1994 P Cr (PLP)

4. On 11-2-1988 at 1-15 p.m. Ch. Shafique Ahmad, M.O. (P.W.4) conducted the post-mortem on the dead body of Mst. Bashir Bibi and he found following injuries on her person:-- (1)??????? An incised wound 12 c.m. x 6 c.m. bone deep on left side of neck and reaching to front of neck. Irregular in shape with cutting the soft tissues. (2)??????? An incised wound 3 c.m. x 1 c.m x 2.5 c.m. on left ear. The lobe of the left ear was cut but hanging with the remaining ear. (3)??????? An incised wound about 10 c.m. x 7 c.m. into bone deep on right side below the right inedible and extending to the right side of the neck. The wound was oblique in appearance, irregular in shape and had cut the soft tissues. (4)??????? An incised wound about 5 c.m. x 0.5 c.m. x 4 c.m. deep just front of right ear. The lobe of the right ear was cut but hanging with the remaining ear. In the opinion of the doctor injuries Nos.l and 3 were sufficient to cause death in the ordinary course of nature due to haemorrhage and shock while injuries 2 and 4 may be contributory to the above injuries. The probable time that elapsed between injuries and death was few minutes and between death and post-mortem was 20 to 36 hours.

5. When examined under section 342, Cr.P.C. the appellant denied the prosecution allegations and in answer to question "Why this case against you?" stated in the following words:-- "The case is false and so has been brought facts against me. The real facts are that on the day of occurrence I returned to my house after doing the labour and saw my wife Mgt. Bashir Bibi in compromising position with said Dr. Fayyaz and I lost my senses, picked up the Toka lying in my house and gave injuries to my wife and in the sequence Dr. Fayyaz managed his escape and I committed no offence. Nobody witnessed the same and the police concocted this false version:"

6. Placing reliance on the ocular testimony furnished by Noor Muhammad (P.W.5) and Muhammad Ramzan (P.W.6) fortified by the recovery of blood-stained Toka at the instance of the appellant, the learned trial Judge convicted the appellant and gave him the sentence as mentioned above.

7. The learned counsel for the defence who has appeared on State expense contended that the plea of the appellant that he killed his wife in grave and sudden provocation was not properly appreciated by the learned trial Judge. He contended that the appellant has not denied the killing of his wife Mgt. Bashir Bibi but he had taken up a plea of grave and sudden provocation which is borne out from the circumstantial evidence, hence the appellant is entitled to the benefit of the plea and his conviction can only be maintained under section 304, P.P.C. and not under section 302, P.P.C.

8. The learned counsel for the State has supported the judgment of the learned trial Court.

9. I have heard the learned counsel for the parties and have gone through the record minutely with their able assistance.

10. Admittedly, it is a case of two versions; one version is advanced by the prosecution and the other version has been given by the appellant as defence plea. The salutary principle for the just decision of the case of two versions is that both the versions are put in juxtaposition and then the Court has to see A which version is more probable and nearer to the truth in view of the direct or circumstantial evidence available on the record subject to this qualification that onus of proof always remains on the prosecution.

11. Applying the aforesaid principle of law to the facts of this case I find, in the present case, the ocular version is being supported by Noor Muhammad father-in-law of the appellant and Muhammad Ramzan P.W.6 who were present there at the time of occurrence, and they gave straightforward and confidence inspiring evidence, in this case, which stands corroborated by the 8 arrest of the appellant at the spot. The prosecution version given by them is further being fortified by the recovery of Chaddar P.6 and Toka P.7 at the instance of the appellant. Even the appellant has not denied the occurrence but he had taken the plea of grave and sudden provocation. There is nothing on the record to suggest that these two eye-witnesses had any animosity with the appellant to falsely implicate him in this case or to substantiate the defence plea.

12. I have carefully examined the defence plea with the assistance of the learned counsel for the defence and I am afraid, there is no material available on the record to justify his plea of grave and sudden provocation. The appellant had not taken up this plea in the first instance before the police. Even there is no direct or circumstantial evidence available on the record to justify his plea. The defence plea seems to be an afterthought and not supported by any) evidence hence rejected.

13. The upshot of the above discussion is that the prosecution has proved p its case against the appellant beyond reasonable doubt. This appeal being devoid of force is dismissed in toto. N.H.Q./1696/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.