' The appellant abovenamed, being aggrieved by judgment dated 12th June, 1980 of the learned Sessions Judge, Khairpur passed in Sessions Case No, 90/78, by which the appellant has been convicted under section 302, P.P.C. And sentenced to life imprisonment as well as to pay fine of Rs, 2,000 or 'in default of payment of fine to suffer further R.I. For 6 months. In case, the fine is paid, it was directed in the impugned judgment that amount of Rs, 1,000 only should be given to the heirs of the deceased Mst. Bhawal, under section 544-A, Cr.P.C. The appellant was further convicted under section 201, P.P.C. And sentenced to suffer R.I. For 7 years and also to pay fine of Rs, 1,000 or in default of payment of fine to suffer R.I. For 6 months, has preferred the above appeal on the following facts and grounds:
2. The prosecution story briefly stated in the F.I.R. Exh.7 lodged by complainant Yar Muhammad resident of his own village, in Deh Maro Dhoro, caluka Kotdiji, with Muhammad Ayub Lashari, S.H.O.
Tando Masti Khan Police Station on 7th May, 1978 at 1.30 p.m. Is, that P.W. Mst. Rani is sister of the complainant. She was wife of Din Muhammad Ujian, Mst, Bhawal was daughter of Din Muhammad and Mst. Rani. Din Muhammad died about 10/11 years prior to the 7th May, 1978, After the death of Din Muhammad, the complainant had got his sister Mst. Rani married with one Fazul Muhammad Ujian. -About 3 years before the lodging of the Fl. R. Mst. Bhawal d/o Mst. Rani was married to appellant. Mst. Rani har one daughter by name Mst. Gulbano aged about 11 years, at the time of incident. On 5th May, 1978 Mst. Rani had gone to the house of appellant to take back her daughter Mst. Bhawal to her house for meeting purpose. She brought her, alongwith her daughter Gulbano to her house in the evening, on that day. On 6th May, 1978 at about sunset time, appellant had gone to the house of his mother-in-law Mst. Rani to meet his wife Mst. Bhawal. He stayed for the night in the house of Mst. Rani. On 7th May, 1978 at about 8 p.m. Appellant took his wife Mst. Bhawal and daughter Mst. Gulbano from the house of Mst. Rani, after being annoyed with her. After a short while the complainant, his brother Nazar Muhammad and his father's sister son Bakhir had gone to the house of Mst. Rani, who told them that Mst. Bhawal was not prepared and willing to go with her husband appellant to his house and, therefore, appellant had quarrelled with her and had taken away his wife Mst. Bhawal and his daughter Mst. Gulbano, while annoyed with her. She further requested the complainant and P.W. Nazar Muhammad and Bakhir to go after the appellant to see, that the appellant might not beat her daughter Mst. Bhawal on the way. Accordingly, the complainant and P.W. Nazar Muhammad and Bakhir went towards Rohri Canal, after the appellant.
While they were still the eastern bank of the Canal, they heard cries from the other bank. They found appellant giving hatchet blows with its sharp side to Mst. Bhawal, who was raising cries. The complainant and the above witness challenged the appellant, but the appellant after committing the murder of his wife Mst. Bhawal threw her dead body in Rohri Canal. Thereafter he went away taking his hatchet with himself towards his house. The complainant and others went to the Wardat, via bridge over Rohri Canal. They found blood in the pangrass near the Canal. They tried to find out the dead body in the Canal, but they could not locate it there. Thereafter, the complainant left P.W.
Nazar Muhammad at the Wardat, while he and Bakhir went to the house of the appellant where they found, that appellant had left his small daughter Mst. Gulbano in his house and he was sitting with his father Wahid Bakhsh. The complainant and Bakhir narrated the incident to the father of the appellant. Thereafter the complainant and P.W. Bakhir took the appellant alongwith his hatchet to Tando Masti Khan Police Station, where the complainant reported the matter to the S.H.O.
3. On 7th May, 1978 Muhammad Ayub Lashari, S.H.O. Tando Masti Khan Police Station recorded the F.I.R. Of complainant Yar Muhammad Ujian at 1.30 p.m. He arrested appellant, who was produced before him by the complainant and P.W. Bakhir. There was blood on the shirt of appellant. The S.H.O.
Secured blood-stained shirt from the person of the appellant, in presence of Mashirs Rasool Bakhsh and Nooral and sealed it in a parcel. He prepared the Mashirnama. Complainant Yar Muhammad produced blood-stained hatchet of appellant, before the S.H.O., who secured it in presence of the above Mashirs and sealed it in a parcel. He prepared the Mashirnama. He recorded the statement of P.W. Bakhir. The S.H.O. Proceeded to the scene of offence, alongwith the complainant. He saw the wardat in presence of the above Mashirs. The Wardat was pointed out to the police by complainant Yar Muhammad. P.W. Nazar Muhammad was available at the Wardat, which was on the western side of Rohri Canal on its 'Pal near the bank. There was blood at the scene of offence.
The S.H.O. Secured blood-stained earth and blood-stained pangrass from that spot and sealed it in a parcel. He prepared the Mashirnama after making efforts to secure the dead body of Mst.
Bhawal from Rohri Canal. However, one headwear of silken cloth with printed flowers was secured from the Canal. The S.H.O. Secured it and made its mentioned in the Mashirnama. The S.H.O.
Recorded the statement of P.W. Nazar Muhammad. He also recorded the statement of Wahid Bakhsh Ujjan. On 8th May, 1978 in the morning the S.H.O. Deputed A.S.I.P. Muhammad Saffar alongwith other staff to go and find out the dead body of Mst. Bhawal from Rohri Canal. The S.H.O.
Recorded the statement of P.W. Mst. Rani. Appellant pointed out the Wardat to the police. On the same date the S.H.O. Produced appellant before the City Magistrate, Khairpur for recording his confession. On 12th May, 1978 S.H.O. Held identification test of silken headwear, silken Gaghra of deceased Mst. Bhawal and her ornaments viz. Silver Chhallas, rings etc. From complainant Yar Muhammad, Mst. Rani, Nazar Muhammad and Bakhir at Tando Masti Khan Police Station, in presence of Mashirs Nooral and Rasool Bakhsh. The above persons identified the articles to be of deceased Mst. Bhawal. The S.H.O. Prepared the Mashirnama. The S.H.O. Produced P.Ws. Nazar Muhammad and Bakhir before the Civil Judge and F.C.M., Khairpur, on 16th May, 1978 for their statement under section 164, Cr.P.C. On 22nd May, 1976 the S.H .0. Challaned accused Ali Murad before the City Magistrate, Khairpur. However, before that date on 8th May, 1978 the A.S.I.P. Had secured the dead body of Mst. Bhawal, which was lying on the bank of Rohri Canal. It was headless dead body having one yellow coloured shirt on it. There was no Shalwar on the dead body. There were silver bangles, rings, etc. On her person. The dead body was identified by the relatives of the deceased. The A.S.I.P. Prepared the Mashirnama and held inquest on the dead body and prepared the inquest report. He sent the dead body to the medical officer, Civil Hospital, Khairpt.Ir, for post- mortem examination, through P.C. Khair Muhammad.
4. At the stage of trial the charge for offence under sections 302 and 201, P.P.C. Was framed against the appellant, who pleaded not guilty. He, however, stated that he had not committed the murder of his wife. Mst. Bhawal intentionally, but according to him he had killed her under grave and sudden provocation, because he found her in compromising position with Dr. Dur Muhammad Soomro. He further stated, that as Dr. Dur Muhammad Soomro saw him, he ran away while he killed his wife Mst. Bhawal with hatchet to 'ghairat'. His case is, that he had thrown the dead body of his wife Mst. Bhawal in Rohri Canal. In his statement under section 342, Cr.P.C. The appellant denied to have committed the murder of his wife Mst. Bhawal. He further reported the same facts, which he disclosed in his plea of guilt. His case in the statement is that he had found his wife Mst. Bhawal in objectionable position with Dr. Dur Muhammad Soomro in the pangrass near the bank of Rohri Canal and as he was carrying hatchet with himself at that time he gave her hatchet and caused her death. He further claimed, that he did not intentionally threw the dead body of his wife Mst.
Bhawal in Rohri Canal, but according to him under grave and sudden provocation he had lost the power of self-control and after killing his wife due to 'ghairat' he had thrown her dead body in the Canal. For witnesses Yar Muhammad, Bakhir and Nazar Muhammad, the appellant stated that they had not seen his committing the murder of his wife Mst. Bhawal, by means of hatchet. According to him, they had spoken lies. He claimed, that before the incident he never suspected his wife Mst.
Bhawal to be in toe with Dr. Dur Muhammad Soomro. He also stated, that it is false, that he had committed the murder of his wife Mst. Bhawal, because she was not willing to go with him from the house of her mother Mst. Rani to his house. The appellant said that he had voluntarily appeared at Tando Masti Khan Police Station alongwith his blood-stained hatchet, after he came to his proper senses. He said that he had voluntarily produced blood-stained hatchet before the police. He claimed the hatchet to be his own. The appellant also said, that he had been found wearing blood- stained shirt on his person. According to him it was his own shirt. For the judicial confession the appellant stated, that he had made such statement before the Magistrate on the tutoring of the police as they told him, that he would be saved only, when he made such statement before the Magistrate. He also stated, that the judicial confession ht Exh.28 is neither true nor voluntary. He claimed that actually he had seen his wife Mst. Bhawal in objectionable position with Dr. Dur Muhammad Soomro in the pan-grass and on his challenge 'Karo' Dur Muhammad had ran away, while he gave injuries to his wife Mst. Bhawal due to ighairat'. It is the case of the appellant, that he was taking his wife Mst. Bhawal to his village from her parents' house and on the way near pangrass she pretended, that she was going to make water in pan-grass and as such she went to pangrass. The appellant further stated, that in fact she had gone to meet Cul Muhammad and on his going to pangrass she found her in objectionable position with Dur Muhammad Soomro. He also claimed, that she was naked. According to the appellant Dur Muhammad Soomro had run away on his bicycle, while he killed his wife with hatchet due to 'ghairat'. He further said that as he was hot in his senses he threw her dead body in the Canal. The appellant also gave out that the witnesses have deposed against him because they are related inter se as well as to the deceased.
According to him the witnesses are biased against him. The appellant examined no defence witnesses.
5. In support of their case at the trial stage the prosecution examined complainant Yar Muhammad Exh.6 who produced the F.I.R. At Exh.7 and P.Ws. Nazar Muhammad Exh.8 who produced his 164, Cr.P.C. Statement at Exh.9 Bakhir Exh.10 Dr. Muhammad Anis Goraya (Medical Officer) Exh. 11 who produced the post-mortem notes of the dead body of Mst. Bhawal Exh.12, Mst. Rani Exh.13, Khair Muhammad Exh.14, Shafi Muhammad Exh.15. Wadero Hamid All Mashir Exh.16, who produced the Mashirnama of the dead body Exh.17 and the inquest report Exh.18, Rasool Bakhsh Mashir Exh.19, who produced the Mashirnama of the Wardat Exh.20 the mashirnama of the arrest of the appellant and recovery of blood-stained shirt from his person Exh.21, the Mashirnama of the recovery of blood- stained hatchet Exh.22 and the Mashirnama of the identification of clothes and ornaments of deceased Exh.23, Muhammad Saleh (Tapedar) Exh.24, who produced the sketch of Wardat in duplicate Exh.25, Muhammad Ayub S.H.O.Exh.25, who produced the Mashirnama of the pointing of the place where the hatchet was concealed by the appellant Exh.27 the judicial confession of the appellant Exh.28, Muhammad Saffar A.S.I.P. Exh. 29 and Bhojraj Whatwani (City Magistrate) Exh.30 who produced the letter of the police for recording the confession of the appellant Exh.31 while the remaining witnesses have been given up.
6. The learned trial Court taking into consideration the evidence adduced by the prosecution convicted and sentenced the appellant as hereinbefore mentioned and consequently the appellant has preferred the above appeal on the grounds mentioned in the memo. Of Appeal.
7. Learned counsel for the appellant submitted that the conviction of the appellant under section 302, P.P.C. Was not warranted, in view of the judicial confession and the statement of the appellant under section 342, Cr.P.C., which have been relied upon by the learned trial Court and the learned trial Court has come to the conclusion that the judicial confession given by the appellant was voluntarily and true. In view of this submission learned counsel submitted that the offence if any, of the appellant would fall under section 304(1), P.P.C. And not under section 302, P.P.C. In support of this contention of his learned counsel has relied on cases PLD 1975 Kar. 120, 1969 SCM R 364 and 1981 P Cr. L .J 693.
8. Learned counsel appearing for the State on the other hand submitted, that the conviction of the appellant under- section 302, P.P.0 was legal and correct and in support thereof learned counsel has relied on cases 1981 SCM R 856 and 1978 SC MR 257.
9. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R.&..P of the trial Court specially the judicial confession Exh.28 of the appellant as well as through the impugned judgment and the authorities cited by the learned Advocates.
10. Since only question which is agitated before me in the above appeal is whether the offence committed by the appellant would fall under section 302. P.P.C. Or under section 304(1), P.P.C. I have very carefully examined the judicial confession made by the appellant which is Exh.28 and have gone through the portions of judgment which relate to the said judicial confession. I find that the trial Court has rightly come to the conclusion on the basis of the evidence of the prosecution witnesses on record, that the judicial confession made by the appellant was voluntarily and is true .And relied upon the said judicial confession for the conviction of the appellant. In view of this judicial confession is to be taken into consideration as a whole and as such the version as given in the said judicial confession and 342, Cr.P.C. Statement of the appellant show that the appellant received grave and sudden provocation on that very night and consequently for 'gairat' he committed murder of his wife and threw her body into the Rohri Canal. Therefore, in my opinion the offence committed by the appellant would fall under section 304(1), P.P.C. As urged by the learned counsel for the appellant are fully applicable to the appellant's case and the authorities cited by learned State counsel are based on different facts and as such not applicable to the present case.
It may be noted that throughout trial appellant did not deny murder of his wife, but all along stated but it was due to 'Ghairat'
11. In view of my above conclusions and findings while dismissing the above appeal on merits I would alter the conviction of the appellant from section 302, P.P.C. To section 304(1), P.P.C. And sentence him to suffer 7 years' R.I. And would maintain the fine of Rs, 2,000 imposed on the appellant on this account and also maintain his conviction under section 201, P.P.C. And the sentences awarded to him on this account as mentioned in impugned judgment. I direct that both the sentences against the appellant shall run concurrently and further the appellant be given benefit of section 382-B, Cr.P.C. In respect of period of his detention as an under-trial prisoner towards his substantive sentence in addition to all other remissions to which the appellant may be entitled according to rules.
12. The above appeal stands dismissed with the above modifications.