Muhammad appellant was tried by Rao Muhammad Hayat Khan, Sessions Judge, Jhang, on the charge of committing the murder of his wife Mst. Bashiran and vide his judgment, dated 20-7-1986, was convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs.5,000 or in default to undergo one year's R.I. The fine, if realized, was directed to be paid to the heirs of the deceased by way of compensation. He was also charged for the murder of his minor son Asif, aged about 9 -months, but he was acquitted so far as that charge was concerned.
2. The brief facts of the case, as embodied in the F.I.R. (Exh.P.D.) lodged by Sohni complainant, are that he had married his daughter Mst. Bashiran (deceased) to Muhammad appellant about three years prior to the occurrence in the exchange marriage of appellant's sister Mst. Fatima alias Phaphan with himself. Out of the wedlock between Mst. Bashiran (deceased) and the appellant a son was born but the appellant continued to suspect the fidelity and morality of his wife which plagued their inter se relation. In the evening of 11-1-1985 Sohni complainant accompanied by his other son-in-law Muhammad Riaz and Doosa P.Ws. Went to the house of the appellant and continued to prevail upon the spouses, till late at night, to live amicably. Then the appellant and his wife alongwith their minor son Asif, aged about 9 months, slept with their residential Kotha while the complainant and his companions slept in the nearby Chhappar. At about midnight they were awakened by the alarm coming from inside the Kotha and when they went there, they saw, with the help of a lantern already lit there, that the appellant was giving Toka blows to his wife while the minor was crying. They tried to rescue her but the appellant threatened them with dire consequences and they kept away out of fear. After killing his wife the appellant went out and took away blood-stained Toka with him. The child also died. Sohni complainant then left for the police station to lodge the report but when he was still on his way he came across A.S.I. Abdul Rashid at Bus-stand Kandiwal and he reported the matter to him.
3. After the registration of the case, the A.S.I. Took up its investigation and after taking necessary proceedings sent up the appellant to the Court concerned for facing trial.
4. On the commencement of trial, the appellant was charged for the murder of his wife and on his pleading not guilty, the prosecution led evidence against him by producing as many as seven witnesses, including Sohni (P.W.5) and Muhammad Riaz (P.W.6), who gave the eye-witness account.
5. The appellant; in his statement recorded under section 342, Cr.P.C. Took up the position that during the night between 11th and 12th of January, 1985 when he and his wife Mst. Bashiran (deceased) were sleeping in their residential Kotha and their minor son was sleeping with his mother, he woke up sometime after midnight and to his surprise he found his wife absent from her bed. He stated that after sometime when she came in the Kotha, he enquired from her as where she had gone and in reply to his query she replied that nobody could ask her this question.
According to him, he then called for sexual intercourse but she refused and when he caught her by the arm, she spate on his face and using abusive language, she uttered that she would cohabit with a person of her own choice and had gone out for that purpose. He stated that on these utterances of his wife he suddenly got provoked and picked up a hatchet lying in the room and killed her. He added that she fell over the minor boy who died under her weight. He further stated that he informed Salhoon Lambardar about the incident who called Sohni P.W. And others from their houses and later he was falsely implicated in this case. He alleged that he had appeared before the police of .His own accord on the very first day of the occurrence. He produced no defence.
6. The learned counsel for the appellant has at the outset requested for the reduction of the sentence of his client with reference to Muhammad Rafique v. The State 1985 MLD 79 as, in his opinion, it was a case under section 304, Part I, P.P.C. And not under section 302, P.P.C.
7. Sohni (P.W.5) was the father of Mst. Bashiran (deceased) and Muhammad Riaz (P.W.6) was her brother-in-law. Both of them resided at a far off place from the house of the appellant and there could be no plausible reason for their stay in the house of the appellant during the fateful night. If they were staying in the house of the appellant during that night there could be remoter possibility of the decceased's going out of the Kotha to meet her paramour and to pick up quarrel with her husband on that count. Similarly, if the appellant had determined to kill her for her immoral conduct he could choose some other occasion for this purpose and not necessarily when her father and brother-in-law were available nearby. Therefore, I do not believe the presence of these eye--witnesses at the time of occurrence. Whatever was the reason which prompted the appellant to take the life of his wife, the occurrence remained unseen by any eye-witness. In these circumstances it is not possible to ascertain as what had actually transpired between the husband and wife before the former proceeded to kill the latter but the immorality of the deceased has been hinted at, may be on the basis of suspicion, even by the prosecution itself. Therefore, the possibility of the appellant's having killed his wife as a result of grave and sudden provocation cannot be ruled out and relying on the aforesaid authority, I alter his conviction under section 302, P.P.C. To the one under section 304 Part 1, P.P.C. And reduce his sentence from imprisonment for life to rigorous imprisonment for a period o1 ten years. However, his sentence of fire and imprisonment in lieu thereof as awarded to him by the trial Court shall remain intact but he shall be entitled to the benefits of section 382-B, Cr.P.C. Only to this extent his appeal is accepted and he should be informed accordingly through the jail authorities concerned.