P L D 1967 Lahore 579 (PLP)

SHAUKAT ALi, J.‑Fateh Muhammad alias Fattu, aged 31 years, was tried under section 302 of the Pakistan Penal Code for the murder of his divorced wife Mst. Inayatan on 7th June 1964 in a field at village Raja Jhang. The learned Additional Sessions Judge, Lahore Camp at Kasur, who tried him, found him guilty under section 302 of the Pakistan Penal Code and ordered him to suffer death. The condemned person has appealed and the case is also before us under section 374, Criminal Procedure Code for confirmation of sentence of death. We propose to dispose of the appeal and the reference for confirmation of death sentence by a single judgment.

2. The prosecution story, briefly narrated, is that the accused suspected that Mst. Inayatan was carrying on love intrigue with Muhammad Din alias Menna, who was residing with him. Seven or eight days prior to the alleged occurrence, the accused had injured Mst. Inayatan, because he found her in the company of Muhammad Din in the graveyard. On account of intrigue of Mst. Inayatan the relation between the spouses became strained, resulting in the divorce between the two. Besides the divorce the grievances rankled in the mind of the accused over the infidelity of Mst. Inayatan which culminated in the present occurrence.

3. On 7th June 1964 at midday the accused pursued Mst. Inayatan with a hatchet and inflicted injuries on her. The groans of Mst. Inayatan attracted Muhammad Ali and Munawar Ali P. Ws. to the spot who saw the occurrence. On their arrival the accused decamped. Muhammad Ali, leaving Munawar Ali at the spot, proceeded to Police Post Raja Jhang, which is at a distance of four or five furlongs from the place of occurrence and lodged the report Exh. P. J. at 12.30 p.m. the same day which was recorded by Muhammad Aslam, Head Constable. He sent the report to Police Station Lalliani which is at a distance of eleven miles from the place of occurrence and a formal first information report Exh. P. J /1 was recorded by Mahmood Ali Shah, Sub Inspector of Police. The Head Constable who recorded the report proceeded to the spot and prepared statement of injuries and inquest report relating to the deceased and then despatched the dead body to the mortuary for post‑mortem examination. He took into possession bloodstained earth, broken bangles P. 7/1‑6 and chappal P. 8/1‑2 and made them into sealed parcels vide memos. Exhs. P. K., P. L. and P. M., respectively. He also took into possession Divorce Deed Exh. P. C. and Relinquishment Deed Exh. P. D., from Jamal P. W. and made them into a sealed parcel vide memo. Exh. P. E., on 7th June 1964, Mubarik Ali P. W., produced the accused before Mahmood Ali Shah, Sub‑Inspector, who put him under arrest. He also produced hatchet P. 4 which was taken into possession and made into a sealed parcel vide memo. Exh. P. F. The Sub‑Inspector also got removed shirt P. 5 and Tehband P. 6 from the person of the accused which were blood stained and made them into a sealed parcel vide memo. Exh. P. G.

4. The autopsy on the dead body of Mst. Inayatan was conducted by Doctor Imtiaz Hussain Bukhari (P. W. 2) Medical Officer, Civil Hospital, Kasur on 8th June 1964 at 12.00 noon, and the following injuries were found thereon: (1) Incised wound, 5 " x 1" on the right side of face, starting from middle of the face, extending up to back of the neck, cutting muscles, vessels nerves, vertebrae and spinal cord underneath. (2) Incised wound, 6 " x 1", vertebrae column deep starting from below left mandible middle to back of the neck, adjoining injury No. 1, and cutting all muscles, vessels, nerves and vertebrae and spinal cord underneath along with oesphagus and larynx (3) Incised wound, 3 " x 1 ", vertebral column deep, starting from middle of the neck, right side to back of the neck, cutting all the above structures mentioned. (4) Incised wound, 1"x " x 1/4", just inner side of right shoulder. (5) Incised wound, 3/4" x 1/4", skin deep oblique, on the external side of right forearm lower 1/3rd. (6) Incised wound, 3 " x 1/4" x bone deep, on the right parietal bone, underneath bone cut. Death, in the opinion of the doctor, was on account of shock and excessive haemorrhage due to cutting of neck vessels, trachea, larynx, oesphagus and spinal cord as a result of injuries Nos. 1 to 3, each one of which was sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp edged weapon.

5. Direct evidence regarding the commission of crime is furnished by Ch. Muhammad Ali (P. W. 10) and Munawar Ali (P. W. 11) in their statements. Muhammad Din (P. W. 9) deposed to the motive. Mubarik (P. W. 12), Mahmood Ali Shah Sub -Inspector (P. W. 13) and Muhammad Aslam, Head Constable (P. W. 14) testified to the recoveries. Mubarik (P. W. 12), is also a witness of extra juidicial confession.

6. The appellant stoutly denied the allegations and claimed that Divorce Deed Exh. P. C. and Relinquishment Deed Exh. P. D. are false documents and that his thumb‑impression on Exh. P. C. was obtained forcibly.

7. The prosecution in support of its case relied on the oral testimony of the two eye‑witnesses of the occurrence and the re coveries of the bloodstained hatchet P. 4 and bloodstained clothes from the person of the accused. The trial Court considered this evidence sufficiently reliable for convicting the accused. A perusal of the statements snow that there is nothing in the cross‑examination which may suggest that Muhammad Ali and Munawar Ali P.Ws. had any particular reason to be inimical towards the accused or to implicate him falsely. Both the witnesses denied the sugges tion that was made to them that they were deposing falsely without being eye‑witnesses. No suggestion was made to these witnesses of being inimical to the accused. There is nothing to discredi` these witnesses. They described the assault upon the deceased in some detail. They could not have done this if they were not present at the scene of occurrence and saw the same themselves particularly when the injuries mentioned by them tally with the medical evidence. They were natural witnesses whose presence in the vicinity at that time was clearly probable. If corroboration was required of their evidence, it was also furnished by the recovery of bloodstained clothes and hatchet which according to the report Exh. P. Q., of the Serologist were found stained with human blood. There is nothing to make out the prosecution evidence doubtful which has been detailed above and we have no hesitation in accepting that it was the appellant who inflicted hatchet blows on the deceased.

8. After carefully examining the evidence we have come to the conclusion that the eye‑witnesses are truthful and gave consistent evidence as to the incident. The testimony of the eye‑witnesses is of straightforward character which has in no manner been shaken in cross‑examination. Therefore, we hold that it has been proved beyond reasonable doubt that the incident which resulted in the death of the deceased Mst. Inayatan, occurred in the manner and at the time and place mentioned by the pro secution witnesses.

9. The next question that falls for determination is whether or not the appellant had divorced Mst. Inayatan on 13th May 1964, as the determination of this issue shall determine the nature of the offence committed. In support of the claim of divorce by the appellant, the prosecution has produced Jamal Din P. W., the scribe of the divorce deed and the relinquishment deed, Exh. P. C. and P. D. respectively. This witness had deposed that both these deeds were retained by him as the party did not pay his fees. This witness did not produce the register to show that entries as to the execution of these documents were made in the petition writer's register. In order to prove satisfactorily that the documents were duly executed between the spouses on that day the petition writer should have produced his register. The assertion of this witness as to the execution of these documents appears to be hollow in view of the testimony of Muhammad Din and Mubarik Ali P. Ws, which we may refer with advantage. Muhammad Din (P. W. 9) has stated as follows:‑ " Fateh Muhammad suspected me of illicit connections with Inayatan. He used to quarrel with the wife over this connection. Despite my assurance the accused suspected me." Mubarik (P.W.12) bad made the following statement:‑ " .He (accused) informed me about his having murdered his wife and requested me to hand him over to police to save botheration to himself and others . . . . ." From the above deposition of these two witnesses, the prosecution version that the appellant had divorced Mst. Inayatan appears to be highly doubtful as it contains inherent indication of being false. If there had been a divorce, the appellant after the pronouncement of talaq would have given notice in writing to the Chairman of the area as required under section 7 (1) of Muslim Family Laws Ordinance (VII of 1961). It may be incidentally mentioned that Fazal Ilahi, another marginal witness of the divorce deed, did not appear to support the factum of divorce. In law the pronouncement of talaq becomes effective until the expiration of ninety days from the date on which a notice under section 7 (1) is delivered to the Chairman of the Arbitration Council as required under section 7 (3) of the said Ordinance.

10. The upshot of the whole discussion is that we hold that the appellant did not pronounce any valid talaq to Mst. Inayatan on 30th May 1964, as the authenticity of the divorce deed has not been proved beyond any reasonable doubt, therefore, we have no hesitation to hold that on the day of the occurrence Mst. Inayatan was still the legal and lawful wife of the appellant.

11. According to the prosecution version Mst. Inayatan was suspected by the appellant that she had liaison with Muhammad Din P. W. It is to evidence that on the day of occur rence she had gone out to meet Muhammad Din and was carrying meal for him and there can be scarcely any doubt that this was contrary to the wishes of the appellant and that must have been for clandestine purpose. It is also in evidence that two days preceding the commission of the act charged, the accused saw the deceased and Muhammad Din P. W, together in the graveyard and gave her beating. The conduct of the woman shows that she was not prepared to abandon her criminal relations with Muhammad Din P. W., and she proposed continuing her course of misconduct in the husband's house. This conduct must have been and was causing extreme agony, shame and humiliation to the appellant, 4 This wicked conduct of the woman cannot be lost sight of and must be taken into consideration. This, we think, amounted to provocation grave enough and sudden enough to deprive the appellant of his self‑control, and in our opinion the provocation received by the appellant was in the circumstances almost as "grave and sudden" as it would have been had the appellant seen the deceased in the act of sexual intercourse with Muhammad Din.

12. Having regards to the circumstances of this particular case we would take a larger and more liberal view of Exception 1 to section 30) of the Pakistan Penal Code and treat the case as one falling under the same. Therefore, we alter the offence from' murder to culpable homicide not amounting to murder. 'We set aside the conviction of murder and convict the appellant of culpable homicide not amounting to murder.

13. The punishment must be determined by the first part 'of section 304, P. P. C., and we shall sentence the appellant under section 304, Part I of the Pakistan Penal Code and sentence him to suffer three years' rigorous imprisonment. The appeal is accepted to this extent and the sentence of death is not confirmed. K. M. A. Sentence reduced.