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Criminal Appeal No, 200 of 1977, decided on 28th June, 1981.

(Against the judgment of the Lahore High Court. dated 27-5-1977 in Criminal Appeal No. 810 of 1975/Murder Reference No. 90 of 1976).

-----S. 302 read with S. 300, Exception 1 Murder-Grave provocation Accused appellant stating to have been suspecting his wife's character leading to frequent quarrels between them-Few days before occurrence appellant's wife (deceased) leaving house without permission of appellant, appellant resenting such conduct very much and reprimanding her strongly leading to deceased's parents having visited appellant next morning to patch up matter and calm him down-Some untoward incident, obviously, held, occurred on day of occurrence which led appellant to attack his own wife (deceased) with a sharp-edged weapon-None of eye-witnesses stating as to what happened prior to incident because all of them reached spot after attack already initiated-Number and nature of injuries on person of deceased indicating existence of some serious provocation--Appellant though not successful in proving existence of grave and sudden provocation, as alleged by him, yet clear indication existing of some serious provoca tion having been given to him by his wife (deceased) just before incident-Case, in circumstances, held further, not fit for award of capital punishment-Sentence of death reduced to that of imprisonment for life.---[Grave and sudden provocation).

Val Muhammad v. Bajoo and others 1978 S C M R 257 ref.

Qazi Muhammad Saleem, Advocate Supreme Court and S. Wajid Hussain, Advocate-on-Record for Appellant.

Rashid Aziz, Additional Advocate-General for the State.

Date of hearing : 28th June, 1981.

-This Appeal by Muhammad Ashraf by Leave of the Court, is directed against the judgment dated 27-5-1977, of a Division Bench of the Lahore High Court, dismissing his Appeal in a murder case.

2. The appellant was tried and convicted for causing the murder of his wife, namely, Mst. Almas Begum, in his own house, at about 1-30 p. m. on 11-5-1973, by giving her repeated blows with a sharp-edged weapon and giving numerous injuries on various parts of her body.

3. According to the prosecution version the appellant and Mst. Almas Begum were married 8/9 years prior to the occurrence. They lived amicably for a couple of years but later on their relations became strained and they picked up frequent quarrels. According to the appellant the. reason was that he suspected his wife's character. On 8-5-1973, while to appellant was away from his house Mst. Almas Begum went with Mst. Jamila to the house of the complainant. Later in the day, the appellant also went to the complainant's house and reprimanded his wife for having left the house without his permission. He then took her back with him. On the following day parents of the deceased (Mst. Almas Begum) went to the house of the appellant alongwith one Abdul Rahim and asked him not to treat Mst. Almas Begum harshly, on which the appellant assured them that he would not harass her in future.

It is alleged that at about 1-30 p. m., on the day of occurrence (11-5-1973), Mst Rashida Bibi, P. W. 9, who lives in the adjacent house heard a noise from the appellant's house and on going there she saw that the accused appellant was assaulting his wife with a bughda (sharp-edged weapon). On seeing this, she (Mst. Rashida Bibi) raised hue and cry. Muhammad Sharif, P. W. 8, father of the deceased and Muhammad Amin, P. W. 10, who happened to be in the vicinity also rushed to the spot on hearing the noise and also saw the appellant giving some injuries.

4. At the trial, the appellant accused admitted the incident but pleaded having killed Mst. Almas Begum under grave and sudden provocation. He admitted that Mst. Almas Begum had left his house without his permission on 8-5-1973, in the company of Mst. Jamila Bibi. He also admitted that he used to quarrel with his wife quite often but explained that he doubted her chastity. He stated further that on the day of occurrence he returned to his house out of schedule, as he had finished his work earlier than usual and saw the deceased in a compromising position with Javaid, a brother of the aforesaid Mst. Jamila, whereupon he lost his temper and picking up a bughda lying in the house, he inflicted injuries on Mst. Almas Begum under grave and sudden provocation, while Javaid managed to escape.

5. The learned trial Court rejected the defence version and relying on the testimony of the eye-witnesses, convicted the appellant and sentenced him to death and a fine of Rs. 5,000. The High Court dismissed his appeal and confirmed the sentence of death vide the impugned judgment.

6. Feeling aggrieved, the appellant filed a petition for leave to appeal. A Bench of this Court which heard the petition upheld appellant's conviction under section 302, P. P. C. but granted leave to consider the question of reduction of sentence in view of the fact that all the eye-witnesses had come when the attack was in progress and there is no evidence on the record as to what transpired immediately before the occurrence which induced the appellant to attack his own wife in this fashion.

7. The case was called at 10 a. m., but neither the learned counsel for the appellant nor the A. O. R. turned up. We waited for them and the case was again called out at 12-45 p. m., but none entered appearance on behalf of the appellant. We, therefore, proceeded to hear the Appeal with the assistance of Mr. Rashid Aziz, Additional Advocate-General.

8. On going through the testimony of the three eye-witnesses we notice that none of them was present at the spot when the appellant accused initiated the attack. None of them was, therefore, in a position to say as to what led the appellant to make such a ferocious attack at his wife with a sharp-edged weapon and caused her repeated injuries which resulted in her death.

9. The appellant and Mst. Almas Begum had been married for last 8/9 years. It is stated by the P. Ws. that they used to quarrel off and on but no serious cause of discord between the spouses has been brought on the record. The appellant has, however, explained that he suspected his wife's character which led to the frequent quarrels between them. This finds support from the fact that when a few days before the occurrence, Mst. Almas Begum, left the house with Mst. Jamila, without appellant' permission, he resented it very much and reprimanded her strongly, so much so that her parents had to go to the appellant's house next morning to patch. up the matter and calm him down. It is, therefore, obvious that on the day of occurrence some untoward incident had taken place which led the appellant to attack his own wife with a sharp-edged weapon and inflict numerous injuries on her. None of the eye-witnesses has stated to what bad happened prior to the incident, because all of them bad come to the spot after the attack had already begun. But the number and nature, of the injuries on her person indicate the existence of some serious provocation. Although the appellant has not been successful in proving the existence of grave and sudden provocation as alleged by him, yet there are clear indications that some serious provocation had been given to hi by his wife (the deceased) just before the incident which caused the appellant to attack her, in this manner. As such we do not consider it fit case for capital punishment. This view is supported by Vali Muhammad v. Bajoo and others (1978 S C M R 257).

We, therefore, reduce the sentence of the appellant from death to that of imprisonment for life. The sentence of fine and the imprisonment in default thereof, is however, maintained. With the above modification, the Appeal is dismissed.

Appeal dismissed. Sentence reduced.

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