' SARDAR MUHAMMAD DOGAR, J.-- Allah Ditta, aged 50 years was tried by Additional Sessions Judge, Kasur, for having murdered his wife Mst. Reshman Bibi, at noon, on 26-9-1983, in the house of her father, Pehalwan (P.W.8) in Kot Sardar Shah Muhammad, Mashmula village Narain Singh, at distance of 12 miles from Police Station Chunian, District Kasur. The learned trial Judge convicted him under section 302, P.P.C. And sentenced him to death, plus to pay a fine of Rs,10,000 in default whereof to undergo R.I. For one year, vide judgment, dated 30-11-1985. Half of the fine, on realization, has been directed to be paid as compensation to Pehalwan complainant.
2. The learned trial Judge has made reference for confirmation of death sentence. The convict has filed appeal. Since both the matters arise from the one judgment, they are being disposed of together.
3. F.I.R. (Exh.P.A./1) was registered at Police Station Chunian on 26-91983, at 3-40 p.m. By Muhammad Akram A.S.I. (P.W.1), on receipt of statement (Exh.P.A.) of Pehalwan (P.W.8), recorded by Atta Muhammad, S.I. (P.W.12), on the same day at 3-30 p.m. In Civil Hospital Chunian.
According to the F.I.R., Mst. Reshman deceased was married to the appellant 10 years prior to the occurrence. She had given birth to Boota, aged 7 years and Iqbal aged 3 years. She had returned to the house of the complainant 6/7 months prior to the occurrence, due to some unhappiness with the appellant. The appellant had come to the house of the complainant a month before the occurrence to take back his wife and sons, but the deceased refused. He again visited the house of the complainant two days prior to Eidul Azha, but the deceased again refused to accompany him.
' On the day of occurrence, the complainant had come to his house for taking meals from the brick kiln, where he was preparing bricks. It was noon time. P.Ws. Anwar and Hanif were also sitting with him in his house. They all were smoking Huqqa. The appellant came there and asked the deceased to accompany him, but she refused, on which the appellant brought out a Chhuri from his fold and gave two successive blows to the deceased on her left flank. She fell down. The appellant ran away throwing the Chhuri at the spot. She was removed by the complainant to Civil Hospital, Chunian alongwith P.Ws. Anwar, Hanif and Sardar Pervaiz Akhtar. She died there before any medical aid was given to her.
4. Atta Muhammad S.I. After recording statement (Exh.P.A.) prepared the injury statement (Exh.P.J.) and inquest report (Exh.P.H.) and handed over the dead body to the constable for post-mortem examination. He visited the spot, wherefrom he collected blood-stained earth vide memo. Exh.P.D.
He also took into possession blood-stained Chhuri (P.6) which was lying at the spot, vide memo.
Exh.P.E. Last worn blood-stained clothes of the deceased i,e, Shalwar (P.1), Qameez (P.2), woollen Chadar (P.3) and brassiere (P.4), removed by the doctor at the time of post-mortem examination, were also taken into possession by him, on 27-9-1983, on being produced by the constable, vide memo. Exh.P.C.
5. Statements of twelve prosecution witnesses were recorded at the trial.
' The ocular account was deposed to by Pehalwan (P.W.8), Muhammad Anwar (P.W.9) and Muhammad Hanif (P.W.10).
' Pehalwan repeated the facts given by him in the F.I.R. The only improvement, he is noted to have made, is, that the deceased was attacked by the appellant when she was in the room and that it was 10th day after Eidul Azha when the occurrence had taken place. During cross-examination he admitted that Hanif and Anwar P.Ws. Were sons of his sisters and that they were also working on the same brick kiln where he was working. The houses of Hanif and Anwar P.Ws. Were on the southern side of his house. He admitted that Mst. Reshman was earlier married to one Ghulam Muhammad, who had divorced her but he denied the suggestion that he had divorced her on account of immoral character. He stated that his courtyard was common with P.W. Hanif and there was no partition wall.
' Muhammad Anwar (P.W.9) and Muhammad Hanif (P.W.10) corroborated the statement made by the complainant. Muhammad Anwar stated in cross-examination that deceased was only heir of the complainant.
' Both Pehalwan and Muhammad Anwar denied the suggestion that Mst. Reshman had illicit relations with Hanif P.W. And that on the day of occurrence the appellant had seen the deceased in a compromising position with Hanif P.W. And had given injuries to her under grave and sudden provocation. Similar suggestion put to Hanif P.W. Was denied by him also. He volunteered to state that he can swear on Holy Qur'an that he had no illicit intimacy with the deceased and that she was of a good character.
' All the three eye-witnesses denied the suggestion that they had not witnessed the occurrence.
' The evidence of taking into possession of blood-stained Chhuri (P.6) and the collection of blood- stained earth from the spot, was deposed to by Bagga (P.W.6).
6. Dr. Nadim Ahmad, who had performed autopsy on the dead body of the deceased on 26-9-1983 appeared as P.W.7. He had noted following injuries on her body:-
(1) Stab wound 2 c.m. x 1/2 c.m. x abdomen cavity deep on the left side of the abdomen, 7 c.m. Left of midline and 10 c.m. Above the iliac crest bone.
(2) Stab wound 2.25 c.m. x 1 c.m. x abdomen cavity deep, on the left side of abdomen 1.5 c.m. Above left of injury No,1.
' On internal examination, he had found peritoneum injured and stomach perforated. Spleen was ruptured.
' According to his opinion the deceased had died as a result of shock and haemorrhage, resulting from the two injuries, which were opined to have been caused by a sharp-edged weapon.
7. Atta Muhammad, S.I. (P.W.12), gave the account of registration of case, arrest of the appellant and the investigation conducted by him.
' Statement of the remaining witnesses are more or less of a formal nature.
8. The appellant during his statement under section 342, Cr.P.C. Denied the prosecution case as a whole. In answer to the question, 'Do you want to say anything else?' he stated as follows:- "I am innocent. The real facts of the occurrence are that on the day of occurrence I came to the house of my in-laws. Nobody was at house at that time except Mst. Reshrnan, the deceased and P.W. Muhammad Hanif. I saw that both of them in the room were in a compromising position. On seeing it I lost my self-control and due to sudden #TBS 13. In the circumstances, we are of the clear view that the plea taken by the #TBE provocation I picked up a Chhuri lying there and injured the deceased. During this period P.W. Muhammad Hanif had made good his escape. The deceased was lying naked flat at the time of occurrence."
9. Learned counsel for the appellant after taking us through the evidence criticised the impugned judgment and contended that all the three eye-witnesses in this case were closely related to the complainant as well as the deceased and that the version put forth by the appellant was more probable and nearer the truth than the version put forth by the prosecution. Learned counsel contended that even if the conviction of the appellant under section 302, P.P.C. Is maintained, it is not a case of death, as, even according to the prosecution itself, the deceased had given enough provocation to the appellant by refusing to accompany the appellant to his house persistently.
10. Learned counsel for the State defended the judgment of the trial Court.
11. It is admitted that the complainant is father of the deceased while P.Ws. Hanif and Anwar are her first cousins However, it is also borne out from the evidence that both of them were residing adjacent to the house of the complainant, where the occurrence had taken place. No suggestion was put to any of them of having any animosity with the appellant. The only suggestion put to all the eye-witnesses about illicit intimacy of the deceased with Hanif P.W. Was denied categorically by them. The ocular testimony coining from unbiased witnesses cannot be thrown away merely for the reason that they are related to the deceased and the complainant, particularly so when they were immediate neighbours. There is nothing on record to hold that the eye-witnesses might not have been present at the time of occurrence.
12. The appellant himself has also not denied his presence at the spot and of having caused injuries to the deceased. His case is, that he had caused the injuries, which resulted in her death, on account of grave and sudden provocation, which had resulted on his having seen the deceased in a compromising position with Hanif P.W.
' We have examined his plea, keeping in view the evidence on record.
' Apart from the fact that Muhammad Hanif P.W. Had denied his illicit connection with the deceased, he was also the first cousin of the deceased. He categorically denied the suggestion that on the day of occurrence he was lying in a compromising position with the deceased. It is on record that he had common courtyard with the complainant, where the deceased was living and was done to death. It is improbable, rather impossible to believe that Hanif P.W. And the deceased would have been doing such a thing during day time at noon in the room of a house, which had common courtyard with the others. It cannot be believed that they could have indulged in such a thing, at such a place and at such a time.
' The plea taken by the appellant is also negated by another circumstantial evidence and that is, that the clothes of the deceased, which she was found wearing at the time of post-mortem examination, were found stained with blood. If she had been done to death while lying naked, how could her clothes have been stained with blood? Appellant is without any substance and far away from truth. The prosecution, in our assessment, has been able to prove the case against him. His conviction under section 302, P.P.C. Is, therefore, maintained.
' However, we are not inclined to confirm the sentence of death, as in our view, the deceased by having persistently refused to accompahy the appellant to his house had provided such provocation which can be considered as a mitigating factor for not awarding extreme penalty of death. The sentence of death awarded to the appellant by the trial Judge is, therefore, altered to imprisonment for life. The sentence of fine is, however, maintained.
' The appeal is dismissed with the above modification in the sentence.
' The appellant shall be given benefit of the provisions of section 382-B of I G the Code of Criminal Procedure.
' Death not confirmed.