Jafar appellant was convicted under section 302, P. P. C. For the murder of his wife Mst. Shah Bibi on the 31st May 1971, at 8-00 a.m. At a distance of about one mile from Mauza Karam Pur, within the jurisdiction of Police Station, Mailsi and was sentenced to transportation for life by the order of Mr. Ghulam Rasool, Additional Sessions Judge, Multan dated the 24th January, 1973.
2. The defence of the appellant as disclosed by him in his statement under section 342, Cr. P. C. Is as follows:-- "On the said date, I went to the house of my parents-in-law and enquir--ed about Mat. Shah Bibi who was not there. I was told that she had gone out of the house to ease herself. I also went in search of her and suddenly I saw Yaroo Bhatti in compromising position with Mst. Shah Bibi under a Wan tree at some distance from the Karam Pur-Mailsi Road towards the West. On this grave and sudden provocation, I lost self-control. I had a knife with me. Yaroo Bhatti tried to attack me but I warded off and took out knife from my Dub. Yaroo took to heels. I pursued him upto some distance.
He ran away. I then returned to Mst. Shah Bibi and finding her naked, I also chased her and in a fit of acute provocation, fury and anger, I gave her two injuries one in her abdomen and the other ors her back. The two witnesses Allah Ditta and Muhammad Nawaz were not there. I had a dispute with Allah Ditta, a day prior to the occurrence and had actually abused him. This Chhuri P. 4 does not belong to we nor the clothes P. 2 to P. 3 belong to me nor the shoes P. 1/1-2 belong to me. These things have been planted on me. The P. Ws. Allah Ditta and Muhammad Nawaz also did not see the occurrence. Ghulam Haider, However, did see Yaroo Bhatti and Shah Bibi running naked at the time of the occurrence."
3. The case of the prosecution rested on the ocular evidence of Allah Ditta and Muhammad Nawaz (P. Ws. 8 and 9) but their evidence was not relied upon by the learned Additional Sessions Judge.
He, however, held that the statement of P. W. 9 lent support to the version of the accused, since he had admitted that Mat. Shah Bibi was lying naked from her lower portion, and her mother put on trouser of the deceased on her lower body. He had also admitted that he saw a person running ahead of the appellant. He further conceded that Yaroo Bhatti had illicit relations with Mst. Shah Bibi deceased. The learned Additional Sessions Judge considered the above--mentioned statement of the appellant and held that he went searching after the deceased as he suspected her to be of loose character. In his view this amounted to anticipating or seeking provocation and in these circumstances, the provocation if any was not sudden although it might have been grave.
He, therefore, held that the appellant was not entitled to the benefit of Exception I to section 300, P.
P. C.
4. I do not agree with this finding of the learned Additional Sessions Judge. It is established by the evidence of P. W. 9 that Mst. Shah Bibi had illicit relations with Yaroo Bhatti and at the time of the occurrence also she was naked. He had also seen a man running ahead of the appellant. In this view of the evidence the defence version was established on the record. By no stretch of imagination could it be said to be a case of seeking provocation. The appellant appears to have seen Mst. Shah Bibi in a compromising position with Yaroo Bhatti and also naked and without any trousers. In these circumstances, a case of not only grave but sudden provocation was made out.
The fact that the appellant suspected his wife of infidelity is not sufficient to hold that he could not be provoted suddenly by seeing his wife naked and in a compromising position with another person.
5. I, therefore, convert the conviction of the appellant from one under section 302, P. P. C. To one under section 304, Part I, P. P. C. And reduce his sentence from transportation for life to 4 years' rigorous imprisonment. The appeal is accepted to this extent.