1. ' ALLAHDINO G.MEMON, J.--The appellant was tried on the charges under Sections 302 and 307 P.P.C.
2. For committing murder of his wife Mst. Mehmooda and causing grievous hurt to his son Sohail, before the learned IInd Additional Sessions Judge, Karachi, East, who convicted and sentenced him to death under Section 302/307 P . P. C .
3. ' This appeal is directed against the said judgment and conviction.
4. ' The prosecution case in brief is that complainant Wakil Ahmed is brother of deceased Mst.Mehmooda. The complainant, his father Nazir Ahmed, his mother Mst. Khusnama Begum, his younger brother Majeed Ahmed, and younger sister Mst. Shahina Nazir aged 12113 years were living in the same house bearing No,2236 P.I.B. Colony, Karachi. That Mst.Mehmooda and her husband Tariq Hussain also used to reside with the complainant party in the same house. The appellant Tariq was an Electrician and he used to quarrel with deceased Mehmooda. That on 6-4-1980 at about 10.00 a.m. Complainant was present in the house. That a quarrel took place between Tariq and Mehmooda. He came out from the door when his sister raised a cry. He immediately rushed through the door and saw that appellant Tariq gave four Chhuri injuries to complainant's sister which hit her on abdomen and chest. The complainant raised cries on which. Tariq Hussain immediately moved to attack his son Sohail aged 21 years, and he placed the Chhuri on the neck of his son. The complainant immediately caught hold of Tariq, during scuffle blade of the. Chhuri got bend. The appellant Tariq Hussain also caused one injury on his own chest with the Chhuri. In the meanwhile Mohallah people came and carried Mst.Mehmooda and his child Sohail to the Civil Hospital in Taxi. The complainant and his mother also accompanied them. The complainant went and informed his father who was on his job.
5. ' The above statement of complainant was recorded by S.H.O. Maula Jan Khan at 11.30 a.m. At the Hospital which was subsequently incorporated in 154 Cr.P.C. Book at the police station New Town Karachi by H.C. Maqbool Hussain Shah. The said statement (F.I.R.) has been produced as Ex.2-A S.H.O. Maula Jan Khan prepared inquest report and memo of dead body which have been produced as Ex.5-A and 5-B. He arrested the appellant on 8-2-1986 and had also secured blood- stained Chhuri from the vardat. Mashirnama of arrest and recovery of Chhuri have been produced as Exs.7-A and 7-B. After completing the investigation he challaned the case before the Court. He had also sent blood-stained articles to the chemical examiner and the medical report has been produced as Ex.13-A. A formal charge under Sections 302 and 307 PPC was framed against the appellant to which he pleaded not guilty. At the trial the prosecution examined P.W.1 Wakil Ahmed, who is complainant in the case, and has supported the contents of F.I.R. He has also produced his statement which was recorded in the Civil Hospital as Ex.2-A. P.W.2 is Jamil Ahmed another brother of deceased Mehmooda is eye-witness of the incident. P.W.3 Nazir Ahmed is father of the deceased, and he was given facts of the incident by P.W.Jamil Ahmed. P.W.4 Abdul Ghani a resident of. P.I.B. Colony had seen the appellant causing injuries to Sohail. He had also acted as witness to the inquest report and Mashirnama of dead body which have been produced by him as Exs.5-A and 5-B. P.W.5 Muhammad Ali is a resident of P.I.B. Colony, Karachi who had come on commotion, and had seen that appellant was caught by people of Mohallah and small boy and girl were seen injured. In his presence police had secured blood stained clothes of accused, bloodstained knife from the vardat and the mashirnamas have been produced as Exs.7-A and 7-B, P.W.6 Salahuddin who was working as mechanic with Raja Hasan Mehmood, had taken the injured to the hospital in the vehicle of Raja Hasan Mehmood. P.W.7 Mr.Noor Ahmed Soomro was a First Class Magistrate and was posted at Soldier Bazar. He had recorded the statements oL P.Ws Jamil Ahmed, Khushnama Begum. Anwer and Abdul Ghani under section 164, Cr.P.C. He has produced the statements as Exs.9-B, 9-C and 9-D, 164 Cr.P.C. Statement of P.W.Jamil Ahmed was produced by witness himself as Ex.3-A. P.W.9 Maqbool Shah was posted as H.C. At New Townand had incorporated the F.I.R. In 154 Book which has been produced as Ex.11-A. P.W.1O Dr. Muhammad Taqi Khan had carried on post-mortem on deceased Mehmooda Begum and had also examined injured Sohail. He has produced the injury certificate of Sohail as Ex.12-A and initial medical certificate of Mst.Mehmooda Begum as Ex.12-B and post-mortem report as Ex.12-C. P.W.11 Muhammad Ishaq A.S.I. Was examined to identify the handwriting and signatures of S.H.O. Maula Jan Khan as he was not traceable. He has produced the chemical report as Ex.13-A.
6. ' After close of the prosecution case the statement of the appellant was recorded under Section 342 Cr.P.C. In which he admitted to have committed murder of his wife Mehmooda and caused injuries to his son Sohail. He has further stated that at the time of marriage with deceased Mehmooda his parents and that of deceased did not participate. After marriage he started living with Mehmooda in the house of his in laws. That there is difference of about 20 to 25 years in the age of his father in law and the mother-in-law namely Nazir Ahmed and Khushnama Begum. After the present incident Khushnama Gegum has deserted her husband Nazir Ahmed and her whereabouts were not known till the day on which the appellant was examined under Section 342 Cr.P.C. On the day of incident Mst.Khushnama Begum was in the house. He used to leave the house at about 8.00 a.m. And used to return from his job at about 9.00 or 10.00 p.m. From the day of his marriage he was having strained relations with his deceased wife, on the ground that her father did not attend the marriage. On the day of incident, he got up as usual, took bath. Earlier to this, his father-in-law Nazir had quarrel with Mst.Mehmooda Khatoon. He came out of the bath room and inquired from Mehmooda Khatoon as to why she had quarrel with her father, on which she replied that it was her personal affair. He asked her to give breakfast so that he may go to his job, instead of giving him breakfast, Mehmooda Khatoon told him that she did not want to remain as his wife and there is no relationship of husband wife between them. His son Imran was aged about 21 months, at the time of incident. Mehmooda Khatoon threw him on the ground and he caught the boy. She called her brother Jamil Ahmed who had gone alongwith her son Sohail out of the house, and took him in her lap, and said that she was leaving the house for good. He tried to stop her on which she observed that she can live without him, and further she is neither his wife nor the child is from him, and that she can live with the support of others "as she had many paramours". On this he was provoked and took Chhuri from the kitchen and injured her, at that time the child was in her lap. He further stated that he did not know what transpired thereafter till he was arrested. After the incident he became unconscious. On regaining senses he found that many persons were there and had surrounded him. On consideration of the above evidence, the learned trial Judge convicted the appellant as described above.
7. ' We have heard Mr. Muhammad Hayat Junejo, the learned counsel appearing for the applicant and Mr.Imdad Ali Agha, the learned counsel appearing for the State.
8. ' The only contention raised by Mr.Muhammad Hayat Junejo is that the statement of the appellant shows that he killed Mst.Mehmooda Begum and caused injuries to Sohail due to grave and sudden provocation. That none of the prosecution witnesses could say as to how the incident started and, therefore, the version given by the appellant has to be accepted. He has further contended that in view of this position the offence will fall under section 304 Part I PPC. In support of his contention he has relied upon PLD 1978 Karachi 521.
9. ' Mr.Imdad Ali Agha, learned counsel for the State has contended that the appellant has admitted in his statement that he had killed his wife but nobody knows as to how the incident took place.
10. Under these circumstances, the statement of the appellant will have to be taken as a whole, and, therefore, the conviction under Section 302 , PPC was not justified.
11. We are satisfied from the evidence on record that the appellant was responsible for killing his wife Mst. Mehmooda Begum. This fact has been established by ocular evidence, and it is admitted by appellant in his statement under Section 342 Cr.P.C.
12. ' We have considered the contention of the learned counsel and have also gone through the evidence. According to prosecution there were three eye-witnesses in the case, namely (1) complainant Vakil Ahmed, (2) P.W. Jamil Ahmed and (3) Mst.Khushnama Begum mother of deceased Mehmooda Khatoon. Since Mst.Khushnama Begum has not been examined in Court, we are left with the evidence of complainant and PW Jamil Ahmed. The evidence of complainant shows that he was present in the house at the time of incident. He heard cries of his sister Mst.Mehmooda Khatoon. He went towards her and, saw accused Tariq Hussain giving knife blows to his sister Mst.Mehmooda Khatoon. After inflicting knife injuries to her Tariq Hussain went out of the house in the street, where Sohail was playing. Accused Tariq Hussain gave injury to Sohail with knife. This clearly shows that complainant Vakil Ahmed does not know as to how the incident started. So far the evidence of PW Jamil Ahmed is concerned, of course, he has, stated that at the time of incident he was sitting in the house when accused came out of The room, his sister deceased Mehmooda Khatoon a: was boiling_milk. Tariq Hussain gave kick to the milk pot and the same fell down. Accused Tariq Hussain then took wooden spoon (Doi) and struck her 3/4 times, in the result doing was broken, his sister deceased Mst.Mehmooda Khatoon asked him to take her child Sohail outside the house. Sohail was aged about 2/3 years at the time of occurrence. He took Sohail outside the house, his mother also came outside the house following him. She asked him to bring his father. He went to his father at the place of his work and brought him to the house. In cross-examination he has admitted that he was student of Class III at the time of incident/occurrence while his brother. Vakil Ahmed was studying in Class VII. On the day of occurrence he had gone to school but the school was closed in early hours and he came to the house earlier. Even evidence of this witness does not show as to how and why the appellant attacked the deceased. There are, certain contradictions in the evidence of complainant and this witness, and, therefore, even it is doubtful whether PW Jamil Ahmed was present at the vardat at the time of incident. His name does not appear in the FIR lodged by an eye-witness Vakil Ahmed, nor Vakil Ahmed has named PW Jamil Ahmed in his evidence in Court to have c been present at the time of incident. The case of the complainant is that he had gone to inform his father about the incident whereas the case of PW Jamil Ahmed is that it was he, who had gone and brought his father to the house. Under these circumstances, it is clear that there is no definite evidence as to how and why the accused, attacked the deceased and his son, except the version of the accused in his statement under Section 342 Cr.P.C.
13. From the above discussion, it is clear, that we have no other alternative but to accept the statement of the appellant made by him under Section 342 'Cr.P.C. The appellant is admittedly a young man and he killed the deceased whilst deprived of power of self-control due to grave and sudden provocation given by Mst.Mehmooda. We would, therefore, alter the conviction and sentence of the appellant from imprisonment for life under Section 302 PPC to seven years' R.I.
14. Under Section 304 Part I PPC. He is also convicted under Section 307 PPC and sentenced to suffer R.I.
15. For three years. Both the sentences to run concurrently. The appellant is also entitled to the benefit of section 382-B Cr.P.C.
16. ' Reference of confirmation is not accepted. We had announced the above judgment by a short order dated 16-2-1987 and these are the reasons for the same.