The appellant was tried along with his wife Mst. Mulkhan for the murder of Fateh Khan their co- villager. The learned Additional Sessions Judge, Campbellpur disbelieved the entire prosecution evidence but relying on the statement made by the appellant himself and Mst. Mulkhan his wife and co-accused found that the latter was not guilty and that the appellant had committed an offence under section 304, Part I of the Pakistan Penal Code. He awarded him a sentence of ten years' R. I. and a fine of Rs. 200. In default of payment of fine he was ordered to suffer rigorous imprisonment for a further period of three months.
2. The prosecution case as it unfolds itself in the F. I. R. was that there was some dispute between the appellant and his wife on one side and the deceased on the other with regard to the damage that the appellant had done to the crops of the deceased. It was the case of the prosecution that the deceased and Mst. Mulkhan had exchanged abuse and that she and the appellant came armed with hatchets and inflicted blows on Fateh Khan who died at the spot.
3. The learned Additional Sessions Judge visited the spot and found that the witnesses produced by the prosecution in support of its story were false. The State had filed Appeal No. 841 of 1970 against the implied acquittal of the appellant and the clean acquittal of his wife Mst. Mulkhan from the charge under section 302, P. P. C. By order dated 11th of February 1971 a Division Bench of this Court of which I was a member dismissed the State appeal in limine. The Bench held that the learned Additional Sessions Judge had rightly disbelieved the prosecution witnesses.
4. The conviction in this case solely hangs on the statements made by the appellant and his wife at the trial. The appellant had stated that he had seen the deceased catching hold of the arm of his wife who was raising cries. Mst.Mulkhan also gave an elaborate statement. She stated that she was filling her pitchers from the spring when the deceased came there. He put off his loin cloth and started washing it in a small pool of water near the spring. When she protested he got up and made himself naked showing his organ to her. She started walking ahead when the deceased chased her and caught hold of her near a phulla bush.
5. The learned trial Court observed in para. 14 of its judgment that Mst. Mulkhan had never stated that she had also been caught hold of by the deceased. This observation is clearly based on a factual misconception. She fully corro borated her husband in her statement in so far as he alleged that he heard her cries, and the deceased at that time had caught hold of her arm. The learned counsel submits that this factual misconception actually influenced the trial Court's mind in assessing the gravity of the offence and quantum of sentence awarded to the appellant, ft is his submission that according to the notions of the decency and the morality in this country any husband will be provoked to punish the man who tries to insult his wife and makes an aggressive amorous overture by catching hold of her arm.
6. The sole submission made by the learned counsel is with regard to the reduction of sentence. He has in this connection relied upon State v. Akbar (1). In the precedent case the accused had seen the deceased committing sexual intercourse with his unmarried sister and had killed him. The trial Court had awarded a sentence of imprisonment till the rising of the Court and the case came before the High Court for enhance ment. His Lordship the present Chief Justice dismissed the revision petition for enhancement filed by the State after a review of a number of authorities which deal with the quantum of sentence where plea of grave and sudden provocation has been accepted by the Courts.
7. There is no doubt that the provocation in the present case was both grave and sudden. It appears from the statement of Mst. Mulkhan that the deceased was a die hard bad character and the injuries on the person of the appellant indicate that he tried to fight back with him. This would have added fuel to the fire of anger which flared up within the appellant. The number of injuries on the person of the deceased shows that he had completely lost his self-control.
8. I find that the appellant was rightly convicted but the question remains as to what sentence should have been awarded in this case. In the authorities quoted in the case relied upon by the learned counsel the sentence ranged from three months to nine months where a paramour was found in flagrante delicto with a woman of the family. The present case is, however, different. Mr. Wasim Sajjad relied upon the case of Mewa v. State (2) where the accused had seen his brother's wife sitting in a cluster of Kikar trees with her paramour and after overtaking the woman had given her blows which resulted in her death. The sentence awarded in case of Mewa was three years' R. I.
In the case before me the woman out raged is the wife of the appellant. He had seen a person who according to the statement of Mst. Mulkhan had a bad reputation as a Badmash catching hold of his wife by her arm. The wife had raised a cry and had told the appellant how she had been insulted by the deceased. The provocation in this case was therefore graver than that in the case of Mewa referred to above.
9. Considering all the circumstances of the case, I feel that the ends of justice will be met if the sentence of the appellant is reduced to two years. The sentence of fine is remitted.
Sentence reduced.
(2) PLD 1958 Lah. 468 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.