S.M. ZUBAIR, J.- This appeal through jail is directed against judgment dated 20.7.1989 passed by the learned Sessions Judge, Gujrat whereby he convicted the appellant under Section 302 PPC for having committed the murder of his wife Mst. Bashir Bibi and sentenced him to imprisonment for life with a i.e of Rs.2000/- or in default of payment of i.e to further undergo R.I. For one year. He was further directed to deposit a sum of Rs.5000/- to be paid to the heirs of the deceased as compensation or in default to further undergo six months S.I. Benefit of Section 382-B Cr.P.C, was extended to him.
2. Briefly the prosecution case as per F.I.R, is that Mst. Bashir deceased was the daughter of Noor Ahmad complainant and was married to Muhammad Yaqoob accused about 10/11 years ago and as such was residing with him in his house in village Darya Khatana. The complainant and his son Sher Ali who was also married with Mst. Halima, daughter of Ramzan, also from village Darya Khatana and it is alleged that about 3/4 days before the present occurrence Mst. Halima had come to the house of her parents in village Darya Khatana for meeting them. A day before the present occurrence, in the evening complainant had come to the house of his daughter-in-law for carrying her back, so he passed the night there and the next day i.e. On the day of occurrence at about 11/12 a.m. The complainant along with Ramzan and Sardar Khan son of Boota Arain of Darya Khatana, left for the house of his daughter Mst. Bashir Bibi for seeing her and so on entering the courtyard of the house of the lady they heard the shrieks of his daughter and as such rushed to the room where he saw Muhammad Yaqoob accused giving Toka blows to Mst. Bashir Bibi which fell on her neck and she then fell down on the ground. The complainant along with Ramzan and Sardar Khan captured Yaqoob accused at the spot with Toka. Mst. Bashir Bibi died of the injuries.
The motive for the crime was that Yaqoob accused was suspecting that his wife Mst. Bashir had illicit relations with one Dr. Fayyaz and being aggrieved of the same, he committed the murder of Mst .Bashir Bibi by giving her Toka blows. Leaving the dead body at the spot under the care of Ramzan as Sardar and Yaqoob accused in the custody of Rehmat son of Ahmad Khan Councillor of the village, the complainant then left for the Police Station (Kunjah where his statement FIR (Ex.PD) was recorded by Hussain Akhtar S.I/SHO of the aforesaid Police Station.
3. The investigation in, this case was conducted( by Hussain Akhtar S.I/SHO(P.W.7). After recording the F.I.R, he reached the spot and prepared injury statement Expwy/l and the inquest report PW.7/2.
And despatched the dead body to the mortuary for postmortem examination. He inspected the spot, took into possession blood-stained earth vide memo Ex.PW.7/3. At the spot Muhammad Yaqoob accused was produced before him by Rehmat Khan P.W. Where he arrested the accused.
He took into possession bloodstained chadar of the accused vide memo Ex.PW/7/4. The aforesaid P.W. Produced before him blood stained toka P7 recovered from the accused, which he took into possession vide memo Ex.PW.7/5. On the next day he took into possession the last worn clothes of the deceased vide memo Ex.PA. He also got prepared the site plan of the place of occurrence in duplicate Ex. PB and PB/1. After completing all the formalities, he submitted the challan in Court.
4. On 11.2.1988 at 1.15 p.m. Ch. Shafique Ahmad M.O.(P.W.4) conducted the postmortem on the dead body of Mst. Bashir Bibi and he found following injuries on her person:-
1. An incised wound 12 cm 6 cm bone deep on left side of neck and reaching to front of neck.
Irregular in shape with cutting the soft tissues.
2. An incised wound 3 cm 1 cm 2.5 cm on left ear. The lobe of the left ear was cut but hanging with the remaining ear.
3. An incised wound about 10 cm x 7 cm into bone deep on right side below the right inedible and extending to the right side of the neck. The wound was oblique in appearance, irregular in shape and had cut the -oft the tissues.
4. An incised wound about 5 cm x 0.5 cm x 4 cm deep just from of right ear. The lobe of the right ear was cut but hanging with the remaining ear.
In the opinion of the doctor injuries No. 1 and 3 were sufficient to cause death in the ordinary course of nature due to hamorrhage and shock while injuries 2 and 4 may be contributory to the above injuries. The probable time that elapsed between injuries and death was few minutes and between injuries and death was few minutes and between death and postmortem was 20 to 36 hours.
5. When examined under Section 342 Cr.P.C, the appellant denied the prosecution allegations and in answer to question "why this case against you" stated in the following words:- "The case is false and so has been brought facts against me. The real facts are that on the day of occurrence 1 returned to my house after doing the labour and saw my wife Mst. Bashir Bibi in compromising position with said Dr. Fayyaz and 1 lost my senses, picked up the Toka lying in my house and gave injuries to my wife and in the sequence Fr. Fayyaz managed his escape and I committed no offence. Nobody witnessed the same and the police concocted this false version".
6. Placing reliance on the ocular testimony furnished by Noor Muhammad (P.WJ) and Muhammad Ramzan (P.W.6)fortified by the recovery of the blood stained Toka at the instance of the appellant, the learned trial Judge convicted the appellant and gave him the sentence as mentioned above.
7. The learned counsel for the defence who has appeared on State expense contended that the plea of the appellant that he killed his wife in grave and sudden provocation was not properly appreciated by the learned trial Judge. He contended that the appellant has not denied the killing of his wife Mst. Bashir Bibi but he had taken up a plea of grave and sudden provocation which is borne out from the circumstantial evidence, hence the appellant is entitled to the benefit of that plea and his conviction can only be maintained under Section 304 PPC and not under Section 302 PPC.
8. The learned counsel for the State has supported the judgment of the learned trial Court.
9. 1 have heard the learned counsel for the parties and have gone through the record minutely with their able assistance.
10. Admittedly, it is a case of two versions; one version is advanced by the prosecution and the other version has been given by the appellant as defence plea. The salutary principle for the just decision of the case of two versions is that both the versions are put in juxta-position and then the Court has to see which version is more probable and nearer to the truth in view of the direct or circumstantial evidence available on the record subject to this qualification, that onus of proof always remains on the prosecution.
11. Applying the aforesaid principle of law to the facts of this case I find, in the present case, the ocular version is being supported by Noor Muhammad father-in-law of the appellant and Muhammad Ramzan P.W.6 who were present there at the time of occurrence, and they gave straight forward and confidence inspiring evidence, in this case, which stands corroborated by the arrest of the appellant at the spot. The prosecution version given by them is further being fortified by the recovery of Chaddar P.6 and Toka P.7 at the instance of the appellant. Even the appellant has not denied the occurrence but he has taken the plea of grave and sudden provocation. There is nothing on the record to suggest that these two eye witnesses had any animosity with the appellant to falsely implicate him in this case or to substantiate the defence plea.
12. I have carefully examined the defence plea with the assistance of the learned counsel for the defence and I am afraid, there is no material available on the record to justify his plea of grave and sudden provocation. The appellant had not taken up this plea in the first instance before the Police.
Even there is no direct on circumstantial evidence available on the record to justify his plea. The defence plea seems to be an after thought and not supported by any evidence hence rejected.
13. The up-shot of the above discussion is that the prosecution has proved its case against the appellant beyond reasonable doubt. This appeal being devoid of force is dismissed in toto.