1989 PLP 4848 (MLD)

5. In brief, the prosecution case as disclosed in the F.I.R. lodged by Amanat Ali, PW 1, was that 10/11 years before the occurrence, the deceased Mst. Munawwar Bibi, who happened to be sister of the mother of the first informant was married with the appellant and in' exchange, sister of the appellant, Mst. Asmat Bibi was married with Muhammad Iqbal, the maternal‑uncle of the first informant. Out of the wedlock between Mst. Munawwar Bibi and the appellant, two male children namely Abid Hussain aged eight years and Azam, aged three years were born. The first informant further stated that Muhammad Ashraf appellant, was habitual offender, was involved in different cases, had been sent to jail for a number of times and was also thief by profession. A day before the occurrence, the first informant alongwith the sister of her mother namely Mst. Siraj Bibi had come to see Mst. Munawwar Bibi for presenting Eidi. The Eid moon was seen and 12th of July, 1983 was declared as Eid. Mst. Munawwar Bibi (deceased) told the first informant and Mst. Siraj Bibi, to celebrate Eid with her and thus the first informant and Mst. Siraj Bibi decided to stay in the house of the appellant: On the fateful day, after offering Eid prayer, the first informant came back to the house of the appellant, where, Mst. Munawwar Bibi (deceased) and Mst. Siraj Bibi were also present. At about 11 a.m. the appellant and the deceased quarrelled with each other and the deceased told the appellant that he had made her life miserable. The deceased further remarked that the appellant was riot doing any work and he should abandon his criminal activities, whereupon, it is stated that the appellant was infuriated and went to the kitchen, brought a Chhuri and inflicted one blow on the abdomen of Mst. Munawwar Bibi (deceased) while she was standing in the room. On the receipt of this injury, the deceased fell down and then the appellant inflicted two or three more kick blows and ran away from the house. In the meanwhile, it is stated that Muhammad Ali son of Murad and Muhammad Yaqoob, also reached the scene of occurrence. Akram, and Sikandar also arrived there and at their instance, the deceased was taken to Dr. Izzat Hussain in Warburton. Dr. Izzat Hussain told the first informant not to worry and he would treat the deceased and thus after cleaning the wound and after giving some medicines, the deceased was sent back to her house. On the same, night (11th July, 1983) at about 2/3 p.m. Mst. Munawwar Bibi succumbed to her injuries.

6. On 14th of July, 1983, PW 3 Dr. Khalid Yazdani Sheikh, Medical Officer, DHQ Hospital, Sheikhupura, conducted the autopsy on the dead body of Nut. Munawwar Bibi and noticed the following injuries:‑ (1) An incised stitched wound 2.5 cm on the left side of abdomen 6 cm lateral to left side of abdomen from umbilicus. (2) An abrasion 2 cm x 1 cm on the back of right elbow. According to the doctor, the weapon had entered into the small intestine and left kidney was also injured. The injury No.1 was caused by a sharp‑edged weapon while injury No.2 was caused by a blunt weapon and in the opinion of the doctor, the injury No.1 was sufficient in the ordinary course of nature to cause death. Vaginal swabs were also taken and according to the report of the Chemical Examiner, the same were not found to be stained with semen.

7. On 11th of September, 1983, the appellant was arrested and on the same day, the appellant led the police and got recovered blood‑stained Chhuri P.1 from his Dhari. It was taken into possession vide memo. Ex.P.G. attested by Ibrahim (not produced) and Muhammad Ahmed, A.S.I., PW 6, besides Wazir Ali, A.S.I., PW

9. The Chhuri P.1 was sent to the Chemical Examiner and to Serologist and the same was found to be stained with human blood.

8. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Amanat Ali, PW. 1, the nephew of the deceased and PW 2 Mst. Siraj Bibi the sister of the deceased. Muhammad Ali and Muhammad Yaqoob, two other eye‑witnesses belonging to the village of the appellant cited in the F.I.R. were given up. In addition to the ocular testimony, the prosecution also‑placed reliance upon the medical evidence.

9. When examined under section 342, Cr.P.C. to explain the evidence led against him, the appellant denied the charge and stated that he had been involved falsely.

10. With the assistance of the learned counsel for the appellant (Mian Bashir Zafar, Advocate) and Mrs. Yasmeen Saigal, Advocate for the State, I have perused the entire record. The learned counsel for the appellant has mainly confined himself to the question of exact offence made out from the prosecution case itself. The learned counsel for the appellant has further argued that even if the prosecution evidence is believed, the offence does not fall within the purview of section 302, P.P.C.; but at the most the offence under section 326, P.P.C. will be made out.

11. I have carefully perused the statements of the eye‑witnesses and also the impugned judgment. According to the F.I.R., it was an Eid day and the deceased had only remarked that the appellant, her husband, had made her life miserable as he was not abandoning his activities as thief and such remark infuriated the appellant. After careful consideration of all the facts of the case, I am of the view that the case falls within the purview of Exception 4 of Section 300 of the Pakistan Penal Code.

12. It is further noteworthy that the appellant had only inflicted a single blow to the deceased and the dimension of which is 2.5 cm long and injury No.2 cannot be attributed to the appellant because the same can be received by a fall and thus the deceased was injured by the appellant in a heat‑of passion over the sudden quarrel and, therefore, this is unpremeditated act on the part of the appellant. Hence the offence is covered under section 304 Part I P.P.C. and not under section 326 P.P.C. as argued by the learned counsel for the appellant. Thus the conviction of the appellant under section 302 P.P.C. is altered to that under section 304 Part 1, P.P.C.

13. Having come to the above conclusion, the next question falling for determination is, what is, adequate sentence in such like cases. The appellant wah arrested on 11th September, 1983 and his trial concluded on 27th May, 1986. The appellant has, throughout, been in jail during this period and while considering all the circumstances of the case, I think, it will be appropriate that if the appellant is sentenced to undergo rigorous imprisonment for a term of seven years. Accordingly, this appeal is dismissed with the modification in the sentence as stated above. However, the sentence of fine shall be maintained. The appellant shall also be entitled to the benefit under section 382‑B of the Criminal Procedure Code. S.A./M‑1599/L??????????? Sentence altered.