ATAULLAH SAJJAD, J.-Sardara alias Kaka, resident of Chak No. 368/J. B. Police Station Gojra, District Lyallpur, has been sentenced to death by Mr. Gulbaz Khan, Sessions Judge, Lyallpur, for the murder of Mst. Husain Bibi who was the wife of his elder brother Abdus Sattar, who appeared at the trial as P. W.
11. The convict has appealed. There is also a murder reference under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death. This judgment will dispose of both the matters.
2. The occurrence took place on 12th of July 1967, at about 5 a.m. In the house of Abdus Sattar in Chak No. 368/J. B. The First Information Report Exh. P. C. Was lodged at 6-30 a.m. In Police Station Gojra by Rehmatullah (P. W. 10) Lambardar of the village and was recorded by Ch. Abdul Majid S. H.
O. (P. W. 15).
3. The convict was living with his elder brother Abdus Sattar. (P. W. 11) in the same house. Habib their younger brother was also living with them. Abdus Sattar was married to Mst. Husain Bibi deceased.
The convict and Habib are bachelors. We find it from the evidence of Abdus Sattar that about six or seven years before the occurrence, the appellant contacted illicit relations with Mst. Husain Bibi and on this account Abdus Sattar started living separately. Four years before the occurrence his son died and there was approchement between the brothers. One year before the occurrence they again started living together. The appellant suspected that the deceased had contacted a liaison with his younger brother Habib. According to Barkat Ali (P. W. 9) who claims to be a partner in business with the three brothers, there was a quarrel between the brothers a day prior to the occurrence as Abdus Sattar suspected that the appellant was carrying on with his wife. Abdus Sattar is also said to have told this witness that Habib had also developed a liaison with his wife.
4. On the night preceding the morning of the occurrence, the appellant and his elder brother Abdus Sattar slept in the lane outside the house. Habib came to the house after taking the turn of water and slept in the deorhi. The deceased was sleeping in the courtyard with her to children Mst.
Sughran (P. W. 14) and Mst. Razia, aged 6 years, and 6 months respective--ly. The place where Habib was sleeping was at a distance of ten to twelve paces from the cot of the- deceased. At about 5 a.m. Abdus Sattar heard a noise and woke up. He went inside the house. So did Tufail and Muhammad Ramzan (P. Ws. 12 and 13). Muhammad Tufail (P. W. 12) lives at a distance of seventy karams from the place of occurrence and was proceeding to a kharas. Muhammad Ramzan is also a resident of the vicinity and was going from his newly purchased house to his old house. They saw the appellant inflicting kassi blows to Mst: Husain Bibi. They apprehended the appellant at the spot with the kassi, Abdus Sattar left the appellant in the custody of Muhammad Ramzan and Tufail P.
Ws. And went to, Rehmat--ullah Lambardar (P. W. 10) and told him what had happened.
Rehmatullah came to the spot and the accused confessed before him in the presence of Abdus Sattar, Tufail and Ramzan P. Ws. That he bad murdered Mst. Husain Bibi because she had first developed intimacy with him but had later on started a liaison with his younger brother Habib.
5. Ch. Abdul Majid S. H. O. Gojra (P. W. 15) reached the spot at about 8-15 a.m. He found that the deceased was not wearing any shirt and a doppata had been wrapped on her body. He drew up the necessary documents and sent the dead body for post-mortem examination. Mst. Sughran (P.
W. 14), a six years daughter of the deceased had also an injury. She was sent for medical examination. The appellant was produced before the investigating Officer by Tufail and Muhammad Ramzan P. Ws. He was arrested. At the the of arrest he was wearing a blood--stained chaddar which was removed from his body and was sealed into a parcel vide memo. Exh. P. E.
Ramzan P. W. Also produced a blood-stained kassi which was also sealed into a parcel vide memo.
Exh. P. D. The Sub-Inspector took blood-stained earth from underneath the cot of the deceased and sealed it into a parcel. The Serologist found that the earth, kassi and the chaddar of the appellant were stained with human blood.
6. Doctor Masood Farooqi (P. W. 1) performed the post-mortem examination on the dead body on 12th of July 1967, at 6-30 p.m. He found the following injuries thereon :-
(1) Incised wound on the skull just behind and below the ear on the right side 5" x --" cutting into the bone.
(2) Incised wound on upper part of the right side of the neck below the right ear and the mandible 4--" x 2" x 4" cutting the bone and blood vessels of the neck through and through.
(3) Incised wound on the right side of the lower part of the neck 3" x 1" x 2".
(4) Incised wound on the left arm near wrist cutting the bone through and through ; the. Hand, hanging by a tag of skin only.
The injuries were sufficient in the ordinary course of nature to cause death and the death was caused within a few moments of the infliction of the injuries. No vaginal swabs appear to have been taken but the doctor did not find any marks of semen on the body.
7. Abdul Qadir Warsi (P: W. 6) Overseer of Municipal Committee, Gojra prepared the site-plan Exhs.
P: H. And P. H/1. He stated that there were some inhabited houses adjoining and across the house of Abdus Sattar. He further stated that the door of the deorhi of the house of the deceased opened in the lane. Muhammad Ali (P. W. 8) is - a witness of recovery. He denied his statement made before the; committing Magistrate that the deceased was of immoral character and that Abdus Sattar had complained to him about her immorality and had told him that the appellant was carrying on with his wife.
The gist of the evidence of Barkat Ali (P. W. 9), has been given above. He stated inter alia that the share of the business of the appellant had been taken by Abdus Sattar P. W.
Rehmatullah, (P. W: 10) is the first informant. He is also a witness of the extra-judicial confession said to have been made by the appellant. He had been told by Tufail and Ramzan P. Ws. That they had seen the appellant murdering the deceased and had captured him with the kassi. He further stated that Abdus Sattar had informed him that the appellant had slept outside but Habib had slept in the deorhi after he had come back from the fields. He was further informed that Habib had gone outside to answer the, call of nature when the appellant committed the murder of the deceased with, the kassi. He is also a witness of recoveries of the blood-stained chaddar and the kassi.
Muhammad Tufail (P. W. 12) had made a statement before a Magistrate at lobs Tek Singh under section 164, Cr. P. C. Wherein he .Had stated that in reply to a question by the Lambardar the appellant had said that he "had seen the illicit relations of Mst. Husain Bibi with Habib" and had, there--fore, murdered her: This, witness admitted that there are many houses situated in between.
His house and that of Abdus Sattar.
Muhammad Ramzan (P. W. 13) is a son of the maternal uncle of Rehmatullah (P. W. 10). He did not see Habib in the house at the the of the occurrence. He professed to have remained at the spot till 9 or 10 a.m. And he did not see Habib in the house as long as he was there.
Mst. Sughran stated that she was sleeping with her mother when she saw the appellant inflicting injuries to the deceased with a kassi. She had also an injury on her right elbow. She started crying and Tufail and Ramzan P. Ws. Came at the spot along with her father and captured the appellant.
8. The appellant took the position before the committing Magistrate that he had illicit relations with the deceased and both of them were seen in a compromising position by his brother Abdus Sattar P. W., that his brother wanted to kill both of them but he ran away and Abdus Sattar killed his wife.
He denied the recovery of the kassi or the blood-stained chaddar from him. At the trial, he changed his position and stated that Mst. Husain Bibi had developed illicit relations with his brother Habib and that on the morning of the occurrence when he went into the house he looked through the space of the door and saw S Mst. Husain Bibi deceased: and Habib in a compromising position.
On opening the door he went into the deorhi. Habib ran out of the 5 deorhi. The appellant questioned Mst. Husain Bibi about this but she started abusing him. A kassi was lying nearby and he gave her a blow with the same. Mst. Husain Bibi ran out of the deorhi and fell on the cot where her children were lying, where he inflicted more injuries. He denied that Tufail, Muhammad Ramzan and Abdus Sattar P. Ws. Reached the spot. He also denied that he had made any confession before Rehmat Ullah and these P. Ws. He stated that he had been arrested from his house. He admitted that the' blood-stained chaddar had been recovered from him and that he killed the deceased on account of provocation.
9. The appellant does not deny that the. Deceased was done to death by him. The confessional statement made at the trial is further reinforced by the testimony of Abdus Sattar and the to disinterested witnesses, namely, Muhammad Tufail and Muhammad Ramzan. We also believe that the appellant must have made a confessional statement before Rehmatullah Lambardar because he had specifically stated in the first informa--tion report that the appellant had told him that he had murdered the deceased because she had developed a liaison with his brother Habib. Unless the appellant had made a confession before the Lambardar, he could not have known the reason which prompted him to murder his brother's wife.
10. The learned Sessions Judge found that the plea of the grave and sudden provocation raised before him was an afterthought. Mr. Riaz Kayani, the learned counsel appear--ing for the appellant has not seriously challenged the evidence on which the conviction of the appellant is based: He, however, stated that the murder was committed under grave and sudden provocation and, therefore, we should give the appellant the benefit of Exception to section 300 of the Pakistan Penal Code.
11. The evidence shows that there was a rupture between the brothers on account of the liaison: that the appellant had developed with his brother's wife. It is also borne out from the evidence that after the patch up, the appellant suspected that his younger brother Habib was carrying on with Mst. Husain Bibi deceased: Abdus Sattar denied at the. Trial that he suspected Habib of having developed intimacy with his wife but we find in the evidence of Barkat Ali P. W. That Abdus Sattar had made a complaint before him to that effect. The case of the prosecution from the very start was that the appellant had killed the deceased because of this reason. Tufail P. W. Stated in his statement under section 164, Cr. P. C. That the appellant told the Lambardar that he had killed the deceased because he had seen "the illicit relations" of the deceased and Habib. The Sub-Inspector stated that he reached the spot at 8-15. Abdus Sattar stated that Habib did not appear on the scene till after the arrival of the police. Muhammad Ramzan (P. W. 13) stated that he was at the spot till 9 or 10 a.m. And so long as he was there he did not see Habib. The disappearance of Habib from the scene is very suggestive. He was an inmate of the house. According to Abdus Sattar he had gone only to answer the call of nature. He should have been attracted to the spot by the cries of the deceased or the turmoil that had followed the at of murder. We are, therefore, justified in drawing an inference that Habib intentionally made himself, scarce. The only reason that we can find for this avoidance on his part to come to the place of occurrence is that he was conscious that his name must have been mentioned in this connection. The allegation of the appellant that Habib had developed liaison with the deceased is not unfounded. It is significant that he was sleeping in the deorhi at a few paces from the place where the deceased was sleeping. According to the Sub- Inspector there were no shutters in the deorhi and there was an opening in the wall towards the court--yard. The learned Sessions Judge observed that Habib must have felt tired or unwell after his strenuous job and may have slept in deorhi for this reason. This is just a conjecture which gives -a benefit of doubt to the prosecution.
12. The question is whether we can give the benefit of Exception to section 300, P. P. C. To the appellant. There is ample evidence to support the plea of the appellant that Habib had developed a liaison with the deceased. In Muhammad Siddique v. The State (PLD 1958 Lah. 601) the appellant who had a liaison with the deceased woman for a number of years, had killed the woman and had pleaded that he had done so because he had seen her in compro--mising position with another lover. The evidence led at the trial was against this plea but the record indicated that the plea of the accused that the deceased was seen by him with another man was not without substance.
Their Lordships referred to the definition of provocation as contained in Exception 1 to section 300, P.
P. C. And observed that the language used in Exception 1 to section 300, P. P. C. Was intended to have full and free effect according to its natural meaning except in the cases specified in the three provisos to the above .Clause and if it had been the intention to deprive an adulterer or other wrongdoer of the plea of provocation, there would have been a further proviso to that effect. In the earlier part of the report their Lordships observed at page 612 as follows: "In cases of provocation indulgence is not shown by law on account of any artificial legal right or rule of morality of a particular school; but is a condescension to the frailty of the human nature, which during frensy renders a man oblivious to the voice of reason, law and morality."
It was found that there was no proof on the record of such provocation which could bring the case within the First Exception to section 300, P. P. C. The, provocation however indicated by the circumstances of the case was such that it did not justify the inflicting of the capital punishment.
13. We find that the facts of the precedent case are similar to the present case and although it is not proved that Habib was found having sexual intercourse with the deceased woman, there are indications that there was something which suddenly provoked the appellant to commit the murder of his brother's wife. We. Therefore, uphold the conviction of the appellant but substitute the sentence of transportation for life instead of death. We do 5 not confirm the sentence of death. The appeal and the murder -reference are decided accordingly.