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Criminal Appeal No. 98 of 1985/BWP, heard on 28th January 1986.

‑‑‑Ss. 148, 302 & 307/149‑‑Conviction‑‑Appreciation of evidence‑ Deceased hurling filthy,abuses to accused‑‑Accused gagging her by pressing her neck‑‑Accused having stick in his hand but not using it‑‑Accused under provocation pressing neck of deceased resulting in her death‑‑Accused, held, was guilty of offence under S. 304 and not S. 302, P.P.C.

‑‑‑S. 304‑‑Quantum of sentence‑‑Compromise effected between parties‑ Complainant appearing before Court and admitting having received ransom‑‑Accused in jail since his arrest in case‑‑Accused sentenced to imprisonment already undergone by him in circumstances.

Raja Khurshid Ali Nasir for Appellant.

Sh. Abdul Hamid for the State.

Nazir Ahmed Bhatti for the Complainant.

Date of hearing: 28th January 1986.

Muhammad Yaqub appellant herein was tried alongwith Muhammad Ismail, Muhammad Yousaf, Muhammad Younus and Muhammad Nawaz for the murder of Mst. 2ainab Bibi (deceased) and murderous assault on Muhammad Irfan and Ghulam Rasool P.Ws. The learned trial Court convicted and sentenced the appellant alone to life imprisonment and a fine of Re. 10,000 or in default to suffer 3 years' R.I. under section 302, P.P.C. and also directed him to pay compensation of Rs. 10,000 to the heirs of the deceased under section 544‑A, Cr'. P. C : or in default to undergo six months, R.I. and acquitted the rest vide judgment dated 7‑9‑1985. The instant appeal has been filed by Muhammad Yaqoob against his conviction and sentence. .

2. Muhammad Irfan (P.f4.l) in the F.I.R. Exh. P.A. lodged by him on 23‑9‑1985 at 11-00 a.m., stated that he resided in Chak No. 3/D.N.B and tilled the land of Fateh Muhammad, Lambardar as tenant. Muhammad Sadiq P.W. gave hand of his daughter Mst. Hanifi,n to a relative of Ganhwar Shah but Muhammad Yaqub appellant developed illicit relations with her. Fearing any mishap Muhammad Sadiq P.W. arranged her early marriage with her fiancee but on the day of marriage the appellant and the acquitted accused tried to cause obstrcution in the marriage, however, Hanifan's Rukhsati become possible with the help of Muhammad Irfan complainant. Due to this, Muhammad Yaqub appellant, and the acquitted ,accused allegedly bore grudge against Irfan. On 28th March, 1985 at 10‑00 p.m. it was raining. Mst. Zainab (deceased), mother of irfan complainant, asked Mst. Bilqees (P.W.3) and Mst. Fazilat (P.W.4) to fetch sand for spreading over the roof. Both the ladies, P.W.3 and P.W.4 went to fetch the same. There came Muhammad Yaqub appellant and Muhammad Ismail, acquitted accused, and started abusing the ladies. Hearing the noise Muhammad Irfan complainant and Ghulam Rasul (P.W.9) came out of their houses. Mst. Zainab (deceased) and Muhammad Sadiq P.W. also came out. Meanwhile, Muhammad Yaqub picked up a stick, Muhammad Ismail took hatchet and Muhammad Nawaz Yousuf and Yunis armed with sticks came and attacked the complainant party. Ismail gave hatchet blow to the complainant oil his flank. Muhammad Nawaz inflicted the stick blow on the head of the complainant, Yaqub appellant and the acquitted accused Yousuf caused injuries to Ghulam Rasul P.W. while Muhammad Yunis gave him fist and kick blows. At this, Mat. Zainab (deceased) started abusing the accused party and in return she was abused by acquitted accused Yusuf. Muhammad Yaqub appellant asked her to desist from hurling abuses but she continued doing so. At this, Muhammad Yaqub appellant caught hold of her and pressed her neck and threw her on the ground as a result whereof she became unconscious and little later died at the spot. Due to rains, report was not made, the same night. F.I.R. was lodged at the police station at a.distance of 47 K.M. from the police of occurrence, the next day at 11 a.m. It was recorded by Khan Muhammad S. H.O. Dr. Shabir Ahmad, Medical Officer, Civil Hospital, Ahmadpur East (P.W.8) conducted the autopsy on the dead body of Mat. Zainab on 29th March, 1985. He found no mark of ligature around of neck of the deceased but observed multiple bruises in front of the neck and below the thyroid cartilage. In the opinion of the doctor, the cause of death was due to asphysia either by compression of neck or smothering or both combined. It may be pointed out that the doctor has not stated as to what particularly was the cause of asphysia. The same doctor medically examined Irfan P.W.1 and found bn his person two abrasions over the right clavicle. Examination of Ghulam Rasul (P.W.9) revealed a swelling with bruises on his right wrist. All these injuries were caused with blunt weapons and declared simple in nature.

3. At the trial, Muhammad Irfan (P.W.1), Muhammad Sadiq (P.W.2), Mat. Bilqees (P,W.3), Mst. Fazilat (P.W.4), and Ghulam Rasul (P.W.9) appeared as eye‑witnesses of the occurrence. Of them Irfan p.W.l and Mat. Bilqees (P.W.3) stated that Muhammad Yaqub appellant had pressed the neck of Mat. Zainab deceased as a result of which she died. Sadiq P.W.2 and Mat. Fazeelat (P.W.4) .expressed ignorance about it. It is. however, admitted by all the P.Ws.. that they have affected compromise with the accused and forgiven them. Irfan complainant who is son' of the deceased, stated that he did not want to pursue the case any more. At the conclusion of prosecution evidence, the appellant and his co‑accused in their statements under section 342, Cr.P.C. denied the allegation but did not produce any defence evidence.

4. The learned trial Court held that the prosecution succeeded in bringing home the guilt to Muhammad Yaqub appellant alone while the case against the remaining accused was doubtful and consequently acquitted them. Muhammad Yaqub appellant was convicted under section 302, P.P.C. and sentenced to life imprisonment and fine.

5. It is argued by the learned counsel appearing on behalf of the appellant that the facts and circumstances show that the deceased had hurled filthy abuses on the appellant and she continued doing so.despit repeated warqings. This act of the deceased gravely provoked the appellant, who gagged her which unfortunately resulted in her death, therefore, offence so committed fell under Exception‑1 to action 300, P.P.C. Further contended that admittedly Muhammad Yaqub appellant had gone to the place of occurrence carrying stick yet he did not use it which shows complete absence of intention or design on has part to kill the deceased, hence the appellant can at the most be burdened with knowledge that by pressing neck of Mst. Zainab, he was likely t cause her death, and thus his act aptly falls under section 304, P.P.C. I agree with the learned counsel. It appears to me that in order t stop the deceased from hurling abuses the appellant instead of using stick which he was carrying, pressed her neck, of course, unde provocation which unfortunately caused asphysia and resulted in her death. In the circumstances, I would hold that from the facts proved on record an offence under section 304, P.P.C. and not under section 302, P.P.C. is made out: Consequently, I would alter the conviction of the appellant from section 302 to section 304 (Part‑II) of the Pakistan Penal Code.

6. Next comes the question of sentence. It is in evidence that Irfan complainant, son of the deceased has effected compromise with the appellant and has pardoned him by accepting ransom. Muhammad Irfan complainant having appeared before me today, submitted written application admitting therein the receipt of ransom from the appellan and requested that the appellant may be excused and acquitted. It is well‑settled by now that in criminal cases where the parties have effected compromise the convicts' sentence ‑is generally reduced to the period already undergone by them. The appellant herein is in jail since his arrest in the case. In the circumstances, the appellant is sentenced to the period already undergone by him. In the result the appeal is accepted in the terms indicated above. The appellant; if not required to be detained in any other case, shall be set at liberty forthwith.

The fine imposed by the lower Court, if already paid by the appellant, shall be refunded to him,

S.A. Sentence altered.

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