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Jail Petition No.33‑R of 1984, decided on 12th March, 1985.

(On appeal from the Judgment and Order dated 17‑3‑1984 of the Lahore High Court, Lahore, in Criminal Appeal No.600 of 1980 / Murder Reference No.126 of 1980).

‑‑‑Art.185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Sentence‑‑Jail petition converted into appeal‑‑Appellant tried for murdering his wife and sentenced to death‑‑No background of enmity or ill‑will betwe4p spouses‑‑Got infuriated by her refusal and insistence not to accompany him‑‑Act of accused, held, impulsive and without premeditation‑‑Sentence reduced to life imprisonment, allowing benefit of S. 382‑B, Cr.P.C.‑

Hafiz S.A. Rehman, Advocate Supreme Court for Appellant. Ghulam Dastgir, Advocate Supreme Court for A.‑G. Punjab for the State.

Date of hearing: 12th March, 1985.

‑‑Muhammad Sharif, convicted of murdering his own wife, has sought leave to appeal from the Jail against the judgment of the Lahore High Court dated 17‑3‑1984 whereby his conviction was upheld and the sentence of death awarded to him was confirmed.

At the outset, after hearing the learned counsel for the petitioner, we converted this petition into an appeal for disposal on merits. The delay is condoned.

The allegation against the appellant was that he was married to Mst. Nooran Bibi about fifteen or sixteen years ago and they had three children. About three, days before the occurrence, she had left the house of the appellant at Sadiq Abad and had come over to the house of her cousin Nazir (P.W.7) a resident of Mandi Hirasingh in Depalpur District‑ Sahiwal. On the morning of 8th October, 1976 at 7 a.m. when Nazir (P.W.7), Roshan Din (P.W.8) and Mst. Hashmat Bibi (P.W.9), a sister of the deceased, were present in the house of Nazir, the appellant turned up there. He asked Nuran Bibi to accompany him to his house and on her refusal to do so he pulled out a .12 bore pistol from the bag and aimed at Mat. Nuran Bibi. She wanted to escape and rushed to the Kotha in order to bolt herself inside but the appellant pursued her and fired at her killing her. He loaded the pistol again and threatened the witnesses present there and escaped. Nazir (P.W.7) lodged the report about the occurrence with Muhammad Yousuf, S.H.O. Police Station Mandi Hirasingh at 7‑30 a.m. Muhammad Yousuf attended to the dead body and recovered an empty from the spot. The appellant could not be arrested till 5th June, 1977 and in the meantime had been declared an absconder.

Dr. Dilbar Hussain performed autopsy on 9‑10‑1976 and reported the following injuries on the dead body of Mat. Nuran Bibi:‑

(1) Four contused wounds with burnt edges circular 1/3" (circular) on the right side of upper part of chest.

(2) Three contused wounds with burnt edges 1/3" (Circular) each over the sternum upper part of the front of ‑chest."

The appellant denied having committed the murder. He denied his own abscondence. He explained the occurrence and his own involvement in it in the following words:‑

"About four years ago Sardar Haitem Khan of Lakhu Malkana village P.S. Mandi Hera Singh Tehsil Depalpur District Sahiwal abducted Mst. Nuran Bibi deceased in my absence. He brought her to his bungalow at Mandi Hera Singh. I approached him and threatened that I would get a case registered gainst him for abducting my wife namely Mst. Nuran Bibi deceased and went back. On the way I came in contact with my brother. He brought me back. On inquiry I learnt that Mst. Nuran Bibi deceased had arrived in the house of Muhammad Nazir P.W. alongwith Sardar Haitem Khan. I, therefore, went into the house of Muhammad Nazir P.W. and when stepped inside the room of the house of Muhammad Nazir P.W. I found at 6 a.m. on the day of occurrence Sarder Haitem Khan and Mst. Nuran Bibi deceased lying on one cot in the said room in a compromising position, I therefore, lost self‑control and took out pistol which I was already carrying to protect myself from the hands of Sardar Haitem Khan. I therefore, fired at the deceased and Sardar Haitem Khan. Haitem Khan ran away unhurt and my pistol shot therefore, hit Mst. Nuran Bibi deceased at her chest. She was killed by me when I had lost self‑control under the influence of grave and sudden provocation. I did not murder her. The instant case has been fabricated against me on false premises under the influence of Sardar Haitem Khan and Muhammad Nazir P:W. etc."

In his petition from jail addressed to this Court, the petitioner has repudiated the statement reproduced above and recorded in the trial Court under section 342, Cr.P.C. He has stated that he had not engaged a counsel of his own. The state counsel had advised him to make that statement as it was likely to benefit him at the trial. All the same his latest version is that other persons who claimed to be the relatives of Mst. Nuran Bibi, and this appears to be a reference to the eye‑witnesses, murdered her and falsely implicated him in the murder.

We have examined the record of the case with the assistance of the learned counsel for the appellant and the State and find that there is in fact no background of enmity or ill‑will between the spouses brought out. The three eye‑witnesses whose relationship has not at any earlier stage been doubted or disputed have implicated the appellant. As the occurrence took place in the house of Nazir (P.W.7) he was a natural witness. On account of their close relationship, Roshan Din (P.W.8) as well as Mst. Hashmat Bibi (P.W.9) have also plausibly accounted for their presence. According to their version, the appellant came to the house of Nazir and that he was carrying a pistol in the bag. He asked the deceased to accompany him and on her refusal to do so, a sort of altercation took place on which he brought out the pistol from the bag, pursued the deceased and fired at her. It is clear from their statement that it was the appellant who fired and killed his wife. He did so not out of any spite or deliberation but impulsively on her refusal and persistence not to accompany him. The trial Court imposed the death sentence observing that the accused arrived at the spot when fully armed with a pistol exhibiting pre‑meditation and murdered Mst. Nuran Bibi deceased by firing at her chest twice.

We find that the appellant got infuriated by the refusal of Mst Nuran Bibi and her insistence not to return and it was an Impulsive A act. The fact that he was allegedly caught after nine months of thel occurrence carrying the same pistol in the same bag would show that it was carried not necessarily for murdering the wife or others. The conviction of the appellant under section 302, P.P.C. is maintained. The sentence of death awarded to him is set aside and is substituted by the sentence of life imprisonment. The appellant shall also be given the benefit of section 382‑B, Cr.P.C.

M.I. Order according .

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