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Criminal Appeal No. 522 of 1985, heard on 22nd April, 1987.

---S. 302--Accused suspecting deceased of having illicit connection with his wife--Admission made by witnesses that deceased used to visit village of accused off and on which supported plea taken by accused--Prosecution's own case also being to the same effect and evidence on record supporting accused--Possibility existing that wife of accused had come near to the place of occurrence to meet deceased and accused on having seen them had felt provoked and thus attacked and caused injuries to deceased--Held, accused could not be burdened with liability of committing culpable homicide amounting to murder in circumstances--Conviction of accused under S.302, Penal Code, set aside and accused convicted under. S.304, Part I, Penal Code, and his sentence of imprisonment for life reduced to ten years.

Muhammad Zahid Abbasi for Appellant.

Tauqir Ullah for A.-G. for the State.

Date of hearing: 22nd April, 1987.

Ahmad Khan aged 70 years was tried by the Additional Sessions Judge, Gujranwala for having murdered Sarang, at Deegarwela on 2a-4-1984, in the fields in village Fatehgarh, at a distance of 3J miles from Police Station Jalalpur Bhattian, District Gujranwala.

2. Learned Additional Sessions Judge vide judgment dated 10-8-1985 convicted him under section 302, P.P. C. and sentenced him to imprisonment for life plus a fine of Rs. 2,000 in default whereof to suffer further R.I. for six months. He has also been sentenced to pay a sum of Its. 30,000 as compensation to the heirs of the deceased, in default of payment of which to suffer R.I. for six months. The convict has filed appeal.

3. F.I.R. Exh. P.D. was recorded at Police Station Jalalpur Bhattian on the same day at 5-30 p.m. by S.I.I.S.H.0. Muhammad Abbas Khan on the statement of Nasarullah Khan P. W:5.

According to F. I. R. Nasarullah Khan P.W.5 along with. Muhammad Bashir P.W.8 and others was working on the thrasher in his land. At about, Deegarwela, they heard Liaquat Ali P W.6 crying,------from his land at a distance of one kila. The complainant alongwith others went there and saw that the appellant had felled Sarang and was sitting on him with his knee on the' chest of the deceased. Noticing their arrival, Ahmad Khan appellant ran towards the east. He was chased rind caught by the complainant and others, Sarang, by that time had died. His throat was cut.

4. Motive for the occurrence mentioned in the F.I.R. is suspicion of the appellant that the deceased had illicit connections with his wife. It is also mentioned in the F.I.R. that sister of Sarang deceased was married to Muhammad Yaqub brother of the appellant, but she had died before the occurrence.

The Sub-Inspector after recording the F.I.R. reached the spot. Ahmad Khan appellant was arrested by him. During spot inspection the Sub-Inspector took into possession blood-stained earth and blood-stained Chhuri P.3 vide memos. Exh. P.E. and P.F. The dead body of Sarang was despatched for post-mortem examination after, preparation of necessary papers.

6. At the trial, prosecution in all examined nine witnesses. Dr. Ch. Muhammad Sadiq, who had performed autopsy, appeared as P.W.3. He noted following injuries on the body of the deceased: -

(1) An oblique incised wound 3 c.m. x 1 c.m. reaching chest cavity on left part, front just inner and down to the left nipple, 8 c.m. away of midline and 17 c.m. down and out to left sterno clavicular joint.

(2) Transverse incised wound 10 c.m. x 5 c.m. on front neck at upper edge of thyroid cartilage, cutting through left carotid and jugular vessels alongwith soft structures, cut through and also on the right part but the internal jugular vein and internal carotid vessels of the right side were in tact.

(3) Transverse skin deep incised wound 51 c.m. x Ir c.m., 8 c. m. above left nipple.

(4) Skin deep incised wound 1t c. m. x I c. m. on inner side left forearm mid-third.

According to opinion of the doctor, Sarang had died due to injury No.2, which had caused shock and extensive haemorrhage. Injury No.1 was declared grievous and was opined to have made an additive effect on injury No.2.

7. Nasar Ullah complainant who appeared as P.W.5, stated above having reached the spot on hearing cries of Liaquat. Although he stated that he with the help of others, including Muhammad Bashir P.W., caught the accused after chase and had seen Sarang lying dead, as a result of injuries suffered by him, but he did not claim that he had seen the appellant inflicting injuries to the deceased. He also stated that there was a rumour that Sarang deceased had illicit relations with the wife of the appellant and so he had murdered him.

In cross-examination he admitted that he had seen. Sarang visiting his village. He explained that he used to visit the house of Muhammad Bashir son of Maula Dad. He denied the suggestion that he had not witnessed the occurrence and that the appellant had murdered the deceased on seeing him doing indecent acts with his wife.

Liaquat aged 10 years who appeared as P.W.6, stated about having seen the appellant attacking the deceased with the Chhuri and inflicting injuries on him and also of having raised noise, as a result of which Nasar Ullah Khan and other P.Ws. reached there. In cross-examination he stated that wife of the accused was not summoned by the police on the spot in his presence.

Muhammad Bashir who appeared as P.W.8, corroborated the statement made by Nasar Ullah Khan. In addition, he also testified the taking into possession of blood-stained Chhuri P.3 and blood stained earth from the spot by the Sub-Inspector. In answer to another question, he stated that the Police had summoned wife of the appellant from his house. He added that the police had taken into possession blood-stained Chhuri when she had reached the spot.

8. The appellant during his statement under section 342 of the Code of Criminal Procedure denied the prosecution case. In answer to question, 'why this case against you, and whir the P.Ws. deposed against you', he stated as under: -

"On the day of occurrence after alighting from the bus I was going towards my village. When I covered some distance I saw the deceased alongwith my wife coming towards roadside. He was also doing indecent acts while walking alongwith the path. On seeing them in such a position, I lost my self-control and due to sudden provocation, I caused injuries to the deceased. In the meantime my wife ran away from the spot. I myself went to the P.S. and appeared before the Police. Nobody had witnessed this occurrence and nobody had apprehended me on the spot. I did not throw any Chhuri on the spot."

He also made statement on oath under section 340 of the Code of Criminal Procedure. The question put to him during cross-examination that his marriage with his wife had been dissolved by the Court, as a result of the suit filed by her, was denied by him. He explained that the suit was filed but added that she had joined him as a result of compromise during pendency of the suit.

9. In view of the statement made by the appellant that he had inflicted injuries to the deceased at the place where, according to the prosecution, the occurrence had taken place, and in view of his admission that the deceased had died as a result of those injuries, most of the prosecution evidence in that regard, does not need any comments. The question, which calls for consideration is, whether it was a calculated pre-meditated murder or had the appellant murdered the deceased on account of provocation, as claimed by him.

10. Although, the appellant admitted in cross-examination during his statement under section 340 of the Code of Criminal Procedure that his wife had filed a suit for dissolution of marriage but it cannot be assumed that the marriage stood dissolved before the occurrence. On the other hand, there is evidence on the record that appellant's wife was living with him, in this connection reference can be made to the statement of Muhammad Bashir P.W.8 who stated in cross-examination that his wife was summoned to the spot by the police from his house, and Chhuri P.3 was taken into possession on her arrival.

11. Although, the prosecution witnesses denied the suggestion that) wife of the appellant was hot seen near the place of occurrence, but the fact of admissions made by the witnesses that the deceased used to visit the village of the appellant, off and on, does lend some support to the statement made by the appellant that he was carrying on with his wife. The deceased had no apparent reason to visit this village. His sister, who was married to the brother of the appellant, had died quite a few years prior to the occurrence. If at all, he could have any interest in this village, it should have been his connections with Yaqub to whom his sister was married but it is not the case of the prosecution that he used to visit him. The prosecutions own case is also that the appellant had murdered the deceased because of suspicion that the deceased was having illicit connections with his wife. Therefore, the version put forth by the appellant, does find some support from the evidence on record also, and cannot be thrown away lightly. However, the story put forth by him that he had seen the deceased doing indecent acts with his wife, before the commission of murder in the fields, does not ring true. It was a wheat thrashing season and people were working around the place of occurrence. The deceased and wife of the appellant would not have dared to behave in that manner. However, possibility cannot be ruled out that she might have come to meet the deceased, near about the place of occurrence and the appellant on having seen them together, might have felt provoked, and thus attacked and caused injuries to the deceased. In these circumstances, the appellant cannot be burdened with the liability of committing culpable homicide amounting to murder. His conviction under section 302, P.P. C. is, therefore, set aside. He is, instead convicted under section 304, Part-1, P.P.C. and sentenced to undergo R.I. for ten years plus a fine of Rs. 2,000 in default whereof to suffer further R.I. for one year.

He shall be given the benefit of the provisions of section 382-B of the Code of Criminal Procedure.

N.Y. H./A-100/L Appeal partly accepted

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