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Criminal Appeal No.60 of 1985, decided on 7th April, 1987.

---S.304, Part I--Sentence, reduction in--Accused, killing deceased, his wife, under sudden and grave provocation, finding her in the company of her paramour at odd hours of night--Sentence of imprisonment for life reduced to seven years' R.I. in circumstances.

Sh.Ijaz Ali Siddiqui and Sh.Waqar Azim Siddiqui for Appellant.

Dr. G . S. Khan for the State.

Date of hearing: 7th April, 1987.

Liaqat Ali son of Jumma Khan aged 25 years., mason by profession resident of Mali Pind, district Attock, has filed this appeal against order of Additional Sessions Judge, Attock, dated 23-4-1985 whereby he is convicted under section 304 Part-I, PPC and sentenced to imprisonment for life and a fine of Rs.10,000 or in default to undergo further rigorous imprisonment for one year. The fine if realised was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of the provisions of section 382-B, Cr.P.C. was also given to him.

2. On 18-6-1984 at 5.30 a.m. the appellant allegedly killed his wife Mst.Resham Jan with Chhuri in his house situate in village Hassar, district Attock, about 7 miles away from Police Station Hassan Abdal. The occurrence was witnessed by Muhammad Anwer (PW.8) brother of the deceased, and Muhammad Khan (PW.9) her father. The matter was reported by Muhammad Anwar (PW.8) to Ch. Muhammad Zaman, Inspector of Police (PW.10) who met him at Pathargarh at 7.30 a.m., while on his way to the police station vide statement Ex.PA which was sent for registration of formal case to the police station whereupon HC Ahmad Khan (PW.1) recorded formal FIR Ex.PA/1 on the basis of Ex.PA.

3. Ch. Muhammad Zaman, Inspector of Police (PW.10) having sent the complaint Ex.PA to the Police station himself proceeded to the spot and reaching there he prepared injury statement Ex.PH and inquest report EX.PI of the deceased and despatched dead body for post-mortem examination under the police escort. He collected blood stained earth and also secured blood-stained clothes P.4 to P.6 of the appellant from his house. He arrested the appellant on 20-6-1984 who while in police custody got recovered blood-stained Chhuri P.7 at his pointation from his house vide memo Ex.PG. This Chhuri as well as earth removed from the spot and the clothes of the appellant were found to be stained with blood of human origin vide reports Exs.PJ, PK, PL and IBM of the Chemical Examiner and Serologist respectively.

4. Dr.Faiz Muhammad Farooqui (PW.7) conducted the post-mortem examination on the dead body of Mst.Resham Jan (deceased) at 2 p.m., on 18-6-1984 and found seven incised injuries thereon mostly on chest and abdomen region. On dissection her lung and heart were found extensively injured. Out of seven injuries four were found grievous and one injury in the chest proved fatal which was found as sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and between death and post-mortem within 12 hours. Semi-digested food was found in the stomach. She appeared to be in advanced stage of pregnancy as a foetus was present in her uterus.

5. The motive behind the occurrence was stated to be that the appellant's father Jumma Khan purchased some land about 6 months prior to the occurrence. The appellant sold out the ornaments which he had gifted out to the deceased at the time of marriage and delivered its proceeds to his father for paying- the price of the land. The appellant asked the deceased to sell her ornaments given to her by her parents as well but she did not agree. On this account the relations between the spouses allegedly became strained and they started quarrelling with each other off and on. The motive was not a stated in the FIR by Muhammad Anwer (PW.8) and instead thereof it had been mentioned that the relations between the spouses were not smooth and that they were seen frequently quarrelling with each other.

6. At the trial, prosecution was supported by two eye-witnesses, namely, Muhammad Anwer (PW.8) and Muhammad Khan (PW.9). Muhammad Anwer (PW.8) stated that Liaqat Ali (appellant) is his Khalazad who was married to his sister Mst.Resham Jan (deceased) 3 years prior to the occurrence. During the days of occurrence the spouses were living together while the parents of the appellant lived a few yards away algid parents of the deceased lived 200/250 yards away from the house of the appellant. Liaqat Ali (appellant) is mason by profession and he used to work in Islamabad. On the fateful day at 5.30 a.m., he and his father Muhammad Khan (PW.9) heard Mst.Resham Jan crying for help saying, "save her life". They rushes to the house of the appellant and saw him dragging the deceased. seizing by her pigtail towards the room. He was holding a Chhuri in i hand at that time, and within their view he gave numerous Chhuri blows in her abdomen and chest. The appellant then changed his blood-stained clothes and disappeared taking away Chhuri with him. Mst.Resham Jan died on the spot. Muhammad Anwer (PW.8) then leaving the dead body in the care of one, Allah Ditta went for making the report to the police. The SHO met him in the way at Pathargarh with whore he lodged report EX.PA. Muhammad Khan (PW.9) father of deceased also made a similar statement.

7. The appellant in his statement under section 342, Cr.P.C., claimed blood-stained clothes P.4 to P.6 to be his but disowned the blood-stained Chhuri P.7 and denied its recovery at his pointation. He admitted the occurrence but raised the plea of grave and sudden provocation saying that on the night of occurrence he came from Islamabad about one or two hours before Sehriwela where he used to work as mason. He usually returned to his village after some days before 10 p. m., bit on that day he got late from his work and reached village before Sehriwela. When he reached his house he found that the room where the occurrence took place was chained from inside. He knocked at the door and after a short while the deceased opened the door and he saw that Muhammad Ashraf her paramour hid himself behind the shutters of the door. He entered the room and caught hold of him. His wife (deceased) in order to get Muhammad Ashraf released caught hold of him from his testicles. Feeling pain he released Muhammad Ashraf who ran away being gravely and suddenly provoked at unfaithfulness exhibited by the deceased, he picked up Chhuri from the room and gave blows with it to her on account of Ghairat. He went to the police station and informed the police who came to the spot and summoned the parents of the deceased and concocted this story. He led no evidence in defence.

8. Learned trial Court on detailed examination of the material on record observed that since the motive was not mentioned in the FIR and was narrated for the first time at the trial by the complainant which was not supported by Muhammad Khan (PW.9) father of the deceased, therefore, it was not believable. Presence of eye-witnesses Muhammad Anwer (PW.8) and Muhammad Khan (PW.9) brother and father of the deceased respectively at the relevant time too was not believed by the learned Court, observing that had they been present there then in view of their relationship with the deceased they would have made desperate effort to save her which they admittedly did not do. It further observed that the appellant after killing the deceased while busy changing his blood-stained clothes inside his room, the witnesses were in a position to clasp him and secure Chhuri from him or at least chain the door of the room from outside (preventing him from running away) but they did not do so either. Consequently, it held and rightly so that their presence at the relevant time was extremely doubtful. Statement of the appellant which alone remained in the field, in the circumstances, was accepted and finding the appellant to have killed Mst.Resham Jan (deceased) under grave and sudden provocation sentenced him as indicated above. Feeling aggrieved thereby the instant appeal has been filed.

9. It may be noted that no appeal or revision against the acquittal of the appellant from the charge under section 302, PPC has been filed.

10. Learned counsel appearing on behalf of the appellant submitted, that his only grievance is that the sentence awarded to the appellant, is severe. He submitted that normal trend of the superior Courts is to award 5 to 7 years' R.I., in such like cases. Learned counsel ford the State has not disputed this proposition.

11. Considering all the facts and circumstances of the case, I am of the view that conviction of the appellant under section 304 Part-1, PPC has been rightly recorded and while maintaining the same. I would reduce the sentence of the appellant to 7 years' R.I., and fine of Rs.10,000 or in default to undergo 1 year's R.I. which shall amply meet the ends of justice. Benefit of the provision of section 382-B, Cr.P.C., shall also be given to him. The appeal is partly accepted in the terms indicated above.

S.G.D./L-8/L Sentence reduced.

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