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Criminal Appeal No. 481 of 1984, heard on 18th December, 1984.

‑‑‑S.302‑‑Criminal Procedure Code (V of 1898), S.342‑‑Motive‑‑Cross versions‑‑Motive given in F.I.R. that accused suspected that his wife was not loyal and faithful to him‑‑Accused in his statement under S.342, Cr.P.C. admitting to have killed his wife (deceased) under grave and sudden provocation, having seen her in an objectionable condition with some other person and caused injuries to her‑‑Held, statement of accused could easily be linked up with prosecution story and no reason to disbelieve accused existed in circumstances.

‑‑‑Ss. 302 & 304,Part (II)‑‑Criminal Procedure Code (V of 1898), S.382‑B‑‑Sentence‑‑Grave and sudden provocation‑‑Accused on seeing his wife in objectionable condition with some other person giving blow so severely that her neck was severed‑‑Held, that could only be done when a person was so enraged that he lost all self‑control and provocation was sudden and grave‑‑Conviction altered to S.304(II), P.P.C. and sentence reduced to three years' R.I. with benefit of S.382‑B, Cr.P.C.‑‑[Sentence‑‑Grave and sudden provocation].

Syed Ehsan Qadir Shah for Appellant.

Rafi Siddiqi for the State.

Date of hearing: 18th December, 1984.

Mukhtar Ahmad, son of Saman, resident of Rawana was tried by the Additional Sessions Judge, Sargodha for the murder of his wife, Mst. Shahnaz. The trial Judge by his judgment, dated 2‑6‑1984 convicted the accused under section 302, P.P.C. and sentenced him to life imprisonment and a fine of Rs.2,000. In default of payment of fine, he was to further undergo R.I. for one year.

The convict has appealed to this Court.

The occurrence took place on 3‑10‑1983 at 9‑30 p.m. in the house of Mukhtar Ahmad in the area of P.S. Kot Momin. F.I.R. (Exh. P.C.) was lodged by Baqri, father of the deceased, at 12‑05 a.m. the same night. It was recorded by Khan Amir, A.S.I.

Baqri stated that his daughter Shahnaz was married to the appellant about four months prior to the occurrence. His son Muhammad Akram lived with Shahnaz in Rawana. He returned to Dhori two days before the occurrence. He told them that Shahnaz wanted to come to see them, but the appellant did not permit her. Consequently, Baqri, alongwith his wife Mst. Fatima and son Muhammad Aslam, went from his village Dhori to the house of Mukhtar Ahmad to bring Shahnaz to his house. Mukhtar told them that it was too late. They could take Shahnaz the next day. Baqri and others had their meals and went to sleep. At about 9‑30 p.m., they woke up upon the cries of Shahnaz. Baqri, Fatima and Aslam went in the room. They saw Mukhtar Ahmad causing injuries with Toka on the neck and face of Shahnaz. Upon seeing them, Mukhtar ran away, Shahnaz died at the spot.

The motive for the incident was that Mukhtar Ahmad suspected that his wife was not of good moral character. He, therefore, killed her.

The prosecution case is based on the ocular evidence of Baqri and Muhammad Aslam, recovery of blood‑stained Toka from the appellant and the post‑mortem report.

At the trial, Baqri repeated his statement as given in the F.I.R. Regarding the motive, he made improvement. He said that the appellant murdered Shahnaz because he wanted to marry the daughter of one Ziada of village Bhabara and considered Shahnaz as an obstacle in his way.

Muhammad Aslam, brother of the deceased, stated that Muhammad Akram, his brother, informed that Mukhtar and Shahnaz were having strained relations. Shahnaz had requested that she may be taken to village Dhori. He alongwith his father and mother went to village Rawana to the house of Shahnaz. They had their evening meals and were sitting in the courtyard. At about Sotewela, they heard shrieks of Shahnaz from inside the room. They rushed to that side. Saw Mukhtar armed with a Toka giving blows to Shahnaz. After giving the blows the appellant fled. Shahnaz died at the spot.

Toka Exh. P.l was recovered from the appellant. It was taken into possession vide Memo. Exh. P.E. attested by Baqri and Muhammad Aslam. It was found to be stained with human blood vide report of the Serologist, Exh. P.K., dated 20‑12‑1983.

Dr. Mazhar Rashid, Medical Officer, Incharge Rural Health Centre, Kot Momin conducted the post‑mortem examination of Shahnaz. He found multiple incised wound, extensively cutting the tissues of whole of the chin, lower part of right side of face front and right side of neck. Whole of the neck on the front was cut. Only skin of the neck remained. There were also multiple incised wounds on the front shoulder and upper part of left side of chest. An incised wound was on the front of right shoulder.

The appellant in his statement under section 342, Cr.P.C. denied the allegations. He admitted to have killed Shahnaz, but said it was under grave and sudden provocation. The relevant portion of his statement is to the following effect:‑

"On 3‑10‑1983 my parents and other family members were away to village Bhabara to congratulate my maternal uncle on the birth of his first son. Mst. Shahnaz deceased was alone in the house. I tethered my cattle at my 'Behk' which is at a distance of two squares from my house. On the night of occurrence after being free from my cattle I came home and found some hustle and bustle in the room. On going near the room I found Mst. Shahnaz in an objectionable condition with my cousin Yara. I lost self‑control, took up Toka from the same place and caused injuries with it to Mst. Shahnaz under grave and sudden provocation."

Learned counsel for the appellant submitted that the eye‑witnesses were related to the deceased. They were interested. Their testimony could not be relied upon in the absence of independent corroborative evidence.

It was further submitted that the defence version when examined in juxta‑position with the prosecution case was more convincing.

Learned counsel for the State supported the impugned judgment. He argued that the appellant had already been dealt with leniently by the trial Judge.

The main question to be considered in this appeal is as to which version is to be believed the prosecution story as given by the two witnesses, as referred to above, or the statement of the appellant. The prosecution case was that the appellant suspected that his wife was not loyal and faithful to him. This was the motive given in the F.I.R. In other words, this was the starting point of the prosecution. Therefore, the statement of the appellant can easily be linked with this. I find no reason to disbelieve the appellant.

Another factor, which lends support to the version of the appellant, is the nature of the injury. The blow was so severely given that the neck was severed. This can only be done when a person is so enraged that he loses all self‑control and the provocation is sudden and grave.

I, therefore, accept the statement of the appellant. In view of this, the conviction under section 302, P.P.C. is not maintainable.

The appeal is accepted to the extent that the conviction of the appellant is altered to one under section 304 Part II, P.P.C. He is sentenced to three years' R.I. The sentence of fine is remitted.

The appellant is also held entitled to the benefit under section 382‑B, Cr.P.C.

M.A.K. Appeal accepted.

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