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Criminal Appeal No. 201 of 1970, decided on 27th October 1970.

S. 304, Part I‑Murder Sentence‑Grave and sudden provocation‑Accused seeing his wife, a mother of five, in compromising position with another person while he never earlier suspected his wife of infidelity feeling extremely shocked, taking up a toka lying handy at place of occurrence and killing, her‑Contention that accused deserved heavy punishment for acting in a. very cruel manner, inasmuch as he inflicted 9 injuries on vital parts of deceased, like head, face and neck‑Element of cruelty to a near and dear one, held, may show that culprit's conduct was absolutely beyond his control‑Accused, held, suffered from extreme provocation and thus not in position to make any sound judgment or to control provocation‑Sentence of 7 years' R. I. reduced to that of 3 years' R. I. in circumstances.

The sentence in such a matter ranges from a ridiculously short sentence of 'till the rising of the Court' to a sentence on the higher side of seven years' R. I. The circumstances in each case differ: Therefore, no hard and fast rule can be laid down in the matter of sentence in a case where the plea is of grave and sudden provocation. The caste and tribe, the background of the family, the area to which the family belongs the latent cause of the killing, the immediate cause giving grave and sudden provocation, the weapon used, the number and nature of injuries caused, the age of the accused, the relationship of the accused with the woman, the general circumstances appearing at the time of occurrence including also whether it is a day light or night time occurrence, and the plea of the accused at the trial, are some of the factors to be considered for awarding sentence in a case. ‑The question to be considered in each case in given circumstances is whether the cruel act is as a result of a grave and sudden provocation or is the result of cool and deliberate thought process. If it is the direct result of the former then instead of being of any disadvantage to the culprit, this circumstance may in a given case benefit him because the element of cruelty, to a near and dear one, may show that his (culprit's) conduct was absolutely beyond his control. The number and nature of injuries in a case and the background and the various circumstances as noted above indicate that it‑falls within this category, where it may benefit the culprit. It is due to the cumulative effect of all the circumstances in an occurrence that the law gives benefit to the culprit for that. After giving the finding that the culprit was charged with grave and sudden provocation to say that he was in a position, on the spur of a moment, to control himself or to decide as to who should be the victim of his provocation and further as to who is the weaker party out of the two defaulting persons (his infidel wife or her paramour) is to expect something, which appears to be unnatural.

Allah Ditta v. State 1968 P Cr. L J 1940 ; Hanif v. State 1968 P Cr. L J 1505 ; State v. Akbar P L D 1961 Lah. 24 and Muhammad Saleh v. State P L D 1965 S C 366 rel.

Talib Haider Rizvi for Appellant.

S. M. Shah Mashhadi for A.‑G. for the State.

Date of hearing : 27th October 1970.

Muhammad Ramzan aged 35 years has been convicted under section 304, Part I, P. P. C. and sentenced to seven years' R. I. by the learned Additional Sessions Judge, Jhang. He has challenged the conviction and sentence by this appeal.

2. The facts which are not disputed by both the learned counsel, appearing for the appellant and for the State, are that on 19th May 1969, the appellant returned to his kotha at Chah Sargana in village Ghumman Mari at about sehriwela. He had in the earlier part of the night been irrigating his fields. He saw one Haq Nawaz in his kotha in a compromising position with his wife Mst. Saddan, the deceased in the case. On this confrontation Haq Nawaz dashed out by pushing the appellant aside and was successful in running away. The appellant found toka Exh. P. 1 lying in the kotha. He. picked up the same and dealt successive blows on Mst. Saddan who suffered nine injuries mostly on the head, face and neck and she expired as a result of these injuries.

Out of two eye‑witnesses namely Haq Nawaz (P. W. 6) and Ghulam (P. W. 7), the latter was declared hostile and has not been relied upon by the learned trial Judge. Haq Nawaz supported the above version of the case and explained that immediately after the occurrence the appellant had given out the above cause of the occurrence. Another circumstance worth noticing is that the vaginal swabs taken by the doctor from the dead body were found by the Chemical Examiner to have been stained with semen. At the trial the appellant gave. the above version of .the occurrence. It was supported by the ocular account of the occurrence given by Haq Nawaz P. W. and the so‑called hostile witness, namely, Ghulam. The learned Sessions Judge believed it as correct and rejected suggestion by the prosecution that the petitioner was aware of the illicit intimacy, between his wife and aforesaid Haq Nawaz before, the occurrence. On these facts the learned Sessions Judge gave the finding that the petitioner acted on grave and sudden provocation. Therefore, as noted earlier he has been convicted and sentenced under section 304, Part I, P. P. C.

3. The only question that requires ‑determination is that of sentence.

4. According to the learned counsel for the appellant, in the peculiar circumstances of the present case, the sentence of seven years is excessive. The learned counsel for the State, however, mainly relying on some of the observations made in Allah Ditta v. State (1968 P Cr. L J 1940), contended that the appellant acted in a cruel manner, therefore, the sentence of seven years was fully justified.

I have had the occasion of examining the question of sentence in such like cases, in a case decided earlier and reported as Hanif v. State (1968 P Cr. L J 1505). After review of case‑law I had then noted that the sentences passed by various Courts in such like cases range from extremely lenient i.e. till the rising of the Court (given by the Sessions Judge in a case which subsequently came up before the High Court and is reported as State v. Akbar (P L D 1961 Lah. 24) and seven years' R. I. on the higher side. While dealing with this case I have noticed some more cases where the sentence of 10 years' R. I has been imposed. One of them is Muhammad Salsh v. State (P L D 1965 S C 366). After going through all these cases once again I have come to the same conclusion again; and I repeat the observations made by me in the earlier case, which are as follows:‑

"The sentence in such a matter 'ranges from a ridiculously short sentence of till the rising of the Court' to a sentence on the higher side that of seven years' R. I. The circumstances in each case differ. Therefore, no hard and 'fast rule can be laid down in the matter of sentence in a case where the plea is of grave and sudden provocation. The caste and tribe, the background of the family, the area to which the family be longs the latent cause of the killing, the immediate cause giving grave and sudden provocation. the weapon used, the number and nature of injuries caused, the age of the accused, the relationship of the accused with the woman, the general circumstances appearing at the time of occurrence including also whether it is a day light, or night time occurrence, and the plea of the accused at the trial, are some of the factors to be considered for awarding sentence in a case like the present one."

If the above rule is applied to the present case the appellant becomes entitled to reduction of sentence. The circumstances of the present case in this behalf are:‑‑

(a) The appellant ‑must have suffered an extreme shock on seeing his wife in compromising position with another person particularly because according to the finding of the learned trial Judge he had never earlier, to this point of visible confrontation, suspected his wife of infidelity.

(b) The deceased was the mother of five but not very old. This circumstance must have further added to the shock.

(c) The deceased had taken a mean advantage of the absence of her husband while he was working in his fields for earning livelihood ‑for the family: With this background when he returned at midnight to his house he must have been provoked to an extreme. .

(d) It was not a case of the wife sitting with a paramour bat" the appellant saw both of them in a compromising position and that two in his own kotha.

(e) The weapon of offence the toka was lying in the same kotha. Therefore, the weapon being handy and the provocation being of an extreme type the use of the weapon in these circumstances in the manner he did further shows the gravity of the provocation.

(f) In this behalf it may be noticed that the number of injuries do show that the appellant had acted in manner which can be described as cruel but in every case of this type some element of cruelty, which has of course to be subjected to the emotional state of grave and sudden provocation, is present.

5. The question to be considered in each case in these circumstances is whether the cruel act is as a result of a grave and sudden provocation or is the result of cool and deliberate thought process. If it is the direct result of the former then instead of being of any disadvantage to the culprit, this circumstance may in a given case benefit him because the element of cruelty, to a near and dear one, may show that his (culprit's) conduct was absolutely beyond his control. The, number and nature of injuries in this case and the background and the various circumstances as noted above indicate that it falls within this category, where it may benefit the culprit. Therefore, I don't agree with the contention of the learned counsel for the State that this circumstance may be considered as going against the appellant for maintaining the sentence.

For the same reason I don't agree with the opinion of learned Sessions Judge that the appellant should be burdened with the rationality of an absolutely normal person; in that as the learned Judge put it that the appellant "was mentally conscious of the risk in' following Haq Nawaz" or that it is difficult to assume that the appellant "was wholly deprived of all powers of self control" nor I agree with his observation that in such like cases it is always "the tendency of the cluprit to find fault with the woman because she happens to fall an easy prey."

It is due to the cumulative effect of all the circumstances in an occurrence like this that the law gives benefit to the culprit for that. After giving the finding that the culprit was charged with grave and sudden provocation to say that he was in a position, on the spur of a moment, to control himself or to decide as to who should be the victim of his provocation and further as to who is the weaker party out of the two defaulting persons (his infidel wife or her paramour) is to expect something, which appears to be, unnatural. M In this case I have already noted the circumstances which indicate that the provocation to the appellant was of an extreme type and it is not possible to assume that he was in .a position to make any sound judgment and or to control the provocation, therefore, I feel that the sentence of three years' R. I: will meet the ends of justice. I, therefore, while maintaining his conviction reduce the sentence awarded to the appellant from seven years' R. I. to three years' R. I.

6. With this modification in the sentence only the appeal is partly accepted.

Appeal dismissed. Sentence modified.

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