1989 P Cr (PLP)

M.A. Chaudhry for the State. Date of hearing: 1st March, 1989. This is a jail appeal filed by Muhammad Younas alias Joona appellant through the jail authorities. He was tried by Mr. Muhammad Sarfraz Cheema, Additional Sessions Judge, Lahore, on the charge of committing murder of his wife Mst. Shakila on 5‑3‑1982 at about 9‑30 p.m. in his house, in Ichhra, Lahore, pursuant to annoyance caused to him by the refusal of her father to pay him some money. On the conclusion of his trial he, vide judgment, dated 22‑12‑1982, was convicted under section 302, P.P.C. and sentenced to imprisonment for life and a fine of ks.5,000 or in default to undergo two years' R.I.

2. The matter was reported to Ichhra Police by Karam Din (P.W.7) father of the deceased lady, and on his statement case F.I.R. No. 76 was registered against the appellant on 5‑3‑1982 under section 302, P.P.C. On the completion of the investigation, he was sent up to the Court of Session for trial.

3. On the commencement of trial the appellant pleaded not guilty and the prosecution produced as many as 10 witnesses. On the completion of trial the appellant, in his statement recorded under section 342, Cr.P.C. took up the position that his wife Mst. Shakila (deceased) was having illicit liaison with one Goga and during the night of occurrence when he returned to his house at about 9‑00 p.m. he found the outer door of his house chained from inside and after scaling over the wall of the house he went inside, he found her committing Zina with Goga and loosing his self‑control, he killed her by giving her repeated knife blows and finding the opportunity Goga ran away. He further stated that after killing his wife he himself went to the police station and handing over the knife to the police, related to the occurrence but the police gave it a twist and implicated him m a murder case. He produced Ibrahim (D.W.1) and Barkat Ali (D.W.2). Both of them supported his version of coming to the police station with a blood stained knife and relating the detail of the occurrence to the police.

4. I have perused the record with the assistance of Mr. MA. Chaudhry, the learned State counsel, and have also heard him on certain points. Out of the ten witnesses produced by the prosecution, Karam Din (P.W.7), the father of the deceased, and Muhammad Sarfraz (P.W.9) were the eye‑witnesses. The house of the former was situated at a sufficient distance from the house of the appellant where the occurrence took place and his presence at the time of occurrence was doubtful. Had he been present and witnessed the occurrence, alongwith his son Abdul Hameed, who was not examined as a prosecution witness though he was cited in the calendar, they would have intervened under the natural impulse to save the life of the lady so closely related to them and would not have watched her gruesome murder as disinterested on lookers scared by the threats of violence posed to them by the appellant. This fact also is creative of doubt about the presence of Karam Din P.W. during the time of incident. However, it is difficult to brush aside the testimony of Muhammad Sarfraz (P.W.9), who was immediate neighbour of the appellant and was a natural witness. There is nothing on the record to show his interestedness for any reason. He was, therefore, an independent witness by all standards but his testimony is to the effect that he saw the appellant giving knife blows to his wife and killing her on the spot. This fact is not denied by the appellant, rather, he has frankly admitted having killed his wife he has, however, given an explanation for taking this extreme step. In these circumstances the question for determination is as to how far the explanation furnished by the appellant is plausible? To my mind, the appellant in consonance with the general practice prevalent in our society, seems to have played up the immoral conduct of his wife by alleging commission of Zina with one Goga and he having seen her in compromising position with him. This. fact does not find support from the facts and circumstances of the case. If he had seen Goga actually committing Zina with his wife, she would have been naked or at least she would have been without her Shalwar but, as it appears from the inquest report prepared by the police, the dead body stood clad in shirt, Shalwar brasiere, etc. and there were cuts on these apparels. In other words, the appellant introduced the story of Zina with a view to earn concession in the matter of sentence. However, the fact remains that there is nothing on the record to show as to what had actually transpired between the appellant and deceased which prompted the former to take the life of the later. The appellant had two children from his deceased wife and when he took the extreme step of taking her life by giving her repeated knife blows on different parts of her body, she must have done something unusual to enrage him to that extent. In these circumstances the offence comes within the mischief of section 304, Part I, P.P.C. on the basis of grave and sudden provocation. Therefore, the appeal is accepted to the extern that the conviction of the appellant is altered from under section 302, P.P.C. to under section 304, Part I, P.P.C. and his sentence is reduced from imprisonment for life to rigorous imprisonment for a period of ten years. However, his sentence of fine and imprisonment in lieu thereof awarded to him by the trial Court shall remain intact.

5. The appellant should be informed accordingly through the jail authorities which should give immediate effect to this judgment. N.H.Q./M-1351/L Conviction/sentence altered.