P L D 1961 (W (PLP)

(2) An incised wound 3 " x " x 2", below injury No. 1, i.e., below lower jaw right side front and upper part of neck cutting down‑the wind pipe and gullet and neck vessels also. (3) Three incised wounds, below injury No. 2 parallel to each other, each 1" x " x " about half an inch apart from each other on and above the right clavical.

10. Besides, the trachea, the right facial artery, neck vessels, pharynx and oesophagus were found cut under injury No.

2. In the opinion of Dr. Malik her death was due to shock and haemorrhage caused by injury No. 2 which was sufficient in the ordinary course of nature to cause death.

11. The appellant denied that his wife (deceased Mst. Amiran) had ever demanded that the property given by his father to Ghulam Haider should be partitioned or that she had any quarrel with him over this matter. According to him, no meeting of the baradari had taken place in his house in connection with the consideration of any such demand in the evening previous to the morning of the occurrence. According to him, she had died of the injuries she had received by falling on some bricks and agricultural implement: lying nearby when she had slipped from the stairs while going to the roof of his kotha in order. to plaster it. No evidence has, however, been produced by him in support of this version.

12. In this case, the prosecution relies mainly on the evidence of Gul Sher, (P: W. 2), Mst. Allah Wasai (P. W. 3), Ghulam Hussain (P. W. 4) and Ghulam Abbas Shah (P. W. 6). Gut Sher is father‑in‑law of the appellant. Mst. Allah Wasai is his (Gut Sher's) wife. Ghulam Abbas Shah is a neighbour and a prominent member of the baradari of the appellant. Ghulam Husain belongs to the village of the appellant and happened to pass by his house at the time of the occurrence. Gut Sher, Mst. Allah Wasai and Ghulam Abbas Shah have spoken about the quarrels between the appellant and Mst. Amiran over her demand for the partition of the property that had been given by her father‑in‑law Ghulam Rasul to Ghulam Haider. The appellant has denied that any such quarrel had been going on between him and his wife Mst. Amiran although he has admitted that his father had directed that two of the family kothas should be given to Ghulam Haider for his residence and one of his daughters in due course should be married to him. We do not, however, see any reason to discard the word of Gul Sher, Mst. Allah Wasai and Ghulam Abbas Shah regarding the disputes that had been going on between the appellant and his wife in connection with her persistent demand for the partition of the property that had been given by her father‑in‑law Ghulam Rasul to Ghulam Haider.

13. The only eye‑witness' in this case is Allah Wasai, mother of Mst. Amiran. According to her version, she had been staying with her for some time before the occurrence on account of her ill health. In course of the post‑mortem examination of her dead body it was found that Mst Amiran had been suffering from tuberculosis for some time before her death. This being the position, it is quite probable that Mst. Allah Wasai had been staying in her house in order to look after her and manage her household affairs. As a matter of fact, the appellant himself does not dispute her presence in his house at the time of the occurrence. The relations of Mst. Allah Wasai with the appellant, who was her son‑in‑law appeared to be quite normal upto the day of the occurrence. She had no apparent reason to implicate him falsely in this case. She has clearly and consistently supported the prosecution case against the appellant.

14. It may be noted here, that Ghulam Husain (P. W. 4) has stated to the effect that the appellant on being questioned by him (Ghulam Abbas Shah) had admitted that he had killed his wife in course of a quarrel. We cannot rely on his word on this point, because Ghulam Abbas Shah himself has not supported him on this point. As a matter of fact, he has said that he (the appellant) had kept quiet when he questioned the appellant as regards the circumstances in which his wife had met her death. Ghulam Husain had also stated to the effect that on hearing the alarm he had appeared on the scene of offence found the appellant attacking Mst. Amiran with his hatchet which he had snatched away. We are not prepared even to believe this part of his version against the appellant as it is not supported by Mst. Allah Wasai at all.

15. The learned trial Judge while considering what offence had actually been committed by the appellant in this case, has remarked as follows:‑ "It is in the evidence of the prosecution that the wife of the accused was not maintaining good health and even from the medical evidence it would appear that she was suffering from tuberculosis. It is also in the evidence of the prosecution that she had got her own children and she might be interested in the welfare of her children to see that the property of her husband was properly preserved. The demand which was being put forward by the wife was not a sudden demand and she was repeating this demand again and again but whenever she put up this demand the accused kept quiet and did not pacify her in a reasonable manner. If under the circumstances of the case, the wife threatened to leave her house, it did not amount to such a sudden and grave provocation which could justify the inflicting of three injuries with a deadly weapon like kulhari on the most vital part of the body like neck. I, therefore, find myself unable to come to a conclusion that the accused committed the murder of his wife under grave and sudden provocation. consequently, I find the accused guilty for having committed the murder of his wife and convict him accordingly under section 302 of the Pakistan Penal Code." We do not, however, agree with the view taken by the learned trial Judge on this point for the reasons explained hereafter.

16. As has already been pointed out, the appellant's father Ghulam Rasul had given a piece of land, two of his ornaments and two of his kothas to his grandson Ghulam Harder: Mst. Amiran intensely disliked whatever Ghulam Rasul had done in favour of Ghulam Haider. She could not, however, do anything in the matter so long as Ghulam Rasul was alive. Soon after Ghulam Rasul's death she started asking her husband, the appellant, to take his share out of the said piece of land and ornaments ignoring his (Ghulam Rasul's) direction or decision in the matter. The appellant, it seems, at first refused to listen to her suggestion but later on she succeeded in persuading him to refer the matter to a meeting of the baradari. Although he had done so, when questioned in the meeting he had replied that he had no dispute with his brother Ghulam Husain thereby implying that he was not supporting any demand of his wife regarding the partition of the property in question. In spite of this reply of her husband Mst. Amiran herself reiterated her demand regarding the partition of the said property and felt offended when he failed to support it. It was to due this situation that no decision in the matter was taken in the baradari meeting. Immediately after the meeting was over Mst. Amiran started quarrelling with the appellant. She persisted in her quarrels with him throughout the night. In the following morning she renewed her quarrel with him and‑again pressed her demand for the partition of the property in question. On his refual to listen to her, she ran out thrice, saying that she would not like to stay on with him if he would not get tile property in question partitioned on the third occasion she rushed out of the house even without taking her burqa. The appellant, however, managed to bring her back and took her to their kotha. Immediately after she had been brought for the third time, she started abusing him. Thereupon; the appellant who was already exasperated on account of her pestering demand for the division of the property in question and unreason able attitude in the matter throughout had become so incensed that he had picked up a hatchet which was lying nearby, attacked her and thereby caused her the fatal injuries. In view of this situation, it is urged on behalf of the appellant that his case is covered by Exception 1 to section 300, P. P. C.

17. It is no doubt true as observed by Sir Shadi Lal, C. J. in Sohrab v. The Crown (I L R (1924) 5 Lah. 67), that before Exception 1 to section 300 of the Indian Penal Code can be applied, the provocation must be such as will upset, not merely a hasty and hot‑tempered person, but one of ordinary sense and calmness. In the case in which these remarks were made by the learned Judge one Sohrab, a Bloch of the Dera Ghazi Chan District, had killed three persons, namely, his two wives, Mst. Ghulam Fatima and Mst. Wasai and his Daughter Bahar Khatun, because on the day of the occurrence on his return to his house from his field he had found his wife Mst. Wasai reprimanding Mst. Ghulam Fatima that her daughter was loose woman and had contracted criminal intimacy with Ramza Mochi and, on hearing this conversation between them, had attacked Mst. Ghulam Fatima with the hatchet he had in the hand at the time and killed her on the spot. Immediately after doing so, he had in quick succession attacked and killed Mst. Wasai and Mst. Bahar Khatun with the same weapon. He had admitted throughout that he had killed the three women in the circumstances referred to above, and was convicted of murder and sentenced to death under section 302,

1. P. C. In coarse of arguing his appeal the counsel for Sohrab had urged that his case was covered by Exception 1 to section 300, I. P. C. and, therefore he had not committed murder but culpable homicide not amounting to murder. This contention was, however, overrulled, and it was observed. "We entirely accept the principle enunciated in Rage v. Walsh, which has been cited with approval in The King v. Leshini, that there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man so as to lead the jury to ascribe the act to the influence of that passion. There could be no doubt that a provocation must be such as will upset, not merely a hasty and hot‑tempered person but one of ordinary sense and calmness. Judged by this standard the facts relied upon by the accursed do not constitute any grave and sudden provocation such as is contemplated by law". It was in this view of the matter that the appeal of Sohrab was dismissed and the sentence of death passed upon him was confirmed.

18. The facts of this case, no doubt, are very much different from those of the present case under our consideration, but the standard indicated therein for judging the facts of a case in which the question of the application of Exception 1 to section 300 Pakistan Penal Code arises can just as well be kept in view, while deciding whether the case of the present appellant is covered by the said Exception. It does, however, appear to us that it would be necessary, while applying this standard to the circumstances of a case such as is under consideration before us, to keep in view the social habits and customs of the parties concerned and the state of society in which they had been living.

19. It is no doubt true that mere domestic quarrel even if he is abused, would not give the culprit the protection afforded by Exception 1 to Section 300, Pakistan Penal Code, in a case of murder. This view was taken in Shera v. Emperor (A I R 1927 Lah.729). In this case one Shera had killed his wife, Mst Barkate by stabbing her with knife. She made a dying declaration to the effect that he had stabbed her in course of a quarrel in connection with the return of her step‑daughter to her husband. On the other hand Shera alleged that on waking up at late at night he had found a man whom he recognized as Khushia near his wife's bed and that is why he became so enraged that when Khushia had run away he had killed his wife. This defence was negatived and he (Shera) was convicted of an offence punishable under section 302 of the Pakistan Penal Code and sentenced to death While disposing of his appeal, the learned Judges observed as follows: "We find it proved beyond all shadow of doubt that this man Shera murdered his wife by stabbing her in the abdomen and that he had failed to prove that there was any provocation of any sort. We find that though he was doubtless annoyed with his wife because she opposed in the matter of the sending of the daughter to her husband, there was no shadow of justifi cation for his conduct." Taking this view of the matter they dismissed his appeal.

20. The view taken in this case, however, would not, it appears, be applicable to the facts of the present case. The circumstances which had led to the death of Mst. Amiran in the present case had, no doubt, their origin in her quarrel with her husband in connection with the property that had been given by her father‑in‑law to his grandson, Ghulam Haider, but this quarrel was not an ordinary domestic quarrel which had arisen between the two just at the time of the occurrence. As already explained, Mst. Amiran had, persistently been following her demand for the partition of the said property and continuously been pestering her husband, the appellant, in that connection. She had, during the last stage of that quarrel, continued to fight with him throughout the night. In the following morning she had renewed her quarrels with him and in course of the same run out of the house thrice. She rushed out on the last occasion even without taking her burqa in spite of the fact that according to the custom of the family she had been observing purdah. Even after she had been brought back on the last occasion she had continued to quarrel and started abusing him. It was in such a situation that he had picked up a hatchet lying near‑by and given her some blows. This was, therefore, not an ordinary domestic quarrel which would not have entitled him to seek the protection of Exception 1 to section 300 of the Pakistan Penal Code.

21. It appears to us that in this case the conduct of Mst. Amiran was such as had temporarily deprived the appellant of all power of self‑control, and that was why he had given. her some hatchet blows. This view appears to be supported even by the fact that he had been tolerating her unreasonable attitude and her persistent demand for the division of the property in question. As a matter of fact, it is not alleged, much less shown, that he had any ill‑will or grudge against her on any account whatsoever before this quarrel had started between the two. Such being the situation, it is obvious that the appellant would not have attacked Mst. Amiran if he, had not completely lost his power of self‑control on account of her conduct in the matter.

22. Therefore, considering this background and the circums tances in which Mst. Amiran had been done to death, we find that it was due to grave and sudden provocation that the appellant had ultimately attacked and killed her. That being so, we have come to the finding that he had committed an offence of culpable homicide not amounting to murder, punishable under section 304, Part I. Pakistan Penal Code.

23. Accordingly, we alter his conviction for the offence of murder punishable under section 302, Pakistan Penal Code, to one for culpable homicide not amounting to murder punishable under section 304, Part I, Pakistan Penal Code, and reduce his sentence to rigorous imprisonment for seven years. K. B. A. Sentence reduced.