AGHA ALI HYDER, J.---The appellant, his father Mohd. Bux and one Lai Mohammad were tried by the learned Additional Sessions Judge, Nawabshah on a murder charge. The appellant was found guilty under section 302, P. P. C. And sentenced to transportation for life, and a fine of Rs. 100, or in default to suffer R.I. For one month. The two co-accused were, however, acquitted. Aggrieved by the judgment of conviction and sentence, he has come in appeal.
2. The prosecution story in brief is that on the 29th of May 1968, one Din Mohammad son of Moso Brohi came to be murdered at about ---fajar' prayer time near the house of the appellant as he was suspected to be on terms of criminal intimacy with his (the appellant's) wife. The incident is alleged to have been witnessed by Dad Mohammad, Ramzan and Khuda Bux. Dad Mohammad proceeded to the Police Station and lodged the report. The appellant was arrested that very day.
There was blood on his clothes which were duly secured. His blood-stained hatchet also came to be secured. As the appellant wanted to make a judicial confession he was produced before a Magistrate on 30-5-1978. The case, after due investigation, came to be challaned before the S. D.
M., Nawabshah for Enquiry.
3. The appellant at the Court of Enquiry denied the various allegations made against him, but admitted that he had made the judicial confession. The said confession was however retracted by him at the trial. He further maintained that he had been run down in the case because of enmity.
4. The death of Din Mohamrzad as a result of the injuries, is not disputed. The autopsy was held by Dr. Fazal Haq who found the following injuries on his person.
"(1) Incised wound horizantally 5----- x 3" chest cavity deep cutting 2nd and 3rd ribs below the right axilla.
(2) Incised wound lunar shape 4--- x 2--- cutting the outer plate right parietal bone.
(3) Incised wound 6--- x 3" muscle deep on the right elbow joint outer side.
(4) Incised wound 2----- x 1--- x muscle deep on the left elbow joint outer side.
(5) Incised wound 1' x ----- x skin deep on the right buttock.
The internal examination revealed the fracture of the 2nd and 3rd rib of the right side. The pleura was cut at the site of the fracture. So was the upper lobe of the right lung. The Medical Officer was of the opinion that the injuries were ante-mortem in nature and had been caused by a sharp-- cutting weapon such as a hatchet. The death, according to him, had been caused by asphyxia due to the penetrating injuries on the chest. The Injury No. 1 was individually sufficient in the ordinary course of nature to cause death.
5. The three eye-witnesses of the incident, namely, Dad Mohammad, Ramzan and Khuda Bux have been totally disbelieved by the learned trial Judge and for cogent reasons, Khuda Bux has categorically stated that they had gone on hearing the cries but the incident was not witnessed by them because of darkness and they had returned to their houses. When they had gone again with a lantern all that they found there 'was the dead body of Din Mohammad. He was cross-examined by the learned Public Prosecutor but nothing worthwhile could be elicited from him. Manifestly, he had nothing better to say at the Court of Enquiry either. Even Dad Mohammad's version that on the night of the incident he was staying as a guest with P. W. Ramzan, a relation of his, is not only strained but also discrepant. All that, therefore, remains against the appellant is the judicial confession made by him before the learned Mukhtiarkar and F. C. M., Nawabshah, the extra judicial confession made by him before P. W. Noor Mohammad, the recovery of the blood-stained clothes from his person and his blood-stained hatchet which was handed over by Noor Mohammad to the police along with the appellant.
6. The appellant in his statement at the Court of Enquiry, as referred to earlier, did admit that he had made the judicial confession. He however retracted from it at the trial. That was too late in the day. He had no allegation to make in his statement against the police either. Noor Mohammad has stated that Mst. Dar Bibi, the wife of the appellant was seen by him in the office of the Mukhtiarkar and F. C. M., Nawabshab, but the Investigating Officer has stated that she had been called for enquiry. The confession was recorded after due warning, and finds support from P. W. Noor Mohammad in regard to the extra judicial confession made before him. It is also to be seen that it was recorded without any delay whatsoever. I am therefore of the opinion that the judicial confession made by the appellant was true and also voluntary. The confession mentions that about three years back, the appellant's wife was suspected to be on terms of criminal intimacy with Din Mohammad, and the latter was declared a 'Karo'. On the morning in question, near about the 'Fajar' prayer time, he was sleeping at his house along with his wife and his adopted brother, Lal Mohammad, a co-accused since acquitted. He had got up from his sleep on hearing sounds of foot steps and found Din Mohammad running away from his house. He thought that Din Mohammad was in the house to pursue his clandestine relations with Mst. Dur Bibi. As a result thereof, he was cut to the quick and chased the paramour. Lal Mohammad had also joined him in the chase. They had overtaken Din Mohammad at a distance of an 'athas' and made a short work of him. It has been conceded by the complainant Dad Mohammad, who is a nephew of the deceased, that the latter was living with the appellant some time earlier and once suspicions had been aroused against him, he was driven away from there. It was also admitted by him that six months before the incident the appellant had involved Din Mohammad in a theft case which was pending at the time of the incident. It is also an admitted position that Din Mohammad was living near Kazi Ahmed village which was about 29 miles away from the vardat. On the showing of the prosecution, the vardat was situated within a stone's throw of the appellant's house and therefore his presence in the vicinity in the early hours of the morning was not free from suspicion. The extra- judicial confession made by the appellant before Noor Mohammad also is in harmony with the judicial confession.
7. It was contended by Mr. Ahmed Saeed, learned counsel for the appellant that if the appellant was to be convicted on his own confession, it must be taken as a whole, it would be unsafe to use .The part against him and discredit the part in his favour. The legal proposition is not open to any exception. The question, that remains to examine is, whether in the circumstances mentioned by the appellant, grave and sudden provocation can be spelled out. Mr. Ahmed Saeed has cited three cases in support of his contention. The cases cited by him are Fateh Mohammad alias Fattu v. The State (PLD 1967 Lah. 579), Das Raj v. Emperor (108 1 C 908) and Ghulam Mustafa and another. v.
The State (1970 PCrLJ 485). The last two cases will be to the point.
8. It is an admitted position that .Din Mohammad had been expelled from the house of the appellant because he was suspected to be on terms of criminal intrigue with Mst. Dur Bibi, and six months before the incident the appellant has filed a criminal case against him which was still pending. Dad Mohammad has stated that Din Mohammad came to be involved in the theft case only because he was found to be present outside the house of the appellant. As has been mentioned earlier, the appellant was living far away and there is nothing to show as to why he happened to be near about the appellant's house in the early hours of the morning. The confession makes out that the appellant had seen him running away from his house. It is true that he had found his wife lying in a cot nearby. All the same, it cannot be said that the suspicion aroused in the mind of the appellant was totally groundless. It is also to be seen that he is a Baluch from the mofussil, who are so sensitive on that score. The chase was taken up, while the passions would be hot. I am therefore of the opinion that the offence made out would be under section 304, Part I, P. P.
C. And not section 302, P. P. C. The conviction is therefore altered accordingly.
9. It has been observed in the State v. Akbar (PLD 1961 Lah. 24), that in such cases where the motive for the crime is to wipe off the insult to the fair name of family, the punishment had to be measured with a different yardstick' altogether. The appellant has already, served out a little more than two and a half years of his sentence, and he was in custody for a little short of two years awaiting his trial. I am of the opinion that the sentence already undergone by him would meet the ends of justice. The fine imposed on him also stands remitted. He will be released, forthwith, unless wanted in connection with some other case. The appeal is partly allowed.
I. MAHMUD, J.-I agree.