The appellant, has been convicted under section 304, Part I of the Pakistan Penal Code and has been sentenced to ten years' rigorous imprisonment and a foe of Rs.1,000 by the learned Additional Sessions Judge, Shiekhupura. In default of payment of the fine, he was directed to undergo further rigorous imprison--ment for six months.
2. The prosecution case against the appellant is that he murdered Mst. Halima Bibi, the widow of his first-cousin Kala can 1st of July 1967, in village Asil Par, in the jurisdiction of Police Station Mangtanwala, in District Sheikhupura.
3. Mst. Halima Bibi deceased was a widow. A part of the land belonging to her husband was mutated in her name and that of Mst. Iqbal, a minor daughter of Kala from Halima. After the death of her husband, Mst. Halima engaged one Manna, a Chris--tian, as a servant. We find from the evidence of Shahrah (P. W. 2) that this Manna on occasions used to spend night in the house of the deceased. This aroused suspicion and rumour in the village that the deceased had an illicit liaison with Manna. On 1st of July 1967, the appellant at about rotiwela went to Shahrah (P. W. 2) and asked for the loan of the latter's plough. He was then holding a club which had been cut off from a kikar tree. Shahrah told the appellant that he should come next day for taking the plough. On this, the appellant proceeded towards the village and Shahrah followed him. There were some reeds on the path which the appellant was traversing. He found Mst. Halima deceased and her servant Manna Christian together in the reeds. Manna took to his heels as soon as he saw the appellant and Saharah but Halima was caught hold of by the appellant who burst out that she was carrying on with Manna Christian and was bringing infamy to his, family. He started beating her. Mean--, while, Rehmat, who was examined as C. W. 1, also arrived at the spot. The deceased fell down at the spot.
Her mother Mst. Ijjan (P. W. 3) also came there. Shahrah P. W. Gave some milk to the injured woman but she expired after some time.
4. Shahrah (P. W. 2) lodged the F.
1. R. (Exh. P. A) on 1 of July 1967, at 2-30 p. m. The distance between the police station and the place of occurrence is nine miles. It was stated by Shahrah in the F. I. R. That the motive for the murder was the alleged liaison between Mst. Halima and her servant.
5. Ch. Nur Muhammad (P. W. 8) S. H. O. Police Station Mangtanwala reached the spot on the same day and recovered blood-stained earth from the spot. On the next day, sota Exh. P. 2 was recovered at the instance of the appellant vide memo, Exh. F. D. The earth and sota were found to be stained with human blood.
6. At the trial it was the case of the prosecution that the murder had taken place because the appellant wanted to get hold of the land which had fallen to the share of the deceased and her daughter. The motive as stated in the F. I. R. Was not adhered to Rehmat was given up by the prosecution but was examined as a Court witness. Both Shahrah and Rehmat were cross--- examined and it was brought out that they had previously statements which supported the story as given in the F. I. R. Rehmat C. W. Was confronted with his statements made before the Magistrate under section 164, Cr. P. C. And that made before the Committing Magistrate on this point and it was brought out that he had supported the story as given in the F. I. R. That the murder was committed because of the alleged liaison between Manna and the deceased.
7. The learned trial Judge in para. 8 of the judgment observed that the desire of the collaterals of the husband of the deceased to grab the land which fell to the shares of the deceased and her minor daughter might have acted as "catalyst" for the attack although he finally found that it was a case of grave and sudden provocation. Ch. Khalilur Rehman, the learned counsel for the appellant, contends that there was no basis for the above observation.
8. Mr. Abdul Qayyum Bhatti, who appears for the State, refers to a copy of roznamcha (Exh. P. N.) which contains a state--ment of the deceased made two days prior to the incident before a Head Constable, wherein it was stated that Sardara the brother of her deceased husband wanted to grab the land which fell to her share and that of her daughter and was also taking away the produce. It was also mentioned therein that some other persons including the appellant were his collaborators. We also find from the same statement that there was a panchayat in the village with regard to this matter, but Sardara had gone back on the decision of the panchayat.
9. There is no evidence to show that the appellant knew of the report made by the deceased to the police or that he was one of the persons present in the panchayat. In any case, the appellant could not inherit any land left by Kala because the latter's real brother Sardara and his daughters from her first wife were alive. The only conclusion that can tie drawn from the evidence on the record is that it was the alleged illicit liaison between the deceased and Manna Christian which motivated the crime.
10. The appellant did not raise this plea either before: the Committing Magistrate or before the trial Court. We have therefore, to depend upon the record of the case to spell out as to what was the cause of this attack. After having gone through the record I find that having seen Mst. Haiima and Manna Christian together in the reeds, the appellant was provoked to make murderous assault on Mst. Halima which proved fatal. The conviction under section 304, Part I of the Pakistan Penal Code is, therefore, maintained.
11. As regards the question of sentence, it does not appear from the evidence that Mst. Halima and Manna Christian were actually seen in a compromising position. The medical evidence does not throw any light on the point whether sexual intercourse had been committed.
12. The attack was indeed forcible and wanton as the deceased received 19 injuries and there were multiple fractures of her long bones. The learned Judge deciding the case has referred to thest severity of the attack by observing in para. 9 of his judgment that "the brute splintered pulverised her legs mercilessly". Ch. Khalilur Rehman, however, contends that the attack having been made under grave and sudden provocation, its severity need not have influenced the learned Judge in-.Imposing a sentence of ten years.
13. A number of judgments have been quoted before me to enable me to come to a finding as to what should be the sentence in this case. These authorities do not lay down any fixed scale of sentence. This would depend upon the circumstances of each case. In Hanif v. State (I)
Muhammad Afzal Zullah, J. Enume--rated some of the circumstances which should influence the quantum of sentence in such cases. His Lordship observed as under: -- "The circumstances in each case differ. Therefore, no hard and fast rule can be laid down in the matter of sentence in a case where the plea is of grave and sudden provocation. The caste and tribe, the background of the family, the area to which the family belongs, the latent cause of the killing, the immediate cause giving grave and sudden provocation, the weapon used, the number and nature of injuries caused, the age of the accused, the relationship of the accusers with the woman, the general circumstances appearing at the time of occurrence including also whether it is a daylight or night time occurrence, and the plea of the accused at the trial, are some of the factors to be considered for awarding sentence in a case like the present one."
14. The facts in Mewa v. The State (2) are somewhat similar to the facts of the present case. Ire the precedent case, the younger brother of the husband of a woman had killed her because she was found in a field with her paramour in circum--stances which suggested that they had committed adultery. The sentence awarded in that case was three years. It may also be observed that in the case of Hanif referred to above the appel--lant had killed her own mother when he saw her sitting with her paramour on the same cot. Mr. Justice Zullah reduced the sentence from five to three years. In the present case, the appellant is the first-cousin of the deceased's husband, but he has not stated that he found Manna and Mst. Halima together in circumstances which suggested that they had committed adultery.
We can, however, safely presume that the two lovers were having a clandestine meeting in the reeds away from the maddin crowd. Their sight was enough to arouse in the appellant an uncontrollable wrath to kill the woman who was bringing disgrace,6 to the family by her liaison with her Christian servant.
15. I agree with the suggestion of the learned counsel for the appellant that the sentence of ten years' R. I. Is excessive in the circumstances of the case. I would, however, in view of m observations made above, reduce it to four years' R I. The sentence of fine shall stand.