' Appellant Walayat and Falak Sher were charged, for, in furtherance of their common intention, having caused intentional murder of Mst. Shamim wife of aforesaid Falak Sher by inflicting Toka blows upon her person at about 7-00 a.m. On 17-11-1991 in Chak No,283-GB, Tehsil Jaranwala, District Faisalabad falling within the area of Police Station Satiana, while Shahadat and Mian Khan their co-accused, for having abetted the commission of offence.
2. Manner and mode of commission of crime as set up by the prosecution stands reflected by, unfolded in and gleaned out, of statement Exh.P.C. Made by Alam Sher, brother of the deceased and reiterated by him at the trial as P.W.7.
3. In his statement under section 342, Cr.P.C., the appellant confessed to have caused the death of Mst. Shamim, but, claimed to have done the same under the sting and impulse of grave and sudden provocation. To question No,9, therein, he maintained that:-- "On the night of occurrence, I and my brother Falak Sher were present at our cattle shed. I was sent by my brother to bring the she-ass which was tethered in our house. When I reached in my housed, I saw Mst. Shamim deceased and one Rana alias Noor Samand a co-villager lying on a cot in the room. I was already carrying a Toka with me because I had to go for peeling sugarcane. On seeing the deceased in a compromising position I was suddenly provoked and in that situation I lost control of myself and caused some injuries to Mst. Shamim while Rana aforementioned succeeded in running away from the spot. Neither Falak Sher nor any other person was present at the spot.
This occurrence occurred at about Fajr prayer time and no one had seen it. After causing injuries I went to the village Lambardar and informed him what had happened. He made an announcement in the village mosque whereupon all the relatives of Mst. Shamim deceased assembled and after consultation and preliminary inquiry by the police the present story of murder was cooked up. I appeared before the police on the same day and also produced the Toka."
4. Being two version case and placing both of it in juxtaposition, learned trial Court, on culmination of the trial, after passing usual phases, arrived at the following conclusions:-- "When Mst. Shamim deceased had come to the house of her husband Falaksher she allegedly was murdered by Falaksher and Walayat accused at the abetment and conspiracy of Shahadat and Mian Khan abovesaid accused. The version made out by Walayat accused is that he had witnessed his sister-in-law Mst. Shamim deceased in a compromising position with one Rana alias Noor Samand son of Shaman and under grave and sudden provocation had committed her murder. This version no doubt has been raised for the first time before this Court, yet, finds support from the trend of cross-examination of all the P.Ws. And the report of the Chemical Examiner Exh.P.K. That the vaginal swa bs of Mst. Shamim deceased taken on 17-11-1991 were found to be stained with semen. No evidence during the course of trial has been led before me that on the abetment of Shahadat and Mian Khan accused, this occurrence took place. No active role is attributed to Falaksher. The recovery of weapon of offence has been affected from Walayat accused. There is statement by P.W.4 Arshad that the murder took place at Fajr prayer time for which an announcement might had been made in the mosque leads to the conclusion that the version made out by Walayat accused is plausible and believable. Hence he is convicted and sentenced under section 302(b), P.P.C. To life imprisonment. He is also directed to make payment of compensation under section 544-A, Cr.P.C. Amounting to Rs,20, 000 to the legal heirs of Mst.
Shamim, and in default of payment of compensation he shall undergo 6 months' R.I. He is present in Court in custody. He be sent to jail to suffer the imprisonment. As the prosecution has failed to prove the charge against all other accused, they are given benefit of doubt and are acquitted of the charge. Mian Khan and Shahadat accused are on bail. They are discharged of their bail bonds.
Falaksher accused is in custody. He is set at liberty if not required in any other case. Toka P.5 be confiscated in favour of the State."
5. In wake thereof, details of autopsy, injuries, recoveries and other factors need not be recapitulated particularly in the absence of any commotion by the complainant and appeal against acquittal of co-accused as the matter stands narrowed and cut down to limited propositions; if the case falls within the ambit and compass of section 302(c), or section 302(b), P.P.C., under which the appellant stands convicted and sentenced, against which he has preferred this appeal. Obviously, quantum of sentence is also involved.
6. Matter stands at rest by illuminating observations made in Bashir Ahmad and 2 others v. The State 1995 MLD 152 Lahore, The State v. Muhammad Hanif and others 1992 SCMR 201, Muhammad Ibrahim v. Sufi Abdul Razzaq and others 1997 PCr.LJ 263 and Ali Muhammad v. Muhammad and another PLD 1996 SC 274 wherein, it has been enunciated conclusively that I provisions of section 302(c) only are attracted in cases of "grave and sudden it provocation. #TBS [Vol. XXXI #TBE ' Be that as it may, where prosecution evidence stands rejected in its totality, statement of accused has to be accepted in its entirety without scrutiny as held consistently by august Supreme Court. In the case reported in PLD 1952 FCI it has been laid down that where the conviction is based entirely on statement of accused, same should be taken into consideration in its totality. As a necessary corollary, the case of the appellant squarely fell under section 302(c), P.P.C. And was not covered by section 302(b), P.P.C. As construed and held by learned trial Court. Fallacy in this behalf is too apparent to dilate it further.
8. Resultantly appeal is partly accepted, conviction of appellant is altered and converted from section 302(b) to section 302(c), P.P.C. And sentence is reduced to seven years' R.I. I do not see any legal or moral compulsion to direct payment of compensatior to legal heirs of deceased inasmuch as awarding of compensation to them may tantamount to reward for act of adultery committed by their predecessor-in-interest. The appellant shall also be entitled to the benefit of provisions of section 382-B, Cr.P.C.