' MAZHARUL HAQ, J.-Sabir Ali (25) was tried for the murder of his wife Mst. Salma (18) and for having murderously assaulted his sister-in-law Mst. Anwari. On 28-4-1982 Sessions Judge, Mang, convicted him for the murder and sentenced him to death with a fine of Rs, 3,000 out of which Rs, 2,000 if realised was ordered to be paid as compensation to the heirs of the deceased. He was further convicted under section 324, P. P. C. And sentenced to two years' R. I. With a fine of Rs, 1,500 in default to undergo three months' R. I. Out of the fine if realised Rs, 1,000 was ordered to be paid as compensation to M.4. Anwari. The appeal of the convict and the connected murder reference are before us.
2. About a year and three months before the occurrence in this case, Mst. Salma was married to Sabir Ali. A year later. Mst. Salma came over to the house of her father, two months thereafter a son was born to her. According to the prosecution at 12 noon on 23-5-1981, Muhammad Rafiq (informant), his daughters Mst. Salma (deceased), Mst. Anwari and Qalandar Bakhsh step-father of the informant were in their house situate in Mohallah Rehmanpura, Chiniot. Sabir Ali, appellant, who lived in Gujranwala appeared there and declared that he had come to take away his wife. P.-W.
Muhammad Rafiq told him that it would not be possible for him to send her straightaway because he had not yet prepared the clothes and other articles which he was her as it was customary on such occasions. He asked the appellant to wait for some days. Mst. Salina was cooking in the courtyard of the house. On the refusal of his father-in-law to send Mst. Salma, the appellant straightaway attacked her with a knife inflicting the first injury on her left breast, thereafter, she fell.
He continued the attack and in all gave her seven injuries on different parts of her body. Her sister Mst. Anwari tried to intervene but Sabir Ali opened the attack on her too. She warded it off by raising her hands and got injured on the left hand, she too fell down and was given knife blows on her leg.
P. Ws. Rafiq and Qalandar Bakhsh raised an alarm. Sabir Ali, appellant, fled away with the weapon.
Mst. Salma died at the spot. Covering a distance of three furlongs, P. W. Rafiq reached Police Station Saddar Chiniot and made a report Exh. P. G. To P. W. 8 Shahid Ahmad, A. S.-I., at 12-20 p.m.
The same day. After registering the case, the A. S.-I. Went to the place of occurrence, prepared the necessary documents and sent the dead body for its post-mortem examination.
3. P. W. I Dr. Nazir Ahmad, M. O. T. H. Q. Hospital, Chiniot on 23-5-1981 at 1-30 p.m. Examined Mst.
Anwari, P. W. And observed two sharp-edged weapon simple injuries ; one on the lower part of her left leg and the other on the left hand.
' Same day at 5 p.m. The doctor held the autopsy on the dead body of Mst. Salma and found seven incised wounds involving left breast, auxilla, abdomen, and back right lumber region. The weapon had pierced through the pleura, left thigh, heart, peritoneum, small intestines and the liver. In his opinion, death was instantaneous due to shock and haemorrhage caused by injuries to vital organs i,e, lung, heart, liver and the small intestines.
4. P. W. 8 Shahid Ahmad, A. S.-I., arrested Sabir Ali, on 30-5-1981. On 3-6-1981, he led the A. S.-I. To the recovery of Chhura P. 4 from the graveyard of Hafiz Diwan. It was made into a sealed parcel through memo. Exh. P. J. Attested by P. W. 6 Muhammad Rafiq (informant), the Investigating Officer and Qalandar Bakhsh (given up as unnecessary). The weapon was sent to the Chemical Examiner on 25-7-1981. The Serologist found it to be stained with human blood. After completing the investigation, Sabir Ali was tried in due course.
5. At the trial, denying guilt, Sabir Ali said that the case was foisted against him and that in fact none had seen the occurrence. He added that by putting up self-suffered injuries, P. W. Mst. Anwari, stage-managed her presence at the spot. Further, according to the appellant, his wife Mst. Salma was an immoral woman, therefore, he had turned her out of his house about six months before the occurrence. Similarly his brother Asghar Ali had turned out his wife Mst. Anwari P. W. He produced Exh. D. B. Copy of the plaint in a suit filed by Mst. Anwari for the dissolution of her marriage against her husband Asghar Ali. In this suit, she had blamed the appellant for the strained relations with her husband. As according to her, on appellant's instigation, her husband had turned her out of the house.
6. Relying on the evidence of the eye-witnesses and that of the recovery of the weapon, trial Court came to the conclusion that the prosecution case was satisfactorily proved against the appellant.
7. Criticizing the finding, learned counsel for the appellant contended that all was not well with the family of the informant. His mother had remarried after the death of his father and lived with her second husband P. W. Qalandar Bakhsh (given up as unnecessary) elsewhere and not in the same house with the informant and his family. Admittedly, at the time of occurrence, informant's mother was not present, it was, therefore, suggested to him that Qalandar Bakhsh and his wife lived at a distance of 2/3 furlongs away from his house but the suggestion was denied by him. On the other hand, his own wife Mst. Asia i,e, the mother of the deceased was also not present in the house at the time of the occurrence. Defence's suggestion was that she was living in adultery with someone.
The informant, however, denied it. Nevertheless, the circumstances appearing in the evidence show that Mst. Asia was not living with her husband and was no longer interested in her children either because she never came home even after the murder of her daughter. Defence also suggested that Mst. Salma (deceased) was also a woman of easy virtue. Her father, however, denied the suggestion that she was carrying on with one Shubrati and the informant had brought her back home from him. On the basis of these circumstances appearing in the evidence, it was contended that the prosecution concealed the fact that appellant's wife was living in adultery and when the appellant came to fetch her, there was no one in the house except his wife and her paramour, as such he reacted violently. It was further argued that the story put up by the prosecution did not appeal to reason because had all been well, then there was no reason for the appellant to have attacked his wife, simply because his father-in-law did not send Mst. Salma with him straightaway.
Moreover, the informant did not refuse to send appellant's wife. The prosecution case is that the informant said to the appellant that he would send his daughter with him after 2/3 days because in the meanwhile he had to prepare certain articles for her, as it was customary, after birth of a child and this per se could not have provoked the son-in-law. On the contrary, he should have been pleased. We have considered this aspect of the case and are of the view that in the light of the circumstances mentioned above, in all probability, the background of the killing was something else. Learned counsel for the appellant would like us to believe that it was a case of grave and sudden provocation. In support of which, it was argued that at the time of the post-mortem, vaginal swa bs were obtained for detection of semen and the sealed parcel was handed over by the doctor to the foot constable but it was never sent to the Chemical Examiner for fear of detection of semen. True, the Investigating Officer admitted that a parcel was received by P. W. 4 Sarfraz Khan, F. C. As it is mentioned in the post-mortem report but the constable never handed it over to him. Besides this admission, there is nothing in the evidence to show that the appellant had seen his wife in a compromising position with someone in the house of her father. In reconstructing the scene of crime, a Court cannot imagine a situation which does not arise out of the evidence and the circumstances of the case. The disappearance of the parcel per se would not mean that it was deliberately withheld and destroyed during investigation. It is noteworthy that P. W. 4 Sarfraz Khan Constable was never questioned about the parcel. Although, the doctor who held the autopsy appeared as the first witness in the case and was questioned by the defence that he did take vaginal swa bs and handed over its parcel to the constable but the constable who appeared thereafter, was never questioned about it. From the statement of P. W. 2 Allah Ditta, Moharrir of the Police Station, it appears that he was handed over only two sealed parcels in this case i,e, of the blood-stained earth and the weapon which were later sent to the Chemical Examiner. It appears that the parcel of the swa bs never reached the Chemical Examiner, therefore, it cannot be presumed that Chemical Examiner's report would have been positive. Had the parcel been sent to the Chemical Examiner and had his report been withheld then a presumption could have been drawn in favour of the defence. However, on the other hand, there are no circumstances in the evidence of this case in support of the argument that it was a case of grave and sudden provocation. Presence of the informant and Mst. Anwari who was injured in the occurrence also rules out the possibility of the presence of a stranger in the house with appellant's wife. This is also not the case of the appellant in his statement at the trial nor is there any suggestion to the witnesses that the appellant had surprised his wife and her paramour True, he considered her immoral but this per se was not enough to bring the case within the exceotion. On the contrary, appellant's statement at the trial was that because his wife was an immoral woman, therefore, he had turned her out of his house six months before the occurrence and that he had been falsely roped in. In view of his statement and the reasons given above, the argument has no force. We, therefore, cannot hold that it was a case of grave and sudden provocation.
8. No doubt prosecution case's weakness is obvious i,e, on informant's refusal to send Mst. Salma straightaway and his request to the son-in-law to wait for a couple of days are not enough circumstances to enrage him. In all probability, the refusal may have been provocative and something may have also happened between the appellant and his wife which appear to have been concealed. In this view of the matter, while dismissing the appeal and maintaining the conviction, we are not inclined to confirm the death sentence which is substituted for life imprisonment. The sentence of fine is reduced to Rs, 2,000 which shall be paid as compensation to the heir of the deceased. The sentence of imprisonment on the count under section 324, P. P, C. Is maintained. The sentence of fine is reduced to Rs, 1,000 which shall be paid to the injured witness as compensation. Both the sentences shall run concurrently. The benefit of section 382 (b), Cr. P. C.
Shall also be extended to the convict.