1996 P Cr (PLP)

Appellant Saeed Ahmad was convicted under section 304, Part I by an Additional Sessions Judge, Vehari vide his judgment and order, dated 7-12-1986 and sentenced him to undergo R.I. for 10 years and to pay a fine of Rs.5,000 and in default of payment of fine to further undergo R.I. for a period of 2 years. The amount if recovered was ordered to be given as compensation to the legal heirs of the deceased. Being aggrieved of the impugned judgment and order, the appellant preferred this Appeal No.248 of 1986.

2. Muhammad Ramzan complainant P.W.5 father of Mst. Naseem Mai lodged report Exh.P.C. on 23-8-1985 stating therein that Saeed Ahmad appellant abducted his daughter Mst. Naseem Mai and due to intervention of the respectable a compromise was effected and she was married with the appellant. He further stated that about 3 months prior to the occurrence Mst. Naseem Mai left the house of the appellant on account of certain disputes but on the intervention of the relatives, she was again sent back to the house of appellant on 16-8-1985. It was allegedly agreed by the appellant that he will give in exchange of marriage of Mst. Naseem Mai the hands of his sister to the son of the complainant in Watta.

3. On 22-8-1985 complainant P.W.5 alongwith his wife Mst. Fatima P.W.6 and his son Muhammad Amin given up P.W. went to the house of the appellant for the demand of Watta marriage as promised by the appellant earlier. It was further stated that on the fateful night the appellant and his wife slept in the courtyard and the complainant, his wife and son Muhammad Amin also slept nearby. During the night all of a sudden, they heard shrieks of Mst. Naseem Mai. They got up and saw that Mst. Naseem Mai was lying dead and appellant was standing there armed with blood-stained hatchet.

4. After usual investigation appellant was sent to face trial. Learned Additional Sessions Judge framed the charge under section 302, P.P.C. and recorded as many as 10 P.Ws. in support of the prosecution case. He heard the learned counsel for the parties and vide his judgment and order, dated 7-12-1986 came to the conclusion that the eye-witnesses were not present at the spot and they had not seen the occurrence. He also came to the conclusion that recovery of weapon of offence at the instance of the appellant as alleged by the prosecution witnesses was doubtful and discarded the same. In view of the trial Judge the motive could not be proved by prosecution. The trial Judge has given cogent reasons for the conclusion drawn by him. I see no reason to differ with him especially when the complainant and the State has not challenged .the impugned judgment.

5. The appellant in his statement under section 342, Cr.P.C., owned the commission of offence but with a clear cut plea of grave and sudden provocation. He stated as under:-- Mst. Naseem Mai was carrying on with one Muhammad Tufail son of Jahangir Muslim Sheikh of the village. I had many times seen her in the company of the abovementioned Muhammad Tufail. On the day of occurrence Muhammad Tufail came to my house and I found my wife lying in compromising position with Muhammad Tufail. I lost control of myself and under grave and sudden provocation killed my wife on the spot. The aforementioned Tufail succeeded in running away. I had told this version before the police also. "

6. Learned trial Judge considered the statement of the appellant and he was of the view that the statement of the appellant was-to be believed or rejected in toto. After considering the same he relied upon the statement in toto and found the appellant guilty under section 304, Part I, P.P.C.

7. Learned appellant's counsel argued that keeping in view the special circumstances of the case the learned trial Judge was not justified in sentencing the, appellant to undergo R.I. for 10 years. According to him the sentence imposed was too harsh. There existed no animosity between the appellant and the deceased. He married the deceased as a result of love affair. They lived together happily before the occurrence and this unfortunate incident took place on account of immorality of the deceased. Learned counsel has not seriously challenged the conviction itself and has prayed for reduction of the sentence.

8. Learned State Counsel has frankly conceded that the occurrence took place as a result of grave and sudden provocation. It would be in the interest of justice if the sentence is reduced.

9. There is much force in the contention of the learned appellant's counsel. The prosecution failed to prove its case against the appellant beyond reasonable doubt. We are left with the statement of the accused recorded under section 342, Cr.P.C. His statement has been considered carefully, which rings true. The relations of the deceased and the appellant were quite cordial and they lived together under the same roof till the occurrence. I proceed to accept the statement of the appellant in toto. The commission of Zina is always seen with hate and its commission is violation of the basic norms of Islam. The present offence was committed by the appellant in grave and sudden provocation, on account of immorality of the deceased. In such a situation the justice should be I done with mercy (Adal bil Ehsan). Applying this golden principle of Islam to the facts of the case, I am of the considered view that sentence imposed upon the appellant is too severe. Both the learned counsel after going through the record inform that the appellant was arrested on 23-8-1985 and remained in continuous judicial custody till 7-12-1986 when the final judgment was announced by the trial court and thereafter also had served his sentence as a convict till 30-5-1989, when the execution of sentence was suspended by this Court. The trial Court has given the benefit of section 382-B, Cr.P.C. to the appellant and in this way he has served sentence of 3 years, 9 months and 7 days. The ends of A justice will meet if the appellant is sentenced to the period already undergone. I order accordingly. The sentence of fine of Rs.5,000 is reduced to Rs.1,000 only and in default of payment of fine the appellant shall undergo 3 months' S.I. For what has been stated above, the conviction of the appellant under section 304, Part I, is upheld. The sentence is reduced and the appeal is disposed of in above terms. N.H.Q./S-2/L Sentence reduced.