Fazal Hussain son of Ghulam Siddique, aged 25 years, was sent up for trial under section 302, P. P. C.
For committing the murder of his wife Mat. Nusrat Sultana deceased. The learned Additional Sessions Judge, Lahore by his judgment dated 5-12-1978 held Fazal Hussain guilty under section 304, Part I, P. P. C. And sentenced him to imprisonment for life and to pay a fine of Rs. 2,000 or in default to further undergo two years' R. I. It was further ordered that the fine, if recovered, would be paid as compensation to the heirs of the deceased. The appeal of Fazal Hussain appellant against his conviction and sentence is now before me.
2. The brief facts of the case, as disclosed at the trial, are that Mst. Nusrat Sultana deceased was married with Fazal Hussain appellant about 7/8 months before the occurrence. The appellant used to live in a quarter of one Mst. Hanifan Bibi D. W. In Gali No. 32, Data Nagar. A few months before the occurrence, the relations between the parties became strained, whereupon the deceased went to her parent's house. About 3/4 days prior to the occurrence Mst. Hanifan Bibi D. W., her son and Haji Mehar Din of Data Nagar effected a compromise between the parties. On the evening of 29-10- 1977, the appellant brought his wife to his quarter in Gali No. 32, which was in front of the house of Mahfooz Ahmad P. W.
5. The appellant harboured a suspicion against the character of his wife. On 30-10-1997 at about 5 a.m. Mahfooz Ahmad P. W. 5 and Muhammad Yousaf heard a noise coming from the house of the appellant. On reaching there, they found the appellant sitting on the chest of his wife Mst. Nusrat Sultana, who was lying on a cot. The appellant was pressing her throat with both his hands. They raised an alarm and removed the appellant from her chest. In the meanwhile, the deceased died. The occurrence was witnessed by Mahfooz Ahmad P. W. 5 and Muhammad Yousaf P. W. 6, Maqsud Ahmad (given up P. W.) and Tahira Begum (given up P. W.). The appellant confessed before the said P. Ws. That he had killed his wife due to her bad character. All the said P, Ws. Excluding Mst. Tahira Begum apprehended the appellant at the spot and brought him to the Police Post, Badami Bagh, and produced him before Sultan Mahmood S. I., P. W. 7, who arrested him.
The statement Exh. PB/I of Mahfooz Ahmad P. W. 5 was recorded by Sultan Mahmood S. I., P. W. 7 at 5-45 a.m. And thereafter sent to the Police Station Misri Shah, on the basis of which formal F. I. R.
Was recorded as Exh. P. B. At 6-10 p.m. He then proceeded to the spot. After preparing necessary documents he sent the dead body for post-mortem examination. On the following day, he got the appellant medically examined. After completing the investigation he submitted the challan in Court. At the trial, the appellant denied the accusation and in his statement, recorded under section 342, Cr. P. C. He submitted as follows:- "I was working as Iron cutter in the factory of Sh. Fazal Muhammad, Steel Re-Rolling Mills on daily labour basis. I worked overtime on 29-10-1977 and I came to my house at about 10 p.m. I went to sleep as I was tired. At about mid-night I was awakened by movement of the cot of my deceased wife and I saw that aforemen--tioned Abdul Sattar was in objectionable position with my wife. I immediately tried to catch hold of him. Upon which he gave a fist blow having a ring in his right hand on my right eye-brow and my deceased wife held my legs and testicles in order to give an opportunity to Abdul Sattar to escape. Whereupon in order to vindicate my honour and under sudden and grave provocation due to bad act of my wife I throttled her to death. Then I immediately ran after Abdul Sattar and went to General Bus Stand, Badami Bagh, but he could not be found. Whereupon I myself went to Police Post General Bus Stand and disclosed the facts but instead of recording a report, police kept me there till the arrival of Sultan Mahmood S. I. Of Police Post, Badami Bagh who took me from there at about 6 a.m. And then I was taken to the spot where my wife was lying dead. He called her close relatives to the place of occurrence and made them false eye-witnesses and fabricated the story put up before this Court."
3. The learned trial Judge, in para. 21 of his judgment disbelieved the presence of the eye-witnesses to the occurrence. In paras. 24 and 25 of his judgment he held that the story put forth by the appellant about grave and sudden provocation appeared to be correct. In the circumstances, he convicted and sentenced the appellant as stated in para. 1 above.
4. The learned appellant's counsel has only attacked the sentence awarded. Relying upon Ghulam Sarwar v. Tire State (1976 P Cr. L J 1295), Rehmat alias Rehman v. The State (1978 P Cr. L J 828), Sadh v. The State (1978 P Cr. L J 444) and other rulings, the learned counsel had submitted that sentence from 2 to 5 years' R. I. Should have been awarded and not imprisonment for life. He prays, for a lesser sentence only and nothing else.
5. I have given my anxious consideration to this case. As held by the learned Additional Sessions Judge, the appellant was suddenly provoked beyond restraint when he saw his wife and her paramour in a compromising position. The learned Additional Sessions Judge, however, did not consider that the appellant deserved any leniency in sentence because along with the life of his wife he had taken the life of a baby of 4 pounds which was in her womb. He, therefore, awarded the sentence of life imprisonment. The death of a quick unborn child in the womb of mother, with the mother when she is murdered, must be deprecated and does call for a serious sentence. But in cases of grave and sudden provocation, the matter calls for appraisal in a. Different light. In an incident such as the present, where an accused hardly has any time to comprehend or assess the nature or result of his action, the question whether he could weigh his actions in golden scales, hardly arise. In such a case, though an accused may not be shown the usual leniency in sentence, yet his sentence should not be unduly severe. In the instant case, the sentence awarded is not only too severe but in total disregard of the principle laid down by this Court in a long string of authorities, which permits the award of lenient sentences in cases where women are murdered under grave and sudden provocation when they are apprehended flagrante delicto with their paramours, in view of the peculiar social norms and concept of "ghairat" prevailing in our society.
6. Keeping in view section 382-B, Cr. P. C., which permits the period of detention already undergone by an accused to be taken into consideration when deciding the quantum of sentence, the period of detention spent by the appellant as an undertrial prisoner from 30-10-1977 to 5-12-1978 should in fairness to the appellant, have been taken into consideration by the trial Judge when awarding the sentence. This unfortunately, the learned trial Judge did not do. The learned trial Judge did not give any reasons for not applying section 382-B, Cr. P. C. To the instant case. Though section 382-B, Cr.
P. C. Does not mandatorily call upon trial Court to specifically record its reasons in writing when it does not desire to apply this section to any given case, yet, on principles of equity and justice, the trial Court should do so, so that an accused may fairly be informed of the reasons which have prompted it in not granting the concession permissible under this section. In cases involving short sentences, the need becomes imperative, if the accused have been detained fairly long, unless the circumstances and facts of the case justify otherwise. In the instant case, the failure of the trial Judge in not applying section 382-B, Cr. P. C. And his total silence in the judgment in not giving reasons for applying this section, render the sentence awarded, open to serious legal objection.
However, taking all relevant factors into consideration, including the period of detention spent by the appellant as an under-trial prisoner and the fact that he is not rich, I think a sentence of 4 years' rigorous imprisonment in the instant case would meet the ends of justice.
7. For the foregoing reason, this appeal is partly accepted. The conviction of the appellant under section 304, (I) P. P. C. Is maintained. However, the sentence of life imprisonment and the fine of Rs.
2,000 as imposed by the learned trial Judge is set aside and instead the appellant shall undergo rigorous imprisonment for four years only.