' Muhammad Sharif (32) was tried for the murder of his wife Mst. Sughran. On 23-2-1985 Additional Sessions Judge, Kasur, convicted him under section 302, P.P.C. And sentenced him to imprisonment for. Life with a fine of Rs,5,000, in default to undergo 3 years' R.I. Further. Half of the fine was ordered to be paid as compensation to the heirs of the deceased. The convict has appealed through jail.
Being a pauper the convict requested for the appointment of a counsel at State expense. Under the rules free legal aid at State expense is made available only to a convict in the case of a death sentence. In other cases the practice, however, is that a counsel who is nominated by the Advocate- A General to appear for the State also watches the interest of a pauper convict. This may not satisfy the convict and it may not even be acceptable to him. The office was directed to find out from the High Court Bar Association if they have a free legal aid society and maintained a panel of Advocates who volunteer to appear in Court for the pauper accused. In response the High Court Bar Association nominated Syed Zulficiar Haider, Advocate.
2. Muhammad Ismail informant brought up his orphan niece Mst. Sughran (deceased). A year before the occurrence in this case he married her off to Muhammad Sharif appellant. About three days before the occurrence the couple came over to the house of the informant. Muhammad Sharif complained to him about the moral character of his wife. He pacified him and then admonished Mst. Sughran. On 24-3-1983 at about 8-00 a.m. Informant's wife Mst. Sharifan went to the orchard with the meal of her son. Leaving behind the couple Muhammad Ismail went to the house of his brother Muhammad Ishaq. After some time he heard shrieks coming from the side of his house. The two brothers rushed. Towards that side. Noor Muhammad also joined them on the way. On reaching there they found the door of the room closed. They opened it, went inside and found the appellant strangulating his wife while sitting on her chest. They pulled him aside, meanwhile Mst. Sughran died. Upon information P.W.8 Muhammad Aslam A .S.I., Police Station Kanganpur reached the house of the informant and recorded his statement Exh.P.B. At 11-00 a.m.
On the basis of which formal F.I.R. Exh.P.B./1 was registered at the police station situated at a distance of 5 miles from there. The Investigating Officer arrested Muhammad Sharif, prepared the necessary documents and sent the dead body for its post-mortem examination.
3. On the following day P.W.1 Dr. Nadeem Ahmad, Medical Officer, D.H.Q. Hospital, Chunian held the autopsy and found two contusion marks on the neck of Mst. Sughran. Larynx, trachea and lungs were congested. Visceras was sent to the Chemical Examiner for poison detection of which there was no trace. In doctor's opinion the deceased died of asphyxia. After completing the investigation the accused was tried in due course.
4. Muhammad Sharif appellant denied guilt at the trial. Explaining the case against him, he made the following statement:- "Two days prior to the occurrence I came to the house of Ismail alongwith my wife Mst. Sughran Bibi deceased. I complained to Ismail against the bad character of Mst. Sughran. On the day of occurrence when all the inhabitants of the house had left the fields and had gone outside, I myself went out to ease myself, Sughran Bibi was all alone at home. When I came back after easing myself, I saw that Mst. Sughran Bibi deceased and one Anwar Foji were embracing each other inside the room. On seeing me, Anwar Foji scaled over the wall and I admonished my wife whereupon she abused me and threatened me to carry on her illicit relations with Muhammad Anwar Foji, on which I lost self-control and throttled her to death. The P.Ws. Had not seen the occurrence. They came at the spot after the occurrence."
' He led no evidence in defence.
5. Relying on the evidence of the eye-witnesses trial Court found the appellant guilty of murder.
Criticizing the finding it was contended that the two eye-witnesses had stage managed their presence at the spot. In fact they had not seen the occurrence. This is supported by the fact that none went to make a report at the police station. In fact the Investigating Officer reached the place of occurrence on his own and recorded the F.I.R. In the house of the informant. This also lent support to the defence version because had, the prosecution story been true and had the informant seen the occurrence he would have then gone to make a report. Moreover, the occurrence in this case was alleged to have taken place at about 8-00 a.m. At a distance of 5 miles from the police station. According to the Investigating Officer he was at a distance of one furlong from the police station when he received information about the murder from someone whose name he did not remember. He reached the place of occurrence and recorded the statement at 11-00 a.m. i,e, about three hours after the occurrence. It is in the cross-examination of the informant that the police arrived in a wagon. It could not have taken more than fifteen minutes to reach there. It thus, follows that the A.S.I. Got the information at about 10-30 a.m. Or so.
Muhammad Ismail admitted that he sent no one to make a report. He gave no reasonable explanation why he did not go to make a report. Under cross-examination he, however, mentioned that on the day of occurrence it rained from morning till evening. But the Investigating Officer contradicted him and said that throughout it was a clear day and had not rained at all. I am of the view that the F.I.R. Was made after due deliberations.
6. The next question for determination would be whether the occurrence took place at 8-00 a.m.' or before that when it was dark. On his own showing the informant had gone to the house of his brother which was situated at a short distance from his house i,e, there was only one house in between. Admittedly the door of the house of his brother Muhammad Ishaq did not open in the same lane in which the house of the informant was situated, the doors of houses of the two brothers opened in different lanes. Muhammad Ismail stated that he had heard the shrieks of his niece while sitting in the house of [shag but there is no mention of shrieks by P.W. Noor Muhammad, the second eye-wetness, who joined them on the way. It is the prosecution case that the accused while sitting on deceased's chest throttled her. Under the circumstances her making a noise which could be heard at a distance was a doubtful matter. It may also be mentioned here that under cross-examination P.W.7 Noor Muhammad who was nearer the place of occurrence than Ismail admitted that he had not heard the shrieks coming from the house of Ismail. Further according to the prosecution except for the couple there was no one in the house when the occurrence took place. Although eye-witnesses reaching the place of occurrence on hearing the shrieks was a highly doubtful matter, yet assuming that they did, even then they could not have reached in time to see the occurrence. It may also be mentioned at this. Stage that Muhammad Ismail mentioned in the F.I.R. About appellant's complaint to him about the moral character of Mst. Sughran, but at the trial he denied all that and said that the relations of the spouses were cordial and there had been no complaint about Mst. Sughran's moral character. In all probability he was trying to avoid all this so that it may not lend support to the defence version. Although P.W. Noor Muhammad is not an interested witness but his evidence is no better than that of the informant. His presence at the place of occurrence also appear to be doubtful, because according to him he did not know why Mst. Sughran was murdered. The witnesses claimed to have remained at the place of occurrence till the dead body was sent to the mortuary, yet according to him the informant did not make a statement to 'the police in his presence. This is a material contradiction in his statement because according to the informant his statement was recorded by the police at the place of occurrence and in that statement a disclosure about the moral character of Mst. Sughran was made. I am thus, not satisfied with the ocular testimony.
7. The appellant has admitted the killing and explained the circumstances in which he found his wife in the company of a soldier named Anwar who on seeing him made good his escape. The appellant's admonishing his wife on her paramour's departure did not minimise the gravity of the situation and the provocation offered. In such a situation even if the wife begs her husband for a pardon and asks for mercy, yet if he kills her, his conduct would still be mitigated and he would not be guilty of murder, because it is the gravity of the provocation which is the criterion to determine the conduct of the accused who loses self-control and not the immediate subsequent conduct of the person who offered the provocation. But in this case, the wife's conduct immediately after the departure of her paramour added fuel to the fire, because on reprimand, she shamelessly threatened to carry on with her lover and also abused her husband, as if he was an intruder. This was the gravest provocation offered to the appellant who lost self-control and killed her. I, therefore, alter his conviction to section 304, Part I, P.P.C. And reduce the sentence to the period already undergone by him. The sentence of fine is remitted. In such cases to allow compensation to the heirs of an immoral woman would be highly improper and unjustified. There shall, therefore, be no order as to compensation.
8. Before parting with this judgment, I must say that it is indeed commendable that the High Court Bar Association is maintaining a panel of Advocates who volunteer to render free legal aid to the poor. Hope this example is also followed by the District Bar Associations.