1. ' MUHAAMAD GuL, J.-The petitioner herein was convicted and sentenced to death by an Additional sessions Judge, under section 302, P. P. C. For causing the death of his wife's sister Mst. Zohra and to R.
1. For 7 years and a fine of Rs, 1,000 under section 307, P. P. C. For the attempted murder of the deceased's husband Manzoor Ahmad (P. W. 1). On appeal and reference to the High court, the petitioner's convictions as aforesaid were maintained, but sentence of death on the capital charge was reduced to imprisonment for life vide judgment dated 8-3-1914, against which the petitioner now seeks leave to appeal.
2. ' The deceased and her husband used to live with the petitioner and his wife in the same house.
3. Muhammad Azam Khan ( P. W. 2) has a house in the neighbourhood. On 26-6-1969 at t I a.m.
4. Yousaf (P. W. 4) told Muhammad Azam Kuan that the former had Lewd report of gun shots in the house of the petitioner. Both Alarm Kuan and 1Vluhaurmad Yousaf alongwith Fazal-ur-Rehman went to the house of the petitioner, where they saw the petitioner with a revolver in his hand with which he pointed out that ire had killed his sister-in-law and her husband. Azam Knan went to klaidia Police Post, and informed trio police about the incident. He returned to the petitioner's house with two constables, who fouuu that Mst. Zohra lay dead inside the room, male her husband Manzoor Anmad lay injured in the verandah. Fire police constable caught hold of the petitioner with the revolver and 10 live cartilages and took him to the police post. Later, on the basis of the report made at the police post, F. I. R. Was registered at P. S. Chakwara. On the following day, the petitioner, appeared before the Additional City Magistrate, Karachi, before whom he made a confession, which for the material purpose read:- ' In my view Manzoor and his wife deceased were of doubtful character. I, therefore, admonished those 3-4 times to desist from such infamous ways before this incident. The deceased and her husband used to return home late at night. In spite of my admonisation no result was noticed. 1 also informed the lather of Manzoor but without result. Yesterday at about 6-30 a. m. 1 went to Saddar to purchase 20 bullets of my revolver of which 1 hold licence. After buying twenty bullets I returned home at aoout 10-30 a. m. When 1 had left my house in the morning Manzoor and his wife were abrent since the whole night. But wuen I returned home at i0-301 found that Manzoor and his wife had returned home. 1 enquired from them about their absence for the night. I was told that 1 had no right to interfere in their affairs. Manzoor's wife told me on my giving her oath that she had been subjected to prostitution by her husband as a taxi girl and when I tried to confirm this from Manzoor, who was relaxing on the cot, he told me that Zohiran Bibi was his wife and he could do anything he liked, This reply irritated me and I went out of control and shot two times Zahiran Bibi who died on the spot. Thereafter I shot Manzoor 7 bullets and six bullets hit him. Thereafter I informed a man of the Mohallah to inform police."
5. ' During the investigation, 9 empties were recovered from the spot, which according to the Ballistics Expert matched the revolver earlier secured from the petitioner alongwith 10 live cartridges.
6. ' The medical evidence also showed that Mst. Zohra died of two bullet wounds, of which No, 1 was sufficient in the ordinary course of nature to cause death. Manzoor Ahmad on the other hand had as many as six bullet injuries on different parts of the body. The petitioner in his statement at the trial again admitted having caused the death of Mst. Zohra and the bullet injuries to her husband Manzoor Ahmad, but raised the following plea in mitigation of his offence:- "When I entered the house. I found that Manzoor had caught hold of my wife and was dragging her, asking her to go with him. I asked from my wife, who told me that Manzoor was forcing her to go with him for prostitution. Pistol was lying there. Under sudden and grave provocation, I picked the revolver and shot at Manzoor. I blacket out. I fired all the six shots and I do not know what happened further."
7. ' He further admitted that he was caught at the spot alongwith the revolver and on being questioned as to whether he would like to say anything else, the answer he geve was, "1 have done what any person with ghatrat would have done."
8. ' The petitioner's wife Mst. Azhra, who admittedly was present in the house at the time of incident, was also examined in the case. She also supported the petitioner's plea of grave and sudden provocation. She stated in her evidence that the deceased and Manzoor Ahmad tried to seduce her for prostitution which She not only refused, but also tried to disuade them from the infamous life they were leading. On the day of the incident, as the deceased and her husband were again trying to seduce her, the petitioner also came and on his enquiry, she told him that they were asking her to accompany them on their errand of infamy. This provoked the petitioner, who lost self-control and took out his revolver with which he fired at the deceased and her husband.
9. Learned counsel for the petitioner did not dispute the findings of the trial Court and the High Court that Mst. Zohra died of the fire-arm injuries caused to the deceased by the petitioner. He, however, submitted that o the statements of the petitioner at his trial and his wife (P. W. 11), who admittedly was present at the time of incident, the petitioner's case fell squarely under the first exception to section 300, P. P. C. It was stressed that even the judicial confession recorded by the Additional City Magistrate also supported the plea of sudden and grave provocation.
10. ' The point urged by learned counsel needs consideration. Accordingly, leave is granted to consider whether on the facts on record, the offence proved against the petitioner would fall under section 304, P. P. C.