' This appeal is directed against the judgment, dated 21-10-1997 passed by Mr. Muhammad Hand Khan, Additional Sessions Judge, Faisalabad, whereby he convicted the appellant/accused under section 302, P.P.C. And sentenced him to imprisonment for life. However, he was given benefit of section 382-B, Cr.P.C.
2. Briefly stated the facts are that Mst. Khurshid Bibi is daughter of Pehlwan complainant who married her with Ali Sher appellant/accused. On 9-7-1994 at about Degarwela, he along with Qutab son of Muhammad and Khadim son of Varyam were sitting in the house of his son-in-law Ali Sher. Exchange of hot words took place between Ali Sher and Mst. Khurshid Bibi, upon which Ali Sher brought out carbine from his residential room and fired two shots hitting Mst. Khurshid Bibi on her neck and left wrist. The incident was witnessed by the complainant as well as Qutaba and Khadim.
They raised cries upon which Ali Sher succeeded in decamping from there waving carbine in his hand. They found that Mst. Khurshid Bibi had succumbed to the injuries. The motive behind this occurrence is that Ali Sher suspected his wife for carrying on illicit relations with Mushtaq son of Khushi Muhammad. Leaving Qutab and Khadim to guard the dead body, he made for the police station to lodge report. Agar Ali S.-I./S.H.O. (P.W.9) met him on Chowk Killianwala, who on the basis of his statement recorded complaint Exh.P.C. And sent the same to the police station for formal registration of case through Bahawal Sher, Constable. He then made for the place of occurrence, inspected the dead body, prepared statement of injury Exh.P.F.,, inquest report Exh.P.G., inspected the site vide memo. Exh.P.H. And secured blood-stained earth vide memo. Exh.P.I. He dispatched the dead body for post-mortem examination. On 10-7-1994 last-worn clothes of the deceased P.1 to P.4 were produced before him which he secured vide memo. Exh.P.B. On 11-7-1994 he got the site plans Exh.P.E. And Exh.P.E./1 prepared through Aurangzeb Draftsman (P.W.9). He handed over the parcels to Moharrir/H.C. On 17-7-1994 he arrested the accused who led to the recovery of Carbine P.5 and cartridge P.6 which he secured vide memo. Exh.P.D. And prepared site plan of place of recovery Exh.P.D./1. After usual investigation the case was sent up to the Court for trial.
3. A charge under section 302, P.P.C. Was framed against the accused to which he pleaded not guilty and claimed trial.
4. To prove its case prosecution examined P.Ws.1 and 2 Naseer and Manzoor, who are witnesses of identification of dead body of Mst. Khurshid Bibi but they have not supported the prosecution version and have been declared hostile. Prosecution also examined P.W.3 Qutab and P.W.4 Khadim who are the alleged eye-witnesses but they have also not supported the prosecution version and have been declared hostile. P.W.5 Dr. Liaqat Ali deposed that he conducted post-mortem examination on the dead body of Mst. Churched Bibi on 10-7-1994 and found 4 fire-arm injuries and one lacerated wound on her person. He issued post-mortem examination report Exh.P.A. And pictorial diagram Exh.P.A./1. According to his opinion all these injuries were ante-mortem and were inflicted by fire-arm except injury No,5. The death was due to shock and hemorrhage as a result of injuries Nos.1 to 4. P.W.6 Nazar Muhammad, Constable deposed that he was handed over the dead body of Mst. Khurshid Bibi on 10-7-1994 for post-mortem examination. After post-mortem examination he produced her last-worn clothes Exh.P.1. To Exh.P.4. Which were secured by the Investigating Officer vide memo. Exh.P.B. He further deposed that on 17-7-1994 the appellant/accused led to the recovery of carbine P.5, cartridge P.6 which were secured vide memo.
Exh.P.D. Which bears his signatures. On 25-7-1994, he further deposed, he was handed over two parcels consisting of blood-stained earth and vaginal swabs for onward transmission to the office of Chemical Examiner which he delivered there intact. P.W.7 Pehlwan is complainant of this case and has supported his version appearing in complaint .Exh.P.C. P.W.8 Bahawal Sher is another witness of recovery of carbine P.5 and cartridge P.6 which were secured vide memo. Exh.P.D. P.W.9 Aurangzeb visited the place of occurrence on 11-7-1994 and prepared site plans Exh.P.E. And Exh.P.E./1 and handed over the same to the Investigating Officer. P.W.10 Tanvir Asghar H.C. Deposed that on 9-7-1994 on the basis of complaint Exh.P.C., he recorded formal F.I.R. Exh.P.C./1. He further deposed that he was handed over two parcels consisting of blood-stained earth and swabs by the Investigating Officer for keeping the same in the Malkhana and he handed over the said parcels to Nazar Muhammad Constable on 25-7-1994 for its delivery in the office of Chemical Examiner, Lahore. P.W.11 Asghar Ali is the Investigation Officer whose evidence has already been discussed above. The learned D.D.A. Produced Report of Chemical Examiner Exh.P.J. And of Serologist Exh.P.K.
And closed the prosecution evidence, vide his statement dated 25-4-1997.
5. When examined under section 342, Cr.P.C. The accused denied the prosecution version and stated that illicit relations have been going on between Mst. Khurshid Bibi and her paramour namely Mushtaq son of Khushi. On the fateful day Mst. Khurshid Bibi deceased and said Mushtaq were found together, therefore, Mst. Khurshid Bibi was murdered by any member of her family on account of Ghairat, and family honor. He further stated that he was innocent and had been involved by the Police with the connivance of complainant.
6. After going through the evidence produced by the prosecution, the learned trial Court convicted and sentenced the appellant vide judgment under appeal.
' Arguments have been heard and record perused.
7. It is submitted by the learned counsel for the appellant that as per contents of the complaint the incident was witnessed by complainant as well as Qutab P.W.3 and Khadim P.W.4, that both Qutab and Khadim P. Ws. Have not supported the prosecution version and consequently have been declared hostile, that there remains the solitary statement of the complainant in the field implicating the appellant/accused for the commission of murder of Mst. Khurshid Bibi, deceased, that as per contents of complaint Exh.P.C., it is clear that accused suspected the deceased for carrying on illicit relations with Mushtaq son of Khushi,, that this very fact stands evident even from the statement of appellant/accused recorded under section 342, Cr.P.C. That although appellant/accused has alleged his involvement in this case as false yet it is spelt out from the evidence on record that appellant/accused had committed the murder of deceased Mst. Khurshid Bibi as he found her together with Mushtaq son of Khushi on the fateful day, that the murder of Mst.
Khurshid Bibi is the result of sudder, and grave provocation, as such he cannot be saddled for "Qatl-iAmd" of Mst. Khurshid Bibi and cannot be punished under section 302(b), P.P.C. And his case squarely falls within the ambit of section 302(c), P.P.C., that in such cases the maximum sentence awarded, ranges from 3 to 5 years and relied upon Ghulam Yasin and 2 others v. The State PLD 1994 Lah. 392, Akbar v. The State 1997 PCr.LJ 1887 (Lahore), Muhammad Ishaque alias Baig v. The State 1998 PCr.LJ 1110 (Lahore), Muhammad Ayub v. The State 1997 PCr.LJ 2056 (Lahore), wherein the sentence of life imprisonment has been reduced to 5 years. He further relied upon Saeed Ahmad v.
The State 1996 PCr.LJ 1016 (Lahore), Fateh Muhammad alias Fattu v. The State PLD 1967 Lah. 579 (Lahore), wherein the sentence awarded ranges between 3 to 4 years. He has also relied upon Ghulam Farid v. The State 1997 PCr.LJ 1411 (Lahore), where under the present circumstances the accused has been acquitted. He, thus, submitted that sentence awarded to the appellant/accused may be reduced to 5 years and the appeal be disposed of accordingly.
8. On the other hand, learned counsel for the State while opposing the appeal and supporting the conviction and sentence, has submitted that the element of Ghairat is not apparent as it is not a defense plea. Learned counsel for the State has also placed reliance on The State v. Abdul Waheed and another 1992 PCr.LJ 1596 and Abdul Haque v. The State PLD 1996 SC 1.
9. The argument of the learned counsel for the State that the element of Ghairat is not apparent, has no force as it is the prosecution own stand that the appellant suspected his wife for having illicit relation with Mushtaq. The complainant has also made this admission and similarly it has been stated by the appellant that on the fateful day he saw his wife together with her paramour i,e, Musthaq son of Khushi Muhammad. I. Am convinced that the appellant acted in Ghairat and the question is whether the conviction of the appellant under section 302(b), P.P.C. And the sentence of life imprisonment as recorded by the trial Court is justified in the circumstances.
11. In Ghulam Yasin and 2 others v. The State PLD 1994 Lah. 392, 1997 PCr.LJ 1887 (Lahore), 1998 PCr.LJ 1110 (Lahore) and 1997 PCr.LJ 2056 (Lahore) (supra) under these circumstances, sentence of imprisonment for life has been reduced to 5 years. In other cases 1996 PCr.LJ(Lahore) and PLD 1967 Lahore 579 the sentence of imprisonment for life was reduced to three to four years.
12. The citations referred above, have a tendency to justify imposition of lesser penalty for an offence involving element of Ghairat. On a careful consideration of the facts and the evidence of the present case I am of the firm view that appellant acted under Ghairat for which he deserves to be dealt with from an angle different from one, normal criminal acts are treated and in these circumstances smaller sentence would meet the ends of justice. There is no doubt that he has not taken a definite plea to the effect that he committed the murder of his wife out of Ghairat yet he has candidly stated in his statement recorded under section 342, Cr.P.C. That on the fateful day, both, his wife Mst. Khurshid Bibi and Mushtaq son of Khushi were found together. He has, however, stated that some member of the family of deceased had committed her murder. This contention of appellant/accused hardly stands to reason. After seeing his wife with Musthaq, it could not be possible for the appellant to remain a silent spectator of that ugly scene and he must have resorted to the act attributed to him. It is thus, clear from the evidence brought on record that appellant/accused committed the murder of his wife as a result of sudden and grave provocation i,e, Ghairat, as such his case does not fall within the purview of section 302(b), P.P.C., but it squarely falls under section 302(c), P.P.C. Accordingly the conviction under section 302-B, P.P.C. Is altered to that under section 302(c), P.P.C. And the sentence of imprisonment for life is reduced to 5 years' R.I.
The benefit of section 382-B, Cr.P.C. Is, however, extended to the appellant.
13. With this modification in the sentence, the appeal is disposed of accordingly.