1. ABDUL KADIR SHAIKH, J.--This appeal by leave is directed against the judgment of Baluchistan High Court ,dated 3-4-1983 by which an appeal filed .By the appellant against his conviction under section 302, P.P.C. Recorded against him by the Sessions Judge, Sibi was dismissed with the modification that the sentence of death imposed on him was reduced to life imprisonment.
2. The incident in the case in which Haji Khan was murdered occurred on 8-5-1980 at about 3-15. p.m.
3. In Goth Jalowah, Tehsil Jhatpat, and the crime was reported by Jamadar Ghulam Mustafa at Sohbatpur Police Station, Jhatpat the same day at 4-40. p.m. According to the version of the incident given by Jamadar Ghulam Mustafa in the F.I.R., on the day of the incident at about 2-30 p.m. He was sitting at the shop of Ali Sher Bhanger alongwith Haji Khan (deceased), and Mohibali (appellant). Haji Khan left the shop after some the saying that he was going to his house (in another village) on his mare tethered at a distance. After his departure, Mohibali also left for his house. At about 3 p.m. He heard a gun report from the house of Mohibali and on reaching there he saw Haji Khan lying on the ground, and the appellant who had a gun fired a second shot at the victim. Jamadar Ghulam Mustafa tried to catch the culprit who however said that he had killed Haji Khan due to his Siahkari with his wife Mst. Qabila and he will also murder his wife. By this the several persons of the village reached there and the culprit ran away with his gun.
4. On arrival at the spot, the police noticed the dead body of Haji Khan lying at a distance of about 50 yards from the door of appellants house. After completing the investigation on the scene of crime when S.H.O. Returned to the Police Station, he found Mohibali already present there with the shotgun used in the crime. The accused confessed his guilt and was later on produced before Muhammad Jan. Assistant Commissioner and First Class Magistrate, Jhatpat on 18-5-1981 for recording of his judicial confession, which in the relevant part reads as under: - "On the day of incident I went out of my house i.e. Jalo Wah towards a shop for making purchases which is situated at a distance of 2/3 furlongs. At about 11/12 p. m. After making purchases I reached at my house and saw that Haji son of Kehar caste Peechuha, resident of Wazir Khan Goth in a compromising position with my wife Mst. Qabila. On seeing them in such an objectionable position I went unseen to another roomwhere my single barrel shot gun was kept. The same was without license. I came out alongwith the shot gun and three live cartridges, and loaded the same. I advanced towards them. Ilost my self-control on account of Ghairat and called Siahkar Haji th9t you cannot escape. He started running. I fired one after one upon Siahkar Haji inside the compound and he fell down cold. My wife ran away to the house of neighbour Abdul Sattar and Ali Sher Bhanger. I followed her and fired one shot, which missed. I informed Ali Sher Bhanger and Bolund Bhanger etc that I saw Haji in a compromising position with my wife Mst. Qabila and by declaring them Siahkar murdered Haji Ali Sher Bhanger, Bolund Bhanger etc. Prevented me from killing of my wife. I voluntarily appeared before the Police Station Sohbatpur alongwith shot gun single barrel and three empty cartridges and reported the matter. I hove declared my wife Siahkar with Haji and murdered Haji on account of Siahkari, I state this much 18-5-1980."
5. At the trial, the prosecution relied on P.Ws. Jamadar Ghulam Mustafa and Abdul Qadir as eye- witnesses of the crime; in addition on the testimony of P.Ws. Sher Ali and Abdul RasooT Shah who reached the scene of offence immediately after the crime before whom the accused confessed having killed Haji Khan due to his Siahkari with his wife. Prosecution also relied on the admission of the accused in the judicial confession that he had killed Haji Khan.
6. In his defence, the accused admitted the incident and stated that he had killed Haji Khap due to the reason that he saw him and his wife in an objectionable position, in that, they were naked. He also admitted having made the confessional statement. His further explanation in his statement under section 342 of the Code of Criminal Procedure may be reproduced in his own words as follows: "On .The day of incident I went to the shop of Ali Sher Bhanger at about 3-00 p. m. P. Ws. Ali Sher, Ghulam Mustafa, Abdul Qadir and deceased Haji Khan were sitting in the shop. Deceased Haji Khan used to reside at a distance of 'one mile from my house. The deceased left the shop while we were sitting at the shop. When I went to my house I saw the deceased and my wife in an objectionable position and were naked. I took the gun which was lying in my house and fired at the deceased due to Ghariat as a result of which the deceased died at the spot. My wife Mst. Qabila succeeded in running away. I then went to the Police Station Sohbatpur alongwith my gun and produced the same to the police. I file certified copies of the complaint filed by one Muhammad Ayub alongwith the copies of the statement of P.Ws. Muhammad Ayub, Abdul Qadir, Ghulam Mustafa recorded in the complaint alongwith the order of the Court. These are Exhs. 23 to 26."
7. In view of his own admission of having killed Haji Khan, the precise question that arises is whether the appellant had killed Haji Khan in the circumstances stated by him.
8. Learned Sessions Judge Jhatpat who tried the case believed the testimony of Jamadar Ghulam Mustafa and P.W. Abdul Qadir at the trial that appellant had followed Haji Khan and killed him, and rejected the defence plea raised by the accused. According to learned Sessions Judge, the crime committed by the accused was well-planned and brutal and there are no mitigating circumstances to justify awarding lesser punishment under the law He accordingly held the accused guilty under section 302, P.P.C. And sentenced him to death and a fine of Rs.5, 000.
9. On appeal by the convict and on reference for confirmation of death sentence, learned Judges of the High Court who dealt with the case also took the same view as prevailed with the learned trial Judge, and while upholding the conviction of the convict under section 302, P.P.C. They however awarded him the lesser penalty of life imprisonment.
10. Leave to appeal was granted by this Court in order to examine whether on the facts and circumstances proved in the case the crime committed by the appellant falls under section 304, P.P.C. And not under section 302, P.P.C.
11. In support of the appeal Mr. M.A. Rashid, learned counsel for the appellant, submitted that the learned Judges in the High Court have not given due importance to the well-established principle that the First Information Report in the earliest 'version of the prosecution case and any material improvement made therein afterwards in evidence, against the accused, is to be scrutinised with care and caution so as to exclude the possibility of false evidence. In this connection, learned counsel pointed out that the main reasons for disbelieving appellant's plea was that he and the deceased had left the shop together, and since this version is contrary to the one mentioned in the F.I.R. Where it was' stated the deceased had left the shop first, and the appellant thereafter, the former story stated at the trial was unworthy of reliance. Learned counsel further submitted that the fact that the appellant had immediately declared at the the of commission of the crime that he had killed the deceased due to Siahkari, and that he had voluntarily surrendered himself to the police with the crime weapon soon after the murder, and also made the judicial confession in this regard, together with the evidence given by his wife as a defence witness are strong circumstances to support .The defence plea raised by him. Learned counsel further submitted that even according to the prosecution, there was no other motive excepting the Siahkari of the deceased with appellant's wife, and all these facts and circumstances lead to the conclusion that the crime was committed by the appellant in the circumstances stated by him.
12. We find that all these pleas have already received adequate consideration by the trial Court as well as the High Court.
13. In this regard the High Court noticed that according to medical evidence the shot fired at the deceased was from a close range, and the deceased was killed at some distance from appellant's house as his body was lying at a distance of about 50 yards from the door of appellant's house, under a tree to which the mare of the deceased was tied. Learned Judges, therefore, took the view that had the defence version been true, the dead body would have been found naked and inside appellant's house for according to appellant he saw Haji Khan in an objectionable position with his wife, both being naked in his house. In this behalf this is what the learned Judges in the High Court have observed:- "The appellant admits having met the deceased in the shop of Ali Sher Bhanger just a few minutes before the incident. The deceased like a person having the slightest intelligence could have become conscious that he may be perused. At that the there might be neighbours also present around. These things in mind preclude the possibility of any misdemeanour to provide grave and sudden provocation. The plea cast a heavy onus upon the appellant which he could hardly expect to discharge by merely tendering Mst. Qabila in the witness-box. One would have normally expected the neighbours to Corroborate the statement of Mst. Qabila as far as the presence of deceased in the house was concerned. A mere allegation of moral laxity without any unimpeachable evidence to substantiate would not constitute grave and sudden provocation. If such pleas, without any evidence, are accepted, it would give a license to people to killinnocent people."
14. After having gone through the` record of the case, we find that on the facts and circumstances proved in the case, the High Court has rightly held the appellant guilty under section 302, P.P.C. And interference by this Court would not be justified. There is also no justification for awarding the lesser sentence to the appellant as pointed out by the High Court.
15. For these reasons appeal is dismissed.