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Criminal Appeal No. 479 of 1983, heard on 2nd March, 1986.

‑‑‑S. 302 read with S.300, Exception 1 & S. 304, Part I‑‑Grave and sudden provocation‑‑Offence, alteration of‑‑Admittedly deceased done to death under grave and sudden provocation when found together in a compromising position‑‑Offence committed by accused, held, would fall under S.304, Part I and not under S.302, P.P.C. in circumstance‑ Conviction under S. 302, P.P.C. altered to that under S.304, Part I, P.P.C.‑‑[Grave and sudden provocation].

Pir Altaf Hussain Shah for Appellants.

S.D. Qureshi for Respondent.

Date of hearing: 2nd March, 1986.

This Criminal Appeal arises from the judgment of learned Additional Sessions Judge, Sargodha, whereby he, on 27‑6‑1983 while acquitting Khuda Yar co‑accused, convicted Muhammad. Ashraf and Muhammad Yar appellants under section 302/34, P.P.C. for the double murder of Mst. Ghulam Fatima and Muhammad Yar and sentenced them to imprisonment for life and a fine of Rs.5,000 or in default thereof 6 months' R.I. on each count. It was directed that they should pay Rs.5,000 each as compensation to the legal heirs of the deceased, in default thereof further R.I. for 6 months. The sentences were to run concurrently.

2. The occurrence took place on 16‑7‑1981 at Peshiwela in the area of village Poohla, Police Station SahiWal, District Sargodha. The F.I.R. is statement Exh. P.J. made by Muhammad Aslam P.W.8, the son of Muhammad Yar deceased which was recorded by Gul Jehan, S.H.O. P.W.7 near village Mehta. The formal F.I.R. Exh. PJ/1 was drawn up on the same day at 5‑30 p.m. at the police station by Muhammad Afzal, Moharrir Head Constable (not produced).

Muhammad Yar appellant is son of Mst. Ghulam Fatima deceased. Khuda Yar acquitted accused was husband of Mst. Ghulam Fatima deceased. Muhammad Ashraf is close relative of Mst. Ghulam Fatima deceased.

3. The motive as alleged by the prosecution was that the aforesaid two deceased had developed illicit intimacy. About 1 months before the occurrence, Muhammad Yar deceased abducted Mst. Ghulam Fatima deceased and later on she was restored to Khuda Yar acquitted accused, hence this occurrence.

4. As far the main occurrence, it has been stated that just before Peshiwela, Mst. Ghulam Fatima deceased came to the house of Muhammad Yar deceased and took away him. After sometimes, Muhammad Aslam P.W.8 and Muhammad Hayat P.W.1, the sons of Muhammad Yar deceased and Mst. Kaneez P.W.2, the daughter of Muhammad Yar deceased went in search of their father. At about Peshiwela, they saw Muhammad Yar and Mst. Ghulam Fatima both running towards the field of Muhammad Hanif Khokhar being chased by the appellants and Khuda Yar, acquitted accused. Khuda Yar was empty handed Muhammad Ashraf was armed with Lathi and Muhammad Yar appellant was carrying a hatchet. On the Lalkara raised by Khuda Yar that the two deceased should not be spared alive, Muhammad Ashraf appellant gave Lathi blows to Muhammad Yar and Mst. Ghulam Fatima. Muhammad Yar appellant gave injuries to both the deceased with the sharp as well as wrong side of the hatchet. Mst. Ghulam Fatima and Muhammad Yar succumbed to the injuries on the spot. The occurrence was seen by Muhammad Hayat P.W.1, Mst. Kaneez P.W.2 and Muhammad Aslam P.W.8.

5. Dr. Zafar Iqbal P.W.4 conducted post‑mortem examination on the dead body of Muhammad Yar deceased on 17‑7‑1981 at 10‑60 a.m. He found following injuries on his person:‑

(1) "An incised wound 4 x 2 c.m. on the right and front side of neck. Margins are averted and regular. Tracheas rigs were cut down completely. Carotid artily and regular vein on the right side were cut down.

(2) A lacerated wound 5 x 2 c.m. on the right side of the mandible. The bone of mandible completely fractured.

(3) Multiple contused area 7 x 4 c.m. on the front of the neck.

(4) Multiple contused area 5 x 4 c.m. on the right side of the neck. 6 c.m. from the right ear.

(5) Multiple contused area 6 x 1 c.m. on the back.

(6) A lacerated Wound 4 x 8 c.m. on the frontal part of the head."

In his opinion, the death had occurred due to shock and haemorrhage as a result of injury No.1, which was sufficient to cause death in the ordinary course of nature. Injury No.1 was caused with sharp‑edged weapon and the rest by blunt weapon. The death was immediate. The time between death and post‑mortem was from 10 to 16 hours.

On the same day, the same doctor conducted post‑mortem examination on the dead body of Mat. Ghulam Fatima deceased. He found following injuries:‑

(1) "Multiple contused area 5 x 3 cm. on the front side of neck. 3 tracheal rings above and below the thyroid gland were completely collapsed.

(2) An incised wound 6 x 1 c.m. on the front part of the head on the left side.

(3) An incised wound 5 x 1 c.m. on the top of the head.

(4) An incised wound 4 x c.m. on the right side of the head.

(5) Multiple contused area 4 x 5 c.m. on the right side of the neck."

In his opinion the death had occurred due to shock, asphaxia and haemorrhage due to injury No.1 which was sufficient to cause death in the ordinary course of nature. Injury No.1 was caused with blunt weapon and the rest were caused by sharp‑edged weapon. The death was immediate. The time between death and post‑mortem was 10 to 16 hours.

8. Gul Jehan, S.H.O., P.W.7 arrested Muhammad Ashraf, who produced Lathi Exh. P.1 which was taken into possession vide memo. Exh. P.D. attested by Falak Sher P.W.3 and Gul Jehan P.W.7. Muhammad Yar produced blood‑stained hatchet EXh.P.1, which was taken into possession vide memo. Exh. P.C. attested by the same witnesses. Serologist Report Exh. P.M. is positive.

9. To prove its case, prosecution examined 8 witnesses in all. Muhammad Hayat P.W.1, Mst. Kaneez P.W.2 and Muhammad Aslam P.W.8 have given the ocular account of the occurrence. They claim to have heard Khuda Yar, acquitted accused, raising Lalkaras and seen two appellants inflicting injuries with their weapons resulting in the death of the deceased. Falak Sher P.W.3 and Gul Jehan, S.H.O., P.W.7 have supported the recoveries of Lathi Exh. P.2 and hatchet Exh. P.1 from Muhammad Ashraf and Muhammad Yar appellants. Dr. Zafar Iqbal P.W.4 has proved the two post‑mortem reports pertaining to the deceased. The rest of the evidence is more or less of formal nature.

10. When examined under section 342, Cr.P.C., Muhammad Ashraf appellant denied all the incriminating circumstances. Muhammad Yar appellant while owning the murder of the two deceased, raised the plea of grave and sudden provocation. He stated:

"Mst. Ghulam Fatima was my mother. On the day of occurrence at Peshiwela when I was going to cut my Kikar trees branches for my goats in my fields at Chah Langarwela. I saw Mst. Ghulam Fatima, my mother in compromising position with Muhammad Yar deceased in the sugarcane field of Muhammad Hayat son of Khuda Yar. I lost my self‑control due to GHAIRAT and under grave and sudden provocation caused injuries to both the deceased with sharp and wrong side of my hatchet who in the meantime, had started running. Khuda Yar and Muhammad Ashraf accused were not present at the time of occurrence. The occurrence was not witnessed by any P.Ws."

In defence no witness was produced. The trial Court while giving the benefit of doubt, acquitted Khuda Yar co‑accused and while believing the ocular account of the occurrence, given by the eye‑witnesses and disbelieving the defence version, convicted and sentenced the appellants as stated above.

11. Learned counsel for the appellants contended that the prosecution witnesses are not reliable and that the occurrence had taken place in the manner as stated by Muhammad Yar appellant. Conversely, the learned counsel for the State has supported the judgment of the trial Court. He maintained that since the viginal swabs were not stained with semen, therefore, the plea of grave and sudden provocation raised by Muhammad Yar appellant was totally false.

12. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded, to believe the defence plea of grave and sudden provocation raised by Muhammad Yar appellant. I find that the three eye‑witnesses are closely related to Muhammad Yar deceased that the appellants are closely related to Mst. Ghulam Fatima deceased, Muhammad Yar appellant is her real son; that admittedly, the two deceased had illicit intimacy; that about 1 months before the occurrence. Mst. Ghulam Fatima deceased had eloped with Muhammad Yar deceased and after some times she was restored; that according to the prosecution case, on the day of occurrence, Mst. Ghulam Fatima slipped away from her house and went to the house of Muhammad Yar and took away him with her and that after her leaving the house of her husband, the appellants and Khuda Yar, acquitted accused, the husband of Mst. Ghulam Fatima, went in search of her and on seeing the two deceased together opened attack and killed them on the spot that the eye‑witnesses had not seen the origin of the occurrence and that they for the first time saw the two deceased running together followed by the accused persons, so, the eye‑witnesses could not know as to what had actually preceded before the assault on the two deceased by the appellants and the two co‑accused.; that the circumstance that son has killed his real mother is also indicative of the existence of grave and sudden provocation in that had Muhammad Yar appellant not been deprived of the power of self‑control on seeing the two deceased together, he might not have killed his near and dear mother namely Mst. Ghulam Fatima. In the peculiar circumstances of the case, for the appellant, to find Mst. Ghulam Fatima with Muhammad Yar, her paramour together, was a provocation grave and sudden enough to deprive him of the power of self‑control. In the circumstances of the case, there was nothing wrong in the appellants in chasing Mst. Ghulam Fatima and seeking opportunity to catch the two together and from this it cannot be inferred that they were seeking provocation for committing murder. It is well‑settled that in your country where a mere casual talk by a woman with a stranger is looked upon by the relations and in particular husband and son of the woman, as well as society, with great disapproval and resentment, the actual act of elopement /abduction and being the two together must excite feelings incapable of being explained in words. For all these reasons I am of the view that the prosecution case accepted at its face value, the offence committed by the appellants falls under section 304‑I, P.P.C. and not under section 302, P.P.C.

The upshot of the above discussion is that the convictions and sentences of the appellants under section 302/34, P.P.C. are set aside and instead they are convicted under section 304‑I, P.P.C. and sentenced A to 5 years' R.I. on two counts and a fine of Rs.5,000 or in default thereof one year R.I. each on each count. The appellants shall also pay Rs.5,000 each on each count as compensation to the legal heirs of the two deceased or in default thereof further S.I. for 6 months each. The compensation shall be paid equally to the legal heirs of the twos deceased. The sentences on two counts shall run concurrently.

S.G.D. Order accordingly.

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