' Appellant abovenamed, being aggrieved by judgment, dated 29th January, 1981 of the learned Sessions Judge Larkana in Sessions Case No,154/80, 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,3,000.Or in,default to suffer further R.I. For six months, has preferred the above appeal, on the following facts and grounds:-
2. The prosecution case as disclosed in the F.I.R. At Exh.8 lodged by complainant Arbab Ali son of Mullan Sodho by caste Jeho, resident of Gullan Jeho village, Taluka Ratodero with Mr. Nisar Ahmed Pathan, S.H.O. Of Naudero Police Station on 14th April,1980 at 8-30 p.m. Is that the complainant has four daughters and four sons. One of his daughters namely Mst. Khairan was married with appellant 'Qurban about 2 or 3 years before her murder. Qurban has one daughter from Mst.
Khairan. On 14th April,1980 at about Triphari time the complainant and P.Ws. Ramzan and Kouro were present in their respective houses situated in the village of Gullan Jeho, Taluka Ratodero.
Suddenly they heard cries of "murder" "murder" raised by Mst.Khairan from the house of appellant Qurban. On such cries the complainant and P.Ws. Ramzan and Kauro rushed to the house of the appellant and found appellant Qurban armed with his single barrel gun telling Mst.Kharian, that she was "Kari" with Ghulam hyder Jeho, when Mst. Khairan cried out that she was innocent. It is also alleged in the F.I.R., that as appellant Qurban saw them, he challenged them by telling them not to go to him, as he was killing his wife as "Karl' with Ghulam Hyder Jeho. Saying so the appellant fired the gun at Mst.Khairan, who was hit on her neck in the firing. She fell down on the ground. The complainant and others could not go to the appellant due to fear, because he was armed with a gun. It is also mentioned in the F.I.R., that after appellant Qurban ran away from his house towards north taking his gun with him. The complainant and P.Ws. Ramzan and Kauro went to Mst. Khairan and found her lying murdered. She had injuries on her neck. The blood was coming out from her injuries. The complainant left Kauro and Ramzan at the Vardat near the dead body of Mst.Khairan while he himself went to Naudero Police Station and lodged his report with the S.H.O. He further informed the police, that the appellant had committed the murder of Mst. Khairan, who was innocent.
3. Mr.Nisar Ahmad Pathan, S.H.O. Of Naudero Police Station on 14th April, 1980 at 8-30 p.m. Recorded the F.I.R. Of the complainant and proceeded to the scene of offence. He saw the place of occurrence in presence of Mashirs Muhammad Shahban and Ghous Bux. It was pointed out to him by complainant Arbab Ali. It was in the house of appellant Qurban, where the dead body of Mst.
Khairan was lying with gun-shot injuries on the same. The S.H.O. Found blood at the Vardat and secured blood-stained earth from there and sealed it in a parcel. He prepared the Mashirnama. He held inquest on the dead body of Mst. Khairan in presence of the above Mashirs and prepared the inquest report. Thereafter, he gave the dead body of Mst. Khairan to police constable Mir Muhammad for taking the same to the Medical Officer, Ratodero, for post-mortem examination.
The S.H.O. Recorded the statements of P.Ws. Ramzan and Kauro. On 22nd April,1980 at 4-00 p.m. The S.H.O. Arrested the appellant from the Otak of Muhammad Saleh Jeho, in presence of Mashirs Muhammad Shahban and Ghous Bux. The appellant volunteered to produce the gun. He then led the S.H.O. And the above Mashirs to his house and took out a single barrel gun of 16 bore from under the bedding, lying in the room of his house. The S.H.O. Secured the gun and prepared the Mashirnama. The appellant had no licence for the gun. Accordingly, the S.H.O. Went to Naudero Police Station where he registered his own F.I.R. Against the appellant for offence under section 13-E of the West Pakistan Arms Ordinance on 23rd April,1980 the 5.11.0. Produced appellant Qurban before the Mukhtiarkar and F.C.M.. Ratodero, for recording his judicial confession. The appellant made judicial confession. The S.H.O. Also produced P.Ws. Ramzan and Kauro before the Mukhtiarkar and F.C.M., Ratodero, for recording their 164, Cr.P.C. Statements. On the same day the S.H.O.
Received post-mortem notes of the dead body of Mst. Khairan from Medical Officer, Ratodero.
Thereafter, the S.H.O. Handed over the case papers to his successor, as he was transferred. The appellant was challaned in the Court of learned Civil Judge and F.C.M. Ratodero, by Mr. F.Azal Muhammad Ruk,S.H..0. Of Naudero Police Station on 7th May, 1980.
4. The learned Civil Judge and F.C.M., Ratodero, had sent the case to the final Court for trial, as contemplated under section 190(3). Cr.P.C.
5. At the stage of trial the charge for offence under section 302, P.P.C. Was framed against the appellant, who pleaded not guilty. However, he admitted that he had killed his wife Mst. Khairan, because he found her embracing and kissing Ghulam Hyder Jeho, he also claimed, that he had fired the gun at Ghulam Hyder also, but it missed to hit the target. In his statement under section 342, Cr.P.C. The appellant denied to have committed the murder of his wife Mst. Khairan by causing gun-shot injuries on her. He further claimed, that he had killed his wife Mst.Khairan due to Ghairat because he found her in objectionable position with Ghulam Hyder Jeho. According to him, he had also fired the gun at Ghulam Hyder, who could not be hit in that firing. The appellant stated that complainant Arbab Ali and P.Ws. Ramzan and Kauro had come afterwards and he had informed them, that he had killed his wife Mst.Khairan under grave and sudden provocation by firing gun at her, after he found her in objectionable position with Ghulam Hyder. The appellant further stated, that he never suspected his wife Mst.Khairan to be Kari with Ghulam Hyder Jeho before. His case is that he actually saw her kissing and embracing Ghulam Hyder Jeho in his own house, while he went there from his land. He also said that on seeing the above shameful sight, he lost the power of self-control and fired the gun at his wife. His claim is that he had already the gun with him. He further asserted, that his wife was killed in that firing and he had also fired the gun at Ghulam Hyder before he had fired at his wife. His claim is that Ghulam Hyder Jeho managed to run away. The appellant admitted to have produced the unlicensed gun before Mr.Nisar Ahmed Pathan, S.H.O. Of Naudero Police Station in presence of Mashirs Muhammad Shahban and Ghous Bux. He further stated that he had fired that gun at his wife and caused her death. For the judicial confession the appellant said that he had made it on 23rd April,1980 before the Mukhtiarkar and F.C.M., Ratodero.
According to him, the confession is both true and voluntary. He claimed the gun to be his own. For the witnesses the appellant gave out that they are interested inter se and hostile to him. The appellant examined no defence witnesses.
6. In support of its case the prosecution examined complainant Arbab at Exh. 7, who produced the F.I.R. At .Exh.8 and P.W. Ramzan at Exh.9, who produced his 164, Cr.P.C. Statement at Exh.10. Dr. Ubedullah (Medical Officer) at Exh.11, who produced the post-mortem notes of the dead body of Mst. Khairan at Exh.12, Kauro at Exh.13, who produced his 164, Cr.P.C. Statement at Exh.14, Mr. Nisar Ahmed (Investigating Officer) at Exh.15, who produced the Mashirnama of the Vardat at Exh.16, the inquest report of the dead body of Mst. Khairan at Exh.17, the Mashirnama of the recovery of gun from the appellant at Exh.18 and the judicial confession of appellant Qurban All at Exh.19, Shahban (Mashir) at Exh.20, who produced the Mashirnama of the arrest of the appellant at Exh.21 and Muhammad Ali (Tapedar) at Exh.23, who produced the sketch of Vardat at Exh.24 while the remaining witnesses had been given up by the learned District Public Prosecutor under his statement Exh.25.
7. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellant as hereinbefore mentioned and consequently appellant has fiJed the above appeal, on the grounds mentioned in the memo, of appeal.
8. The learned Advocate for the appellant at the outset submitted, that he was not pressing the above appeal on merits except on the ground, that offence committed by appellant in view of the judicial confession of the appellant and earlier statements of P.Ws. Under section 161, Cr.P.C., falls under section 304(1), P.P.C. And not under section 302, P.P.C. As held by the learned trial Court. In support of this contention, the learned Advocate for the appellant relied upon cases reported in PLD 1953 FC 93 at 112, PLD 1954 FC 29 at 112 and PLD 1973 Kar.
659. The learned counsel for the appellant further relied upon case reported in PLD 1961 Lah.24, as far as sentence to be awarded to appellant under section 304(1), P.P.C.
9. The learned Advocate appearing for the State at the outset submitted, that while supporting the impugned judgment on merits, he agrees with the contentions of the learned Advocate for the appellant, that offence committed by appellant would fall under section 304(1) and not under section 302, P.P.C.
10. I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the trial Court and impugned judgment and cases cited by the Advocates before me.
11. Appellant right from the date of his arrest till his statement under section 342, Cr.P.C. Stuck to his stand, that he had found his wife embracing and kissing position, with one Ghulam Hyder Juhio and as such he killed her, out of Ghairat. P.Ws. Have confessed this fact, that appellant had declared his wife Kari, before shooting her, in their presence. In the face of this evidence on record, I find no merits in the above appeal.
12. However, the only question which requires consideration is, whether appellant committed said murder on account of grave and sudden provocation and as such offence committed by appellant would fall under section 304(1), P.P.C. Or not. 1 have carefully gone through judicial confession of the appellant, his statement under section 342, Cr.P.C. And through the statements of P.Ws. Have stated before the 'learned trial Court, that appellant was accusing his wife as Kari with Ghulam Hyder., before he shot her. In view of all these facts on record. I see no reason to agree with the conclusion of the learned trial Court, that since no empty was found on Vardat, about alleged first shot and since P.Ws. Do not admit to have seen Ghulam Hyder running away, appellant had no grave and sudden provocation so as to commit murder. It may be noted, that P.Ws. Were in their houses and came on cries of deceased and as such it is just possible as stated by appellant that on seeing him, Ghulam Hyder managed to run away from his house. This could have happened, before arrival of P.Ws. Confession of the appellant, which was recorded soon after his arrest seems to be straightforward and I see no reason to reject any part of the said confession, as it was just possible that before arrival of P.Ws. Ghulam Hyder alleged karo managed to run away.
13. Therefore, I am of the opinion, that offence committed by appellant would fall under section 304(1), P.P.C. And not under section 302, P.P.C. As held by the learned trial Court.
14. Therefore, while dismissing above appeal on merits, I alter the conviction of appellant from under section 302, P.P.C. To one under section 304(1), P.P.C. And consequently reduce his sentence from life imprisonment to 5 years' R.I. And maintain the fine of Rs,3,000 and in default of payment of said fine to suffer further R.I. For six months. I also direct that benefits of provisions of section 382-B, Cr.P.C. In respect of period of detention of the appellant, as under-trial prisoner be given to him, towards his substantive sentence, in addition to all other remissions to which he may be entitled, in accordance with rules.
15. The above appeal stands dismissed in the terms of the above judgment.