' MIAN BURHANUDDIN KHAN, J.- Habibur Rebman alias Baibur (20) son of Muhammad Gul, resident of village Khoi Dhandao, Tehsil and District Mardan, is sentenced to death under S. 302, P. P. C. For committing the murder of Astaghfirullah by firing at him with a fire-arm, and to pay a fine of Rs, 10,000 or in default, three months' R. I., vide judgment of the learned Sessions Judge, Mardan dated 5th May, 1979. It was further ordered that the fine, if realized, be paid to the heirs of the deceased.
2. The convict has come up on appeal against his conviction and sentence and there is also a Murder Reference No, 25 of 1979 for the confirmation of the sentence of death, passed upon the appellant. This judgment will dispose of both the appeals as well as the murder reference.
3. The prosecution story, unfolded at the trial, is that on the day of occurrence i,e, 30th June, 1977 at about 1700 hours on Katlang Babuzai Road the deceased Astaghfirullah along with his father, Abdul Malik P. W. 8, were returning from their field, when they saw a `tongs' in which Habibur Rehman alias Baibur, appellant, armed with a 'topak' was sitting in the back seat of the `tonga' along with a woman. Seeing the deceased, the appellant got down and the woman sitting with him pointed out the deceased, and, the appellant coming near him challenged that how he would escape then, and, simultaneously fired at him. The deceased was hit with the shot and fell down while the appellant along with the woman ran towards the fields. Abdul Malik, P. W. 8, raised an alarm which attracted the people to the spot. The body was placed on a 'cot' and taken to the Police Station, where Abdul Malik, P. W. 8, lodged the report, Exh. P. A. According to the statement of Abdul Malik, P.
W. 8, the appellant suspected the deceased of having illicit relations with his wife, and hence the murder.
4. The report was recorded by Saadat Iqbal Khan, S. H.
0., P. W. 10, at 17-45 hours. He after recording the same read it over to Abdul Malik P. W. 8, who thumb impressed it in token of its correctness. He also prepared the injury sheet, Exh. P. C. And inquest-report, Exh. P. D. Of the deceased and sent the dead body to the mortuary for post-mortem examination.
5. Dr. Muhammad Nisar Khan, P. W. 4, conducted autopsy on the dead body of Astaghfirullah, deceased, on 30-6-1977 at 6.15 p. m. And found the following injuries on external examination :
(1) Two wounds (fire-arm) of entrance 1" below the lower end of sternum, size 1" x each.
(2) Wound of entrance on right side of chest 1" to the right ormid line at the level of 7th inter-costal space, size i" x
(3) Four wounds of entrance at right side of chest at the level of the 9th to 11th inter-costal space (size r x i" three wounds) and one wound of the size I" x I".
(4) Two wounds of exit on right side back, two inches below the lower end of the right scapula, size i" x I".
(5) Two wounds of exit, 2" below wound No, 4, each i" x i".
On internal examination the doctor found that walls, ribs, pleura, right lung, blood vessel peritoneum diaphragm, small intestines and liver were found injured. Stomach was also injured and contained semi-digested food materials.
6. The appellant absconded after the commission of the offence. A search warrant under S. 204, Cr.
P. C. Exh. P. J. For his arrest was issued and entrusted to Khanullah, F. C. P. W. I. He searched for him in his village Alo and the surrounding villages but he was not available. The warrant alongwith his report, Exh. P. J. 1, was returned to the Court. Khanullah, P. W. 1 was also handed over the proclamation order under S. 87/88, Cr. P. C.---Exh. P. K., which he carried out Vut returned his report on the proclamation, Exh. P. K.
1.
' Rizwanullah, P. W. 2, identified the dead body of the deceased.
' Abdul Jalik, F. C. P. W. 3, accompanied the dead body to the hospital and brought back clothes of the deceased and a phial containing five pellets.
' Zainul Wahab, A. S. I., P. W. 5, arrested the appellant on 28-9-1977. Muhammad Ijaz S. I., P. W. 6, signed the memo Exh. P. B.
' Muhammad Islam Khan, S. I. P. W. 7, submitted the challan against the appellant.
' Abdul Malik, P. W. 8, gave ocular account of the occurrence. He stated that the deceased, Astaghfirullah, was his soh : that ' Habibur Rehman, appellant, was known to him and that he lived in Alo village, had married a girl from Katlang village ; that on the day of occurrence at about 5 p. m. He and the deceased alongwith Musharraf, P. W. 9, were going from their field to their house and when they passed Katlang tonga stand, saw a tonga coming, which passed them and stopped at a distance of 7/8 paces ahead of them that Habibur Rehman, appellant, got down from the back seat where a woman was also sitting, who pointed towards the deceased and on this the appellant came near the deceased and asked him that how he would escape then and thereafter fired at him, who was hit and fell to the ground and died soon after. The appellant then accompanied by his wife, who was sitting with him in the Tonga, disappeared in the fields. He (the witness) then along with others placed the dead body of the deceased on a 'cot' and took the same to the police station, where he lodged the report, Exh. P. A. He also furnished the motive for the commission of the crime, i,e, illicit relations between the wife of the appellant and the deceased.
' Musharraf, P. W. 9, corroborated the testimony of Abdul Malik, P. W.
8. He stated that he was accompanying the deceased and Abdul Malik, P. W. 8, when the appellant came in a Tonga with his wife sitting in the back seat : that he got down from the Tonga and fired at the deceased, who was hit and died and thereafter the appellant decamped.
' Saadat Iqbal Khan, P. W. 10 after recording the report, Exh. P. A. Of Abdul Malik and preparing the injury-sheet and inquest-report of the deceased, sent the dead body to the mortuary and himself left for the spot, where he prepared the site plan, Exh. P. E. With the foot-notes correctly. He then searched for the appellant in his village, who was absent, Next day, he received the clothes of the deceased along with a phial containing pellets, which he took into possession vide memo Exh. P. B.
7. The appellant was examined, who denied the charge. Regarding his ascendance he stated that prior to the occurrence he had gone to earn his livelihood to Punjab and learning about the occurrence and the charge, he surrendered to the Police. He, however, produced no defense.
8. Learned trial Court found that the statement of Abdul Malik P. W. 8, and Musharraf P. W. 9, and the conduct of the appellant after the commission of the offence, proved the prosecution case beyond any reasonable doubt and accordingly convicted the appellant under S. 302, P. P. C. And sentenced him to death and a fine of Rs, 10,000.
9. On behalf of the appellant it was contended that both the witnesses are clostly related to the deceased ; that there appears no plausible reason for Abdul Malik and Musharraf, P. Ws. To be present with the deceased at the eventful time ; that the two eye-witnesses have materially contradicted each other by stating that they were returning after inspecting the fields alongwith the deceased as there was no crop in the field at the time, which could have been inspected by them as neither maize crop was sown at that time, nor wheat crop was there as it was the month of June, that Abdul Malik P. W. 8, stated that they were returning from the fields while Musharraf, P.
W. 9, stated that in fact they were going to the fields at the time of occurrence.
10. We have carefully gone through the evidence of the two witnesses and find that there is no vital contradiction to discard the testimony of these two witnesses. According to the prosecution story the occurrence took place at about 5 p. m. While the report was lodged in the P. S. At 5-45 p. m.
Lying at a distance of 4/5 furlongs from the spot. It is also established that there was no previous enmity between the complainant and the appellant, and the motive revealed by Abdul Malik, P. W.
8, is also not controverted by the defense. To a question in cross-examination Abdul Malik stated that the field to which he had gone with the deceased was cultivated by their tenant, Karim and in the month of June, sugar-cane crop is sufficiently high, and there is no such reason to doubt the statement of the witnesses to this effect.
11. Learned counsel for the appellant, however, lastly argued that it has been alleged by the prosecution that the deceased had illicit connection with the wife of the appellant and the possibility of following her on the day of occurrence when she was travelling in a tonga with her husband, would bring the case of the appellant in Exception I to S. 300, P.P.C. But the law is that it is incumbent on the accused person who seeks to reduce the nature of his crime by bringing his case under the exceptions, to prove that the provocation received by him was such as might reasonably be deemed sufficient to deprive him of self-control, and the killing took place while that absence of self-control lasted and may be fairly attributed to it. Where, therefore, grave and sudden provocation is pleaded in a case of murder, the question that the Court has to decide is, whether between the cause of the grave and sudden provocation and causing of the death there was time for the blood to cool and for reason to resume its seat.
12. Learned counsel for the State argued that the burden of proof is on the accused to show that by grave and sudden provocation he was deprived of the power of self-control. He referred to the statement of the appellant, recorded under S. 342, Cr. P. C., wherein he denied his wife having any illicit relations with the deceased. He contended that in a case of murder, it is not the duty of the prosecution to establish that grave and sudden provocation did not exist. The burden of proof is on the accused to show that by grave and sudden provocation he was deprived of the power of self- control and a person can only claim to have been provoked if he had been injured by some act or word, if by the words, to his reputation, character or dignity. We consider this proposition to be of sufficient weight but we are also conscious of the fact that where the B provocation to the accused was not in the nature of grave and sudden provocation but was a culmination of a long period of anger and insult, which finally made the accused lose his temper; he would be entitled to the lesser penalty provided by the law. It is in the evidence that the appellant suspected the deceased of having illicit relations with his wife and seeing him, on the day of occurrence, just behind the Tonga in which his wife was also travelling, must have felt sufficiently incensed and thus it would be a case where the extreme penalty of death would not be called for.
13. The net result of the above discussion is that while maintaining the conviction of the appellant under section 302, P.P.C., we reduce his sentence of death to that of imprisonment for life and the fine, imposed by the learned trial Court. With this modification in the sentence, this appeal is dismissed. Death sentence is not confirmed and the murder reference is answered accordingly.