1991 P Cr (PLP)

(11) Four contusion marks in area of five c.m. x 3 c.m. on the right lower jaw. (12) 8 contusion marks and abrasion in area of 7 c.m. x 7 c.m. on the right side of neck on the front aspect extending from the right lower jaw to upper part of clavical size varying 1 c.m. x 1/2 c.m. to 4 c.m. x 1/4 c.m. (13) Multiple contusion and abrasion in area of 7 c.m. x 7 c.m. extending from left lower jaw to upper part of clavical. (14) Two contusion marks 5 c.m. x 2-1/2 c.m. and 3 c.m. x 2 c.m. 2 c.m. apart in the axilla and outer aspect of left upper arm. (15) Multiple abrasion and bruises in area of 12 c.m. x 10 c.m. on the front and sides of right upper arm extending from right shoulder and downward. (16) Contusion marks in area of 12 c.m. x 11 c.m. on the left side of chest extending upto shoulder joint. (17) Contusion marks in area of 10 c.m. x 3 c.m. on the front left clavical and upper part of chest. (18) A lacerated wound 1-1/2 c.m. x 1 c.m. on right index finger. (19) Multiple contusion marks in area of 15 c.m. x 10 c.m. on back of right chest. (20) Contusion mark 3 c.m. x 1 c.m. on the right side of skull. (21) Contusion marks 3 c.m. x 2 c.m. on the right side of skull. According to his opinion the deceased died due to shock resulting from multiple injuries. The injuries were opined to have been caused by blunt weapon. Probable time between injuries and death was opined to be 1 to 2 hours while time between death and post-mortem was opined to be approximately 28 hours. " The doctor had also noted a 36 weeks male fetus in the uterus of the deceased. According to his opinion the unborn child had died due to injury No.6.

11. Ocular account was deposed to by Allah Ditta (P.W.1) and Muhammad Akhtar (P.W.2).

12. Allah Ditta P.W. while repeating the facts given in the F.I.R. claimed to have identified the dead body at the time of post-mortem examination. He had also produced the agreement between the deceased and the appellant, which was marked as `A'. During cross-examination he stated that the agreement had been written in the chamber of an Advocate. According to him, his mother and father were living at Sialkot during the days of occurrence. He gave the distance of his Chak from the place of occurrence as-20/25 miles. He admitted that before going to sleep no dispute had taken place between the deceased and the appellant nor had they exchanged hot words. According to him the door of the room in which the deceased was caused injuries by the appellant was slightly open. He stated that the appellant had run away empty-handed. He admitted that while going to his Chak he had passed through Sargodha city, but had not gone to lodge report at the police station. He denied the suggestion that the deceased was of a bad character. He also denied the suggestion that on the day of occurrence appellant got up at Sehriwela and found that his wife was not in the room and that ongoing out in the courtyard, he found her making love with her paramour under a tree. He also denied the suggestion that the paramour had run away and the, appellant had given injuries to the deceased under grave and sudden provocation on her having failed to give proper explanation for being with a stranger at that hour.

13. Muhammad Akhtar (P.W.2) corroborated the statement made by P.W.1. He, however, did not mention anything about the dispute between the appellant and the deceased about the alleged agreement for maintenance. During cross- examination he admitted that father of Allah Ditta was cousin of his father. He stated that he had made statement to police on the day following the day of occurrence. According to him Allah Ditta had made statement to the police at the police station. He admitted that when the accused had run away he was empty- handed. He stated that after the departure of Allah Ditta from their village to his house neither he nor Allah Yar had gone to inform the police nor had informed the Chowkidar and Lambardar of the village.

14. Both the witnesses stated that appellant had inflicted two injuries in their presence. Both of them denied that they had made incorrect statements.

15. Fateh Khan S.I. who had recorded statement Exh. P.A. of the complainant, had despatched the dead body for post-mortem, had taken into possession blood-stained earth, Hathora and Danda from the spot, and had: submitted challan to the Court after effecting arrest of the appellant on completion of investigation appeared as P.W.8 and gave those details. During cross-examination he stated that the first plea of the appellant before him at the' time of arrest was that on the day of occurrence he had found his wife absent from his room during odd hours of the night and that on going out of the room he, had seen a stranger making love and kissing her and that he had killed her due to that reason.

16. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He stated as follows in answer to question, `Why this case against you and why the witnesses deposed against you'. "In fact Mst. Sughran on the night of occurrence was not found in her bed at about Surgiwela when I got up, I looked out for her and came out of the room and saw her lying with an unknown person under a tree in the courtyard. On seeking me the unknown person ran away. I lost my self-control and under the grave and sudden provocation gave her beating with a Danda,"

17. The appeal has been filed through jail as such nobody represents the appellant. I, therefore, proceed to decide the appeal with the assistance of counsel for the State.

18. I have gone through the evidence and perused the impugned judgment.

19. Both the eye-witnesses were residing at a distance of 20/25 miles. They did not justify their visit to the house of the deceased by disclosing the purpose of their visit. In fact, P.W.2 admitted that he had gone for the first time to the house of the deceased. The presence of these witnesses apart from being residents of a distant place even otherwise appears to be doubtful. In that, if they had been in the house of the deceased alongwith Allah Yar (given up) P.W. they could have easily intervened and saved the deceased from being beaten by the appellant as hey was not holding any aweful weapon. He was only alleged to be having a Hathora and Danda with him. A person holding such like weapons could easily have been overpowered by three persons. Still strange is the aspect that the appellant succeeded running away empty-handed. Even if the witnesses were apprehensive when he was holding weapons they could have no fear to catch him when he had thrown the weapons at the spot. The witnesses not only did not catch him, but they did not even make any effort for that. At least none claimed that.

20. The conduct of the witnesses in neither making any effort to shift the deceased while being alive to hospital for treatment and nor proceeding to the police station to lodge the report further makes their claim of presence at the spot doubtful. Had both the witnesses been at the spot, they being relatives would have felt concerned and would have definitely removed the deceased to some hospital in order to save her life. They also failed to report the matter at the earliest. The claim of the complainant that he had gone to his village to bring his wife to look after his sister seems to be just an afterthought to cover the delay. The report was lodged 12 hours after the occurrence for which there is no explanation. Yet another fact worth noticing is that Muhammad Akhtar P.W. during cross-examination admitted that he had made statement to the police on the day following the day of occurrence. Had he been at the spot on the day of occurrence his statement definitely would have been recorded by the Sub-Inspector who had visited the spot on the same day and recorded the statements of others.

21. The complainant while lodging the F.I.R. did not mention that Hathora and Danda with which the appellant had inflicted injuries were lying at the spot. His stance at the trial that both were stained with blood was obviously incorrect as neither the Sub-Inspector stated so nor the weapon were sent to the offices of Chemical Examiner and Serologist. In the circumstances, the claim of both the eye-witnesses to have witnessed the occurrence appears to be highly doubtful and not worthy of placing reliance upon.

22. The motive part of the occurrence also does not inspire confidence. In that none stated that the deceased and the appellant had ever quarrelled among themselves. Even on the night preceding the morning day of occurrence no quarrel or dispute had taken place between the two. The alleged agreement was not with the deceased. According to the complainant it was lying with their mother. Moreover, if the appellant had not objected to execute the agreement after the marriage why would he have felt aggrieved over that after doing that? The prosecution version of the occurrence is not worth placing reliance upon from that angle as well.

23. Since the prosecution version of the occurrence has not been considered worth placing reliance upon, the only alternative left is to fall back on the plea put forth by the appellant. He had not taken that plea for the first time at the trial. In fact he had advanced that plea on the very first occasion i.e. at the time of arrest on 6-2-1988.

24. For the aforesaid reasons it cannot be assumed that the version of the appellant was an afterthought. In the circumstances, the conviction of the appellant under section 302, P.P.C. and the sentences awarded thereunder cannot be maintained. The same are set aside. He is instead held guilty under section 304, Part I, P.P.C. and convicted accordingly.

25. There is no evidence that the appellant had seen the deceased in a compromising position. It appears from his statement that he had seen the deceased in some indecent posture with her paramour. He can, therefore, have exercised some restraint at least, as the provocation was not of the extreme nature. In the circumstances, sentence of 7 years' R.I. plus a fine of Rs.1,000, in default whereof to undergo 3 months' R.I., in my view, will meet the ends of justice. Order accordingly. He shall also be given benefit of provisions of section 382-B of the Cr.P.C. H.B.T./M-3011/L Order accordingly.