JUDGMENT IFTIKHAR HUSAIN CHAUDHRY, J.- Rab Nawaz was convicted under Section 304 Part-1 P.P.C, and awarded sentence of 10 years with a fine of Rs.10,000/- or in default of payment of fine, he was to undergo R.I. For a period of two years further, by judgment dated 31.8.1991 of learned Addl.
Sessions Judge, Chakwal. He has appealed against conviction and sentence awarded to him.
2. Raj Wali (P.W.7) reported to the Police that he was present in the house of Rab Nawaz, his father- in-law, when at about 9.00 a.m. There was exchange of words between Mst. Bakhat Bhari were of Rab Nawaz and Rab Nawaz. Allegedly Rab Nawaz picked up a 12-bore gun lying nearby and gave a number of blows on the different parts of the body of Mst. Bakhat Bhari. In the meantime, Ghulam Muhammad (P.W.8) also arrived and both of them took their mother-in-law in unconscious condition to Tehsil Headquarters Hospital, Tala Gang where 'She expired. The appellant was arrested, tried in the Court of learned Addl Sessions Judge, Chakwal and was convicted as mentioned above.
3. At the trial Raj Wali (P.W.7) and Ghulam Muhammad (P.W.8) who were sons-in-law of the appellant appeared as eye witnesses while the rest of the witnesses are of formal nature.
Muhammad Irshad, Medical Officer (P.W.11) proved injuries on the person of Mst. Bakhat Bhari which were seven in number and all were caused with a blunt weapon. Raj Wali and Ghulam Muhammad P.Ws proved the case as given in the F.I.R. However, during cross-examination Raj Wali admitted that he had strained relation with the appellant prior to this incident, so is the case of Ghulam Muhammad P.W.
4. The appellant after the conclusion of prosecution evidence in his statement recorded under Section 342 Cr.P.C, in answer to question No.2 stated that:- "In fact there was dispute with the deceased over some domestic matter and the deceased started abusing me and she hurled filthiest abuses on which I lost temper and under grave and sudden provocation I picked up my licensed gun which was lying nearby and inflicted some blows to the deceased in heat of passion. It is correct that Rajwali PW is my son-in-law but neither he n9r Ghulam Muhammad was present at that time and they did not witness the occurrence".
5. Learned counsel appearing for the appellant has stated that it was a case of admitted occurrence; the plea of sudden and grave provocation was raised, supported by the prosecution evidence itself, and believed by the learned trial Court. As such, the sentence awarded to the appellant is not a in accordance with the principles laid down in various cases; for example 1975 P Cr. LJ. 448 (Safdar Ali Vs. The State)
6. Learned Assistant Advocate General appearing on behalf of the State has supported the judgment of the learned trial Court.
7. After hearing the learned counsel for the parties and going through the record, it is found that the prosecution case itself is that there was exchange of abusive language between the appellant and his were and thereafter he inflicted blows with Butt-end of a 12-bore gun belonging to him. The defence plea is also in the same terms, therefore, the only question which needs determination in this case is that of sentence. There is nothing on the record which shows what were the particular words used by either of the parties and in fact; who initiated the provocation. Since it has not been proved on the record as to what was the intemperate language used, therefore, the conviction of the appellant under Section 304 Part-1 PPC is justified. Since the prosecution case itself spells out a case of sudden and grave provocation, the benefits available under the law has to be extended the appellant. Since the nature and extent of provocation has not been brought on the record by either of the parties, the charge against the appellant would not stand completely obviated. If the defence had brought on record the exact words used or other circumstances which gave the provocation, the appellant could have claimed acquittal also. In the absence of that the appellant is entitled to lesser punishment only. Accordingly, while maintaining the conviction under Section 304 Part-1 PPC, of the appellant, he sentence is reduced to six years R.I. And a fine of Rs. 5,000/-, in default of payment of fine, he will have to undergo six months S.I. Further. The benefit available to the appellant under Section 382-B Cr.P.C, shall also extend to him.
With this modification in the sentence, the appeal is dismissed.