QAZI MUHAMMAD AMIN AHMED, J:- It is a case of uxoricide, as Muneeba Iqbal, 25, hereinafter referred to as the deceased, was fatally stabbed by no other than her better half on 28-6-2012 at 12:15 p.m within the area of Mohallah Minhas Abad Sarpak situating at a distance of 4-furlongs from Police Station City Chakwal; incident was reported by her father Zafar Iqbal (PW-10) through complaint Ex.PJ at the spot recorded by Tariq Mehmood, SI (PW- 12), 1:50 p.m same day. According to the complainant, the deceased was married with the appellant twelve years before the occurrence; the couple was blessed with children, however, about a week ago, she left the appellant along with children and started living in a rented house; it was in this backdrop that the complainant along with his son Shahid Iqbal (PW-11) came to visit the deceased and found the door latched from inside; they looked into the house through an open window after hearing shrieks to see the appellant dealing repeated Churri blows to the deceased lying on the floor in a pool of blood; as they beseeched the appellant to spare the deceased, he exhorted that he would teach her lesson for illicit liaison with Muhammad Fayyaz; within their view, the appellant hit the deceased with an electric iron as well as with bricks; commotion attracted the neighbourhood; the appellant attempted to flee and the PWs tried to subdue him when in the process, he received injuries on his hands. The deceased succumbed to her injuries at the spot. Motive cited for the crime is desertion by the deceased and her residence in a house arranged by afore-named Muhammad Fayyaz.
Tariq Mehmood, S.I (PW-12) carried out initial investigation; during spot inspection, besides taking other investigative steps of formal nature, he secured bloodstained earth, Churri (P-3), electric iron (P-4), electric cable (P-6), three pieces of bricks (P-5/1-3), arrested the appellant at the spot and dispatched the dead body to the mortuary . Autopsy was conducted same day at 5:00 p.m. by Dr. Qurt-ul-Ain (PW-7); she noted as many as six incised wounds of different dimensions accompanied by multiple irregular lacerations and bruises on neck, face, shoulder , nasal bone, occipital bone, right side of chest, right hand and leg; rupture of major blood vessels and trachea leading to massive bleeding as well as fracture of skull were blamed as cause of death. Probable time between the injuries and death was within 10 to 15-minutes whereas between death and postmortem less than 12 hours. Injury statement Ex.PP suggests that the Investigating Officer got the appe llant medically examined same day, however , his medico legal certificate is not on the file. After completion of investigation, the appellant was sent to face trial before a learned Addl: Sess ions Judge at Chakwal; he contested his indictment on 19-9-2012 and claimed trial, pursuant whereto, prosecution produced as many as thirteen witnesse s besides placing reliance upon forensic reports to drive home charge against him; of them, Zafar Iqbal (PW-10) & Shahid Iqbal (PW-11) furnished ocular account, the mainstay of the prosecution case. The appellant confronted the prosecution evidence with the following plea:- "I am innocent. Infact the deceased Muneeba Iqbal was having illicit relation with one Fayyaz Hussain and she was residing with him for a long time against the principles of Islam. The deceased was not having good reputation in the society . I have been roped in this case on the amicable agreement between the IO and the complainant: that the IO of the case also belongs to my village Dhudial and also the complainant, IO and one Fayyaz Hussain has relations with each other , therefore, they all planned to falsely involve me in this case. I have no knowledge and connection with the murder of deceased Muneeba Iqbal ".
The learned trial Judge, unimpressed by the position taken by the appellant, proceeded to convict him vide judgment dated 12-2-2013 under Section 302 (b) of the Pakistan Penal Code, 1860; he is sentenced to death along with payment of compensation of Rs.200,000/- or to undergo six months simple imprisonment in the event of default, vires whereof, are being challenged through Crl. Appeal No. 82 of 2013; the State seeks confirmation of death penalty vide Murder Reference No. 17 of 2013; these are being decided together through this single judgment.
2. Learned counsel for the appellant contends that occurrence did not take place in the manner as alleged in complaint Ex.PJ; that arrival of both the eye witnesses, per chance at the spot, previously not within their knowledge is extremely improbable and unnatural; that explanation offered by the appellant sounds more plausible and as such merited preference over the prosecution case; the bottom line of submission made at the bar is that prosecution has not been able to prove the case beyond reasonable doubt. Contrarily, the learned Law Officer has defended the impugned judgment on the ground that the appellant was arrested at the spot with the assistance of eye witnesses in an injured condition and as such case against him stood proved to the hilt; magnitude of violence, suffered by the deceased, according to the learned Law Officer, warranted confirmation of death penalty.
3. Heard. Record perused.
4. Admittedly , the couple was blessed with three children, two sons and two daughters; as the marriage went on rocks, the deceased left her house situated in Dhudial and started living in a rented premises in Chakwal city. It is a common ground as well that the premises was arranged by Fayyaz Hussain, suspected by the appellant to be in liaison with the deceased. It is in this backdrop that the appellant somehow succeeded in locating deceased' s residence on the fateful day. As he was arrested at the spot immediately after the occurrence and it is so mentioned in a promptly lodged First Information Report, the presence of eye witnesses at the relevant time cannot be doubted by any stretch of imagination. Number and nature of injuries sustained by the deceased are in line with the ocular narrative. Autopsy at 5:00 p.m. same day cannot be termed as delayed, therefore, appellant' s solitary nomination in crime report Ex.PJ cannot be result of consultation or deliberation; he was subdued injured and though was medically examined, the learned Prosecutor preferred to give up the Medical Officer, an inaptitude that does not adversely affect the prosecution case, otherwise, firmly structured on ocular account and thus, explanation offered by the appellant merits outright rejection; he can be safely held responsible for the crime, however , his conviction under Section 302 (b) of the Pakistan Penal Code, 1860 warrants serious consideration for more than one reason. It is prosecution' s own case that the deceased left appellant' s house in Dhudial along with her children without taking the appellant into confidence and started living in Chakwal in a house arranged by Fayyaz Hussain, whom the appellant suspected to be in a dubious intimacy with her. Parveiz Akhtar (PW-9), an estate agent, appearing for prosecution confirmed that the premises was acquired on rent by no other than Muhammad Fayyaz; he was declared hostile and without any valid reason, nonetheless, in his cross-examination conducted by the learned Law Officer, he disclosed that Muhammad Fayyaz visited him for the purpose accompanied by the deceased as his wife; he denied the prosecution suggestion that the deceased lived in the premises with the appellant, a position otherwise incompatible with the case set up in crime report Ex.PJ.
Investigation also confirms the hypothesis of appellant' s surprise arrival while Muhammad Fayyaz was present with the deceased. These circumstances together spell out a situation which appea rs to have cropped up all of a sudden whereunder the appellant seemingly lost control over his faculties; this is further confirmed by the weapons used in the occurrence; Churri P-3 through usable as a lethal instrument, nonetheless, cannot be a choice weapo n for a person, who contemplated a premeditated fatal assault; use of electric iron (P-4), bricks (P-5/1-3) and cord (P- 6) suggest that the appellant used whatever object, he found nearby; it was for this reason as well that the eye witnesses were able to apprehend the appellant at the spot; violence suffered by the deceased though profoundly unfortunate, nonetheless, is compatible with the provocation and emotional devastation, a person of normal faculties would possibly experience in identical circumstances, thus, the appellant' s culpability is more squarely covered by the mischief of clause (c) of Section 302 of the Pakistan Penal Code, 1860 which is enacted to meet situations like one in hand. Reliance is placed in the case of Ali Muhammad Vs. & Ali Muhammad & another (PLD 1996 S.C. 274 ); relevant portion whereof is reproduced below:- "Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law maker has left it to be Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the cases covered by the Exceptions to the old section 300 P.P.C. read with old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C."
The above view has been reaffirmed in the case of Malik Muhammad Mumtaz Qadri (PLD 2016 SC 17); relevant portion whereof is as follows:- "Grave and sudden provocation offered by a victim to the assailant is surely one of the exceptions within the contemplation of the above mentioned Article 121 which exception was previously recognized by Exception No.1 to the erstwhile section 300, PPC and is now covered by the provisions of section 302(c), PPC. "
Consequently , Crl. Appeal No.82 of 2013 is dismissed , however , appellant' s conviction is conve rted from clause
(b) of Section 302 of the Pakistan Penal Code, 1860 into clause (c) of the Code ibid and he is sentenced to fifteen years rigorous imprisonment with benefit of Section 382-B of the Code of Criminal Procedure, 1898; amount of compensation is set aside. Murder Reference No.17 of 2013 is answered in NEGA TIVE and death sentence is NOT CONFIRMED .