' Nazar Muhammad son of Muhammad has laid challenge to the judgment, dated 26-9-1998 passed by Additional Sessions Judge, Sargodha whereby he was convicted under section 308, P.P.C. And sentenced to undergo rigorous imprisonment for a period of 14-years by way of Ta'zir and to pay Diyat amount in the sum of Rs,2,32,000 in lump-sum to the legal heirs of the deceased Mst. Sughran Bibi his wife in accordance with law and if he failed to pay the amount of Diyat he shall be kept in Jail and dealt with in the same manner as if sentenced to simple imprisonment until full Diyat is paid as provided under section 331, P.P.C. He was also directed to pay compensation in the sum of Rs,20,000 as provided under section 544-A, Cr.P.C. To the legal heirs of the deceased, in default whereof to undergo six months' S.I. Benefit of section 382-B, Cr.P.C. Was extended.
2. The occurrence which led to death by strangulation of Mst. Sughran Bibu wife of the appellant took place on 26-5-1997 at 6-30 p.m. In the garden of Ghulam Ahmad Badrana situated in Mauza Badra lying at a distance of 5 k.m. From Police Station Mid Ranjha, District Sargodh. Mutalli father of the deceased lodged a complaint which was recorded by Walayat Hussain Shah, S.I. At the Police Station on the same day at 8-15 p.m.
3. The prosecution version given in the first information report authored by Mutalli is that he got his daughter Mst. Sughran Bibi married with the appellant Nazar Muhammad and out of wed-lock Sumera aged 2-1/2 years and one son aged six months were born. About 2 months earlier Nazar Muhammad along with his family shifted from Mauza Sadhowal Pull, Police Station Miana Gondal and came alongwith his family to his house to earn his livelihood through labour. On the appointed day to Peshiwela Nazar along with his wife and children went to pluck wheat sittas from the fields of Ghulam Ahmad Badrana whereas he along with Muhammad his brother and Karram Elahi son of Allah Ditta also proceeded to the Dhari of Ghulam Ahmad Badrana for plastering the Dera with fodder. At about 6-30 p.m. When they reached the fields of Khushi Muhammad Ranjha they saw in the garden of Ghulam Ahmad Badrana, Nazar Muhammad having laid his wife Sughran Bibi prostrate on the ground strangulating her neck with his turban and after seeing them he picked up Sumera his daughter and ran away. He along with Wali Muhammad and Karam Elahi saw the occurrence with their own eyes, they went to the spot and found Mst. Sughran Bibi dead due to strangulation.
4. Motive for the occurrence is that Muhammad Nazar bore a grudge as his wife Sughran Bibi refused to accompany him to his house and wanted to stay with her parents house due to which they used to frequently quarrel with each other as a result of which having found a chance he strangulated Mst. Sughran Bibi with his turban.
5. Walayat Hussain Shah, S.I. After recording the statement of Mutalli reached the spot, examined the dead body, prepared, the Inquest Report Exh.P.F. And handed over the dead body to the Constable to take it to mortuary for postmortem examination and on the next morning he again visited the place of occurrence and prepared rough sketch plan Exh.P.G. On 30-5-1997 Nazar Muhammad was arrested and on the next day he led to the place where he had concealed his turban with which he strangulated his wife and not recovered the same which was taken into possession vide memo. Exh. P.D.
6. On 27-5-1997 Dr. Muhammad All Khan, Medical Officer conducted the post-mortem examination on the dead body of Mst. Sughran Bibi aged 32/34 years and found the following injuries on her person:--
(1) There was swelling encircling whole neck;
(2) Multiple contusion marks on left side of neck;
(3) 2 abrasions 1 c.m. x 1 c.m. Below chin, neck veins were prominent and tongue was bitten between teeth. Lips were blue. Blood tinged foam was present in both nostrils. Conjunctives were congested.
' In the opinion of the doctor, death was due to asphyxia as a result of Injury No,1 which was ante mortem and caused by strangulation, and was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was three to five minutes and between death and postmortem was within 24 hours.
7. On the commencement of trial, the appellant was indicted, he denied me charge, pleaded not guilty and claimed a trial. The prosecution examined as many as nine witnesses out of which ocular testimony account was furnished by Mutalli the complainant as P.W.1 and Karam Elahi as P.
W, .2.
8. Nazar Muhammad appellant when examined under section 342, Cr.P.C. Denied his participation in the crime and the recovery of the turban. In reply to the quotion as to why the case was brought against him, he made the following statement:--- "I am innocent and have been falsely involved in this case due to enmity. Had I wanted to commit the murder of Mst. Sughran, could have done it at my residence where we were living alone. I have been falsely booked. Mst. Sughran had bad moral character and her parents stopped her and threatened her for so many times but she refused to restrain herself. Her parents threatened her to kill so may times in my presence. They might have killed her."
9. Learned counsel contended that the prosecution case was weak as the witnesses had not seen the occurrence; it was a blind murder which was foisted upon the appellant by making him a scape goat, therefore, he is entitled to acquittal. On the other hand learned counsel for the State supported the conviction and sentence recorded by the trial Judge.
10. I have gone through the record and heard the arguments of the respective counsels.
11. Both the eye-witnesses namely Mutalli P.W.1 and Karam Elahi P.W.2 reiterated the prosecution story as narrated in the first information report.
12. It has come in evidence that Nazar Muhammad was married to Sughran Bibi while sister of Nazar Muhammad was married to Ahmad son of Mutalli and father of the deceased. In other words it was a Watta Satta marriage. However, Kubra sister of the appellant was living happily with Ahmad, brother of the deceased, even after the murder of Mst. Sughran. Prior to the marriage of Nazar, Sughran was married to one Bashir who divorced her. It was denied that Mst. Sughran Bibi had illicit relations with her cousin Ashraf who lived in the same village. It was further admitted that till the date of occurrence Nazar Muhammad had been living with his wife peacefully, leading amicable life and both of them earned their livelihood by doing labour. Family of Nazar Muhammad as well as that of Mst. Sughran Bibi had cordial relations with each other. It was denied that Mst. Sughran Bibi was seen with Ashraf in compromising position and was naked from bottom having removed her shalwar at the time of her death. It is further stated in the evidence of both the eye-witnesses that Nazar Muhammad after strangulating his wife quietly walked away and no attempt was made to apprehend him. Walayat Hussain Shah, Sub-Inspector/Investigating Officer admitted that first version of the accused/ appellant Nazar Muhammad was that the deceased was of bad character. When all these facts are placed in juxtaposition alongwith the statement of the accused that Mst. Sughran Bibi did not have a good character, leads me to an irresistible conclusion that picking up wheat Sittas at 6-30 p.m. In the end of May when it was about to get dark in 15 to 20 minutes. Does not appeal to reason, and the insistence of Mst. Sughran to stay with her parents house in the village where Ashraf her cousin was also living further adds credence to the suggestion made to the witnesses as well as stated by the accused in his statement, that she was having an affair with the said Ashraf. There is some logic in the statement of the accused that if he wanted to kill Sughran Bibi he could have done it before he came to his father-in-law's house.
Presence of Ashraf at the place of occurrence during that time in the garden of Ghulam Muhammad Badrana having either chat or actually having been seen in compromising position, cannot be excluded and at that very moment Nazar Muhammad who had already suspicion may have arrived and strangulated the deceased who was already a divorced woman, as there is suggestion that her former husband Bashir Ahmad ended the matrimonial ties because of her bad character. The motive set up by the, prosecution that Nazar Muhammad compelled Sughran to go to his house and there were disputes is belied by his own admission that both husband and wife were having cordial relations and earned their livelihood peacefully and all of a sudden without any rhyme or reason the husband would not strangulate his wife particularly when there are two small children one daughter of 2-1/2 years of age and another milk suckling son of six months old.
It seems that the lady was with her paramour and was taken unaware by her husband without there being any weapon in his hand, removed his turban and strangulated her there and then, in the meanwhile Ashraf made good his escape: The witnesses who were at a distance, may have seen the occurrence but because of element of shame so involved in the whole episode, they did not fun after the culprit and apprehend him because at that very moment the father may have also got infuriated by the lax morals of her daughter but later on to hide the shame a different picture was given to the whole scenario.
13. The upshot of the discussion, therefore, is that perpetrator of the crime was definitely the appellant and reasons why he committed the murder was the easy virtue of his wife who was seen with Ashraf making love with him. Resultantly the conviction is altered to section 302(c), P.P.C. And sentence of imprisonment of 14 years is maintained. However, killing due to provocation usually does not entail the punishment of either Diyat or compensation. As such the sentence of imposition of Diyat and compensation is set aside and benefit of section 382-B, Cr.P.C. Is extended to the appellant. The appeal partly succeeds.