This is a Jail appeal by Muhammad Sharif, appellant, against the judgment of an Additional Sessions Judge of Sargodha dated 26-9-1979 convicting him under section 302, P. P. C. For the murder of Mst. Nasim Akhtar and under section 307, P. P. C. For making an attempt on the life of Muhammad. Siddique P. W. Under section 302, P. P. C., the appellant was sentenced to life imprisonment with a fine of Rs. 2,000 or in default thereof to undergo further rigorous imprisonment for two years and under section 307, P. P. C. To seven years' rigorous imprisonment with a fine of Rs.
1,000 or in default thereof to undergo further rigorous imprisonment for one year. The fines, if recovered, under sections 302 and 307, P. P. C., were ordered to be paid to the legal heirs of Mst.
Nasim Akhtar and to Muhammad Siddique P. W. 7 respectively, as compensation under section 544-A, Cr. P. C.
2. The case of the prosecution, as it emerges from the statement of Muhammad Hayat complainant P. W. 6 is that he is the father of Mst. Nasim Akhtar, deceased, and real brother of Muhammad Siddique P. W.
7. He deposed that his daughter Mst. Nasim was married to Muhammad Sharif, accused, about 1-- years before the present occurrence, but the accused divorced her some six months before the tragic occurrence and since then the deceased was living with him. He deposed that on 29-4-1978 he offered Zohar Prayer at about 3 p m. In the mosque alongwith Muhammad Siddique P. W. 7 and while both of them were coming out of the said mosque, they heard the screams of his daughter Mst. Nasim from near the house of Haji Salamat Ullah in a lane.
This place happens to be at a distance of about 13/14 Karams from the gate of the mosque. He alongwith Muhammad Siddique P. W. 7 rushed towards that place and while reaching there; he saw Muhammad Sharif, accused, armed with knife, giving knife blows to the deceased. Mst. Nasim Akhtar fell down in the street. Muhammad Siddique P. W. 7 stepped forward and tried to rescue 11Ist.
Nasim Akhtar, but Muhammad Sharif, accused, became violent and he also gave a knife blow on his chest and repeated the same, which fell on his left thigh. The knife got stuck in the thigh and in the meantime Ashiq Hussain (won over P. W.) and Abdul P. W. 8 alongwith Muhammad Hayat P. W.
6 apprehended the accused at the spot. Mst, Nasim Akhtar died at the spot. He took Muhammad Siddique P. W. 7 to the hospital and lodged F. I. R. Exh. P.F. At the Police Station Bhera at 3-30 p.m, which was read over to him and he signed the same in token of o correctness:
3. Dr. Sheikh Muhammad Iqbal P. W. 5 medically examined Muhammad Siddique P. W. 7 on 29-4- 1978 at 3-30 p. m. And found the following injuries on his person:--
(1) A stab wound 3 cm. x 1 cm. x bone deep over the anterior and outer part of right chest below the right nipple with corresponding mark of perforation on the blood-stained shirt.
(2) A stab wound 3 cm. x 5 cm. (corresponding with injuries on the, anterior and inner surface of left thigh with corresponding mark of perforation over the Chaddar. Inner wound is 7 cm. Apart from outer --wound. Its dimension was 2 cm. x 3 cm. x through and though corresponding with outer wound with a blade 10 cm. Long of a knife present in the wound.
The patient was in a state of acute shock. Injury No. 1 was kept undo observation and injury No. 2 was simple with fresh duration caused by sharp, edged and pointed weapon. The knife was found present in the wound. Injury No. 1 was declared simple later.
4. Sarfraz Khan A. S. I. P. W. 9 reached the spot at 4-30 p.m. Where Muhammad Sharif, accused, was presented to him by Abdul P. W. 8 and Ashiq Hussain (won over P. W.) for arrest. He was accordingly arrested, His blood-stained shirt P. 9 and blood-stained Shalwar P. 10 were taken into possession vide memo. Exh. P. H. Blood-stained earth, where the deceased lay, was also taken into possession by the Investigating Officer vide memo. Exh. PF/A. All these recoveries were effected in the presence of Abdul P. W. 8, Sarfraz Khan A. S. I. P. W. 9; Ch. Nisar Ahmad A.S.I. "given up P. W.) and Ashiq Hussain P. W.
5. The same day at 6 p. In. Dr. Sheikh Muhammad lqbal P. W. 5 conducted the post-mortem examination on the dead body, of Mst. Nasim Akhtar, deceased, and found four stab and eleven incised wounds on various parts of her body, as stated in the post-mortem examination report Exh.
P. C. The cause of death was shock and haemorrhage which: was the result of the stab wounds on the chest and abdomen.
5. On 30-4-1978 at 8-30 a. m. Dr. Sh. Muhammad Iqbal P. W: 5 examined Muhammad Sharif, accused, and found a lacerated wound with incised margin on his right thumb, which injury was simple.
6. After completing the necessary investigation, the challan against the accused was sent up.
7. At the trial, prosecution produced Muhammad Hayat P. W. 6 and Muhammad Siddique P. W. 7 to prove the motive, the said two witnesses a and Abdul P. W. 8 in proof of the ocular account, Sarfraz Khan A. S.I. P. W. 9 and Abdul P. W. 8 in proof of the recoveries, and Dr. Sh. Muhammad Iqbal P. W. 5 to corroborate the medical testimony.
8. At the trial, the accused, in his statement under section 342, Cr. P. C. Admitted that the deceased was his wife during .The days of occurrence ;.Gad that Muhammad Hayat P. W. 6 was his father-in- law, but he denied the he had divorced his wife or had executed any Talaqnama. As regards the Talaqnama filed in the Court, he submitted that he had not got it scribed from Muhammad Sadiq, Petition-writer, nor had he signed the same. He admitted the occurrence in different circumstances as follows :- ---On the day of occurrence I was present at the door of my house when I saw the deceased coming out from the uninhabited Haveli of Ghulam Elahi Bhatti, the door of which opens in front of the Chowk. I proceeded towards the Chowk and asked the deceased as to how she happened to be in the company of the stranger and if she had been enjoying his company inside the haveli. To which she replied that I had nothing to do with her affairs and she is doing well in enjoying the company of Ashiq Shah P. W. At this I lost control over my temper and started injuring her with the knife which was already in my possession on a grave and sudden provocation. On the alarm raised by her Siddique P. W. Reached the spot. He started giving me fist blows and started abusing me. I was not in my senses and I injured him during the same temper. I happened to have knife with me because I was mending the bolo of the water pump in my house and just had come to the door. I felt hot inside and had come out to have some air when I saw the deceased in the company of Ashiq Shah P. W. After the occurrence I remained at the spot till the arrival of the police and surrendered myself before the police and related the incident in the manner stated above. As a driver I often used to remain outside my village in connection with my service and the deceased had become immoral and was notorious for her bad character. On the day of the occurrence I actually saw her with Ashiq P. W and was provoked.---
9. The learned trial Judge, relying upon the motive, the ocular account the recoveries and the medical evidence, convicted and sentenced the accused, as stated in para. 1 above.
10. Malik Abdur Rahman, Advocate, appears on behalf of the State. With his assistance, the whole evidence on the record has been read. As regards the motive, it is the case of th6 prosecution that the appellant had been married and divorced the deceased about 1-- years and six months respectively before the occurrence, that after her divorce the deceased was residing with her father Muhammad Hayat P: W. 6 and that the, appellant was annoyed over the second marriage of the deceased, which was to take place shortly. Muhammad Siddique P. W. 7 also produced a Talaqnama alleged to have been given by the appellant in Court, when his examination-in-chief was being recorded, which was allowed to be brought on the record by the trial Judge, subject to objections by the defence. Initially, in the F. I. R. It was stated that the appellant had suspected Mst.
Nasim Akhtar of evil ways which had prompted him to divorce her, which fact was not advanced at the trial. In cross-examination, Muhammad Hayat P. W. 6 admitted that no proposal had been received for the further marriage of his daughter. He further stated that the appellant was jealous of the fact that the deceased was being married to somebody else. He denied the whole of the defence case, which was put to him piecemeal in cross-examination. Muhammad Siddique P. W. 7 in cross--examination stated that he had informed the police that the appellant had divorced the deceased seven months before the occurrence, but when confront--ed with his earlier statement, it was found that the period was not mentioned. He further stated in cross-examination that he was present at the time when the divorce deed (Talaqnama) was executed, that he had not attested the same as witness, that he could not say if tire scribe or attesting witnesses of the said deed-were alive or not and that he had not produced the said deed during the investigation before the police. He denied the suggestion that the Talaqnama was fabricated and further stated that he did not even know the names of the attesting witnesses. The record reveals that though the Taiaqnama was allowed to be brought on the record, subject to objections by the defence the same was not exhibited. Further, neither the scribe nor any attesting witness was called to prove the document. In these circumstances, the Talaqnama cannot relied upon at all. It is also strange that the Talaqnama, which was state to have been written seven months before the occurrence, was not even produced during the investigation. The suggestion, therefore, of the appellant, that the deceased was not divorced, is reasonably probable. The late production of the Talaqnama on the record without any effort being made to formally prove the document, only leads to the reasonable inference that the Talaqnama is a fabricated document. No proceedings of the Union Council were also filed or proved to show that the divorce had become effective after ninety days.
In these circumstances, the factum of the divorce of the deceased does not stand satisfactorily established in this case.
11. The occurrence is admitted on both the sides. The only question, that arises is whether, after keeping in juxtaposition the case of the prosecution and that of the defence, the evidence on the record proves the case of the prosecution beyond every shadow of doubt or reasonably leads to the inference that the defence story is true or reasonably probable. The story about the deceased having been earlier divorced by the appellant or a second proposal of her marriage to somebody else having fructified, have both been rejected by me already. In these circumstances, the case of the prosecution that the appellant was annoyed over the so-called second marriage of the deceased, which was to take place shortly, and due to this motivation he killed her in broad daylight in the open bazar before everybody, cannot be accepted. It appears that the deceased was the wife of the appellant on the date of occur--rence and he saw something unusual, resulting in his losing self-control and attacking and injuring his wife. The story of the defence fits in with this; inference. 1n short, the story of the defence appears to be probable from the inferences which can fairly be drawn from the evidence on the record and the surrounding circumstances. The appellant has, therefore, been able to reason--ably establish his defence. The appellant, therefore, appears to have acted under grave and sudden provocation, seeing Ashiq Hussain (won over P. W.) with his wife coming out of the deserted haveli of Ghulam Illahi Bhatti. In these circumstances, the appellant is guilty under section 304-1, P. P. C. For the murder of Mst. Nasim Akhtar, deceased, and not under section 302: P. P. C.
12. The only question that .Now remains is that relating to sentence, The appellant has suffered four months and twenty-seven days' detention as an under-trial prisoner And three years, four months and sixteen days' detention as a convict. In these circumstances, the appellant is hereby sentenced under section 304(1), P. P. C. For the murder of Mst. Nasim Akhtar to three years' rigorous imprisonment with a fine of Rupees Two Thousand (Rs. 2,000) or in default thereof to further rigorous imprisonment for six months Likewise, the sentence of the appellant under section 307, P. P.
C. For attempt on the life of Muhammad Siddique P. W. 7 is reduced to two years' rigorous imprisonment with a fine of Rupees. Five Hundred (Rs. 500) or in default thereof to further rigorous imprisonment for three months. The sentences shall run concurrently. The fines, if realised under sections 304-I and 307 P. P. C. Shall be paid to the legal heirs of Mst. Nasim Akhtar, deceased, and to Muhammad Siddique P. W. 7 respectively, as compensation. This appeal, therefore, stands partly allowed, in terms of alteration of conviction and reduction in sentences, as stated above.