SHAMEEM HUSSAIN KADRI, J.--Chiragh appellant and Najabat (P. W. 11) lived in their dharis, 20 karams apart from each other in Chak No. 104 R. B. Chiragh appellant was married to Mst. Sardaran about 2/3 years before the occurrence. He somehow started suspecting the deceased having liaison with Najabat. On 12-12-1965, at about 8 or 9 p.m. Najabat came to the dhari of Chiragh where his father Hussain (P. W. 10) and Ahmad (P. W. 9), a cousin of his father, were present.
Najabat is nephew of Hussain (P. W. 10). Shortly after Najabat left the dhari, Chiragh accused took his Kulhari and went out saying that he was going to participate in `Jhummar dance' on the marriage ceremony of the daughter of his maternal uncle Walia. Mst. Sardaran, his wife went out to answer the call of nature about an hour thereafter. Soon after she left the dhari alarm was raised from the dhari of Najabat. Hussain (P. W. 10) and Ahmad (P. W. 9) ran towards the dhari of Najabat and saw Chiragh appellant causing injuries to Mst. Sardaran and Ahmad, maternal uncle of Chiragh, causing injuries to Najabat, at a distance of 5 to 7 Karams from the dhari of Najabat.
Hussain caught hold of his son Chiragh who struggled out and ran away leaving his Kulhari (Exh. P.
6), turban (Exh. P. 5) and shoes (Exh. P. 7) at the place of occurrence. Ahmad also fled away towards the Abadi. He, however, carried his Kulhari along with him. Mst. Sardaran died at the spot.
2. F. I. R. (Exh. P. M.) was lodged by Hussain (P. W. 10) at Police Station Khurerianwala on 13-12-1965 at 12-05 a.m. Which was recorded by Falak Sher Chishti (P. W. 13). The distance between the place of occurrence arid Khurerianwala is six miles.
3. The Additional Sessions Judge, Lyallpur; vide his order dated 8-3-1967 convicted the appellant under section 302, P. P. C. And sentenced him to transportation for life. He also awarded him seven years' R. I. Under section 307, P. P. C. Both the sentences were ordered to run concurrently, Ahmad, his co-accused was, however, acquitted. No appeal has been filed by the State against the acquittal of Ahmad. Chiragh has, however, challenged his convictions and sentences by way of this appeal.
4. Dr. Abdul Ghafoor Zahid, Medical Officer Civil Hospital Jaranwala (P. W. 1) performed the autopsy on the dead body of Mst. Sardaran on 13-12-1965 at 4 p. m. And found the following injuries on her person: -
(1) An incised wound 3" x 1" bone deep on the back of left wrist.
(2) An incised wound 4"x 1-- " bone deep with bone cut and brain exposed on the left parietal region of scalp longitudinally.
(3) An incised wound 5" x 1" back of the right chest on the lower part muscle deep.
(4) An incised wound 2" x 1" back of left upper arm.
(5) An incised wound 2" x 1--" scalp deep back of scalp.
(6) Liner abrasions on little ring and middle fingers on their back.
In the opinion of the doctor the deceased expired due to shock and inter-cranial haemorrhage due to injury No. 2, which was sufficient to cause death in the ordinary course of nature. All injuries were anti-mortem and were caused by sharp-edged weapon. Death was instantaneous. The time between death and post-mortem was 24 hours.
Doctor Bashir Hussain, A. M. O., Khurerianwala (P. W. 2) examined Najabat Khan on 13-12-1965 at 1 a. m. And found the following injuries on his person: -
(1) An incised wound 2-1/8" x --" into bone deep on the top of skull 1 --" right to the middle line. Bone underneath was fractured.
(2) An incised wound 2-- " x --" into bone deep on the right temporal region of skull 1--" above the right ear, bone underneath the wound was cut.
(3) A 'punctured wound --' x -- " into bone deep on the right side of forehead, -- above the middle of right eye-brew.
(4) Punctured wound --' x -- ' x bone deep on the right side of face -- " in front of right ear.
(5) An incised wound 3" x --" x skin deep on the right cheek.
(6) An incised wound 3" x 1" into bone deep on dorsal surface of right hand cutting the metacarpal bones of middle and index fingers.
Injuries Nos. 1, 2 and 6 were grievous while the others were simple. Injuries Nos. 1, 2, 5, and 6 were caused by sharp-edged weapon and injuries Nos. 3 and 4 were caused by sharp-pointed weapon within 5 hours duration.
5. Muhammad Hussain (P. W. 8) prepared the site plan (Exh. P. D.) and admitted in the cross- examination that he had seen track of only one person at the spot which he mentioned at No. 7 in his notes. The track showed foot-prints of the offender who was proceeding towards the place of occurrence through a ploughed field. According to him the police preserved the foot-prints by covering the same with earthen-pots. He visited the place of occurrence after 25 days.
6. Muhammad (P. W. 12) saw the appellant and Ahmad at a distance of two acres from the dhari of Najabat when both of them were proceeding to the village. Ahmad was carrying hatchet while Chiragh was empty-handed. It was moonlit night. He later joined the investigation and police took into possession hatchet (Exh. P. 6), pair of shoes (Exh. P. 7), turban (Exh. P. 5) and blood-stained earth from two places. Chaddar, kurta and dopatta (Exh. P. 1 to Exh. P. 3) were also taken into possession by the police in the presence of this witness vide recovery memos. Exh. P. F., Exh. P. G., Exh. P. K., Exh. P. J Exh. P. E, Exh. P. H. And Exh. P. L. Najabat (P. W. 11) is nephew of this witness. The case was registered and investigated by Falak Sher Chishti Sub-Inspector (P. W. 13). He effected the recoveries and arrested the accused on 15-12-1965. He also took into possession his shirt Exh. P. 4 vide memo. Exh. P. L., which was blood-stained. In his note in the diary he has recorded that Najabat P. W. Was lying injured at a distance of one karam from Mst. Sardaran deceased.
7. The appellant at the trial in answer to question No. 5 has stated: - "The correct position is that I took my meals at about 7 p m. And then I busied myself for looking after my cattle and after smoking my huqqa for a considerable time. I left my dhari- at about 11 p. m. Before leaving I did not see if my wife Mst. Sardaran was at my dhari or not. I took my hatchet along with me. Ordinarily I keep my hatchet with me when I go out at night. I passed by the side of the dhari of Najabat. I was at a distance of 2 to 3 footsteps from the place where Najabat was sleeping. I heard a sound of `ghur' `ghur' (whispering). I went to the cot of Najabat and found my wife Mst. Sardaran lying with Najabat and under grave and sudden provocation, I made an assault with my hatchet on both of them. I started to give blows to both of them. Ahmad accused was not with me."
8. The evidence of the eye-witnesses, namely, Ahmad (P. W. 9), Hassan (P. W. 10) and Najabat (P. W.
11) discloses that appellant and Ahmad caused injuries to Mst. Sardaran deceased and Najabat (P.
W.). Hussain has admitted that Mst. Sardaran left the house bare-footed in order to answer the call of nature about an hour after the appellant left his dhari in the night. Najabat (P. W. 11) came to the dhari of the appellant at evening time. Mst. Sardaran was the sister's daughter of Hussain (P. W. 10) and was married to his son Chiragh appellant. Najabat is also a nephew of Hussain (P. W. 10)
Najabat (P. W. 11) has admitted that before the occurrence Mst. Sardaran used to come alone to his dhari as she was his sister. The appellant naturally suspected liaison of his wife with Najabat. We are afraid we cannot rely on the statement of these eye-witnesses who had not come out with truth. Hussain (P. W. 10) father of the appellant denied the suggestion that the appellant ever suspected his wife of having illicit intimacy with Najabat obviously because she was the daughter of his sister. But the admission of Najabat that the girl used to come to his dhari alone in the night would show that the appellant suspected the liaison of his wife with Najabat. Confronted with this situation when he saw her in a compromising position with Najabat he caused injuries to both of them. These witnesses have also been disbelieved against Ahmad who was acquitted by the learned Additional Sessions Judge. In this situation we would not like to rely on the interested testimony of the eye-witnesses against the appellant. We have no other option but to accept the statement of the appellant in toto. He has admitted to have killed Mst. Sardaran and caused injuries to Najabat P. W. We are convinced that the appellant had lost his self-control when he was confronted with this situation. The provocation in such circumstances would obviously be grave and sudden. The cultivators, when they go out in the night, carry some arm and carrying of hatchet is a normal feature. The case of the appellant obviously falls within Exception (1) to section 300, P. P.
C. We are fortified in this view by the pronouncement of the Supreme Court in Muhammad Saleh v.
The State (PLD 1965 SC 366).
9. We would, therefore, alter the conviction of the appellant from section 302 to section 304, Part I, P.
P. C. And from section 307 to section 308, P. P. C. The appellant ha e been involved in this case since 1965 and has already undergone about two years' R.I. We are of the view that the sentence already undergone by him would meet the ends of justice on both the counts. With this modification we dismiss the appeal.