' MUHAMMAD SIDDIQ, J.-3//sr. Zohran deceased was first married to one 'Muhammad Nawaz and she gave birth to two children, namely, Manzoor Ahmad (son) and Afst. Sarwar Mai (daughter). She was divorced by her husband She then married one Kaloo out of whom she had one daughter, namely, Mst. Anwar Mai P. W. Kaloo also divorced her. She then married Muhammad Ramzan, father of the present appellant, Ghulam Hussain alias Hasna, whose wife (mother of the appellant) had died. At the time of marriage, the said Muhammad Ramzan had executed an agreement (Exh.
P. B.) in favour of Mst. Zohran deceased. According to this agreement. He agreed to alienate his haveli and two kanals of land in favour of the deceased as and when she would make a demand to this effect. About a year prior to the occurrence, at the instance of the deceased, Muhammad Ramzan sold four kanals of his land in favour of Ata Muhammad (P. W. 10).
' According to the prosecution, some time before the occurrence the deceased started demanding the alienation of the haveli and the land in her favour according to the agreement. Ghulam Hussain appellant, who is the son of Muhammad Ramzan from his previous wife, was not happy about the marriage of his father with the deceased and was also aggrieved about the sale of land by his father. According to the prosecution version, on the day of occurrence namely, 21-9-1970, at about midday, the appellant came to the house of his father. At that time Mst. Zohran deceased was sitting in the house preparing a mat while her minor daughter Mst. Anwar Mai P. W. From her previous husband Kaloo was also there. The appellant gave repeated knife blows to the deceased killing her at the spot. Thereafter, he chained the door of the Kotha from outside and went away.
The girl Mst. Anwar Mai raised hue and cry but nobody was attracted. She ultimately succeeded in getting out of the room through a ventilator. She went to the house of her maternal uncle Ibrahim P.
W. Which was at a distance of about 100 karams and reported the matter to him. Ibrahim and Allah Bakhsh went to the place of occurrence and found the Kotha chained from outside. "On opening the same they found Mst. Zohran lying dead. Khuda Bakhsh and Imam Bakhsh at that time were standing at a distance of about 20 karams from that Kotha. Ibrahim left Allah Bakhsh at the spot to look after the dead body and himself proceeded to Police Station Leiah. Before reaching the police station, he met Abdul Hamid A. S.
1. Near the post office and informed him about the occurrence. The police officer recorded the statement of Ibrahim (Exh. P. A.) at 4 p.m. On the same day, namely, 21-9-1970, and forwarded the same to the police station for preparing a formal F. I. R. Muhammad Latif A. S. I. Then prepared the formal F. I. R. (Exh. P. A./1) at 4-30 p.m. On the same day. Abdul Hamid A. S. I. Proceeded to the place of occurrence. On reaching there, I e prepared the injury statement (Exh. P. H.) and the inquest report (Exh. P. J ) and despatched the dead body to the mortuary for post-mortem examination. He took into possession blood-stained earth from the scene of offence and sealed the same into a parcel vide Memo. Exh. P. E. Ibrahim P. W. Produced before him agreement (Exh. P. B.) which was taken into possession vide Memo. Exh. P. F. The appellant was taken into custody on 24-9-1970 and he producei knife iExh. P. 1) which was blood-stained and was sealed into a parcel vide Memo. Exh.
P. C. He also got the site plan (Exh. P. G.) prepared by Abdul Khaliq Qureshi P. W. After usual investigation, the appellant was challaned under section 302/342, P. P. C. He was tried by the Sessions Judge, Muzaffargarh, who vide judgment dated 21-12-1972, held him guilty and sentenced him to death under section 302, P. P. C. For the murder of Mst. Zohran deceased and to three months' rigorous imprisonment under section 342, P. P. C. The sentence of three months' rigorous imprisonment was ordered to be undergone by the appellant if the sentence of death was not confirmed by this Court. The appellant has challenged his convictions and sentences before this Court through the present appeal. The case is also before us under section 374, Cr. P. C. For the confirmation of the sentence of death. This judgment will dispose of the Criminal Appeal as well as the Murder Reference.
2. Dr. Muhammad Saeed performed the post-mortem examination on the dead body of Mst.
Zohran on122-9-1970 at 1-20 p.m. And found the following injuries on it:-
(1) A part of the skin and subcutaneous tissue of the right little finger was chopped off.
(2) An incised wound, I r x 3/4" bone deep on the front of right fore-arm,
(3) Punctured wound, 3/4" x 1/2" on the front of left chest, 1k" away from the midline.
(4) Punctured wound, 1 r x 1/2" on the front of lower most part of right chest extending to epigastrium.
(5) Punctured wound, 3/4" x 1/2", on the lateral part of right (sic) gland.
(6) Punctured wound, 3/4" x 1/2", on the front of right abdomen at the level of umblicue.
(7) An incised wound, 1" x 1/2", on the autrolateral aspect of left abdomen.
(8) Skin deep incised wound, 14"x 1/3", on the left lateral aspect of the neck.
(9) Punctured wound, 3/4" x 1/3", on the lateral aspect of left chest.
(10) An incised wound, 1" x 1/3" x e" on the back of left shoulder.
(11) Incised wound, l" x x i" on the back of left scapular region.
(12) Punctured wound, 3/4" x 1/3", on the back of upper part of right chest 1" away from midline.
(13) Incised wound, lr x 1/3" x skin deep, close to the root to the neck on the right side. The shirt of the deceased was cut corresponding to injuries Nos. 3 to 7 and 9 to 12.
' In the opinion of the doctor cause of death was shock and haemorrhage due to injury to pleurae, both lungs, paritonium, spleen and large intestine-which was the result of injuries Nos.
3. 4, 6 and 7. Each of these injuries in itself was sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged weapon and were ante-mortem. Time between the injuries and death was about 10 minutes and between death and post-mortem examination 24 to 36 hours.
' The doctor took vaginal swa bs from the deceased and sent them under sealed parcel through the police to the Chemical Examiner who vide report (Exh. P. K.) found the same stained with semen.
3. The appellant when examined under section 342, Cr. P. C. Denied the prosecution allegations.
When asked why this case was made against him and why the P. Ws. Were deposing against, he stated as under:- "P. W. Ibrahim used to suspect my illicit relations with his wife and on that account has falsely implicated me in this case. Mst. Anwar Mai and Sarwar Mai live with him or are under his influence and have been tutored by him to give evidence against me. P. W. Khuda Bakhsh is also deposing at the instance of P. W. Ibrahim."
' He, however, did not produce any defence evidence.
4. According to the F. I. R., the occurrence was witnessed by Imam Bakhsh (given up) and Khuda Bakhsh (P. W. 13), Mst. Anwar Mai, a minor daughter of the deceased from her previous husband Kaloo, claims to be insine the Kotha when the deceased was done to death. Khuda Bakhsh. P. W.
Was declared hostile and the Public Prosecutor was allowed to cross-examine him. Thus, only Mst.
Anwar Mai (P. W. 12) remains in the field to support the actual occurrence. As regards the recovery of the knife from the appellant, the learned Sessions Judge did not believe it. We have also examined the evidence regarding the recovery of the alleged weapon of offence and find that the same has been rightly rejected by the trial Court. Mst. Anwar Mai is a minor girl. According to her, on the day of occurrence at midday, she was chewing sugarcane in front of the Kotha, while her mother Mst. Zohran deceased was sitting inside the Kotha preparing a mat. The appellant came there and inflicted knife blows to the deceased. At the time of inflicting of blows she claims to be inside the Kotha. She was threatened by the appellant to keep quiet. After killing the deceased, the appellant went away by chaining the door of the Kotha from outside. She started weeping and raised cries, but no one was attracted to the place of occurrence. In order to come out of the Kotha she kept one cot over the other and climbed up to the ventilator and then she came down grazing by the side of the wall. She straightaway went to her maternal uncle Ibrahim P. W. And narrated the whole story how the deceased was killed by the appellant. This witness was subjected to lengthy cross-examination, but the defence could not shake her testimony. We have minutely scrutinized her statement and find that she was present at the place of occurrence a the relevant time and had witnessed the occurrence. The mere fact that she is of a tender age is not sufficient to discard her testimony when she has fully stood the cross-examination by the defence counsel. We, therefore, have no hesitation to believe her statement. The mere fact that she is the daughter of the deceased is not sufficient to reject her testimony. The defenc has not brought out any material to show why she should falsely implicat the appellant if she had actually not witnessed him inflicting the injuries on the deceased. If the occurrence had not been actually seen by her the prosecution could not take the risk of producing a witness of such a tender age. They could easily produce some elderly person who could say that he had seen the appellant either killing the deceased or coming out of the Kotha immediately after the occurrence. Her statement is fully corroborated by the medical evidence and the motive that Muhammad Ramzan had executed agreement (Exh. P.
B.) in favour of the deceased and subsequent sale of the land in favour of Ata Muhammad P. W. We are, therefore, convinced that it was the appellant who killed the deceased.
5. However, the prosecution has failed to explain the immediate cause For the murder. The agreement (Exh. P. B) and the sale of the land in favour of Ata Muhammad were already there.
There must have been some immediate cause for this murder. The prosecution has not placed any material to establish such a cause. However, there are certain other features )f the case which are relevant in this behalf. According to the report of he Chemical Examiner (Exh. P. K.) the vaginal swa bs taken from the leceased were found stained with semen. Khuda Bakhsh P. W. Had stated )efore the committing Magistrate that when he and Imam Bakhsh went nside the Kotha of occurrence, they noted that the shalwar of Mst. Zohran ieceased was not on her person. According to the statement of Mst. Anwar vlai, Muhammad Ramzan, the husband of Mst. Zohran deceased, had gone may to the city for half a month before the incident. Khuda Bakhsh P. W. Iefore the committing Magistrate stated that Muhammad Ramzan had ;one to Leiah about a month before the occurrence. According to the tatement of Ibrahim P. W., he saw Ramzan in his house about five days prior to the occurrence. From the presence of semen on the vaginal swabs, is established that somebody had recently committed sexual intercourse with the deceased. The prosecution has not at all explained as to who committed this sexual intercourse and when. The possibility that someone was committing intercourse with the deceased immediately before the occurrence cannot be altogether excluded. The removal of the shalwar from the person of the deceased is a clear indication to support this fact. It was the duty of the prosecution to explain these two circumstances-satisfactorily. In the absence of any explanation whatever the defence can legitimately get benefit from the same that most probably she was committing sexual intercourse with someone and this was the immediate cause of the murder. The appellant seeing her in that position may have been. Provoked. This inference is further supported by the statement of Khuda.
Bakhsh before the committing Magistrate where he has admitted that he had seen one man coming out of the Kotha of Ramzan who ran away and then came Hasna out of the Kotha. The presence of another man, apart from the appellant, coming out of the Kotha strongly supports the defence suggestion that the deceased being of a loose character must be having intercourse with some other person getting benefit of the absence of her husband from the house. As regards the character of the deceased, it is an admitted fact that she married three persons one after the other. It is admitted by Ghulam Husain (P. W. 9) that she was divorced by her previous husbands, because she was a person of loose character. This witness had also stated before the committing Magistrate that the deceased had eloped several times before and was not of good character. Haji Faiz Muhammad (P. W. 15) before the committing Magistrate admitted that she was enticed away and was not of good character. Thus, there is sufficient material available on the record to show that Mst. Zohran deceased was of loose character. In this background, the possibility that in the absence of her husband from the house she was having intercourse with someone else and was witnessed by the appellant who under grave and sudden provocation killed her, cannot be excluded. Accordingly, we find substance in the defence suggestion that appellant Ghulam Hussain acted under grave and sudden provocation in killing the deceased.
6. For the foregoing reasons, we alter the conviction of the appellant from one under section 302, P.
P. C. To section 304, Part I, P. P. C. And sentence him to undergo rigorous imprisonment for five years. However his conviction and sentence under section 342, P. P. C. Are maintained a' we have believed the testimony of Mst. Anwar Mai. Both these sentence shall run concurrently. This appeal accordingly stands disposed of in the above terms. The sentence of death is not confirmed.