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Criminal Appeal No. 26 of 1975, heard on 7th June 1976.

‑‑ S. 303 read with S. 300, Exception I‑Murder Grave and sudden provocation‑Sentence‑Accused finding deceased sleeping with his (accused's) wife, giving him severe beating, resulting in his death ‑‑‑Conviction altered to one under S. 304, Part I and sentence reduced to 3 years in circumstances of case.‑[Grave and sudden provocation‑Sentence].

Appellant through Jail.

Saleem Akhtar Khan for the State.

Date of hearing : 7th June 1976.

Abdur Rehman, Ghulam Farid, Allah Diwaya and Allah Wasaya, were tried by the learned Sessions Judge, Muzaffargarh, for an offence under section 302. P. P. C. for the murder of Rehm Ali (deceased) on the night between 8th and 9th of March, 1973, at about dhali midnight in the house of Abdur Rehman accused (appellant), in the area of Chah Motanwala Dakhli Mauza Fatehpur Janubi, Tehsil Alipur. District Muzaffargarh, by inflicting injuries on him with sotas. By his judgment dated 10‑8‑1974, the learned Sessions Judge acquitted Ghulam Farid, Allah Diwaya and Allah Wasaya, co‑accused, giving them the benefit of doubt, but convicted the appellant under section 304, Part II and sentenced him to undergo 7 years' R. I.

2. The appellant has filed this appeal against his conviction and sentence through Jail.

3. I have heard the learned State Counsel, and have also gone through the grounds of appeal submitted by him and the evidence on the record and the impugned judgment.

4. The facts of the case, briefly, are that Muhammad Bakhsh (complainant) who is resident of the above‑noted village (and is related to the deceased) and his brother Khuda Bakhsh were present in their field, at midnight on the night of occurrence in connection with watering their field. Rehm Ali (deceased) passed by them. On their inquiry he told them that one of his goats was with Allah Wasaya (acquitted accused) and he was going to take that goat from him. After a short while, an alarm was raised by Rehm Ali to the effect "save, save". On hearing this alarm, Muhammad Bakhsh and Khuda Bakhsh (P. Ws.) ran towards that side. Wahid Bakhsh and Malik Mahmood (P. Ws.) also carne to the spot on hearing the alarm and all of them saw Rehm Ali (deceased) being beaten by the aforementioned accused persons with sotas in the courtyard of their house. The prosecution witnesses beseeched the accused not to beat Rehm Ali (deceased), but they told them that they would kill him (Rehm Ali, deceased) because he had developed illicit intimacy with Mst. Bharawan, wife of Abdur Rehman, appellant, and that he had come to meet her during the night, when he was caught. They also told the prosecution witnesses that they would not allow them to take Rehm Ali (deceased) unless they promised not to report the matter to the police. Although, the prosecution witnesses agreed to this yet the accused did not release Rehm Ali (deceased) till the morning when he died at the spot. Thereafter, Muhammad Bakhsh, (complainant) went to lodge the report leaving the other prosecution witnesses at the spot to keep a watch of the dead body. He lodged the F. I. R. (Exh. P. A.) at about 1‑00 p.m. (afternoon) on the next day, i. e. after 12 hours of the commencement of the beating, at Police Station Alipur, situated at a distance of 8 miles from the place of occurrence.

5. The investigation was taken up by Saeed Ahmad Khan Lodhi, S. I. (P W. 8). The post‑mortem examination of the deceased revealed that he had been given as many as 26 injuries and his second and fourth cervicle vertebrae had been fractured. Injuries Nos. 9, 11 and 26, were found to be grievous. The last‑mentioned injury had caused the fracture of cervicle vertebrae.

6. At the trial, the prosecution produced 8 witnesses in support of its case. The prosecution case depends mainly on the ocular testimony of Muhammad Bakhsh (P. W. 5), Malik Mahmood (P. W. 6) and Wahid Bux (P. W. 7), who supported the prosecution story as given above.

7. The accused, however, pleaded innocence. Abdur Rehman, appellant, submitted that only he had injured and killed the deceased. He gave the following version of the incident :‑

"On the night of occurrence Rehm Ali deceased was found by me in compromising position with my wife Mst. Bharawan. In my struggle to apprehend him he received some injuries at my hands and in an attempt to run away he stumbled with a keela and fell down on the ground as a result of which he sustained neck injury and I also gave him injuries. The occurrence was not witnessed by any of the P. Ws. nor any of my co‑accused had participated in the occurrence. After the occurrence I had gone to the police station to lodge the report but my report was not recorded by the S. I., and the S. I. had accompanied me to the spot and he had joined the P. Ws. On the way and then had fabricated a false case against me and my co‑accused. The beating was given by me to the deceased under grave and sudden provocation and also in the right of self‑defence of my property:"

8. The learned trial Judge disbelieved the eye‑witnesses and did not consider the recovery of the sotas from the accused being of no use as they were not blood‑stained. He relied only on the statement of the appellant and held that he had committed the murder of Rehm Ali under sudden and grave provocation. He, therefore, convicted him under section 304, Part II, P. P. C. and sentenced him to seven years' R.I. on his own statement.

9. I have gone through the evidence as well as the statement of the appellant and I find that the learned trial Judge was justified in his finding, except that on application of Exception I to section 300, P.P. C. the Conviction should have been under section 304, Part I, P. P. C. (and not Part II).

I, therefore, maintain the conviction only altering it under section 304, Part I, P. P. C.

10. The learned State counsel, however, urged that since the conviction is based only on the statement of the appellant it must be believed in its entirety. He submitted further that in view of the fact that the appellant had seen the deceased sleeping with his wife at the time of occurrence it was natural for him to have got enraged and given severe beating to the deceased causing his death. He urged that in these circumstances he merited lesser sentence than 7 years' R. I.

11. The sentence in such cases is usually very small, but considering that the appellant had given a merciless beating to the deceased causing him as many as 26 injuries, which indicates a prolonged and. venomous attack on the deceased, I think that 3 years' R. I. would meet the ends of justice.

The appeal is, therefore, partly accepted. The sentence is ‑6uced from 7 years' R. I. to 3 years' R. I,

Order accordingly.

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