1988 P (PLP)

GULBAZ KHAN, J.‑‑The present appeal had been filed by Faqir Muhammad, aged 25 years, resident of village Sargani, Tehsil Leiah, District Muzaffargarh, against the judgment of learned Sessions Judge, Muzaffargarh, dated 12‑5‑1979, whereby Faqir Muhammad appellant was convicted under section 302, P.P.C. for the murder of his wife Mst. Razia and sentenced to death and a fine of Rs.5,000 or in default in payment of fine to suffer rigorous imprisonment for six months. Amount of fine, if recovered, was ordered to be paid to the heirs of Mst. Razia, as compensation under section 544‑A, Cr.P.C. The appeal filed by Faqir Muhammad and the reference sent to this Court by the learned Sessions Judge under section 374, Cr.P.C. are being disposed of together.

2. On 17‑9‑1978, at 4‑00 p.m. Mst. Razia deceased was winnowing the wheat in the house of her father situated in village Jadid Sahuwala in the area of Chak No. 100‑B/T.D.A. The mother of the deceased was blind while the father had not vision from one eye and a weak eye‑sight from the other eye. Muhammad Bakhsh complainant, a sister's husband of the deceased, Muhammad Nawaz P.W. husband of another sister of the deceased, and Said Ali P.W., a nephew of Muhammad Bakhsh complainant lived close to the house of the parents of the deceased. Muhammad Bakhsh complainant and Said Ali P.W. were sitting under a jund tree at a distance of seven karams from the house of the parents of the deceased. On hearing some noise from the house of the father of the deceased, Muhammad Bakhsh and Said reached there. They found Faqir Muhammad appellant in the house of the father of the deceased armed with hatchet. The appellant told his wife Mst. Razia to accompany him but she replied that she would accompany him tomorrow after attending the rejoicing ceremony of the son of her sister's husband Amir Muhammad. The appellant told his wife that he would teach her lesson for going to the house of her sister's husband Amir Muhammad and inflicted hatchet blow on the head of the deceased who fell down and died at the spot. The occurrence was witnessed by Muhammad Bakhsh, Said Ali and Muhammad Nawaz P.Ws. They tried to apprehend the appellant who threatened them with death. The appellant ran away with his hatchet.

3. The appellant suspected his wife of illicit relations with her sister's husband Amir Muhammad.

4. Muhammad Bakhsh complainant reached Police Station Leiah, on 17‑9‑1978. at 7‑30 p.m. The distance between the spot and the Police Station was ten miles. The complainant lodged F.I.R. Exh, P.C. which was recorded by Mirza Amir Beg S.H.O. (P.W.10). The S.H.O., on reaching the spot, prepared the injury statement and inquest report of the deceased and sent the dead body for post‑mortem examination. He recovered blood‑stained earth from the spot and sealed it into a parcel. He took into possession blood‑stained mat and sealed it into a parcel. On 21‑9‑1978, Faqir Muhammad, Advocate Leiah, produced the appellant before the S.H.O. at Octroi Post Mohallah Eidgah, Leiah. The appellant was holding blood‑stained hatchet P.6, which was sealed into a parcel vide memo. Exh. P. B. The said memo was attested by Said Ali and Muhammad Nawaz P.Ws.

5. Muhammad Bakhsh complainant (P.W.5), Muhammad Nawaz (P.W.6) and Said Ali (P.W.7) fully supported the prosecution case. They stated that they had seen the appellant inflicting hatchet blow to the deceased. Muhammad Nawaz and Said Ali also supported the recovery of blood‑stained hatchet P .6.

6. Dr. Manzoor Ahmad Malik conducted post‑mortem examination on the dead body of Mst. Razia, on 18‑9‑1978 at 10‑00 a.m. and found an incised wound 2V x f" x bone cut on the frontal region of head. Brain matter was coming out of the wound. The membranes and the brain were injured at the site of the injury. The death was due to damage to the brain, profuse intracranial and external haemorrhage and shock. The injury was sufficient to cause death in the ordinary course of nature. It was the result of sharp‑edged weapon. Time between injury and death was about half an hour and between death and post‑mortem examination 17 to 18 hours.

7. The learned counsel for the appellant very rightly did not challenge the statements of the eye‑witnesses. We have noticed in the site plan that the house of Muhammad Nawaz was at a distance of 20 karams from the place of murder while the houses of Muhammad Bakhsh complainant and Said Ali P.W. were practically at the same distance. Muhammad Bakhsh and Said Ali were present under a jund tree at a distance of seven karams from the spot. The three eye‑witnesses were natural. They were related to the deceased as well as to the appellant. They had no malice against the appellant and had no cause for involving him falsely in this case. The statement of Muhammad Nawaz P.W. was rejected by the learned Sessions Judge for superficial reason. Any how, that would not make any difference and would have little bearing on the result of the case. The statements of the other two witnesses, namely, Muhammad Bakhsh and Said Ali were relied upon, which have not been challenged by the learned counsel for the appellant.

8. The learned counsel for the appellant contended that the case of the appellant was covered under exception (1) of section 300, P.P.C. and the appellant was liable for the offence under section 304 , P . P . C . He pointedly drew our attention to the statement of Muhammad Bakhsh (P.W. 5) on page 9 line 28 and page 10 line 37 and submitted that the conduct and the attitude of the deceased had so much provoked the appellant that he lost control of himself and caused solitary injury to the deceased. According to the learned counsel it was a sudden affair. We cannot subscribe to this view. While registering the case, Muhammad Bakhsh complainant mentioned in the F.I.R. that the deceased suspected his wife Mst. Razia for having illicit relations with her sister's husband Amir Muhammad. On the day of occurrence, the appellant wanted his wife to accompany him to his house to which she had not agreed. The deceased told her husband that she could accompany him tomorrow only after attending the rejoicing ceremony of the son of said Amir Muhammad. The appellant replied that he would teach her lesson for going to the house of Amir Muhammad and inflicted hatchet blow to the deceased and killed her. It is not every provocation that will reduce the offence of murder to culpable homicide. An unusually excitable' pugnacious individual cannot be allowed to rely on provocation which. would not make a normal man to act like that. The resentment caused by the provocation and the act done in consequence thereof must bear reasonable relationship to the provocation if the offence is to be reduced from murder to mere culpable homicide. There should be five conditions for bringing the case of an accused person under exception (1) of section 300, P . P . C . ; the deceased must have given provocation to the accused; the provocation must be grave; the provocation must be sudden; the offender, by reasons of said provocation, shall have been deprived of his power of self‑control; the offender should have killed the deceased during the continuance of the deprivation of the power of control; and the offender must have caused the death of the person who gave provocation or that of any other person by mistake or accident. The test for the application of the plea of sudden and grave provocation is to the effect of a provocation to a reasonable man. The test of provocation rests upon the fact that the killing was done on a sudden impulse, as it were, an instinctive, animal‑like reaction to an unforseen attack, which had caused the killer momentarily to lose his self‑control. In the present case, the appellant had a suspicion against his wife. He told his wife to accompany him but when she replied that she would accompany him tomorrow after attending the rejoicing ceremony of the son of Amir Muhammad, he killed her. In our view, there was no gravel provocation. No prudent or reasonable man would go to the extent of killing his wife on such an answer. The plea of grave and sudden provocation falling under exception (1) to section 300, P P.C. was not available to the appellant. The sentence, however, requires reduction on the ground of the suspicion of illicit intimacy of the deceased with Amir Muhammad. While dismissing the appeal, we reduce the sentence of Faqir Muhammad to imprisonment for life. The sentence of fine is maintained and in default in payment of fine, he shall suffer imprisonment as ordered by the learned Sessions Judge. The sentence of death of Faqir Muhammad is not confirmed. M.I./F‑50/L Order accordingly.