1991 P Cr (PLP)

S. 304, Part II

Quantum of sentence

Occurrence was an off-shoot of shadows of immorality

Deceased was partly responsible for sudden flare-up

Appeal had come up for hearing after 13 years

Accused had already undergone 3 years, 5 months after conviction and one year and about five months as under trials

Being not desirable to send the accused back to jail after 13 years, sentence already undergone was considered sufficient to meet the ends of justice

Sentence of 8 years' R.I. was reduced to one already undergone in circumstances. Masood Ahmad v. The Sate 1983 P Cr. L J 2236 and Ghulam Murtaza v. The State 1985 P Cr. L J 1191 ref. Sardar Latif Khan Khosa for Appellant. Mian Ashfaq Ahmad for the State. Date of hearing: 4th April, 1989. This appeal is directed against the judgment of the learned Sessions Judge, Sahiwal whereby he convicted the appellant for offence under section 304, Part 11 of the P.P.C. and sentenced him to undergo R.I, for 8 years with a fine of Rs.2,000 or in default of payment of fine to undergo R.I. for six months. The amount of fine if recovered was to be paid to the heirs of the deceased by way of compensation under section 544-A of the Cr.P.C.

2. According to the prosecution story Muhammad Hanif, deceased owned a workshop where Muhammad Yousuf P.W. used to work. The deceased had friendship with the appellant and informed him that his wife used to accompany Muhammad Yousuf P.W. to see movies. The appellant lived at Sahiwal while his wife lived at Arifwala with her father. He complained to his father-in-law Ghulam Nabi regarding the conduct of his wife which caused great annoyance to him. He took the appellant from Sahiwal to Arifwala to clear the doubts on 23-11-1974. The appellant came to the workshop of Muhammad Hanif at Arifwala where Abdul Waheed, Muhammad Yousuf P.W. and Muhammad Shari were also present. He asked Muhammad Hanif to clear the matter. He accompanied him to the house of Ghulam Nabi and the issue regarding the alleged visits of his wife in the company of Muhammad Yousuf was raised. Muhammad Hanif deceased denied having said anything in the matter whereupon the appellant was flared upto and gave blow on the left side of his chest. Thereafter, he ran away alongwith the weapon of offence. The deceased was being taken to the hospital in a Tonga but he succumbed to his injuries, in the way. Abdul Hamid P.W.6 uncle of the deceased lodged the F.I.R. Exh.P.A. at Police Station, Arifwala on 23-11-1974 at 5-00 p.m. It was recorded by Abdul Karim, S.I. P.W.9. The Investigating Officer went to the hospital and prepared the injury statement and inquest report of the deceased. The accused was produced before the police by Ghulam Nabi on 24-11-1974, who recovered blood-stained knife Exh.P.1, at his instance from a cotton field near a Shisham tree. He completed the investigation and submitted the challan in the Court. The appellant's case was committed to the Sessions Judge on 25-4-1975 for trial of the offence of murder of Muhammad Hanif, deceased. At the trial the prosecution produced three eye-witnesses namely Abdul Hamid P.W.6, Muhammad Yousuf P.W.7 and Muhammad Shari P.W.8 who furnished the ocular evidence in the case. The prosecution relied on the evidence of motive, the evidence of recovery of knife Exh. P.1 at the instance of the appellant, report of the Chemical Examiner Exh. P.L. and that of the Serologist Exh. P.K. and the medical evidence to support its case. When examined under section 342 of the Cr.P.C. the accused stated that his wife used to live with her parents at Arifwala and that he used to work at Sahiwal. During his absence Muhammad Hanif, deceased developed illicit relations with his wife. On the fateful day when he went to his house he found his wife in compromising position with the deceased in a room of the house. On being surprised the deceased caught hold of the appellant and throttled him, whereupon the appellant took up a knife which was lying on a. table and gave one blow to the deceased which resulted in his death.

3. The learned counsel for the appellant urged that none of the eye witnesses was present at the spot. Abdul Hamid lived in Sahiwal while Muhammad Shat lived at a distance of 30 miles, Muhammad Yousuf P.W.7, an employee of the deceased, was the paramour and for that reason -has come forward to depose against the accused/appellant, who had laid bare illicit liaison of the appellant's wife with him. He further urged that had the four persons been present in the house the appellant could not have caused any injury to the deceased. He prayed that in the alternative the sentence already undergone by the appellant may be considered to be sufficient under the circumstances of the case. Lastly he urged that no compensation was awardable to the legal heirs of the deceased in the given circumstances of the case. In this connection he placed reliance on the case of Masood Ahmad v. The State 1983 PCr.LJ 2236 and Ghulam Murtaza v. The State 1985 P Cr. L J 1191.

4. I do not find any force in the contentions raised by the learned counsel for the appellant that the eye-witnesses were not present at the spot. Abdul Hamid was one of the owners of the workshop at Arifwala, where Muhammad Yousaf P.W.7 used to work. He is uncle of the deceased and his presence at the spot, in the given circumstances of the case, appears to be natural. Similarly Muhammad Yousaf, the alleged paramour, has also explained that he accompanied Muhammad Hanif, deceased to the house of Ghulam Farid appellant to clear the matter regarding his alleged illicit relations with the wife of the appellant. Muhammad Shari P.W.8 is nephew of the deceased, his wife and children live in Chak No.257/E.B. He used to live in Arifwala in the house of one Fazal Muhammad. He had also stated that he had installed a Kharad at Arifwala. I There is no serious infirmity in the statements of these eye-witnesses so as to make their presence at the spot doubtful. The trial Court rightly relied on the statements of these witnesses and convicted the appellant. The issue regarding conduct and character of the appellant's wife was a sensitive one, hence it was not surprising that when Muhammad Hanif deceased resiled from his earlier statement, it caused annoyance to the appellant. He flew into rage and caused one blow to the deceased which resulted in his death. Hence the appellant was rightly convicted for offence under section 304, Part II of the P.P.C. As regards the sentence, the appellant has already undergone three years, 5 months and two days in the jail. As an under-trial prisoner he remained in the jail for one year. l four months and 23 days. His appeal has come up for hearing after a long delay or about 13 years. It will not be desirable to send the appellant back to jail to serve out the remaining period of imprisonment in the given circumstances of the present case. I, therefore, allow benefit of section 382-B of the Cr.P.C. to the appellant and hold that the sentence already undergone by the appellant is sufficient to meet the ends of justice. As the occurrence in the present case was an offshoot of the shadows of immorality cast on the wife of the appellant and the deceased was partly to be blamed for the sudden flare up, I remit the sentence of fine. The conviction of the appellant by the trial Court is upheld. With the above modification in the quantum of sentence the appeal is dismissed. S.A./G-423/L Sentence reduced as undergone.