1984 PLP 384 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑-Bati the accused/appellant was tried for the murder of his wife Mst. Sardaran on 21‑7‑1973 at about Peshiwela in his house at Dera Khu Ismail, Bosal, District Gujrat lying at a distance of about l miles from Police Post Bosal, and was convicted and sentenced under section 302, P. P. C. to life imprisonment and, a fine of Rs. 500, and in default, to suffer further imprisonment for one year ride judgment of the learned Sessions Judge, Gujrat, dated 14‑10‑1977. Bati appellant filed an appeal which was dismissed vide the impugned judgment of the Lahore High Court. He then filed a petition for leave to appeal and leave was granted vide order of this Court dated 16‑9‑1979 on the ground that the appel lant s suspicion regarding the fidelity of his deceased wife (sic) anti it is clear from Exh. P. M. that the swabs taken from the person of the deceased Mst. Sardaran were found to be stained with semen which apparently shows that it was riot a case of mere suspicion and proved the actual and factual indulgence in sexual intercourse by the woman with someone on that date. This evidence and document does not appear to have been taken into con sideration by any Court below even though it was tendered by the prosecution vide the statement of the Public Prosecutor made in the Court on 8‑2‑1977. The question of sentence, therefore, required consideration and the appellant was entitled to argue on merits with regard to his guilt.

2. According to the prosecution, the accused /appellant married Mst. Sardaran deceased about 20/25 years before the occurrence. They lived happily for some time. Later on the appellant developed a suspicion that the deceased was carrying on with one Bashir and there had been often altercations between them.

3. On the day of occurrence Bati P. W. brother of the deceased had gone to the house of his sister at about Peshiwela while the deceased was lying on a cot in the house when Bati appellant came, armed with a toka, and started quarrelling with the deceased asking her as to why she had gone that day to the fields of Bashir her suspected paramour. When the deceased denied this allegation the appellant started giving her blows with the toka. She tried to ward off the attack and in this process she got injured on her left hand. As the accused/appellant continued attacking the deceased, after receiving several toka blows fell to the ground and the accused still gave more blows on her neck. She succumbed to her injuries on the spot. Bati P. W. raised an alarm which attracted Inayat and Sarwar P. W's. The 3 witnesses caught hold of the accused and relieved him of the blood‑stained toka. Bati P. W. then went to the Bosal Police Post lying at a distance of 1J miles and his report Exh. P. A. was recorded by Razi‑ul‑Hussain Shah then Incharge of the Police Post at about 4‑30 p.m. This report later formed the F.1. R. Exh. P. C.

4. Raziul Hussain Shah, P. W. after recording the statement of Bati, P. W. 3. went to the spot and prepared the injury statement, Exh. P. D. and inquest report, Exh. P. E. sent the dead body to the mortuary. The accused was produced before him, his clothes were found blood‑stained which were got removed and taken into possession vide Memo. Exh. P. G. Sarwar, P. W. produced blood‑stained toka, P. 7 which was also taken into possession vide Memo. Exh. P. H. He also got prepared site plan, Exh. P. J. and its duplicate Exh. P. H./I.

5. Dr. Rashid Ahmad, Medical Officer, Civil Hospital, Mandi Bahaud din performed the post‑mortem examination and found 12 incised wounds of various dimensions on the body of Mst. Sardaran deceased out of which injury No. 10 comprised of four incised wounds overlapping each other bone deep 5 " x 4 " irregular shape, in front of neck the trachea and oesophagus were cut 4th, 5th and 6th cervical vertebra fractured and spinal cord was cut. According to the doctor the injuries were sufficient to cause death in the ordinary course of nature and were caused by a sharp‑edged weapon.

6. At the trial Bati son of Khanu, P. W. 3 appeared as ocular witness of the occurrence and made the statement mentioned in the foregoing paragraph, Sarwar, P. W. 4 was declared hostile and was cross‑examined by the prosecutor.

7. The accused/appellant was examined but he denied the guilt or having quarreled on the fateful day with the deceased. Regarding his blood‑stained clothes, he stated that these clothes did not belong to him and that he has been falsely implicated in the case due to enmity of bati P.W

8. Learned counsel for the appellant contended that it was a case of sudden grave provocation that the accused/appellant had lost self-control due to infidelity of his wife and that on the date of occurrence she had visited the place of Bashir her paramour and when he asked for the purpose of her visit she started quarrelling with the accused/appellant. 9 On going through the evidence and after hearing the learned counsel for the State we find that there is no charge against the character of the deceased even in the statement of the accused/appellant at the trial though in the F.IR. Bati, P.W. had stated that the accused suspected the deceased for having a liaison with Bashir but mere suspicion would not give him cause to attack the deceased under the pretext of sudden and grave provocation. It is not a case of flagranto delicto which may bring the case of the accused/appellant under Exception 1 of section 300, P.P.C. Regarding the swabs which were taken from the person of the deceased and sent to the Chemical Examiner who found the same to be stained with semen ; this would not be enough reason to hold that the deceased was seen actually in the company of any man at the time of occurrence. She being a married woman the semen could be there if she had sexual intercourse with her own husband, and therefore, the story now put forward by the learned counsel cannot be believed. Hence, we find no reason to interfere with the impugned judgment of the High Court. S. Q. Appeal dismissed.