IMDADALLY H. AGHA, J.--The appellant Mr. Mir Mohammad was tried along with his two other cousins, namely, Inam Ali and Kadir Bux by the learned Additional Sessions Judge, Larkana for the murders of two deceased persons i.e. Mst. Mehar wife of the appellant Mir Mohammad and Rasool Bux, the sister's husband of deceased Mst. Mehar. The co-accused Inam Ali and Kadir Bux were acquitted while the appellant Mir Mohammad was convicted under section 302, P. P. C. And sentenced to trans--portation for life. He has now appealed against his conviction and sentence.
2. The relevant facts of the prosecution case as gleaned from the testimony of P. Ws. Are briefly as follows: Deceased Mst. Mehar was the daughter of the complainant Abdul Haleem. Deceased Rasool Bux was his son-in-law, being the husband of his another daughter Mst. Shahzadi. Ramzan is the son of the complainant. Mst. Arbab Kbatoon (P. W. 7) is the wife of the complainant and Mst.
Saleha (P. W. 6) is the wife of Ali Bux, who was the cousin of the complainant.
3. The date of occurrence of this crime is 18th May 1968 at about 10 p.m. About 4 years before the present incident deceased Mst. Mehar Khatoon was married to the appellant who is also the nephew of the complainant. Deceased Rasool Bux was married to another daughter of the complainant i.e. Mst. Shahzadi, The complainant, his son Ramzan, -his wife P. W. Mst. Arbab, P. W..
Mst. Saleha wife of the cousin of the complainant and Allahdino son of P. W. Mst. Saleha all used to reside together in the same house in village Phulpota. The deceased Mst. Mehar Khatoon after her marriage to the appellant used to live with her husband in his house which was at a distance of about 50 paces away from the house of the complainant. She lived with her husband appellant Mir Mohammad for a period of about one year during which a daughter was born to them and after that appellant Mir Mohammad drove out his wife deceased Mst. Mehar Khatoon from his house as he suspected her to be on terms of illicit intimacy with deceased Rasool Bux. Thereafter, she came and lived along with her minor daughter with her father in his house. The house of deceased Rasool Bux was also near the house of the complainant being 50 paces away from it. The complainant used to go to the dera of his field for looking after his 4 cultivation at night and, sometimes deceased Rasool Bux came and slept in the house of the complainant as the latter', sons were minor and women folk were living in the house. On the night of occurrence at -about sohmani time the complainant, his wife P. W. Mst. Arbab, P. W. Mst. Saleba, Allahdino and deceased Mebar Khatoon were sitting in the courtyard of their house on different cots, and this courtyard of their hose was common with the house of Allahdino Which, was adjoimia to the house of the complainant. The house of Allabdino and the house of the complainant had raised platform. The complainant knew the acquitted co-accused Inam Ali and Kadir Bux. Shortly before the occurrence as the complainant and other P. Ws. Aforesaid including deceased Ust. Mehar Khatoon were sitting on separate cots in the common courtyard of their house the deceased Rasool Bux also name to the house of the complainant and he sat on the cot on which P. W. Mst. Saleha was sitting, according, to the complainant. At that time all of them were talking and the night was dark but two hurricane lamps were kept burning in the common courtyard of their house and they were affixed to the wall. The entrance to the house of the complainant through a window was open at that time and from that window it is alleged that the present appellant and the other two acquitted co- accused came inside the common courtyard of the house of the complain--ant and they were i6rntiffed by the complainant and other P. Ws. On the light of the "raps. Appellant Mir Mohammad was armed with a hatchet, acquitted co-accused Inam Ali was armed with a gun and acquitted co-accused Kadir Bux was armed with a pistol.All these three persons had come and stood at a distance of about 8 paces away from the cots of the P. Ws. They said nothing. It is alleged that then acquitted co-accused Inam Ali fired his gun at deceased Mst. Mehar Khatoon who was sitting on the cot at a distance of about 5 paces away as a result of which she was injured and she fell down dead from the cot. The remaining two companions of acquitted co-accused Inam Ali did not do anything to deceased Mst. Mehar Khatoon. It is then alleged that acquitted co-accused Kadir Bux fired his pistol at Arst. Mehar Khatoon when she was falling from the cot but the complainant did not see Mst. Mehar Khatoon receiving injuries from this pistol shot. This acquitted co-accused had fired his pistol at deceased Msl. Mehar Khatoon from a distance of about 2 paces from her. The appellant Mir Mohammad, it is alleged, went towards the cot where deceased Rasool Bux was sitting along with P. W. Mst. Saleha and he inflicted hatchet blows with the sharp side of the hatchet to Rasool Bux as the result of which Rasool Bux, the deceased, fell down on the ground and succumbed to injuries. Alarm was then raised by the complainant and other eye-witnesses and finally the three culprits made good their escape and took away their crime weapons with themselves with which they were armed but the pistol of acquitted co-accused Kadir Bux fell down at the scene of offence which was left behind. Ellahi Bux (P. W. 8) the nekmard of the locality who resided, itt a distance of about 300 paces away from the house of the complainant came to the scene of crime. Amir Bux also arrived there and so also Nehal. They saw the dead bodies of the two deceased persons and they were informed of the whole incident by the complainant and other P.
Ws. Who all implicated the three culprits already named for the murder of both the deceased. The complainant leaving all others at the scene repaired immediately to the Police Station Naodero where he lodged his First Informa. Tion Report Exh. 14 at 11-30 p.m., the distance of the Police Station being one mile from the scene of offence. The first report was registered by S. H. O. Fazal Mohammad (P. W..9). Immedi--ately after the registration of the F. I. R., P. W, Ellahi Bux and Mohammad Bux also came at the Police Station at Naodero. Soon thereafter the present appellant along with the acquitted two co-accused also came to the Naodero Police Station At that time the appellant had a blood-stained hatchet with him anti accordingly he was interrogated by the S. H.
O. Who recorded his statement. After that the appellant produced before the S. H. O. Blood-stained hatchet which was secured under a mashirnama Exh. 18 signed by mashirs P. W. Ellahi Bux and Mohammad Bux. The appellant was also found wearing on his person loin cloth, a shirt, and a vest which appeared to .Be blood--stained and these clothes were also secured by the S. H. O. Under a mashirnama Exh. 19 which was signed by the same mashirs. These articles were made into a sealed parcel then and there. The S. H. O. Then put under arrest the other two companions of the appellant Mir Mohammad also after which he kept the appellant and acquitted co-accused Kadir Bux in police custody at his Police Station. Acquitted co-accused Inam Ali, it is then alleged when interrogated, offered to produce a gun and in presence of mashirs P. W. Ellahi Bux and Mohammad Bux he took the S. H. O. To the graveyard of Badal Shah at a distance of one mile away from the Police Station Naodero and from to graveyard he produced a single-barrelled gun from a palm tree, which was secured under a mashirnama Exh. 23 by the S. H. O. Signed by the aforesaid mashirs and made into asealed parcel. On the next date i.e. 19-3-1968, the S. H. O. Along with his subordinate staff arrived at the scene of offence at 2 a.m. Along--with acquitted co-accused Imam Ali. For the night the S. H. O. Arranged to keep watch at the vardat through his subordinate police staff. He then recorded the statements of the eye-witnesses under section 161, Cr. P. C. On the same date at about 6 a.m. He inspected the scene of offence at dawn time in presence, of mashirs Ellahi Bux and Mohammad Bux. The scene was found to be to the common courtyard of the house of the complainant Abdul Halim and Allahdino and two dead bodies of the two deceased herein were found lying there. There was lot of blood' also at the vardat which was secured by the S. H. O.
One country-made pistol was also found lying at the scene and it contained an empty cartridge and one more empty cartridge and two huricane lamps at the scene were also lying there are all these articles were secured under a mashirnama Exh. ~0 signed by the same mashirs. The blood- statined earth, the empty cartridge, the country-made pistol and the empty cartridge secured from the barrel of the pistol were made into a sealed parcel then and there. Some pellets and wads of cartridges were also secured from the scene of crime. The S. H. O. Then prepared two inquest reports regard--ing the dead bodies of the deceased persons which are Exhs. 21 and 22 on the record and they were signed by the same mashirt: He then despatched the dead bodies of the two deceased to the Medical Officer, Larkana for post-mortem examination and report through police constable Abdul Hamid (P: W. 3). On the same date the S. H. O. Searched the house of acquitted co-accused Inam Ali in presence of the aforesaid mashirs. From the house of the father of this accused, whose name was Khuda Bux, the S. H. O. Secured two licensed double-barrelled, guns of Kadir Bux which were covered by his licences for: the guns. A mashirnama regarding this recovery Exh. 24 was prepared. These two double barrelled guns were also made into a sealed parcel then and there. The S. H. O. Then recorded statements of certain two witnesses under section 161, Cr. P. C.
On 20.5-1968 he sent the appellant Mir Mohammad for making judicial confession before the Civil Judge and F. C. M., Ratodero Mr. Faizul Hassan (P. W. 2) and the appellant made a judicial confession which has been produced on record as Exh.
9. He was, thereafter, remanded to judicial custody. After completing most of the investigation the S. H. O. Sent up interim challan against the culprits in the Court on 2-6-1968. After completing the entire investigation he submitted the final challan on 5-6-1968 to the same Court. During the course of investigation he had sent all the blood-stained articles under sealed parcels to the Chemical Analyser for examination and report, whose report he has produced as Exh.
26. The report is in the positive regarding all the articles, which shows that the hatchet from the appellant and his clothes also secured from his person were found to be stained with blood from human origin. The S. H. O. Also despatched two double- barrelled guns, one single barrel gun, one pistol and two empty cartridges under sealed parcels. To the S. P., Larkana for forwarding the same to Ballistic Expert for opinion and this was accordingly done by the S. P., Larkana. The Ballistic Expert Mr. Mukhtar Ahmed (P. W. 1) has been examined and his report shows that he found the two empty cartridges sent to him along with the pistol were fired from the pistol and not from the gulls which had also been sent to him. After being sent up to the Court of law the appellant and his companions were committed to the Court of Session to stand their trial. In due course of time they were tried by the learned Additional Sessions Judge aforesaid with the result already mentioned above.
4. The appellant when questioned under section 342, Cr. P. C. At the trial stated that before the present incident he had suspected his deceased wife Mst. Mehar Khatoon to be on terms of illicit intimacy with deceased Rasool Bux son-in-law of the com--plainant and as such he had turned out his wife from his house and she started living in the house of her father, the complainant thereafter. She had lived in the house of her father for about three years before the incident. He denied that the acquitted two co-accused had committed the murder of any deceased. He frankly admitted that he had produced his blood-stained hatchet before the S. H. O. Who had also secured his vest, loin-cloth and shirt all blood-stained from his person. He categorically further admitted that all these articles were stained with human blood. He also admitted that these articles belonged to him. Regarding his judicial confession also he admitted that he had given this confession voluntarily and it was true and further asserted that whatever was mentioned in this confession was also true. In his confession he had raised the plea of grave and sudden provocation for having killed the two deceased himself alone and be stuck to the same story in his statement at the trial. In answer to the last question put to him he stated his own version of the incident as follows: - "I married Mst. Mehar Khatoon the daughter of Abdul Halim. Mehar Khatoon lived in my house for a period of 1-- years. After this I suspected Mehar Khatoon to be in terms ,of illicit intimacy with Rasool Bux who was married to Mst. Shahzadi the sister of Mehar Kahtoon. On this I turned out MO.
Mehar Khatoon from my house and after that Mst. Mehar Khatoon started living in the house of her father Abdul Halim. At that time I had one minor daughter from Mehar Khatoon and accordingly on some occasions I used to go secretly in the house of Abdul Halim in order to see my daughter as I used to love my daughter.
On the night of the incident at about 9-45 p. , I went in the house of my father-in-law in order to meet my minor daughter secretly. At that time I had a unlicensed country--made pistol present in the Court with myself and 2 live cartridges and the hatchet present in the Court. I made entry in the courtyard of the house of my father-in-law Abdul Halim. I saw Rasool Bux and Mehar Khatoon sleeping together on the cot in the courtyard of the house.. At that time MsL, Arbab, Mst. Salcha and Allahdino were also sleeping on the cots ---i" the courtyard of the house of Allxhdino and Abdul Hamid. At that time two hurricane lamps present in the. Court were burning. At that time I saw Rasool Bux and Meliar Khatoon sleeping together in the lap of each other and flirting with each other. On this I got grave and sudden provocation. First I fired pistol present in the Court at Mehar Khatoon as the result of which she received pistol shot injuries and she died at the spot. I fired only one pistol at Mehar Khatoon, I bad still one live cartridge with me in the pistol. I went and inflicted hatchet blows with sharp side of the hatchet to Rasool Bux as the result of which Rasool Bux received hatchet injuries and he also died at the vardat of this crime. After this I fired the second cartridge with the pistol with which I was armed and accord. Ingly I left the pistol at the vardat of this crime and took away the blood-stained hatchet with myself. When I inflicted injuries with sharp sides of the hatchet to Rasool Bux my clothes i.e shirt, banyan and loin-cloth were stained with blood. After this I went alone to P. S. Naodero posthaste on the night of the incident and reached P.
S. Naodero and surrendered myself voluntarily to S. H. O. Fazal Mohammad of P. S. Naodero and produced before him my blood-stained hatchet and he also secured from me blood-stained shirt, blood-stained banyan and blood-stained loin-cloth which I was wearing at that time on icy person.
At night time I used to sleep at my dera an so m order to keep watch over. The grain in my dera, I - used to keep with myself the country-made pistol present in the Court. On that night before going to the dera I had wanted to see my minor daughter in the house of Abdul Halim and accordingly I went there."
5. Neither the appellant nor the acquitted co-accused hart led any evidence in defence.
6. There can be no manner of doubt that the two deceased persons i.e. Mst. Mehar Khatoon wife of the appellant and deceased Rasool Bux were killed. The appellant himself admits having killed them both. Furthermore, Dr. Rafique Ahmad has performed post-mortem examination on the dead bodies of both these deceased. He in his deposition in the committal Court which was brought on record of the trial Court as Exh. 27, stated that he found the following 13 external injuries on the dead body of the deceased Mst. Mehar Khatoon: -- " (1) A lacerated wound 2" x 1 x cavity deep over right cheek going back towards the back of skull fracturing the right mandible and the base of skull with blackening of edges present.
(2) Lacerated wound 2' x 1" x bone deep over front of neck obliquely fracturing thyroid carrliage.
(3) A lacerated wound 3" x 1--" x bone deep lateral to injury No. 2 and fracturing the cavical vertebrae.
(4) Lacerated wound -- x --" x bone deep just below the right nostril fracturing the maxila along with two teeth with blacken--ing of edges.
(5) A lacerated wound 3/4' in diameter into bone deep at the outer and upper edge of injury No. 3.
(6) Two lacerated wounds each --" in diameter just below eye lid and fracturing the bone.
(7) Lacerated wound --" x --" x bone deep over right cheek laterally.
(8) A lacerated wound 1-- x 3/4" x skits deep with charting present over the right mandible.
(9) Lacerated wound --' in diameter into cavity deep with charrings present above the right eye- brow.
(10) Lacerated wound --" in diameter into muscle deep over the middle of front of right upper arm.
(11) Lacerated wound --" in diameter into muscle deep at tire root of neck on right side.
(12) Two lacerated wounds --" in diameter each into muscle deep with charring below the right ear.
(13) Two lacerated wounds each --" in diameter into skin deep over the right upper eyelid with charring present."
7. One-the internal examination of the dead body he found the skull bones were fractured and the brain was lacerated corresponding to external injuries already mentioned. He secures two pellets from the clavical cavity. He also secured pellet front injury No. 3 puncturing the pleura and the right lung i.e. Right pleura cavity. The external injury No. 2 had punctured, the Trachea. , Heart and stomach of the deceased were fund empty.
8. In the opinion of the doctor the death of this deceased was the result of shock and haemorrhage on account of the injuries mentioned above which were anti-mortem. He also opined that these injuries were caused by the discharge of a fire- arm from the distance of about 12 feet. He further stated that injuries Nos. 1, 3 and 9 were individually and all others were collectively sufficient to cause death.
9. On the external examination of the dead body of the deceased Rasool Bux he found the following 6 incised wounds on it:- "(1) Incised wound semi-circular extending from near the mole on the right cheek running over and cutting the nose into two along with the underlying nosal bones and the right maxila and cutting and ending at the right end of the upper lip.
(2) Incised wound 6" x 2' x cavity deep over the left from to parietal region vertically cutting the bone in meninges and the brain.
(3) Incised wound 2' x 1--' x bone deep obliquely over the left half of the occipital region chapping of the superficial position of the bone.
(4) Incised wound, 1 x 3/4' x bone deep over back of left wrist.
(5) Incised wound 3' x --" x muscle deep over left side of neck cutting the muscles and major vessels.
(6) Incised wound 1--" x. 3/4' x muscle deep on front of neck on the left of mid line."
10. On the internal examination of the dead body of the deceased Rasool Bux he found the skull bone and the brain were cut corresponding to external injuries mentioned above. The heart was empty and stomach contained semi-digested food.
11. The doctor opined from the external and internal examination of the body of this deceased that the death has been caused as a result of shock and haemorrhage consequent upon the injuries mentioned above. All the injuries, according to him, were anti-mortem and injuries Nos. 1, 2 and 5 individually and all collectively were sufficient in the ordinary course of nature to cause death. He also lastly opined that all the injuries appeared to have beets caused by sharp-cutting weapon like a hatchet. In his cross--examination he stated that the injuries on the person of deceased Mst.
Mehar Khatoon could be the result of one gunshot injury.
12. There is no reason not to believe the doctor and the appellant has also admitted having killed the two deceased, there--fore, I find that the prosecution has proved beyond a reasonable doubt that both the deceased were killed by receiving the injuries alleged by the prosecution.
13. It will be seen from the recital of the facts given above that the appellant admits having killed both the deceased person but he raises a plea of grave and sudden provocation although According to the complainant and the other eye-witnesses they negative the story of the grave and sudden provocation raised by the appellant and alleged that not only the appellant but the acquitted two co-accused committed the two murders of the two deceased persons deliberately.
It is needless to say that the eye--witnesses including the complainant who are all close relations Inter se and also related to both the deceased have been disbelieved by the trial Court so far as the commission of the crime by the two acquitted co-accused, the alleged companions and the appellant, is concerned. This shows that the prosecution witnesses have been disbelieved as regards some part of their evidence whereby they had implicated the acquitted two co-accused.
This would obviously put the Court of, law on caution to look for corroboration of the version advanced by these two eye-witnesses as they have innocently implicated the two acquitted co- accused and unless their oral version are corroborated by some indepen--dent strong evidence no implicit reliance can be placed on their word. This corroboration in the instant case, I must say, is lacking. On the contrary there are facts and circumstances on record which I shall presently advert to which go to show that the deceased Mst. Mehar Khatoon wife of the appellant was of immoral character and it is well possible that she was having an illicit liaison with the deceased Rasool Bux even during the days of the occurrence. It is in evidence on record that deceased Mst.
Mehar Khatoon was married to a previous husband before getting married to the appellant and that husband had divorced her because the too had suspected her of unchastity. The appellant appears to have married her subsequently because be was her relation and can well have expected her to mend her ways after marrying him. The evidence also shows that deceased Mst.
Mehar Khatoon was driven out by her husband, the appellant, from his house about three years before the occurrence because the appellant suspected her to be on illicit terms with deceased Rasool Bux. This has been admitted by the complainant himself in his cross-examination. It is also in evidence that on the dead body of the deceased Mir. Mehar Khatoon a ring was found on her finger with the initials of deceased Rasool Bux, who is alleged td be her paramour by the appellant.
This circumstance also shows that the deceased Rasool Bux might well be having illicit connections with her to the knowledge of the appellant and that is why he had not taken her back into his house for three years for which time she stayed in the house of her father before her death.
In the confession of the appellant he has stated that even before his marriage with his wife deceased Mr. Mehar Khatoon the latter and deceased Rasool Bux had illicit connections which teas within his knowledge and on one day he had seen both of them engaged in kissing and caressing.
He had also rebuked his wife and beaten her too. He then told these facts to his father-in---law, the complainant, who on the contrary held the appellant to be wrong and took the side of his wife, whom he made to live in his house thereafter. The appellant further asserts in his confession that on the night of occurrence he had suddenly gone to the house of the complainant at 11 p.m. Where he saw that his wife deceased Mehar Khatoon add adulterer deceased Rasool flux were lying together on the same cot embracing one another and engaged in kissing and caressing. Seeing this he became very much provoked suddenly and he had a country-made pistol and a hatchet with himself. Out of Ghairat he then fired his pistol at his wife and attacked deceased Rasool Bux with the hatchet and he killed both of them on the spot. He also admits therein that thereafter he had come straight to the Police Station Naodero with his hatchet where he surrendered before the S. H. O. Who arrested him. In his statement under section 342, Cr. P. C. He stated that on some occasions he used to come secretly to the house of the complainant in order to see his daughter as he used to love her very much. He further adds that on the night of the incident at about 9-45 p.m. He went to the house of his father-in-law in order to meet his minor daughter secretly, and there finding both the deceased sleeping together on the same cot in the courtyard of the house killed both of them. He had found them in the lap of each other and flirting as a result of which he had received grave and sudden provocation due to which he killed them both. He also admitted that after killing both the deceased and dropping his pistol at the scene of offence he had gone straight to the Police Station Naodero where he surrendered himself voluntarily before the S. H. O.
Fazal Mohammad and produced before him blood-stained hatchet and the clothes which he was wearing at that time. He further added that at night time he used to sleep at his dera and was possessing a country-made pistol in order to keep guard over the grain. He used to keep with himself the country-made pistol and on that night before going to the dera he wanted to see his minor daughter in the house of the complainant and accordingly he went there and the two deceased had been killed by him.
13. As the appellant admits having killed the two deceased in this case but raises the plea of grave and sudden provocation: The only point that arises for consideration is whether his plea of grave and sudden provocation is true or not? The only facts that run counter to it are that at the scene of offence which was the common courtyard of the two houses of the complainant and Allahdino where all the eye-witnesses were also sitting along with both the deceased on different cots how is it possible for the two deceased to have been in each others lap and kissing and caressing each other. This part of the version of the appellant, therefore, appears to me to be not true and he has added it himself in order to make out a clear case of grave and sudden provocation i.e Karo Kari and being found engaged in kissing and embracing each other. But it appears to me to be quite likely regard being had to the common course of natural events and human conduct that the appellant must have found both the deceased sitting together on one cot and thereby he was gravely and suddenly provoked, as he already knew about the unchastity of his wife deceased Mst.
Mehar Khatoon. The question, therefore, is that whether on seeing his wife and her lover sitting together on the same cot it would cause such a grave and sudden provocation to the accused as to cause loss of self control on himself and thereby he caused the murders of two persons which might entitle him to the pier falling under Exception I to section 300, P. P. C. i.e. Of grave and sudden provocation. In this respect I am of the opinion that under such circumstance a person having seen his wife sitting together with her known lover is very likely to cause grave and sudden provocation and thereby loss of self-control resulting in his killing both the persons. This is particularly so in the class of persons i.e. The villagers, to which the appellant belongs and the killing of Karo and Kari is common among them. I am also fortified in this view by the case of Noukar Mouledino v. Emperor (AIR 1937 Sind 212) where it was held that the accused finding his wife and her paramour together in his house but not in actual act of intercourse killed his wife and on these circumstances benefit of Exception I to section 300, P. P. C. Was given to him and the offence was held reducable from murder to culpable homicide not amounting to murder. On similar facts another similar decision has also been given in the case of Rehman Shah v. Grown (AIR 1925 Lah. 114). Yet another reported case that is Des Raj v. Emperor (29 Cr. L J 454) is on all fours with the facts and circumstances of the present case and it was held in it as follows:- "Where the accused found seated on the same charpoy with his wife her paramour whom he had expelled from his house only a day previously. It was held that the accused must be considered to have received a grave and sudden provocation."
14. Even the learned Judge of the trial Court in his judgment at page 134 of the paper book has expressed after referring to relevant facts that it is proved on the record that Mst. Mehar Khatoon was evidently in terms of illicit intimacy with deceased Rasool Bux and her husband the present accused Mir Mohammad knew it, as such be had turned her out of his house and at the time of the present incident deceased Mst. Mehar Khatoon was living along with her daughter in the house of her father where Rasool Bux also used to come. The learned Judge has further expressed giving circumstances in the evidence that the possibility that accused Mir Mohammad at the time of the present incident was armed with pistol and with hatchet and he fired pistol shot at Mst. Mehar Khatoon as a result of which she received pistol shot injuries and he inflicted injuries with the sharp side of the hatchet to Rasool Bux as, the result of which Rasool Bux received hatchet injuries axed both of them have done to death cannot be excluded. On these views of the facts the learned trial Judge should have believed the plea of grave and sudden provocation raised by the appellant while he disbelieved the story of the prosecution regarding the commission of the crime also by the alleged other two companions of the appellant. It is surprising how then he has not given effect to the plea of grave and sudden provocation while himself expressing a finding showing the facts that this plea was available to the appellant. The only reason given by the trial Judge for not acting on the plea of grave and sudden provocation is that in his view, it was not possible to believe that in presence of the complainant and the eye-witnesses at the scene of offence both the deceased could be engaged in kissing and caressing each other. As I have already said this may not be so but the very fact that the appellant found both the deceased persons i.e. The known lovers, one of them being his wife, sitting together this sight by itself would be sufficient to give cause grave and sudden provocation to the appellant as a result of which he killed both the deceased on the spot.
The confession and the statement of the appellant at the trial Court, therefore, I find states substantially the true facts regarding his grave and sudden provocation and the same is acceptable particularly when the evidence of the complainant, and the other eye witnesses is such that it requires corroboration due to the reason already mentioned above by me which is that they have wrongly and falsely implicated the two other innocent persons along with the appellant.
15. For the foregoing reasons I find that the appellant is guilty of culpable homicide on grave and sudden provocation and I, therefore, set aside his conviction and sentence under section 302, P. P.
C. And substitute therefore a conviction under section 304, Part I, P. P. C. And sentence him to seven years' R. I. As he has committed double murder. With this modification in the conviction and sentence the appeal of the appellant is dismissed.
16. We had announced the above decision on 21-1-1972 after the conclusion of the arguments of the learned counsel of both the sides, out of whom the learned counsel for the State frankly and candidly admitted that the appellant was entitled to the plea of grave and sudden provocation on the facts and circumstances of this case, and have now given the reason therefore.
MUHAMMAD HALEEM, J.----I agree.