AJMAL MIAN, J.-The present appeal has been filed by the three appellants, namely, Mir, Belo and Saidal all sons of Mehar, by caste Ladki, against the judgment dated 20th June, 1981 passed by the learned Sessions Judge, Sukkur, in Session Case No. 299 of 1979 convicting the present appellants under section 454, P. P. C. Read with section 265-H, Cr. P.C. To suffer one year's R. I. And to pay fine of Rs. 500 each or in default to undergo 3 months' R. I. And also convicting them under sec--tion 302, P. P. C. And awarding them sentence of death to each of the appel--lant also directing them to pay Rs. 500 each as compensation or in default and of payment of compensation to undergo R.
I. For 3 months under section 344, Cr. P. C. For murdering Soomar son of Kathoor Ladki. The reference trade by the learned Sessions Judge is also before us for confirmation of sentences of death.
The brief facts leading to the filing of the above case are that P. W. 1 Ranjho son of Allahdad Ladki lodged F. I. R. On 4th November, 1979 at 01-30 hours against the appellants under section 302/452/34, P. P. C. At the Police Station Mirpur Mathelo, which was recorded by the S. H. O. P. W. 8 Lal Bux. The distance shown of the place of wardat from the P. S. In the F. I. R. Is 10 miles. In the complaint, it was alleged that Soomar son of Kathoor Ladki was the complainant's maternal uncle's son having house adjacent to him and one door for entrance between the two houses. It was further alleged that about 3 months prior to the incident accused Mir, who was also closely related to the complainant, had suspected deceased Soomar to have developed illicit connection with his wife Mst. Ganwari. It was also alleged that accused Mir used to say that he would murder Soomar. It was further alleged that on the day of the incident as usual in the night the com--plainant alongwith his-family members after having meals slept in his house, when about 11 p. m., heard cries from the house of Soomar. Thereupon, he went running towards the Soomar's house and so also P. Ws. 2 and 3 Sanwal son of Abdul Rehman and Bhuro son of Jaffar respectively, by caste Ladki. It was also alleged that the complainant and the above other two witnesses saw on moonlit night and identified the accused, namely. Mir, Belo and Saidal who were armed with lathies. It was further stated that. In their presence all the three accused with the intention of killing Soomar gave lathi blows on head of the body of Soomar. It was also stated that the complainant and the 2 P. Ws.
Gave Hakals to the accused not to kill Soomar, to which the accused replied that they should be careful and should not come near to them as SOOmaI was their Karo to whom they would murder.
It was further alleged that the accused saw them (the complainant and the P. Ws.) coming near and after giving blows to Soomar went towards their houses. It was also stated that they found that Soomar had become unconscious and had sustained one injury above the side of ear, one blow on the left side, one blow above the nose, and one blow on the chin and that he was bleeding. It was further stated that the complainant with the assistance of the above witnesses took Soomar to the P. S. For lodging F. I. R. And that the above accused had suspected Soomar to be in two with Mst.
Ganwari and that all the accused persons in furtherance of common intention unlawfully trespassed the house with the intention to murder Soomar and inflicted injuries to him and hay, seriously injured him.
3. The prosecution evidence comprises of 3 alleged eye-witnesses P. Ws. Nos. 1 to 3, Ranjho, Bhuro and Sanwal respectively, P. W. 4 Mohammad Sachal, mashir, to the Mashirnama of dead body and to the inquest report Exhs. 11 and 12 respectively, P. W. 5 Ngwab All Tapedar (who prepared the sketch of wardat Exh. 15 after about a year from the date of incident). P. W. 6 Abdul Wahid Mashir to Exh. 17, Mashirnama to the scene of offence, Exh. 18, Mashirnama of arrest and personal search and recovery of lathi Exh. 19 and Mashirnama of recovery of Mangha. (It may be observed that the other Mashir to the above exhibits was Sajjan who was related to the complainant party was not examined), P. W. 7 Ghulam Muhammad Constable, who was entrusted with the dead body which he handed over to the Doctor for post-mortem, P. W. 7-A Bashir Ahmed, Medical Officer, Ghotki Hospital was examined to prove inter alia Exhs. 22, 23 and also on the question of injuries received by the deceased and his opinion in respect thereof and P. W. 8 Lal Bux S. H. O. Who was the Investiga--ting Officer. In addition to the above evidence the prosecution has also brought on record Chemical Analyser's Report Exh. 27 in res--pect of Mangha (i.e. a wooden danda) recovered from indica--ting that it contained human blood stains Reliance has also been placed on the motive : (b)The appellants have also made their statements under section 342. Cr. P. C. Appellants Nos. 2 and 3 have denied the factum of causing any injury to the deceased whereas appellant No.1 Mir in his statement has stated that he inflicted injuries or, the deceased due to Ghuirat. He admitted that he had pro--duced blood stained Manga. He has also stated that he did not suspect his wife, previously but on the night of incident he saw her. He has given his version of the incident in the following words: - I had slept in night after taking meals on the night of incident, my wife also slept with me on same cot, and at mid night time I woke up and found my wife missing. I searched her in the house, but could not find her. I found that the door between my house and house of deceased Soomar was open. I went to the house of Soomar, and found him and my wife sleeping together. I lost control over myself and taking the cot peg which was lying there, I hit the deceased, which hit him and in the meantime my wife had got up from the bed and she ran to my house 1 gave three four blows to Soomar and thereafter I persued my wife, but I was overpowered by my brothers co-accused Belo, and Saidal, the complainant and witnesses had also com, there after I had given blows to Soomar.
The complainant and witnesses asked my brothers the co-accused in his case, to release me so that I may kill my wife. But my brothers, prevented from doing so. Thereafter I had no recollection, but police came to me and arrested me and my brothers. My brother co-accused Saidal and Haji Belo had taken no part in killing of Soomar I had produced the cot, peg before the police. I were taken to the Magistrate, where 164, Cr. P. C. Statement was recorded of witnesses, where I told the Mukhtiarkar the facts that I stated above.--- 3 (a) P. W. 1 in his deposition before the Sessions Court reiterated the contents of the complaint and has inter alia deposed that they are the sons of the cousin, whereas deceased Soomar was his marote (cousin). He goes on to state that his house is about 10 or 15 paces away from the house of the deceased and whereas P. Ws. Sanwal and Rwuro reside about 10-15 paces away from the house of the deceased. He has further deposed that at about 12 months back at about 11 p. m., he heard cries from the house of Soomar. They went running there and saw accused Mir, Belo and Saidal causing lathi injuries to Soomar, who was sleeping on the Thalia and that the accused having their faces unmuffled, he identified them. He has also deposed the P. Ws. Bhuro and Sanwal also came running there from their houses and they also saw the incident.
He has also stated that on seeing them they (accused) went away and on their inquiry they (accused) told them that they were killing Soomar as he was their Karo. He has also deposed that P.Ws. Ganwari was living with her parents about 15(16 miles away. In his cross-examination, he has stated that P. Ws. Sanwal and Bhuro are brothers inter se and are sons of deceased Soomar's cousin. He has further stated that he was not in a position to say if Muhammad Sachal mashir was cousin of Abdul Wahid mashir. However, he has admitted that P. W. Sajan mashir is brother-in-law of P. Ws. Sanwal and Bhuro. He has also admitted that there are houses of Shaikh Imam Bux, Allah Bux and Moula Bux about 40 paces away from the house of the deceased on the western side, whereas on the back side of the house there was house of Khuda Bux. He has further admitted that the house of Ghulam Hussain was about 10-15 paces away from the house of the deceased towards east, whereas house of Ali and Deeno were about 50 paces away from the house of Ghulam Hussain. He has also stated that the accused Mir was suspecting since about 2 or 2J months prior to the incident that the deceased had developed illicit connection with his wife. He has further stated that accused Mir told him about being Kato of the deceased with his wife and that during these, days, the deceased and accused used to visit each other. He goes on to state that they did not complain to any authority as the deceased had taken oath on Holy Quran that Msr. Ganwari wife of accused Mir was like his sister and mother. He has also stated that they personally did not know if Mir accused's wife was Kari with the deceased. He has also stated that the family members of the house of the deceased were residing with him but on the day of the incident, they had gone to in-laws, and that deceased's son Bahadur was also not in the house at the time of the incident. He has also stated that deceased's wife Mst. Jamiat 2-3 days prior to the incident had gone to meet her parents. He has further stated that he and P. Ws. 2 and 3 reached the wardat on hearing cries at same time, and when they were about 4 paces away from the accused, they did not inflict further injuries to the deceased. He goes on to state that he himself went to the Police Station for report at 1 a. m. And that Bharo, Sanwal and other people were also with him, who included Noor Muhammad, Ghulam Hussain. Ghulamo and one Sajan. He has further stated that the above other persons carne on hearing cries, to whom they narrated the facts of he above incident.
(b) P. W. 2 Bhuro in his examination-in-chief reiterated the facts stated by P. W. 1 Ranjho. However, in the last line of the examination-in-Chief, he has deposed that Soomar was declared Karo with Mst. Ganwari wife of Mir. However, in his cross_ examination he has stated that the accused Mir was suspecting the deceased on illicit terms with Mst. Ganwari but, she was not declared Kari and was still living with the accused and that at the time of the incident, she was living with her parents.
He has further stated that he and the complainant reached the vardal simultaneously and that the accused stated that they were killing the deceased as he was Kari and after saying so gave larhi blows to the deceased. He goes on to state that when they were (i.e. He and other P. Ws) were about 5-6 paces away from the accused, they ran away towards their houses. He has also stated that during the period preceding to the commission of the offence, they did not make any application to any authority regarding danger at the hands of the accused on account of their declaring the deceased as Karo by accused Mir and that during the period prior to his death, the deceased and the accused had been visiting each other. He has further stated that Ghulam Muhammad, Ghulamo and Sajjan and Noor Muhammad had also accompanied them and the complainant to the Police Station and that Noor Muhammad is his cousin and that accused Belo was married with the sister of Noor Muhammad. He has denied the suggestion that accused Belo had promised to give hand of any girl to Noor Muhammad in exchange of his sister and that thereafter he refused: He has further denied that Sajjan had demanded land from the accused Belo a or constructing the house and that because of that there had been fight between the accused and the complainant or that the complainant had constructed his house on the plot by forcibly occupying the same belonging to accused Belo. He has also denied the suggestion that he and the other P. Ws. Had not seen the incident and falsely implicated the accused.
(c) P. W. 3 Sanwal has also deposed more or less the same what was stated by the other above 2 P.
Ws. In their examination-in-chief. In the cross-examination, he has stated that all the 3 P. Ws. Had simultaneously reached the wardat and that the accused con-- tinned to give injuries to the deceased even after they gave Hakals to the accused. He goes on to state that when they were about 7-8 paces away from the accused, the latter went away to their houses and that thereafter, other village persons also came there which included Imam Bux, Allah Bux, Mould Bux and Badho Sheikh who resided 20 paces away from the house of the deceased. He has further stated that none of these persons came to the wardat as they were not in their houses. He has admitted that Noor Muhammad is his step-brother. However, he has denied that accused Belo had married to the sister of Noor Muhammad. He has also stated that he does not know if accused Belo had promised Noor Muhammad to give hand of a girl in exchange and that Belo refused to fulfil the above premise He bas denied that 5aljan had demanded plot before going to accused Belo or that there was some fight on this question between the accused and Sajjan or that P. W. Ranjho had occupied the plot of the accused and constructed the house.
(d)P. W. 6 Abdul Wahid as mentioned hereinabove was a Mashir to Exhs. 17, 18 and 19, he has deposed that the accused Belo and Saidal produced lathi which had no blood stains, whereas accused Mir had voluntarily produced a Danda (Mangha) from the room of his house which was stained with blood. In the cross---examination, he has stated that he resides about 4-5 miles away from the place of wardat, but on the next day of the incident, he had gone to offer condolence to the complainant party, who is his neighbour. He has further stated that the lathi in Court was produced by Belo and it had two iron sheets on both sides. However, he has admitted that in the Mashirnama, it was written that the lathi was without pattas. He has further stated that the Mangha in Court is the same which was produced by accused Mir and -that it is used in bullock carts. He has also stated that Muhammad Sachal witness was his caste fellow, but is not related and that he was not sitting when he went to offer condolence. He has denied the suggestion that none of the accused produced any article.
(e)P. W. 7-A Dr. Bashir Ahmed has deposed that on 4th November, 1979, he was the Medical Officer, Ghotki Hospital, when he received injured Soomar son of Khatoor aged 38 years referred to him by the police of Mirpur Mathelo for examination treatment and medical certificate. He has further deposed that injured was brought at about 2.30 a. m. On the same day. Thereafter, he examined and found following injuries on his person ;- (1)---A lacerated wound longitudinal on the right parietal region of the skull, with diamention of --" long x --" wide and has gone up to the skull bone. On examination patient was unconscious and deeply comatosed.
(2)Lacerated wound on the middle of the upper lip and adjoining area, of the upper jaw, tearing the upper lip through and through with little damage to alveoar lucsa at the middle of the upper jaw. Laceration has gone upward up to the base of the nose, with diamention of 2/3" x 1/6" wide through and through the whole thickness of the lip and on examination, central incised tooth on either side of the mid line are loosed great extent with fracture of alveolus of upper jaw, while rest of teeth are normal and healthy.
(3)Contusion on the right side of skull and right temporal region of skull, longitudinal position, clinically and examination revealed that right side of skull i.e. Right temporal bone is fractured into many pieces.
(4)Lacerated wound just above the middle of outer margin of right ear. Transverse in position --" x --" through and through the whole thickness of the ear and there is bleeding of the right ear.
(5)Lacerated wound on right side of forehead affecting the right eye-brows. Its diamention is 1" x 1/6" x right eye is black conjected, and oedematous swollen.
(6)Contusion on the left side of forehead and on left side of chest and also had affected the nose with dimension of 2--" x 3" x 2". The effected area black and also left eye black on examination there is fracture of nosal bones.
He opined that injury No. 4 was simple, whereas ire other injuries were reserved for X-ray report. He has further opined that the weapon used was blunt and hard and that duration of injury probably was 2 to 4 hours. He issued a certificate to that effect Exh.
22. He has further stated that the injured was admitted as an indoor patient on the same day, but he expired at 5 a. m. And that this information was conveyed to the police. Thereupon, the police reached the hospital, and took the dead body and kept the same in their possession and in the morning of the same day, it was again handed over to him by the Police constable, Ghulam Muhammad P. S. Ghotki B. No. 706 for post- mortem. He has also deposed that he started post-mortem at 9 a. m. And finished it at about 10 a. m. He has further deposed that the injured remained serious deeply unconscious in Taluka Hospital Ghothi till he died. On external examination he found the injuries same as given by him hereinabove. However, on internal examination he found the following injuries :- ---Little damage and haemotoma on the left frontal region and has extended to left parietal region of the skull. The diamention oh haemotoma is 4" x 4", also damage of right temporal skull, right parietal and right occipital, which damaged to scalp muscles with haemotomas extending downwards to the right eye and surrounding area. While in case of skull bones there are multiple pieces of right temporal bone of skull. Memrance: there is small transverse lenear tear at the right temporal area above --" along x 1/6" wherefrom brain tissues is visible and clots of blood in the crenial cavity on examination there is no damage to the brain tissue except it was bleeding. In case of Chest: Thorax : Every thing normal and healthy. Abdomen: The positive finding are that the stomach is half filled with normal juice and milk in the form of curd otherwise healthy and normal.
Rest organs of abdomen healthy and normal.--- He opined from the external and internal examination he was of the opinion that the death was due to multiple head injuries caused by some blunt weapon like lathi etc. Producing extensive extra and introcranial shock resulting into death. He further opined that the injuries were sufficient collectively to cause death in the ordinary course of life arid were ante-mortem in nature. He also opined that the time between the injuries and death was about 5-7 hours while between the death and post mortem it was about 4-5 hours. He has produced post-mortem report --as Exh.
23. In cross-examination this witness has stated that he did not find any injury below the neck of the deceased that the injuries were confined to head and face. He has further stated that he cannot say if any injury was individually sufficient to cause death.
(f) The next witness is P. W. 8 Lal Bux I.O., who has deposed that on 4th November, 1979, he was posted as the S. H. At P. S- Mirpur Mathelo, when the complainant Ranjho came there and lodged report, which he recorded and read out to the complainant and obtained his left thumb impression, Exh. 6 is the F. I. R. He has further deposed that there--after he examined P. Ws. Sanwal and Bhuro, who were also present alongwith the complainant and that injured Soomar was also there but was unconscious. He has also deposed that he prepared a mashirnama of injuries which he produced as Exh.
26. He has further deposed that thereafter he sent the injured for treatment and report to the Medical Officer, Ghotki as the Medical Officer, Mirpur Mathelo was not available.
After that he proceeded to the scene of offence and the house of the accused, but they were not available there. He has further deposed that thereafter he saw the scene of offence in the presence of mashirs P. W. Abdul Wahid and Sajjan Khan, where he found that there was a body on cot which was stained with blood and there was also no blood on the earth. He secured the blood stained bedding and also mat of the cot which was also stained with blood under Mashirnama Exh.
17. He goes on to state that on 5th November, 1979, he arrested all the accused and that accused Saidal, and Belo produced lathies, which were not blood stained. He prepared mashirnama thereof in the presence of aforesaid mashirs. He also interrogated the accused and recorded their statement. He has further deposed that the third accused Miral led them and mashirs to his house and voluntarily produced a Mangha from the shed of the house which contained some blood. He has also deposed that he secured and sealed the same in presence of the aforesaid mashir under Exh. 19.
He identified the above exhibit before the Court. He has further deposed that on the same day he received a telephone message about the death of injured Soomar and also received the paper about the dead-- body from the Ghotki Police Station on 5th November, 1979. He has also deposed that on 10th November, 1979, he record--ed statement of Mst. Ganwari and thereafter, the accused were challaned on 20th November, 1979, in the Court of F. C. M. Obaro. He has also identified the property in Court and has stated that it is the same. He has further deposed that the blood-stained Mangha was sent to the Chemical Analyser, in respect of which be received report Exh.
27. In his cross-ex--amination he has stated that the lathi having two iron rings at the end in the Court is not the same which was secured from either of the accused Belo or Saidal. He has further stated that the lathis secured from the accused are not presented in Court. He goes on to state that the lathies secured from the accused Belo and Saidal are not in the Court. He has also stated that the mashirs Abdul Wahid and Sajan were present at the wardat on the day when he prepared mashirnama of vardar which was on 4th November, 1979 and that the same persons were called by him on 5th November, 1979, when he arrested the accused. He has admitted that Abdul Wabid is not the resident of the place, where the wardat is situated but is residing in nearby village. He has denied the suggestion that both the Mashirs were produced by the complainant party before him.
As stated hereinabove that the appellants Belo and Saidal denied of having inflicted any injury on the deceased and both have stated that P. Ws., have deposed against them due to enmity as they wanted the accused Mir should kill his wife and since they prevented him doing so, the complainant party was annoyed and falsely involved them as accused. On the other hand, the statement of appellant Mir has been reproduced hereinabove in para. (2)(b).
4. (a) In support of the above appeal Mr. Azizullah K. Shaikh learned counsel for the appellants has made the following sub--mission :- (i)That there is no reliable evidence on record to sustain the con--victions against appellants Belo and Saidal either under section 302 or for the other offence under section 454, P. P. C. Read with section 265 (h), Cr. P. C.
(ii)That the case of appellant Mir falls within the ambit of Exception No. I to section 300, P. P. C. And, therefore, he should have been convicted under section 304, Part. I and should have been awarded R. I. For four years.
Mr. Nazir Alam, learned counsel appearing for the State has candidly conceded that there is not sufficient evidence on record to sustain the con--victions against appellants Belo and Saidal, whereas he has urged in respect of appellant Mir that there was sufficient evidence on record to sustain the conviction and that the aforesaid appellant has failed to bring on record any reliable evidence to show that his case is covered by Exception I to section 300, P. P. C. Warranting conviction under Part I of section 304.
(b)Reverting to the first contention of Mr. Azizullah K. Shaikh we are inclined to hold that there is not sufficient evidence on record to conclude that appellants Belo and Saidal had also participated in the commission of the offences in question. The factum that the lathies recovered from them were not blood stained is indica--tive of the fact that, they had not in fact participated in the crime.
Furthermore, the medical evidence belies the allegation that the crime was committed by 3 persons. As pointed out hereinabove, P. W. Bashir Ahmad, the Medical Officer has deposed that there were altogether 6 injuries on the person of the deceased, which were all above the neck of the deceased. It is an admitted position that the deceased was attacked while sleeping on the cot at mid night and that he had no opportunity to get down from the cot inasmuch as no blood was found on the earth beneath the cot. The blood-stained bedding and quilt etc. Were secured by the Investigating Officer. It is evident that if 3 persons would have attacked the deceased with lathies or dandas, the injuries would not have confined to the portions of the body above neck i.e. Face and head. Furthermore, the number of injuries would have been many more. According to the deposition of P. W. 2 all the accused continued to inflict injuries on the deceased even after the arrival of the alleged eye-witnesses P. Ws. 1 to 3. The state--ments made by the three alleged eye- witnesses in the cross-exa--mination contain sufficient indication that the complainant had inflicted the number of the accused persons in the Complaint P.W.1 Ranjho, the complainant has admitted in his cross exa--mination that Noor Muhammad was present at the Police Station at the time of the lodging of the F. I. R. As he along-- with other persons accompanied him. It was suggested to P.O. Bhuro that the appellant, Belo had married with Noor Muhammad's sister on the promise that the former would give hand of a girl in return to Noor Mohammad's sister, which promise he did not fulfil, and therefore, Noor Muhammad bas motive (being closely related to the complainant party inasmuch as he was cousin of Bhuro and step brother of P. W. 3 Sanwal to get implicated all the threw brothers in the instant case. The above P. W. 2 though has admitted the factum that appellant Belo was married to Noor Muhammad's sister, but has denied the other suggestion referred to hereinabove. It was also suggested that there was also dispute about the plot and that P. W. Ranjho had forcibly occupied the appellant's plot and con--structed the house.
Whereas to P. W. 3 Sanwal it was also suggested that one of the Mashir Sajan (who was not examined) was related to the complainant party and that he had also demanded plot from appellant Belo and because of that there was fight. It was also suggested to this witness teat P. W.
Ranjho had occupied the plot of the accused and constructed his house over it.
In view of the above state of evidence on record, we are constrained to conclude that the prosecution has failed to prove case beyond reasonable doubt against appellants Belo and Saidal.
The learned counsel for the State Mr. Nazir Alam has rightly conceded that there was no evidence on record to sustain the convictions against the above two appellants. We, therefore, allow, their appeal in tolo and set aside the convictions under section 302 as well as under section 364, P. P. C.
Read with section 265 (H), Cr. P. C.
(c) Adverting to the question, as whether appellant Mir's case falls within the ambit of Exception I to section 300, in order to justify his conviction under Part I of section 304, P.P.C. Warranting sub-- stitution of the sentence of death by few years' R. I., it may be observed that in support of his contention Mr. Azimullah K. Shaikh has referred to Exh. 19, which is the Mashirnama of recovery of Mangha (i.e. Danda), in which it has been stated that appellant Mir confessed his guilt and readily produced lathi at his own free will and produced the Mangha which was concealed in the roof of the Mana of his house, which was blood-stained. It has been contended by Mr. Azimullah K. Shaikh that on 5th November, 1979 appellant Mir had confessed his guilt and, therefore, it was an omission on the part of the Police not to take him to a Magistrate for recording of his judicial confession and, therefore, the reasoning given by the learned Sessions Judge that appellant Mir had not made any confession is not tenable. In our view, the circumstances of the case have belied the version as given by appellant Mir in his statement under section 342 quoted hereinabove in para. (2) (b).
It may be observed that in his aforesaid statement, he has stated that on the day of the incident, he slept at night after taking meals with his wife on the same cot, and that at mid night when he woke up, he found his wife missing. Thereupon, he searched his wife and found that the door between his house and the house of deceased Soomar was opened. He goes on to state that he went to the house of Soomar and found that the accused and his wife were sleeping together, and that after seeing he lost control over himself and taking the cot peg i.e. Mangha i.e. Danda, which was lying there, he hit the deceased and that in the meantime his wife had got up from the bed and ran away to his house. He has further stated that he gave three-four blows to Soomar and, thereafter, he pursued his wife, but he was overpowered by his two brothers co-accused Saidal and Belo, and that the complainant had not witnessed the incident. It may be pertinent to observe that in order to bring a case within the exception I to section 300, the burden of proof is on an accused person to prove that he was deprived of the power of self control by grave and sudden provocation resulting into causing of death of a deceased. From the evidence on record, it is clear that the defence has even failed to suggest to P. W. I Ranjho and P. W. 3 Sanwal that on the day of the incident Mst. Ganwari the wife and appellant Mir was residing with him. However, P. W. 2 Bhuro was put a question in the cross-examination in reply to which he categorically stated that at the time of the incident, Mst. Ganwari was living with her parents. The above statement of P. W. 2 Bhuro appears to be in consonance with the circumstances of the case. If in fact Mst. Ganwari was sleeping on the same cot on which the deceased was sleeping, it is improbable to it appellant Mir would have spared his wife Mst. Ganwari, who was according to him on illicit terms with the deceased. Since according to the version of appellant Mir, the deceased as well as his wife Mst.
Ganwari were sleeping on the same cot, it was very easy for him to inflict one or two injuries on the person of Mst. Ganwari. It may again be pointed out that it was not even suggested to P. Ws. 1 and 3 that in fact Mst. Ganwari was residing with appellant Mir on the day of incident. In fact no question was made at all to the 3 alleged eye--witnesses by the defence that after the attack on the deceased, Mst. Ganwari had run away. We are not unmindful of the distinction ink respect of burden of proof between the prosecution and an accused person for proving a defence plea. The former has to prove the guilt of an accused person beyond reasonable doubt, but the latter may not prove this plea beyond reasonable doubt. An accused person discharges his burden of proof of his defence plea, if he brings on record sufficient evidence from which, it can be inferred that in the circumstances of the case, the defence plea is probable or possible. In our view appellant Mir has failed to bring on record even some evidence, from which it can be concluded that the version given by him was probable or possible in the circumstances of the case.
(d)It was next contended by Mr. Azimullah K. Shaikh, that though Mst. Ganwari was shown as a prosecution witness inasmuch as her statements under sections 161 and 164 were recorded, but she was given up at the trial and, therefore, it should be inferred by this Court that she would have deposed against the prosecution. It is true that she was cited as a witness but was not examined.
However, fact itself will not belie, the circumstance of the case referred to hereinabove. There was nothing wrong if appellant Mir would have summoned Mst. Ganwari or any other witness as a defence witness in order to prove that his wife was residing with him on the day of incident.
(f)It was also contended by Mr. Azimullah K. Shaikh that since appellant Mir was having suspicion that his wife was on illicit terms with the deceased 2 or 2-- months prior to the date of the incident inasmuch as according to P. W. 1, the deceased was declared Karo whereupon the deceased took oath on Holy Quran and stated that Mst. Ganwari was like his sister or another, and, therefore, there was no occasion for appellant Mir to select the night of the day of the incident. It was further contended by him that appellant Mir could have killed the deceased much earlier. It was also urged by him that the very fact that applicant Mir had committed murder after the expiry of about 2-- months from the date of the discovery of the aforesaid alleged fact, namely, that the deceased was on illicit terms with Mst. Ganwari his wife, supports the version given by the accused that he was sleeping with his wife, and at the mid night, he found her missing. Thereupon, he searched and found her sleeping with the deceased. The above contentions are untenable. It has come on record that on the date the incident, the deceased was all along in his house and there was no other member of the family and, therefore the accused thought that it was the opportune time to avenge for his suspicion that his wife was on illicit terms with the deceased. In our view, this was the probable reason for selecting by appellant Mir the day of the incident.
5. The other question, which requires consideration is as to whether under the circumstances of the case appellant--Mir be visited with the capital punishment of death. Since it has come on record that he had suspicion that deceased was on illicit terms with his wife Ganwar' inasmuch as he had declared him Karo according to P. W.
1. In our view, the death penalty was not the appropriate sentence, but a lesser sentence will meet the ends of justice. We, accordingly, maintain the conviction against the appellant Mir under section 454, P.P.C. Read with section 265 (h), Cr. P. C. The sentence awarded and the fine imposed by the learned Sessions Judge and also maintain his conviction under section 302 but substitute the death sentence with life imprisonment. Appellant Mir shall also pay a sum of Rs. 500 to the legal heirs of the deceased as ordered by the learned Sessions Judge. However, the appellant shall be entitled to the benefit of the adjustment of the period under section 382-B Cr. P. C namely, commencing from the date of arrest till the substitution of life imprisonment by this Court against his total period of imprisonment alongwith, his other remissions if any, under the Jail Rules.
6. With the above observations the appeal of appellant Mir is re--jected. Since we have substituted life imprisonment in place of death sentence, the reference made by the learned Sessions for confirmation of the death sentence is also rejected.