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Criminal Appeal No. 869 of 1969, decided on 23rd September 1970.

----S. 302 read with S. 304, Part 1 Murder ‑ Grave and sudden provocation ‑ Sentence‑ Accuse confessing to have caused death of his wife and her paramour being deprived of power of self‑control on finding them in compromising position‑Accused, held, rightly convicted under S. 30A Part I‑Sentence, however, reduced to period of imprisonment already undergone (over 11 months).

The State v. Akbar P L D 1961 Lah. 24 rel.

Manzoor Hussain Sail for Appellant.

Major Mufti Nazar Muhammad and Muhammad Akbar for the State.

Ali (30) and five other persons were tried by the Sessions Judge, Lyallpur at Jhang, for the murder of :‑

(a) Mst. Jindo (wife of Ali), and

(b) Ahmad;(her paramour),

on the night between 11th and 12th October 1967, at about 9‑00 p.m., in the Abadi of Chak No. 250/J. B., District Jhang. A number of witnesses were examined in support of the prosecution case. Ali, in his statement under section 342, Cr. P. C., urged that he committed the murders out of Ghairat under grave and sudden provocation. The co‑accused, however, pleaded not guilty to the charge. The learned Sessions Judge disbelieved the prosecution witnesses. Accepting the statement made by Ali, he convicted Ali under section 304, Part 1, P. P. C. and sentenced him to rigorous imprisonment for 7 years. The co‑accused were, however, acquitted.

2. Ali filed Criminal Appeal No. 869 of 1969, questioning his conviction and sentence. It was pleaded that since there was no corroboration, the learned Sessions Judge should not have accepted and acted upon the statement made by him (Ali). It was finally urged that the sentence awarded was very severe.

3. By order dated the 19th December 1969, the appeal was admitted in order to examine the question of sentence alone.

4. I have heard Mr. Manzur Hussain Sial, learned counsel for the appellant, and Messrs Muhammad Akhtar and Nazar Muhammad Mufti, learned counsel appearing on behalf of the State.

5. Ali, in his examination under section 342, Cr. P. C., at first, denied the prosecution version. At the end he made the following statement :‑

"I had two wives. My brother Ahmad came tome when I was sitting in my house where my wife Mst. Bakhi lived. He demanded sonic money froth me. He had to go to his fields. He had a stick in his hand. I and my brother Ahmad passed near the other house. I saw the door of that house closed. I saw Ahmad and Jindo deceased sitting on mat. I found a hatchet near that place. I murdered Mst. Jindo deceased, while my brother Ahmad murdered Ahmad deceased. I went to the Police Station, after locking the door of that kotha. I informed the Police as to what had happened. I gave the key to the Thanedar, so that he might open the lock. I committed the murder out of Ghairat under grave and sudden provocation."

The learned Sessions Judge decided not to act upon the prosecution evidence but to accept and act upon the statement made by Ali. Evidently, this statement was to the effect that the appellant found his wife Mst. Jindo and her paramour Ahmad in a compromising position and, therefore, whilst deprived of the power of self‑control by grave and sudden provocation, caused the death of Mst. Jindo. The learned Sessions Judge rightly convicted the appellant under section 304, Part I, P. P. C. The conviction is unquestionable.

6. Learned counsel for the appellant urged that in the circumstances of the case a sentence of 7 years' rigorous imprisonment was too severe and that the sentence already undergone should suffice. This aspect of the law has been exhaustively discussed in the case reported as The State v. Akbar (P L D 1961 Lah. 24), and a sentence of even 3 months was held to be adequate. In the instant case, the appellant was convicted on the 20th October 1969, and by now, he has suffered sentence of more than 11 months. Accordingly the conviction of the appellant is maintained but the sentence is reduced from 7 years' rigorous imprisonment to the period already undergone. The appellant be released forthwith.

Conviction maintained. Sentence reduced.

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