Z. A. CHANNA , J.-Appellant Imdad Hussain, a 25 years old farmer, has been convicted by a learned Additional Sessions Judge, Sangbar, by a judgment delivered on 25th of May 1976, of the murder of his wife, Mst. Koonjan, and has been sentenced for the said offence to imprisonment for life.. The learned Additional Sessions Judge did not award capital sentence to the appellant as in his view the appellant bad murdered his wife on account of suspicion that she had illicit relations with one Bangal Jamali and consequently his sense of vanity and family honour was severely injured.
2. The murder of Mst. Koonjan is stated to have occurred on 30-12-1973, at 10-00 a.m., in the left side breach of Eastern bund of Nara canal, in Deh Khadwari, about 7 miles away from Mangli Police Station.
It is alleged that on that day, the appellant, the deceased and their one-year old son, were returning to their village from Laiq Jamali village, where they had remained as guests of the parents of the deceased and her sister, Mst. Rasti, when on the way, at the breach in the band of Nara Canal, the appellant is said to have throttled the deceased and thrown her in the water, as he suspected her of having illicit relations with Bangal Jamali. In consequence of the action of the appellant, the deceased was drowned. The incident is said to have been witnessed by Sarang Jamali and Yunus Roonjho. Who challenged the appellant but the latter managed to make good his escape with his child. The same day, at 5-30 p.m., the appellant surrendered himself to A. S. I.
Ghulam Nabi at Mangli Police Station, after giving his minor son to his mother, Mst. Nihala.
3. On the basis of the information supplied by the appellant, A. S. I. Ghulam Nabi register a case of murder against the appellant. The latter subsequently took the A. S. I. To the scene of offence and pointed out the dead body of the deceased which was lying near the band. The A. S. I. Prepared inquest report of the dead body and then sent it to the Civil Hospital, Sanghar, for post-mortem examination.
4. On the following day, at 10-00 a.m., the appellant was produced before Mr. Ghulam Ahmed, Mukhtiar kar and F. C. M., Sanghar who recorded his confession the same day, at 12-00 noon, after giving the appellant two hours time for reflection.
5. The autopsy on the deceased was conducted on 31-12-1973 by Dr. Muhammad Afzal, who was then Medical Officer, Civil Hospital, Sanghar. He has testified that he found no sign of external injury on the body but on internal examination he found the following injuries "Mud seen in trachea. Lungs were bulky and blood-stained fluid seen doozing on section of the heart. Both chambers of hearts seen and were full of blood. The stomach contained semi-fluid diet."
6. In the opinion of the Medical Officer, the deceased had died of Asphyxia due to drowning.
7. The appellant, in his statement in the Sessions Court under section 342, Cr. P. C., denied being responsible for the death of the deceased and alleged that he was falsely implicated by the P. Ws.
Who were interested and hostile to him. To the question whether he had anything further to say, he replied as follows :- "I am innocent. I never suspected my wife, of having illicit relation with anyone. On the day of incident, in the morning time, I and my wife went to our field to work there. At sunrise time we returned to our house. After taking lassi at my house I again went to my fields leaving my wife in the house. After noon I returned to my house, took bath and thereafter, police arrived and arrested me.
My wife was missing from the house. Yunus and Sarang were with the Police when they arrived at my house. Police arrested me and took me to Vardat. At the Vardat I for the first time found the wife was lying dead. I embraced the dead body of my wife and cried out of grief. My wife was suffering from Mirgi and used to have fits off and on. Possibly she might have gone to the bank of the bund and having got the fits drowned herself in the water. My house is just 200 paces away from the Vardat. My Massi Mst. Rasti was abducted by Mahar Jamah and on account of that we are on inimical terms. I am falsely implicated at the instance of Mahar Jamali and Sarang P. Ws--- who are brothers inter se."
8. In his defence be examined Younus Roonjho, who was one of the persons who are said to have been eye-witnesses to the murder of the deceased. According to this witness, he and Sarang Jamali were grazing buffaloes in a jungle on the day of the incident when they heard sound of drowning of some body, whereupon they went running towards that side and saw Mst. Koonjan drowned in the water. The witness has stated that he did not see anybody else there and that they had taken Mst. Koonjan out of the water but she had by that time expired. The witness has also stated that Sarang bad brought the Police to the wardat and the police had gone to the house of the accused alongwith Sarang and the witness and arrested the accused from the house.
9. We are satisfied on the evidence on record that the appellant is responsible for killing his wife, Mst. Koonjan. This fact has been established by the following three pieces of evidence :--
(a) Ocular testimony of P. W. Sarang ;
(b) conduct of the appellant himself in going to the Police Station and surrendering himself before A. S. I. Ghulam Nabi ; and
(c) judicial confession of the appellant.
10. P. W. Sarang has stated that while he and Unis were grazing cattle at the Nara Canal, near the Vardat when they heard cries of Mst. Koonjan, and saw Mst. Koonjan dipped under the water and the accused standing over her inside the water. He has further testified that the accused drowned the deceased in the water in the Canal and thereafter he left her and started running away, whereupon they chased him, but they lost trace of him in the surrounding jungle. Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, has assailed the testimony of this witness on the grounds, firstly, that the witness has made contradictory statements in his examination-in- chief and cross-examination ; secondly, that his evidence is at variance with that of D. W. Yunus, who was admittedly with him at the time of the incident ; and that finally, the evidence of the witness as to who had informed the Police of the incident is at variance with the testimony of D. W.
Muhammad Yunus. No doubt, the witness, in his cross-examination has stated that while they were running to the wardat they saw one person running away from the Vardat, with his back towards them, and they identified that man merely by his clothes to be the present accused (appellant), but, it would appear that this was an obliging statement perhaps made in a desperate attempt to mitigate the effect of his examination-in-chief wherein he has clearly implicated the appellant and has stated that they had not only seen him drowning the deceased but had also chased the appellant, who, however, managed to make good his escape. The fact of this witness having seen the appellant killing the deceased is also stated by the appellant himself in his judicial confession which we will presently consider.
11. As to the evidence of D. W. Yunus, it may be stated that he was originally cited as a prosecution witness who was given up as he was stated to have been won over. His evidence as a defence witness clearly establishes that the suspicions of the prosecution were correct. As already stated, according to this witness they had not seen the appellant at the scene of offence and .Had only seen the deceased drowned in the water. He, however, was confronted with his section 164, Cr. P. C.
Statement wherein he had not only stated that it was the appellant who had throttled and drowned the deceased but that he and Sarang had also chased the appellant who managed to elude them and escaped.
12. D. W. Yunus has further stated that it was P. W. Sarang who had reported the matter to the Police and brought the Police to the wardat, but not only this fact has been denied by P. W. Sarang but further A. S. I. Ghulam Nabi has categorically stated that it was the accused himself who had surrendered at the Police Station and gave them for the first time intimation about the commission of the crime and it was he who had led the Police to the scene of offence. In fact, it was on the information of the accused that the. F. I. R. Was lodged. We, accordingly, see no reason to doubt the testimony of P. W. Sarang that it was the appellant who was responsible for the killing of the deceased. No doubt, the appellant in his statement, has alleged enmity with P. W. Sarang on the ground that his aunt, Mst. Rasti, was abducted by Mehar Jamali, the brother of P. W. Sarang, but we are unable to place any reliance on this allegation as no question regarding any enmity between witness Sarang and the appellant party was put to him. D. W. Yunus, no doubt, has supported the allegation of the appellant regarding the abduction of Mst. Rasti by Mehar Jamali and further stated that the latter is the brother of P. W. Sarang, but we are unable to place any reliance on the testimony of this witness as not only no such question was put to P. W. Sarang himself but further this witness has been clearly shown to be an obliging witness and has given a complete go-by to his section 164, Cr. P. C. Statement with which he was confronted.
13. The next piece of evidence against the appellant is the fact that on the very day of the incident, some 7J hours thereafter, he voluntarily appeared at Mangh Police Station and surrendered himself before A. S,
1. Ghulam Nabi, who lodged the F.
1. R. Against him on the basis of the information given by the appellant himself. We have no reason to doubt the testimony of A. S. I. Ghulam Nabi against whom the appellant has not alleged anything. Furthermore, in his judicial confession, the appellant has himself stated that he had surrendered at Mangh Police Station where he admitted his guilt and he was arrested by the Police.
14. In addition to the other two pieces of evidence, there is the judicial confession given by the accused before the learned Mukhtiar kar and F. C. M., Sanghar, on the very next day of the incident, some 161 hours after his arrest. That confession has been recorded with due formalities and after the appellant was given 2 hours time for reflection. The confession was assailed on the ground that there was armed police-guard present during the time given to the appellant for reflection.
However, the learned Magistrate, in his evidence, has explained that though be has recorded in the confession that bad placed the accused in the charge of his revenue peon, through oversight he had failed to score out the reference in the printed form of the confession to the armed-guard.
Furthermore, the learned Magistrate in his own hand has stated, in the certificate to the confession, that no Police Officer concerned with the investigation was allowed permission to come inside the place where the accused was made to sit nor any Police Officer could see or talk with the accused during the recording of the confession. We are, therefore, satisfied that the confession was recorded with due formalities. The material part of the confession is as follows :- "I suspected my wife to be on illicit terms with Bangal Jamali. When we reached at the water pond of Gharo (Breach), I asked my wife Mst. Koonjan that I suspected her to be on illicit terms with Bangal Jamali, hence she swear on Holy Qur'an whether she was on illicit terms with Bangal Jamali or not but my wife refused to do so. Hence it supported my suspicion to certainty and thus I got `Ghairat'. I felled my wife in the water pond of breach, killed her by throttling and climbed over her.
As a result of throttling my wife snored and groaned which attracted to Sarang Jamali and Younus Roonjho. They challenged me, `Dont kill the lady' Hearing their challenges, I left my wife before their arrival, and immediately took my little son and escaped away by hiding myself through the jungle. I reached at my village where I left my son under the supervision of my mother Mst. Nihalan, then I came at P. S. Mangli and narrated the facts to the Police. The A. S. I. P. Recorded my statement and arrested me there. Thereafter, I showed the corpse to the Police. The Police secured the corpse.
Today I was brought before you to have a confession."
15. The judicial confession is corroborated by the testimony of P. W. Sarang, the testimony of A. S. I.
Ghulam Nabi, who has stated that the A appellant had voluntarily surrendered himself before him and made confession, and also the medical evidence showing that the death of the deceased was due to drowning.
16. Taking all the above circumstances into consideration, we are fully satisfied that it was the appellant who killed the deceased by drowning her in the breach of the waters of the Nara Canal.
The contention of the appellant that the deceased was suffering from the malady of Mirgi and has wandered over to the scene of offence, while under a fit of Mirgi, and drowned herself, cannot be accepted in view of the fact that the scene of offence is 3 miles away from the village of the appellant, as stated by P. W. Sarang. It is unlikely, even if it be assumed that the deceased was subject to fits of Mirgi that she could have wandered in that fit for over 3 miles. Furthermore, the evidence of Mst. Rasti, the sister of the deceased, shows that the appellant and the deceased were returning together from her B house to their village when the incident occurred. Finally, there is no tangible evidence that the deceased in fact was suffering from fits of Mirgi. No such question was put to Mst. Rasti, who would have certainly known this fact if her sister had been subject to fits of Mirgi.
17. The only question which remains for consideration is whether, in the circumstances of the case, .The appellant is entitled to the benefit of Exception I to section 300, P. P. C. It was submitted by Mr. Muhammad Hayat Junejo, the learned counsel for the appellant, that the appellant killed the deceased under grave and sudden provocation, as he had already suspicion that the deceased was having illicit relations with Bangui Jamali and his suspicions were confirmed when he put the same to the deceased who refused to deny them on the Holy Qur'an. The learned counsel submitted that the Court has to consider the state of mind of the appellant at the relevant time, and if the Court is satisfied that the circumstances were such that the appellant was reasonably satisfied from his point of view that the deceased was maintaining illicit relations with Bangui Jamali, and this realization came upon him suddenly, then his case would be covered by Exception I to section 300, P. P. C. The learned counsel argued that it was not necessary for the application of this exception that the appellant should actually have seen the deceased in compromising position with Bangui Jamali or even in circumstances from which he could reasonably have inferred that such liaison was being carried on, but if there were other circumstances, including the conduct of the deceased herself, such as the admission of the deceased, then considering the fact that the appellant belonged to a Baloch tribe, who are very sensitive about the honour of their women, the plea of grave and sudden provocation should be considered to have been reasonably made out. In support of his contentions, the learned counsel relied upon a number of authorities.
The first case cited by him was of Mooso v. State (PLD 1960 Kar. 966In that case, the accused. Who was a Baloch and Chandio by case, stated in his confession that when he asked the deceased, who was the wife of his brother, whether she was on terms of illicit intercourse with a certain person. She replied in the affirmative and on this admission, he felt highly provoked and on account of 'Ghairat' killed the deceased. It was held that there was grave and sudden provocation and the case of the accused fell under Exception I to section 300.
18. The next case cited by the learned counsel for the appellant is reported as Ahmed Din v. State (PLD 1967 Lah. 464In that case also, in his judicial con--fession, the appellant had stated that he suspected his wife of having illicit relations with a stranger, and when the wife insisted on going to see her parents, he (the appellant) suspected that she in fact was going to meet her paramour and on his asking her if this was not correct, she replied in the affirmative, whereupon he killed her by means of a Moni, which he took out from his cart. In this case also it was held that the appellant had acted under grave and sudden provocation.
19. Mr. Muhammad Hayat Junejo has also referred us to the decision of the Supreme Court of India.In Nanavati v. State of Maharashtra (AIR 1962 SC 605In that case, the Indian Supreme Court have summed up their views on the law in India in regard to grave and sudden provocation as follows :- "(85) The Indian law, relevant to the present enquiry, may be stated thus
(1) The test of `grave and sudden' provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control.
(2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first Exception to section 300 of the Indian Penal Code.
(3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence ;
(4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for pre--meditation and calculation."
20. Mr. Imdadally Agha, the learned counsel for the State, on the other hand, submitted, firstly, that there was no reliable evidence to show that the deceased was either on terms of illicit intimacy with another person or she refused to take oath on Holy Qur'an, denying the said allegation::, and secondly, the refusal to deny by the deceased of suspicions of an unreasonable and jealous man cannot be considered to be an admission of criminal intimacy and, consequently, the plea of grave and sudden provocation was not available to the appellant. The learned counsel referred us to the case of Muhammad Shah v. State (1971 P Cr. L 1688where a Division Bench of the Lahore High Court has held that the mere fact that the accused had only a lurking suspicion in his mind about the alleged intimacy of the deceased with his sister-in-law and on that account killed the deceased on seeing "his sister-in-law coming out of the --house in company of the deceased, did not make out a case of grave and sudden provocation. According to the learned Judge, the presence of the deceased with the sister-in-law of the appellant might have been absolutely innocent or might have been by mere accident or per chance.
21. Mr. Imdadally Agha also relied upon the case of Muhammad Tufail v. State (1968 SCMR 60). In that case, the accused had pursued the deceased with spears and beaten him and his father to death on the pretext that one of the deceased had looked into the courtyard of their house. It was found that the wall of the house of the accused was so high as to prevent passersby from looking inside the house. In the circumstances, the plea of grave and sudden provocation was not accepted as it was held that there was no basis for such plea.
22. We have carefully considered the question whether the appellant is entitled to the benefit of Exception I to section 300, P. P. C. No doubt, P. W. Sarang does not speak of any discussion or dispute between the deceased and the appellant regarding the suspicion of infidelity entertained by the appellant in regard to the deceased, and on the contrary he as well as the other witnesses speak of the deceased being of good moral character, but it must be remembered that P. W.
Sarang came to the scene of offence on the cries of the deceased, when the appellant was drowning her in the water. He could not, therefore, testify as to what had occurred immediately before that or what had led th: appellant suddenly to decide to kill the deceased. As such, there is the confession alone which gives us an insight into the working of the mind of the appellant and furnishes the motive for the grave offence committed by him. The fact that the appellant and the deceased were apparently on good relations at the house of the parents of the C deceased as well as the house of Mst. Rasti, the sister of the deceased, further supports the inference that something must have occurred while the deceased and the appellant were returning from the house of Mst.
Rasti to their village which so enraged the appellant that he killed the deceased. Since there is no other evidence on the point, we must take the confession as a whole into consideration and, consequently, the reasonable inference would be that the appellant killed the deceased on account of the circum--stances mentioned by him in his confession. This inference, gains further support from the fact that a few hours after the incident the appellant himself went to the Police Station and confessed his guilt to the Police Officer. The question that has agitated us is whether refusal on the part of the deceased to take oath on the Holy Qur'an, denying the imputations levelled against her of infidelity, can be considered, in the circumstances of the case, to provide the appellant with a reasonable plea of grave and sudden provocation. In considering whether a particular fact amounts to grave and sudden provocation to an accused we must consider the class to which the accused belongs and his possible reaction to that fact. In the case of Abdul Ghafoor v. State (1968 P Cr. L J 119it was observed "It is the effect of the provocation upon the person provoked and probability of its producing a similar effect upon persons of similar class which is material consideration for attracting this exception (Exception I to section 300, P. P. C.)."
It was further observed in that judgment that the question whether the provocation is grave and sudden will depend "upon the mental set up of each individual, his environments and family traditions in which he has been brought up".
23. The Supreme Court of Pakistan in Khudadad v. State (1974 SCMR 485)after referring to certain other cases has observed "that among the agricultural tribes of West Pakistan questions of family honour, touching the females of the family, are of almost overpower--ing importance, and to vindicate that honour they feel bound to go to very great lengths."
24. It is our experience that in villages, whenever no direct evidence ofany matter is available, generally the allegedly guilty party is asked to take an oath on Holy Qur'an, if he denies the allegations, and if he does no take the oath on Holy Qur'an, the suspicions are confirmed or at least reasonable belief is engendered in the minds of the accusers and the village that the accusations are well-founded. We are conscious of the fact that the people may take oath on Holy Qur'an and yet speak a lie but among the villagers taking an oath on Holy Qur'an is considered a very sacred matter and the taking of oath thereon is deemed quite sufficient to vindication their honour and to deny an accusation. Where a villager does take such an oath, whether he speaks the truth or a lie, it is considered that he has vindicated his position. In view of this state of affairs in our village society, where highest respect is given to an oath on Holy Qur'an, refusal to take an oath would normally suggest an implied acceptance of the imputation. We are, therefore, of the view that in the circumstances of the case it is reasonable to believe that the appellant previously suspected his wife of maintaining illicit relations with Bangul Jamali, that he found an opportunate moment to question her when they were alone on their way from the house of Mst. Rasti to their village, that the deceased seems to have refused to take the oath when she was accused of maintaining such conduct, and that her refusal engendered a reasonable belief in the mind of the appellant that the deceased was in fact having illicit relations with Bangul Jamali.
The conduct of the deceased, in the circumstances, would be very akin to a tacit admission of her guilt. In the circumstances, we would agree with the learned counsel for the appellant, that the appellant is entitled to the benefit of Exception I to section 300, P. P. C. And that he killed the deceased whilst deprived of the power of self-control by grave and sudden provocation. Though the appellant may have previously suspected the deceased of having illicit relations with Bangul Jamali, it was shortly before he killed her that his suspicions turned into reasonable belief. We would accordingly, alter the conviction and sentence of the appellant from imprisonment for life under section 302, P. P. C. To seven years' R. I. Under section 304, Part I, P. P. C.
S. A. H. Conviction altered.