' Shah Ali son of Jani, caste Khalilani, aged 42 years has been convicted under section 302, P. P. C.
And sentenced to imprisonment for life for the murder of his wife Mst. Khairi vide judgment dated 2-10-1971 of the Additional Sessions Judge, D. G. Khan. His co-accused namely, Murad Ali his brother and Wazir were acquitted. The appeal of the convict is before me which is being disposed of by this judgment.
2. The occurrence took place on the 26th of March, 1970 at 'dhali maghribwella' (about 9 p.m.) at the tubewell of Ghulam Murtaza within the area of Islampur at a distance of 12 miles from the Police Station Dajab. The statement Exh. P. A. Was made by Siraj Ahmad (P. W. 6) at 11 p.m. On the same day at Islampur which was recorded by Muhammad Hassan Sub-Inspector (P. W. 8) who had gone there in connection with the murder of Budha. The formal F. I. R. Exh. P. A./1 based on the aforementioned statement was registered at the Police Station Dajab at 2 a.m. On the 27th March 1970, by Nazir Ahmad Khan Sub-Inspector (P. W. 9).
3. The motive for the crime as set up by the prosecution is that Mst. Khairi wife of the appellant had been carrying on illicit liaison with Budha deceased and that, therefore, her husband had killed her.
4. The prosecution has produced two eye-witnesses namely Siraj Ahmad (P. W. 6) and Nabi Bakhsh (P. W. 7). Nabi Bakhsh son of Mohammad stated to be an eye-witness in the F.
1. R. Was given up as having been won over. Two eye-witnesses produced by the prosecution are not related or A connected with the deceased in any way nor they have any enmity against the appellant. They are, therefore, unconnected and independent witnesses belonging to the locality.
5. The appellant as well as the acquitted co accused were arrested on the 27th of March 1970 by Nazir Ahmad Khan Sub-Inspector (P. W. 9). The relevant recoveries in this case are blood-stained chaddar Exh. P. 1 and blood-stained shirt Exh. P. 2 got removed from the person of the appellant at the time of his arrest and taken into possession vide memo. Exh. P. C. Dated 27-3-1970. The attesting witnesses of this recovery are Siraj Ahmad (P. W. 6) and Malik Noor Din (P. W. 11) the blood-stained hatchet Exh. P. 3 got recovered at the instance of the appellant and taken into possession vide memo. Exh. P. D. Dated 27-3-1970, and the attesting witnesses of this recovery are the same.
6. According to the report of the Serologist Exh. P. U. The chaddar Exh. P. 1 and the shirt Exh. P. 2 as well as the scrapings from the hatchet Exh. P. 3 were found to be stained with human blood.
7. Dr. Khurshid Ahmad conducted the post-mortem examination on the dead body of the deceased at 4 p.m. On the (?) March, 1970 and found on her person the following injuries:-
(1) Incised wound on the back of head.
(2) Incised wound on the back of neck.
(3) Incised wound at the left shoulder.
(4) Abrasion on the right shoulder.
(5) Abrasion on the right scapula.
(6) Abrasion on the back of lumber area.
' Injuries Nos. 1, 2 and 3 were caused by sharp-edged weapon whereas the rest were caused by blunt weapon. In his opinion the cause of death was due to injuries Nos. 1 and 2 which were sufficient to cause death in the ordinary course of nature. Injury No, 1 cut the brain matter whereas injury No, 2 cut the blood vessels of neck.
8. The appellant in his statement before the trial Court totally denied having participated in the occurrence. He disowned the chaddar Exh. P. 1, shirt Exh. P. 2 and the hatchet Exh. P. 3 and stated that he has been falsely implicated due to the enmity of the P. Ws.
9. In the F. I. R. The occurrence is reported to have taken place in the following manner:-Siraj Ahmad P. W. While coming towards Islampur on the fateful day saw Murad All and Wazir acquitted co- accused carrying tongi and proceeding towards Budhshahali. He enquired from them as to who was ill that they were carrying on the tongi. In reply Wazir acquitted co-accused told him that he should mind his own way. This answer made Siraj Ahmad P. W. To suspect that in the tongi was lying a dead body. On his arrival at Islampur he went to Malik Noor Din, Member, Union Council (P.
W. 11) and told him about his suspicion. Malik Noor Din P. W. Instructed Nabi Bakhsh Chaukidar (P. W.
7) as well as Nabi Bakhsh son of Mohammad (not produced) to go with Siraj Ahmad P. W. To Budhshahali and to find out as to what the matter was. Thereafter when these three while proceeding towards Budhshahali arrived at the tubewell of Ghulam Murtaza at about 9 p.m. They saw the appellant, Murad All and Wazir acquitted co-accused as well as Mst. Khairi wife of the appellant. The appellant and the acquitted co-accused were dragging her towards a bush and she was raising hue and cry. Then near the bush she was done to death with hatchet blows and they placed near her the dead body which was lying in the tongi. Siraj Ahmad P. W. Saw the occurrence alongwith Nabi Bakhsh (P. W. 7) and Nabi Bakhsh (not produced) in the light of torch.
When he advanced to interfere he was told by the appellant and the acquitted co-accused that they had murdered the deceased on account of `Ghaie-at'. Thereafter carrying their hatchets they went towards the forest. While Siraj Ahmad P. W. Was proceeding to report the matter at the Police Station Dajab, the Investigating Officer arrived at the spot in connection with the murder of Budha deceased.
10.I have heard the learned counsel for both sides and carefully perused the record. The case of the prosecution against the appellant is based on the ocular testimony of Siraj Ahmed and Nabi Bakhsh P. Ws. Which is corroborated by the recoveries made from the appellant, namely, chaddar Exh. P. 1 and shirt Exh. P. 2 as well as the hatchet Exh. P. 3, opinion of the Serologist respecting these articles as well as the medical evidence. The motive is that the appellant had suspected that the deceased was carrying on illicit liaison with Budha deceased who had already been murdered. His case is not before me. According to the eyewitnesses Budha's dead body was brought to the tubewell of Ghulam Murtaza in a tongi by the acquitted co-accused and that at that tubewell the deceased was murdered by the appellant with hatchet blows. Thereafter the dead body of Budha was made to lie besides the dead body of the deceased. The appellant has stated in his statement before the trial Court that he did not suspect his wife having illicit liaison with Budha deceased. In fact he had totally denied having participated in the occurrence. The report of the Chemical Examiner Exh. P. T. Is to the effect that the vaginal swabs of the deceased were found to be stained with semen. Since the deceased was a married woman there is every likelihood that sexual intercourse had been committed with her before her murder by her husband if not the paramour.
Any way although the evidence to the effect that the deceased was found in compromising position with the paramour and that the appellant on account of grave and sudden provocation killed her is not before me, what can be inferred from the testimony of the eye-witnesses is that the appellant had suspected the deceased for carrying on illicit affair with Budha deceased. In any case, the case of the appellant would be covered by Exception I to section 300, P. P. C. And he should have been convicted under section 304, Part I, P. P. C.
11.In the light of what has been discussed above the conviction of the appellant is altered from section 302 to section 304, Part I, P. P. C. And his sentence is likewise altered from life imprisonment to that of five years' R. i. The appeal is accepted to this extent.