' This Jail appeal arises out of the judgment dated 2-4-1986, passed by the Sessions Judge, Dera Ghazi Khan, whereby the appellant was convicted under section 302, P.P.C. And sentenced to imprisonment for life with a fine of Rs,5,000 which if recovered, was to be paid to Pir Bakhsh (complainant). In default of payment of fine, the appellant has to undergo R.I. For two years.
2. According to the prosecution story, Mst. Rashida Mai (deceased) was married to Ghulam Yasin, appellant. About four months prior to the occurrence, the husband and wife began to reside in one room of the complainant's house. On 10-3-1984 at about 9-00 a.m. Mst. Rashida (deceased) came to her room and was followed by the appellant, who was armed with a hatchet. He accused the deceased of immorality and told her to accompany him to his house, situated in village Drahman and threatened her with death in case of refusal. On hearing this, the complainant raised hue and cry, on which Allah Wasaya and Faiz Muhammad P.Ws. Were attracted to the spot. They saw that the appellant had inflicted one hatchet blow on the head of the deceased. She succumbed to her injuries shortly thereafter. The P.Ws. Managed to overpower the accused alongwith the blood- stained hatchet. Leaving the dead body in the custody of Faiz Muhammad (P.W.), Pir Bakhsh (complainant) alongwith other P.W., took the accused to the police station where he lodged the F.I.R. (Exh.P.B.).
3. At the trial, the prosecution produced nine witnesses including two eyewitnesses, namely, Pir Bakhsh (P.W.7) and Faiz Muhammad (P.W.8). The third eye-witness, namely, Allah Wasaya was given up. The prosecution relied on the recovery of the blood-stained hatchet and the report of the Chemical Examiner in support of its case.
4. When examined under section 342 of the Cr.P.C. The appellant admitted the occurrence, but explained that on the fateful day, he had seen his wife in a compromising position with one Irshad and lost self-control due to grave and sudden provocation and gave one hatchet blow to the deceased resulting in her death. He also appeared as D.W.1 in his defence.
5. I have gone through the relevant record with the help of the learned State counsel. A perusal of the record shows that in all probability, neither the complainant nor Faiz Muhammad (P.W.8) was present at the time of the occurrence. The occurrence had taken place at about 9-00 a.m. Pir Bakhsh (P.W.7) is a labourer and Faiz Muhammad (P.W.8) is a carpet-weaver. Normally, both of them are away in connection with their work by or before the time of occurrence. Pir Bakhsh (P.W.7) had admitted that he left his house at 7-00 a.m. Or a bit thereafter. Faiz Muhammad (P.W.8) had also stated that the complainant was a labourer and used to leave his house at 7/8 a.m. Usually.
The story of having overpowered the appellant, who was armed with a hatchet and had turned into a blood hound after killing his wife, does not appear to be probable. Had the alleged witnesses been present and attempted to apprehend the appellant, they would have definitely received some injuries at the hands of the appellant. Moreover, the only independent witness Allah Wasaya son of Ghulam Hussain mentioned in the F.I.R. Was given up at the trial. It is also significant to mention that the alleged eye-witnesses, namely, Faiz Muhammad (P.W.8) and Allah Wasaya (given up P.W.) were said to be the residents of neighbouring houses and their arrival on hearing the alarm would have certainly taken a couple of minutes. The deceased was given a solitary hatchet blow within the twinkling of an eye. In all probability, the blow had been inflicted before the arrival of the alleged eyewitnesses at the spot. Hence their evidence can be of no help regarding the circumstances in which the blow was given. I am, therefore, inclined to exclude the oral evidence of Pir Bakhsh (P.W.7) and Faiz Muhammad (P.W.8
6. The appellant admitted the occurrence but explained that he had seen his wife Mst. Rashida Mai, in a compromising position with one Irshad and lost self-control. He claims to have picked up a hatchet from the house and given one blow to the deceased which resulted in her death. After the occurrence the appellant claims to have gone to the police voluntarily with the blood-stained hatchet. It is significant that Pir Bakhsh (P.W.7) had admitted that about 1/2 days prior to the incident, the appellant had complained to him about the immoral B conduct of the deceased but without naming her paramour. Therefore, the possibility cannot be ruled out that the appellant made a surprise visit to his room at a time when normally the father of the deceased was away. In this way, he was able to witness the immorality of his wife. His blood was boiled and due to grave and sudden provocation, he inflicted the solitary blow on the deceased, which proved to be fatal.
The defence taken up by the appellant was suggested to both the eye-wtinesses and could not be termed as an afterthought.
7. Under the circumstances the appellant was guilty of committing culpable homicide not amounting to murder. The appellant had acted at the spur of the moment without any premeditation and given only one blow in the heat of moment. He did not repeat the blow although there was nothing to prevent him from doing so. Hence, the act of the appellant falls within the purview of section 304, Part I of the P.P.C. I, therefore, alter the conviction of the appellant from section 302, P.P.C. To section 304, Part I of the P.P.C. And sentence him to R.I. For 10 years with a fine of Rs,5,000 which, if recovered, shall be paid to the complainant Pir Bakhsh. In default of payment of fine, the appellant shall suffer further R.I. For a period of two years. The appellant shall also have the benefit of section 382-B, Cr.P.C. As already ordered by trial Court.
8. With the above modification, the appeal is partly allowed and disposed of accordingly. .