' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 186/81 and the connected Murder Reference No, 19/82 arise from the judgment of learned Additional Sessions Judge, Gujrat whereby he on 8-10-1981 convicted Mehdi appellant aged 16 years under section 302, P.P.C. For the murder of his wife Mst. Shehnaz and sentenced him to death and a fine of Rs, 5,000 in default thereof one year's R.I. With the direction that the fine when recovered half of it be paid to the legal heirs of the deceased.
2. The occurrence took place on 29-1-1981 at Rotiwela inside a Kotha of the Dera of the father of the appellant one mile away from village Mianwal. The F.I.R. Exh. P.E. Was lodged by Ghulam All P.W .5, the father of the deceased on the same date at 2.00 p.m. At P.S. Kuthiala Sheikhan and was recorded by Muhammad Anwar S.I. P.W.
7. The distance between place of occurrence and the police station is 6 miles.
3. The motive as alleged by the prosecution was that Mst. Shehnaz deceased was married to Mehdi appellant two years prior to the occurrence and for six months before the occurrence, the relationship between the spouses were strained as the appellant wanted to contract second marriage with the daughter of his maternal uncle Nazra. The deceased was not only disagreeable but also created hurdle in second marriage of the appellant.
4. The main occurrence, as stated by the prosecution is that on 28-1-1981 i,e, a day earlier to the occurrence Mahla P.W. 4 informed Ghulam All P.W. 5, the father of the deceased that he had gone to the village Mianwal and met Mst. Shehnaz who sent message through him that she was being maltreated by the appellant. Upon this Ghulam All P.W.5 and Muhammad Khan P.W. 6 visited the house of Mst. Shehnaz and stayed night over there. Ghulam Ali P.W. 5 asked the appellant to behave properly with his wife to which he resented. On the eventful way, the appellant left for his Dera at morning time. Mst. Shehnaz after serving breakfast to her father Ghulam Ali P.W. 5 and Muhammad khan P.W. 6 took meals for her husband/appellant to his Dera. After some times - Ghulam Ali P.W. 5 and Muhammad Khan P.W. 6 also left for Dera. When they reached near the Dera, they heard cries of the deceased coming from inside the Kotha of the Dera. They rushed and saw that the appellant was strangulating Mst. Shehnaz with scarf. They got Mst. Shehnaz rescued who fell unconscious.The witnesses caught hold of the appellant. They placed Mst. Shehnaz on a cot but she succumbed to the injuries immediately. Leaving Muhammad Khan P.W. 6 to escort the dead body and the appellant, Ghulam Ali P.W. 5 left for police station to lodge the report.
5. On 30-1-1981 at 7-00 a.m. Dr. Nazir Ahmad Anwar, P.W. 1 conducted post-mortem examination on the dead body of Mst. Shehnaz and found following injuries.
"(1) A contusion 1 c.m. x 1 c.m. Over the left nostril.
(2) A contusion 1 c.m. x. 1/2c.m., 1" lateral to left eye.
(3) Five contusions each 1 c.m. x c.m over the left cheek.
(4) Irregular contused area about 5 c.m. Wide around the neck more marked over the front of the cheek, below the level of epiglottis (pharynx). On dissection the subcutaneous tissues of the neck showed acchymosic."
' In his opinion, the death occurred due to strangulation. The probable duration of death was within 20 minutes of strangulation and between death and post-mortem was 18-24 hours. The doctor took viginal swa bs which were sent to the Chemical Examiner for examination. The Chemical Examiner's report Exh. P. B reveals that the swabs were stained with semen.
6. Muhammad Anwar S.I., P.W. 7 reached the spot on the same day at 3.30 p.m. And arrested the appellant from the spot. The appellant produced scarf Exh.P.1 which was taken into possession vide memo. Exh. P.D. Attested by Mahla P.W. 4 and Ahmad Khan (not produced).
7. In order to prove its case prosecution examined 9 witnesses.Ghulam Ali P.W. 5 and Muhammad Khan P.W. 6 gave the ocular account of occurrence. Ghulam Ali P.W. 5 stated that Mst. Shehnaz deceased was married with the appellant about two years before the occurrence. They lived happily for about 11 years but six months prior to the murder, the relations became strained because the appellant wanted to marry the daughter of his maternal uncle Nazra to which the deceased was creating hindrance. He further stated that a day before the occurrence Mahla P.W. 4 came to him at Deegarwela and conveyed him the message of Mst. Shehnaz. She was being maltreatd by her husband,to he went of village Mianwal alongwith Muhammad Khan P.W. Reaching here at about Isha time. He adivsed the appellant not to maltreat his wife but he felt ill. On the next morning the appellant went to the attle shed at a distance of one mile from his house. Mst.
Shehnaz prepared meal and took the same to the cattle Dera for her husband/ appellant. After some time, he and Muhammad Khan went towards that Dera. Reaching near the Dera, they heard cries from inside the Kotha.
' They rushed inside and saw that the appellant had put the scarf around the neck of Mst. Shehnaz Begum and was strangulating her. They got her rescued. Mst. Shehnaz fell on the ground in unconscious condition. They placed her on a cot but she expired there. They then caught hold of Mehdi appellant at the spot. Leaving behind Muhammad Khan to guard the dead body and the appellant, he went to police station. Muhammad Khan P.W. 6 supported his statement in all material particulars. Mahla P.W. 4 and Muhammad Anwar S.I., P.W. 7 stated that scarf Exh. P.1 was produced by the appellant.
8. When examined under section 342, Cr.P.C., the appellant denied the motive part of the occurrence and the presence of the eye-witnesses. He admitted to have caused the death of his wife. He, however, pleaded grave and sudden provocation. In reply to the question, As to why the case against him? He stated:- "My marriage took place with Shehnaz about two years before the occurrence. After the marriage I found myself unable to perform the sexual intercourse and she taunted me that you are impotent.
For some time I tried to get myself treated but I was not able even then to perform the act. I asked my father-in-law that as I was not able for the marital obligations so she should get the divorce from me because due to this physical defect my wife had gone astrayed and she had developed illicit relations with other persons of the village. My father-in-law did not agree to it because he considered it an insult to get a divorce of her and said go on with your treatment. Thereafter out of shame 1 never went near my wife and used to remain at the Dera where the cattle were kept. My mother often complained that Mst. Shehnaz was absent at night time. I protested with her but she always replied that you are suspecting her character on the basis of your own weakness. On the day of occurrence I had left my Dera for getting my buffalow covered because a shebuffalow was in heat. I returned before noon tathered my buffalow, came in the cattle shed to get fodder and suspected somebody in the next room, I looked into the small window and found one Nawaz and my wife in a compromising position. They saw me and when I came through the Haveli towards the living room, Nawaz had already ran away Mst. Shehnaz was putting on her Shaiwar. I lost my control and straightaway caught her by throat and after lifting her threw her on the ground. On falling she became unconscious. Thereafter, I told my uncle, who was living in the nearby Dera and he found her almost dead. We sent for my father and went to the P.S. Khuthiala Sheikhan, where I narrated the whole story with the S.I., who accompanied us in the Dera and sent for the father of the deceased from village Kadhar and in collusion with that he has converted the real facts into this concocted story. I never intend to kill her and what I did was out of sudden and grave provocation, because I found the proof of her illicit connections which my mother was complaining for many times against her."
' In defence no witness was produced.
9. The learned trial Court believing motive, the ocular evidence and the recovery of scarf from the appellant, found him guilty of murder of Mst. Shehnaz and convicted and punished him acccordingly.
10. Learned counsel for the appellant contended that Ghulam All and Muhammad Khan had not seen the occurrence and that the occurrence in fact took place in the manner and circumstances as stated by the appellant. On the other hand, the learned counsel for the State while suporting the judgment of the trial Court maintained that the eyewitnesses having no ill-will against the appellant are quite dependable witnesses, and as such, an offence of murder punishable under section 302, P.P.C. Is made out against the appellant.
11. We have considered the arguments advanced by the learned counsel for the parties with care.
Since it is a case of two versions, we propose to examine the prosecution evidence first so as to come to an independent finding as to the truth or falsity of the prosecution case and would then discuss the confessional statement made by the appellant by placing the same injuxtaposition with the prosecution case, its evidence and circumstances appearing in the case. From the state of affairs, it is very much obvious that the rate of the prosecution case hinges upon believing/disbelieving the two eye-witnesses namely Ghulam Ali P.W. 5 and Muhammad Khan P.W.
6 because if they are disbelieved then the alleged motive and the recovery of scarf which being not blood-stained is otherwise of no consequence would not advance the prosecution case any further. We find that there are reasons to doubt that they in fact witnessed the occurrence, inasmuch as, they are not resident of the locality where the murder took place; that they live in village Kadhar; that after having given advice to the apppellant on the preceding night, the eye- witnesses had no business to go to the place of occurrence which was a mile away from the village where they had stayed the night; that unless the nature had pre-arranged that the eye- witnesses would reach the place of occurrence at the nick of time far away from their residence, their presence on the spot does not appear to be believable and that there is no circumstantial guarantee of their presence on the spot at the time of occurrence. In this view of the matter, it would be in accordance with the safe administration of justice in criminal cases to exclude the statements of the eye-witnesses. After having excluded the statements of the eye-witnesses, the statement of the accused/appellant that he caused the death of the deceased under grave and sudden provocation in the circumstances stated by him in his statement under section 342, Cr.P.C., alone remains in field. Even if, the presence of the eye-witnesses and their version that they were attracted to the spot which was inside a Kotha on hearing the cries of the deceased, is accepted, it would at the most would make out a case of man-slaughter, inasmuch as,they had not seen the origin of the occurrence and the circumstances preceding the opening of the attack by the appellant on the deceased. Since when the P.Ws. Reached near the Kotha, the attack on the deceased had already started, therefore, the possibility that the paramour Nawaz might have run away before the eye-witnesses could see him, cannot be excluded. Since there is no direct or indirect evidence to prove circumstances of the murder, therefore, the words of the accused appellant as a whole have to be believed and there is no other alternative. Having judged the matter from all angles, we find that there is a reasonable possibility of the existence of grave and sudden provocation making the defence version as a whole reasonably true.
12. For what has been discussed above, the appeal is partly accepted. The conviction and the sentence of the appellant under section 302, P.P.C. Is set aside, the same is altered to section 304-1, P.P.C. And the appellant is, sentenced to 3 years' R.I.
' The sentence of death is not confirmed.
Appeal party accepted.