1984 P Cr (PLP)

(1) A transverse cut at the level of thyroid cartilage in the centre of neck extending both sides of it. More deep on the sides and skin deep only. (2) An incised wound on the left side of face above upper lip, size 2" x " skin to mucosa of mouth excavating right and left upper incisor central and two more teeth on left side. (3) An incised wound " above and parallel to wound No. 2, 1 " x ", cutting left lower nose near tip and extending on left side of face on exploration there was an oblique fracture of maxilla at the same level. (4) An incised wound extending from left of bridge of nose on to left check 2 " x ", above and approximately parallel to injury No. 3 skin deep. On exploration there was fracture of maxilla at the same level. (5) An incised wound right of frontal region 1 " x ". On explo ration there was oblique fracture of the frontal bone and a penetrating wound in the meninges at the same level. Multiple clots of blood were found spread over and in between cerebral hemisphere. (6) An incised wound left occipital region 2" x " bone deep approximately 3" posterior-superior to left ear top. On explora tion there was a butterfly fracture, the fragment penetrating into meninges and brain tissues leading to extensive laceration of the brain and meninges. In the sub-dural compartment and lateral ventricle clots of blood and humaelized blood was present. In the opinion of the doctor, the death occurred due to injuries Nos. 5 and 6 collectively due to extensive laceration of brain substance and intra- cranial haemorrhage supplemented by other injuries and the shock pro duced by them which were sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death was within an hour and between death and post-mortem about 48 hours. The doctor also found that the deceased had pregnancy of approximately six weeks.

7. The learned trial Court believing the prosecution story as narra ted by the witnesses rejected the defence version and held the appellant guilty under section 302, P. P. C. and sentenced him accordingly as indica ted above. The findings of the trial Court have been challenged in the instant appeal by the appellant.

8. Since the occurrence is admitted and the appellant accepted the responsibility of killing Mst. Aesha, the only question for determination is whether he killed Mst. Aesha under grave and sudden provocation or merely on the basis of suspicion as stated by the prosecution witnesses. In these circumstances, therefore, the evidence of eye-witnesses is the main stay of the prosecution. They admitted to have gone to the house of the appellant for the first time on the night of occurrence without any special purpose except to see him. They also admitted that the room in which the occurrence took place had two doors and one of them was without shutters. Both Muhammad Ramzan and Ghulam Ali claim to have chased the appellant upto a distance of 8/9 miles and although there were Abadis in the way yet they did not raise and alarm or make any shout during the chase. Ghulam Ali lived 9 miles away while Ramzan and Mst. Bibi lived 24 miles away from the place of occurrence. They also stated that the appellant gave only one blow to the deceased in their presence.

9. Learned counsel appearing on behalf of the appellant submitted that it was an unwitnessed occurrence and the presence of eye-witnesses is doubtful because they apart from being close relations of the deceased lived many miles away from the place of occurrence and they have failed to give any reasonable explanation for their visit to the house of the appellant at the relevant time. He further argued that the occurrence took place at mid-night yet the report was made at 10 a. m. that is some 9 hours after the occurrence when the police station is only 3 miles from there which suggests that nobody was present at the time of occurrence, and the police after summoning the relations of the deceased from their villages concocted the present story. Lastly, he argued that if the appel lant wanted to do away with his wife on the basis of suspicion alone then he would have killed her before her parents visit to or after their departure from his house. From these circumstances he inferred that there must have happened some thing unusual which unhinged the mental balance of the appellant to an extent that he did not stop short of killing his own wife and the plea of grave and sudden provocation raised by the appellant being probable and reasonable shall be believed. As against this, learned state counsel assisted by counsel for the complainant have supported the impugned order of conviction saying that presence of parents in the house of their daughter is not an unusual phenomena, therefore, their presence at the spot has been accepted and the story narrated by them was rightly believed by the learned trial Court. They further argued that the appel lant's abscondence after the occurrence and his arrest from Wahga Border provides circumstance sufficient to infer that he had killed his wife in cold blood and the plea of grave and sudden provocation is after thought. Lastly the argued that the sentence of life imprisonment awarded by the trial Court should at least be maintained as the appellant had already been dealt with leniently on being convicted on murder charge.

10. I have considered the arguments of the learned counsel for the parties carefully in the light of material on record.

11. There is on-dispute about the death of the deceased Mst. Aesha having been caused by violence. The time and place of occurrence is also admitted. The appellant has also admitted to have killed Mst. Aesha, but disputed the prosecution case as to the circumstances in which the occurrence took place i.e. according to the appellant, he killed his wife (Mst. Aesha) on seeing her lagrante delicto with a stranger and having lost power of self-control, whereas the prosecution story is that the appellant entertained a suspicion about Mst. Aesha's character, therefore murdered her at the dead of night.

12. It is admitted that Muhammad Ramzan and Mst. Bibi are the parents of Mst. Aesba while Ghulam Ali is her sister's husband. Muhammad Ramzan and Mst. Bibi lived about 20/25 miles away while Ghulam Ali lived in another Chak which is at a distance of 8/9 miles from the place of occurrence. The witnesses frankly conceded that they had no special invitation to pay a visit to Mst. Aesha's house but they just went there on the evening preceding night of occurrence per chance to see her. They took meals together and retired into separate rooms in an amicable and peaceful atmosphere. They also admitted that this was their maiden visit to the house of Mst. Aesha since her marriage with the appellant. They unanimously stated that in their presence the appellant had dealt only one blow on the head of the deceased and then fled away through another door of the room leaving the hatchet at the spot. Muhammad Ramzan and Ghulam Ali stated that they did not raise any alarm during the chase although they followed the appellant upto a distance of 8/9 miles. It appears also that the appellant and his wife only lived in the house where the occurrence took place. In these circumstances I find sufficient force in the arguments of the learned counsel that if the appellant was bent liquidating his wife only on the basis of an unfounded suspicion about her character then he could easily have accomplished his design before the visit of his in-laws to his house. Again he could do so with much ease after the departure of her parents (eye-witnesses) who visited the appellant's house only for a couple of days as admitted by them. This shows that some event of extraordinary and unusual nature must have happened which threw the appellant in such a state of mind that he did not stop short of killing her. I am unable to reconcile myself with the claim of the witnesses that they coincidently visited the house of Mst. Aesha on the fateful night particularly when there was no occasion for their visit to the appellant's house. Again their conduct in chasing the appellant and not raising alarm to summon help of the general public to capture the murderer of their close relation is just amazing. I am, therefore, of the view that they have introduced story of long chase of the appellant upto 8/9 miles with a purpose to explain delay occurred in making report to the police. Strangely Mst. Bibi did not state that her husband Muhammad Ramzan and son-in-law Ghulam Ali had gone in pursuit of the appellant to capture him and returned to the spot at 8/9 a. m. It looks queer that the appellant would throw the hatchet at the spot when Muhammad Ramzan and Ghulam Ali were advancing towards him to arrest him. Besides this the numerous injuries found on the person of the deceased also show that there was nobody around him when he was dealing blows to the deceased, therefore, I am of the confirmed view that Muhammad Ramzan, Mst. Bibi and Ghulam Ali P. Ws. were not present at the time of occurrence and, therefore, I exclude their evidence from consideration.

13. Even if it is admitted that the witnesses were present at the place of occurrence then on their own showing they saw the appellant giving only one blow, to the deceased before he ran away. This would mean that they were completely ignorant as to what had preceded immediately before the appellant had attacked the deceased with the hatchet and for that we -have the explanation of to appellant only.

14. In the circumstances the statement of the appellant alone being in the field, the same must, be accepted, which discloses that the appellant when entered his house was already carrying a hatchet and having found his wife in compromising position with a stranger he flew with grave and sudden provocation and caused her death and, therefore, his act is covered by exception of section 300, P. P. C. which is punishable under section 304, Part I P. P. C. Consequently I alter the conviction of the appellant from 302 to 304, Part I P. P. C. and sentence him to 7 years. A rigorous imprisonment plus fine of Rs. 2,000 or in default to undergo farther 3 months, R. I. He shall also pay Rs. 2,000 as compensation under section 544-A, Cr. P. C. in default whereof he shall undergo further 3 months, R. I. He shall get benefit of section 382-B, Cr. P. C. that is, the period for which the remained undertrial will be counted towards his substantive sentence of imprisonment. In view of the fact that the appeal has succeeded the revision for enhancement of sentence fails for similar reasons, and is dismissed. S. G. D. Order accordingly.