RAJA AFRASIAB KHAN, J.-- Mansha (22) s/o Ibrahim was tried for the murder of his wife, Ms/.Munawar Bibi (21/22) daughter of Akbar complainant by Ch. Shaukat Nawaz Goraya, learned Additional Sessions Judge, Pakpattan Sharif. By judgment dated 14.3.1989, learned trial Judge convicted Mansha under section 302 P.P.C, and sentenced him to death plus a fine of Rs.20,000/- or in default thereof to suffer two years R.I. It was directed that in case of recovery of fine it shall be paid as compensation to the legal heirs of the deceased under section 544- A Cr.P.C. The convict challenged his conviction and sentence by filing Crl. Appeal No-.236/1989. He also filed another Crl.
Appeal No.86/89 through jail. The. Learned trial Judge sent a reference (M.R/ No.56/89) under section 374 Cr.P.C for confirmation of death sentence of Mansha. We propose to dispose of the above matters together by this judgment.
2. The prosecution story is that about 11 months prior to the occurrence, Akbar complainant married his daughter Mr/.Munawwar Bibi with Mansha accused in Chak No.14/S.P. The father of Mansha, Ibrahim resided in Chak No.13/4.L. Police Station Shahpur. Ibrahim divorced his wife, mother of Mansha accused about 21/22 years ago. However, she re-married. Mansha was brought up by his maternal-grand father. Msf. Munawwar Bibi lived in the house of her husband after the marriage.
About a month prior to the occurrence, Mansha accused asked his wife to accompany him to Okara Cantonment, where he worked for his livelihood. She, however, refused to accompany him.
Mansha gave her beating on 2/3 occasions on account of her refusal to accompany him. In the circumstances, she left her husband and came to live with her father. Mansha was thus determined to kill her because she left his house without any justification. On 30.5.1986, 'early in the morning when Mrt. Munawwar Bibi (deceased) went outside to ease herself, Mansha caught and brought her forcibly and confined her in his house. On the information, Akbar, Muhammad Amir P.Ws and Muhammad Bakhsh came to his house and compelled Mansha to release Munawwar Bibi. Early in the morning on the day of occurrence Mansha again apprehended Munawwar Bibi (deceased) while she was on the way to her house. However, she was again released by the accused on intervention of Muhammad Hussain and Muhammad Amir P.Ws. The accused in a fit of anger declared that he would not leave his wife alive. On 31.5.1986, My/.Munawwar Bibi was fasting.
At about 6.00 p.m. She went outside to ease herself. After some time complainant followed his daughter because be apprehended danger to her life at the hands of the accused. 1h the street, he found her while passing in front of the house of Mistri Atta Muhammad where Mansha was already standing. By shouting, he took out a dagger and inflicted an injury on her abdomen. On an alarm, Akbar, complainant, Muhammad Hussain and Muhammad Amir, P.Ws reached the spot. Even after receiving the injury, the victim was able to walk about 9/10 karams and thereafter she fell down and died in front of the house of Rehmat Ali Dhaddi. Intestines came out from her abdomen.
Mansha accused was apprehended by Muhammad Hussain and Muhammad Amir P.Ws along with his dagger.
2. Statement Ex.P.E of Akbar P.W.5 was recorded by Muhammad Ibrahim S.I. P.W 7 Formal F.I.R.
Ex.P.E/1 was registered by Asghar Ali Moharrar Head Constable on the same day. Muhammad Ibrahim S.I. Investigated the case. He visited the spot, prepared the injury statement Ex.PF and inquest report Ex.P G of dead body of Mrt. Nunawwar Bibi. Blood stained earth was taken into possession vide recovery memo Ex.PB. Dead body was sent to mortuary for post-mortem examination through Muhammad Hussain Constable. Last worn clothes of the deceased, Shalwar P-1, and shirt P-2 were taken into possession vide memo E.PC. Dagger P-3 was taken into possession by the Investigating Officer vide memo Ex.PD. Site-plan Ex.PA and its duplicate PA/1 were got prepared by the Investigating Officer from Munshi Riaz Mahmood Patwari. Dagger P/3 was not sent to the Serologist for determination of the nature of blood on it. Positive .Report of Chemical Examiner Ex.PK was tendered in evidence.
3. Dr. Muhammad Nasir Dilshad, P.W 8 conducted post-mortem examination on the dead body. He found the following injuries on it.
1. An incised would 3 c.m. x 1-1/2 c.m. Going deeply into the chest on the lower part of the right chest at the level of anterior exillary line in between the 7th and 8th ribs of right side of chest.
2. An incised around 3 c.m. x 1-1/2 c.m. x going deeply into the abdominal cavity on the right side of middle of abdomen 6 c.m. Above and lateral (upper right corner from umbilicus) to the umbilicus.
In the opinion of the Doctor, death occurred due to excessive haemorrhage and shock as a result of injuries No.1 and 2, which were found sufficient to cause death in the ordinary course of nature. It was opined that the injuries were grievous, dangerous to life and were caused hy a sharp edged weapon. Probable time between death and injuries was about few minutes and between death and post mortem was about 12 hours.
4. Eye witness account was furnished by Muhammad Amir, P.W 4 and Akbar P.W 5. Akbar P.W is the father of Myf. Munawar Bibi while Muhammad Amir P.W 4 is not related to her. The appellant made a statement under section 342 Cr.P.C, denying the allegations, levelled against him. He pleaded his innocence. He took a plea' that he killed his wife under gave an sudden provocation when he found her in a Compromising position with one Sikandar of his village. He stated that the prosecution witnesses had deposed against him falsely. Muhammad Anwar D. W.l was produced by the appellant in support of his plea. While believing the ocular account motive, medical evidence and recoveries, the learned trial Judge convicted and sentenced the appellant as mentioned earlier.
5. Learned counsel contend that from the facts and circumstances, it is established that the appellant killed his wife on account of grave an4 sudden provocation and as such his case is covered by section 304 Part-1 P.P.C. Learned counsel for the State defended the conviction and sentence of the appellant.
6. .We have heard the learned counsel for the .Parties at considerable length and have read the record with utmost care.- This is a case of two versions as fully detailed above. Muhammad Amir P.W 4 and Akbar P.W<5 have appeared to support the version of the prosecution. Akbar P.W.5 is the first informant and claimed to have seen the occurrence in the street near the house of Mansha appellant. He is also a witness to the motive. Muhammad Amir, P. W.4'in his evidence admitted that his vision from the left eye if defective. He conceded in J cross-examination that one Ramzan is his real brother and Sikandar is the son of Ramzan. He said that Sikandar was a young man. He further conceded that Sikandar had been visiting the house of appellant Mansha. As per the F.I.R, only one injury was caus^^ with a dagger on the abdomen of Mst. Munawwar. Bibi by the appellant However, Muhammad Amir and Akbar P.Ws have deposed that appellant Mansha inflicted two injuries on her person. Thus obviously there is a material contradiction between the evidence of witnesses and the F.I.R. The prosecution Witnesses have made considerable improvements in their evidence before the Court. The indical evidence also shows that there were two injuries on he person of the deceased. In our view, this contradiction shall not make any difference because the appellant himself admitted in his statement that he inflicted two injuries, to the deceased out of grave and sudden provocation. The material question for determination is as to what offence has been committed by the appellant in the light of his own confessional statement. Learned counsel says that case in hand falls under section 304 Part-1 P.P.C. We find substance in the argument of the learned counsel that the appellant cannot be held guilty under section 302 P P.C. And sentenced accordingly in the given facts and circumstances of this case.- The prosecution witnesses are unanimous on the point that Munawwar Bibi was done to death near the house of Maulvi Atta Muhammad. Site-plan, Ex.PA shows that occurrence took place right in front of house of Maulvi Atta Muhammad. According to the ocular account the victim after receiving the injuries fell down in front of house of Rehmat Ali. However, inquest report Ex.PG shows that dead body of Mst.
Munawwar Bibi was found lying in front of house of Muhammad Hussain. This is in evidence that house of Muhammad Hussain is situated just in front of the house of Muhammad Mansha. Site- plan also shows that house of Muhammad Mansha opens towards the house of Muhammad Hussain. The Investigating Officer P.W 7 has conceded that house of the appellant is situated near the place of 'occurrence. The recovery of blood stained earth was sent to Chemical Examiner for its analysis on 30.6.1990 after considerable delay of 30 days. We fail to understand as to why the blood stained earth was sent to the Chemical Examiner so late. Dagger P-3 was also found blood stained but it was never sent to the Serologist for determination of the nature of blood found on the weapon. The blood stained earth recovered from place of occurrence is of no avail to the case of prosecution because it was sent so late to the laboratory for its test. We are, therefore, not convinced with the prosecution version at all regarding the place of occurrence as claimed by the prosecution. The cumulative effect of all the circumstances mentioned above is that the prosecution case is highly doubtful. The prosecution has certainly suppressed material facts of the case in hand. It was the fundamental duty of the prosecution to have proved be doubt that the occurrence took place in the street as claimed by it. This duty lias not been done by the prosecution. Eye witness account is highly shaky and does not appear to be plausible. It is also not corroborated by any circumstantial evidence, it appears that the eye witnesses did not see the occurrence. Thus the possibility of the occurrence having taken place in the house of Mohammad Mansha in the manner as stated by him cannot be ruled out. Muhammad Ibrahim P.W 7 said that the house of Mohammad Mansha appellant is situated near the place of occurrence. This piece of evidence also lends support to defence version. The possibility of the infliction of the injuries to the deceased by the appellant in his house thus cannot be ruled out. She might have come out from his house immediately after receiving the injuries and might have fallen down at point No.1 in front of house of Maulvi Atta Muhammad. Even the recovery of dead body from near the house of Maulvi Atta Muhammad was not proved. According to the entry in the inquest report the dead body was found lying in front of house of Muhammad Hussain as mentioned above. Thus the defence version appears to be more close to truth than that of the prosecution story. Accordingly we reject the prosecution version outrightly and accept that of the appellant. In the circumstances we hold that the appellant committed the offence under grave and sudden provocation and as such he was convicted and sentenced illegally under section 302 P.P.C. The case of the appellant in the circumstance, falls under section 304 Part-1 P.P.C. The conviction of the appellant is, therefore, altered from section 302 P.P.C, to one under section 304 Part-1 P.P.C. In consequence he is sentenced to suffer 5 years R.I. Benefit of section 382 Cr.P.C, shall also be given to him. The sentence of fine shall be maintained and in case of its recovery whole of it shall be paid to the legal heirs of the deceased. The death sentence is accordingly NOT confirmed. With the above modification in sentence, the appeal of the appellant is dismissed.