' ZAKAULLAH Loom, J.-Appellant Himath Ali was tried by the learned 1st Additional Sessions Judge, Larkana, under section 302, P. P. C. Who convicted and sentenced him to supreme penalty vide his judgment dated 19th May 1975. The learned Sessions Judge has referred the case within the meaning of section 374, Cr. P. C. For the confirmation of death sentence whereas the appellant has filed appeal to assail the order of conviction and sentence. This judgment will dispose of both the appeal as well as reference.
2. The brief facts forming the background of the case are that the appellant was charged alongwith the acquitted accused Daim All for the murder of his wife Mst. Islam Khatoon on 3rd July 1974 at 7.55 a.m. In the town of Naairabad, Taints Wank, District Larkins. The first information report was lodged at Nasirabad Police Station at 8-10 a.m. The same day by the appellant himself who is said to have gone to the Police Station after commission of the offence and surrendered himself alongwith blood-stained hatchet and blood-stained loin-cloth. In the report it was stated that the appellant was living alongwith his wife deceased Mst. Islam Khatoon. On the day of incident acquitted accused Daim Ali who is his nephew and also lived with him had gone out to his work in the town and the appellant had gone to purchase household articles from the town, While he was returning from the market after purchasing the household articles he found his nepew Daim Ali on way who also accompanied him in order to take meals at the house. When they reached near their house the appellant found one Arbab coming out of his house. He got suspicious and immediately went into the house to find out the fact. He saw that his wife mst. Islam Khatoon was tying the tape of her trousers. He got provoked and picked up the hatchet which was lying inside the house and gave hatchet blows to her. He has further stated that a few blows with %lila' were given by his nephew Daim Ali also but later on it transpired that this portion of the F. I. R. Was incorrect as no injury caused by 'Kills' blow was found on the dead body of the deceased. The F. I. R. Was recorded by P. W. Muhammad Mithal, A. S. I. Who immediately took into his possession the blood-stained hatchet and blood-stained 'Angocha' and prepared a mashirnama for the same. He also arrested the appellant and then proceeded to the vardat which was shown to him by the appellant. It was the house of the appellant situated in Nasirabad town. The dead body of the deceased was lying at the maw with hatchest injuries thereon. He secured the blood-stained earth and also prepared inquest report of the dead body in the presence of the mahsirs. He also recorded the statements of the prosecution witnesses and produced the appellant before the Civil Judge and First Class Magistrate, Kambar for recording his confession. After necessary investigations the case was challaned to the Court.
3. Autopsy on the dead body was conducted by Dr. Nanik Rain who found the following injuries on the person of the deceased "(1) Incised wound 4' x 1"x r on the left side face, cutting the underlying bones.
(2)Incised wound 6' x x 2' on the left mandible and neck.
(3)Incised wound 5' x 4'x 3' on the front of neck cutting all the tissues trachea oesophagus, fourth survical vertebra and spinal cord.
(4)Incised wound 3' x 1' on the right occipital region." ' the opinion of the doctor the death was caused doe to shock and haemorrhage consequent upon the injuries caused by a sharp-cutting weapon such as hatchet. Injury No, 3 was individually sufficient to cause death in the ordinary course of nature.
4. In his statement the appellant has admitted that he committed the murder of the deceased but he has set up the plea of grave and sudden provocation in his defence.
5. The prosecution has furnished ocular testimony of P. W. Biro who was "phuphar" of the deceased and retracted judicial confession. The confession of the appellant and the statement of P. W. Biro have received corroboration from the statement of P. W. Muhammad Pannah, the father of the deceased. P. W. Muhammad Pannah was informed of the incident by P. W. Biro. As far as the statement of P. W. Biro is concerned, his statement was not believed by the trial Court as against the acquitted accused Daim Ali. However, in his statement the most significant fact is that he states that dead body of the deceased was naked. He has also admitted his enmity with the appellant. Moreover, he states that he witnessed the offence from outside the house but at the same time be admits that the house was surrounded by a compound wall which means that it was practically impossible to look inside the house. Since his statement has not been believed by the trial Court as far as the acquitted accused Daim All is concerned whom he implicated saying that he bad seen him giving Killa' blows to the deceased whereas no injury caused by 'Killa' was found on the person of the deceased, therefore his statement can also not be believed as against the appellant. Even otherwise it will not be safe to believe his testimony because he admits that there was enmity between him and the appellant. However, he has not made a secret of the fact that the dead body of the deceased was naked at the time when he saw her. If for the reason discussed above, the statement of P. W. Biro is eliminated from consideration we are left with the confession of the appellant alone which should either be believed as a whole or discarded as a whole. There is no reason why the confession which was recorded on the day following the incident should not be believed. It is a voluntary confession and was recorded strictly in accordance with law. In his confession the appellant has stated that he committed the murder of the sudden and grave provocation as he had found her in compromising position with one Arbab. Earlier, in the F. I. R. He had stated that he had found his wife tying the tape of her trousers and Arbab coming out of his house which caused him sudden and grave provocation. In the confession he sass that he law the deceased in compromising position with Arbab. All what we can say about this contradiction is that the statement made at the stage of confession was improved to the extent of introducing this fact. However, as the incriminating part in the statement recorded in the F. I. R. At his instance cannot be taken into consideration. Therefore we have to believe whatever he has said in the confession. The plain reading of the confession makes out a case under section 304 (I), P. P. C. And not under, section 302, P. P. C. The conviction recorded under section 302, P. P. C. Is not therefore sustainable.
6. For the foregoing reasons the conviction of the appellant is converted from section 3C2, P. P. C.
To section 304 (I), P. P. C. In our opinion five years rigorous imprisonment would meet the ends of justice. Accordingly the appeal is dismissed but the appellant is convicted and sentenced to five years rigorous imprisonment under section 304 (I), P. P. C. The reference for the confirmation of death sentence is not accepted.