only skin by which the head is connected with the trunk over the neck. He found deceased Loung to have been a young man of about 22 years of age with the following external injuries :‑

"(1) An incised wound 7" x 1 " x deep to brain cutting the frontal and temporal bone destroying the brain substance over the frontal region on head, on left side and going behind the left ear.

(2) An incised wound 5" x 2" deep to the bone over the front of the neck destroying the carotid vessels and other structures on left side of the neck.

(3) An incised wound 3" x 2" x cutting the ulna over the back of the left forearm upper one‑third.

(4) An incised wound 4" x 2" x cutting the raidus ulna and lower end of humerous bone over the back of left elbow joint.

(5) Incised wound 2" x 1" muscle deep over the back of right forearm."

The doctor has stated that the one injury on Mst. Gullan and the first two injuries on Loung were individually sufficient in the ordinary course of nature to cause death.

7. Appearing on behalf of the appellant Mr. Hassan Ali Abdur Rahman, Barrister‑at‑Law argued that the case against his client was really one under section 304 (I), P. P. C. and not under section 302 P. P. C. because his client had stumbled upon his sister and deceased Loung in a compromising position and had there and then killed both of them. The learned counsel pointed out that the trial Judge in his judgment had held that the judicial confession of the appellant and his extra‑judicial confession to P. Ws. 7 and 8 Ghulam Haider and Abdul Karim would show that the appellant had acted upon grave and sudden provocation which would, therefore, bring his case under section 304 (1) P. P. C. But, the trial Judge went on in his judgment to state that the admissions made by the appellant to the S. I. P. in the presence of the two mashirs at the police station would clearly show that this was a case of murder and not of man‑slaughter. Mr. Hassan Ali concluded his argument by observing that the state ment made by his client to the police at the police station being inadmissible under section 25 of the Evidence Act, there remained against him only his judicial and extra judicial confessions upon which his conviction could only be for man‑slaughter and not for murder.

8. We have carefully considered these arguments of the learned defence counsel. We have also been taken through the evidence of all the witnesses examined in this case in the Sessions Court and we find it difficult to resist the inference that the story as put forward by the appellant in his extra‑judicial confes sion is not strictly in accord with the actual facts of this case. To begin with, it seems to us extremely unlikely that the two deceased would select a cold wintry morning in the month of Ramazan when the people of the neighbourhood must have been about soon after Sehri time to satisfy their lust for one another in an open field. Secondly, the report, having been made to the police at Nawabshah Police Station only five or six miles away as late as 11‑30 a.m., would show that the incident could not have occurred at Sehri time as claimed by the appellant. This incident must have taken place much after sunrise and hence the women folk say that Loung was summoned from their midst soon after sunrise. Then, the injuries upon the two deceased as deposed to by Dr. Muhammad Bux clearly indicate that more than one person was responsible for these injuries. The head of Mst. Gullan was almost chopped off and deceased Loung had no less than five incised wounds mostly upon the front of his body. The number, nature and position of these injuries clearly belie the version of the appellant that he stumbled across this couple in flagrante delicto and immediately killed both of them. But, however, this may be, the two co‑accused have been acquitted and there has been no move for an Acquittal Appeal so far as they are concerned.

9. On the record of this case, then, as it stands we have before us the two versions of the appellant himself as set out in his judicial confession and as contained in his statement under section 342, Cr: P. C. in ,Court. It is perfectly apparent to us that these two statements are not quite the same and that in his second statement under section 342, Cr. P. C. there is a clear attempt on the part of the appellant to improve his case and to bring it with the four corners of Exception 1 to section 300, P. P. C. In his confessional statement before the Mukhtiarkar & F. C. M., Nawabshah which, as mentioned above, the appellant has admitted to be both true and voluntary he has stated that when he awoke at night to observe fast but did not find his sister on her cot, he went in search of her and ultimately found her in his wheat cultivation on the rear side of his house in the company of Loung Khaskheli and having sexual intercourse with him. But in his statement in Court under section 342, Cr. P. C. he stated that it was at dawn time when he was on his way to his cultiva tion that he found Gullan and Loung in a compromising position near the boundary strip of his cultivation. This difference appears to us to be most significant and is clearly indicative of the fact that the appellant having reconsidered his position decided to make a statement in Court of a less incriminatory character and one which would entitle him to the benefit of Exception 1 to section 300, P. P. C. As a result of these two different statements made by the appellant we are confirmed in our doubt already indicated in the above paragraph that the appellant has not put forward a true account of the actual facts of this case.

10. But, even if we were to accept the version as set out by the appellant in his confessional statement, recorded under section 164, Cr. P. C. we are convinced that the plea of sudden and grave provocation claimed on his behalf will not be open to him. The appellant has admitted in his judicial confession that on awaking from sleep on the morning of the incident he did not find his sister in her cot and he, therefore, went in search of her. Thus, the appellant went in search of the provocation which led him to commit this double murder. The appellant, then, cannot claim the plea of grave and sudden provocation when it is manifest that that provocation was sought by him. It seems to us that the appellant must have had some doubt in his mind concerning the relationship of his sister with his partner Loung and that it was for this purpose that he went searching after her in the darkness of that early morning. In this view, the provocation that he came across was something that he anticipated or expected and therefore having encountered it he cannot be now heard to say that it was so sudden as to entitle him ‑to the benefit of Excep tion 1 to section 300, P. P. C. This provocation may have been grave but certainly it was riot sudden. The first proviso t Exception 1 to section 300, P. P. C. makes this position clear that the provocation should not be sought after. Our attention was invited to a case of Mahamdu alias Mahomed Baksh v. Emperor (A I R 1945 Sind 42) which appears to us to be on all fours with the facts of this case. In this reported case the facts were that :‑

"The accused awoke half an hour after he and his wife had gone to bed at night and finding that his wife was not in bed with him felt suspicious. He therefore took a hatchet and went about searching for his wife and on finding her and her paramour sitting together and embracing each other, struck them both with the hatchet and killed them :

Held that (1) as the accused had sought the provocation which no doubt was grave that provocation was not sudden and as the provocation was not grave and sudden, the act of the accused in killing his wife and her paramour was not covered by Exception 1 to section 300 and offences he had committed therefore were offences of murder and not offences of culpabale homicide not amounting to murder falling under section 304(I)."

11. We, therefore, dismiss this appeal and uphold the sentence imposed upon the appellant.

K. B. A.

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