' MUHAMMAD SHARIF, J.-The propriety and the legality of the judgment dated 11-6-1981 pronounced by Mr. Muhammad Mian Qureshi, the learned Sessions Judge Rahim Yar Khan has been agitated in this appeal who had convicted Muhammad Idrees, the appellant under section 302, P. P. C. And had ordered him to suffer death sentence. A fine of Rs, 2,000 has been imposed on the appellant and in default of the payment of this fine, he is directed to undergo one year's R. I. The entire amount of fine, if recovered, had been ordered to be paid to the complainant by way of compensation as envisaged under section 544-A, Cr. P. C. A reference has also been made by the learned trial Judge to this Court under section 374 of the Cr. P. C., for the confirmation of the death sentence. Both the appeal and reference have been heard together and are being decided by means of this consolidated judgment.
2. The facts which led to the detection of this crime in substance are that Gulzar Ahmad, the complainant cultivates the land of one Ghulam Qadir in the capacity of a tenant. Ghulam Muhammad was also a co-tenant with him under Ghulam Qadir and both of them cultivated 10 acres of land each. About for days prior to this incident, Muhammad Nawaz son of Gulzar Ahmad complainant was driving his oxen by the ridge of the field where wheat crop had been cultivated.
Muhammad Idrees, the appellant hurled invectives on Muhammad Nawaz and intended to beat him as to why be had driven his oxen through his field and why he had indecently jested with Mst.
Nusrat the appellant's sister. Ghulam Qadir son of Khuda Bakhsh pacified the situation but Muhammad Idrees still felt chagrined and was out to murder Muhammad Nawaz on the cardinal plea that he had cut an indecent joke with his virgin sister.
3. On 17-2-1980 at about 5-30 p.m., Muhammad Nawaz and his younger brother Mumtaz Ahmad were working in the fields. They had one kassi with them. They felt the necessity of another kassi and Muhammad Nawaz proceeded to have a kassi from Ghulam Qadir. When he was traversing through Killa No, 19 wherefrom sugar-cane crop had freshly been cut, Muhammad Idrees, the appellant confronted Muhammad Nawaz and whipped out a chhuri from the upper corner of his loin-cloth which he was wearing at that time. The appellant held lalkara that he would not spare Muhammad Nawaz. On the shrieks of Muhammad Nawaz, Gulzar Ahmad and Mumtaz Ahmad, the father and the brother respectively of Muhammad Nawaz were attracted to the spot. Muhammad Idrees caught hold of the colar of Muhammad Nawaz and stabbed him. Thrice in the abdominal region with the chhuri which he was handling. Muhammad Nawaz fell down and Muhammad Idrees fled away. Ghulam Qadir and Haji Muhammad Talib who were present nearby witnessed this incident. Muhammad Nawaz succumbed to the injuries on the spot 10 or 15 minutes subsequent to this incident. Gulzar Ahmad, left Mumtaz Ahmad, Ghulam Qadir, Captain Feroz Khan and others near the dead body and went to the police station while accompanied by Ch. Fateh Muhammad Headman and lodged the F. I. R. Which was recorded by Saeed Ahmad A. S. I., P. S. Liaqatpur.
4. The police went to the spot. They prepared the injury statement and the inquest report and sent the dead body for autopsy to the Mortuary. The blood-stained clothes of the deceased were also taken into possession. On 23-2-19W, the appellant was arrested and after interrogation he revealed that he could lead to the recovery of blood-stained chhuri and consequently he got recovered the blood-stained chhuri Exh. P. 4 which was made into a sealed parcel. The police got prepared the site plans. Muhammad ldrees, the appellant was also found injured and he was medically examined. After the completion of the investigation, the challan of the appellant was submitted. As a result of the trial by the Sessions Judge Rahim Yar Khan he was convicted and sentenced as stated supra.
5. Muhammad Idrees has made things easier for us by stating that he had killed Muhammad Nawaz out of grave and sudden provocation and by exercising his right of self-defence. The onus, although a light one, was shifted to the appellant's side to show that he was really swayed by the instinct of grave and sudden provocation at the time of incident or he had felt the necessity of self- defence at the time of this gruesome murder.
6. Dr. Sher Muhammad Medical Officer, Civil Hospital, Allahabad P. W. 8 had performed the autopsy on the dead body of Muhammad Nawaz and had observed the following injuries :-
(1) A stab wound 1" x xon the left side of front chest directed upwards 3" below and slightly inner to left nipple. Blood exuding from the wound.
(2) An incised wound rx muscle deep on the left side of chest 3" out of left nipple.
(3) An incised wound 1' X f" x skin deep on the top of right shoulder joint.
(4) An abrasion r x on the front of neck.
(5) A stab wound 1' x x 21" on the left side of back 2" below the inferior angle of left scapula.
' This medical expert had opined that the death in this case occurred due to shock and hemorrhage resulting in heart and respiratory failure consequent on the aforementioned injuries.
This medical evidence is in consonance with the statement of Gulzar Ahmad recorded by the police and made before the learned trial Court. Gulzar Ahmad P. W. 11, Mumtaz Ahmad P. W. 12, the father and the son of the deceased had narrated the incident rs stated in the F. I. R. They have deposed that within their view Muhammad Idrees appellant had given chhuri blows to Muhammad Nawaz and the incident was witnessed by Haji Talib Hussain and Ghulam Qadir. Ghulam Qadir was not examined whereas Muhammad Talib P. W. 13 had borne testimony to the fact that he had seen Muhammad Nawaz lying on the ground while the appellant was seen running away from the spot and he did nct care to notice any weapon in the hand of the accused. The Investigating Officer Saeed Ahmad P. W. 4 had testified that he had recorded the F. I. R. Exh. P. A. And proceeded to the spot and arrested the accused on 23-2-1980.
7. In order to prove grave and sudden provocation and the plea of self-defence the relevant statement of the accused recorded under section 342, Cr. P. C. May be reproduced us under :- "On 17-2-1980 at about 5-30 p.m., I was present in Killa No, 19 for crushing sugar-cane crop. At that time I was having chhuri Exh. P. 4 for peeling the sugar-cane. At that time my sister Mgt. Nusrat aged 16/17 years and a virgin was going to or house with a bundle of sugar-cane leaves fodder.
When she reached near the house of the deceased in Killa No, 21 she raised alarm that she should be let off and then ran back toward me in Killa No, 19 while being pursued by Muhammad Nawaz deceased over there. The scene gave mt. Sudden provocation and I lost my self-control. I was then holding the chhuri with which I was peeling the sugar-cane. The deceased was holding an iron chain used for tethering the cattle. The deceased attacked me with the said iron chain and gave for blows to me. As I apprehended my death by the onslaught of the deceased, I gave injuries to him which resulted in his death. I acted in self-defence as well as under a fit of uncontrollable provocation. I am lame by one leg and there was none else present at the spot and had 1 not taken this step I would not have been spared by the deceased."
8. The appellant has clarified that he was motivated by grave and sudden provocation because he had seen Muhammad Nawaz giving a hot chase to his virgin sister who was running towards him and he lost the power of self-control and killed Muhammad Nawaz. It remains to be determined whether or not the virgin sister of the appellant was present at the spot at the time of this incident.
The answer should be a clear 'No' because none of the e. Ws. Has stated about the presence of Mst.
Nusrat on the spot or in proximity thereto at the time of this incident. No suggestion was put to the ocular witnesses about the presence of Mst. Nusrat and towards the the fag-end of the trial of this case, a half-hearted suggestion was put to Said Ahmad P. W. 14 whether he was apprised of the fact that the accused found Muhammad Nawaz catching hold of Mst. Nusrat, the sister of the appellant which culminated in the present incident. The Investigating Officer denied this suggestion. Here the suggestion was that the deceased was found having caught hold of Mst.
Nusrat but in his statement made under section 342, Cr. P. C., it has been explained that Mst. Nusrat was running towards the appellant and subsequently this incident occurred. This material discrepancy has not been reconciled and the plea of grave and sudden provocation appears to be a figment of the appellant's imagination.
9. The appellant has taken the plea of self-defence and has stated that Muhammad Nawaz had an iron chain with him and he attacked and injured him with the said iron chain and when he apprehended death, he gave chhuri blows to Muhammad Nawaz.
10. Dr. Gulzar Muhammad, Medical Officer, Liaqatpur P. W. 2 had medically examined the appellant on 24-2-1980 and had found the following injuries on his person :
(1) An abrasion (sloughed) 4 c.m. x c.m. On the middle of left fore-arm.
(2) Abrasion (sloughed) on the right ear over pinna in the middle.
(3) A solughed abrasion 1 c.m. x c.m. On the middle of left thigh.
(4) An abrasion I c.m. x c.m. On the back of right elbow joint.
' The injuries are simple in nature and the appellant was medically examined about 8 days after this incident. The appellant has taken the plea that in order to promote his lascivious activities Muhammad Nawaz had made amorous advances towards Mst. Nusrat. No credible explanation has been offered regarding the purpose of handling the iron chain at that time. The appellant, in response to question No, 3 of his statement made under section 342, Cr. P. C., has elucidated that he himself appeared before the police on 18-2-1980 and produced the chhuri Exh. P. 4 which belonged to his father. If the appellant had voluntarily appeared before the police on 18-2-1980, his medical examination could not be belated. The injuries suffered by the appellant are simple in nature and can be self-inflicted and self-suffered. These simple injuries are reflective of the fact that a man of ordinary prudence could not apprehend death or grievous hurt. The iron chain was not recovered from the spot. Column 23 of the inquest report Exh. P. E., manifests that nothing was recovered from near the dead body. The story regarding the handling of the iron chain by the deceased at the time of this incident had not been substantiated nor does it ring true.
11. The defence plea taken by the appellant has not been substantiated from the attending circumstances. He even did not examine Mst. Nusrat in defence. In this manner, the conviction of the appellant under section 302, P. P. C. Deserves to be maintained. As regards the quantum of sentence awarded to the appellant, the learned Sessions Judge Rahim Yar Khan did not take into consideration the motive for the commission of this crime. The motive, which actuated the appellant to commit this grisly murder, has been stated in the F. I. R. And it is the prosecution story that the deceased had cut an indecent joke with the virgin sister of Muhammad Idrees and the appellant, who had otherwise no enmity against Muhammad Nawaz or his family killed Muhammad Nawaz. The family honour is very endearing to a rustic but u bashful villager.
Muhammad Idrees, the appellant, was tempted to take this extreme measure to vindicate the honour of his family which constitutes a mitigating and an extenuating circumstance A in favour of the appellant and the death penalty could not be exacted on him. We, therefore, commute the death sentence to life imprisonment. The order regarding fine and its payment to the complainant by way of compensation shall remain unaltered. The death sentence is not confirmed.
12. We have considered the period during which the appellant was detained in custody for this offence. In the circumstances, we are inclined to grant him the benefit of section 382-B, Cr. P. C.
This would cover the period during which he remained in custody as an under-trial prisoner as well as the period during which he remained in jail after his conviction. Reliance is placed on the decisions of the Supreme Court In re : Ali Sher v. The State and 3 others (1) and In re : Manzoor Ahmad v. The State (2).
' The appeal and the reference stand disposed of accordingly. {{FOOT NOTE}}
(1) PLD 1980 SC 317 (2) 1981 SCM R 260 {{FOOT NOTE}}