' Iqbal (30) son of Rabnawaz has filed appeal against the judgment dated 23-6-1985 of Additional Sessions Judge, Jhang, whereby learned trial Judge convicted him under Section 304 Part-I P.P.C.
And sentenced him to undergo R.I. For 10 years plus to pay a fine of Rs,2,000 in default whereof to suffer further R.I. For one year.
2. F.I.R. In this case was lodged at Police Station Shorkot, district Jhang on 17-4-1984 at 3.30 a.m. By Muhammad Nawaz.
' According to F.I.R. Mst. Mumtaz Bibi, sister of the complainant was married to the appellant about a year before the occurrence. She remained in his house for some time but then returned to the house of her parents on account of differences with the appellant. On 16-4-1984, Mst. Mumtaz Bibi was sent with the appellant on his having approached her parents, alongwith Muhammad Fazel and Allah Dotta respectables. During night following the same day, the complainant went out of the house for easing himself in the fields. Hearing hue and cry of his sister he went to her house.
Ghulam Farid and Abdullah P.Ws. Who were present around there, in connection with irrigating their fields, also reached the house of the deceased. They saw the appellant giving kassi blows to the deceased, while she was lying on the ground. They overpowered the appellant and snatched the kassi from him. Mst. Mumtaz Bibi died on the spot. Leaving the appellant in the custody of Allah Ditta and Muhammad Fazel, the complainant went to lodge the report.
' It is recorded in the F.I.R. That on query by Allah Ditta and Muhammad Fazel, the appellant told them that he had woken up his wife Mst. Mumtaz Bibi for cohibition but she had refused and had persisted in her refusal even on his insistence and that feeling provoked he had first dragged her from the cot and when she had tried to raise alarm, he had pressed her neck and on her becoming unconscious, he had given her Kassi blows.
3. Allah Bakhsh, S.I. /S.H.O. After recording the F.I.R. Went to the spot. He despatched the dead body for post-mortem examination after preparing necessary documents, and secured blood-stained earth therefrom The appellant was arrested by him. Blood-stained Kassi, recovered from the appellant was taken into possession vide memo Ex. PG. Bloodstained bedding and clothes were also taken into possession by the S.H.O.
4. At the trial prosecution had examined nine witnesses in all. Dr. Abdur Razzaq who had performed autopsy was examined as P.W.5. He had noted fifteen injuries in all, which included abrasions and incised wounds. The doctor opined that the deceased had died due to the shock and haemorrhage, as a result of injury No,1 which has been described as follows:- "Multiple cuts on the front of neck at the level of thyroid cartilage. The thyroid cartilage had been cut and the cuts were in the area of 15 x 8 c.m. There was cutting of mussles of the front of neck.
There was multiple cut on the tracheae. It had been cut into many ieces. There were cutting of the major blood vessels of the neck. The underlying cervical vertebra under the injury were also cut alongwith spinal cord. The face, neck, and chest were stained .With blood!'
5. The ocular account was narrated by Muhammad Nawaz P.W.7 and Abdullah P.W.8.
' Muhammad Nawaz re-narrated the facts given by him in the first information report. Abdullah P.W.8 corroborated his statement in so far as, it pertained to the actual occurrence. He also stated about having witnessed the recoveries from the spot, including bloodstained 'kassi P.7, snatched from the appellant.
6. The appellant during his statement under section 342 of the Code of Criminal Procedure denied the prosecution case as a whole and pleaded innocence. In answer to question, 'why this case against you', he stated as follows:- "Mst. Mumtaz Bibi was my wife. I had all the love for her. On the night of occurrence I had gone from my fields with a kassi. I placed that kassi near my cot. I wanted to have a sexual intercourse with my wife. On my repeated requests she did not agree to my proposal, rather she started abusing me and taunted me that I was impotent and that she would get a divorce from me and would marry Fazil son of Murad Mangan whom she said, she loved desperately. I lost all my balance and control and got highly provoked over the conduct and confession of un-chastity of my wife and I pikced up a kassi lying therby and under grave and sudden provocation caused injuries to her. I then myself appeared before the Police. None of the P.Ws. Namely Muhammad Nawaz, Farid or Abdullah were present near the spot."
7. Learned counsel for the appellant did not challenge the conviction of the appellant under section 304, Part I, P.P.C. In view of the admission of occurrence by the appellant himself. He, however, vehemently argued that in view of the grave provocation given by the deceased to the appellant, the sentence of imprisonment of 10 years R.I. Was excessive. He pleaded that the sentence of 5 years R.I. Plus the sentence of fine awarded by the trial Judge, in this case, will meet the ends of justice.
8. Learned counsel appearing on behalf of the state argued that the sentence awarded by the trial Judge does not call for any interference.
9. I have gone through the impugned judgment and have considered the reasons noted by learned trial Judge for discarding statement of the two eye-witnesses. The reasons recorded in this regard, are based on correct appreciation of evidence and do not call for any A interference: Conviction of the appellant recorded by the learned trial Judge on the basis of the' statement made by the appellant and the plea taken by him, therefore, does not call for any interference. The same is maintained.
' Coming to the quantum of sentence, I feel inclined to agree with the argument of learned counsel for the appellant that the taunting reply of the deceased to the appellant that he was impotent, and that she would marry Fazel son of Murad after getting divorce from him (and that too when she had returned to the house of the appellan after having lived away from him for almost' a year) must have given B him enough provocation to attack the deceased. Considering thi aspect, I feel, the sentence of 10 years R.I. Awarded to the appellan is excessive. The same is, therefore, reduced to R.I. For six years. The sentence of fine and the order of imprisonment in default thereof, is however, maintained.
' The appellant shall also be given benefit of the provisions of Section 382-B of the Code of Criminal Procedure.