MUHAMMAD HALEEM, J.-Appellant Kalandar Bux stands convicted under section 302, P. P. C. For the murder of his wife, Mst. Bachai and sentenced to death by the learned Sessions Judge, Khairpur Mirs vide judgment dated 28th July 1971. He has appealed against the conviction while the learned Sessions Judge has referred the case for the confirmation of death sentence. This judgment will dispose of both the matters.
2. According to the prosecution case, the incident occurred at 12-30 p .m. On 26th May 1970 in the house of the appellant at Kot Diji, Taluka Khairpur. Mst. Wasai, the mother of the deceased, was employed as a cook by Mir Atta Hussain. As usual she went to cook in the morning and. Returned at 12-30 p.m. Thereafter she took meal for the deceased and as she came near her house she heard her cries and on entering the house she saw the appellant causing hatchet blows to the deceased, whereupon she raised cries which attracted her other daughter, Mst. Mithan, and Kauro who also saw the appellant giving hatchet blows. After the deceased fell down the appellant ran out of the house along with the hatchet. The deceased expired at the spot. Mst. Wasai hastened to Police Station Kot Diji, which is 3 furlongs away, where she lodged the F. I. R. At 1 p.m. Giving out the reason that the deceased was murdered because site did not agree to live with the appellant in his house at village 'Bungalow'. Soon after the F. I. R. Was recorded, the appellant appeared at the Police Station along with the blood-stained hatchet. He was arrested and his blood-stained hatchet, shalwar and chappals were secured vide Mashirnama, Exh.
8. Thereafter Abdul Hafeez Beg S. H. O.
Repaired to the wardat, where he saw the deceased lying on the ground. He secured the blood- stained earth vide mashirnama, Exh. 17, and sent the dead body to the Civil Hospital, for post- mortem examination. He next recorded the statement of Mst. Mithan, Mst. Zuhra, Mst. Khairan, Kauro, Rasool Bux and others. The appellant volunteered to confess and his confession was recorded by Mr. Imdadullah, S. D. M , Mirwah on 27th May 1970.
3. Dr. Sanjida performed autopsy on the body of the deceased and noticed the following injuries:- "(I) One incised wound measuring about 5' x 3' x bone deep on left mandiboural region, cutting the left mandiboural muscles and vessels.
(2) One incised wound 3" x 2' x 2' about 1' below injury No. 1".
According to her, injury No, 1 was sufficient in the ordinary course of nature to cause death and that both the injuries were caused by a sharp---cutting weapon, such as hatchet.
4. When called upon to enter defence the appellant admitted having killed the deceased but pleaded grave and sudden provocation. This is what he stated in the committal Court: "As soon as I entered my house I found my wife Mst. Bachai kissing and embracing while lying on a cot with Bago Sohoo. Bago Sohoo ran away having seen me and due to this sudden and grave provocation I took a hatchet lying near the fire place and gave blows to my wife in lying position at that very cot and rushed behind Bago Sohoo, 'Karo', but he escaped. I then went to police station. I shall give my further statement in the Court of Session."
At the trial he stated that they were in a compromising position but other--wise the stand is the same. While be admitted in the committal Court having appeared at the police station along with the hatchet and also the seizure of the incriminating articles, yet he denied this fact at the trial. In both the Courts he admitted having confessed and owned the confession without resiling from it.
5. While giving out the motive Mst. Wasai stated that the deceased was married to the appellant about 5 years back but 2 or 3 years before the incident her mother-in-law Mst. Shana wanted her to lead an immoral life which she refused, upon which she was maltreated and beaten. She, there- -fore, left her husband's house and came to reside with her mother. The appellant came to her for reconciliation but she refused to accompany him to his house. Having no other option he stayed with her in the same house, but later on Mst. Wasai gave a vacant plot to him which was adjacent to her house where he constructed a room with a hedge around it. Mst. Bachai gave birth to two sons while living with the appellant in that house. About a month before the incident the appellant wanted to take her to his house on the pretext that his relatives were talking ill of him for living with his mother-in-law but the deceased refused to accompany him. Both of them quarrelled on this issue and the appellant was, annoyed over her refusal to accompany him.
6. The prosecution examined Mst. Wasai, Kauro and Mst. Mithan who gave direct evidence in the case while Mst. Wasai is the mother of the deceased, Mst. Mithan is her sister. Kauro is the deceased's. Sister's son-in-law. Mst. Wasai when examined not only gave evidence with regard to the motive but also stated that on entering the house she saw the appellant giving blows to her deceased daughter who was sleeping on the cot, where upon she raised cries which attracted Mst, Mithan and Kauro, who a so witnessed the incident. In cross-examination she stated that she "saw the deceased when she was struggling for her life" and if she had stated earlier that she was sleeping it must have been said by her in the context of the fact that she was lying on the cot and that that she could be asleep while blows were being given to her. She denied having taken Rs. 1200 as compensation for her marriage to the appellant on being divorced by her first husband, Mehrab Gopang. She had lodged the F. I. R. Within half an hour of the incident and in this context it is not possible to doubt her presence at the wardat, for it could not have been possible otherwise to lodge the F. I. R. In such a shot time. Besides, nothing has emerged from her cross-examination to doubt her presence. The second witness is Kauro who resided 30 paces away. He stated that he was attracted on the cries and he and Mst. Mithan rushed towards the house of the deceased, and saw the appellant giving the hatchet blows to the deceased. The appellant thereafter ran away along with the hatchet. He is a taxi driver. It was suggested to him that he was not at his house at that time, which he denied. His name having transpired in the F. I. R. Shortly after the occurrence, it is not possible to doubt his presence.
7. Mst. Mithan is the third eye-witness. She lived in a separate house near that of the deceased, within the same compound. She stated that tit the time of the incident Kauro was also with her in the house and both them heard the cries of the deceased, whereupon their ran towards the houses of the deceased and saw the appellant inflicting hatchet blows and escaping along with the hatchet. Her name is also mentioned in the F. I. R. And noth--ing has emerged from her cross- examination to doubt her presence. Besides the ocular testimony, there-As the disinterested evidence of Rasool Bux who is a shopkeeper and had seen the; appellant with a blood-stained hatchet in his hand while he was going to his house. On questioning the appellant he was told that he had killed his wife. There is nothing in his cross-examination to doubt his evidence either. Mst.
Zuhra is another corroborative witness. She is the sister of the deceased and lived 40 paces away.
She reached the house of the deceased after the; appellant had escaped but she was told by her mother, Mst. Wasai that the appellant had run away after giving hatchet blows to the deceased.
She also saw Mst. Mithan and Kauro along with Mst. Wasai. She was not cross-examined to dispute the presence of either Mst. Wasai or the other two eye-witnesses. There is, therefore, no reason to doubt her evidence.
8. Apart from the evidence discussed above the appellant has admitted having killed the deceased but at the same time pleaded grave and sudden provocation. In this content' it will be pertinent to refer to his confession which runs thus:-- "I had contracted wheat with Gul Muhammad Baloch on behalf of Seth Somomal. He accepted the sample of wheat and he went from village Bungalow to Khairpur and asked me that he will supply Bardana (bags) etc., in the evening and then I will weigh the same. I thereafter went to my house at Kot Diji at about 12 noon. Outside my house I saw through the hedge hole that Bago Sohoo was sitting in embracing position with my wife Bachai. I raised my head when they saw me. As soon as I took turn and went inside the house, Bago scaled the northern wall of my house and ran away. I took the hatchet of cutting two three blows of hatchet to my wife Mst. Bachai. She was lying on the cot. I gave blows there. There was no body else excepting my children: After that I went straight to the police station with my hatchet? And lodged the F. I. R. And produced that hatchet there also. No body met me on the way to whom I had narrated these facts: The police arrested me and willingly said to give such confession. I now give statement today that my wife was on illicit terms with Bago accused; therefore I have murdered her."
Reading together the confession and. His statements recorded in the Courts below we find that the two are not wholly consistent. While in the confession he stated that through the hedge hole he saw, the two embracing each other, in the statements he took the stead that they were lying on a cot kissing and embracing and further that he surprised them upon having entered the house. It is not possible to accept that Bago Sohoo could have managed to escape when there was only one entrance to the room unscathed and that the deceased would continue lying on the cot without making an effort to save herself. Again if they were in .a, compromising position, the deceased would .Not have been found fully clothed. It was also likely that Bago Sohoo would also have left some articles of clothing if it were to be accepted that he was engaged in the sexual act. Besides no one saw Bago Sohoo. " The appellant did not also tell Rasool Bux whom he met on the way that he had killed the deceased on account of grave and sudden provocation. Moreover, it is inconceivable that Bago Sohoo could have visited the deceased for this purpose at that time of the day when there was any likelihood of being detected. One fact, however, remains to be considered and that is that the autopsy report, Exh. 23, shows that there was a whitish discharge in the vagina which was extracted and sent to the chemical analyser, but there is nothing to show as to what this which discharge was since the report of the chemical analyser is not on record The doctor was not even questioned as to what it could be and in the circumstances, it is not possible to say that this was semen. According to the doctor, one of the two injuries could have been caused while she was lying on a cot, but having regard to the circum--stances of the case it cannot be accepted that she was engaged in the sexual act. It is apparent that at that time of the day she was resting and the appellant had caused one such blow while she was lying. The trial Court also rightly repelled the plea of grave and sudden provocation and we also do so accordingly. The prosecution has proved its case beyond reasonable doubt. We would accordingly maintain his conviction. As for the sentence, the appellant has caused two hatchet blows and in doing so has acted in a cruel manner. We do not see any justification to take a lenient view of the sentence. Accordingly while dismissing the appeal we would confirm the death sentence and accept the reference.