[Lahore] (PLP)

3. The prosecution case is that the appellant and the deceased were married to the real sisters. Met. Bashiren was the wife of Muhammad Aslam deceased while Met. Naziran is the wife of the appellant. The appellant was employed at Tarbela. In his absence the deceased developed illicit relations with his wife Met. Naziran. The appellant had come to know of it. On 12‑1‑1982 the deceased visited the house of the appellant to enquire about his ailing father. The appellant had come from Tarbela on the same day. He took exception to the visit of the deceased to his house. They altercated with each other. The appellant blamed the deceased for strained relationship between him and his' wife. Fazal Hussain complainant P.W.8 intervened and separated them. The appellant went inside the room and brought a pistol and fired at the deceased hitting him on the right side of his chest. He fell injured. The appellant fired some more shorts at him. On the alarm Nazar Muhammad Lambardar and Saee Muhammad also reached there. The appellant left that place alongwith his pistol. Muhammad Aslam died of the injuries shortly afterwards.

4. Fazal Hussain P.W.8 left for Police Station Mandi Bahauddin and lodged the F.L.R. Exh.P.D. After recording the same S.I. Muhammad Suleman proceeded to the place of occurrence. He prepared the injury statement and the, inquest report of the deceased. He took into possession blood‑stained earth, revolver and four empties from there. He arrested the appellant on 17‑1‑1982. On his search revolver P.9 and 4 cartridges were recovered from the right Dub of his Shalwar. After investigation the appellant was challaned.

5. Dr. Nazir Ahmed Anwar P.W.5 conducted the post‑mortem examination on the dead body of Muhammad Aslam deceased (55) and found four fire‑arm injuries thereon: According to the doctor the death occurred due to shock and haemorrhage. The injuries were caused with fire‑arm. The death occurred within half an hour of the injuries.

6. The appellant when questioned made the following statement: "As already stated by me the deceased had developed illicit relations with my wife. He would openly come to my house in this connection and I used to request him that he should give up this bad habit and refrain from coming‑to my house. I used to tell him that my wife being the sister‑in‑law is just like a real sister to him but the deceased would rebuke and taint me instead of giving up his illicit connections with my wife. He would tell me that he will divorce his own wife but will not live without Naziran, my wife. Mat. Bashiran wife of deceased had also asked the deceased many times from giving up his illicit connections with her sister. As the deceased was persistent in carrying on with his illicit relationship with my wife, she had also left the house of the deceased and went to stay with her parents. I had taken my wife to Tarbela where I was a labourer. The deceased used to follow my wife to Tarbela also and from there in my absence enticed her away. My wife was returned to me subsequently on the intervention of Punchayat of my village. About 15 days prior to the occurrence the deceased again abducted my wife Mst. Naziran. Mat. Naziran was restored to me again on the intervention of respectable of my village only 3/4 days prior to the occurrence. On the day of occurrence the deceased armed with a pistol had come to my house. I was not present in my house at that time and had gone to my fields. The deceased did not know that I had come to village Kalowali from Tarbela. Wen I came to my house I saw my wife and the deceased lying on one cot in a compromising position. I was suddenly and gravely provoked. Seeing me in this condition the deceased started grappling with me. I snatched the pistol from the deceased, which was already loaded and fired from it in grave and sudden provocation, at the deceased. The deceased was hit but Mat. Naziran managed to escape in the process. None of the witnesses were present at that time. My father was also not present is the house at that time and Mat. Naziran was alone in my house at the relevant time. The pistol belonging to the deceased from which I had fired the shots, was thrown by me at the spot." He did not produce any evidence in defence.

7. The prosecution case rests on the evidence of Fazal Hussain P.W.8 (complainant) and Nazar Muhammad P.W.9. Both of them furnished the ocular account. Relying upon the evidence of recovery furnished by Nazar Muhammad P.W.9, Inayat P.W.10 and S.I. Muhammad Suleman P.W.11 and the matching of the crime empties with the revolver recovered from the appellant the trial Court convicted and sentenced the appellant as described above.

8. It is argued that the conviction and sentence of the appellant under section 302, P.P.C. is contrary to the facts and law and the trial Court has erred In relying on the prosecution witnesses who were interested.

9. Since there is no dispute as to the identity of the assailant or the place of occurrence the only question that falls for determination is as to which of the two versions is more plausible. The prosecution as well as the defence version is that the appellant and the deceased were Hamzulf and were married to the real sisters. It is also an admitted fact that the deceased was maintaining illicit intimacy with the appellant's wife during his absence on account of his employment at Tarbela. It is also in evidence that the appellant held the deceased responsible for the strained relations between him and his wife. It is also not denied that the appellant did not approve the visits of the deceased to his house. It is also admitted that the appellant was away from the house when the deceased came there. It is also proved on the record 'that the appellant objected to the visit of the deceased to his house and an altercation ensued between them.

10. In the above circumstances even if the version put-forth by the appellant that he had seen the deceased lying in a compromise position with his wife in his house is not accepted, the mere presence of the deceased in his house in his absence and his indulging in an altercation with him over the resentment shown by him to his visit was sufficient to cause grave and sudden provocation to him. Instead of dispelling the doubt entertained by the appellant with regard to the deceased's illicit intimacy with his wife, he picked up an altercation with him inside his house. In this view of the matter the conviction of the appellant under section 302, P.P.C. was not justified. Accordingly, I alter his conviction from section 302, P.P.C. to section 304, Part‑I, P.P.C and reduce the sentence from imprisonment for life to ten years' R.I. The sentence of fine as awarded by the trial Court is, however, maintained. The fine as ordered by the trial Court shall be paid to the legal heirs of the deceased. The appellant is also given the benefit of section 382‑B, Cr.P.C. in computing the period of imprisonment to be undergone by him. The appeal stands disposed of in the above terms. S.A ‑‑‑‑‑ Appeal partly accepted.