' Ghulam Farid (25) son of Ilahi Bakhsh resident of Chak No, 601/TDA, within the area of Police Station Kot Addu, District Muzaffar Garh was charged before learned Sessions Judge Muzaffar Garh for the offences of murder of his wife named Mst. Kaniz and her paramour Iqbal alias Bala, under section 302, Pakistan Penal Code. The accused was given benefit of Exception I to section 300, P. P.
C. And held guilty for the offence under Part I of section 304, P. P. C. And sentenced to rigorous imprisonment for three years and fine of Rs, 500, in default further rigorous imprisonment for three months. The judgment does not state specifically if the accused was awarded the above sentence on each of the two counts of murder of Mst. Kaniz and Iqbal alias Bala.
2. Nine witnesses were adduced at the trial on the side of the prosecution. Kalu, a real brother of Iqbal deceased, Muhammad Musa, a maternal cousin of the deceased and Ahmad Bakhsh father- in-law of the deceased, were examined as witnesses of occurrence. Their evidence was rejected by learned Sessions Judge as highly doubtful (para. 24 of the judgment). The charge was answered against the accused on a plea of guilty which reads as below :- "During night of occurrence after mid-night I woke up to pass urine. I saw that the cot of my wife was empty. I went out to fields to urinate. My wife did not return. I searched for her. In the first instance I thought that she had also gone out to urinate. I went to the date plants in her search. I found that my wife Mst. Kaniz was lying on the ground near the date plants in a dry water channel.
Lqbal alias Bala was having sexual intercourse with her. He was above her. A hatchet belonging to Iqbal was lying by the side of a date plant. I picked up the hatchet and caused the deaths of my wife Mst. Kaniz and lqbal under grave and sudden provocation. I lost self-control. I could not tolerate the scene."
3. The accused has appealed to challenge the propriety of extent of sentence imposed on him.
Learned counsel for the appellant has contended that in view of the conduct of the two deceased which constituted grave and sudden provocation of worst magnitude the accused deserved indulgent treatment. Sentence already undergone which comes to three months will amply meet the demand of public justice. Courts are expected to make a reasonable allowance for moral values of the society while awarding sentence in cases where the offence was committed under grave and sudden provocation which should deprive even an insensitive person of the power of self-control. Reliance was placed on the judgments in following cases :-
(i) Hussain v. The Emperor AIR 1939 Lah.
471.
(ii) Aziz-ur-Rehman v. The Crown PLD 1950 Pesh.
76.
(iii) State v. Akbar PLD 1961 Lah.
24.
(iv) Qada v. The State PLD 1975 Lah.
1531.
' In the first mentioned case, sentence of the accused was reduced from three years to three months. In the next case, the sentence was reduced to already undergone which was about three months. It was observed in that case that : "la this part of the country where a mere casual talk by a woman with a stranger is looked upon by the relations and in particular the husband of the woman as well as the society with great disapproval and resentment, the actual act of adultery must excite feeling incapable of being explained in words". In Akbar's case, the accused was awarded sentence of imprisonment till the rising of the Court. Learned Sessions Judge had observed that :- "The deceased was fool hardy enough to go to the place of the accused and subject the girl to sexual intercourse under the very nose of the accused and his family. Further, the accused has been in the lock-up for full one year."
' State came up in revision before the High Court for enhancement of sentence passed against the accused. On a survey of several authorities bearing on the question of sentence in such cases including the cases of Hussain v. The Emperor and Aziz-ur-Rehman v. The State. It was held that :- "Considering the moral values and notions of honouiand chastity, as well as the social customs, which prevail in our society, particularly among the respectable families in the rural areas, it must be regarded as a provocation of the gravest kind for a man to actually witness the degrading spectacle of a woman of his family being subjected to illicit sexual intercourse. If he loses self- control under the impact of such grave and sudden provocation and assaults the person responsible for bringing this disgrace to him and his family, his act is clearly such as requires to be viewed in a light different from that in which ordinary criminal acts are regarded. It would follow, therefore, that the punishment to be meted out in such a case would have to be measured by a different yardstick. It is for this reason that the Courts are reluctant to impose heavy punishments on such offenders. It is not easy to prescribe any particular period of imprisonment which may apply as a general rule in such case, nor in fact is it desirable to do so, but it would appear that a sentence of a few months' rigorous imprisonment should generally meet the ends of justice in most such cases."
' In the last precedent case (Qada's case), sentence of the accused who having found his wife and her paramour in compromising position had killed both of them was reduced from five years to the period already undergone. The accused had remained in jail for a period of two years and the occurrence was more than seven and a half years old.
4. There are quite a few precedent cases in which the accused who were found entitled to the benefit of Exception I to section 300, P. P. C., but were awarded sentences of several years. In the case of Muhammad Sadiq v. The State (1), conviction of the accused from one under section 302, P.
P. C. Was altered to that under section 304, Part I, P. P. C. And the accused was sentenced to rigorous imprisonment for two years. Akbar's case was noted in this case and considered in greater detail in Behram Khan v. The State (2) and it was held that "it is wrong to read that judgment as laying down that in cases of grave and sudden provocation caused by sexual delinquency of female relatives, a trifling sentence will do. While on the one hand law gives the benefit of shock to the accused in the circumstances furnishing grave and sudden provocation within the meaning of Exception I to section 300, P. P. C., in prescribing a sentence of transportation for life or imprisonment extending upto ten years, it also inculcates a peculiar sanctity for human life.
Therefore, a balance is to be maintained between the two different concepts underlying the provisions of Pakistan Penal Code relevant to this case". In this case also conviction of the accused for the offence of murder under section 302, P. P. C. Was modified to section 304, Part I and sentence of life imprisonment awarded to the appellant by learned Sessions Judge was reduced to three years. In Mewa v. The State (3), the accused was convicted under section 302, P. P. C. And awarded penalty of death for the murder of his brother's wife. Conviction in this case was also altered from sections 302 to 304, Part I, P. P. C. And sentence of the appellant was reduced to three years' rigorous imprisonment. In Muhammad Saleh v. The State (4), the accused was held guilty for the double murder
(1) PLD 1966 Lab. 104 (2) PLD 1965 Quetta 15
(3) PLD 1958 Lah. 468 (4) PLD 1965 SC 366 ' of his sister and her paramour. Conviction was altered to section 304, Part I, P. P. C. And the accused was awarded sentence of ten years' rigorous imprisonment. The question of propriety of sentence in such cases came up.For consideration before their Lordships of Supreme Court in a recent case Kamal v. The State (1). In that case also the conviction of the accused for double murder of his wife and her paramour under section 302, P. P. C. Was modified to section 304, P. P. C.
It was held by consensus that the sentence already undergone should be good enough to meet the ends of justice as the accused had remained in detention for more than five years. The cases of Mewa's case PLD 1958 Lah. 468, Akbar's case PLD 1961 Lab. 24 and Sadiq's case PLD 1966 Lah.
104 have been discussed in that case. Sentence of a few months in such cases was not approved by their Lordships. It was also observed that sentence of three years in Mewa's case was inadequate and even the sentence of five years in the precedent case was also considered inadequate.
5. It is, therefore, not correct to say that in such cases where the accused who are entitled to the benefit of Exception I of section 300, P. P. C. a sentence of a few months should suffice. The question of sentence unless A it relates to the question of minimum or maximum passable is not one of law.
The extent of penalty to be exacted from the accused is to be determined with reference to the circumstances of a given case. As already indicated above, it was held in Akbar's case which was the main stay of learned counsel for the appellant for the argument that sentence already undergone shall suffice, no particular period of imprisonment could be prescribed which may apply as a general rule in such cases.
6. The appellant was arrested on 17th of May, 1976 and released on bail after about ten months, viz. 15th of March, 1977 which is comparatively far lesser period than is ordinarily consumed in the disposal of Sessions trials. Sentence of the appellant is reduced to two years' imprisonment. The sentence of fine and that of imprisonmerit in default to remain intact. The entire amount of fine if realized shall be part taken in equal shares by heirs of both the deceased. Sentence reduced.
(I) PLD 1977 SC 153