1. MUHAMMAD YAQUB ALI, J.-Muhammad Siddiq, respondent, was convicted by Mr. M. A. Rashid, Sessions Judge, Bahawalpur, under section 302, P. P. C. And sentenced to death for killing Mst.
2. Ghulam Fatima, the wife of his brother Ghaus Bakhsh. Separate sentence was also awarded under section 326, P. P. C. For causing grievous injuries to Mst. Shahida Parveen who tried to rescue her mother.
3. On appeal by the respondent and reference under section 374, Cr. P. C., the High Court altered the conviction under sec--tion 302, P. P. C. To one under section 304, P. P. C. And reduced the sentence to seven years' rigorous imprisonment.
4. Aggrieved by the order passed by the High Court, Muhammad Nawaz, private complainant, obtained leave to appeal to consider the plea that the learned Judges of the High Court had acted purely on surmises and speculations in reaching the conclusion that the respondent had acted under grave and sudden provocation.
5. Mst. Ghulam Fatima was admittedly killed by the respondent on the 4th May 1966, at about 3-30 p. m. In the Bahawalpur City, by causing her as many as 12 incised injuries with a knife. The respondent was apprehended on the spot and taken to the police station along with the weapon of offence. Clothes found to be stained with human blood were also seized from his person.
6. According to the prosecution the respondent No. 1 wanted the deceased to give one of her daughters in marriage to a person who will in exchange provide a girl for marriage with the respon--dent. The unjust demand was resisted by the deceased. She also influenced her husband riot to agree to any such proposal.
7. Consequent upon it the respondent was enraged and he attacked the deceased while she was sitting in her own house. She tried to run away and seek shelter in the house of a neighbour, but the respondent chased her there and killed her by causing injuries all over her body with the knife Exh.
8. P. B. Mst. Shahida Parveen, daughter of the deceased, tried to intervene and save her mother, but the respondent attacked her too with the knife and inflicted on her as many as seven injuries.
9. Muhammad Nawaz, appellant, a neighbour of the deceased and others arrived at the spot and caught hold of the respondent. He was then taken to the police station along with the knife and made over to the S. H. O. Of City Police Station. Bahawalpur.
10. Before the committing Magistrate the respondent made the following statement;-- "It is correct that on that day I came from Rahimyarkhan and my sister-in-law had married her daughter to a Thug-type person. When I entered my house I saw that very person sitting with my nieces and cutting jokes. I was enraged and asked my sister-in-law and nieces as to who he was.
11. But instead of giving any satisfactory reply they quarrelled with me. Hence I was enraged and committed this act."
12. Before the Sessions Judge, the respondent gave the following explanation of the crime committed by him :--- "On the day of occurrence I came back from Rahimyarkhan. I used to come to Babawalpur after interval of a month, two or three months, in order to give monthly ration to my brother and his family. Ghaus Bakhsh my brother was provided a house by me, which is my property, after erecting a partition wall in it. On the day of occurrence I was holding the ration in my hand and on entry into the house of my brother Ghaus Bakhsh I saw a person sitting in the house. That man was Qamar- ud-Din. I had not seen him before. I inquired from my sister-in-law and nieces as to who he was.
13. They told me that I should not talk about that affair. When I tried to move forward my nieces caught hold of me. On taking this oppor--tunity that person Qamar-ud-Din ran out of the house followed by Mst. Ghulam Fatima. When I was going to the room that person tried to move and I told him to sit back and I wanted to talk to him. After that person had gone out followed by Mst. Ghulam Fatima, I looked for something and found a knife lying in the window. Exh. P. 1 is the same knife. I came out and found that that person had vanished and Mst. Ghulam Fatima had gone into the house of Ghulam Farid. In sheer anger I inflicted knife injuries on Mst. Ghulam Fatima in the house of Ghulam Farid and killed her there."
14. The respondent admitted that he had produced before the S. H. O., blood-stained knife and that blood-stained clothes which he was wearing were taken into custody by the police. He identi--fied these articles in Court.
15. Even if the plea taken up by the respondent was accepted as correct, Exception I to section 300, P.
16. P. C. Was not attracted.
17. The mere fact that the respondent had seen a stranger in the house of the deceased cutting jokes with his nieces, did not provide him grave and sudden provocation to lessen the offence of murder to culpable homicide. The learned Judges in the High Court, however, acted on a surmise that "something must have happened in the house of the de-eased which enraged the appellant to the extent that he became furious and lost self-control." In arriving at this conclusion it was assumed that the respondent had lost self-control and became infuriated. It was ignored completely that according to the evidence led by the prosecution it was a premeditated murder for a sordid motive. There was intrinsic evidence to this effect. The respondent claimed that while going in chase of Qamar-ud-Din and the deceased he saw a knife lying in the house and picked it up. Firstly the weapon of offence is not a knife commonly in use in a household. In size and shape it looks like a dagger. Secondly, Mst. Fatima was first attacked in her own house wherefrom blood-stained earth was taken into custody. After receiving some injuries Mst. Fatima managed to escape to the house of Ghulam Farid, but the respon--dent chased her there and caused the remaining injuries on her person which proved fatal. This circumstance by itself supported the prosecution case that the respondent was guilty of a premeditated murder.
18. In any case the learned Judges could not add to what the respondent had himself stated during the trial. If he did not claim that "something else had happened which infuriated him" there was no justification for surmising that "something else had happened".
19. In the circumstances of the case the offence committed by the respondent clearly fell within section 302, P. P. C. And he was rightly sentenced by the Sessions Judge to the extreme penalty of death. We feel constrained to observe that the interference made by the High Court with the conviction of the respondent resulted in manifest miscarriage of justice.
20. We, accordingly, allow the appeal, set aside the order of the High Court, and restore the conviction of Muhammad Siddiq, respondent, under section 302, P. P. C. However, as the High Court gave the respondent expectation of life as far back as 23rd April 1968, we alter the sentence to transportation for life. In case the respondent has already been released he will be taken into custody to undergo the full term of the sentence awarded by this Court.