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Criminal Appeal No. 6‑K of 1985, decided on 8th January, 1986.

(Against the judgment and order, dated 11‑10‑1984 of High Court Sind, Karachi in Criminal Appeal No. 7 of 1984).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Leave to appeal granted to examine whether plea of grave and sudden provocation taken by accused who was convicted and sentenced to death by High Court under S. 302, Penal Code, was not in circumstances of case, possibly true.

‑‑‑Ss. 302, 300, Exception I & 304, Part I‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Appeal‑‑Grave and sudden provocation‑‑Accused coming to his wife's house, knocked at door which was bolted from inside but on receiving no response, securing entry by scaling over wall saw his wife lying on a cot with a stranger who was kissing and hugging her‑‑Accused taking a vegetable knife from nearby caused as many as twenty‑nine injuries to her and stabbed stranger who was trying to run out and as such accused killed both of them‑‑Scene was witnessed by an inmate of house and a natural witness‑‑Blood‑stains were recovered and taken into possession only from one spot i.e. place inside house where his wife was given repeated blows by accused‑ Number of injuries spread all over her body also suggestive of mood of assailant‑‑Held, these factors all taken together might not prove to hilt defence version but it had certainly merit of making defence version of grave and sudden provocation plausible and creating reasonable doubt with regard to correctness of prosecution version‑‑Convict, therefore, entitled to benefit of Exception I to S.300, Penal Code‑‑Conviction and sentence under S. 302 set aside and same substituted by conviction under S. 304, Part‑I Penal Code, with rigorous imprisonment for ten years in circumstances.‑‑[Grave and sudden provocation].

Muhammad Hayat Junejo, Senior Advocate Supreme Court instructed by Muzaffar Hassan, Advocate‑on‑Record for Appellant.

Sattar A. Shaikh, Addl. A.‑G., Sind and S.M. Abbas, Advocate -on‑Record for the State.

Date of hearing: 8th January, 1986.

‑Leave to appeal was granted to the convict under section 302, P.P.C. (two counts) sentenced to death told examine whether his plea of grave and sudden provocation was not in the circumstances of the case, possibly true.

Mst. Rehana P.W. 1 and her younger sister Mst. Rukhsana deceased were married to two brothers in late 1974. Rukhsana aged about 16 years was married to the appellant who was aged 25 years. Their marital relations were not good. The two‑ladies had filed suits for dissolution of marriage and the appellant had filed a suit fox restitution of conjugal rights. However, a compromise was effected between the two families and an agreement was reduced to writing on 9‑5‑1977 whereby the proceedings pending in Court, were withdrawn by the respective parties and the appellant undertook to live as Khana Damaad with Mst. Rukhsana. He on his part implemented the agreement and the undertaking and started living with the family of his wife though he used to work during day time with his father. On 8‑10‑1977 at about 5.15 p.m. he returned to the house and found the entrance door bolted from inside. He knocked and when there was delay in opening it, he scaled over the wall and entered the house. He found his wife Mst. Rukhsana in the Tehkhana and inflicted numerous knife blows causing as many as 29 incised injuries on her person. Mst. Rehana (P.W. 1) raised an alarm which attracted, amongst others, Muhammad Nisar deceased. Nisar was given a knife blow in the belly by the appellant while the latter was making good his escape from the house, One Aqil Yusuf rang up the Police Station Market, Hyderabad, and informed about the occurrence. Imam Bux (P.W. 13) made an entry in the Station Diary at No. 37 of the message received on telephone and reached the spot. At the spot, he recorded the statement of Mst. Rehana (P.W. 1) on which a formal First Information Report was registered. The motive for the occurrence as given out in the report was that the appellant was demanding the written agreement under which he was to live as Khana Daamad which Mst. Rukhsana was not handing over to him. Imdad Ali, S.H.O. also reached the spot after some time and found the dead body of Mst. Rukhsana lying in the Tehkhana. He also found the Chappals (Exh. 44) of the appellant there. He also received information that Nisar who was removed to the hospital had died there. He attended to the dead bodies. The appellant was produced before him on 9‑10‑1977 and the recoveries were effected of his blood‑stained clothes on 11‑10‑1977. The appellant is said to have got recovered the knife (Exh. 24) which was on examination found to be stained with blood.

The appellant admitted his presence at the time of the occurrence when his wife Mst. Rukhsana and Nisar were attacked and received injuries resulting in their death. He put forward a counter‑version in the following words:‑

"On the day of the incident, I had gone to attend my job and returned to my house and when I went inside my house I found Mst. Rehana standing at the door of underground room. When I entered the room I found deceased Nisar lying on the cot alongwith my wife and kissing and hugging her. I was gravely provoked. I picked up the kitchen knife which was lying in the adjacent space which was used by us as a kitchen. On account of sudden and grave provocation I inflicted knife injuries to my wife. In the meanwhile Nisar took to his heals. I pursued and gave him knife injury as a result of which he fell down just outside the house adjacent to door. There was nobody else present or witnessed the incident. I wanted to go to police station but due to fear of the brother of the deceased Nisar who is not only an influential person but I apprehended danger to my life at, his hands."

He denied the ownership of the Chappals recovered from the scene or to have led to the recovery of the knife from the drain.

The trial Court rejected the defence version on the ground which is expressed as follows in its judgment:‑

"I cannot lose my sight on the fact that it is the case of the prosecution as well as the accused both that the accused first gave knife blows to his wife deceased Rukhsana whereas Nisar was stabbed afterwards. Here, I must: revert to the earlier discussed medical evidence. According to the medical evidence, as many as 29 incised injures were found on the body of deceased Rukhsana that too, on different parts. When the injuries on deceased Rukhsana were inflicted first certainly it must have taken the accused some time to cause the above said 29 injuries and during that time Nisar could easily slip away to avoid any attack or infliction of injuries by the accused. In these circumstances, nobody would be foolish enough to stay there any more during the time when the injuries were being caused to deceased Rukhsana. Thus, the plea of the accused that he had caused the injuries on account of grave and sudden provocation has not been established in any way from the record. On the contrary, the version of complainant Mst. Rehana has been fully established by the eye‑witnesses namely Ramzan and Chand Muhammad."

It convicted the appellant under section 302, P.P.C. (two counts) sentenced him to death on both the counts and imposed a consolidated fine of Rs.10,000. Half the fine, if realized, was ordered to be paid as compensation and in case of default in its payment, he was to suffer further R.I. for one year more.

'While seized of the case for the confirmation of death sentence and the appeal by the convict, the High Court examined all aspects of the case at great length and also noticed the law laid down in the cases cited at the bar. It considered it safe to exclude the testimony of the two eye‑witnesses of the murder of Nisar, namely, Ramzan (P.W. 2) and Chand Muhammad (P.W. 37 as a rule of prudence on the ground that their names were not contained in the F I R. The prosecution case as established by Mst. Rehana and as corroborated by the injuries, the motive and the recoveries was found beyond reasonable doubt;. The plea of the appellant was found to be deficient in creating any dent in the prosecution case and the High Court was inclined to consider it a case of premeditated murder of Mat. Rukhsana and Nisar was given a fatal injury on the abdomen when the appellant was escaping from the house and Nisar was entering the house on hearing the cries of Mst. Rukhsana for help. The conviction was, therefore, maintained and the death sentence was confirmed and his appeal was dismissed.

The learned counsel for the appellant Mr. Muhammad Hayat Junejo, Advocate, contended that there was intrinsic evidence in the prosecution case itself to establish the plausibility of the defence version. For example, the entrance door of the house remained bolted from inside and the knocks of the husband at the door remained un-responded so much so that he had to secure his entry in the house by seating over the wall.. He entered the house with no apparent hostility or preparedness. He admittedly did not utter a single threat nor was the attack preceded immediately by any quarrel whatsoever between the spouses or anyone else. The unseemly and provocative sight of Nisar a stranger to the house with Mst. Rukhsana alone could have led to such a spontaneous and sustained attack on Mst. Rukhsana. Why Nisar could not escape during that period is, according to the learned counsel, fully explained by the location where the occurrence took place. It was a basement, accessible by a narrow ladder and the attack on Rukhsana took place close to the ladder. If the appellant, armed with a knife was so close to the ladder Nisar could not slip away from there and when he tried to do so, he received the solitary knife blow on his belly which proved fatal.

Mst. Rehana (P.W. 1) being an inmate of the house was a natural witness of the occurrence. She has stated about the appellant, knocking at the door and then his scaling over the wall. According to her, the appellant opened the attack on Mst. Rukhsana with a vegetable knife. Nisar was inside the house, in the courtyard according to Mst. Rehana, when he too was attacked by the appellant. Ramzan (P.W. 2) and Chand Muhammad (P.W. 3) have been rightly discarded as eye‑witnesses because they claim to have seen Nisar being stabbed while still outside the house at its entrance door which was not a fact.

The blood‑stains were recovered and taken into possession only from one spot i.e. the place inside the house where Mst. Rakhsana was given repeated blows by the appellant. The number of injuries is also suggestive of the mood of the assailant. These are 29 in number and spread all over the body. These factors all taken together may not prove to the hilt the defence version but it has certainly the merit of making the defence version plausible and creating reasonable doubt with regard to the correctness of the prosecution version. We find that the appellant was entitled to the benefit of Exception I to section 300, P.P.C. Accordingly, while accepting this appeal, we set aside his conviction and sentence under section 302, P.P.C. and substitute it by conviction under section 304, Part I, P.P.C. and sentence of 10 years' R.I. on each count. The sentences to run concurrently. In computing the sentences, he shall be entitled to the benefit of section 382‑B . Cr. P.C. The sentence of fine and the order with regard to the payment of compensation as ordered by the trial Court and upheld in appeal, shall remain intact.

M. Y. H . Appeal partly accepted.

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