' Appellant abovenamed, being aggrieved by impugned judgment, dated 30th January, 1979 of the learned Incharge Sessions Judge, Shikarpur, in Sessions Case No, 138 of 1977, by which appellant has been convicted under section 302, P.P.C. And sentence to suffer imprisonment for life and to pay a fine of Rs, 10,000 or in default to suffer further R.I. For two years, has preferred the above appeal, on the following facts and grounds:-
2. Complainant in his F.I.R. Stated: "Kouro s/o Allahdino Marfani is my nephew. One Schaoo s/o Saleh/ Marfani also resides adjoining to my house. Last night, my nephew Kouro was sleeping in the house of Sachal. After the night had fallen, I heard the gun-shot. Thereafter, I immediately heard the cries of the murder of Kouro. I alongwith Chand s/o Qalandar Bux and Karimdino s/o Sabu Marfani went rushing to the house of Sachal and found, that Kouro was lying on the ground and Sachal was standing with a pistol. He confessed, that he had killed Kouro, because he had a suspicion, that he had affair with his sister Mst. Pari and, thereafter, Sachoo saying that went away. He heist the witnesses there and after taking the Tractor from Haji Yar Muhammad Sadhayo, removed the injured to Police Station."
3. This report initially was recorded under section 307, P.P.C. And section 13-D, Arms Ordinance, thereafter, recorded the statement of injured Kouro, which prosecution now wants to treat it as dying declaration and on the next day, deceased died. He has also prepared the Mashirnama of injuries Exh.11, in presence of Mashirs Shamoo and Pandhi. He had also sent the injured to hospital on the day, when he recorded the statement. He thereafter went to Vardat. It was found, that Vardat was in the house of Sachoo, in village Chodio Sadhayo. But Sub-Inspector, in his evidence has also said, that the Vardat was outside the house but in the courtyard within the house. He also found one empty cartridge. He did not see blood on Vardat. He prepared the Mashirnama in the presence of the Mashirs Pandhi and Shamoo Exh.12. He also recorded the statements of Karimdino, Mst. Pari and Chand. On 27th August, 1977, appellant Sachal came at Police Station and gave country-made pistol and two empty cartridges of .12 bore. He prepared Mashirnama Exh.13. He also recorded the statement of the appellant. He also registered the case under section 13-D, Arms Ordinance which case was challaned in the Martial Law Court. He also got the statements recorded under section 164. Cr.P.C. Of the witnesses Karimdino and Chand before Mukhtiarkar and F.C.M.
Shikarpur. He also got the confession recorded before Civil Judge and F.C.M. Shikarpur of appellant Sachal.
4. On 26th August, 1977, Mr. Haji Muhammad Sub-Inspector had also gone to Vardat in connection with the investigation of Crime No,28 of 1977, where he came to know from Head Constable, that this crime has been registered under section 307, P.P.C. And A.S.I. Mr. Abdul Rehman had already left for Vardat. He also came to know, that Kouro had died in the hospital. He went to Civil Hospital, but before preparing the Inquest Report he registered the case under section 302, P.P.C. And thereafter prepared the Inquest report Exh.22. He also verified the investigation of A.S.I. Mr. Abdul Rehman.
5. After these formalities were completed, the case was sent up in the Court of Sessions. A.P.P.
Hussain Bux Mahar had conducted the prosecution and examined the witnesses.
6. On 26th August, 1977, Mr.Gul Hassan Chachar has also examined the dead body and found one firearm wound with lacerated and charring margin, adjacent to each other, of big pea size abdominal cavity deep on the right hypochondric area. It was also found that the lower lobe of the liver was lacerated. Penis contained semen. Stomach was punctured. Medical observation concluded with certainty, that firearm injury was the direct result of death. He was also of the opinion, that deceased Kouro was fired from close range and the deceased must have bleeded, if not heavily because the main vessels were not cut.
7. Appellant Sachal Marfani was examined to explain the circumstances appearing against him. He had frankly admitted his guilt, but states, that he killed Kouro, the deceased, because he was taken away by the sense of honour, when he saw his sister in naked posture with deceased, at night time in the house and he killed him with a pistol. He also has admitted the recovery of pistol from his possession. He has also denied at the same time, that he simply suspected his sister Mst. Pari with the deceased.
8. Learned trial Court taking into consideration the evidence adduced before it convicted and sentenced the appellant abovenamed as hereinbefore mentioned and consequently appellant has filed the above appeal, on the grounds mentioned in the memo. Of appeal. The learned Advocate for the appellant at the outset submitted, that on the basis of judicial confession of the appellant, offence committed by the appellant would fall under section 304 (I), P.P.C. And not under section 302, P.P.C, as conviction of the appellant on the basis of alleged three eye-witnesses namely P.Ws. Moula Bux, Karimdino and Chand Khan, who did not support the prosecution case, was not at all possible, and consequently sentence awarded to the appellant was harsh.
9. The learned Advocate appearing for the State also at the outset submitted, that conviction of the appellant was only possible on the basis of his judicial confession only, as P.Ws. Did not support the prosecution case and as such conviction of the appellant ought to have been under section 304, (I), P.P.C. And not under section 302, P.P.C. The learned counsel further stated, that sentence awarded to appellant may be reduced to 10 years only.
10. I have carefully considered the above submissions made by the learned counsels before me and have gone through R & F of the learned trial Court and impugned judgment.
11. I find that P.W. 1 Moula Bux and P.W. 2 Karimdino did not support prosecution case, but were not declared hostile by the prosecution, whereas P.W.3 Chand Khan, who also does not support the prosecution case was declared hostile. In view of this, the only evidence available against the appellant before the learned trial Court was appellant's judicial confession and his statement under section 342, Cr.P.C. In view of this judicial confession of the appellant ought to have been accepted as whole and consequently I do not agree with the conclusions and findings of the learned trial Court, in respect of the said judicial confession. It is clear from appellants judicial confession to which he has stuck and his statement under section 342, Cr. P.C. That he lost self- control due to grave and sudden provocation, on account of Ghairat, as stated by him in his statement under section 342, Cr.P.C. And consequently offence committed by the appellant would be culpable homicide not amounting to murder and as such punishable under section 304 (I), P.P.C. And not under section 102, P.P.C. As held by the learned trial Court.
'3.Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellant from section 302, P.P.C. To one under section 304 (IL P.P.C. And consequently reduce his sentence from imprisonment for life to R.I. For 8 years and impose fine of Rs, 5,000 or in default to suffer further R.I. For one year. I further direct that benefit of provisions of section 382-B, Cr. P.C. In respect of the period of detention of the appellant as under-trial prisoner, be given to him towards his sustentative sentence, in addition to all other remissions to which appellant may be entitled in accordance with rules. The appellant is on bail and consequently the bail granted to him is cancelled and learned trial Court is directed to issue non-bailable warrants for the arrest of the appellant and on the arrest to remand him back to the judicial custody to serve out the remaining portion of sentence awarded to him.