Z. A. CHANNA, J.---Appellant Liaquat Ali was tried along with his brothers, Qalabali and Roshanali, by a learned Additional Sessions Judge, Larkana, in respect of an offence under section 302 read with section 34, P. P. C., for committing the murder of his sister-in-law, Mst. Mukhtar, and Yar Shah, and while the appellant's brothers were acquitted, the appellant has been convicted of an offence under section-302, P. P C. And sentenced to imprisonment for life and. Also-to pay a fine of Rs. 1,000 or in default to undergo R. I. For one year.
2. The prosecution case, shortly stated, is that Mst, Mukhtar was married to Pathan, a brother of the appellant, some years back, but a few months after the marriage, he turned her out of the house, whereupon she came and put up with her uncle, Khadim Hussain, in village Kothi Kalhoro. Taluka, Larkana. On the day of the incident, at about 4-00 p.m. Khadim Hussain filled his bullock-cart with manure and went to his land, leaving his wife, Mst. Mumtaz, his mother, Mst. Saeeda and niece. Mst.
Mukhtar, in the house. After unloading the manure, hr was returning back to his house, when he heard cries of "murder" ! "murder !" coming front his house and saw the appellant and the two acquitted accused, Qalabali and Roshanali, coming out of his house at a fast space and going towards the east. On going inside his house, Khadim Hussain found the dead body of Mst. Mukhtar lying on the ground near the outer door. She had injuries on her forehead and the nape of the neck.
He also found the dead body of his Zamindar and Murshid Yar Shah, lying on a cot in the courtyard of the house. He had spade injuries on his head and the brain had come out. On the cries and commotion several persons from the village turned up. Mst. Mumtaz informed Khadim Hussain that shortly after he had left with the cart of manure, Yar Shah arrived and sat on the cot. In the meanwhile, the appellant and his two brothers, Qalabali and Roshanali, also arrived. Mst. Mumtaz further informed her husband that the appellant, immediately on coming to their house, picked up a spade, which was lying in the courtyard of the house, and gave blows with it to Yar Shah on the head, in consequence of which, Yar Shah fell down, whereafter the appellant gave him 'danda' blows, in consequence of which Yar Shah died on the spot. She further informed Khadim Hussain that due to fear Mst. Mukhtar went outside but the appellant caught her at the outer door and gave her blows with the spade and 'danda', on receipt of which she fell down and died. The motive for the two murders, as disclosed in the F. L R., is that the appellant suspected that Mst. Mukhtar was Kari with Syed Yar Shah.
3. The F. I. R. Of the incident was lodged on the very day of the incident, at 11-30 p.m., by Khadim Hussain with Head Constable Mir Muhammad (who died before he could be examined at the trial), at Dhamra Police Station, which is 8 miles away from the scene of offence.
4. The initial investigation was done by Head Constable Mir Muhammad, who visited the scene of offence and sent the 2 dead bodies to the Civil Hospital, Larkana, for post-mortem examination. On 30-5-1975, A. S. I. Khan Muhammad arrested the appellant from his village. The appellant was found wearing clothes which were blood stained. The A.S.I. Seized the same and also a blood- stained `danda' which was produced before him by the appellant. On 4-6-1975, the 2 acquitted accused were arrested by the A. S. I. Accused Roshanali is said to have produced a hatchet while Accused Qalabali is stated to have produced a 'Lathi' before the police. However, neither the hatchet nor the 'Lathi were blood-stained.
4. The autopsy on the 2 deceased was performed by Medical Officer Muhammad Amin. He found the following external injuries on the two deceased :- "Musammat Mukhtar:
(1) One lacerated wound 1----- x ----- x ----- on left side of forehead.
(2) One incised wound 4" x 1--- x bone deep on left occipital region.
(3) One abrasion 2" x 1----- on right side of forehead.
Yar Shah
(1) One incised wound 8--- x 3--- x brain matter deep extending from left side of nose cutting through the left eye and deft side forehead upon middle of the parietal bone.
(2) One incised wound 4" x ----- muscle deep on left side of the face extending from mastoid region to left temporal region.
(3) One incised wound 1--- x ----- x muscle deep on left cheek.
(4) One incised wound 1----- x ----- x bone deep cutting cartilage of the nose.
(5) One incised wound 1--- x ----- x muscle deep on left side of the neck."
5. On internal examination, the Medical Officer found that the stomach of Mst. Mukhtar was empty, her scalp, skull bones and membrane of the brain were out and the 'brain matter was congested.
In the opinion of the Medical Officer, external injuries Nos. 1 and 3 on Mst. Mukhtar had been caused by some hard and blunt substance while injury No. 2 appears to have been caused by some sharp cutting substance. The internal examination of deceased Yar Shah showed that his skull was fractured, the brain cavity contained blood and his stomach contained semi-digested food. In the opinion of the Medical Officer, the death must have been instantaneous on receipt of the above injuries.
6. The appellant, in his statement under section 342, Cr. P. C. Has admitted to have killed Mst.
Mukhtar as well as Yar -Shah and stated as follows :-- "I killed both Mst. Mukhtar and Yar Shah finding them in objectionable position alone in the house of complainant, on grave and sudden provocation. No one else was with me at that time."
7. The learned Additional Sessions Judge acquitted the two co-accused on the, grounds that though according to the witnesses they were armed, no specific overt act was attributed to them, and further, even their presence at the scene of offence was doubtful and was not corroborated by any independent or reliable evidence.
8. The fact of killing of Mst. Mukhtar and Yar Shah by the appellant is established through the evidence of Mst. Mumtaz and Mst. Saeeda, who have testified that within their sight the appellant had given fatal blows with a spade and danda to the deceased, and the corroborative evidence of firs informant Khadim Hussain, to whom the two ladies reported the incident immediately after its occurrence. Further strong corroborative evidence is provided by the recovery of blood-stained clothes and blood-stained 'danda' from the appellant as testified by A. S. I. Khan Muhammad. The appellant has admitted the recovery of these articles from his possession by the police. These items were sent to the Chemical Examiner to the Government whose report is to the effect that all of them were found stained with human blood. Finally, the appellant himself, in his statement before the trial Court, has admitted to killing both Mst. Mukhtar and Yar Shah.
9. It thus remains only to be considered whether the act of the appellant in killing Mst. Mukhtar and Yar Shah amounted to murder or there is any substance in the plea of grave and sudden provocation alleged by him. We have carefully examined the evidence led in the case and are of the view that there appears to be considerable force in this plea. Although P. Ws. Mst, Mumtaz and Mst. Saeeda have tried to improve upon the version of the incident as given in the F. I. R. By stating that the appellant and his 2 brothers had first come to their house and subsequently deceased Yar Muhammad had come to their house, in order to enquire about the bullock-carts which he needed, and was brought inside their house by the appellant himself, the earlier version as given in the F. I.
R. And in the 164 statements of the witnesses, which is entitled to a greater weight, is that deceased Yar Muhammad had come to their house before the arrival of the appellant and his brothers and was found by them lying on a cot in the house. The medical evidence shows that deceased Yar Shah was a young man of about 25 years of age. Similarly, Mst. Mukhtar seas a young woman of about 25 years of age. Admittedly, Yar Shah was not related to Mst. Mukhtar, the complainant or his wife. The presence of a stranger in the house by itself is an act to arouse the suspicion of a villager.
In the instant case, there were other factors which tended to confirm the suspicions already entertained by the appellant that Yar Shah was carrying on illicit relations with Mst. Mukhtar. As already indicated, Yar Shah was a young man of 25 years of age. Admittedly, he was found by the appellant lying on a cot in the verandah of the house. At that time, there was no male member in the house. The purpose for which Yar Shah had come to the house of the complainant is not disclosed in the F. I. R. Or even in the 164 statements of the witnesses. In fact, it has been admitted by Mst. Mumtaz in her 164 statement, with which she was confronted that Yar Shah had been in the habit of visiting them. The claim of Mst. Mumtaz and Mst. Saeeda that the reason of Yar Shah's visit was to enquire about bullock-carts which he wanted appears to have been an afterthought. In any case, if this had been his purpose, he would have gone away on finding the man of the house absent. The fact that not only be stayed on but was found lying on a cot in the house clearly indicates to us that he had much more intimate relations with some family members of the complainant than mere ordinary relationship of Mari and Zamindar of Pir and Murid. It is unfortunately only too common in this part of the country for young Zamindars to have illicit relations with the family members of their tenants. Further indication of the relations between Yar Shah and Mst. Mukhtar is provided by the fact that it was she alone who attempted to rescue Yar Shah and to stop the appellant from killing him. The time of the incident is also significant. Though the exact time is not mentioned, it appears to have occurred at about 4-00 p.m. The incident occurred towards the end of May, 1975, and a Zamindar would not, at such hot part of the day, think of going in the house of his tenant unless he had a special purpose in mind, which in the present case appears to have been to carry on an affair with Mst. Mukhtar. It is quite possible that both Khadim Hussain and his wife, Mst. Mumtaz, connived at this illicit affair, and it was for this purpose that Khadim Hussain conveniently left the house. Our view that the incident apparently occurred much earlier than Tripahri time, which is the time given in the F. I. R. Is particularly founded on the fact that the stomach of deceased Mst. Mukhtar was empty, which indicated that she had not taken her mid-day meals. This could only be probable if the incident had taken place in the early afternoon. Finally, we may mention that the vaginal swabs of Mst. Mukhtar and unetheral swabs of Yar Shah were taken by the Medical Officer for examination by the Chemical Examiner. This could only have been so if the police reasonably suspected that the two deceased had sexual intercourse before the incident. The fact that the report of the Chemical Examiner has not been produced raises the presumption that if produced it would have been adverse to the prosecution and perhaps supported the defence version. The fact that the dead bodies were found by the police fully clothed does not negate the plea of the appellant, as firstly, the bodies could have been clothed by the witnesses before the arrival of the police, and secondly, even if the appellant did not actually see the two deceased in the act of sexual- intercourse, in the circum--stances in which he saw deceased Yar Shah in the house of the complainant, he could have reasonably believed that he was there for the purposes of having illicit relations with Mst. Mukhtar.
10. In view of the above circumstances, we are of opinion that the version of the appellant that he killed the two deceased on grave and sudden provocation appears to be well founded. Added support is lent to it by the fact that admittedly the appellant had come unarmed to the house of the complainant and he picked up the weapons available in the house for the purpose of killing the two deceased. Both these weapons were quite unsuited for attaining the object fir view, one being a spade and the other a "danda" used for the purpose of grinding 'Masala'.
11. For the foregoing reasons, we would substitute for the sentence of life imprisonment and fine of Rs. 1,000 imposed on the appellant by the learned Additional Sessions Judge, under section 302, a sentence of 5 years' R. I. Under section 304, Part I, P. P. C. The appeal is accordingly allowed to the extent indicated above.