The appellant Rab Nawaz was tried by the learned Sessions Judge, Awn, for an offence punishable under section 302, P. P. C. For causing the death of Mat. Sakina, his sister and was convicted accordiegly. He was sentenced to suffer imprisonment for life aud a floe of Rs. 1,000 or in default to suffer further rigorous imprisonment for six months. He has appealed against his conviction.
2. The prosecution case as disclosed in the First Information Report recorded on the statement of Khadim Hussain (P. W. 7), husband of the deceased at Police Station, Garh Maharaja, District Mang, is that the deceased Mst. Sakina was married to the complainant 8/9 years before. They had a daughter aged five years out of the wedlook,- Three years before the date of occurrence, deceased developed illicit relations with one Mulazam Hussain and had eloped with him. She was restored the very next day through the intervention of baradri. The parties then lived as husband and wife at Chak Qureshe Wala. Sometime after she developed relations with one Haq Nawaz of Chah Ghulam Wale. About five days before the occurrence, she eloped with him. When the deceased and Haq Nawaz were going together, they were seen by Manzoor and Khan P. Ws, who informed Gholam Hussain, uncle of the complainant Khadim Hussain as to the incident. They were chased for a distance of about three miles when ultimately they were spotted out. Haq Nawaz ran away while the deceased was captured, The deceased, however, desired that she should be handed over to her brothers. She was thus brought to the house of her parents. Later Khadim Hussain complainant alongwith other prosecution witnesses approached the accused for taking away the deceased to his own house. The appellant persuaded the &ceased to accompany Khadiin Hussain her husband but, it seems she was not agreeable. The appellant .Hus provoked gave the deceased knife blows. The appellant was apprehended at the .,pot, Amir Khan Larnbardar P. W. 9 was informed of the incident, who came to the spot. The appellant confessed his guilt before him. The appellant was thus handed ever to him. Leaving others at the spot, Khadim Hussain complainant proceeded to the police station where the F. I. R. Was lodged.
3. Ch, Saleh Muhammad, Sub-Inspector, came to the spot for necessary inwstigation. He prepared the injury statement Exh, P. S. And inquest report Exh. P. K. The dead body was despatched to the Civil 11 /spits], Shorkot, for post-mortem. The appellant was produced by C. Saleh Muhammad, Sub-Inspector for recording his confessional statement before Muhammad Javed Gill, Magistrate 1st Class, Shorkot, His confessional statement under section 164, Cr, P. C. (Exh. P. S.) was recorded.'
Under this statement he has confessed to have killed Aist. Sakina.
4. The appellant during the trial denied the prosecution allegations. He stated that Haq Nawaz wanted to carry away Alit. Sakina his sister forcibly who resisted. The appellant responded to her call. Haq Nawaz attacked the appellant as well and gave him injuries with the knife. According to him his confessional statement was recorded under torture. Of the police. He was not disclosed that the person recording the statement was a :-,lagistrate.
5. The learned Advocate appearing for the appellant did not seriously contest the prosemtion version on the merits. He, however, argued that the conviction of the appellant under section 102, P.
P. C. Is not sustainable. According to him the case falls under Exception I to section 300 of the P. P. C.
And the appellant had thus committed an offence punishable under section 304, Part I of the Code.
He referred to Allah Ditto v. The Slate , Ghalam Hussain v. The State and Nindo Machi v. The State . The learned counsel appearing for the State did not seriuosly contest this proposition.
6. I have considered the arguments of the learned counsel for the parties. The learned trial Judge in his judgment has observed thus :- "It has been proved that faist. Sakina deceased was of bad character. She had earlier eloped with one Mulazim Hussaia. Subsequently she establisaed illicit intimacy with Haq Nawaz. On this point there is complete mention of the facts in the F. I. R. And in the statements of Khadim Hussain (P. W.
7), her husband, and Manlier Khan (P. W. 8) made before the Committing Magistrate. These statements have been transferred to the file of this Court under section 288, Cr. P. C. Khadim Hussain (P. W. 7) did not concede about those statements made by him before the police and Committing Magistrate and be was properly contradicted with the same. Muzaffar Khan (P. W. 8) admitted in this Court to have deposed before the Committing tvlagistrate that Mst. Sakina was not prepared to accompany complainant Khadim Hussain. It is also the statement of the accused that Haq Nawaz was trying to take away Ms:. Sakina forcibly. I do not believe him for that matter, for the reasons given below, but suffice it here to say that Mst. Sakina was not having good reputation about her character. Had she been a pious lady, there would have been no question of her elopement and subsequent restoration. The facts and circumstances of the cage show that Mst.
Sakina was a lady of easy virtue and that she had illicit intimacy with Haq Nawaz. It is also believable that she had eloped with Bag Nawaz and was thereafter restored to her brothers."
It, therefore, appears that when the deceased was restored for the second time, the appellant attempted to persuade her to join her husband. She was not agreeable. This provoked the appellant, who killed her under sudden and grave provocation. The case, therefore, falls under Exception I to section 200 of the Code. The nature of the injuries inflicted and the result that had followed show that the appellant intended to cause death or at least of causicg such bodily injuries as was likely to cause death. His case, therefore, would fall under section 304, Part la
7. I am supported in the view I have taken by tae judgments noticed above. In PLD 1975 Kar. 120, the wife of the accused having eloped en a previous occasion again disappeared. The accused spent sometime In searching her, but on his retweing home, he found her present in the house. The sight of the wife provoked the accused who caused her death. The accused was punished under section 304, Part I. In 1973 P Cr. L J 101, the wife had eloped with Zahur Shah and on being restored to the1 2 3 husband. Some lays later instead of feeling repentence affirmed the truth and further asserted to repeat the act. The husband losing self-control, gave stick blows which proved fatal. It was thus held that the provocation was sufficient to bring the offence within Exception I to section 300, P. P. C.
The conviction was altered to section 304, Part I and sentence reduced to already undergone. In PLD 1912 Lah. 153 the deceased, a sister of the accused, had eloped. The accused hal reprimanded at her elopement but was confronted with a challenge from her equally provoked. The conviction was altered to one under section 304(1), P. P. C.
8. For all the reasons, I am inclined to pertly accept this appeal taking the view in the circumstances of the case that the appellant could be deemed to have acted under grave and sudden provocation. Accordingly, the conviction under section 302, P. P. C. Is altered to one under section 304(I). This bring me to the question of sentence. The appellant has undergone about l years so far. The occurrence took place in or about April 1974. The appellant had continuously remained in detention. I am, therefore, of the view that the sentence already undergone by him would be sufficient to meet the ends of justice. As the sentence is being awarded under section 304(1), the appellant shall have to be fined also. There is no question of payment of the fine by way of compensation to any of the dependents of the deceased. I reduce the amount of fine imposed to a nominal sum of Rs,
100. The appellant will suffer rigorous imprisonment for one month in default of the payment of the fine. 1973 P Cr. L J 101 PLD 1972 Lah. 153 PLD 1975 Kar. 120