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Criminal Appeal No. 529 of 1976, heard on 15th August 1977.

--- S. 300, Exception I read with S. 304, Part I-Grave and sudden provocation-Deceased, a real sister of accused. a woman of easy virtue, eloped with her paramours on more than one occasion and when asked by accused to accompany her husband, putting up defiance-Accused picking up a knife and giving serious injuries on spur of moment resulting in her death-Conviction under S. 302, P. P. C. altered to one under section 304, Part I. P. P. C in circum stances.-[Grave and sudden provocation).

Allah Ditta v. The State 1973 P Cr. L 1101; Ghulam Hussain v. The State P L D 1972 Lab. 153 and Nindo Machi v. The State P L D 1975 Kar. 120 rel.

Manzur Hussain Sial for Appellant.

Mehr Ghulam Ali Mubashir for the State.

Date of hearing: 15th August 1977.

The appellant Rab Nawaz was tried by the learned Sessions Judge, _1hang, for an offence punishable under section 302, P. P. C. for causing the death of Mst. Sakina. his sister and was convicted accordingly. He was sentenced to suffer imprisonment for life and a fine of mss. 1,000 or in default o suffer further rigorous imprisonment for six months. He has appealed against his conviction death of Mst. Sakina, his sister and was convicted accordingly. He was sentenced to suffer imprisonment for life and a fine of Rs. 1,000 or in default to suffer further rigorous imprisonment for six mouths. He bas appealed against his conviction.

2. The prosecution case as disclosed in the First Information Report recorded on the statement of Khadim Hussain (P. W. 7), husband of the deceased at Police Station, Garh Maharaja, District Jhang, is that the deceased Mst. Sakina was married to the complainant 8/9 years before. They had a daughter aged five gears out of the wedlock. Three years before the date of occurrence, deceased developed illicit relations with one Mulazam Hussain and had eloped with him, She seas restored the very next day through the intervention of baradri. The parties then lived as husband and wife at Chak Qureshe Wala. Sometime after she developed relations with one Haq Nawaz of Chah Ghulam Wala. About five days before the occurrence, sate eloped with him, When the deceased and Haq Nawaz were going together, they were seen by Manzoor and Khan P. Ws. who informed Ghulam Hussain, uncle of the complainant Khadim Hussain as to the incident. They were chased for a distance of about three miles when ultimately they were spotted out. Haq Nawaz ran away, while the deceased was captured. The deceased, however, desired that she should be handed over to her brothers. She was thus brought to the house of her parents. Later Khadim Hussain complainant alongwith other prosecution witnesses approached the accused for taking away the dec5ascd to his own house. The appellant persuaded the deceased to accompany Khadim Hussain her husband but, it seems site was not agreeable. The appellant thus provoked gave the deceased knife blown. The appellant was apprehended at the, pot. Amir Khan Lambardar P. W. 9 was informed of the incident, who came to the spot. The appellant confessed has guilt before him. The appellant was thus handed over to him. Leaving others at the spot, Khadim Hussain complainant proceeded to the police station where the F. I. R. was lodged.

3. Ch. Saleh Muhammad, Sub-inspector, came to the spot for necessary investigation. He prepared the injury statement Exh. P. J. and inquest report Exh. P. K. The dead body was dispatched to the Civil Hospital, Shorkot, for post-mortem. The appellant was produced by Ch. Saleh Muhammad, Sub-Inspector for recording his confessional statement before Muhammad Javed Gill. Magistrate 1st Class, Shorkot. His confessional statement under section 164, Cr. P. C. (Exh. P. S.) was recorded. Under this statement he has confessed to have killed Mst. Sakina.

4. The appellant during the trial denied the prosecution allegations. He stated that Hag Nawaz wanted to carry away Mst. Sakina his sister forcibly who resisted. The appellant responded to her call. Haq Nawaz attacked the appellant as well and gave him injuries with the knife. According to him his confessional statement was recorded under torture of the police. He wag not disclosed that the person recording the statement was a Magistrate.

5. The learned Advocate appearing for the appellant did riot seriously contest the prosecution version on the merits. He however argued that the conviction of the appellant under section 402, P. P. C. is not sustainable. According to him the case falls under Exception 1 to section 300 of the P. P. C. and the appellant had thus committed an offence punishable under section 304, Part I of the Code. He referred to Allah Ditta v. The State (1973 P Cr. L J 101), Ghalam Hussain v. The State (P L D 1972 Lah. 13) and Nindo Machi v. The State (P L D 1975 Kar. 120). The learned counsel appearing for the State did not seriously contest this proposition.

6. I have considered the arguments of the learned counsel for the parties. The learned trial Judge in his judgment has observed thus :-

"It has been proved that Mst. Sakina deceased was of bad character. She had earlier eloped with one Mulazim Hussain. Subsequently she established illicit intimacy with Hag Nawaz. On this point there is complete mention of the facts in the P. 1. R. and in the statements of Khadim Hussain (P. W. 7), her husband, and Muzaffar Khan (P. W. 8) made before the Committing Magistrate. These statements have been transferred to the file of this Court under section 288, Cr. P. C. Khadim Hussain (P. W. 7) did not concede about those statements made by him before the police and Committing Magistrate and he was properly contradicted with the same. Muzaffar Khan (P. W. 8) admitted in this Court to have deposed before the Committing Magistrate that Mst. Sakina was not prepared to accompany complainant Khadim Hussain. It is also the statement of the accused that Hag Nawaz was trying to take away Mat. Sakina forcibly. I do not believe him for that matter, for the reasons given below but suffice it here to say that Mst. Sakina was not having good reputation about her, character. Had she been a pious lady, there would lave been no question of her elopement and subsequent restoration. The facts and circumstances of the care show that Mst. Sakina was a lady of easy virtue and that she had illicit intimacy with Hag Nawaz. It is also believable that she had eloped with Hag Nawaz and was thereafter restored to her brothers."

It, therefore, appears that when the deceased was restored for the second time, the appellant attempted to persuade hot to join her husband. She was not agreeable. This provoked the appellant, who killed her under sudden seed grave provocation. The case, therefore, falls under Exception I to section 300 of the Code. The nature of the injuries inflicted and true result that had followed show that the appellant intended to cause death or at least of causing such bodily injuries as was likely to cause death. His case, therefore, would fall under section 304, Part I.

7. I am supported in the view I have taken by the judgments noticed above. In P L D 1975 Kar. 120, the wife of the accused having eloped on a previous occasion again; disappeared. The accused spent sometime of searching let, but on his returning home, he found her present in the house. The sight of the wife provoked the accused who caused her death. The accused was punished under section 304. Part I. In 1973 P Cr. L d 101, the wife had eloped with Zahur Shah and on being restored to the husband some lays later instead of feeling repentence affirmed the truth and further asserted to repeat the act. The husband losing self-control, gave stick blows which proved fatal. It was thus held that tire provocation was sufficient to bring the offence within Exception I to section 300, P. P. C. The conviction was altered to section 304, Part I and sentence reduced to already undergone. In P L D 1972 Lab. 153 the deceased, a giver of the accused, had eloped. The accused has, reprimanded at her elopement but was confronted with a challenge from her equally provoked. The conviction was altered to one under section 304(1), P. P. C.

8. For all the reasons, I am inclined to partly accept this appeal taking the view in the circumstances of the case that the appellant could be deemed to have Wed under grave and sudden provocation. Accordingly, the conviction under section 3u2. P. P. C. is altered to one under sec tion 304(I). This brings me to the question of sentence. The appellant A has undergone about 1 i years so tar. The occurrence took place in or about April 1974. The appellant had continuously remained in detention, I am, therefore of the view that the sentence already undergone by him would be sufficient to meet the ends of justice. As the sentence is being awarded under section 304(1). The appellant shall have to be fined also. There is no question of payment of the fine by way of compensation to any, of the dependents of the deceased. I reduce the amount of fine imposed to a nominal sun of Rs. 100. The appellant will suffer rigorous imprisonment for one month in default of the payment of the fine.

Order accordingly.

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