P L D 1962 (W (PLP)

ANWARUI. HAQ, J.-Ghaffar, son of Sohni, a Muslim Sheikh of village Mari in the jurisdiction of Police Station Sadar, Sargodha, has been convicted by Mr. Sultan Khan, Sessions Judge, Sargodha, for the murder of one Mst. Bhao of that village, and sentenced to death. He has appealed and the case is also before us under section 374 of the Criminal Procedure Code.

2. The case for the prosecution is that the accused was carrying on an Intrigue with the deceased, Mst. Bhao, who was the daughter of Samand (P. W. 5) and was married to one Mutalli, resident of village Noon Kallu, but had come away from him about a month prior to the occurrence and taken up residence in the house of her parents. The accused suspected that she had developed liaison with one Kallu who also belonged to the same "baradri". For this reason he decided to kill the girl. On the night between the 31st of October and 1st of November 1960, he entered the chhapar where the girl was sleeping and inflicted several blows on her neck and chest, with a hatchet, which resulted instantaneously in her death. The alarm raised by the deceased had woken up her father, Samand (P. W. 5), her mother, Allan (P. W. 6), and her younger sister, Mst. Wallan (P. W. 7). All these three persons saw the accused standing near the charpy of the deceased, armed with a hatchet and then delivering hatchet blows on her. After the assault, the accused managed to escape.

3. The matter was reported at Police Station Sadar, Sargodha, at 8 a.m. on the 1st of November 1960, by Samand (P. W. 5), and the accused was produced before the police at 2-30 p.m. the same day by Shah Muhammad (P. W. 10). It is alleged that the accused had gone to Shah Muhammad, who is a member of the Local Council, and confessed before him and also produced his bloodstained hatchet Exh. P.

7. The shirt Exh. P. 8 and the loin cloth Exh. P. 9, worn by the accused, were also found to be stained with blood. The clothes as well as the hatchet were taken into possession by the investigating officer, A. S. I. Abbas Ali Shah (P. W. 11) in the presence of Sultan Ali (P. W. 8), Muhammad Hayat (P. W. 9) and Shah Muhammad (P. W. 10). The reports of the Chemical Examiner and the Serologist show that all the three articles were stained with human blood.

4. The post-mortem examination of the body of the deceased was conducted by Dr. Muhammad Akmal, Medical Officer, District Headquarters Hospital, Sargodha, who found the following injuries on it: - (1) An incised wound, 7" x 1' x 3" on the right side of neck, upper part, cutting second cervical vertebra through and through. (2) An incised wound, 3' x 2, on the front of the neck, cutting the wind-pipe and oesophagus and also cutting the fourth cervical vertebra. (3) An incised wound, 1 " x 1 " x 2", on the front of the chest, upper part, cutting the left clavical. The death was due to shock and haemorrhage as a result of injuries Nos. 1 and 2, both of which were individually sufficient to cause death in the ordinary course of nature. All the injuries were caused by a sharp-edged weapon like the hatchet Exh. P. 7.

5. The appellant pleaded not guilty at the trial but did not produce any defence evidence. He admitted that he had an affair with Mst. Bhao deceased, but denied all knowledge of her liaison with Kallu. He also denied all the other allegations brought out in evidence against him, and asserted that he had been falsely implicated by Samand P. W., the father of the deceased, as the latter suspected him of having illicit connections with Mst. Bhao. Finally, he alleged that this false implication was carried out by Samand in consultation with Shah Muhammad, Sultan All and Muhammad Hayat P. Ws.

6. The case against the appellant rests primarily on the occular evidence of Samand Mst. Allan and Mst. Wallan, who were sleeping in the same chhapar. They have clearly implicated the appellant and we see no reason to disbelieve them. They have stated that the night was moonlit and, In addition, a lamp was burning in the chhapar which enabled them to identify the appellant. It was strenuously contended on behalf of the appellant that reliance should not be placed on these witnesses for the reason that they are closely related to the deceased, but this relationship is by itself not enough to discredit their testimony. When a crime is committed at the dead of night, the persons sleeping in the same room or house would be the natural witnesses, and unless circumstances were shown to exist which would make it unsafe to rely on their testimony, the Court cannot refuse to accept their evidence simply because they are related to the victim. In the present case not a single circumstance has been brought out on the record to show that these witnesses had any motive to falsely implicate the appellant. The assertion of the accused that be has been falsely implicated because the father of the deceased suspec ted that the appellant had developed illicit connections with the deceased, has no substance, in the circumstances of the present case, because the father seems to have known that the girl was first carrying on with the appellant and had then transferred her affections to Kallu, whose particulars were given in the first information report. We have gained an impression that the father of the deceased was not of the type, who took any serious objection to these activities of his daughter and, therefore, we see no reason to hold that Samand, his wife and his minor daughter would falsely implicate the appellant simply because they suspec ted that he was having an intrigue with the deceased. We are thus in agreement with the learned trial Judge that the evidence of these eye-witnesses is worthy of credit.

7. The next piece of evidence against the appellant consists of the recoveries of the blood-stained hatchet as well as the blood stained shirt and loin-cloth from his person. These recoveries are satisfactorily proved by independent witnesses, who have already been named in the earlier part of this judgment, and the only criticism made before us in this behalf was that the father of the deceased was employed as a servant of the son of Sultan Ali P. W. We have already observed that Samand had no motive to falsely Implicate the appellant, and for that reason the father of the employer of Samand also could have no reason for giving false evidence in the case. The presence of human blood on the articles recovered from the appellant is a strong incriminating circumstance against him.

8. The learned trial Judge did not place reliance on the extra-judicial confession which was made by the appellant before Shah Muhammad (P. W. 10), and in view of the other satisfactory evidence on the record, we do not think it necessary to discuss whether this confession could have been relied upon or not. On the basis of the evidence mentioned above, we have no difficulty in holding that it was the appellant who inflicted the fatal blows on the deceased, Mst. Bhao. He has, therefore, been rightly con victed under section 302, P. P. C.

9. The learned counsel for the appellant has pressed for con verting the death sentence into one of transportation for life, on the ground that the appellant committed the crime under provocation, namely, that here was a woman who had been carrying on with the appellant for a considerable period and then suddenly she switched over to another man, thus causing great resentment and anguish to the appellant, who must have come to look upon her virtually as a wife. In support of this argument we were referred to several authorities which may be briefly noticed.

10. In Sheo Barn Singh v Emperor ((1934) 35 Cr. L J 232), the facts were that the accused was having illicit relations with a woman with the connivance of her husband and after the death of her husband the woman was found to have commenced intrigues with another man at which the accused remonstrated with her but on her persisting to go with the new paramour, he killed the woman. It was held that although the relations between the accused and the deceased were illicit, having regard to human nature, it must be considered natural that after a long period of years, the accused should look on the deceased as his woman and a woman who was bound to render hips fidelity, and that in the circumstances the commence ment of an intrigue between her and another man being a matter which would cause provocation to the accused, the sentence should be reduced from that of death to one of transportation for life. Mst. Pathani v. Emperor ((1935) 36 Cr. L J 274) was the case of a woman who had poisoned her paramour and was sentenced to death. The woman had got disgusted with her paramour as he would not allow her to discontinue sexual intercourse with him in spite of the fact that she was suffering from a female complaint. Her husband, too, coming to know to the liaison began to maltreat her. She tried to get the landlord of the deceased to turn him out of the village. Failing to achieve this object she decided to get rid of him by poisoning. It was held that this was not a fit case in which the extreme penalty permissible under the law should be exacted and that the sentence of death might be commuted to one of trans portation for life. The next case relied upon was Sheo Ram v. Emperor (A I R 1937 Oudh 457) where an accused finding his rival at the house of his mistress struck three heavy blows with a lathi on his head as a result of which the rival died. It was held that cases of such nature should be decided on their own facts. Although the accused was provoked by seeing his rival at the house of his mistress, the provocation was not as grave and sudden as to give him the benefit of any of the Exceptions to section 300,

1. P. C. Hence the accused was guilty of murder under section 302, P. P. C., but the sentence should be of transportation In view of the provocation he had received. Lastly, we were referred to Baboo v. The State (P L D 1961 Kar. 240) in which the learned Judges observed that in the absence of proof of motive and in the presence of reasons to believe that there was a sudden impulse, in conditions of prolonged mental strain, to commit the murder, Courts have found good grounds for awarding the lesser sentence of transporta tion for life.

11. We are of the view that the quantum of sentence, which would meet the ends of justice in any particular case must neces sarily depend upon the facts and circumstances of that case, and no hard and fast rule can be laid down in this behalf. There is no doubt that certain general principles are deducible from judicial) authorities, and it is well to keep these principles in mind when assessing the sentence in a given case. In the present context we are in respectful agreement with the general principle mentioned in the cases cited before us, namely, that if there is provocation, that may be a good ground for imposing the lesser penalty in a murder case. But whether there is provocation in a particular case and what is the degree of such provocation would still require deter mination on the facts of the case, and only then could the Court come to a conclusion whether the provocation was such as would justify the lesser penalty.

12. In the case before us we are not at all persuaded that there was any provocation to the appellant such as could benefit him in the matter of sentence. The husband of the deceased woman was alive and there is no satisfactory evidence as to the duration of the association between the deceased and the appellant. According to the father and the mother of the deceased, the latter had come to the village only about a month prior to the occurrence, and it would appear that during that short period the had contracted relations with at least two men, namely, the appellant and the man called Kallu. The learned counsel for the appellant relied on the statement of the younger sister of the deceased, namely, Mst. Wallan (P. W. 7), to the effect that Mst. Bhao used to be given beating by her husband and she used to come to the parents' house quite often, to show that possibly the liaison between the deceased and the appellant was in progress for some considerable time before the murder. We do not find any such indication in the statement referred to, and therefore, we cannot hold, on the present record, that the association between the appellant and the deceased was of such long duration that the appellant could be deemed to have come to look upon the deceased virtually as his wife and to resent the intrusion of a stranger. The evidence only reveals that the deceased was not a person of chaste habits, and that she had first contracted an association with the appellant, and then with Kallu. There is no evidence that the appellant ever came upon the deceased and Kallu together in any provocative posture. On the contrary, the appellant himself has gone to the extent of denying all knowledge of any liaison between the deceased and Kallu. Again the murder was committed in the middle of the night after the appellant had deliberately armed him self with a deadly weapon. He attacked a sleeping woman with a hatchet in a cruel and cold-blooded manner, at a time when there was no provocation of any kind whatsoever. On these facts we are satisfied that the only appropriate sentence is that of death. We would accordingly confirm the sentence of death and dismiss the appeal. S. B. Appeal dismissed.