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‑‑ S. 302‑Murder‑Accused caught red‑handed‑Eye‑witnesses giving consistent account of occurrence‑No personal enmity of eye‑witnesses against accused to falsely implicate him present‑Eye‑witnesses though subjected to lengthy cross‑examination but nothing favourable to accused could be elicited‑Prosecution, witnesses fully corroborating each other‑Eye‑witnesses corroborated by medical evidence‑Crime weapon seized from possession of accused at time of occurrence then and there‑Blood‑stained clothes removed from person of accused by police‑No explanation from accused pleading not guilty, forthcoming as to how accused came into hands of prosecution witnesses‑Motive also established‑Held, circumstance that accused was caught red‑handed was a very strong piece of evidence against accused‑Prosecution witnesses being natural witnesses duly corroborated by other witnesses, though related to deceased, their evidence could not be discarded on score of their relationship alone ‑ Accused rightly convicted in circumstances.

(b) Penal Code (XLV of 1860)‑

‑‑ S. 302‑Murder‑Sentence‑Mitigation‑Fact that deceased (lady) was previously married to accused but rukhsati was yet to take place when accused was sent to jail in connection with a murder case Deceased contracting second marriage in absence of accused when he was serving out sentence in jail‑Prosecution stating that accused had divorced her and she after that had contracted another marriage having given birth to four children from that wedlock‑Prosecution unable to lead any convincing evidence to show that accused had divorced deceased‑No document or witness produced to show that divorce was pronounced by accused‑Mere oral assertion of complainant and other eye‑witnesses that accused had divorced his wife, but accused denying having divorced the lady and claiming her to be still his wife‑Held, conduct of deceased contracting second marriage when accused was absent and was serving out sentence in jail was surely provoking factor which inter alia was extenuating circumstance which mitigate offence‑Mere fact that deceased contracted second marriage without being formally divorced by accused would entitle him to lesser sentence provided for murder‑Sentence of death altered into life imprisonment to circumstances.‑[Sentence].

(c) Penal Code (XLV of 1860)‑

‑‑‑ Ss. 302 & 300, Exception I‑Murder‑Provocation‑Deceased lady previously married to accused but rukhsati was yet to take place when accused was sent to jail in connection with a murder case Deceased contracting second marriage in absence of accused when he was serving out sentence in jail‑Deceased out of that wedlock giving birth to four children‑Held, since deceased was already living with her other husband (complainant) as his wife and had four children and there was nothing to show that accused did not know about her second marriage etc., earlier or as to how long before occurrence he had come out of jail, therefore, occurrence would not be a case of grave and sudden provocation in circumstances.‑[Grave and sudden provoca tion].

Sahibzadia Farooq All Khan for Appellant.

Nisar A. Saeed for the State.

Dates of hearing : 12th and 13th March, 1984.

IJAZ NISAR, J.

---‑Farid son of Bahadur (43), caste Daultana, resident of Tibi Mauza Mitha Hunjan, Tehsil Vehari, has been convicted by the learned Addi tional Sessions Judge, Vehari under section 302, P. P. C., on 27‑8‑1981 and sentenced to death and a fine of Rs. 1,000 or in default to undergo three months' simple imprisonment for the murder of Mst. Sardar Bibi (30) with a hatchet on 3‑2‑1978 at 10 a.m.

The fine was ordered to be paid to the legal heirs of the deceased. We have before us the appeal and the connected murder reference.

2. Mst. Sardar Bibi deceased was previously married to the appellant. The rukhsati was yet to take place that the appellant was sent to jail in connection with a murder case. The prosecution case is that he had divorced her and thereafter she solemnized marriage with Allah Yar P. W. 4. Out of this wedlock she gave birth to four children. She was living happily with Allah Yar P. W. 4. On the fateful day at 10 a.m. the appellant attacked the deceased with a hatchet in her house. Her shriek attracted Allah Yar P. W. 4, Zaka Ullah P. W. 5, Ghulam Qadir P. W. 6 and Rahim Bakhsh P. W. 7 who rushed to the spot and witnessed the occurrence. They apprehended the appellant alongwith his hatchet. Mst. Sardar Bibi died on the spot. Leaving the appellant in the custody of the aforementioned P. W., Allah Yar P. W. proceeded to P. S. Ludan where he lodged the F. I. R. Exh. P. E. with Syed Iqbal Hussain A. S. I. on the same day at 10‑35 a m. The distance between spot and police station, being two furlongs.

3. After recording the F. 1. R. Syed Iqbal Hussain A. S.‑1. P. W. 9 reached the spot, prepared the inquest report Exh. P. K. and injury statement Exh. P. L. of the deceased. He collected blood‑stained earth from the spot. Zaka Ullah P. W. 5 produced hatchet P. 1 of the appellant before him alongwith broken handle P. 2 which he took into possession through memo.

Exb. P. F. attested by Zaka Ullah and Gbulam Qadir P. Ws. The P. Ws. also produced 'the appellant before the A. S.‑I. who arrested him. Blood stained shirt P. 3, Chadar P. 4 and Muffler P. 5 of the appellant were got removed from his person through memo. Exh. P. G.

All the above‑mentioned articles were found to be stained with blood by the Chemical Examiner vide report Exh. P. M.

4. Dr. Wasim Akhtar P. W. 1 conducted autopsy on the dead body of Mst. Sardar Bibi deceased on 3‑2‑1978 and found the following injuries there on: ‑

(1) Two incised wounds 3 " x 1 x bone deep, which was cut, 2" x 1" x bone deep and cut on the left fronto‑parietal region of head.

(2) An incised wound 3 " x 1 " on the right side of forehead, the underlying bone was completely cut.

(3) An incised wound 2 " x " on the right side of mandible in front of right ear underlying bone was cut, with a portion of a pinna of right ear.

(4) An incised wound 1 " x "on tip of nose going deep upto septem which was cutting.

(5) An incised wound 2 " x " x bone deep and cut on the

right chin.

(6) An incised wound 2 " x "x bone deep and cut on left side of chin, meeting injury No. 5.

(7) An incised wound 1 " x " x bone deep on left side of occipital region of bead.

(8) An incised wound 2 " x " on left cheek cutting completely the underlying bone.

(9) An incised wound 3" x 1 " on front side of the neck reaching upto mid‑line. All the underlying muscles, blood vessels on the right side of neck were cut, trachea was cut below the laryngeal cartilage, cervical spine fourth was partially cut.

(10) An incised wound 2 1/3 " x 3" on the front and right side of the neck just below injury No. 9 cutting the juglar and carotid vessels and muscles underneath.

(11) An incised wound 2 x " x bone deep on the back of left shoulder.

(12) An incised wound 2 " x " on the back of left shoulder cutting the coracoid process of left scapula under it.

(13) An incised wound 2" x " x bone deep on the back, lower and outer part of left scapula.

(14) Bluish contusion mark 2 " x 1" on front and middle of left upper arm.

(15) A bluish contusion 2 " x 1 " on right breast just above the nipple.

(16) A contusion mark 1 " x " on front and upper part of right arm.

(17) An incised wound 1 " x 1/3 " on front and upper part of right forearm.

(18) An abraded contusion 2 " x " on outer side of the lower part

of the right forearm.

The cause of death was due to shock and haemorrhage as a result of cutting off of the front of neck and cutting off the skull and brain which were sufficient to cause death in the ordinary course of nature. All the injuries were ante‑mortem. Injuries Nos. 1 to 13 and 17 were caused by sharp edged weapon while injuries Nos. 14, 15, 16 and 18 were caused by blunt weapon. The probable time between injuries and death was immediate and that between death and post‑mortem was about 6 to 8 hours.

According to the doctor the deceased was pregnant and the death of the foetus was due to the death of the deceased. Stomach contained 6 ozs. of freshly taken curdled milk. Small and large intestines contained faecal and gas. Urinary bladder was full of urine.

5. The appellant pleaded not guilty to the charge and denied the prosecution allegations. He denied having divorced the deceased and stated that Allah Yar P. W. was keeping his wife illegally. He attributed the case to enmity and suspicion. He denied his apprehension at the spot and production before the police by the P. Ws. and also the removal of his clothes by the police. He did not lead any evidence in defence.

6. The prosecution case rests on the evidence of Allah Yar P. W. 4, Zaka Ullah P. W. 5, Ghulam Qadir P. W. 6 and Rahim Bakhsh P. W. 7. They furnished the ocular account. Allah Yar P. W. 4 is the husband of the deceased and the complainant in the case. He stated that be alongwith aforementioned P. Ws. was sitting at his dera when he reached the spot on hearing the cries of the deceased. Zaka Ullah P. W. 5 stated that he had gone to village Ludan for the purchase of a buffalo. Ghulam Qadir P. W. 6 is brother of the deceased. He was present at the dera of Allah Yar at the time of occurrence. Rahim Bakhsh P. W. 7 had gone to the dera of the complainant to collect the price of the cloth sold to Allah Yar. These P. Ws. had also apprehended the appellant alongwith his hatchet and later produced him before the police.

7. Relying upon the ocular testimony furnished by Allah Yar, Zaka Ullah, Ghulam Qadir and Rabim Bakhsh P. Ws. and the motive, the trial Court convicted and sentenced the appellant as stated above.

8. Assailing the judgment, the learned counsel for the appellant contends that the evidence is of interested nature, that there is absolutely no evidence to the effect that the appellant had divorced the deceased and further that there are material discrepancies in the statements of the eye‑witnesses.

9. So far as the eye‑witnesses are concerned, they have given. a consistent account of the occurrence. They had no personal enmity against the appellant to falsely implicate him. They were subjected to lengthy cross examination but nothing favourable to the appellant could be elicited from them. They stand corroborated by the medical evidence. The circumstance that the appellant was caught red‑handed, is a very strong piece of evidence against him. The A. S. I. who had investigated the case, states that he had arrested the appellant from the house of the deceased when he was produced before him by the P. Ws. The hatchet P. 1 with which he had injured the deceased was also seized from his possession there arid then. His blood stained clothes were also removed from his person by the police. There is absolutely no explanation as to how he came into the hands of the P. Ws. Zaka Ullah P. W. 5 and Rabira Bakhsh P. W. 7 are absolutely independent witnesses having no animus against the appellant to falsely implicate him, They have fully corroborated Allah Yar P. W. 4 and Ghulam Qadir P. W. 6. No doubt Allah Yar and Ghulam Qadir are related to the deceased but there is no reason to discard their evidence on this score only. They are natural witnesses and stand corroborated by the other P. Ws. The motive also stands established. The, appellant has not denied that the deceased was not previously married to him.

10. In view of the above circumstances, the appellant was rightly convicted. However, as regards sentence we find that there are extenuating circumstances which mitigate the offence. The prosecution has not led any, convincing evidence to show that the appellant had divorced the deceased. No document has been produced in this behalf nor anybody claims that in his presence the divorce was pronounced by the appellant. There is a mere oral assertion by the complainant and other eye‑witnesses to this effect which has been denied by the appellant and he still claims the deceased to be his wife. The conduct of the deceased in contracting a second marriage in the absence of the appellant when he was serving out the sentence in jail was surely to provoke him. Since the deceased was already living with the complainant as his wife and had four children from her and there is nothing to show that the appellant did not know about it earlier or as to how long before the occurrence he had come out of the jail, therefore, it would not be a case of grave and sudden provo cation. However, the mere fact that the deceased contracted second marriage without being formally divorced by the appellant would entitle him to lesser sentence provided for the offence of murder. We order accordingly, and alter his death sentence to imprisonment for life. The sentence of fine is, however, maintained. The fine if recovered shall be paid to the heirs of the deceased as compensation.

The appellant shall also be given benefit of section 382‑B, Cr. P. C.

The death sentence is not confirmed.

Order accordingly.

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