' G. M. SHAH, J.-The appellant Ajeeb s/o lmamuddin. Jatoi, a young man of about 20 years, was tried by the learned 1st Additional Sessions Judge, Larkana and sentenced to death, under section 302, P.
P/C., for having committed the murder of his wife Mst. Amirzadi by the judgment dated 30th September, 1978.
2. The appellant has filed this appeal against the judgment of conviction and there is also a reference made by the learned Judge under section 376, Cr. P. C. For confirmation. Of the death sentence. This judgment will dispose of both, the appeal, as well as, the reference in respect of the confirmation of the death sentence.
3. The incident in this case is stated to have taken place on 1st April 1978 at 4.00 p. m. The appellant himself appeared at the Police Station Taluka Larkana, carrying the blood-stained hatchet and reported that he was married to Mst. Amirzadi, about six years back and had one son out of the wedlock, who had died. Since two months before the occurrence, he was putting up with his in- laws.
4. On the day of occurrence, he had gone to his field, for cutting, uprooting and clearing of the bushes. He had returned to his house at about 4-00 p. m. And noticed that one side of the door of the room of his house was opened and the other side was closed. On his entering the room he found his wife Mst. Amirzadi and Mushtaq son of Faiz Mohammad Jatoi, sitting together on one cot and were embracing each other. On seeing the appellant, Mushtaq immediately ran out of the room and escaped. Though the appellant chased him, but Mushtaq succeeded in running away.
The appellant returned to his house and found his wife Mst. Amirzadi half-naked. She was putting on her trousers. The appellant got enraged and threw her down and she fell on the cot. Due to provocation, the appellant inflicted several hatchet injuries on her neck and other parts of the body, due to which she died at the spot. During the attack, she had raised cries which attracted several villagers, who came to the vardat ;but did not enter the house due to the threats of the appellant that if any of them came near to him, he would be killed. He informed them that he had killed his wife, who was 'Kari' He then locked the door of the room from outside, where the dead body of the deceased was lying. He stood there armed with blood-stained hatchet till all the villagers had gone away. He proceeded to the police station, carrying the blood-stained hatchet with him and lodged the report (Exh. 15). To the police also, the appellant narrated the same facts that he had killed his wife as she was 'Kari'. The blood-stained hatchet was secured by the police. It was sealed, in presence of Mashirs. Ramzan Bhatti and Dur Mohammad Jatoi under, Mashirnama Exh.
16. The appellant was wearing a shirt and a lion cloth and both were found blood-stained. They were also taken into possession and were sealed in presence of the Mashirs under the Mashirnama Exh.
17. The appellant was, under the circumstances arrested, and taken into custody by the police. The appellant therefore took the police to his house and pointed out the place of occurrence (vardat).
It was inside a room, which was found locked. The appellant had the key which he took out and unlocked the room. The dead body of Mst. Amirzadi was found lying on the ground, inside the room, having hatchet injuries on her neck and other parts of the body. Only a shirt was found on the dead body of Mst. Amirzadi, whereas her shalwar was lying near her feet, with the inside of the shalwar, turn outside (Ubati means inverted). The shalwar was stained with blood, which was seized under the Mashirnama Exh.
18. The blood-stained earth was also taken by the police. All the articles were sealed. The dead body was sent to the hospital in Larkana, for post-mortem. The police recorded the statements of the witnesses, Badrun Nisa, Roshan, Haji Sanwal, Nadho, Mohammad Rafiq, Mushtaq, tlist. Javail and Mst. Razia.
5. On the following day (2nd April 1978) at about 12-00 noon the appellant was produced before the Resident and First Class Magistrate Larkana for recording of his confession. He was kept in the custody of the peon of the Court and the police was asked to leave the Court. The appellant was warned that he was not bound to make a confession, and that if he did, whatever would be stated therein, by him, would be recorded and used against him as evidence. The appellant was allowed time for reflection, during which, the police were not allowed to contact him. At about 1-00 p. m. He was called again and the warning was repeated to him, whereafter, when he stated that he was giving the statement of his own free will, it was recorded. There were no marks of violence or injuries on his person. His confession as recorded verbatim reads as under : ' Question: Has police or anybody else, put pressure or given threat or promise, for which you are ready to give this confession ?
' Answer : Neither police nor any body else, has given me, threat or temptation to give this statement. I am giving this statement voluntarily. My this statement is as under :- "My marriage took place with Mst. Amirzadi d/o Lal Bux Jatoi about 6 years back. I was blessed with one son ; but he had, expired. Myself and my brother Amir, used to reside together ; but yesterday, on) st April 1978 he and his wife had gone to his in-laws. They have shifted, since last 2 months.
Yesterday on 1st April, 1978, at early morning time, I had gone along with the hatchet and spade to uproot wood from Jungle, at a distance of about 1 and a half miles away. After doing the work, I returned at about 3-30 p. Or 4.00 p. m. To my house, and saw that one side of the door of the room of my house was closed and other was opened. I straightaway went into the, room and saw that my wife Amirzadi and MuslItaq were embracing. Seeing me, Karo immediately slipped away. I followed him but I could not reach him, I again came back to the room and pushed down my wife, who fell down on the cot. I gave her .2 hatchet blows on her neck. Due to hatchet blows, she fell down on the ground from the cot, and instantly died. At the time of getting blows my wife had raised cries. Her cries attracted several villagers. They stood near the hedge of the house. I informed them that I had killed my wife, as she was Kari. She was Kari with -Mtishtaq. That they had no concern. That Mushtaq was his cousin. Therefore, he used to visit his house. That I suspected this "Karap" (shameful intimacy) since long time. Then I locked the door, and alongwith hatchet stood in the courtyard, when all the villagers dispersed. I went to the police station alongwith the same hatchet, where S. H.
0. Police Station recorded my statement and then registered the case that loin-cloth and shirt on my person were stained with blood. The S. H.
0. Had removed the same and secured them. The hatchet with which I had killed my wife and blood-stained clothes were sealed by Police in my presence. I had killed my wife 'Kari' due to provocation."
6. The learned Resident Magistrate, who had recorded the confession had certified that the appellant had made the confession and had given full and true account of the occurrence, while answering all the questions that were put to him. The , appellant has signed his own statement, which was read over to him in his own Sindhi language and it was accepted by him as correct.
7. The autopsy on the dead body of Mst. Amirzadi aged about 25 years was performed by Dr. Ali Nawaz, Medical Officer C. M. Hospital Larkana. On the External Examination, the doctor found the following. Injuries :- (1)One incised wound 4" x 24" x bone deep (vertiabrall) column cut) on left side of neck.
(2)One incised wound 2" x 1/4" x skin deep blow chin.
(3)One incised wound 4" x 2" x bone deep on right side in front of neck.
(4)One incised wound 3" x 4" muscle deep below injury No, 3.
(5)One incised wound 4" x 14" x bone deep on back of neck.
(6)One abrasion 2" x 1" on right scapular region.
(7)One abrasion 1" x below injury No, 6.
8. In the opinion of the doctor the death was due to shock and haemorrhage, as a result of injuries Nos. 1, 3 and 5, which were anti-mortem, and appeared to have been caused by a sharp-cutting weapon, such as a hatchet, except injuries Nos. 6 and 7, which appeared to have been caused by some hard and blunt substance. Injuries Nos. 1, 3 and 5 were individually. ' sufficient for causing the death of the deceased, in the ordinary course of nature. The death was instantaneous. Time between death and postmortem was found to be between 18 hours.
9.- In--his statement under section 342, Cr. P. C. He denied having intentionally committed the murder of his wife Mst. Amirzadi, by giving her hatchet blows. He however admitted that on the day of incident, he was returning from his work and when he reached his house, with the hatchet in his hand, he found his wife and Mushtaq in compromising position and kissing each other, and were naked. He challenged them, on which Mushtaq picked up his loin-cloth, and ran away.- He pursued him for some distance, but could not succeed in apprehending him. He returned and gave hatchet blows to his wife as he had lost his self control due to sudden and grave provocation on seeing them in naked and compromising position. He further stated that his wife was chaste and he had no suspicion, against her. She had also given birth to a child from him. He further admitted having locked the room after killing his wife and left her lying inside the room. He also admitted having threatened villagers, .Not to enter his house, while he was armed with a hatchet outside the room.
He further admitted that after killing his wife, he went to the taluka police station, with the blood- stained hatchet and wearing shirt and loin-cloth which were both blood-stained. All the articles, viz. The shirt, loin-cloth and hatchet, were secured by the police. He had himself reported the matter to the S. H.
0., regarding killing of his wife Mst. Amirzadi.. He went on to admit that he led the police party and the Mashirs to his house, where he unlocked the room, with the key, which was in his possession and pointed out the body of Mst. Amirzadi lying inside the room. Finally, he admitted having given a confession on the following day (2nd April. 1978) before the Resident Magistrate Larkana and admitted its contents to be true. He however, stated that the witnesses, who had deposed against him were interested and hostile.
10. We have heard Mr. Faqir Mohammad Jafri learned counsel for the appellant and Mr. Murtaza Hussain for the State. With their assistance, we have also gone through the entire evidence in the case. The main contention of the learned counsel, Mr. Jafri is that this is a clear case of 'Kari', where the motive, for committing the crime, was to wipe off the disgrace caused to the family by the shameful conduct of the deceased; He has further argued that the appellant was throughout consistent in his defence right from the time of occurrence when he had informed the villagers not to come near him as he had killed his wife as 'Kari' and the conclusion of the case when his statement was recorded. It is further contended that the appellant had himself reported the matter to the police and lodged the F.
1. R. He had produced the-blood-stained hatchet, with which he had killed his wife. His clothes were blood-stained, which were secured by the police. It is further pointed out that the evidence of the Investigation Officer Mohammad Iqbal S. H.
0. Who had visited the vardat shows that the appellant himself had pointed out the room, in which the dead body of the deceased was found lying and the room was locked from outside. The appellant had the key, with which he had opened the lock. He pointed out the dead body to the police. The police found the dead body, with hatchet injuries on the neck and other parts of the body. It has also been emphasised by Mr. Jafferi that the manner in which the shaiwar was lyinc, near the feet of the deceased and was inverted (Ubati), suggested that the had put it off and she was involved in shameful act, with her pa; amour Mushtaq. It has further been argued that the appellant had made a judicial confession voluntarily, which was consistent with the circumstances of the case. Since in his statement, under section 342, Cr. P. C., the appellant had admitted having made the judicial confession, the prosecution did not examine the Magistrate who had recorded the confession, which was accepted in evidence under section 80 of the Evidence Act. The plea of the appellant is further found supported by the medical evidence.
11. The learned trial Judge had observed in the judgment that in his confession, the appellant, had clearly shown suspicion against his wife as a 'Kari' with Mushtaq, but later on, in his statement under section 342, Cr. P. C. He had changed his stand, in order to make out the case under .Section 304, Part (I), P. p. C., by stating that he had found his wife and. Mushtaq in compromising position and kissing each other and were naked. He therefore, challenged them, on which Mushtaq picked up his lion cloth and ran away. He followed him for some distance ; but could not catch him. He returned and gave hatchet blows to his wife, due to grave and sudden provocation, as he had lost self control, on seeing them naked and in a compromising position. The learned Judge, therefore, found the case of the prosecution, for intentionally murdering his wife, proved against the appellant, under section 302, P. P. C, and sentenced him to death.
12. Mi.. Murtaza Hussain has, also supported the judgment and has argued that the offence, as indicated, falls under section 302, P. P. C. And the appellant cannot be given the benefit of Exception I of section 300, P.P.C. We find no force in this contention. On the basis of the record and the consistent stand taken by the appellant, we are inclined to accept his version, as is argued by Mr. Jafri, and we are of the opinion that the offence would fall under section 304 (I) P. P. C. And not under section 302, P. P. C.
13. There are three material witnesses examined in support of the prosecution case. They are M.St.
Badarun Nisa (P. W. 3) aged about 10 years sister of the deceased Mst. Amirzadi, Haji Sanwal P. W. 4 and ' Roshan.
14. We are not impressed with the version given by Mst. Badarun Nisa. In her examination-in-chief, she has stated that her mother and sister Razia had gone with Mushtaq to Larkana. This Mushtaq appears to be the same person, who was allegedly the 'Kam' with the deceased., The association of this witness and of her mother with Mushtaq has great significance in this case. It was only on that day and not ever before that Mushtaq had taken this witness, her mother and sister Razia to Larkana. On her return from Larkana her mother had brought some sweets, which this witness was asked to go and deliver to the deceased at exactly the time of occurrence. It is rather unusal, and such a coincidence does not take place in the ordinary circumstances. It was by chance that she had witnessed the occurrence. Her statement further was that she saw Appel.. Lant and the deceased sitting on a cot in their house, when she gave sweets to the deceased. At that time, the appellant is stated , to have dragged the deceased by holding her arm, inside the room, where he is hatchet injuries to the deceased. This version does not inspire confidence, and appears to be cooked up story. After witnessing the occurrence, she went running to that same Mustaq who was sitting in the otaq of Siraj Faiz Mohammad with Haji Sanwal Rafiq, Natho and others. She told them that the appellant was giving hatchet blows to the deceased. Thereafter, she went and informed her mother, who accompanied her to the house of the appellant, where a crowd of the villagers had collected and they had stopped them from going inside the house as the appellant was armed with a hatchet. Shah Nawaz who had his house adjacent to the house of the appellant, and one Mewo were admittedly present at the vardat. None of the witnesses present at the vardat were produced and examined in the case.
15. The next witness is Haji Sanwal (P. W. 4) He came to the place of occurrence on being informed by Mst. Badarun Nisa. His contention was that the appellant was also present in the Otaq of Faiz Mohammad and had played cards with them. At 3 p. m. The appellant accompanied by Nadho Mirbahar and Rafique Jatoi had left the Otaq together. This is not the case of the prosecution. He admitted that on reaching the vardat. The women collected there, told him that the appellant was saying that he had killed his wife, because she was 'Kari' with Mushtaq. This witness was playing cards with Mushtaq in the Otaq of Sirai Faiz Mohammad. He had not witnessed the occurrenne. He went to the vardat with Nadho Mirbahar, Rafique Jatoi and Mushtaq. The women collected there had stopped them from going inside the house of the appellant therefore, they returned to the Otaq. The statement of this witness-is palapably false. His conduct is unnatural and his version does not support the case of the prosecution.
16. The last witness is Roshan (P. W. 5). In his examination-in-chief, he had admitted that the appellant had told all those present at the vardat that he had killed his wife as 'Kari'. This witness is also not eye-witness of the occurrence. He had reached the vardat and stood outside the hedge of the house of the appellant. When this witness had reached the ,place of occurrence, nobody else had reached there. As per his statement, he was the first person who had reached there. He did not see any body coming outside of the house of the appellant. His version belies the ,statement of Mst.
Badarun Nisa. This witness further admits that the appellant had informed him that he had killed his wife as 'Kari' with Mushtaq. From the statement of this witness, it is obvious that Mst. 'Badarun Nisa who was of a tender age of 10 years was introduced in the case in order to deprive the appellant of the benefit of exception I of section 300, P. P. C. ,I7. The evidence of witness Roshan is brief, and mentions only the fact that when he reached the vardat the appellant told them that he had killed the deceased as Kari, whereas, witness Ramzan who is the Mashir of the arrest and recovery of clothes of the appellant and the hatchet and Qurban Ali, the Mashir of the vardat, speak of facts which are admitted by the appellant.
18. As a result of the above discussion of the evidence, we have no material, to place implicit reliance, upon the version deposed. By the -witnesses.
19. While referring to the evidence of the Investigation Officer, we find that his evidence is not disputed by the appellant, in respect of lodging of the F. I. R. By the appellant and recoveries of his clothes and hatchet from him. This witness was taken by the appellant himself, who had pointed out the place of occurrence and had opened the room in which the half-naked body of the deceased was lying. This witness has admitted that the body had no shalwar on and it was lying near the feet. It is evident therefore, that there is great force in the contention of Mr. Jafri.
20. From the facts narrated in the confession, we find that they are more or less in confirmity with the F.
1. R., as well as the other pieces of circumstantial evidence which have been discussed herein above. The evidence indicates that suspicion had arisen in the mind of the appellant about his wife being Kari with Mushtaq and such a suspicion cannot be considered as groundless. In support of his contention. Mr. Jafri, has cited several authorities out of which, we think 1979 SC MR 48 and 1979 P Cr.' J 10 are relevant. We find that the case of the appellant is such, whereby he can safely be given the benefit of Exception I to section 300, P. P. C. The offence would accordingly fall under section 304 (I), P. P. C.
21. The appellant is Jatoi by caste. In our society the male members and particularly the husbands do take upon themselves to control the actions of their women folk, particularly the wives. When he found his wife involved in a shameful act, the natural reaction, would be of deprivation of the power of his self-control by grave and sudden provocation. We further find that the appellant has remained in custody since the day of occurrence (1st April, 1978) and as a condemned prisoner, after the pro-, nouncement of the judgment (30th September, 1978).
22. We would accordingly alter the conviction from 302, P. P. C. To 304 (I), P. P. C., and reject the reference. As far as the sentence is concerned, we feel that the sentence already undergone would meet the ends of justice. The appeal is partly allowed. The appellant shall be set at liberty forthwith if not required in any other case.
' GHAUS Au SHAH, J.--=1 agree.