AMJAD ALI, J.- By this appeal Muhammad Latif appellant has assailed his conviction and sentence awarded by the learned Additional Sessions Judge, Safgodha, by his order, dated the 11th January, 1992 under section 304 Part 1 of the Pakistan Penal Code.
2. Briefly, the facts giving rise to this appeal are that the appellant was married to Mst. Ghulam Khatoon deceased, the sister of Allah Bakhsh complainant about 12' 13 years before the occurrence and one son and three daughters were bom out of this , wedlock. Both the spouses lived together amicably for about 7/8 years but thereafter stated to have developed strained relations. About 2/3 days before the date of occurrence, the said Mst. Ghulam Khatoon left the house of the appellant to join her parents allegedly because'of maltreatment by the appellant. According to the prosecution, on the 3rd March, 1991, at'about 3-15 p.m. While Mst. Ghulam Khatoon deceased was present -at the house of one Nazar Hayat son of Deen Muhammad alongwith Allah Bakhsh, her brother.' Sarfraz/ lier father and Sher Muhammad, her maternal uncle, the- appellant entered the house armed with a chhnri and raising lalkara that he would not spare Mst. Ghulam Khatoon pounced upon her, He caused several injuries upon the person of Mst. Ghulam Khatoon and warned others that anybody who would dare to come near him. He shall loose his life. Mst. Ghulam Khatoon succumbed to the injuries cause by the appellant and consequently died at the spot.
Muhammad Latif thereafter ran away waiving chhnri in the air. Allah Bakhsh, the brother of Mst.
Ghulam Khatoon. Reported the matter at Police Station Jhal Chakian, District Sargodha, whereupon FIR No. 71, dated the 3rd March, 1991, was recorded at about 4.30 pTnCAccording to the complainant, the motive behind the murder was that the appellant doubted the character of the deceased. After recording FIR. The police reached at the spot, took the deadbody in its possession for post-mortem and completed other formalities and collected blood-stained earth for neccessary examination. According to the autopsy which was
3. The injuries No. 5 and 8 referred to above proved to be fatal. In consequence thereof, the appellant was arrested on the 16th March, 1991, and on 20th March, 1991, he led to the recovery of chhuri (Ex-Pi) used for the alleged murder of Mst. Ghulam Khatoon. The Investigation Officer prepared site plan and completed the investigation and submitted report to the Court ,under section 173 Code of Criminal Procedure. The appellant contested the charge of murder, in support of its case., the prosecution, in addition to Mr. Muhammad Iqbal (PW.1), produced constables Muhammad Naeem (PW.2), Muhammad Manzoor (PW.3), Muhammad.
Akram (PW.4), Allah Dad (PW.5), Allah Bakhsh, the complainant (PW.6), Muhammad Sarfraz (PW.7), Muhammad Saleem, Draftsman (PW.8) and Muti Ullah,(PW.9), the Investigation Officer. The statement of appellant was also recorded under section 342 Cr.P.C. He, however, did not produce any evidence in defence. ' \
4. The learned Additional Sessions Judge, by his order, dated the 11th January, 1992, found the appellant guilty of causing death of his wife (Mst. Ghulam Khatoon) in order to vindicate family honour because of persistent intimacy of the deceased with Nazar Hayat in whose house her death was caused. Consequently, the accused was convicted under section 302 Part-1 PPC and sentenced him to 10 years' rigorous imprisonment and a fine of Rs. 5000/- and in default in payment thereof, he was required to further undergo simple imprisonment I for to years. The accused was, however, given the benefit of his confinement during trial in accordance with section 382-B Cr.P.C.
5. Mr. Zafar Iqbal Chohan, 'learned counsel presenting the appellant assailed the conviction and sentence awarded to the appellant mainly on the ground ' that the depositions of the eye-witnesses were not credit worthy, in particular because of their relationship with the deceased. He also referred to various discrepancies in their statements recorded as PW. 6 and PW.
7. The recovery of chhuri (Ex-Pi) was c)aimed to be fake. Learned counsel for the appellant also contended that the appellant has nowhere admitted that he had caused the death of his wife because of grave and sudden provocation or that he had any doubts about her character. According to the learned counsel, the alleged motive was suggested by the complainant himself. During his cross-examination ^s PW. 6 he also stated that the motive of qatl by the appellant was got recorded by*tnm on the suggestion of the police. The learned counsel (also assailed the findings of the learned Additional Sessions Judge on the issue of motive claiming that in this connection they story of motive was created, and strengthened by the learned Judge through presumptions. It was also claimed that, in fact, Mst. Ghulam Khatoon was murdered by her on brother namely, Qadir Bakhsh because of his anger about illicit relations of the deceased with Nazar Hayat. It was, therefore, urged that even if it is considered that the appellant had committed qatl 6f his wife, the sentence of ten years' imprisonment and fine was against the statutory provisions. In this connection, he placed reliance on Sher Ali v. State (1995 PCrU 2790) and Ghulam Yasin v. State (PLD 1994 Lahore 392) and contended that where a qatl is committed under grave and sudden provocation the punishment under section 304 PPC or under the provisions of qisas and diyat should not be excessive. Particularly, in the later case, the facts of which are identical to the present case, the sentence was reduced to five years. It was also held therein that since the qatl was committed for ghairat, the fine should have not been imposed.
6. From the evidence and perusal of record, it is clear that the facts as.
Brought on record do not reflect the correct position. In the first instance, presence of eye-witnesses, namely Allah Bakhsh PW. 6, the brother of the deceased, PW. 7 Muhammad Sarfraz, her father and Sher Ali, the maternal uncle of the deceased at the house of Nazar Hayat at the time of occurrence clearly appears to be doubtful.
Although PW.7 Muhammad Sarfraz has claimed that he and other persons had gone to the house of Nazar Hayat to inquire about health of his wife, no reason of his presence was given by PW. 6 Allah Bakhsh. During his cross-examination he stated that Nazar Hayat was the only person who resided in his house. Neither Nazar Hayat nor his wife were produced as eye-witnesses to the occurrence or for the purpose of verifying the reason of the visit of PWs and Sher Ali alongwith the deceased to their resident at the fateful time. During cross-examination PW.9 Muti Ullah, S I, the Investigation Officer also stated that no reason was given by the witnesses and Sher Ali as to their presence in the house of Nazar Hayat at the time .Of occurrence. It is also very strange that while the appellant was allegedly causing injuries to the deceased none of the five persons said to be present at the spot, including her brother Allah Bakhsh (PW.6), restrained the appellant from committing qatl of Mst. Ghulam Khatoon or from causing injuries to their dear.
One. The claim of PW.6 Allah Bakhsh that because appellant was threatening to kill whosoever came near to him no one restrained him from causing injuries to the deceased does not appear to be a natural consequence. All of them could not be so scared or coward that none of them moved to save the life of their closest relation who was being mercilessly butchered before their eyes. They were four persons and 'could etJSify overpower the appellant who was in possession of a chhuri only. Allah > Bakhsh (PW.6) has admitted that he was a stout and strong person but then how come that he was so seared to stop the appellant from causing injuries to his real sister. PW.6 and PW 7 have also admitted that while they were loading the deceased on a tractor for taking her dead body to hospital their clothes were not smeared with her blood although admittedly twelve injuries were caused to the deceased and there w^. a prafuse bleeding which according to Medical Report ultimately resulted into ner death. The presence of PW.6 Allah Bakhsh complainant- also appears to be doubtful as admittedly he is a driver and daily plies a bus of Awan Transport Company between Sargodha and Rawalpindi. He has not explained as to how at 3.15 p.m. On the 29th September, 1991, he was present in the house of Nazar Hayat. Sher Ali the real maternal uncle of the deceased who is stated to be present at the spot was also not produced in evidence on the ground that he was not supporting the prosecution version. f
7. The recording of FIR within one hour of the occurrence also seems to be unnatural on the very face of circumstances stated therein. The police station is admittedly about 6/7 kilometers away from the place of occurrence. It was admitted by PW.7 Sarfraz and Constable Allah Dad (PW.5) that it took almost 1 to 2 hours to take the deadbody to the hospital on a tractor. On the basis of this admission the time lag between the occurrence and prompt recording of evidence appears to be impracticable. On the other had, no explanation has been given by the Investigation Officer (PW.9) as to when the FIR was promptly recorded and the other formalities were completed by the police without any loss of time why the appellant was arrested after 13 days from the date of occurrence.
The recovery of chhuri (Ex-Pi) is further appears to be doubtful. After the arrest of the appellant on the 16th March, 1991, allegedly on the pointing of the appellant it was recovered from the house of appellant which was locked in a patti on 20-3-1991 by constable Muhammad Akram (PW.4).
Admittedly, the house of the appellant is situated in Abadi Deh surrounded by several houses but no independent witness was present at the time of the recovery of weapon of offence. It is thus clear that the provisions of law relating to recovery of chhuri were not adhered to , resultantly such recovery does, hot infuse any confidence.
8. From the above discussion, it is clear that there are several missing links which clearly ,ca$t doubt on the version of the prosecution. The alternate version, given by the appellant may not be of much credence but undoubtedly the prosecution story is full of discrepancies and unnatural circumstances. The facts regarding motive are not substantiated by any evidence. In fact, the motive has been tiven more colour and support by the learned trial Court who has on the basis of tresence of the deceased at the house Nazar Hayat on the fateful day, presumed that he accused must have been greatly angered because of the presence of his wife at he a house of Nazar Hayat.
According to him such 0esence was sufficient irovocation to cause the death of his wife as it impossible for the.Accused to control ind compose himself. These presumptions however, do not find support from the eye-witnesses who, on the other had, claim that the deceased was a lady of good character. In view thereof, the learned trial Court had erred in believing the prosecution version and convicting the appellant in consequence thereto. The appellant admittedly lives at a distance from the house of Nazar Hayat. On hearing that his wife had gone to the house of Nazar Hayat and had went there to cause her qatl, such preparation could not be termed as sudden provocation which entitled him with conviction of lesser gravity . Hence, even on that basis the conviction of the appellant under the repealed section 304 Part-1 PPC was bad in t|ie eye of law.
9. In view thereof, much reliance cannot be placed on the prosecution e evidence. Hence, giving the benefit of doubt, the conviction and sentence awarded to the petitioner by learned Additional Sessions Judge, by his order, dated 11-1- 1992 is set aside. The appellant, if he is not required in any other ca10. Before parting with the judgment it must be recorded that the leaflied Additional Sessions Judge has convicted the appellant under section 304 Part-1 PPC and sentenced him for 10 years' imprisonment. He has, however, not given any thought to the fact that on the date of commission of offence, original provisions of section 304 of the Pakistan Penal Code already stood repealed and were substituted by the provisions relating to qisas and diyat. Even on 11-1-1992 when he convicted the appellant and sentenced him to imprisonment, the new provisions had already come into force. The new section 304 of the Pakistan Penal Code, in fact deals with the proof of qatl-i-amd liable to qisas. In view thereof the conviction and sentence awarded by the learned Additional Sessions Judge, Sargodha was not a legal sentence available under the existing provisions of the Pakistan Penal Code (XLV of 1860).