1. SAJJAD ALI SHAH, J.----This appeal is filed against the judgment dated 9th October, 1977 passed by the Addl. Sessions Judge, Shikarpur whereby the above-named appellant was convicted for offence under section 3029 P. P. C. And sentenced to imprisonment for life and a fine of Rs. 1000, in default of the payment whereof, he is to undergo R. I. For one year more. After hearing the learned Advocates appearing for both sides we had announced the judgment by a short order altering convic--tion to section 304, Part I, P. P. C. And reducing sentence to R. I. For five years and fine of Rs.
2. 1,000 while dismissing the appeal. The reasons follow now.
3. Shortly stated prosecution case is that deceased Mst. Nazan was sister of the appellant and was living in his house since her husband had died. On the day of incident, i. e. 25-3-1976 at about sunset time, the appellant was returning to his house from the field and when he reached near his house, he heard whispering coming from dry bed of "Chuttal Wahi", he quietly went there and found his sister Mst. Nazan in the pro--cess of sexual act with Muhammad Khan Golo. Appellant lost self --control on account of 'Ghairat' and challenged Muhammad Khan (Kayo), who succeeded in making good escape. Appellant, who had hatchet with him, inflicted injuries with it on his sister Mst. Nazan who raised cries. In the meantime Shadi, who is father of the appellant and Ali Madad, Nooro and Kando came to the spot and saw the incident. Appellant informed them that he was killing 'Kari' as he had seen her having sexual intercourse with Muhammad Khan Karo, who ran away. Mst. Nazan died at the spot. Appellant then took the blood-stained hatchet and went and apprised Kamdars Khan Muhammad Kharos and Atta Muhammad Lolai of the whole incident and then came to the police post Nabi Shah Waghan where his statement was entered into Roznamcha by P. W. 10 Ghulam Rasul. A. S. I. At about 11-30 p. m. On the same day who recorded formal F. I. R. On the basis of statement made by the appellant. After the registration of F. I. R.
4. Appellant surrendered himself for arrest in presence of witnesses Atta Muhammad Lolai and Khan Muhammad Kharos. He produced blood-stained hatchet, the alleged crime weapon, which was seized and put into a sealed parcel. The Investigating Officer then recorded the statements of P. W.
5. Khan Muhammad, and Atta Muhammad. He visited the vardat which was pointed out by the appellant himself. Said vardat was situate in village Golo and dead body of Mst. Nazan was lying there with hatchet injuries. He prepared mashirnama of vardat Exh. 18, inquest report Exh. 19 and sent the dead body to the hospital for post---mortem examination. On 26-3-1976 he recorded the statements of P. Ws. Shadi. Nooro, Ali Madad and Kandero. On 27-3-1976 he got judicial confession of appellant recorded before Civil Judge and F. C. M. Garhi Yasin. On the same date statements under section 164, Cr. P. C. Of witnesses were recorded before the Civil Judge and F. C. M., Garhi Yasin in the presence of the appellant. After completing other steps of the investigation, the challan was produced in the Court.
6. Prosecution has examined nine witnesses in support of its case. P. W. 2 Noor Muhammad, P. W. 3 Kandero, P. W. 6 Shadi and P. W. 7 Ali Madad have been examined as eye-witnesses of the occurrence before the trial Court, but they did not support the prosecution case. P. W. 4 Mr. Nabi Bux Talpur is Civil Judge and F. C. M., Garhi Yasin who recorded judicial confession of appellant on 27-3-1y76. P. W. 5 Khan Muhammad mashir did not support mashirnama of seizure of the hatchet, arrest of the appellant and mashirnama of scene of offence and inquest report Exh. 16 to Exh.
20. P.
7. W. 8 Jummo and P. W. 9 Atta Muhammad both mashirs have not supported the prosecution case.
8. P. W. 10 Ghulam Rasool, A. S. I. Is the Investigating Officer.
9. P. W. 1 Doctor Nooruddin. Medical Officer performed post-mortem examination of the dead body of Mst. Nazan on 26-3-1976 at R. H. C. Ratodero. On external examination he found the following injuries :- (1)Incised wound 3" x 2" cutting the radius and ulna at the mid of right forearm.
10. (2)Incised wound 5" x 3" x cutting the muscles trachea and atlas bone.
11. (3)Incised wound 1" x ----- fracturing the right clavicle ill the middle.
12. (4)Incised wound 2" x 1" x muscle deep at the chin.
13. (5)Incised wound 6' x 1' x brain deep at the parietal region hori--zontal in direction.
14. (6)Incised wound 2' x 1" x scalp deep at the left frontal bone.
15. (7)Incised wound 1' x --' x scalp deep at the left occipital region.
16. On the internal examination he found as follows :-- (1)Semi-digested rice present.
17. (2)Vaginal swa bs were taken and sent to the Chemical Analyser, Karachi for semen examination.
18. (3)Brain matter was damaged due to the injury No. 5.
19. (4)Clavical bone was cut due to injury No. 3.
20. All the injuries were ante-mortem and appeared to have been caused by a sharp cutting weapon such as hatchet. Injuries Nos. 2, 5 and 7 individually and all collectively were sufficient to cause death. From the external as well as internal examination of the deceased, he was of the opinion that the death was due to shock and haemorrhage consequent upon the injuries caused by a sharp-cutting weapon like hatchet. The probable time between injuries and death was instantaneous and the time between death and post-mortem was within 24 hours.
21. Before the trial Court in his statement under section 342, Cr. P. C. Appellant denied the prosecution allegations and proclaimed innocence He stated that police called Hidal Golo in the investigation who wanted to marry his sister Mst. Nazan but she declined to marry. Hidal gave appellant threats.
22. Appellant also retracted from judicial confession and said that the same was extorted from him under pressure of police on the threats that if he did not give confession, his womenfolk, would be humiliated. Appellant did- not produce any witness in defence.
23. In the light of the arguments advanced by both sides we have care--fully examined the record.
24. The four eye-witnesses produced by the prosecution before the trial Court did not support the prosecution case and the learned trial Court has relied upon their 164, Cr. P. C. State--ments recorded earlier in presence of the appellant, This action of the trial Court has complete legal sanction under section 265-J of the Criminal Procedure Code, as it now stands which is reproduced as under :-- The statement of a witness duly recorded under section 164, if it was made in the presence of the accused if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes subject to the provisions of the Evidence Act, 1872 (II of 1872).
25. The statements of these witnesses under section 164, Cr. P. C. As it appears from the record, were duly recorded in presence of appellant and he was given a chance to cross-examine these witnesses but no cross-examination was made from which an in--ference can be drawn that the statements so recorded were not challenged by the appellant. These statements are consistent with the version of the incident as given in F. I. R. These witnesses did not support the prosecution case before the trial Court for the reason that at the stage of the trial the appellant changed his mind, retrac--ted from the confession and took a stand that he was innocent and was falsely implicated in the case. The eye-witnesses one of whom P. W. 6 Shadi is father of appellant wanted to support the stand of the appellant taken by him in the trial Court as such they refrained from supporting the prosecution case as they did in their 164, Cr. P. C. Statements. It is also borne out from the record that the confessional statement of the appellant and 164, Cr. P. C. Statements of the eye--witnesses were recorded by the same Magistrate and on the same day. At that time the stand of the appellant was that he had committed murder of his sister on account of `Ghairat' and he was making judicial confession voluntarily and since the statements under section 164, Cr. P.C.
26. Of the eye-witnesses were being recorded on the same day which were consistent with his stand in his judicial confession, lie did not care to cross-examine the witnesses. Appellant has now alleged that the con--fession was not voluntary and the same was extorted from him under pressure of police. The perusal of confessional statements and the evidence of the Magistrate who recorded the confession shows that it was voluntary in nature and all the formalities were completed and the requisite cautions were administered. All these- eye-witnesses have stated in unequivocal terms that they saw the appellant giving hatchet blows to Mst. Nazan. Appellant himself went to the police station and made a statement which was recorded and entered into roznamcha on the basis of which F. I. R. Was registered by the Investigation Officer. Appellant voluntarily offered blood-stained hatchet which was weapon of offence. The said hatchet was seized and put into a sealed parcel and was sent to the Chemical Examiner. The report of the Chemical Examiner is positive. Although the mashirs of recovery of hatchet do not support but in the circumstances of this case, the evidence of the Investigating Officer can be relied upon. Appellant had himself pointed out the scene of offence where dead body was recovered. Medical evidence fully supports the version that appellant had caused hatchet injuries which resulted in the death of Mst. Nazan. All these are con--firmatory circumstances which fully corroborate the version of appellant as given in the confessional statements. The question which falls for determination now is whether conviction under section 302, P. P. C. Should be maintained or plea of the appellant that he committed murder of his sister due to grave and sudden provocation should be accepted. The murder admittedly took place in dry bed of watercourse which is a hidden place. The recovery of dead body from such place indicates that Mst. Nazan was there to meet some one. The appel-- lant had no other obvious reason or motive to kill Mst. Nazan at such place. It is a fact that no one else other than appellant saw the couple in compromising position or saw Karo running away. 164, Cr. P. C. Statements of all the four eye-witnesses reveal that extra judicial confession was made by the appellant, who was seen inflicting injuries on Mst. Nazan and the appellant had stated specifically that he was killing Kari and Karo Muhammad Khan had succeeded in running away.
27. Furthermore the conduct of appellant subsequent to incident also indicates that his assertion to that effect may be correct. After incident not only he informed the four eye-witnesses but went and informed P. Ws. Khan Muhammad and Atta Muhammad about the facts of the incident including running away of Karo and they took him to the police station wherein their presence he made a statement which was entered into roznamcha and on the basis of which F. I. R. Was lodged by the Police Officer. In the confessional statement appellant has mentioned every thing including appearance on the scene of offence of these four eye-witnesses and his going to P. Ws. Khan Muhammad and Atta Muhammad after the incident and apprising them about the full facts which gave rise to his killing Mst. Nazan and running away of Karo. Confessional statement of the appellant is therefore, fully corroborated by other independent circumstances as stated above.
28. We therefore hold that the appellant is entitled to the plea of grave and sudden provocation because he saw his sister flagrants delicto with Muhammad Khan. We, therefore, alter the conviction from section 302, P. P. C. To section 304, Part I, P. P. C. And reduced the sentence for imprisonment of life to R. I. For five years and fine of Rs. 1,000 in default of the payment whereof appellant would suffer R. I. For one year.
29. With this modification, we dismiss the appeal.