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Criminal Appeal No. 576 of 1984, decided on 7th May, 1986.

---S. 302--Criminal Procedure Code (V of 1898), S. 382-B--Evidence, appreciation of--Except for a mere suspicion of accused that deceased, his wife, was carrying on with someone, no other evidence available on record in support of his plea of sudden provocation--Accused, already having been awarded lesser penalty of imprisonment for life, called for no interference in circumstance--Conviction and sentence maintained but jail authorities directed to give accused benefit of S. 382-B, Cr.P.C. at time of computation of his sentence of life imprisonment.

Sardar Roshan Ali Sindhu for Appellant.

Hafiz Ghulam Bari for Respondent.

Khadim Hussain son of Muhammad alias Hayat Muhammad aged 27, armed with Toka, stands convicted under section 302, P.P.C. for the murder of Mst. Zahida Parveen, his wife, vide judgment dated 16-10-1984 of the Additional Sessions Judge Sheikhupura and was sentenced to life imprisonment plus fine of Rs.10,000 or in default to undergo further R.I for one year with the direction that if the fine was realized from him, half of the same be paid to the heirs of the deceased. The appeal of the convict is being disposed of by this judgment.

2. The occurrence took place on 13-10-1982 at 2 p.m. in the house of the father of the deceased in village Malla Baland at a distance of three miles, from Police Station Khanqah Dogran District Sheikhupura Statement Exh. P.B.) was made by Muhammad Aslam (P.W. 7) father of the deceased at 3-15 p.m. on the same day at Adda Shapanwali on Lahore-Sargodha Road and it was recorded by Muhammad Aslam S.I. (P.W.11) who happened to be present there on patrol duty and met the complainant while he was on his way to the police station. Formal F.I.R. (Exh. P.B.1) was registered at the police station by Muhammad Yaqub A.S.I. (P.W.3) at 3-45 p.m. on the same day.

3. The motive for crime as stated in the F.I.R. is that the appellant suspected that the deceased was carrying on with one Zafar and on that account he had left her at the house of her parents.

4. In the F.I.R. the occurrence is reported to have taken place in the following manner: On the fateful day while Muhammad Aslam (P.W.7) father of the deceased, Allah Yar (P.W. 8) maternal-uncle of the deceased, and Mst. Zainab Bibi, mother of the deceased (not produced) were sitting talking to each other in the courtyard of their house and the deceased was also sitting nearby on a cot, the appellant armed as described above come inside and holding the deceased by her hair started inflicting blows with Toka on her neck. He gave the first blow which fell on the front of her neck and then the second blow which fell on her right jaw. Muhammad Aslam and Allah Yar P.Ws. tried to intervene but he threatened to kill them and thereafter ran away from the spot. More than half of the neck of Mst Zahida Parveen deceased was cut as a result of the blow and she died on the spot. Thereafter leaving behind Mst. Zainab Bibi etc. to guard the dead body Muhammad Aslam P. W . proceeded to lodge the report.

5. The prosecution has produced two eye-witnesses of the occurrence, namely, Muhammad Aslam (P.W. 7) father of the deceased, and Allah Yar (P.W 8) maternal-uncle of the deceased. Mst, Zainab Bibi was cited as an eye-witness of the occurrence but had not been produced.

6. The appellant was arrested on 16-10-1982 by Baqar Husain A.S1. (P.W.10). At his instance blood-stained Toka (Ex P.5) was recovered and taken into possession vide memo. Exh.P.E. dated 16-10-1982. The attesting witnesses are Munawar Hussain (P.W. 6), Ahmad (not produced), Baqar Hussain A.S.I. (P.W.10). According to the report of the Serologist (Exh.P.J.) Toka (Exh.P.5) was found to be stained with human blood.

7. The appellant in his statement before the trial Court gave his own version of the occurrence. He stated that he had suspected his wife, the deceased for carrying on illicit relationship with Zafar. On the fateful day he came to the house of the father of the deceased while no one was present in the house except the deceased and he saw her in compromising position with the said Zafar. Thereafter, losing his self-control he picked up a Toka lying nearby and caused injuries to her under grave and sudden provocation while Zafar managed to escape. At the time of the occurrence his father-in-law as well as mother-in-law were present in the fields, and Allah Yar P.W. was also not present there. Thus, as is apparent, the appellant has not denied the occurrence. He had only taken the plea of grave and sudden provocation on finding his wife in compromising position with the said Zafar.

8. Dr. Rafique Hussian Chaudhary (P.W.9) conducted the post mortem examination on the dead body of the deceased on 14-10-1982 and found on her person three incised wounds caused with a heavy long sharp-edged weapon on the neck etc. All the injuries were grievous and the injury cutting the neck was dangerous to life. In his opinion death had occurred due to shock and haemorrhage as a result of these injuries which were sufficient to cause death in the ordinary course of nature collectively and the neck injury individually.

9. I have heard learned counsel for the parties and carefully perused the record. The only question which requires determination in this case is as to whether there is anything on the record in support of the plea of grave and sudden provocation raised by the appellant. As I have pointed out there are two eye-witnesses of the occurrence, namely Muhammad Aslam and Allah Yar P.Ws., who, appear to be natural witnesses. They both were given this suggestion but they have vehemently denied the same. Learned counsel for the appellant at this stage that according to the doctor who had stated in the cross-examination that as to whether she was subjected to sexual intercourse or not before death, could only be determined after receiving the result from the Chemical Examiner. Learned counsel submits that it is evident from the statement of Muhammad Naseeb F.C. (P.W.2) that he was given one bottle of containing swabs (Exh.P.3) but these swabs had never been sent for chemical examination. Therefore, according to learned counsel had the report of the Chemical Examiner been received about the same, it may have supported the plea of grave and sudden provocation raised by the appellant. There is nothing else on the record to show that the appellant had committed the murder of the deceased under grave and sudden provocation except that at the time of arrest by the investigating Officer he had raised the same plea. The point which is important is that she was a married woman and, therefore, even if the chemical examination's result had been that the swabs had been found to be stained with semen, it would not have made much difference because it appears from the statement of the eye-witnesses that she had come from the house of her husband 2/3 days before the occurrence, Anyway, if the swabs had not been sent for chemical examination it does not prove that the version of the appellant should be accepted when it is not being supported by anything else on the record. The only thing which can be established is that the husband had the suspicion that the deceased was carrying on with someone else. Whether that suspicion was well-founded or ill-founded, there is nothing on the record to show the same. Consequently the plea of grave and sudden provocation was not available in the circumstances of the case to the appellant. But so far as his suspicion is concerned, the trial Court has already awarded lesser penalty to him which was quite proper in the circumstances of the case. In the light of the above discussion I maintain his conviction and sentence and dismiss his appeal. Learned counsel states that the appellant has been behind the bars for a period of about two years in the course of the trial, therefore, he may be allowed benefit under section 382-B, Cr.P.C. Since the conviction as well as the sentence awarded to the appellant have been maintained and his appeal has been dismissed by me, I direct the jail authorities to give him the benefit of the provisions of section 382-B, Cr.P.C. at the time of computation of his sentence of life imprisonment.

S. G. D. Appeal dismissed.

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