1. ' Appellant above-named, being aggrieved by judgment dated 27th August, 1983 of the learned Sessions Judge, Khairpur, in Sessions Case No, 13-14/82 by which appellant has been convicted under section 302, P. P. C. And sentenced to suffer imprisonment for life and to pay fine of Rs, 10,000 or in default to suffer further R. I. For 3 years and also convicted under section 324, P. P. C. For causing knife injuries to P. W. Riaz Hyder and sentenced to suffer R. I. For 1 year and also has been convicted under section I3-B, Arms Ordinance and sentenced to suffer R. I. For 1 year, has preferred the above appeal on the following facts and grounds :- ' On 10th of January, 1982 one Nazar Muhammad son of Tajjammal Hussain Syed Resident of Bhurgari, Khairpur appeared at Police Station, Khairpur town and lodged his report about the murder of his niece Mst. Sajda Parveen. According to this report, Mst. Sajda Parveen niece of complainant, was married to Furqan Hyder alias Taj son of Hyder Hassan Syed resident of Bhurgari about four years ago. Mst. Sajda Parveen, after her marriage used to reside in the house of her husband in Bhurgari Village. Mst. Sajda had given birth to one daughter, namely Saima from the wedlock about 11 years ago. It is further stated in the report, that appellant Furqan Hyder used to reside within one compound with his brothers Khaqan Hyder, Rizvan Hyder and Ali Shaan Hyder, but in separate houses. It is also mentioned in the report, that appellant used to quarrel with his wife Mst. Sajda Parveen on domestic affairs and also used to compel her to give him money so much so, that the niece of complainant sold the ornaments of her marriage and given money to her husband. The appellant spent all this money mostly for intoxication purpose. It is further mentioned in the report, that before the incident, Furqan Hyder quarrelled many times with his wife and Zahir Hassan, brother of complainant and father of Mst. Sajda Parveen asked Furqan Hyder many times to mend his ways but to no effect. At last Zahir Hassan made applications to the higher authorities.
2. Complainant further stated that he resided near the house of Furqan Hyder. On the night of incident at about 12-30 a. m. (night) the complainant alongwith his nephew Zahid Hussain was sleeping in the Otaq, when they heard cries from the house of Furqan Hyder and they both went running towards the cries. Rizvan and Khaqan also came running from their houses. They all saw that Furqan Hyder was giving blows to his wife Mst. Sajda Parveen with a knife (chhuri) who was raising cries of "Khoon ! Khoon !" Rizvan Hyder tried to rescue Mst. Sajda but, he was also given blows and challenged us not to come near him. Then Furqan, within their sight, after committing murder of his wife Mst. Sajda, ran away out of the house along-with blood-stained knife (chhuri).
3. The complainant then sent his nephew Zahid Hussain towards Tando Masti side to bring his father and leaving other persons on the dead body, came to the police station for report.
4. ' The report of the complainant was reduced to writing by Mr. Nazir Hussain Awan, Additional S. H.
0. Khairpur on 10th January, 1982 at 1-30 a. m. (night) and after reading it over to the complainant, obtained his signature. This police officer then took up the investigation and was about to proceed towards vardat for investigation, when Furqan Hyder appeared at the Police Station with blood- stained clothes (shalwar and shirt) on his person and one blood-stained dagger in his hand and so this investigation officer arrested appellant in presence of P. C. Nadir Ali and P. C. Ghulam Hyder and also secured dagger and clothes from his possession and person and prepared a "Mashirnama to this effect. The incriminating articles were then sealed by the Investigation Officer in separate parcels in presence of the same mash irs. This Investigation Officer then proceeded to the vardat and reached there at about 2-30 a. m. He found injured Rizvan Hyder at the vardat with injuries on his person and so prepared memo of injuries in presence of mashirs Muhammad Zamin and Hassan Raza. He then referred Rizvan Hyder to the Civil Hospital Khairpur, alongwith a letter for examination, treatment and certificate. He saw the vardat at about 6-30 a. m. (in the morning) and found the dead body of Mst. Parveen there. He then prepared inquest report of the dead body in presence of the same mashirs and also prepared memo of vardat. The dead body was having one silken red colour shirt and one silken red colour shalwar on her person. He then sent the dead body to the Civil Hospital, Khairpur through P. C. Nadir Ali for post-mortem examination and report. He then examined 'Khaqan Hyder, Zahir Hassan, Zahid Hussain and then returned back to the police station. This Investigation Officer had also recorded the statements of Rizvan Hyder when he first visited the vardat on 11th January, 1982 he registered a case under section 13-D of Arms Ordinance against the appellant acting himself as complainant on behalf of the State as the dagger (chhuri) secured from the possessions of appellant was having a blade of more length than the permissible one. He then got the confession of appellant recorded from Honorary First Class Magistrate Khairpur on 12th January 1982. The dagger clothes etc:were also sent to the Chemical Examiner for examination and report. He then handed over the case papers to the S. H.
0. Khairpur town, who finally submitted challan against the appellant separately under section 302/324, P. P. C. And 13-D, Arms Ordinance.
5. ' After receipt of the challans by this Court, a joint charge under section 302/324 and 13-D, Arms Ordinance was framed and read over to the appellant on 21st March, 1983 as both the cases were amalgamated on the application Exh. I of learned D. P. P. Since the appellant pleaded not guilty and professed his innocence, he was put to trial.
6. ' At the trial, the prosecution examined complainant Nazar Muhammad as Exh. 8 who produced his F. I. R. As Exh. 8-A, and P. Ws. Zahid Hassain Exh. 9, Rizvan Hyder Exh. 10, and who produced a list of articles as Exh. 10-A and Khaqan Hyder Exh. 11 as witnesses of occurrence Zahir Hassan Exh. 12, Mr. Ghulam Kadir, Honorary Magistrate, Khairpur as Exh. 13, who brought on record the confessional statement of appellant as Exh. 13-A. Dr. Rasool Bux Medical Officer Exh. 11, who produced copy of letter received by him from S. H.
0. Town as Exh. 14-A and postmortem notes of the dead body of Mst. Sajida Parveen as Exh. 14-B.
7. Muhammad Zain Exh. 16 and who brought on record the inquest report of the dead body of Mst.
8. Sajida Parveen as Exh. 16-A, memo of scene of offence as Exh. 16-B and memo of injuries on the person of P. W. Rizwan Hyder as Exh. 16-C Ghulam Mustafa tapedar Exh. 17 who produced sketch of scene of occurrence as Exh. 17-A A. H. C. Qurban Ali Exh. 18, P. C. Ghulam Hyder Exh. 20 and who brought on record the memo of arrest and securance of incriminating articles from appellant as Exh. 2-A. Dr. Hassan Shah, Medical Officer, Exh. 23 and who produced medical certificate of the injuries of P. W. Injured Rizwan Hyder as Exh. 23-A and, finally, Investigation Officer Nazir Hussain Awan as Exh. 21 who produced sketch of dagger (chhuri) as Exh. 21-A, F. I. R. Under section 13-D of Arms Ordinance against the appellant as Exh. 21-B and Chemical Examiner's report as Exh. 21-C, the prosecution then closed its side, vide statement Exh.
9. 24.
10. ' After the evidence as aforesaid, the appellant was examined under section 342, Cr. P. C. But he denied the charges as levelled against him. In his further statement, he stated that on the night of incident his one guest Hyder Raza had come from Karachi and so at about 11 or 11-30 p. m. He, after leaving him (guest) in his `Baithak' came towards his house for taking meals. However, the main entrance of his house was found closed and so he came from the entrance of the house of his brother. When he reached his room, he found its door closed from inside. He also heard murmuring from inside. Accordingly, he opened the inside chain of the door by putting his hand therein and as soon as he entered in the room one quilt was thrown on him as a result of which he fell down and a person was found running away from the room. He got up and saw Mst. Sajida in objectionable condition. Her shalwar was lying under her legs and she was naked. Seeing this, he lifted one chhuri lying on T. V. Table and gave her blows. Then he chased the said person. However he succeeded in running away but when he was on road, his brother Rizvan Hyder caught hold of him from back side and in that process perhaps he might have sustained some injury. He then straightaway appeared at P. S. Town Khairpur and informed about this incident. He also produced blood-stained chhuri before some Police Official present there. After about half an hour his brother Rizvan Hyder also reached there and informed about the death of Sajda. He was then locked by the Police. He killed her as a result of `Ghairat'. The appellant, however, did not enter into his defence.
11. ' Learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced appellant the above-mentioned as herein-before mentioned and consequently appellant has filed the above appeal on the grounds mentioned in the memo. Of appeal.
12. ' Learned Advocate for the appellant, at the outset submitted that he was not pressing the above appeal on merits, but only on the ground that offence committed by appellant in view of his judicial confession and statement under section 342, Cr. P. C. Would fall under section 304 (I), P. P.
13. C. And not under section 302, P. P. C. In support of this, the learned counsel relied upon cases reported in PLD 1959 SC 480, SCMR 501 (sic), PLD 1963 Kar. 684 and PLD 1964 Kar. 264 and submitted that when two versions of the incident are before Court, one in favour of the appellant ought to be accepted, as laid down by Hon`ble Supreme Court in PLD 1959 SC 48.
14. ' The learned counsel for State at the outset submitted that in view of the statement of appellant under section 342, Cr. P. C. And his earlier judicial confession, offence committed by appellant would fall under section 304 (I), P. P. C. And not under section 302, P. P. C.
15. ' I have carefully considered the above submissions made by learned Advocate before me and have gone through R. & P. Of the learned trial Court and impugned judgment as well as cited by the learned Advocate for appellant.
16. It is admitted position, that appellant voluntarily appeared at Police Station and surrendered himself with blood-stained chhuri etc. Appellant also gave judicial confession and stood by its upto end and in his statement under section 342, Cr. P. C. Also repeated his stand, that he killed his wife due to grave and sudden provocation received by him, when he found his wife naked some one left his room by throwing quilt on his face and he ran after him also, but could not catch him. In view of this there are two versions of the incident brought on record and consequently as held by Hon'ble Supreme Court in case reported in PLD 1959 SC (Pak.) 480, the version in favour of the appellant ought to be accepted. In addition to this behavior of appellant to go himself to police station, with bloodstained chhuri/dagger and make judicial confession lends support to his stand.
17. P. Ws. Who are closely related to deceased, it is likely for family honour, would not, accept the stand of appellant as correct and consequently have given their own version of the incident, stand of appellant is plausible and as such I would accept the same.
18. ' Therefore while dismissing the above appeal on merits, I alter the conviction of appellant under section 302, P. P. C. To one under section 304 (1), P. P. C. And consequently reduce his sentence of imprisonment for life to 8 years' R. I. And maintain fine of Rs, 10,000 imposed on him or in default to suffer further R. I. For 3 years and also maintain the conviction of appellant under section 324, P. P.
19. C. For causing knife injuries to Rizwan Hyder and sentence him to suffer R. I. For one year and also maintain his conviction under section 13-E, Arms Ordinance and sentence awarded to him for one year on this account. However, all the substantive sentences under section 304 (I), P. P. C. And 13-E, Arms Ordinance in respect of imprisonment to run concurrently. I further grant benefit of the provisions of section 382-B, Cr. P. C. To the appellant in respect of his period of detention as under- trial prisoner.