1983 PLP 1146 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑We issued notice to the State, converted this petition into an appeal and have disposed it off as such.

2. Khurshid Ahmad appellant is aggrieved by the judgment of the High Court, dated 5‑10‑1981 whereby his conviction under section 302, P. P. C. was maintained and sentence of death confirmed.

3. Khurshid Ahmad was tried for the murder of his own wife, Mst. Shamim Akhtar at 9 p. m. on 11‑4‑1979 in the compound of a school near his house in Chak No. 54 Basti Jan Muhammad, Tehsil Hasilpur, District Bahawalpur.

4. The prosecution case, briefly, is that Mst. Shamim Akhtar, sister of Muhammad Bashir complainant, was married to the appellant about 4 years prior to the occurrence and a daughter (now about 2 years old) was born out of the wedlock. Mst. Shamim Akhtar (deceased) was living in the appellant's house. The appellant, it is alleged, was a debauch who had developed illicit liaison with a number of women. Mst. Shamim Akhtar (deceased) tried to restrain the appellant upon which the appellant used to beat her. Mst. Shamim Akhtar (deceased) sent word to her brother Muhammad Bashir P.W. 9 who accompanied by his father‑in‑law Abdul Hameed P.W. reached the house of the deceased and the appellant one day before the occurrence. On the day of occurrence at 9 p. m. Muhammad Asghar also reached the house and was sitting with them. They were discussing the aforementioned domestic problem with Khurshid Ahmad when Mst. Shamim Akhtar (deceased) left. the house "in order to ease herself." Soon thereafter Khurshid Ahmad appellant also went out of the house. After a short while an alarm was heard from the nearby school, upon which Muhammad Bashir (complainant). accompanied by Abdul Hameed, Muhammad Asghar and Muhammad Sharif went running and on reaching the spot (which was behind the school building) they saw that the appellant was cutting Shamim Akhtar's throat with a razor. The com plainant with the help of his companions overpowered and captured the appellant. Mst. Shamim Akhtar died on account of the injuries.

5. Leaving Muhammad Asghar with the dead body and the appellant in the custody of Abdul Hameed, Muhammad Bashir complainant, proceed ed to the police station, where the F.I.R. was registered on his statement. It was recorded by Nazim Ali, S. 1. (P.W. 12). After recording the F.I.R. he went to the spot and arrested the appellant who was produced before him by the P.Ws. present there. He sent the dead body for post‑mortem examination and completed the other formalities. The appellant produced a blood‑stained razor (P. 13) before the investigating officer. It was subsequently found to be stained with human blood. The appellant's shirt (P. 14) and Chadar (P. 15) which were also stained with blood, were got removed and taken into possession. These were also found to be stained with human blood: Shirt (P. 12) of Muhammad Bashir complainant (P.W. 9) was also found to be stained with blood and was, therefore, taken into possession. This too was stained with human blood.

6. The post‑mortem examination revealed a number of incised injuries on the person of the deceased whose throat had been badly cut with the razor. The doctor also examined the appellant on the same day and found an abrasion on the left side of his neck 1/2' x 1/2" dimension, which could have been caused by the nails of the struggling woman, namely Mst. Shamim Akhtar (deceased).

7. At the trial She prosecution case mainly rested on the testimony of Muhammad Bashir (P. W. 9) and Abdul Hamid (P.W. 10) and the afore mentioned recoveries coupled with the motive and the medical evidence. The appellant pleaded not guilty and produced four defence witnesses. The learned trial Court convicted the appellant and sentenced him, inter alia, to death. On appeal the High Court upheld the conviction and confirmed his death sentence vide the impugned judgment. Feeling aggrieved the appellant filed Crl. P. No. 411/81 which, as stated earlier, after having been converted into appeal was disposed of as such.

8. The learned counsel for the appellant urged before us that but the eye‑witnesses belong to different villages and as such ought not to be relied upon. For this purpose he also sought support from the testimony of Khushi Muhammad (P.W. 6).

9. We have carefully considered this contention and are not inclined to agree with it. Both the eye‑witnesses have satisfactorily explained their presence at the spot. The presence of Muhammad Bashir (P.W. 9) is also established by the presence of human blood on his shirt. We cannot, therefore, accept the contention that the occurrence was not witnes sed by them. Their testimony is supported by the recovery of blood stained razor from the accused who was apprehended at the spot as well as his blood‑stained clothes. The charge has been fully brought home to him and he was rightly convicted under section 302, P.P.C. 10: We, however, feel that in view of the circumstances of this case as alleged by the prosecution itself the appellant merits to be awarded the lesser sentence. According to the prosecution itself Mst. Shamim Akhtar had slipped out of her husband's house at 9 p. m. and gone to the nearby school at a distance of 35 Karams. Her husband followed her and killed her behind the school building, as is apparent from the site plan (Exh. P. C./ I on the last page of the printed paper book). Admittedly no one was present when the appellant followed and caught hold of his wife behind the school building. Nothing is stated as to what happened immediately before the occurrence. As such, according to the expression which has lately come in vogue, "the genesis of the incident is shrouded in mystry". It is evident that something led happened shortly before the occurrence which provoked the appellant into murdering his wife, otherwise there is hardly any plausible reason for his having followed her to the school and attacking her there, instead of attacking her in his house where, it is alleged, he was being criticised for his conduct, on her complaint. In this view of the matter, while maintaining his conviction we reduce his sentence from death to imprisonment for life.

11. The appellant has also sought relief under section 382‑B, Cr. h. C. He may be given the said relief by the jail authorities for the period spent by him in jail as an under-trial prisoner, while computing his sentence. With the above modification the appeal is disposed of. S, Q, Appeal partly accepted.