' MUHAMMAD ZAHOORUL HAQ, J.-This is a case for confirmation of death sentence awarded to appellant Ghulam Ali under section 302, P. P. C. By Sessions Judge, Dadu on 13-6-1979. The appellant was also directed to pay compensation of Rs, 5,000 to the heirs of the deceased under setion 544-A of the Cr. P. C. In case the death sentence was not confirmed. The appellant has also filed an appeal against the same judgment and, therefore, the appeal and the confirmation case are being disposed of together.
' The F. I. R. Exh. 3 in this case was filed at Sehwan Police Station on 7-2-1978 at 6-15 hours by Jaman son of Dhan Bux and was recorded by the S. H.
0. The same reads as under : "Report is that. I am munshi of Ouqaf Rest House, Schwan. In this Rest House, the people who came for the purpose of Ziarat, used to reside on rent. Yesterday i. e. 6-2-1978 one person with his wife and five children at about 8 p.m. Came in the Rest House and demanded one Room on rent. I gave him room No, 7 of the rest house on the rent of Rs, 20 and that man entered his name and address in the Register. That man showed his name as Ghulam Ali son of Illahi Bux caste Talpur Tapedar Khairpur Mirs and I obtained Rs, 20 of rent from him and that man with his wife and children went and waited in Boom No,
7. Today in the morning time at 6 a. m. From the Room No, 7 where Tapedar was waiting, I and Khuda Bux son of Khamiso who was with me, heard the cries of little childran saying "Yahussain daddy has slaughtered mummy" and were weeping loudly and were crying murder! Murder! Mummy! Mummy! I and Khuda Bux were adjacent to room No,
7. On the cries of children, we went toward that side and found Tapedar Ghulam Ali of Room No, 7 opened his door and came out and by giving a slogan saying "Ya Ali" loudly and asked us that due to provocation 1 have murdered my wife. We interrogated from him the name of his wife who told her name as Mst.
Nahidni d/o Mir Shah Muhammad, r/o Khairpur Mirs and said that my wife was on illicit terms at Khairpur, hence I br4ht her here at Mirs and Qalandar and., slaughtered her with 'Kati and murdered her due to provocation. Then I and Khuda Bakhsh did not leave him out side the room, and locked the door of the room outside. In the meantime, Boshoo Mandini-Wala come and other passengers who were waiting in the rest house also came there whose names I do not known, and Pandhi Khan, owner of the rest house also came there, leaving Pendhi Khan, Khuda Bakhsh and Boshoo at Room No, 7 showing them murderer Ghulam Ali and deceased Mst. Nakidini who was lying dead on the cot slaughtered from the neck and five childrens of Topsdar Ghulam Ali, went to P. S. For report. I and Khuda Bux reported the above incident to Pendhi Khan, Rosho and other passengers, reporting that investigation be made. The ,Kati' with which Ghulam Ali slaughtered his wife is also lying inside the Room No,
7. Note :-The above report of the complainant is written at his verbatim, read over to him, who accepted to be correct and put;his signature on it."
' The appellant was challaned and when the charge under section 302, P. P. C. Was explained to the appellant in Sindhi by the learned Sessions Judge, Dadu, he pleaded guilty to the charge. The Sessions Jucge, has said in his judgment that the charge was explained to the appellant Ghulam Qadir in Sindhi and he pleaded guilty. The prosecution witnesses examined are the complainant P.
W. 1 Muhammad Juman who was the Munshi of the Restellouse where the appellant stayed, for the night with his wife and the children. He reiterated the contents of the F. I. R. He was not cross- examined at all in respect. He was fully supported by P. W. Khuda Bux, who was staying in the rest house at that time and on hearing cries, he came out from his Room and saw the accused opening the door of his room but on seeing the P. W., he went inside and at once closed the door. The accused declared from the Room inside that he has killed his wife due to "Ghairati' as he has seen her in compromising position in Khairpur Mir's. This witness along with complainant Juman locked the door of the accused from outside and informed Pandhi Khan who had come to the rest house by then. In cross examination this P. W. Denied that the accused told them that he had seen his wife in compromising position with some one at Sehwan. He admitted that the accused was raising slogan inside the room and it appears that he was not in his senses at that time. This witness had also stated that damn had gone to lodge the report and he had stayed at the vardat and police came with complainant Juman and secured the accused. P. W. 3, Pandhi Khan, who was the contractor of the rest house, had reached the scene of offence immediately after the incident on hearing news from a boy. He was told. By Juman and Khuda Bux that the accused had told that be had murdered his wife due to `Ghairar, In his presence, the police came with complainant Juman and the door of the room was opened and he was made to act as mashir P. W. Khuda Buv was the co-mashir. They saw the dead body of. Mst. Nahidird lying on a cot covered with quilt. The accused was also present there and he had'a 'Kati' in his hand which was blood stained. Police arrested the accused and secured the 'Kati' from hirn, vide a Mashirnama Exh.
6. The mashirnama of vardat was also prepared andlhe same is Exh.
7. The blood was found on the pillow and bedding which wos secured and coaled. Knife was also sealed. A tin of Bhouing was found and it was also secured. The inquest report of the dead body was also made and the . Same is Exh.
8. In cross-examination, he admitted that accused was raising slogan when the door of the room was opened by the Police. The accused at that time had disclosed that he has killed his wife due to "ghairat".
' Dr. Dfiulam Qadir, Medical Officer of Sehwan had performed the post morten or the dead body of Mst. Nahidini and he found the following external injuries on her person "Incised wound on front of neck more on left side measuring 6" it 2' x 2 Superficial cervicaf vertebra was cut.
(2) Incised wound on right thumb of right hand measuring 1"x r Bone of thumb was cut."
According to the opinion of the doctor death was due to shock and hemorrhage due to Injury No, 1.
Post-mortem report is Exh.
12.
' The report of the Chemical Examiner has been exhibited as Exh. 14 and it shows that `Churri', cover of pillow and white "shalwar" was stained with human blood.
' In his statement, under section 342, Cr. P. C. The appellant has admitted that he had slaughtered his wife Nabidini from her neck. He had admitted that he suspected his wife to be of bad character.
He was shown judicial confession Exh. 17, alleged to have been made by him before Mukhtiarkar Sehwan on 7-2-1978 and he admitted that he had made that confession and that it was true and voluntary and bore his signature. The appellant also admitted that the police had secured blood- stained dagger from him. He further stated that the P. Ws. Were speaking nothing but truth.
' The relevant part of the confession recorded in Exh. 17 is reproduced herein below :- "About 2-3 days prior, I used to reside in my house Nizarnani' Muhalla near Railway Station Khairpur Mirs. 2-3 days prior today, I have seen my wife Mst. Nahidini daughter of Mir Shah Muhammad with my elder brother, namely Mir Tagial in objectionable position. Being a peaceful citizen, I became silent with a view that any one may not complain and to see his position I drank the dose of poison, and left the house and was reflecting my mind in this connection. Again on the next day at 11 a. m.
When I entered in my house, I found my wife Mst. Nahidini in objectionable position with my nephew Illahi Bux, but this fact I did not disclose to any, one, with a view that the neighbourers should not complain against me. Again on the next day, I saw my wife in naked position in the laterine and saw a dog by her side, understanding that she is also, on bad terms with the dog. Yesterday i. e. 6- 2-1978 at about 10 a. m. My wife put in my bag, a cash of Rs, 27,500 (in words twenty seven thousand five hundred) in my absence and left the house with her children. I, when immediately came in the house, found my wife missing. I also cared for my money but the same was also missing. I then started searching her and came at the station and saw my wife sitting with her children in the passenger train which was being stopped there. I asked her where she is going. She replied that she is going for "Ziarat" of Qalandar Lal Shahbaz at Sehwan. Then 1 also seated in the train in the side compartment. When train arrived at Rohri Railway Statidn, My wife had also the black coloured bag of leather, which contained one Qur'an Sharif and a 'Kati' and also the clothes of childrens. I serched for the money in my bag but missing, because that money was concealed by my wife in some other place in a wrapped cloth underneath Burqa. On 6-2-1978 at about 7-33 p. m. We reached Sehwan. Then we slept in a rented room of Oqaf Rest House. 4n the morning at 6- 00 a. m. I took out `Kati' from the bag and slaughtered her from the throat. She bleeded slightly and then on the cries of children, one person of the hotel come there, and asked that what was, to whom I narrated that 1 slaughtered my wife due to provocation because "samjhaoed" her that she should be free from bad habits but she could not give any heed to that. Then Subedar came who arrested me and the cash which was lying from the beddings my wife took that amount and after usual action produced me before you. I had informed this position to the Subedor and took 'Kati' and money from the vardat and produced at the police station."
' In view of the admitted position that the appellant had committed the murder or his wife Mst.
Nahidini, the learned counsel for the appellant Mr. A. G. Talpur, confined his arguments to the question of sentence only. In view of the overwhalming evidence against the appellant and the confession made by him, the attitude adopted by the learned counsel for the appellant is the correct one and we have, therefore, examined his contention in respect of the sentence.
' The motive given by the appellant in his confession is the only motive in the case as no other P. W.
Has deposed about the same except that P. W. Jumman and P. W. Khuda Bux as well as P. W. Pandi who have also admitted that the appellant had stated that he had killed his wife due to "Ghairat".
Since, there is no other statement available in respect of the circumstances leading to the killing of Mst. Mahildini, than the confession and the extra judicial confession made to the P. Ws. Are the only factors giving an insight into the cause of killing. It appears that the deceased was acting for some time in a manner which was objectionable from the point of view of the appellant and he had seen her in compromising position with his own nephow Matti Bux as well as with his own elder brother Mir Tagial. He had also seen her in a naked position with dog by her side suggesting that she was having lust satisfied in that fashion. The appellant continued to suffer under provocation and he was able to find an apportunity only at Sehwan Rest House. It was, not a case of any grave and sudde provocation, but the appellant had been under the influence of the earlie provocations and he has been brooding over the same and since he was a last able to find an opportunity, he has killed his wife. We are, therefore, of the view that the torture that appellant had suffered for some time on account of infidel and objectionable conduct of the deceased did provid a mitigating circumstance on account of which death sentence should not have been awarded to him and only life imprisonment should have been A awarded with the compensation of Rs, 5,000 under section 544-A of Cr. P. C. Reliance is placed upon PLD 1960 Lah. 359, where an accused, who had been brooding for a long time over the infidelity of his wife before killing her, was given a life imprisonment.
' Mr. Murtaza Hussain has very fairly conceded that in the circumstances of this case it was fair that only life imprisonment with compensation should have been awarded.
' We, therefore, refuse to confirm the death sentence and award life imprisonment and also direct the appellant to pay compensation of Rs, 5,000 to the heirs of the deceased under section 544-A of Cr. P. C. And in case of default in payment of compensation to further suffer R. I. For one year. With modification in the sentence the appeal is dismissed.