MUHAMMAD AFZAL CHEEMA, J.-Ghulam Hussain (38) Mirasi by caste was convicted by the learned Sessions Judge, Sargodha, for the murder of his sister Mst. Sultan Bibi a T. B. Patient, on the 13th of September 1965, at about rotiwela, in village Mitha Tiwana, District Sargodha. The admitted fact that the deceased after having obtained divorce from her husband eloped with his younger brother was considered a relevant circumstance in the award of the lesser penalty of transportation for life. The convict has challenged his conviction and sentence before us.
2. The short background of the case is that Gul Jahan complainant was married to the sister of the appellant in exchange for the former's sister who was married to the latter. The rela--tions between the appellant and his wife wore no longer cordial and as a result of the estrangement Mst. Feroze Bibi, the wife of the appellant, started living with her brother. Mst. Sultan Bibi, deceased, who was the younger sister of the wife of Gul Jahan, complainant as also of the appellant after having obtained divorce from her previous husband Ghulam Hussain son of Allah Ditta, eloped with the latter's younger brother Ghulam Farid as stated earlier. This happened about two years prior to the occurrence. It is in evidence that the deceased was a T. B. Patient and had become weak and emaciated. Presumably on this account, on the 10th of September 1965, Ghulam Farid left her with the complainant. Having got an inkling of this the appel--lant visited the house of Gul Jahan, complainant, on the morning of the 13th of September 1965, on the pretext of a patch up with his wife who had left him as a result of the estrangement. Ghulam Hussain appellant, and Gul Jahan complainant, sat in 1972 the house for some time, when at rotiwela the latter' wife left for the oven to bake breads. After a short while the complainant also went out to urinate at a short distance leaving the appellant and the deceased alone in the house. He suddenly heard an alarm and rushed to his house. In the meantime, Falik Sher (P. W. 7) and Maula Bakhsh (P. W. 8) also arrived in his house. All the three saw the appellant strangulating the deceased. On seeing them he tried to make good his escape but was apprehended inside the house. The deceased had already expired.
The motive alleged was that she had eloped with the younger brother of her husband which was not relished by the appellant. Gul Jahan, complainant accompanied by Falik Sher and Maula Bakhsh the two other eye-witnesses repaired to Police Station Mitha Tiwana lying at a distance of three furlongs from the spot and produced the appellant before Sher Muhammad Muharru Head Constable (P. W. 9), who arrested him.
3. The post-mortem examination on the dead body of Mst. Sultan Bibi was conducted by Dr. Muhammad Asghar, Medical officer, Khushab, who found the following injuries on it.
(1) A bruise mark -- x -- " on the right side front of the neck 2" below right ear lobule and 1 -- " from mid line of the neck.
(2) Another bruise mark -- " x -- " on the left side front of neck 2 -- ' below the left ear lobule and 1 - - " from mid line of the neck.
On internal examination of the chest, the larynx and trachea were found to be congested. The right lung was also congested and gave clear indication of tuberculosis which appeared to be in an advanced stage. The stomach contained 4 ozs. Of milky fluid, the intestines contained faceal matter and the bladder was empty. The dead body was found to be that of a thin and emaciated woman. The cause of death in the opinion of the doctor was asphyxia due to strangulation. Injuries Nos. 1 and 2 obviously caused by the pressure of both heads on the neck of the deceased were declared dangerous to life and sufficient in the ordinary course of nature to cause death. Death had occurred within five minutes, time between death and post-mortem exami--nation which had been conducted on the 13 of September 1965 at 5-00 p. m. Was within 12 hours.
4. At the trial the prosecution case rested on the testimony of the three eye-witnesses, namely, Gul Jahan, complainant, (P. W. 6), Falak Sher (P. W. 7) and Maula Bakhsh (P. W. 8), supported by the medical evidence as well as that of motive. No specific plea was raised by the appellant either during enquiry or at the trial except a denial simpliciter. Two mutually exclusive suggestions were however made to the prosecution witnesses during cross-examination to bring the case within the purview of Exception 1 to section 300, P. P. C. Which deals with the plea of grave and sudden provocation. The suggestions were, firstly, that the appellant had actually seen the deceased in a compro--mising position with her paramour Ghulam Farid, and secondly, that on being reprimanded by the appellant, the deceased challenged him once again to elope with Ghulam Farid. Of course the suggestions were denied.
5. A perusal of the impugned judgment shows that two-fold argument was raised on behalf of the defence. Firstly an attempt was made to bring the case within the scope of grave and sudden provocation and secondly it was contended on the basis of the medical evidence that in the absence of swelling of the face or rupture of the larynx and trachea, it was evident that only a mild force was applied by the appellant which would detract from his intention to kill the deceased.
Having overruled the contention and having also placed reliance on the testimony of the prosecution witnesses the learned Sessions Judge, came to the conclusion that the offence had been fully brought home to the appellant but contented himself by awarding the lessor penalty of transportation for life on the ground of "ghairat".
6. Learned counsel for the appellant has contended before us that from the statements of the so- called three eye-witnesses it is abundantly clear so also held by the learned Sessions Judge that none of them had actually seen the act of strangulation although they had reached almost immediately after the occurrence, and having apprehended the appellant inside the house of the complainant they actually produced him before the police at the time of the lodging of the report, and as such one does not really know what precisely transpired between the appellant and theth deceased which led to the latter's strangulation. Finding it otherwise difficult to pick holes in the statements of the three eye-witnesses the learned counsel has frankly conceded that in a single accused case of broad-day light occurrence like the instant one, it could be none else than the appellant who was responsible for causing the death of Mst. Sultan Bibi. However, proceeding on the assumption that none had actually seen the act of strangulation being committed or what in point of fact preceded the occurrence actuating the appellant to go to that extent, the learned counsel contends that the possibility of the appellant having killed her under grave and sudden provocation cannot be excluded in the circumstances. In further support of this argument it is contended that the alternative hypothesis of the appellant having innocently visited the house of the com--plainant with a view to take back his wife cannot be excluded either and in all probability that was the real fact of the matter. Support is also sought to be gained from an admission of the complainant himself that on arrival the appellant told him that he had come with the object of a patch-up with his wife and that it was at the former's request to stay for the night that he presumably stayed on. The argument has also been reiterated before us that the appellant did not apply sufficient force with the object of killing as evidenced by the post-mortem report and in all probability he did not know that the deceased was suffering from an advanced stage of tuberculosis.
7. In so far as the last contention raised on behalf of the appellant is concerned we have no hesitation in straightaway repelling it. It is in evidence that before her elopement with Ghulam Farid, the deceased had been admitted to T. B. Hospital, Sargodha, as an indoor patient for quite sometime and the incident of elopement took place after she had been discharged from there.
Even otherwise it does not stand to reason that having seen the deceased in the house of the complainant on his arrival, the appellant could not have been able to see her tell-tale face as a weak and emaciated failing woman giving clear indications of an advanced stage of tuberculosis.
We have, therefore, every reason to believe that he knew that h s deceased sister was an ailing woman who had relapsed into tuberculosis. However, regarding the other contentions we do not find them without force. Having been taken through the statements of the three so-called eye- witnesses we are clearly of the view, as rightly held by the learned Sessions Judge, that they had not seen the actual act of strangulation though all of them had reached almost immediately thereafter. As such what transpired between the appellant and the deceased before the former strangulated her would be any body's guess. Thus in view of the fact that the appellant also used to visit the house of the complainant previously, the possibility of this last visit also having been actuated by a similar bona fide intention cannot be ruled out. The statement of the complainant himself to the effect that he requested the appellant to stay for the night to take his wife with him is not without significance. It is well established that where two alternative interpretations of a particular situation are possible the one favourable to the accused has to be preferred. It is equally well settled that even if a plea has not been specifically raised by an accused in his defence, it shall not be denied to him if it can otherwise be reasonably spelt out from the surrounding circumstances. Reference may be made to Safdar Ali v. Crown (PLD 1953 FC 93). We are thus inclined to hold that the pos--sibility of the deceased having strongly reacted to a reprimand by the appellant and having gone to the extent of threatening and challenging him that she would again elope with her paramour whereupon the appellant might have flown into a rage is neither far fetched nor unreasonable.
8. Proceeding on this assumption, it now remains to be considered as to whether in circumstances like these where a brother having reprimanded his sister on the latter's elopement is confronted with a challenge equally provocative would be entitled to the protection of Exception I to section 300 of the Pakistan Penal Code on the plea of grave and sudden provocation. Reliance is placed by the learned counsel in this regard on Muso v. The State (PLD 1960 Kar. 966). In this case the admission of her immoral character by the deceased woman before her, accused brother was considered good enough to bring the latter's case within the scope of Exception 1 justifying his conviction under section 304. The learned counsel has also referred us in this regard to Ahmad Din alias Ahmi v. The State (PLD 1967 Lab. 649), wherein the accused having remons--trated with his wife for carrying on with her paramour on being told by her that she was going with him then and there killed her at the spur of the moment and the case was found to be covered by Exception 1 to section 300 thus falling within the mischief of section 304, P. P. C. Lastly some assistance is also sought from Muhammad Saleh v. The State (PLD 1965 SC 366). In this case the accused having found his sister missing from the cot during night went in search of her armed with a hatchet and having seen her with her paramour in a compromising position in a wheat field killed both of them and voluntarily appeared before the police. Their Lordships of the Supreme Court did not agree with the view taken by the High Court that the appellant by pursuing his sister had himself sought a provocation and on that account was not entitled to the benefit of grave and sudden provo-- cation. Consequently the conviction was altered from one under section 302 to that of under section 304 (1), P. P. C.
9. From the above authorities it is clear to us that in the circumstances of the case the appellant could be deemed to have acted under grave and sudden provocation. Accordingly the c conviction under section 302, P. P. C. Is altered to one under section 304 (1), P. P. C. This brings us to the question of sentence.
10. The occurrence took place on the 13th of September 1965. Having continuously remained in detention, the appellant was convicted on the 12th of May 1967, that is, about three years and nine months from now. We are, therefore, of the view that the sentence already undergone by him would be good enough to meet the ends of justice. He should, therefore, be released from jail if not required in any other case. The appeal is accepted to this extent.