Ikhlaq Ahmad appellant was convicted by learned Additional Sessions Judge, Sialkot vide judgment, dated 6-10-1991 and sentenced to 5 years' R.I. And a fine of Rs.20,000 or in default thereof one year's R.I. Each on two counts under section 304, Part I, P.P.C. The present appeal was filed on 10-12-1991. It was time-barred. Application under section 5 of the Limitation Act was filed with the plea that the appellant being in jail and none being there to look after his interest he has filed appeal from the jail. In the circumstances the delay is condoned. Criminal miscellaneous is allowed. It may be treated as appeal:
2. The occurrence took place on 23-1-1990 at 2-00 p.m. In the village Abadi of the appellant. Mst.
Robina the sister of the appellant was given Chhuri blows inside the house of the complainant family while Zahid Farooq deceased (18 years) the son of Muhammad Siddique complainant was given Chhuri blows in the street near the village mosque. Ch. Abdul Majeed Sub-Inspector (P.W.13) reached the spot on coming to know of the occurrence and there recorded the statement of Muhammad Siddique complainant (Exh.P.H.) on the basis of which formal F.I.R. (Exh.P.H./1) was registered on the same day at 4-00 p.m.
3. The version given by Muhammad Siddique complainant (P.W:9) in the F.I.R. Was that on 21-1-1990 over the construction of culverts, the appellant and his co-accused Iftikhar Ahmad had disputed with Zahid Farooq, the appellant and Zahid had exchanged abuses whereafter the appellant had left throwing a threat. On the day of occurrence when Zahid was emerging from the village mosque after offering prayer the appellant attacked him with Chhuri, after -finishing him he ran to his house and then finished his sister Mst: Robina under a pre-planning. The occurrence had been taken in hand at the instance of Ikhlaq, War, Maqbool, Bashir and Iftikhar.
4. Only the appellant was challaned to the Court, the others mentioned in the F.I.R. For conspiracy were let off by the police. The plea of the appellant at the close of the trial was that when he returned to his house, saw the two deceased in` compromising position, he was infuriated, lost control and picking up a Chhuri ran after Zahid Farooq who was finished at a little distance from the house while Mst. Robina was finished inside the house.
5. The learned Additional Sessions Judge after review of the eye-witnesses account and the evidence produced by the prosecution, accepted the plea of grave and sudden provocation.
Learned counsel for the appellant has frankly conceded that he would not challenge the conviction but requests that the sentence awarded was severe particularly the fine which in the circumstances of the case was wholly uncalled for. None has appeared for the State and the negligence is very much clear. Anyhow, the negligence of the State counsel would not debar the Court to proceed with the decision.
6. After hearing the learned counsel for the appellant and going through the record and the judgment delivered by the learned Additional Sessions Judge the conclusion seems to be correct that due to grave and sudden provocation the two deceased were finished by the appellant.
According to his statement the paramour had started running and was finished at a little distance from the house. In the whole -of the evidence produced by the prosecution there is nothing to indicate as to how far, was .His place of murder from the house of the appellant family. It is also to be noted that the plea was raised by the appellant before the Investigator and was accepted. This acceptance was not a concession by the Investigator inasmuch as even from the medical evidence as correctly appreciated by the learned trial Judge the swabs taken from the dead bodies of the two deceased indicated that sexual intercourse had taken place. Thus, the conviction under section 304, Part I is upheld on the two counts.
7. It was a broad day occurrence. The two deceased' were having good time in the house of the appellant. The appellant is a young man of 20 years and so the provocation must be of extreme type. In the circumstances sentence of 3 years' R.I. On each count would suffice. The sentence of fine in the C circumstances of the case is wholly uncalled for. The same is set aside in toto. The sentences would run concurrently and the appellant would have the benefit of the provisions of section 382-B, Cr.P.C.
N.H.Q./I-32/L