P L D 1966 (W (PLP)

Mst. Amina Boota Hussain Massan (deceased) (P. W. 3) (P. W. 2) married to Mst. Sairan) The deceased and appellant are first cousins: the two branches of the family are also connected by intermarriages as shown in the table. The case .for the prosecution briefly is that, about 10 or 11 years prior to the occurrence Bota deceased was married to the appellant's sister, Mst. Sairan while she was almost an infant. The marriage between the two had not yet been consummated. Lately, Mst. Sairan attained puberty and the deceased started visiting her in the house of her parents. The appellant, who wanted to obtain a divorce for her in order to give her in marriage to the brother of his own wife, did not quite approve of this. The deceased, however, continued his visits of Mst. Sairan, avoiding any con frontation with the appellant. In an effort to expedite rukhsati of his wife to live together as man and wife, a punchayat was also convened. But it did not lead to any fruitful result owing to the opposition by the appellant, though his father Hassan Din was inclined to accede to the deceased's request. Seeing his wishes in the matter being frustrated, the appellant left his father's house three or four days prior to the occurrence.

3. On the morning of the 30th September 1963, Boota deceased and his brother Massan (P. W. 2) were ploughing their field when at about lassiwela they stopped ploughing for a while. Massanaaa started preparing huqqa for a smoke and the deceased remained standing near the plough. All of a sudden the appel lant emerged from the jungle close‑by. He was armed with hatchet Exh. P‑5, with which he immediately attacked the deceased hitting him on the head. As a result, the deceased fell on the ground. Both Massan P. W. and the deceased Boota raised alarm. But before any help could reach, the appellant delivered more hatchet blows to the deceased again hitting him on the head. In the meantime, Hussain (P. W. 3), who was bringing lassi for his brothers Massan (P. W. 2) and the deceased, arrived and saw the occurrence. Ahmad Ali (P. W. 4) also arrived at the spot. With the appearance of these persons on the scene the appellant took to his heels taking the hatchet with him. After the appellant had left, Siddique (P. W. 5) also reached the spot. Incidentally these two witnesses are also related to the deceased by marriages.

4. Boota after suffering the hatchet blows died almost instan taneously. Thereupon, Massan P. W. set out for the Police Station at Leiah, to lodge the F. I. R. leaving the eye‑witnesses to remain with the body of the deceased. He, however, met the Sub‑Inspec tor, Ch. Ghulam Ahmad (P. W. 12), in village Chauk Azam, also known as Chauk Khuni and made the report Exh. P. A., which was later registered as F.

1. R. at the police station about 12 noon, the same day. The Sub‑Inspector reached the spot at about 3 p.m. He prepared injury statement Exh. P. G. and inquest report Exh. P. F. in respect of the dead body and despatched it to Leiah for post‑mortem examination.

5. The autopsy revealed the following injuries on the body of the deceased:‑ (1) An incised wound, 1 " x ", on the left forearm. (2) An incised wound, 6" x 1 ", on the left side of head, cutting the skull and brain lying out, (3) An incised wound, 2" x 1", on right side of head with bone bare. (4) An incised wound, 6" x 2", on left side of face cutting the upper jaw completely so that the jaw and the teeth were lying loose in the wound. The wound extended from left ear to left side of mouth. (5) An incised wound, 5"x 1 ", on left side of face extending from wound No. 4 to the neck and cutting the mendible. (6) An incised wound, 3" x 1 ", on the front of neck extending from wound No. 5 to the front of neck cutting all the big vessels, wind pipe, food pipe and the vertebral column. (7) An incised wound 3" x 1", on the front of neck from wound No. 6 to right side of neck cutting all the big vessels. At the foot of the injury statement, the Medical Officer noted that injuries Nos. 4, 5, 6 and 7 were continuous in such a manner that they formed together a big gaping wound of mutilating and brutal nature. In the doctor's opinion death was caused instantaneously due to injuries Nos. 2, 4, 5, 6 and 7, each of which was sufficient to cause death in the ordinary course of nature. 1n his opinion all the injuries were inflicted with sharp‑edged heavy weapon such as axe.

6. After the occurrence, the appellant absconded. He was, however, arrested by Ghulam Sarwar, F. C. (P. W. 9) in village Rafiqabad on the 4th October 1963 when he was travelling in a public bus. On the 7th October, the appellant led the police to a sand dune in the area of Chak No. 377/T. D. A., from where he dug out the blood‑stained hatchet Exh. P. 5 which was taken into possession vide Exh. P. E. The bloodstains on the hatchet had, however, disintegrated in the meantime and their origin could not be determined.

7. The prosecution examined Massan (P. W. 2), Hussain (P. W. 3), Ahmad Ali (P. W. 4) and Siddique (P. W. 5) as witnesses of the occurrence. It is true that all of them are closely related to the deceased. But they are natural witnesses and their evidence has been believed, and rightly so, by the trial Court. The relation ship of the eye‑witnesses with the deceased loses significance in the case in face of the fact, that the appellant in his statement dated 9‑6‑1964 before the learned Additional Sessions Judge, admitted that he caused death of the deceased with his hatchet Exh. P.

5. In mitigation he, however, pleaded grave and sudden provocation in that he found the deceased and his sister, Mst. Sairan, together in the jungle in a "compromising position".

8. The all important question in the case, therefore, is, whether in the circumstances of the case, defence of grave and sudden provocation is available to the appellant to mitigate enor mity of his crime? An answer to this question raises a further question as to whether at the time of occurrence the deceased and Mst. Sairan were seen by the appellant in what is described "As A compromising position"? In this behalf Mr. Saleem, the learned counsel for the appellant, relied strongly on the evidence of Ahmad (P. W. 4), who in the last sentence of his cross‑examina tion stated that as he rushed to the spot, he saw a woman running away towards the Chak. We doubt very much if this casual observation as to a woman running to the village soon after the occurrence would sustain a plea of grave and sudden provocation, For one thing, the woman remained unidentified. It may be that some women near‑about the spot was 'so horrified by seeing Boota being brutally done to death that to avoid the scene of horror, she ran to the village. The identity of the running woman not being established with Mst. Sairan, there is no basis for the plea of grave and sudden provocation. Secondly, it is significant to note that this plea was not raised before Committing Magistrate. Therefore, it appears to be after‑thought.

9. Even assuming for the sake of argument that the deceased and Mst. Sairan were seen together by the appellant in the jungle even in a "compromising position", the question still remains whether that would constitute mitigating circumstance sufficient to alter the nature of the offence committed by the appel lant. It is not controverted that Mst. Sairan, since her infancy had been in the Nikah of the appellant, who, after she had attained puberty, had been visiting her off and on. To all appearances she responded to . his visits for the consummation of the marriage. The very fact that she was with the deceased in the thick lonely jungle immediately before the occurrence also point to that fact: else she would not have been with her husband in the jungle on that fateful morning. It would be wrong in principle to apply the dictum in those precedent cases in which the husband's plea of grave and sudden provocation prevailed when he found his wife in the act of actual adultery with another person. In the present case, even if it is accepted that the deceased and Mst. Sairan were found cohabiting, that would merely be cohabitation between a man and his wedded wife which can on no discoverable legal or ethical principles be. regarded as fornication so as to make available to the appellant the plea of grave and sudden provocation by the deceased. It is impossible to say in the circumstances that Mst. Sairan had in any manner surrendered her virtue. Rather she chose to stand by her husband despite the relentless opposition by her own brother based on purely selfish motive. It would be opposed to all sense of justice to allow the plea of grave and sudden provocation in the circumstances of the present case. As pointed out in Marcini v. Director of Public Prosecutions (1942 A C 1) the test to be applied in such cases is the effect of the provocation on a reasonable man, so that an unusually excitable or pugnacious B individual is not entitled to rely on provocation ‑which would not have led an ordinary man to act as he did. For the above reasons, the defence of grave and sudden provocation, in our view, is no available to the appellant.

10. Finally the learned defence counsel pleaded for lesser penalty under section 302, P. P. C. because of the annoyance caused to appellant by his sister's refusal to repudiate the deceased a her husband. We are definitely of the view that there is no force in the plea. As pointed out earlier, the appellant was acting under a purely selfish motive. To find a wife for his wife's brother, the appellant would rather wreck the Nikah between his sister and the deceased both of whom had accepted each other as a man and wife. This rather enhances the enormity of the crime. The brutality of the injuries inflicted is also a very strong reason against any leniency. Accordingly, we dismiss the appeal and maintain the convic tion and sentence. The sentence of death is confirmed. S. Q. Appeal dismissed.