MUHAMMAD AFZAL CHEEMA, J.-Mughala (27) a brother of Sadullon complainant, was tried for the murder of the wife of the latter, allegedly committed by him on the 19th of September 1966, at about 10 a. m. In the cotton field of Killa No. 22 of Square No. 39, towards the south-east of their dhari as shown in site-plan Exh. P. R. Having been found guilty under section 302, P. P. C. Mughala was awarded the lesser penalty of transportation for life by the learned Sessions Judge, Sahiwal, vide his judgment dated the 3rd of March 1967. He has now challenged his conviction and sentence in this appeal (Cr. A. 199 of 1967). The State has also filed a Criminal Revision (No. 1284 of 1967) for the enhancement of the sentence. This judgment will dispose of the Appeal as well as the revision.
2. The simple background of the case is that Mughala appellant and Sadullon complainant P. W. 2 had a third brother Agra, who was the first husband of the deceased Mst. Rajan.
On the death of Agra, to years before the present occurrence, Mst. Rajan married Sadullon P. W.
And started living with him along with her to minor daughters from Agra aforesaid. According to the prosecution, Mughala appellant claimed share in the property left by his brother Agra to which Mst. Rajan deceased did not agree.
On the 19th of September 1966, at about 10 a.m. Mst. Rajan deceased went to the fields for cutting fodder. Mughala appellant also happened to be present there and reiterated his demand for his share in the inheritance of his brother Agra. This happened in the presence of Sadullon complainant, who without apprehending anything serious himself left with a sickle in hand for cutting fodder telling Mst. Rajan deceased to weed out grass from the cotton field. While he was still at a short distance from them he heard an alarm and turning round saw the deceased being chased by the appellant with a sickle in hand. Before he could actually reach there the appellant allegedly gave to sickle blows on the head and neck of the deceased who died almost instantaneously. The occurrence was also witnessed by Fazil Lambardar P. W. 3 and Mahmood P. W.
4, who happened to be proceeding towards their lands and were attracted to the spot. All the three, namely, Sadullon complainant, Fazil and Mahmood, overpowered the appellant and snatched the sickle Exh. P. 10, from him and its handle gave way in the process. Fazal Lambardar took the appellant to the village at a distance of more than a killa from the spot and sent Sadullon com--plainant to lodge the report at the Police Station. After traversing a distance of eight miles, Sadullon P. W. Reached Police Station Shahkot, at about 1-30 p.m. And lodged the report Exh. P. A.
Which was recorded by Muhammad Shafi, Head fit; Constable P. W.
6. The Sub-Inspector being away in Chak No. 65/12-L, the F. I. R. Was forwarded to him there on receipt of which he repaired to the spot reaching there at about 5-30 p. m. The same evening. He prepared injury statement Exh. P.
H. And inquest report Exh. P. G. Of Mst. Rajan and sent her dead body under the escort of F. C.
Muhammad Iqbal P. W. 7, for post-mortem examination. The appellant was produced before him at the spot, along with the sickle Exh. P. 10, which was taken into possession vide memo. Exh. P. B.
The Sub-Inspector also got removed the blood-stained vest Exh. P. 1 and chadar Exh. P. 2 from the person of the appellant and secured them vide memo. Exh. P. D. On return from the mortuary, F. C.
Muhammad Iqbal produced before him blood-stained clothes of the deceased, dopatta Exh. P. 3, shirt Exh. P. 4, vest Exh. P. 5 and chadar Exh. P. 9, along with ornaments, chain Exh. P. 6, ring Exh. P. 7, four chhallas Exh. P. 8/1 4, which were take into possession vide memo. Exh. P. F. He got the site-plan Exh. P. ;E. Prepared by Nazar Hussain Patwari P. W. 5.
3. The post-mortem examination was conducted by Dr. Habib Ullah Medical Officer, D. H. Q., Hospital, Sahiwal, on the next morning at 10 a. m., who found it to be the body of an adult woman of an average healthy built, and vide post---mortem report Exh. P. J. Found the following injuries on the dead body:-
(1) An irregular incised wound, 4" x 2", bone deep situated transversely over the front and lower part of neck cutting thyroid gland and jugular vessel.
(2) An incised wound, 1" x --", situated obliquely on the left temporal region. It was bone deep.
The stomach contained about six ounces of fluid. The cause of death in the opinion of the doctor was shock and haemorrhage as a result of injury No. 1, which was sufficient in the ordinary course of nature to cause death. Death, according to him, had occurred within a few minutes of the receipt of the injuries and the the between death and post-mortem examination was about twenty-four hours. In cross-examination, the doctor excluded the possibility of the to injuries having been caused by a fall on a pointed object. In answer to another question, the doctor opined that the contents of the stomach showed that food had been taken by the deceased to hours before her death. He admitted the possibility of the to injuries being caused by a sickle.
4. At the trial, the prosecution case rested as on the testimony of the complainant, who was none else than the brother of the appellant, Fazil Lambardar and Mahmood of the same village, supported by the recovery of sickle Exh. P. 10 and the clothes of the appellant, vest Exh. P. 1 and chadar Exh. P. 2 which were found to be stained with blood vide Chemical Examiner's report Exh. P.
K. However, the origin of blood remained undetermined by the Serologist, owing to disinteg--ration, in respect of the appellant's vest and chadar but it was traced to human origin in case of the sickle and the earth.
5. The position taken up by the appellant at the trial was that having seen the deceased in a compromising position with one Dilawar Baghela of his village early morning the same day in the cotton field he had lost his self-control and inflicted injuries on the deceased with the sickle Exh. P.
10, which he admitted having produced before Fazil Lambardar and Mahmood. He led no evidence in defence.
6. Having placed full reliance on the testimony of the eye-witnesses and having also believed the existence of motive coupled with the fact of the apprehension of the appellant at the spot along with the weapon of offence and discarding his plea of grave and sudden provocation, the learned trial Judge convicted him under section 302, P. P. C; but keeping in view the justifiability of his demand of a share in the inheritance of his deceased brother Agra, which had been denied to him considered it a proper case for the award of the lesser penalty.
7. Learned counsel for the appellant has contended before us:
(1) That the motive as alleged by the complainant does not stand fully established inasmuch as on his own showing the entire land was in the joint cultivation of the complainant and the appellant;
(2) That from the account given by the complainant at the trial and particularly in view of the situation of the respective lands of Fazil Lambardar and Mahmood P. Ws. It does not stand to reason that the way to their lands would pass either through the land of the complainant or along it as the lands would be obviously situated in opposite directions, and as such the presence of these witnesses as the spot, who in any case, were chance. Witnesses, was extremely doubtful.
(3) That the eye-witnesses' account does not fit in with the medical evidence inasmuch as in the event of her fall, as asserted by the eye-witnesses, the deceased should have sustained some injury on the head or any other part of her body which is con--spicuous by its absence.
(4) That it does not stand to reason that having seen his wife being done to death right in front of him, the complainant should not have physically intervened to save her life and dealt blows to the appellant even though he was his brother.
(5) That the absence of any blood-stained grass from the spot as indicated by its non-recovery by the Sub-Inspector, would also make the prosecution version doubtful that at the relevant the the deceased had gone to cut grass from the cotton field at the instance of her husband.
It was contended that in view of the above circumstances and particularly for the reason that Fazil P. W. 3 was a relation of Dilawar Baghela, the alleged paramour of the deceased, and Mahmood, the other eye-witness, had said nothing about the actual occurrence during inquiry, the prosecution had miserably failed to bring home the guilt to the appellant who was entitled to acquittal.
8. Having considered the contentions raised by the learned counsel for the appellant in the light of the material on the record, we are not persuaded to find much substance in any of them. In the first instance, the fact that having been apprehended at the spot the appellant was produced before the Investigating Officer soon after his arrival, along with the blood-stained sickle coupled with the plea of grave and sudden provocation, raised by him for the first the at the trial reduce the scope of discussion into a very narrow compass, and as such the sole question to be determined is whether the circumstances can be spelt out from the evidence on the record, which could lend support to the plea taken by the appellant.
9. The first important point to be, kept in view is that a no stage prior to the trial was this plea taken up by the appellant either before the Investigating officer or the Inquiry Magistrate. As is clearly evident by a conspicuous absence of any suggestion made in this regard to the Sub-Inspector or the to eye-witnesses We are therefore, inclined to take the view that it was merely an afterthought, Again, the plea taken by the appellant finds little support from the medical evidence, which rather cuts across it inasmuch as the doctor had clearly stated in cross---examination that food had been taken by the deceased about to hours prior to her death. This certainly does not fit in with the position taken up by the appellant according to whom it was early in the morning that he had found the deceased in a compromising position with her paramour. On the contrary, it falls more in line with the prosecution version, according to which death had occurred at about 10 a.m. And in all probability, the deceased had taken her breakfast at about 8 a.m. As also stated by her husband Sadullon complainant. Yet another important factor which further militates against the plea taken by the appellant is the unhappy choice of the rendezvous of the deceased and her paramour hardly at a distance of about one Killa from the Dhari of her husband. For all these reasons, we are inclined to think that the plea of grave and sudden provocation was merely an afterthought.
According to Fazil Lambardar, who appears to have no motive to depose falsely against the appellant, she was a woman of chaste character. Even otherwise, although there is no limit to human depravity, we are inclined to think that in the absence of any indication on the record to the contrary, the deceased being the mother of to children and having taken a second husband, with whom she was living happily, would not have indulged in such romances as alleged against her.
10. Once the plea of grave and sudden provocation, as raised by the appellant, is excluded from consideration, the other contentions raised by the learned counsel for the appellant would lose much of their relevancy inasmuch as that was the only important question to be determined, which has been found against the appellant. Nevertheless, even otherwise, having considered the contentions raised by the learned counsel, we have not been able to find much substance in most of them the ultimate analysis the result remains the same.
11. As regards the point that in view of the respective situation of the lands of Mahmood and Fazil P.
Ws., as given by Sadullon complainant in his statement at the trial, they could not have been passing either through his land or alongside of it, no doubt we find that some confusion does exist in the description given by Sadullon in regard to the respective situation of the lands of these P. Ws.
Nevertheless this point was not got further clarified by the defence and, in fact, the most important witness available to the defence in this regard was Nazar Hussain Patwari P. W. 5, to whom no question whatever was put in this regard. In the circumstances, therefore, we have every reason to believe that as asserted by Fazil and Mahmood P. Ws., they were passing along the land of the complainant at some distance on their way to their respective fields. Again, the absence of any marks of injuries on the person of the deceased indicating a fall has no force inasmuch as such an eventuality is not always a must and one does not precisely know the state of softness or hardness of the soil on which the deceased fell or the exact part of her body which actually had the first impact.
11. Of course, we find considerable substance in the conten--tion that so far as Mahmood P. W. 4 is concerned, while examined during inquiry, he clearly gave an impression as if he was not an eye- witness and had been subsequently called by the police after the occurrence when he joined the investigation. This position was obviously in conflict with the position taken by him before the police as also at the trial. In the circumstances, we find that implicit reliance cannot be placed on the testimony of this witness but even if it is completely excluded from consideration we are clearly of the view that the result would remain unaltered. We are fully conscious of the law laid down by their Lordships of the Federal Court in Safdar Ali's case (PLD 1953 FC 93) to the effect, firstly that under section 105 of the Evidence Act the burden of proof though shifting on the accused would not lie on him as heavily as it always does on the prosecution and secondly, that the rejection of his plea of grave and sudden provocation would not per se be good enough to justify his conviction which has to be based independently on the evidence otherwise sufficient to bring home the guilt to the accused. Having applied these standards to the facts of the instant case we are satisfied that the conviction of the appellant was justified '~ on the basis of evidence brought on the record.
12. The upshot of the discussion, therefore, is that the appeal fails and is hereby dismissed.
13. As regards the Criminal Revision filed by the State for the enhancement of the sentence from transportation for life to that of death, having considered the facts and circumstances of the case, and particularly in view of the justifiability of the appellants' claim to a share in the inheritance of his deceased brother Agra, coupled with the interregnum of four and a half years since the occurrence, we are not inclined to consider the question of enhancement of sentence and accordingly dismiss the Criminal Revision.