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Criminal Appeal No. 699 of 1969, decided on 17th April 1972.

---S. 304(1) read with' S. 300, Excep tion I-Murder-Grave and sudden provocation-Deceased (wife) eloping with G for immoral purposes and on being restored to husband some days later Instead of feeling repentance affirming truth and further asserting to do so again-Altercation resulting in abusing each other-Accused losing self-control and giving stick blows proving fatal-Immediate provocation, held, sufficient to bring case within Exception I to S. 300-Conviction altered to S. 304(1) and sentence reduced to period already undergone.

Appellant through Jail.

Major Hafeez-ud-Din for A.-G. for the State.

Date of hearing: 7th April 1972.

Allah Ditta appellant has filed this appeal through jail against his conviction under section 325, P. P. C. with an award of seven years' R. I. by the Additional Sessions Judge, Multan, recorded on the 8th of July 1969. The appellant was tried along with his father Shah Muhammad under section 302/34, P. P. C. for having intentionally committed the murder of Mst. Sukho, his wife, on the night between 30th of September/1st of October 1968, at zeerak Wahan, Police Station Keror Pacca, District Multan. Shah Muhammad was acquitted but the appellant was convicted and sentenced, as stated above.

2. The brief facts of the case as disclosed in the F. I. R. (Exh. P. A.), lodged by Ashiq Muhammad (P. W. 9) are that on the evening of 30th of September 1968, when the complainant came back from his day work at maghribwela, he heard shrieks of his daughter, Mst. Sukho deceased, from the house of the appellant. He was told by his wife and children that the appel lant and his father had at peshiwala forcibly lifted away the deceased from his house to their house and had given beating to her inside the sahl. They saw the occurrence while standing on the platform of oven. The occurrence was witnessed by Faiz Bakhsh (P. W. 7), Din Muhammad (P. W. 8), Ashiq Muhammad complainant (P. W. 9), Mst. Azeem Khatun (P. W 10) and Mst. Ata llahi (P. W. 11). The initial report was recorded at 7 a.m. on 1-10-1968, by S. I. Bashir Ahmad (P. W. 12) at Police Station Keror Pacca, ten miles from the spot. The motive alleged was that the appellant had gone to Jhang to seek some employment about 25/26 days prior to the occurrence. During his absence the deceased had eloped with one Zahur Shah sometimes prior to this occurrence and she was restored 10/11 days afterwards through the good offices of Iqbal Muhammad (P. W. 5).

3. After recording the initial report, the Investigating Officer repaired to the spot and prepared the injury statement (Exh. P. D.) and inquest report (Exh. P. E.) of the deceased and despatched the dead body to the mortuary at Lodhran under the escort of F. C. Abdur Rehman (P. W. 2). The same day the Sub-Inspector arrested the appellant, who led to the recovery of blood-stained soti (P. 1) from his house underneath the kalhoti, which was taken into possession vide memo. Exh. P. C. He got prepared the site plan (Exh. P. C./2) from Manzur Ahmad Drafts man (P. W. 4). The sealed parcel of soti (P. 1) was ultimately sent to the Chemical Examiner, who vide his report (Exh. P. H./1) opined that the same article was stained with blood. According to the report of the Serologist (Exh. P. J.), the same article was stained with human blood.

4. On 2-10-1968 at 11 a.m. Dr. Altaf Hussain Shah Gardezi, Medical Officer, Lodhran, performed the post-mortem examination of the dead body of Mst. Sukho, aged 25 years, and found the following injuries: -

(1) A swelling 5' x 3' on the left temporal and right parietal region.

(2) Multiple contusion marks on the back, front of the chest in the upper part.

(3) Multiple contusion marks on both the thighs, both legs, back of left chest and the back of the left hand and left forearm.

(4) A swelling, 3" x 2" on the back, of the right band.

(5) An abrasion, l x 2' on the right index finger web.

On internal examination, he found a fracture of the left temporal bone, extending try both the parietal bones, right temporal and occipital bones. Death was due to shock and haemorrhage as a result of extensive fracture of tile skull due to jury No. 1, which was ante-mortem and sufficient to cans. Death the ordinary course of nature. All the injuries had been used with a blunt weapon. The time between injuries and death was within 12 hours and between death and post-mortem as within 48 hours.

5. The appellant denied the charge and in answer to a testion as to why this case against him, he made the following statement: -

"My mother-in-law Mst. Azim Khatun was pimp for the deceased in her relations with Zahoor Shah and had been gett ing money from him. In the evening I returned from Jhang. I learnt in the village that she had eloped away with Zahoor Shah. I asked why did she do so and in reply she insisted to do the same in future. She admitted to have had been eloped by Zahoor Shah. I resented her reply and gave a few slaps on her face and then beat her by shoe. I pushed her aside and having struck against a mango tree, she sustained injury in his head, became unconscious and later died. The occurrence was witnessed by Faiz Bakhsh P. W. and none else. At that time my father was not there. I was infuriated on her conduct and beat her having lost self-control."

6. The learned trial Judge has not placed reliance on the ocular evidence furnished by Ashiq Muhammad, father of the deceased, Mst. Azeem Khatun, mother of the deceased and Ist. Ata Ilahi, sister of the deceased, and he has also disbelieved tin Muhammad (P. W. 8), who was the only independent witness. The learned trial Judge has convicted and sentenced the appellant on the ocular testimony of Faiz Baksh (P. W. 7) uncle the deceased.

7. Having heard learned counsel for the State and having ;one through the record with his assistance, I am of the opinion that the conviction and sentence of the appellant under section 325, P. P. C. cannot be maintained Faiz Bakhsh (P. W. 7) has admitted in his cross-examination that in the absence of the appellant when he had gone to Jhang to earn livelihood, the deceased had eloped away with Zahur Shah tailor immoral purpose, that the appellant returned from Jhang n the evening and the same night the occurrence took place. le has further admitted that In the presence of the witness the appellant enquired from his wife, Mst. Sukho deceased as to Nether she had eloped away with Zahoor Shah and in reply the ,ceased affirmed the truth of this fact. She further asserted that, he would go with her lover for the same purpose. This led to r, altercation between the appellant and the deceased resulting in abuses and that the appellant picked up a stick and gave injuries to the deceased. He has also excluded the presence of his brother Ashiq Muhammad P. W., Mst. Azeem Khatun, Mst. Ata Ilahi and Din Muhammad, eye-witnesses. As is clear from the state ment of pain Bakhsh P. W., the deceased was leading an immoral life and on the appellant's up-braiding, the deceased, his wife, with her misconduct, instead of being repentant, said that she would again do such act, the appellant lost control of himself and gave blows with a stick which resulted in her death. Having considered this aspect of the case, I am of the opinion that immediate provocation was sufficient to bring the offence within Exception I to section 300, P. P. C. and the case would be covered under section 304(1) because there was a grave and sudden provocation and it was a culpable homicide not amounting to murder.

8. The upshot of the discussion above, therefore, is that I alter the conviction of the appellant from section 325, P. P. C. to that of section 304, Part I, P. P. C. and reduce his sentence from seven years' R. I. to the period already undergone. The net result is that the appellant shall now be released forthwith provided he is not required for wry other case. The appeal succeeds partly.

Appeal accepted.

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