' RIAZ AHMAD, J.--- The appellant Taj alias Taju was tried by an Additional Sessions Judge at Okara on a charge under section 302, P.P.C. For having killed his own wife namely Mst. Shiman. The learned Additional Sessions Judge vide his judgment, dated 16-2-1986, found the appellant guilty on the aforesaid charge and thus, the appellant was convicted and sentenced to death and to pay a fine of Rs,5,000 or in default thereof, to suffer rigorous imprisonment for a term of one year.
2. Aggrieved by his conviction, the appellant has preferred Criminal Appeal (No, 447 of 1986) and the case has also been referred to us under section 374, Cr.P.C.
' This judgment shall dispose of both the appeal as well as the reference.
3. The occurrence resulting into the death of Mst. Shiman took place on 227-1984 at Peshiwela in the house of the complainant namely Muhammad Akbar father of Mst. Shiman situated in Chak No,32/2-L, at a distance of nine miles from Police Station Shahbore. Complainant Muhammad Akhar on his way to police station came across Nasar Ullah Khan, S.I./S.H.O., P.W.9 Police Station Shahhore and his statement Exh.P.C. Was recorded and the same was sent to the police station where formal F.I.R. Exh.P.C./1 was drawn by Moharrir Head Constable Abdul Ghafoor, P.W.3 at 5-45 p.m.
4. In brief, the complainant Muhammad Akhar, P.W.7, the father of the deceased Mst. Shiman stated in the F.I.R., that he was a resident of Chak No,32/2-L and was agriculturist by profession. Two years before the occurrence, his deceased daughter Mst. Shiman was married with the appellant and at the time of Nikah, it was agreed that the appellant shall reside in the house of the complainant as Khana Damad. According to the complainant, the appellant had been living in his house till the day of occurrence, but since 2/3 months, the appellant used to quarrel with Mst. Shiman and persuade her to accompany him to Chicha Watni to live with his parents but the deceased Mst. Shiman refused to do so. On the fateful day at Peshiwela, the deceased was preparing tea, while the complainant alongwith Bashir and Akbar were sitting inside the Kotha and were smoking Huqqa.
Suddenly, the complainant and the eye-witnesses saw that the appellant armed with a Kassi reached near Mst. Shiman and told her that he would teach her a lesson for refusing to accompany him to Chicha Watni and thereafter, inflicted a blow with the Kassi on the head of the deceased which hit the left cheek of Mst. Shiman, whereupon, Mst. Shiman fell down and thereafter, the appellant repeated blows while hitting the neck, chin and right side of the head of the deceased. The complainant alongwith Bashir and Akbar rushed to rescue the deceased but the appellant ran away from the scene of occurrence. Mst. Shiman succumbed to her injuries at the spot.
5. On 23-7-1984, P.W.4, Dr. Tahir Masood, Medical Officer in the District Headquarter Hospital, Okara, conducted the post-mortem examination on the dead body of the deceased Mst. Shiman and noticed the following injuries:-
(1) An incised wound 8 c.m. x 1/2 c.m. Bone deep on the vertex of skull.
(2) An incised wound 5 c.m. x 3 c.m. x bone deep with fracture of underlying bone on the left side of chin.
(3) An incised wound 6 c.m. x 3 c.m. On the lower part of front of neck. The wound was deep going.
(4) An incised wound 4 c.m. x 1-1/2 c.m. Muscle deep on the neck 1/2 c.m. Above the injury No,3.
' On dissection, there was fracture of both the parietal bones. Carotid vessels were cut on the right side of neck. Superficial and deep muscles of the neck were also cut on the right side. The fifth cervical vertebra was also fractured. Similarly, left side of the mandible was also fractured.
' In the opinion of the doctor, the death had occurred on account of injuries Nos. 1, 2 and 3 which were sufficient to cause death in the ordinary course of nature.
6. On 22-7-1984, Muhammad Amin, P.W.6, produced the appellant before Nasar Ullah Khan, S.I./S.H.O, P.W.9 and the appellant was arrested. Bloodstained Kassi P.3 was also produced before Nasar Ullah Khan S.I./S.H.O. P.W.9, and the same was taken into possession vide memo Ex.P.D.
Attested by Muhammad Amin P.W.6 and Shah Muhammad (not produced) besides Nasar Ullah Khan, S.1., P.W.9. At the time of arrest of the appellant, Chadar, which the appellant was wearing was found to be blood-stained, it was also got removed and taken into possession vide memo Ext.P.E.
Attested by Muhammad Amin, P.W.6 and Shah Muhammad (not produced) besides Nasar Ullah Khan, S.I. PW 9.
7. The blood-stained Chadar and Kassi were sent to the Chemical Examiner and Serologist.
According to the report of the Chemical Examiner, these items were stained with blood and vide report of the Serologist, both these items were stained with human blood.
8. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by complainant Muhammad Akhar, PW 7, father of the deceased and PW 8, Akhar a cousin of the complainant. The third eye-witness namely Bashir was given up. It may be stated here that the appellant is also a nephew of the complainant.
' In addition to the ocular testimony, the prosecution also placed reliance upon the recovery of blood-stained Kassi and Chadar to corroborate its case.
9. When examined under section 342 Cr.P.C., the appellant denied the charge and stated that he has been falsely implicated and took up the plea of sudden and grave provocation. Precisely, the appellant made the following statement: "I found Mst. Shiman in an objectionable position with Ghulam Rasool and, therefore, I murdered her on provocation. The complainant has got this case registered against me falsely because of the relationship with the deceased."
' The appellant also entered the witness box under section 340 Cr.P.C. And took up the same plea, stating therein, that he saw Mst. Shiman in a compromising position with Ghulam Rasool in a room of the house of the complainant.
10. It was contended by the learned counsel for the appellant that the ocular account of the occurrence as narrated by the eye-witnesses was devoid of truth. They had not seen the occurrence and Akbar son of Faqiria, PW 8, a close relation, was a chance witness, inasmuch as, he failed to render any satisfactory explanation about his presence at the scene of occurrence. The learned counsel for the appellant further argued that the statements of the eye-witnesses were full of discrepancies and, therefore, such statements cannot be relied upon to sustain the conviction.
Learned counsel for the appellant drew our attention to the discrepancies as to the time of occurrence, as narrated by the eye-witnesses.
11. It was further contended that in fact the defence plea was nearer the truth and the appellant had killed Mst. Shiman under sudden and grave provocation because the appellant saw her naked lying on a cot in a compromising position with Ghulam Rasool. Learned counsel also vehemently argued that the ocular account of the occurrence was belied by the medical evidence, inasmuch as, the deceased could not have received injuries on her chin and mandible in a sitting position near the hearth while preparing tea as alleged by the prosecution.
12. We have carefully considered all these contentions in the light of the evidence on the record.
Muhammad Akbar, complainant, stated that the incident took place at about noon time while Akbar son of Faqiria P.W.8, stated that it was 1-30 p.m. While according to the F.I.R., it was Peshiwela, when the occurrence took place. According to the statement of Muhammad Younis, P.W.5, the brother of Mst. Shiman deceased, the appellant had entered his house at about 12 noon when he saw that Mst. Shiman, his sister, had been murdered. Such discrepancies as to the time of occurrence have no bearing upon the prosecution case, nor the same tend to demolish it because all the eye-witnesses are rustic villagers and are not supposed to have watches and to have noted the exact time with precision and exactitude. On the other hand to expect such precision, as to the time, is against the human behaviour.
' No doubt that PW 8, Akbar son of Faqiria is close relation and he stated that the wife of his brother namely Iqbal was not living happily and he had come to the complainant Akbar for seeking his help, so that an amicable settlement could take place between the spouses. In our view, there is nothing wrong in such explanation because in matrimonial disputes, such efforts are made and close relatives are requested to intervene and, therefore, in our view, the explanation of Akbar son of Faqiria PW 8, is satisfactory. It may be observed here that the appellant happened to be the nephew of the complainant and, therefore, Akbar son of Faqiria PW 8 was also related to the appellant, and we do not expect that the son-in-law would be falsely involved in a murder case.
Even otherwise, there is no background of enmity, so as to conclude that Akbar son of Faqiria PW 8, has any motive to depose falsely against the appellant.
13. Adverting to the conflict between the medical evidence and the ocular testimony, in our view, there is hardly any substance in it. According to the prosecution case, Mst. Shiman was given a Kassi blow while she was sitting near the hearth for preparing tea and the said blow had hit her cheek. Obviously, she would have fallen and thereafter, repeated blows were given to her and thus, there is no conflict between the medical and the ocular testimony. Injuries on chin and mandible could have been received while Mst. Shiman had fallen.
14. We now take up the defence plea raised by the appellant. In our view, the plea has no legs to stand upon and is without any substance. The appellant stated that as he entered the room, he found his deceased wife Mst. Shiman lying naked on a cot in a compromising position with Ghulam Rasool and thus having lost control, he killed Mst. Shiman and chased Ghulam Rasool, the paramour, who concealed himself into the house of Muhammad Amin Bhatti, PW 6. If the plea had been true, the dead body would have been found on the cot in the room.
15. On the other hand, the dead body was lying in the compound. The collection of blood-stained earth from the compound also belies the plea of the appellant because otherwise, the blood would have been collected from the room underneath the cot. Furthermore, the dead body, would have been naked but according to the doctor, who conducted the post-mortem examination, the deceased was clad in Shilwar and shirt, hence, we are not prepared to believe the version of the appellant.
16. On the contrary, the occurrence took place at about Peshiwela and we are not prepared to believe that Mst. Shiman would have invited her paramour to visit her house in day time, particularly, when her father and Akbar, PW 8 were also present in the house.
17. The site plan also shows that on the one side of the house, there is a Bazar and on the other side, there are houses and, therefore, we are not prepared to believe that for such nefarious activities, at such hour of the day, Mst. Shiman would have invited her paramour. In addition thereto, it is not possible to believe that if Mst. Shiman was lying with her paramour, the door of the room would have been kept open. According to the statement of Muhammad Younis, PW 5, he saw the dead body lying near the hearth. We are also not convinced about the version of the appellant that he had chased the paramour Ghulam Rasool who concealed himself into the house of Muhammad Amin Bhatti, PW 6. If we believe the version of the appellant, the paramour would also be naked and to chase such a person in a village would have created a storm and the truth would have come to light. Surprisingly, Muhammad Amin Bhatti, PW 6, who is an independent and impartial witness, was not at all cross-examined on this aspect of the case. Hence, we repel the defence plea being devoid of any truth.
20. Our attention was also drawn to the suggestion given to the eyewitnesses by the learned counsel, who conducted the trial, to the effect that the appellant had seen even before Mst. Shiman in an objectionable position with Ghulam Rasool and thus Punchayats were convened.
Unfortunately, this assertion remains confined to a circumstance only and no evidence worth the name was produced to substantiate this fact. Therefore, we are not prepared t believe that the appellant while having lost control of himself had killed his wife under sudden and grave provocation.
21. The prosecution version stands proved by the ocular testimony corroborated by the recovery of blood-stained Kassi and the blood-stained Chadar of the appellant which was got removed at the time of his arrest. The F.I.R. In this case was also lodged promptly and thus, we are not prepared to believe that it is a case of substitution, therefore, we hold that the prosecution has brought home guilt to the appellant.
18. The question of sentence in this case needs our consideration. The prosecution case is that the appellant was living as Khana Damad but was desirous to take away his wife to Chicha Watni to the house of his parents but Mst. Shiman deceased, did not agree to it and the quarrel was brewing since 2/3 months before the occurrence. The complainant and the eye-witnesses were sitting inside the Kotha while smoking Huqqa, from where, the hearth was visible, where Mst. Shiman deceased was preparing tea. The appellant had reached there and tried to persuade Mst. Shiman deceased to accompany him, this being the prosecution case, it is not exactly known that what preceded immediately before the occurrence, because, the eye-witnesses were not in a position to hear what transpired between the appellant and his wife immediately before the occurrence, therefore, the element of provocation cannot be ruled out, which would have led the appellant to inflict Kassi blows to the deceased.
19. In this view of the matter, we are not inclined to confirm the death sentence of the appellant but we would alter the same into life imprisonment. Accordingly, this appeal is dismissed with the modification in the sentence as stated above. The sentence of fine is also maintained.
' The Reference is answered accordingly.