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Criminal Appeal No. 604 of 1976, decided on 14th March, 1979.

---S. 302---Evidence, appreciation of---Ocular evidence reliable supported by recovery of crime weapon---Conviction maintained, in circumstances.---[Evidence].

-- S. 300, Exception I read with S. 304 (I)--Grave and sudden provoca tion-Quarrelsome attitude of deceased towards accused lingering on for a pretty long time and her misbehaviour suddenly provoking accused when she slapped and grappled with him--Evidence showing deceased provoking accused every now and then for last 2/3 days- Accused, held, caused death of deceased under grave and sudden provocation-Conviction under S. 302, P. P. C. altered to one under S. 304, Part 1, in circumstances.-[Grave and sudden provocation].

Petitioner through Jail.

Asif Jan, A. A.-G. assisted by Rao Muhammad Yousaf for the State.

Dates of hearing: 13th and 14th March, 1979.

Muhammad Iqbal appellant is alleged to have killed his mother Mst. Habibo who remarried about 27 years before the occurrence with Meraj Din (P. W. 8), on 11th June, 1973 at sunset time in the house of his step father, situate in Bara Dari, Tezab Ihata, G. T. Road, Lahore. The statement of Meraj Din was recorded in Mayo Hospital, Lahore, at 9 p. m. by Azizullah A. S. I. (P. W. 12), where Mst. Habibo was taken in injured condition by her husband. Formal F. I. R. (Exh. P. A/1) was drawn at Police Station Misri Shah at 9-30 p. m. the same day under section 302, P. P. C. In the F. I. R. the distance between the police station and the place of occurrence is men tioned as four furlongs.

2. Two eye-witnesses were produced at the trial, namely, Meraj Din (P. W. 8) husband of the deceased and Mukhtaran Bibi (P. W. 9) daughter of the deceased out of second wedlock. The other eye-witnesses Akbar Beg and Zahoor Ahmad, who were neighbours, have been given up at the trial, having been won over.

3. On 12th June, 1973, blood-stained chhuri (P. 2) was recovered from the appellant, which was taken into possession vide Memo. Exh. P. F. attested by Mukhtar Ahmad and Muhammad Latif. The latter was not produced. The reports of the Chemical Examiner and the Serologist show that the chhuri was stained with human blood.

4. Meraj Din (P. W. 8) deposed that he married Mst. Habibo 27 years before the occurrence. Five/six years before the occurrence Iqbal appellant was married. The appellant and his wife lived for 2 years with Meraj Din but thereafter they shifted to a separate residence. A year and a half before the occurrence the appellant's wife deserted her husband who is said to have been on friendly terms with a boy known as Hero to whom he used to bring to the house of Meraj Din. The deceased was elergic to his visit and had on several occasions asked the accused to advise his friend not to visit their house, since he was not enjoying good reputation. Mukhtaran Bibi (P. W. 9) although married was living in the house of her parents. The witness further gave the description of the incident saying that on the day of occurrence he came to his house and met the appellant why told him that he had been beaten by Mst. Habibo. The appellant left the house after telling him of the incident. Mst. Habibo and Mukhtaran Bibi were sitting on a cot in the Courtyard when the witness went into the room of the house and remained there for ten minutes. He heard alarm from outside raised by Mukhtaran Bibi saying that her mother was being killed. The witness came out and saw the appellant standing in the door of the courtyard. Mst. Mukhtaran was saying that the appellant bad inflicted chhuri blows on Mst. Habibo. The witness did not see any injury on the person of his wife but she had placed her hand on her heart and was lying on the floor. He was declared hostile and cross-examined by the P. P. His statement recorded before the C. M. was transferred under section 288, Cr. P. C. to the Sessions file. He admitted to have stated before the C. M. that his wife was sitting on a cot in the courtyard and his daughter was also present there. The appellant appeared at the spot and threatened the deceased with dire consequences and inflicted chhuri blow to the deceased.

The most important evidence in the case is that of Mst. Mukhtaran (P. W. 9). She stated at the trial that the appellant, who is her step-brother had been deserted by his wife before the occurrence. He was on friendly terms with a boy known as Hero, who was of bad character. The appellant insisted that Hero will visit the house while her mother resented to his coming to the house. Two days before the occurrence the deceased and Iqbal quarrelled on account of the visit of Hero. On the day of occurrence her mother had violent quarrel over the same dispute. She slapped the appellant on receipt of which the appellant left the house. In the evening again on the arrival of the appellant deceased reprimanded him. Hot words were the con tinuously exchanged between them till sunset. The witness saw the appellant grappling with her mother with a chhuri in his hand. She tried to save the situation but fell down. Mst. Mukhtaran is also injured. She stated that despite the fact that she was married she mostly lived in the house of her parents. The wife of the appellant had gone to her parents leaving behind a daughter of seven days. She denied the suggestion that her deceased mother had turned out the wife of the appellant after snatching the infant. She deposed that she did not see Hero indulging in any immoral activity. Prior to the occurrence the deceased remained in Railway Hospital for about a week on account of her illness. The appellant got her admitted there. Her father and the appellant used to provide treatment to Mst. Habibo whenever she fell ill.

6. At the trial the appellant denied the occurrence and recovery of chhuri. He stated that he was falsely implicated on account of enmity bemuse the P. Ws. were his step-father and step-sister. He also said that he opposed the marriage of Mst. Mukhtaran with the person to whom she is married. Mst. Mukhtaran has been divorced. He pleaded innocence and declined to produce any defence.

7. From persual of the evidence it is abundantly clear that the appellant is a person who has caused the death of Mst. Habibo, but the circumstances which have been disclosed by his step-sister clearly show that there was a 4 continuous quarrel of the appellant with the deceased. The deceased did no leave any opportunity of misbehaving with the appellant, so much so she gave slap, abused him and there was a grappling. The prosecution has tried to split the incident into two parts in order to bring the case within the purview of section 302, P. P. C, which seems to be one and the same incident. The quarrelsome attitude of the deceased was lingering on for a pretty long time and her misbehaviour suddenly provoked the appellant when she slapped him. The grappling further supports this view. Testimony of Mst. Mukhtaran reveals that the deceased was provoking the appellant every now and then for the last 2/3 days. In my humble view the appellant's case falls within Exception I to section 300, P. P. C. I, therefore, alter his conviction from section 302 to section 304, Part I and sentence him to ten years' R. I. He will, however, get the benefit of period for which he remained in custody during the trial under section 382-B, Cr. P. C. With this modification in the sentence the appeal is partly accepted.

Appeal partly accepted.

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