ABDUS SATTAR ASGHAR, J. - By virtue of this single judgment we intend to dispose of this Appeal (Crl. Appeal No. 269/2008-Lal Khan v. The State) as well as Crl. Revision No. 14/2009 (Muhammad Yasin v. Lal Din) and Crl. Appeal No. 31/2009 (Muhammad Yasin v. Ahmad Din etc.) arising of of the same judgment dated 30.10.2008 passed by the learned Additional Sessions Judge, Bahawalnagar, in case F.I.R. No. 130/2006 under Sections 302/324/452/148/ 149, PPC, Police Station Mandi Sadiq Ganj, District Bahawalnagar.
2. Through the impugned judgment dated 30.10.2008 following orders were made:- Lal Khan accused was convicted under Section 302(b), PPC for committing Qatl-e-Amd of Muhammad Mansha and sentenced to imprisonment for life as Tazir. He was also directed to pay an amount of R. 1,00,000/- as compensation under Section 544-A, Cr.P.C, to the legal heirs of the deceased and in default thereof to undergo S.I. For six months. He was also convicted under Section 448, PPC for committing house trespass and sentenced to six month's R.I. It was ordered that both the substantive punishments shall run concurrently. Benefit of Section 382-B, Cr.P.C., was also given to the accused.
3. Lal Khan convict being aggrieved of the above- mentioned convictions and sentences has lodged instant Crl. Appeal No. 269/2008. On the other hand Muhammad Yasin complainant being dissatisfied with the quantum of sentence awarded to Lal Khan has lodged Crl. Revision No. 14/2009 seeking enhancement of his sentence.
Accused Ahmad Din, Muhammad Usman, Mukhtar Ahmad, Muhammad Rafiq, Tariq Mehmood and Ghulam Murtaza were acquitted of the charge by extending benefit of doubt. Muhammad Yasin complainant being dissatisfied with the acquittal of the above-named accused has lodged Crl.
Appeal No. 31 of 2009 with the prayer that the impugned order of acquittal be set aside and the said accused persons be convicted and sentenced in accordance with law.
4. Briefly the prosecution version as set-forth by Muhammad Yasin complainant in the F.I.R, is that on 21.6.2006 at 5:30 p.m. He alongwith his father Muhammad Mansha (deceased) and other family members was present at home when a pigeon came and sat at the roof of his house; that Lal Khan accused, their neighbour, trespassed into his house while climbing over the eastern wall as a result whereof earthen cage of hens was collapsed; that Muhammad Mansha admonished Lal Khan accused stating that why he had entered into the house and demolished the earthen cage, whereupon they had exchange of hot words; that Lal Khan accused responded that his pigeon had come to their house and he had come to get the same; that Muhammad Mansha restrained him "from moving forward resulting into exchange of abuses between them whereupon Lal Khan accused carried a hatchet lying in the courtyard of the complainant's house and caused injuries at the head of Muhammad Mansha with an intention to kill him as a result whereof Muhammad Mansha became unconscious; that the complainant stepped forward to rescue his father Muhammad Mansha whereupon Lal Khan accused gave hatchet blow on the back side of his right hand; that responding to the noise accused Muhammad Usman and Ahmad Din armed with sticks also joined Lal Khan and assaulted upon the complainant and his father; that on their Hue and cry PWs Binyamin and Muhammad Sarwar attracted to the spot to their rescue; that the said PWs shifted the complainant and Muhammad Mansha in injured condition to RHC Mandi Sadiq Ganj where Muhammad Latif SI alongwith his subordinates reached having information of the occurrence and recorded the statement of the complainant Exh.PH on the basis whereof formal F.I.R, was recorded.
5. Later on, on 23.6.2006 Muhammad Mansha succumbed to the injuries. Qn the same day Muhammad Yasin complainant got recorded his supplementary statement implicating Ghulam Murtaza, Tariq Mehmood, Muhammad Rafique, Mukhtar Ahmad and Mst. Irshad Bibi as accused.
6. On submission of the challan Mst. Irshad Bibi accused was declared juvenile and to her extent SHO was directed to submit separate challan. The remaining accused were duly charge-sheeted by the learned Trial Court in the above-said offences to which they did not plead guilty and claimed to be tried.
7. During the course of evidence prosecution produced as many as 11 witnesses .Including, Muhammad Yasin, complainant PW-4 and Muhammad Sarwar an eyewitness PW-5 besides Dr. Muhammad Sharif, Medical Officer, PW-3 who medically examined Muhammad Mansha and Muhammad Yasin complainant both in injured condition on 21.6.2006 vide Exh.PC and Exh.PD respectively and also conducted the post-mortem examination on the dead-body of Muhammad Mansha on 23.6.2006 through post-mortem report Exh.PE. Abdul Latif, SI PW-7 and Muhammad Akbar, Inspector/SHO PW-10 were examined as investigating officers of this case besides other formal witnesses.
8. Statement of accused Lal Khan, and other co- accused were also recorded under Section 342, Cr.P.C, wherein they pleaded their innocence while denying the prosecution evidence. Accused Lal Khan in his statement under Section 342, Cr.P.C, also put-forth his cross-version in defence. None of the accused however opted to appear in the witness-box under Section 340(2), Cr.P.C, or to produce any evidence in defence.
9. We have given patient hearing to the learned counsel for the appellant, learned counsel for the complainant and the DPG for the State and also gone through the record carefully with their assistance.
10. Perusal of the record reveals that besides the statement of Muhammad Yasin complainant PW- 4 who has reiterated his version as set-forth in the F.I.R, and later on in supplementary statement, the prosecution has produced only one eye-witness Muhammad Sarwar PW-5. He deposed that on 21.6.2006 at about 5:30 p.m. He alongwith his brother Binyamin was sitting in their house when responding to the noise they reached to the house of their rear brother Muhammad Mansha and saw that accused Lal Khan equipped with hatchet, Muhammad Usman, Ahmad Din, Mst. Irshad Bibi, Muhammad Rafique, Mukhtar Ahmad, Ghulam Murtaza and Tariq Mehmood armed with Soties were present there; that on seeing them Ahmad Din accused directed his son Lal Khan to attack upon Muhammad Mansha before arrival of his brothers whereupon Lal Khan accused inflicted hatchet-blow on the head of Mansha who fell down on the ground and became unconscious; that Lal Khan accused also gave hatchet-blow on the right hand of Muhammad Yasin complainant whereas rest of the accused inflicted Soti-blows to Muhammad Mansha and Muhammad Yasin complainant; that accused Lal Khan and Mst. Irshad Bibi also received injuries during The occurrence; that thereafter the accused persons fled away.
11. Testimonies of Muhammad Yasin, complainant PW-4 and Muhammad Sarwar PW-5 transpire that no specific injury is attributed to the accused Ahmad Din, Muhammad Usman, Mukhtar Ahmad, Muhammad Rafiq, Tariq Mehmood and Ghulam Murtaza on the person of Muhammad Mansha deceased or on the body of -Muhammad Yasin complainant. Even the medico-legal reports pertaining to Muhammad Mansha and Muhammad Yasin fail to reflect any such injury on their bodies which could be connected with the above-named, accused. Injury No. 1 a lacerated wound on the head of Muhammad Mansha is particularly attributed to Lal Khan whereas injury No. 2 a black contusion on the back of left side of chest is not specifically attributed to any of the accused, It may be caused in result of his falling on the ground after receiving injury No. 1. Similarly only one injury is recorded in the MLC of Muhammad Yasin at the dorsum of right hand which is specifically attributed to Lal Khan. Therefore medical evidence produced by the prosecution do not support complainant's version regarding active participation of the above-named accused in the alleged occurrence.
12. Besides it is note-worthy that the accused Muhammad Usman and Ahmad Din were nominated in the F.I.R, and the remaining accused namely Tariq Mehmood, Rafique, Mukhtar, Ghulam Murtaza and Irshad Bibi were involved through supplementary statement on 23.6.2006 after two days of the alleged occurrence as well as after the demise of Muhammad Mansha who succumbed to the injuries, It is pertinent to mention that all the above accused were found innocent by the police in the police investigation. Since no overt at is established on the part of the above- named accused and even their presence or participation in the alleged occurrence is doubtful as five of them were later on involved through supplementary statement, therefore their implication appears to be result of throwing wider net to involve maximum number of kith and kins of the accused Lal Khan.
Since the prosecution has not been able to prove any. Charge against above-named accused through any confidence inspiring or reliable evidence, therefore, the learned Trial Court following the principle of separating the grains from the chaff while appreciating the prosecution evidence in a salutary manner has rightly acquitted them.
13. Arraignment of accused Lal Khan is however not shrouded in mystery. Accused Lal Khan in his statement under Section 342, Cr.P.C, has not denied the occurrence rather has put forth his cross- version alleging that the place of occurrence was not house of the' complainant rather it took place in Masjid Chowk of the village in result of a quarrel where he was trying to catch a pigeon when the complainant party armed with deadly weapons launched an attack upon him resulting into injuries on his head as well as on the head of his minor sister Mst. Irshad Bibi and that during scuffle Muhammad Mansha deceased received blunt injuries accidentally.
14. Record reveals that the cross-version advanced by the' accused is not approved by the investigating officer during the course of investigation. Lal Khan also did not bother to produce any defence evidence to substantiate his version of self-defence. Version of the accused as regards venue of the alleged occurrence is also not established by him. On the other hand in the prosecution evidence complainant's version that the occurrence took place inside his house is supported by the investigating officer as well as through site-plan Exh.PP. Careful appraisal and analysis of the prosecution evidence therefore manifests that the occurrence took place inside the, house of the complainant.
15. Details of the occurrence alleged by the prosecution make it crystal clear that accused Lal Khan in fact had no intention to kill Muhammad Mansha. He had not come prepared with any lethal weapon to the house of the deceased rather situation aggravated in result of exchange of abuses between the accused Lal Khan and Muhammad Mansha deceased when the accused by trespassing entered into his house by climbing over the wall to catch his pigeon. It is therefore obvious that the occurrence is of-come of sudden provocation due to exchange of abuses between the accused and the deceased whereupon the accused taking hatchet lying in the courtyard of the house of the complainant caused head injury to Muhammad Mansha with wrong side of the hatchet, It is not a case of pre-meditation rather mens rea developed at spur of the moment in result of sudden provocation, It is also note-worthy that the accused Lal Khan did not repeat any injury to Muhammad Mansha deceased. Parties are related to each other and there is no previous animosity between the parties.
16. This is a case of loss of power of self-control at the spur of moment in result of the exchange of abuses between the accused and the deceased. At this juncture we take reliance upon the case of AH Muhammad v. Ali Muhammad and another (PLD 1996- SC 274). Relevant extracts from the above-referred citation are reproduced hereunder for ready reference:- "9. The doctrine of provocation has a long history of evolution at common law. It had been developed entirely by judicial decision until the British Parliament first intervened by passing the Homicide Act, 1957: "The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to. Kill or to inflict grievous bodily harm, is negative. Consequently, where the provocation inspires an actual intention to kill (such as Homles admitted in the present case), or inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognized, viz., the actual finding of a spouse in the at of adultery. This has always been treated as an exception to the general rules....
Necessary self-defence, or action taken in the necessary defence for example, of wife or child from outrage or maltreatment, stand apart, as in such cases there is no crime at all committed."
(Viscount Simon in Holmes (1946) AC 588).
11. Provocation in law consists mainly of three elements - the at of provocation, the loss of self- control, both actual and reasonable and the retaliation proportionate to the provocation .......Their relationship to each other - particularly in point or time, whether there was time for passion to cool-is of the first importance. The point ..................................... To emphasize is that provocation in law means more than a provocative incident. (Lord Devlin in Lee Chun- Chuen (1963) A.C. 220, 231, 232.
12. The law, it has been said, is not concerned with the brain but with the 'mind', in the sense that mind is ordinarily used-the mental faculties of reason, memory and understanding. Devlin, J. In R v.
Kemp (1957) Q.B. 399. Therefore: It is not all provocation that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful at which causes death, In deciding the question whether this was or was not the case, regard must be had to the nature of the at by which the offender causes death, to the time which elapsed between the provocation and the at which caused death, to the offender's conduct during that interval and to all other circumstances tending to show the state of his mind. (Stephen's Digest of the Criminal Law, Art. 317) (Mancini v. Director of Public Prosecutions (1942) AC 1).
13. The rationale of the doctrine of provocation, then, is that "homicide is owing to a sudden transport of passion, which, though the benignity of the law, is imputed to human infirmity". (Sir Michael Forster; also cited by Lord Diplock in R v. Camplin (1978) A.C. 705, where the doctrine was ascribed to law's compassion to human infirmity). Explaining the doctrine, J.W.C. Turner said in his essay* "The Mental Element in Crimes at Common Law" in the Modern Approach to Criminal Law":- "...... We have to consider the mental state of the wrongdoer, not is in relation to mens rea (for the blow he struck was voluntary, and he intended to kill by means of it), but in relation to the criminality of the actus itself......"
It is for this reason that if the wrong-doer had sufficient time "for the blood to cool and the reason to resume its seat", provocation, however, grave was not treated as an excuse. The principles and practice of the Criminal Law by Seymour F. Harris (15th Edition) at pages 201, 202.
14. The reduction of a crime from murder to manslaughter was the same as in Pakistan under the old Section 300, Exception 1, and Section 304 of the Penal Code, where the lesser crime was known as culpable homicide not amounting to murder.
15. The old Section 300 defined murder but provided by its Exception 1 that "Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, caused the death of the person who gave the provocation or causes the death of any other person by mistake or accident". The old Section 304 provided: "Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the at by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause- death; or with imprisonment of either description for a term which may extend to ten 'years, or with fine, or with both, if the at is done with the knowledge that it is Likely to cause death, but without any intention to cause death or by causing such bodily injury as.
Is likely to cause death".
17. In view of the detailed examination of the proposition in the above cited case of Ali Muhammad and keeping in view the circumstances of this case of loss of power of self-control at the spur of moment due to sudden provocation, we are of the considered view that since the accused Lal Khan had no intention to cause murder of Muhammad Mansha, therefore, at of the accused amounts to culpable homicide not amounting to murder covered by exception 4 of Section 300(old), PPC.
18. Needless to mention that consequent upon the declaration that Sections 299 to 338 of Pakistan Penal Code, 1860 were repugnant to the Injunctions of Islam, the new Sections 299 to 338-H of the Pakistan Penal Code have been enacted. Qatl-e-amd is defined in Section 300 whereas Section 302, PPC provides punishments for Qatl-e-Amd, which reads as under:- "302. Whoever commits Qatl-i-Amd shall, subject to the provisions of this Chapter be-
(a) punished with death as Qisas;
(b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or
(c) punished with, imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas Is not applicable."
Here, once again another extract from the above-cited case of Ali Muhammad- is reproduced hereunder for true understanding of the proposition:- "29. The new Section 302 itself divides Qatl-i-Amd, for purposes of punishment into three categories:-
(1) , Qatl-e-Amd which is punishable with death as Qisas;
(2) Qatl-i-Amd which is punishable with death or life imprisonment as Tazir; and
(3) Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.
Section 302 of the P.P.C., therefore, itself . Contemplates plainly clearly a category of cases which are within the definition of Qatl-i- Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of Section 302, keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the cases covered by the Exceptions to the old Section 300, P.P.C, read with the old Section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new Section 302 of the P.P.C."
The above-referred dictum laid .Down in the case of AN Muhammad is also followed in another judgment of the apex Court in the case of Muhammad Akbar alias Akku v. The State (2009 SCM R 1192).-
19. Following the dictums laid down by the apex Court in the above-referred cases., in the peculiar circumstances of the case in hand, we have no hesitation to reach the conclusion that the complicity of the accused Lal Khan does not attract the provisions of Section 302(b), PPC rather it falls in the ambit of Section 302(c), PPC. Therefore this appeal lodged by Lal Khan is partly accepted.
20. As regards quantum of punishment suffice to say that in view of the above-mentioned peculiar circumstances, this is a case of mitigation, therefore he is sentenced to R.I. For 14 years: However, order of the learned Trial Court regarding compensation amount of Rs. 1,00,000A under Section 544-A, Cr.P.C, payable to the legal heirs of the deceased and the sentence in default thereof to suffer 6 months' SI is maintained. His conviction under Section 448, PPC for commission of house trespass and sentence of 6 months' R.I. Is also maintained. Both the substantive punishments shall run concurrently. He will also be entitled to benefit under Section 382-B, Cr.P.C.
21. For the same reasons. Criminal Revision No. 14 of 2009 for enhancement of sentence of Lal Khan and Criminal Appeal No. 31 of 2009 against the acquittal of the respondents, both lodged by Muhammad Yasin complainant, are dismissed.