' Muhammad Riaz alias Kala son of Muhammad Din aged 23 years was sent up to face trial for the charge under section 302, P.P.C. for committing the murder of Muhammad Hussain deceased before the learned Sessions Judge, Sialkot who vide judgment dated 12-7-1990 convicted the appellant and awarded him sentence of imprisonment for life and a fine of rS,15,000, in default of payment of fine to undergo R.I. for two years. ' rS,10,000 was directed to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. out of the amount of fine, if recovered.
3. The brief facts of the prosecution case as narrated are that on 7-3-1989 at about 6-30 p.m.
Muhammad Yaqoob complainant, his deceased son Muhammad Hussain and Mst. Hanifan, wife of the deceased were present in their Hawaili when the appellant armed with Chhuri appeared at the scene and shouted at the deceased to kill him as he had insulted his mother and caused successive Chhuri blows on the person of the deceased. The occurrence was witnessed by Shahzad Hussain alias Judge Shah and Abdul Hakeem P.Ws. The motive for the occurrence as stated in the F.I.R. was that deceased had entered into an altercation with his aunt Mst. Hajra Bibi mother of the appellant 5/6 days prior to the occurrence on account of some family dispute. The deceased had pushed Hajra Bibi who was reprimanded by the complainant and the matter was settled but the appellant on his return from Karachi, on coming to know about the incident took it serious not to tolerate and attacked the deceased. The accused was arrested on 12-3-1989 by Muhammad Tufail Hayat Inspector S.H.O. P.W.11 and he led to the recovery of blood-stained Chhuri P.4 wrapped in shirt P.5 and Shalwar P.6 from graveyard of the village which was taken into possession vide Memo. Exh.P.C., shirt P.5 and Shalwar P.6 were taken into possession vide memo.
Exh.PD. The recovery was witnessed by Abdul Ghafoor P.W. 5 and Investigating Officer P.W.11. Abdul Majeed was given up. Doctor Gul Nawaz P.W.6 conducted the post-mortem examination of the deceased and found the following injuries:-- External injuries;---
(1) Incised wound 3 x 1/2 c.m. skin deep back of left elbow joint.
(2) Incised wound 4 x 1 c.m. muscle deep on the left nipple.
(3) Stab wound 7 x 2 c.m. abdominal cavity deep on the left hypochondrium. Intestines lying outside through the wound.
(4) Stab wound 2-1/2 x 1/2 c.m. on outer aspect of left chest lower part. Wound was chest cavity deep.
Internal injuries:-- ' Injuries Nos.1 and 2 were only skin and muscle deep. Under injury No,3, skin, muscles, peritoneum, large and small intestines and abdominal aorta were cut. Stomach was also cut. Abdominal cavity was full of clotted blood. Under injury No,4, skin, muscles, left plcaurae and left lungs were injured.
Left chest cavity was full of blood. Stomach was empty. Urinary bladder was also empty.
' In the opinion of the doctor all the injuries were caused with sharp-edged weapon. Injuries Nos.1 and 2 were simple in nature while Injuries Nos.3 and 4 were sufficient to cause death individually and collectively.
4. The eye-witness account was furnished by Muhammad Yaqoob P.W.9 father of the deceased and Abdul Hakecm P.W.10. Shahzad Hussain alias Judge Shah was given up as won over.
Muhammad Tufail Hayat Inspector S.H.O. P.W.11 investigated the case and submitted the challan.
5. The accused in his statement under section 342, Cr.P.C. took the plea of grave and sudden provocation. His reply to question No,11 was as under:-- ' It is a false case and is concocted by Muhammad Yaqoob complainant with the help of the police.
In fact, Muhammad Yaqoob and his deceased son Muhammad Hussain wanted to annex our land after the demise of my father as I and my brothers were living outside the village and were working as labourers except the youngest one who was with our widowed mother Mst. Hajran Bibi. The complainant side used to harass and pester my mother to give up the land in their favour which she used to cultivate by engaging a tractor on hire basis. The complainant and his son were aggrieved of this and the deceased picked up a row with my mother and gave her beating openly and also insulted her in public. I came to know about this insult of my mother when I returned from Karachi on a routine visit to my family on the day of occurrence. I reached the village after 4 p.m. and went straight to the grave of my father to offer Fateha. Thereafter, I came home and learnt that my mother was insulted and beaten by the deceased two days earlier. I lost my control on hearing that my mother was gravely insulted, picked up a kitchen knife from the house and went to the Haveli of the deceased and in a fit of passions attacked him with Chhuri. Thereafter, I went to Zafarwal Police Station under the impression that the same was our police station but the police from P.S. Sabz Pir came over there and took me away and planted this case upon me alongwith the Chhuri.
6. The learned counsel for the petitioner contends that on coming to know about the insult of his mother by the deceased appellant in grave and sudden provocation attacked the deceased without premeditation and intention to kill. According to the learned counsel the knowledge of the appellant for the insult of his mother is the only factor to determine the grave and sudden provocation and not the actual incident of insult a few days earlier. He submitted that the gravity of provocation depends upon the degree of its feeling. He argued that the case of the appellant is covered by Exception 1 of section 300, P.P.C.
7. The learned counsel for the State supported the judgment of the learned trial Court.
8. The appellant admitted the occurrence with the plea of sudden and grave provocation therefore the sole question to be determined is as to whether it is a case of falling within the purview of Exception 1 of section 300, P.P.C. or not.
10. The incident of insult took place in the absence of appellant a few days earlier to the occurrence which was narrated to the appellant, by his mother on his return from Karachi. The narration of earlier incident of insult by Mst. Hajran to the appellant does not provide an occasion of provocation by the deceased rather it can be an instigation on the part of lady to take revenge of her insult by the deceased. In fact it was a sort of provocation to the appellant by her mother who without realizing the consequences and visualising the result made complaint of her insult to the appellant immediately after his arrival at home. The appellant further without verifying the correct position decided to deal with the deceased. No benefit of self-provocation can be allowed. The provocation for the purpose of Exception 1 to section 300, P.P.C. must be direct, sudden and grave.
Had the appellant been present at the time of incident of insult of his mother by deceased, the matter would have been different but the provocation pleaded by the appellant even of a high degree c cannot be considered provocation to attract the provision of section 304, P.P.C. There being no exception to the findings of the learned trial Court, this appeal fails. The conviction and sentence awarded to the appellant is maintained and appeal is dismissed accordingly. However, he is given the benefit section 382-B, Cr.P.C.