' MUHAMMAD MUNIR KHAN, J.---his Criminal Appeal No.180 of 1987 and connected Murder Reference No.176 of 1987, arise from the judgment of learned Additional Sessions Judge, Muzaffargarh, whereby he on 16-9-1987, convicted Umar (30-35) appellant under various sections of Pakistan Penal Code and sentenced him as under:- Under section 449, P.P.C. to 7 years' R.I. and a fine of Rs.5,000, in default thereof one year R.I.
Under Section 307, P.P.C. for murderous assault on Mst.
Karam Mai.to 7 years' R.I. and a fine of Rs.5,000, in default thereof one year R.I. with the direction that the fine if realized half of it be paid to Mst.
Karam Mai P.W.
Under Section 302, P.P.C, for the murder of Mst. Sardar Mai.to death and a fine of Rs.10,000, in default thereof further R.I. for two years, with the direction that if the fine is realized half of it be given to the legal heirs of the deceased.
2. The occurrence took place on 7-2-1987 at 12-00 noon in the house of Ghulam Sarwar, father of Mst. Sardar Mai deceased situate in Mauza Chak Mithan of P.S. City Muzaffargarh. The distance between the police station and the place of occurrence is four miles. The F.I.R. was lodged by Ghulam Sarwar P.W.1, father of the deceased at Police Station City Muzaffargarh on the same day at 1-00 p.m. and was recorded by Muhammad Saleem S.I., P.W.7.
3. Mst. Sardar Mai deceased was wife of Umar appellant. Ghulam Sarwar, Mst. Karam Mai and Muhammad Nawaz P.Ws. are the father, mother and maternal-uncle of the deceased respectively.
The house of the appellant is adjacent to the house of Ghulam Sarwar complainant.
4. The motive briefly was a dispute between the appellant and his father-in---law Ghulam Sarwar P.W.1 over the construction of a wall in which the deceased refused to support her husband and was, therefore, turned out of the house by the appellant one day before the occurrence.
5. As for the main occurrence, it has been stated that at the eventful time, Mst. Sardar Mai deceased, Ghulam Sarwar P.W.1, Mst. Karam Mai P.W.2 and Muhammad Nawaz P.W.3 were sitting in the house of Ghulam Sarwar P.W.1, when Umar appellant carrying knife entered into the house and started inflicting knife blows to his wife Mst. Sardar Mai. Mst. Karam Mai tried to save her daughter.
So, the appellant gave knife blows on her person. Threatening the persons present in the house with dire consequences, he ran out of the house taking knife with him but was apprehended at some distance from the place of occurrence by Muhammad Nawaz P.W.3 and others. Muhammad Nawaz P.W.3 also snatched blood-stained knife Exh.P.7 from him. Leaving the appellant under arrest on the spot Ghulam Sarwar P.W.1 went to the police station and lodged report. After the registration of the case, Muhammad Saleem S.I. P.W.7 came to the place of occurrence where the accused was produced before him by Muhammad Nawaz P.W. and others. He arrested the accused.
Muhammad Nawaz P.W.3 produced blood-stained knife Exh.P.7 before him which was taken into possession vide memo. Exh.P.B. attested by Muhammad Nawaz P.W.3 and Muhammad Nawaz son of Sultan (not produced). He also removed blood-stained Chadar Exh.P.8 and Shirt Exh.P.9 from the person of the appellant and took them into possession vide memo. Exh.P.D. attested by Ghulam Sarwar P.W.1 and Muhammad Asghar (not produced). It may be noted here that on 7-2-1987 Mst.
Karam Mai had produced her blood-stained shirt and Shalwar which were taken into possession vide memo. Exh.P.G. attested by Mst. Karam Mai P.W.2, Muhammad Nawaz P.W.3 and Ghulam Akbar (not produced). But these clothes were not sent to the Chemical Examiner.
6. To prove its case, prosecution produced 11 witnesses. While giving the ocular account of the occurrence, Ghulam Sarwar P.W.1, Mst. Karam Mai P.W.2 and Muhammad Nawaz P.W.3 have fully supported the prosecution case against the appellant. Muhammad Nawaz P.W.3 also claims to have apprehended the appellant with blood-stained knife Exh.P.7 outside the house of the complainant. He produced the accused/appellant under private arrest before Muhammad Saleem S.I., P.W.7. He also states to have produced the blood-stained knife Exh.P.7 before the Investigating Officer. Ghulam Sarwar P.W.1 has also deposed about the motive. Dr. Muhammad Sadiq Shah P.W.8 medically examined Mst. Karam Mai P.W.2 on 7-2-1987. He found two stab wounds on her abdomen, which were declared to be dangerous to life and caused by sharp-edged weapon. On the same day Dr. Badar Munir P.W.9 conducted post-mortem examination on the dead body of Mst. Sardar Bibi. He found following injuries on her person:-- "(1) A horizontal incised wound 11 x 1 c.m. x muscle deep on front of right breast entering from life nipple to left side of sternum.
(2) A small incised wound 1 x 1 c.m. deep in medial of front of right breast.
(3) An incised wound 1 x 1-1/2 c.m. x 1 c.m. deep on front of right breast (infermedial part of right areola).
(4) A stab wound 2 x 1 c.m. x cavity deep on left lower part of chest.
(5) A stab wound 5 x 1-1/2 c.m. x cavity deep 2 c.m. below and medial to injury No.4 on left lower part of chest.
(6) A stab wound 8 x 4 c.m. x cavity deep in left hypochondrium in front (in oblique dviction).
(7) A stab wound 1 x 3 c.m. x cavity deep in left hypochondrium one c.m. below and left to injury No.6.
(8) A stab wound 1 x 1 c.m. x muscle deep on left flat surface of lower part of chest.
(9) An incised wound 9 x 3 c.m. x muscle deep in left iliac region.
(10) A stab wound measuring 2 x 1-1/2 c.m. x cavity deep 2 c.m. above umblicus in middle. Part of intestines protruded through wound.
(11) A stab wound 7 x 3 c.m. x cavity deep on right side of abdomen 3 c.m. above and left to injury No.10. Part of intestines and omentum protruded through wound.
(12) An incised wound 2 x 1-1/2 c.m. x bone deep on front of right lower part of chest 5 c.m. below right breast.
(13) A stab wound 7 x 7 c.m. x cavity deep on front right abdomen one c.m. below and left to umblicus (horizontal).
(14) Incised wound 3 x 1 c.m. x muscle deep on outer side of right forearm 5 c.m. below right elbow joint.
(15) An incised wound 1 x 1/2 c.m. x muscle deep on medial side of right elbow.
(16) An incised wound 1 c.m. x 1/2 c.m. x muscle deep on back of left forearm in middle portion:'
' In his opinion the death was due to shock and severe haemorrhage as a result of injuries Nos. 6, 7, 10, 11, 13, which were individually sufficient to cause death in the ordinary course of nature. The death was immediate. The injuries were caused by sharp-edged weapon. On the same day Dr. Asif Saleem examined Umar appellant and found following injuries on his person.
"(1) A lacerated wound 1 x 1 c.m. x scalp deep on the right side of the head, 12 c.m. above the right ear, c/o severe pain in the head.
(2) A swelling of 3 x 3 c.m. on the middle of the right forearm, c/o severe pain in right forearm.
(3) A contusion of 3 x 1 c.m. on the right side of the shoulder on deltoid region."
' The injuries were simple in nature and caused by blunt weapon within 5 hours of the examination.
Muhammad Saleem S.I. P.W.7 has proved the F.I.R., recovery and removal of blood-stained knife Exh.P.7, Chadar Exh.P.8 and shirt Exh.P.9. The Serologist's report Exh.P.O. shows that knife Exh.P.7, Chadar Exh.P.8 and shirt Exh.P.9 were stained with blood. The rest of the evidence is of formal nature:
7. When examined under section 342, Cr.P.C., the appellant denied the prosecution version. Raising the plea of grave and sudden provocation, he stated:- "On 7-2-1987 at about half past twelve I came from outside to my house and found my wife Mst.
Sardaran absent. On query I was told that she had gone to the house of her parents. I went to the house of her parents which is adjacent to my house. My brother-in-law was sitting at the door of the room. While seeing me she abruptly opened the door. I saw my wife in a compromising position with one Allah Bakhsh. I lost self-control and on account of grave and sudden provocation picked up the knife lying there and caused injuries to Mst. Sardar Mai and on intervention of Mst. Karam she might have sustained some injuries. I was given stick blows by Allah Bakhsh who ran away.
There was no P.W. present at the time of occurrence. The P.Ws. are closely related inter se and have deposed falsely against me on account of relationship with each other and enmity towards me. I myself came to the police station and narrated the whole story to S.I. Muhammad Saleem, who took me alongwith him at the spot and concocted this case against me:"
' He neither gave statement on oath in disproof of the charge against him nor did he produce any witness in defence.
8. Believing the motive, ocular evidence and the incriminating recoveries and disbelieving the defence version, the trial Court has convicted and sentenced the appellant as stated above.
9. Learned counsel for the appellant argued that the eye-witnesses are closely related to the deceased; that the story of the prosecution is false and that the occurrence took place in a manner as stated by the appellant in his statement recorded under section 342, Cr.P.C. The learned Assistant Advocate-General has supported the judgment of the learned trial Court.
10. After attending to the arguments of the learned counsel for the parties and having reviewed the evidence produced by the prosecution, the circumstances appearing in the case and the defence version, we do not feel persuaded to agree with the learned counsel for the appellant for the reasons that the F.I.R. which contains the name of the appellant/accused, the names of the witnesses, the weapons used for the crime and the factum of the arrest of the appellant at the time of occurrence from near the place of occurrence, was lodged after an hour of the occurrence.
There is nothing on record to show that the F.I.R. was not recorded at the place and time as it purports. It is also a case of single accused and a daylight occurrence. There was no serious enmity between the eye--witnesses and the appellant. The occurrence took place in the house of Ghulam Sarwar P.W.1. So, the presence of the eye-witnesses on the spot at the time of occurrence was quite natural. By the fact of injuries on her person, the presence of Mst. Karam Mai on the spot is very much established. Her presence has not been disputed by the appellant. According to the appellant, except the deceased, Mst. Karam Mai P.W.2 and Allah Bakhsh, who successfully ran away from the spot before he could be attacked by the appellant, no other person was present at the time of occurrence. The circumstance of the apprehension of the appellant just from outside the house where the occurrence took place, negates the statement of the appellant that except Mst.
Karam Mai P.W.2, no other prosecution witness was present there. The statements of the eye- witnesses cannot be disbelieved simply because of their relationship with the deceased. We do not see any legal infirmity in their statements. They have stood the test of cross-examination. They have given reasonable explanation of the injuries found on the person of the appellant. The defence plea taken by the appellant seems to be afterthought one, inasmuch as, it was not suggested to the eye-witnesses. It was also not disclosed to the Investigating Officer at any stage.
The appellant has not given evidence on oath in proof of his plea. He has also not produced any defence witness. Had the appellant killed his wife in the house of his in-laws on seeing her in compromising position with Allah Bakhsh, then in view of the state of the general manner of the society in which the parties were living, the complainant would have sided the appellant and not his deceased daughter, the wife. There are cases in which the parents have refused to receive the dead bodies of their daughters indulging in adultery. The appellant has not only failed to prove his defence plea but there is also no reasonable possibility of its being true. For all these reasons, we are convinced that the appellant has rightly been convicted by the trial Court.
11. This brings us to the question of sentence. We have considered this question with utmost care on our part. We find that there are mitigating/extenuating circumstances in favour of the appellant for lesser penalty, inasmuch as in the peculiar circumstances of the case, the possibility of his act of killing his wife being somewhat provoked cannot be excluded.
12. Pursuant to the above discussion, the appeal filed by Umar appellant against his convictions and sentences fails and is accordingly dismissed. However, the sentence of death is reduced to imprisonment for life. The convictions and sentences awarded to him under sections 449 and 307, P.P.C. are sustained. The fine imposed by the trial Court and sentence in lieu thereof and direction for the payment of fine to the legal heirs of the deceased are maintained. The appellant will get benefit of the provisions of section 382-B, Cr.P.C.
SENTENCE OF DEATH IS NOT CONFIRMED