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Criminal Appeal No. 430 of 1977, decided on 6th May, 1979.

‑‑--S. 154‑Statement of prosecution witness alleging accused having admitted to have seen his deceased wife in flagrant delicto with another‑Not challenged by prosecution by making prayer for permission to cross‑.examine witness on point‑Prosecution if not accepting such statement ought have prayed for permission to cross -examine witness‑Statement, held, cannot be held to be a deliberate concession at‑ appeal stage, accused appellant's case being likely to be prejudiced due to his having abstained to cross‑examine witness further on point.‑[Witness].

‑‑‑S. 154‑First information report‑Normally. not detailed version of case and not substantive evidence.

--‑‑S. 300, Exception 1 read with Evidence Act (I of 1872), S. 105‑Plea of sudden and grave provocation‑Benefit ‑of‑Founded on principle of losing self‑control, balance of mind, or reasoning‑Burdening accused in such state of rage with. accounting for escape of paramour, held, too much requirement.‑ [Grave and sudden provocation].

‑‑ S. 300, Exception I‑Seeing wife and paramour in compromising position‑Held : By itself grave and sudden provocation‑Being'" naked‑Not a necessary requirement of law.‑[Grave and sudden provocation].

M. Bashir Chaudhry for Petitioner.

Abdul Samad Hashmi for the State.

Date of hearing: 6th May 1979.

The appellant Muhammad Boota son .of Shaikh Muhammad, aged 70 years at the time of trial was tried,, for the murder of his wife Mst. Hamidan, in the Court of Ch. Muhammad Sharif, Sessions Judge, Multan, who vide orders dated the 29th November, 1976 found him guilty and convicted him under section 304, Part I of the Pakistan Penal Code and passed the sentence of imprisonment for life. The appellant has impugned the aforesaid orders by this appeal.

The occurrence took place on the night between 4th and 5th May, 1972 in the house of the appellant situate in Chak No. 10/A.H., Police Station. Kabirwala, District Multan. Report Exh. P.K. was lodged by Wariam Khan Lambardar (P. W. 6) at 10‑00 a.m. on the 5th May, 1972, which was recorded by P.W. 8 Abdur Rahim, Sub‑Inspector of Police, Police Station, Kabirwala.

2. Immediately after the murder the appellant reported the matter to P.W. 6 Wariam Khan Lambardar who produced him before the Investigating Officer at the time of reporting the incident. Blood‑stained shirt Exh. P. 2 was taken off the person of the appellant vide memo. Exh. .PE. He led to the recovery of blood‑stained kassi P. 4. and blood stained chhuri P. 5, which were taken into possession vide memos. Exh. PF. and PG. These memos. are attested by P.W. 7 Muhammad Amin besides the Investigating Officer Abdur Rahim (P.W. 8).

3. In view of the extra‑judicial confession and the plea of the appellant before the learned trial Court as well as before this Court, these recoveries and the medical evidence are of no consequence.

4. The evidence against the appellant comprises the extra‑judicial confession before P.W. 6 Wariam Khan Lambardar and the other witness, namely, Kamman to that effect has not been produced. The judicial confession was recorded by P.W. 9 Mr. Muhammad Iqbal Chughtai, Magistrate Ist Class, Kabirwala. The judicial confession. reveals the prosecution case in its entirety, and therefore, the same is reproduced :‑‑

The relevant extracts for the purposes of, decision of this appeal are reproduced from the evidence of P. W. 6 Wariam Khan Lambardar :‑

Muhammad Boota accused told us that he had killed test. Harridan, his wife as she was having illicit relations with one Gulzar The accused also told us that Mst. Harridan had returned from Khanewal and he gave a kassi blow on her face and injured her neck by a chhuri .I started from my village after saying my morning prayers and reached the Police Station at 10‑00 a. m ...The accused had said to me that he had seen Mst. Hamidan in flagrante delicto with Gulzar and, therefore, killed her."

The learned trial Court has relied upon the judicial confession, and discussing the extra‑judicial confession and the evidence of P.W. 6 Wariam Khan Lambardar in paragraph 6 of the judgment, has brushed aside the admission to the effect that the appellant had seen Mst. Hamidan (deceased) with Gulzar in ,flagrante delicto. The reasoning of the learned trial Court is that this was a concession as it had not been so stated in the F.I.R. I do not agree with this reason. The prosecution had not challeng ed this admission. If the prosecution was not accepting this part of the statement, it should have prayed for permission to cross‑examine the witness and challenge the same; if we were to hold at this stage that this, was a deliberate concession this would certainly prejudice the case of the' appellant, as he had accepted this aspect and not cross‑examined they witness further in this regard. In any case the first information report is normally not a detailed version in a case nor it is substantive evidence in the case. The evidence in the case is the sworn testimony of a witness at the trial.

The plea of the appellant that he found the deceased and Gulzar in fagrante delicto has been discussed by the learned trial Court in para graph 10 of its judgment, and he has rejected the same in the following manner : ‑

"There is no evidence on the file as to where Gulzar had fled away and in case she was found in flagrante delicto with Gulzar then her shalwar would not have been on her body. The defence version does not ring true."

The benefit of the plea of grave and sudden provocation is founded on the principle of losing self‑control or balance of mind, or balance o reasoning on such a provocation: In such a state of rage where a person loses self‑control, it is too much to burden the appellant with the responsibility of accounting for the escape of the paramour. In such a rage it is quite probable that he may have attacked the one who confronted him first and the other escaped meanwhile. The appellant was about 70 in age and would not be smart enough to catch hold of the both at the same time. Seeing the two in compromising position is by itself a grave and sudden provocation. Being naked is not a necessary requirement of law in this regard.

The appellant was 70 years old. Admittedly Mst. Hamidan deceased was leading an immoral life, and he made a frank confession at the earliest possible stage and in the document Exh. PN/1, in answer to a question put by the learned Magistrate (P: W. 9) Muhammad Iqbal Chughtai, who recorded the judicial confession, the appellant had stated :‑

This answer has escaped the notice of the learned trial Court. The learned trial Court has accepted the judicial confession and even if I was to accept the same, though I am accepting the extra‑judicial confession as the truth. The judicial confession was made after more than 48 hours of being in police custody, and I cannot rule out the possibility of his being misled to incorporate in his story certain facts calculated to indicate a calculated murder. The appellant could not afford a lawyer and he got legal assis tance at State expense. .I would say that the extreme penalty of imprisonment for life under section 304, Part I of the Pakistan Penal Code was not called for in the circumstances of the case. 1, therefore, taking into consideration his age of over 70 years and the fact that the occurrence took place on the 5th May, 1972 and since then the appellant is behind the bars, reduce his sentence to one of that already undergone, which comes to nearly 7 years' imprisonment. He shall be released forthwith if not required in any other case.

The appeal is party allowed.

Appeal partly allowed.

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