' This appeal is addressed through Jail by Faqir Shah against the judgment dated 22nd April 1975 of the learned Sessions Judge, Rawalpindi, convicting him under section 302 of the Pakistan Penal Code with a sentence of life imprisonment and a fine of Rs, 2,000 or in default rigorous imprisonment for one year for committing the murder of his former wife Mst. Hussan Zeba on 7th May 1974, at about 8-15 a.m. In the house of one Ghulam Jilani of Mohallah Fazalabad.
2. It was alleged that Mst. Hussan Zeba (deceased) after having obtained a divorce from Faqir Shah appellant had married Abdul Wahid 3/4 years prior to this occurrence and both of them were living in the upper portion of the house of one Ghulam Jilani as tenant. On the eventful morning Abdul Wahid had gone to the bazar to fetch cigarettes and on his way back to his house he heard some alarm in his deurrahi which also attracted Abdul Karim and Ghulam Haider P. Ws. Two passersby, whom he saw rushing inside. On this commotion he hastened in that direction and found Faqir Shah Appellant inflicting knife blows on the person of Mst. Hussan Zeba (deceased) after she had fallen injured inside this deurrahi. They overpowered him and snatched blood- stained knife (P. 1) from his hand, but his victim had succumbed to her injuries in the meanwhile.
3. Leaving the appellant and the dead body in the care of the others he (Abdul Wahid P. W.) went to Police Station "C" Division where he lodged the report Exh. P. A. About it at 9 a.m., the same day.
4. After the registration of the case Sub-Inspector Raja Pir Muhammad (P. W. 9) came to the spot and prepared injury statement Exh. P. Q. And the inquest report Exh. P. R. Of the deceased and despatched her dead body to the mortuary through F. C. Taj Muhammad (P. W. 3). After the postmortem examination the said Food Constable produced shalwar (P. 5), shirt (P. 6) and chadar (P. 7) of the deceased before the S. I. Who secured them vide memo. Exh. P. M. Ghulam Haider P. W.
Produced blood-stained knife (P. 1) before him which he made into a sealed parcel vide Exh. P. E. He also secured blood-stained earth and a blood-stained piece of broken glass and a pair of chappels (P. 8/1-2) (one stained with blood) vide Exhs. P. B., P. C. And P. D. Respectively. He arrested the appellant and removed his blood-stained clothes viz., shirt (P. 2), slooka (P. 3) and shalwar (P.
4) and sealed them into a parcel vide Exh. P. G. The S. I. Prepared his injury statement (P. 2) and got him medically examined. The appellant produced documents Exhs. P. H., P. H./1 to P. H./8 which were taken into possession vide Exh. P. J.
' On 12th May 1974, Abdul Waheed P. W. Produced a copy of nikahnama Exh. P. F. The Sub-Inspector got prepared site plans Exhs. P. L., P. L./1 and P. L./2 from Draftsman Muntazir Khan (P. W. 5) and after appending his notes thereon in red ink signed the same in token of its correctness.
5. On 7th May 1974, at 4 p.m., Dr. Abdul Majid (P. W. 1) held autopsy on the dead body of Mst. Hussan Zeba (deceased) and found the following injuries vide Exh. P. N. :-
(1) An incised wound on left cheek 1" from nose 1"x 1/2 "x 2"."
(2) An incised wound 1/2" in front of left ear 1" 1/2" X 1/2.
(3) An incised wound left forearm back lower third portion 1" 1/4" Xi".
(4) An incised wound above left buttocks 3"x2"x abdomen deep oblique.
(5) An incised wound on the left chest 2" below left breast 1" 1/2" X cavity deep.
(6) A linear cut wound 1/2"X 1/16" above injury No, 4.
(7) An incised wound on inner portion of left breast 1"X 1/4" x1/4".
(8) An incised wound 1" from injury No, 7 on the left chest front 1" 1/2" X chest cavity deep.
(9) An incised wound 2" below injury No, 7, 1-1/2x abdomen deep.
(10) An incised wound on the right breast inner side 1" X 1/2" X 1".
(11) An incised wound 1/2" X 1/4 " 1/3", 1" below injury No, 10.
' On opening the chest, pleura and heart were found cut under injury No,
8. On opening the abdomen, peritoneum and liver were found. Cut under injuries Nos. 4 and 9. Stomach contained watery fluid. All the injuries were caused with sharp-edged weapon and were ante-mortem.
Injuries Nos. 4, 8 and 9 were grievous while the rest were simple. Death, in his opinion was the result of shock and hemorrhage due to three injuries Nos. 4, 8 and 9, which were sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injuries and death was immediate and between death and post-mortem was twelve hours.
' On the same day at 3-10 p.m., the same doctor examined Faqir Shah appellant and found the following injuries on his person
(1) An incised wound in the first interdigital space of right hand 1" x 1/4"X 1/2".
(2) An incised wound on the terminal phalynx of right middle finger 3/4" x 1/4" x 1/4".
(3) An abrasion with swelling l' X 1/4" (swelling 2" x r) on the right forearm back upper third.
(4) An incised wound on right shoulder blade 1/4"X 1/4", cut over shirt and bunian present.
' All the injuries were simple. Injury No, 3 was caused by blunt weapon and the rest by sharp-edged weapon.
6. At the trial in addition to the above detailed medical evidence and that of the recoveries the prosecution had relied for its case on the testimony of Abdul Wahid, Ghulam Haider and Abdul Karim P. Ws. Each of whom had in a chorus like manner supported the above narration.
7. The appellant denying the recovery of blood-stained knife and clothes pleaded not guilty and had put forth his version of the occurrence as under :- "I came to take back Mst. Hussan Zeba, and when she was with me along with her brother in the deurrahi, Abdul Waheed P. W. Came and attacked us and caused her injuries with knife. When I intervened, Abdul Waheed P. W. Caused injuries to me also."
' His statement before the Committing Magistrate was a bit detailed and it will not be out of place to reproduce it here in verbatim :- "Mst. Hussan Zaiba was my wife but I never divorced her .....................................
' Mst. Hussan Zaiba was my lawfully wedded wife. She disappeared from my house and I had been searching for her till I learnt that she was in the house of Abdul Waheed P. W. Living in the second storey. I went to her and asked her to accompany me and she agreed and came down in the deurrahi when Abdul Waheed P. W. Attacked her and caused her injuries with the knife (P. 1). When I tried to intervene Abdul Wahid P. W. Caused injuries to me as well. This false case has been concocted against me to save Abdul Wahid from the consequence of his having murdered Mst.
Hussan Zeba."
' In that statement he had admitted the removal of blood-stained clothes (P. 2 to P. 4) from his person by the police, but denied the snatching of knife (P. 1) from his hand by Ghulam Haider P. W.
8. Learned trial Judge rejecting his plea had accepted the prosecution version as true and correct account of the occurrence and held the appellant guilty of the murder of Mst. Hussan Zeba (deceased).
9. This finding has been assailed before me as unsustainable in view of grave and sudden provocation which could be clearly spelt out from the inherent circumstances of the case.
10. Ongoing through the record with care I am persuaded to agree with this contention. Mst. Hussan Zeba was admittedly married to Faqir Shah Appellant prior to her entering the wedlock as a divorcee with Abdul Wahid P. W. As given in the initial report (Exh. P. A.), but the prosecution had failed to produce any documentary or oral evidence about it as a result the learned trial Judge had conceded, of course, rightly, that her marriage with the accused (appellant) still subsisted. This unescapable conclusion was the decisive factor in this case.
11. The prosecution was also silent about the circumstances under which the appellant had traced her out or for what purpose she had come down to the deurrahi with shoes (P. 8/1-2) on her feet.
The complainant had rather expressed his ignorance as to the purpose of her coming down the stairs. The best evidence about it could be supplied by some members of the family of the landlord who were living on the ground-floor if the appellant had forcibly brought her down into the deurrahi. Sub-Inspector Raja Pir Muhammad (P. W. 9) had interrogated the landlord and some other neighbours, but it was strange that none of these most natural witnesses was produced in Court and the presumption would certainly go against the prosecution.
12. The appellant had in his turn asserted that ever since her disappearance he was searching for her till he came to know that she was living in adultery with Abdul Wahid P. W. In the second storey of this ill-fated house where he contacted her and after agreeing to accompany him she came down in the deurrahi, but before they could succeed in escaping from there Abdul Wahid P. W.
Intercepted them. In the absence of any evidence from the prosecution side about any fraud, force or intimidation used by the appellant in bringing her downstairs there was no reason to reject the possibility of her joining the appellant in the deurrahi of her free will where after his plans were frustrated by the unexpected appearance of Abdul Wahid P. W. In the lane due to which Mst.Hussan Zeba might have shown some weakness. The sight of the adulterer and her sudden tilt on his side seemed to have caused grave and sudden provocation to him in the fit of which he attacked her and succeeded in causing large number of injuries to harm her before Abdul Wahid P. W. And his companions could intervene and overpower him.
' The documents found on his person after his immediate production before the police include the original nikahnama of Faqir Shah appellant with Mst. Hussan Zeba. It is Exh. P. H., which indicated that their marriage was duly solemnised and registered with the proper authority. The perusal of the other documents (Exhs. P. H./3 to P. H./8) would reveal that he had been resorting to legal action against the persons suspected in abducting his wife (Mst. Hussan Zeba) some of which bear endorsement of the officials concerned. It will confirm his assertion that eversince her disappearance he had been persuing the legal remedy and had also been searching for her in different places.
13. Another disclosure made by Abdul Wahid P. W. Would lend support to this stand taken by the appellant. The complainant had unwittingly admitted that the brother of the deceased aged 7/8 years was living with her at the time of the occurrence, but he was also withheld by the prosecution. None else could have solved this enigma than this close relation of the deceased. His absence from the witness-box would also go against the prosecution. It appears that Faqir Shah appellant had somehow come by this boy, who led him to this house and arranged their meeting in the deurrahi in the absence of Abdul Wahid P. W. Who by chance returned to the house at the crucial moment resulting in this reaction under grave and sudden provocation.
14. The conviction of the appellant under section 302, P. P. C. Is, therefore, unsustainable which is to be modified and altered to that under section 304 (I), P. P. C. And I . As a consequence his sentence is reduced to rigorous imprisonment for two years only. Reduction warrants to issue forthwith.