' The appellant/convict along with two others namely Nazar Hussain Shah and Mst. Zeenat Bibi were tried by the learned Sessions Judge, Sargodha. The appellant was convicted under section 302(c), P.P.C. For committing the murder of the deceased Mst. Naseem Fatima his wife under grave and sudden provocation and sentenced to 10 years' R.I. And a fine of Rs,25,000 to be paid as "Arsh"
(compensation) to the legal heirs of the deceased. The remaining two accused namely Nazar Hussain Shah and Mst. Zeenat Bibi were, however, acquitted vide the same judgment, dated 24-6- 1993 passed by the learned Sessions Judge, Sargodha.
2. The brief facts leading to this appeal are that during the night of 16-12-1991 at about 12-30 a.m.
The appellant/convict killed his wife Mst. Naseem Fatima while she was sleeping in the room along with the appellant ane his co-accused i,e, his father Nazar Hussain Shah and sister Mst. Zeenat Bibi.
At that time in the adjoining room, P.Ws. Namely Muhammad Sibtain i,e, complainant (P.W.4) and his father Sattar Hussain Shah (P.W.5) alongwith one Mohsin Ali Shah (since dead) were sleeping.
At about midnight, P.Ws. Heard the alarm and saw the appellant in the light of earthen lamp (Deewa) causing the death of the deceased who was caught hold by Mst. Zeenat Bibi (acquitted accused) by her hair while the other acquitted accused namely Nazar Hussain Shah was holding her by her legs while the appellant had pressed the neck of the deceased, thereby throttling her to death. The motive was that the appellant/convict wanted to contract second marriage as the deceased had not given birth to any child. The latter was reluctant to permit the appellant to contract the second marriage whereupon, he decided to remove her from his way. The appellant could not do it allegedly because his sister was married in exchange with brother of the deceased namely Ghulam Hussain Shah. The appellant/convict allegedly feared that if he divorced the deceased then his sister would also be divorced in return; therefore, he took the extreme action in killing her.
3. Learned counsel for the appellant has submitted that the eye-witnesses were not present at the spot as their pres'ence in the house of the appellant was unnatural on the unfortunate night; that the police also came to the conclusion during the investigation that there was no possibility. Of presence of the eyewitnesses in the house of the appellant to see the occurrence; that the deceased was a woman of easy virtues and was keeping illicit relations with a Constable named Sibtain Shah; that this was taken as a first version by the accused before the police where he took up the plea that his wife Mst. Naseem Fatima was a harlot and used to desert him every two or three months to join her paramour Sibtain Shah, Constable and whenever she was restrained by him to desist from such immoral activity; she would reply that she preferred her paramour over her husband; that on the night of occurrence, the appellant/convict found her in compromising condition with her paramour aforesaid, whereupon, he throttled her to death. Lastly, it was submitted that the learned trial Court also disbelieved the presence of the eye-witnesses in the house of the appellant at the time of occurrence and came to the conclusion that the motive taken up by the prosecution was totally false. The only fact for determination was, therefore, to assess the plea of the appellant/convict whether or not he killed his wife i,e, the deceased under grave and sudden provocation as pleaded by him in his statement recorded under section 342, Cr.P.C. It was accordingly urged that all the circumstances brought on record would clearly show that there was intrinsic truth in the plea taken by the appellant/convict and the story given by him for killing the deceased under grave and sudden provocation was not only probable but highly creditable.
4. Learned counsel for the State, however, submitted that the plea about the grave and sudden provocation was taken by the appellant at a very late stage i,e, when he was examined under section 342, Cr.P.C. In this context, learned counsel for the State referred to the statement of P.W.7 namely Maula Bakhsh, S.-I. Before whom, the accused had taken up the plea regarding the unchastity of his wife and an altercation in respect there of but never stated that she was found in compromising condition with her paramour and as such, was killed by him. It was, therefore, submitted that the question of grave and sudden provocation was merely an afterthought.
5. I have considered the arguments addressed at the Bar. First of all, it is to be seen whether the eye-witnesses were present in the house of the appellant at the time of occurrence. Although both of them claimed to be present at the house and had allegedly slept in the adjoining room after having talk with the deceased up to 9-00 p.m. In respect of several domestic issues, but none of the two witnesses could say as to what was their purpose of the visit on the aforesaid night particularly there was no explanation regarding Mohsin Ali Shah i,e, dead witness. It is true that there could be no specific reason for a father or brother to visit her daughter or sister respectively on any day in her house but the prosecution version, as it goes the spouses were not living happy matrimonial life as there were quarrels quite often between the spouses over the issue of the alleged second marriage of the appellant/convict. In this respect, the motive taken up by the prosecution was that the appellant/convict wanted to take second Wife as the deceased had not given birth to any child as she was a barren lady. However, this motive turned to be false in the cross-examination of the complainant when he stated in paragraph No,6 that Mst. Naseem Fatima i,e, the deceased had given birth to two daughters who were alive and a son who had died during infancy. He also clearly stated that the deceased was not a barren lady. The age of the youngest daughter of the deceased from the appellant was about two years at the time of occurrence. This clearly shows that the plea taken by the complainant in the examination-in-chief that the appellant wanted to contract a second marriage because his deceased sister was barren is in direct conflict with the statement given by him during the cross-examination as pointed out above.
Nothing was said about the motive by the father of the deceased namely Sattar Hussain Shah, another eyewitness (P.W.5). He, however, stated during the cross-examination that his son Ghulam Hussain Shah had divorced his wife Mst. Razia who was daughter of Nazar Hussain Shah (acquitted accused) and sister of the appellant/convict. About the purpose of the visit to the house of the deceased, he stated that it was a casual visit but no explanation was given as to why the dead witness namely Mohsin Ali Shah had accompanied them. Even otherwise, they appear to be chance witnesses without any purpose of visit to the house of the -deceased on that unfortunate night. Their presence also becomes improbable because had they been there, they could save the deceased when she had raised noise. Even otherwise appellant/convict would have not plucked the courage to kill the deceased on the night particularly when he knew that father and brother of the deceased alongwith Mohsin Ali Shah aforesaid were sleeping in the adjoining room. The prosecution story, therefore, appears to be most improbable under the circumstances particularly when the report of the occurrence was made in the morning although the occurrence had taken place during the midnight and the distance between the police station and the place of occurrence was about nine miles. In the alleged charged situation, it would have not been possible that P.W.5 would stay back with the dead body after the occurrence had taken place and the appellant as well as the acquitted accused were also present there. The presence of the witnesses was also found doubtful by the police during the investigation and also by the learned trial Court.
Even otherwise, the acquitted accused were found innocent during one investigation, whereas, during the other investigation, one of them namely Mst. Zeenat Bibi was found innocent. In such a situation, it appears that the prosecution not only involved the actual offender but also joined two innocent persons i,e, father of the appellant and also Mst. Zeenat Bibi, a sister in the awful occurrence. There was no need for the presence of the acquitted accused if the appellant wanted to kill the deceased by throttling her. The learned trial Court has, therefore, rightly disbelieved the motive as well as the presence of the eye-le witnesses at the spot.
6. The medical evidence also corroborates the version that the deceased was done to death by pressing her neck i,e, by throttling her After the prosecution story has been found to be improbable, the plea taken up by the accused in defense would become important for its consideration. The accused had given his first version challenging the chastity of his wife by imputing that she had illicit relations with Sibtain Shah, Constable for which he had restrained her to carry on such immoral activity. In his statement under section 342, Cr.P.C. He claimed to be innocent and took up the following plea:-- "On the night of occurrence, I came from my Dera to my house and saw Sibtain Shah in compromising position with my wife and under a fit of grave and sudden provocation, I killed her and that because she had insisted on maintaining her illicit relations with Sibtain Shah, Constable, and also insisted on deserting me."
7. The plea taken by the accused in the aforesaid words is supported by the circumstantial evidence especially when the prosecution story has been found to be improbable regarding the motive and presence of the eye-witnesses. In view of the pronouncements of the Superior Courts of this country, it is universally accepted that the statement of the accused is to be accepted or rejected in whole if the prosecution story is found to be improbable. In the given situation, the statement of the accused/appellant is not only probable but seems to be highly creditable. The plea taken up by the accused has, therefore, rightly been accepted by the Court below.
8. The appeal against the conviction of the appellant is, therefore, meritless.
9. The question of sentence is not difficult in this case. While awarding sentence in such-like cases, the social norms and values are to be considered objectively. This is highly provocative for a husband to find his wife in a compromising position with a paramour. Any person committing murder of his wife, seeing in a situation explained above would lose his self-control and has to be dealt with leniently in the matter of sentence which may extend from the time till rising of the Court to 10 years' R.I. According to the different pronouncements of superior Courts. However, each case has to be decided on its own merit.
10. Keeping in view the above principle in view, it will suffice the ends to justice if the sentence of 10 years' R.I. Awarded to the appellant/convict by the learned trial Court is reduced to five years' R.I.
And the fine is converted into compensation as provided under section 544-A, Cr.P.C.
11. In view of my above discussion, the appeal is dismissed with he above modification in the sentence and the conversion of fine into amount of compensation as aforesaid to be paid to the legal heirs of the deceased. The benefit of section 382-B, Cr.P.C. Is also extended to the appellant/convict.
12. The appellant/convict is in the Court and surrenders to his bail bonds and be taken into custody and sent to jail for undergoing the remaining sentence.
13. Before finally parting with the judgment, it may be pointed out that the complainant had filed Criminal Revision No,510 of 1993 against the appellant/ convict and the two acquitted accused named above for the enhancement of the sentence of the appellant/convict and conviction of respondents Nos.2 and 3. That revision petition was being heard along with this appeal.
14. In view of the reasons given in the appeal, there is no merit in the revision petition aforesaid which is dismissed.
Sentence reduced.