P L D 1967 Lahore 649 (PLP)

Mewa v. The State P L D 1958 Lab. 468; Muhammad Zaman v. Emperor A I R 1933 Lab. 165; Husain v. Emperor A I R 1939 Lab. 471 and Azizur‑Rehman v. Crown P L D 1950 Pesh. 76 ref. Muhammad Saleem Qazi for A.‑G. for the State. Date of hearing: 18th April 1966. Ahmad Din alias Ahmi has been convicted by the learned Additional Sessions Judge, Montgomery under section 304, Part II, P. P. C. by his order dated 10th July 1962 and sentenced to R. I. for a period of 7 years. He has preferred an appeal through Jail. The facts which led to the detection of the crime and the conviction of the appellant are: ‑

2. The appellant was living in Chak No. 15/E. B. with his wife in the ahata of Karam Shah. He went to his, mother‑in‑law. Ehsana and Kamal are brothers. He left telling his mother‑in‑law that she should look after his son because his wife Mst. Nishan had been abducted. They did not give credence to his statement and suspected some foul play. They approached Sher Muhammad P. W. 4 requesting him to find out from the appellant the whereabouts of Mst. Nishan. Sher Muhammad was able to get hold of appellant only 5 or 6 days after this. He enquired from the appellant in the presence of Shamand and Ilim lain (they are not the prosecution witnesses) about the whereabouts of his wife, who replied that she left him and had gone to live with Faridi Chowkidar of Thatta Hassanka. He asked him to disclose the truth because the relative of his wife had come to him complaining of a foul play. The appellant then narrated to him the facts leading to the incident. He said that 10 or 12 days prior to that, one day when he was returning to his house with his cart loaded with fodder at peshivela, he saw his wife with their son in her lap on the way. She, on being questioned by the appellant as to where she was going, , told him that she was going to her parents. She delivered the child to him and said that she was not prepared to live with him. He further said that he had shifted to Chak No. 15/E. B. due to the immorality of his wife and, therefore, asked her that she was in fact going to her paramour Faridi Chowkidar. She did not controvert this allegation and instead proclaimed that she would go and would live with him. On this, the appellant got infuriated and by taking out a Munni of his Gadda, struck the same on her head. She fell down unconscious. The appellant then said that he lifted up the child and drove back to the 5 village. On returning to the spot he found that she was dead. He tied the deceased in a Bhaggal (it is chaddar prepared of the Gunny Bags for keeping the fodder, etc.) and threw her in a pit which had been excavated for digging a well, and covered her dead body with earth. He admitted that he had taken the child to be delivered to his grand‑mother. He also admitted before Sher Muhammad P. W. 4 that on seeing one day that the dead body had become visible, he removed the same from that place and buried it in a sugar‑cane field of Karam Shah.

3. Sher Muhammad reported this incident to the police on the 19th July 1961. The appellant was accompanying him at that time. The Police recovered the dead body on the pointing out of the accused and also Munni Exh. P./6 by which the appellant was alleged to have given the fatal blow. The appellant also volunteered to make a confessional statement. He was produced on the 27th July 1961 before Sh. Nasir‑ud‑Din Ahmad, Magistrate First Class, Pakpattan, for recording his statement, under section

164. He remanded the accused to the judicial lock‑up and before doing so as told him the purpose for which he was produced before him and also warned him that it was not obligatory for him to make any statement and that if he did so it would be used against him as evidence. He further told him whether or not he made any confessional statement he would not be remanded to the Police custody. The appellant was then produced before the learned Magistrate on the 28th of July 1961, from the judicial lock‑up. He took the necessary precau tions to exclude the Police from the Court Room before recording the statement. He again explained to the appellant the consequences or a confessional statement. The Magistrate gave him further time to make up his mind and recorded his state ment after 45 minutes of the adjournment. Having satisfied that the appellant was making the statement voluntarily he recorded his statement Exh. P/J/2 under section

164. The con fessional statement is almost a restatement of facts which he narrated to Sher Muhammad (P. W.).

4. The prosecution in support of the case relied on the confession of the appellant recorded under section 164 and also on the extra judicial confession which he made before Sher Muhammad. They produced Sh. Nasiruddin Ahmad, Magistrate, First Class, Pakpattan (P. W. 2) to prove the con fessional statement and Sher Muhammad (P. W. 4) to depose about the extra judicial confession. Mst. Ehsana is the mother of the deceased. She in her examination‑in‑chief stated, "the accused used to say that Mst. Nishan his wife had developed illicit connection with Farid of Thatta Hassan, which is at a distance of about two miles from my Chak." The deceased had only one injury on her person according to the statement of Dr. Rashid Ahmad Khan (P. W. 1). The injury was `depressed fracture 11/4" x 1" at the junction of right frontal parietal and temporal bones with linear fracture through and through going forward in the frontal bone into the orbit at the junction of its outer and upper plates and a verticle fracture through and through, linear, in middle of forehead, ending in the fracture of both the nasal bones. Memberances were putrified and the brain was liquified." The death according to the doctor was as a result of the injury to her head which caused fractures of skull bone resulting in coma and shock.

5. The appellant in his statement before the Magistrate as well as before the Additional Sessions Judge admitted that he made the confessional statement under section

164. He also admitted that he narrated the facts to Sher Muhammad (P. W.). The case of the prosecution is based on the confession made by the appellant. The account of what occurred on that day is given by Ahmad Din appellant himself. It is his admission of guilt contained in that account that forms the basis of his conviction and I consider that it should be accepted in entirety. It appears that Mst. Nishan was a woman of loose habits and of unstable character. The appellant was dissatisfied with her character and it is admitted by Mst. Ehsana the mother of the deceased that the appellant had complained to her that the deceased was having illicit relations with Farid of Thatta Hassan. It also seems that he did his best to dissuade her from her activities. He also adopted all reasonable methods to see that she gave up her illicit connection with Farid Chowkidar. To achieve this object he left village Thatta Hassan and came to live in Chak No. 15/13. B. His object was that by taking Mst. Nishan from the proximity of Farid, she might mend her ways. On the day of incident the appellant while he was returning home saw her outside the village with the child. She informed that she was leaving him. She also handed over the child to him. It is in his statement that she threw the child on the ground. The appellant dissuaded her from going. She, however, insisted to go back to her parents. Being mentally conscious that she had illicit connection with Farid, the appellant told her that she was not going to her parents. Instead of denying the allegation she asserted that she was going to Farid. It was in these circumstances that the appellant took out the Munni of his cart and struck her with the same. This would show that the act was not done with any premeditation and in fact happened at the spur of the movement. When the statement made by the appellant forms the only basis of his conviction the statement must be accepted in its entirety and if there are any mitigating circumstances the appellant should be given the benefit of the same. The appellant has apparently done all that he could do to induce his wife to live a sober and proper life. It is perhaps not surprising that the appellant, after his wife told him that she was going to live with Farid (that he) became enraged and in his rage lost complete control of himself and caused the death of his wife. The circumstances of the social life in which the appellant was living were such that the wife was expected to obey and respect her husband. Mst. Nishan not only disobeyed the appellant in returning to her house, she in fact discarded the child and openly proclaimed to go and live with her paramour. These circumstances have to be considered in weighing the nature and amount of provocation. The Additional Sessions Judge held that the appellant in killing his wife acted under grave and sudden provocation. I have no reason to differ from him in the conclusion at which he has arrived. He sentenced the appellant to 7 years' R. I. The sentence in my opinion is excessive. In Mewa v. The State (P L D 1958 Lah. 468), a sentence of 3 years' R. I. was imposed on the accused who killed the wife of his brother on seeing her sitting with a stranger. In other cases, namely, Muhammad Zaman v. Emperor (A I R 1933 Lah. 165); Husain v. Emperor (A I R 1939 Lah. 471) and Azizur Rehman v. Crown (P L D 1950 Pesh. 76 ) a sentence of few months was imposed. It is true that in these cases the deceased were found in a com promising position. It is of course not the position in this case, because the appellant, did not see his wife committing any such act with Farid but her emphatic assertion in the presence of her husband that she would go and live with her paramour cannot., under the circumstances, make a substantial difference. It may not be proper to inflict the light sentence as was done in these cases yet a heavy sentence is not called for because the element of grave and sudden provocation is nonetheless present. The case is a fit one for reduction of sentence. The appellant was convicted on the 10th July 1962. He has by now undergone more than 3 years' and 9 months' R. I. In my opinion the sentence already undergone by him will meet the ends of justice. With this modification in the sentence the appeal is dismissed. K. M. A. Appeal dismissed.