MUHAMMAD FAZLE GHANI KHAN, J.-Mohd. Shah son of Amir Shah (26 years) and Zafar Shah alias Zafar Abbas son of Ghulara Abbas (22 years) residents of village Tahli Police Station Bhawana, District Jhang were tried by the Additional Sessions Judge; Lyallpur at Jhang for offences under section 302/34 for the murder of Noora son of Muhammad aged 25 years resident of the same village. At the same the, they were tried for offences under section 307/34, P. P. C. For a murderous assault on the person of Mst. Fatima (P. W. 10) on 10th of February 1966 at about Peshiwa,a in their village. The learned trial Court by his order dated 28th of June 1967 acquitted Zafar Shah alias Zafar Abbas of both the charges giving him the benefit of doubt, while he convicted Mohd Shah for the offence under section 302., P. P. C. And sentenced him to transportation for life. He was, however, exonerated of the charges under sec--tion 307/34, P. P. C. For the murderous assault on the person of Mst. Fatima P. W. The convict has appealed to this Court.
2. Briefly stated the prosecution story is that appellant Mohd. Shah suspected that Noora deceased had developed illicit intimacy with his sister-in-law (brother's wife) Mst. Mandan and therefore, on account, of this grudge he killed Noora deceased on the above-mentioned the and date by inflicting gunshot injuries while he was sating with his father Mohammad, paternal aunts Mst.
Fatima, Maman and Gaman P. Ws. On the oven of Shera near the house of Gaman son of Mahni in their village. It is alleged that when Noora fell down and died instantaneously. His aunt Mst. Fatima raised an alarm and while she was crying by raising her hands Ghulam Abbas (acquitted accused) fired at her and injured her arm. Both the accused, however, made good their escape from the scene of the occurrence. Mohammad Shah father of the accused lodged F. I. R. With the Police Station Bhawana which was recorded by Abdul Razzaq (P. W. 13) giving the details of the occurrence and also providing information about the motive of the crime. This report wag registered at the Police Station at about 5 p. m. On the same day. "The appellant was arrested on the 18th of February 1966 and led to the recovery of gun P. 3, vide memo. Exh. P. H. On the 2nd of M2- rch 1966 which is alleged to have been concealed by him in an abandoned kotha in a bundle of reeds. It is not necessary to give the details of the arrest of Zafar Abbas accused since he has been acquitted by the learned trial Court.
3. In support of its case the prosecution has examined as many as 14 witnesses. The post-mortem examination of the deceased disclosed as many as 9 injuries on his person and in the opinion of the doctor death was caused due to shock arid haemorrhage and injury No. I was sufficient in the ordinary course of nature to cause his death. The doctor recovered five pellets from the dead body of Noora and was of the opinion that the fire-arm was discharged from a distance of 30 feet and the injuries on the person of the deceased could be the result of more than one shot.. Mst. Fatima P W. Was examined by another doctor who found four gunshot wounds on her body. The ocular testimony of the incident is :urnished by the statement of Muhammad (P. W. 9) father of the deceased, Mst. Fatima (P. W. 10) paternal aunt of the deceased, and Manak (P. W. 11) who has been disbelieved by the learned trial Court. Mama another eye-witness named in the F. I. R. Has not been produced by the prosccu tion. Who learned Additional Sessions Judge found that the gun Exh. P, 3 was useless piece of iron and the evidence of recovery had been concocted in order to connect the appellant with the commission of the offence: He, therefore, completely discarded the testimony of the recovery wifnesses, and did not hold the appellant responsible for its posssession as the alleged recovery was done from Khola situated in an open place.
4. As regards the evidence of motive tl:: learned trial Court found sufficient corroboration in the statement of Muhammad (P. W. 9) father of the deceased and the evidence of Lala (P. W. 4) brother of the deceased ; both bad stated that they were called about four, days prior to the occurrence by the appellant and asked to admonish Noora who had developed illicit intimacy with Mst. Mandan, appellant's brother's wife, and had also given them some shoe beating. Taking into consideration that the- motive for the commission of the crime had been sufficiently established as the appellant himself in his statement under section 342, Cr. P. C. Had admitted that he had seen Mst. Mandan with Noora in the house of Mst. Fatima. The learned Additional Sessions Judge based his judgment on the evidence of the eye-witnesses namely, Muhammad and htst. Fatima.
Manak P. W. Was however, disbelieved on account of his being an interested person having made inchoate statement.
5. We have heard the learned counsel for the appellant at some length and have also gone through the evidence on the record with his assistance. Muhammad, father of the deAased appearing as P. W. 9 has given in detail the entire prosecution story. He has stated that about 3 days before the occurrence he was called with his son Lalu by Muhammad Shah to his dera and told that his son Noora deceased had illicit connection with Mst. Mandan wife of Muhammad Shah's brother and when he and his son denied anyknowledge about this connection of the deceased and pleaded his innocence, the appellant got annoyed and gave both of them shoe beating and on the day of occurrence when he was sitting with Fatima, Manak and Noora on the oven of his cousin Shera in the village Abadi and smoking his Hugqa Mama came to him and asked him to cut some wood for his fuel. In the meantime the appellant and his co-accused Zafar Abbas came on the spot armed with guns and challenged Noora saying that he won't be able to escape. Noora, however, tried to run away towards the street but Muhammad Shah fired his gun which hit him on his back. Noora fell down on his face towards the ground and the witnesses raised alarm along with hfsr. Fatima who raised both her bands protesting against their assault and Zafar Abbas fired with his gun at her arm. The appel--lant and his co-accused ran away from the scene of occurrence and although all the prosecution witnesses including Muhammad chased them, they were not successful in apprehending them.
6. Mohammad P. W. Was subjected to lengthy cross--examination on behalf of the defence but nothing material has been brought on record which can possibly be considered favourable to the accused. There is a ring of truth in his statement and he has fully corroborated the prosecution case. There is nothing in this lengthy cross-examination which can materially effect his evidence relating to the incident that he along, with his son was enjoying a smoke of Hukka after his meals when the appellant suddenly appeared on the scene of occurrence armed with his gun and challenged Noora who tried to run away but was, unfortunately, wounded fatally before he could reach a place of safety. Mst. Fatima has also corroborated the statement of Muhammad P. W. In material particulars and we do not find any discrepancy of such a glaring nature in her testimony which may make it doubtful regarding the commission of the crime on the part of the appellant.
7. It is true that Mst. Fatima has been disbelieved by the learned Additional Sessions Judge about the injuries on her own person haN ins been caused by Zafar Abbas co-accused but the circumstances in the case were such that they justified those conclusions. It is in evidence that there is an old enmity between Chadars on the one hand and the family of appellants who are Syed by caste on the other and the P. Ws. Had occasion to consult Chadars after the incident and before the F'. I. R. Was lodged, therefore, the possibility that Chadars might have tried to influence the complainant-party, in older to involve Zafar Abbas, an innocent person, could not be altogether excluded. Moreover, the prosecution has failed to show any reasons for Zafar Abbas to go with the appellant as his helper who was sufficiently powerful to deal with Noora and his family alone and did not stand in need of any outside help. There is nothing on the record to furnish a statisfactory answer to the question as to why the, appellant who was so daring a person who had called to his own dera Muhammad and Lalu P. Ws. Few days earlier and given them shoe-beating single handedly would invite his young nephew when he was going to challenge Noora with his gun. So the possibility that the witnesses were falsely implicating Zafar Abbas can be accepted for more than one reason. The learned Additional Sessions Judge Iwas, therefore, right to give him the benefit of doubt.
8. It was argued before us with great stress by Chowdhury Aziz Ahmad Bajwa 'learned Advocate for the appellant that since Muhammad and. Fatima have been disbelieved .Bout the injuries which were inflicted by Zafarr Abbas on the person of Mst. Fatima, the order of the learned Additional Sessions Judge was not sustainable in law as he had based the conviction of the appellant on the evidence of these to witnesses and there is no other incriminating circumstance to connect him with the occurrence as the credibility of the witnesses cannot be split. He further argued that since the appellant had been acquitted of the charge of attempted murder on the person of Mst. Fatima under section 307/34, P. P. C., therefore, it was not safe to rely on the evidence of the same injured person for the conviction of the appellant under section 302, P. P. C. Lastly, it was argued that the statement of appellant should be believed as a whole and the appellant at the most can be held guilty of an offence under section 304, Part I and not 302, P. P. C. As he had acted under, a grave and sudden provocation because he had seen his brother's wife Mst. Mandan with the deceased coming out of the house of Gama Machhi with Mst. Fatima. The deceased being Kunrnu by caste it was a challenge to the vanity of Syeds, the nobles of the village, that a Kammi of their village should have the courage to develop illicit intimacy with their women-folk.
9. In support of the first contention reliance was placed on Misri Khan and others v. The State (PLD 1967 Pesh. 237) where it has been held that the veracity, of the witnesses was not divisible without there being confirmatory evidence of unimpeachable character. The cases of. Madan Lal Agarwala and another v, The State (PLD 1960 Dacca 813) and Mst. Nasim Akhttar v. The Stare (PLD 1968 Lah.
841) were cited to contend that the confession and admissions must either be accepted as a whole or rejected, as a whole and it is not competent for a Court to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible.
10. The above contention of the learned counsel for the appellant has no force. According to the appellant's statement made by him before the trial Coutt under section 342, Cr. P. C. He killed Noora and injured Mst. Fatima (P. W.) under grave and sudden provocation when he saw his sister-in-law coming-out of the house of Gaman Machhi in company of Noora deceased and Mst. Fatima (P. W.)
It means that the appellant has relied on Exception 1 to section 300 of the Pakistan Penal Code.
Therefore, the burden of proving that his case comes within Exception 1 to section 300 falls upon him within the meaning of section 105 of the Evidence Act of 1872 and the Court is bound to presume the absence of such circumstances which bring his case within that Exception. We have gone through the statement of the appellant and also the entire evidence adduced in the case. We do not, however, find the existence of circumstances which can jus--tify to bring the case within the Exception pleaded by the appel--lant or to create a reasonable doubt in the case for the prosecu--tion. At the most, the appellant had seen Mst. Mandan coming out of the house of Gaman Machhi with Mst. Fatima. Her presence at that place might have been absolutely innocent and it might have been a mere accident or per chance that she met the deceased and Mst. Fatima (P. W.) at the gate of Gaman Machhi because it is common amongst the villagers to go in the adjoinging houses when they have taken their afternoon meals. At that the the women-folk usually fall into a mood for a chat in a particular house of the village. We are prepared to grant an allownce to the noble heritage to which the appellant belongs and the presence of his sister-in- law with the deceased might have resulted in provocation to him to great extent, but the mood of resentment expressed by the appellant has got `no reasonable relationship to the provocation given by the presence of the deceased with his sister-in-law. The provocation might be sudden but it cannot be said to be grave. It is in evidence that a few days before the occurrence the appellant had given shoe-beating to the brother and father of the deceased, in all probability, the deceased would have suffered a similar humiliation in silence at the hands of the appellant, but the provocation does not justify the infliction of fatal injuries by fire-arm. Under Exception 1 to section 300 the grave and sudden provocation must be grave and' sudden so as to, by its gravity and suddenness, deprive the accused of the power of self-control. In the absence of such proof the atrocity of the offence will not be mitigated and the offender is liable to the legal consequences of his at. In these circumstances, taking the statement of the appellant in its entirety, we do not find that his at can be removed from the category of murder by one which falls under Exception 1 to section 300, P. P. C. The learned Additional Sessions Judge has already given to the appellant an allowance for his noble sentiments as he was having a lurking suspicion in his mind about the illicit intimacy of the deceased with his sister-in-law and has given him the lesser A punishment provided by section 302 of the Penal Code, but we do not think that the appellant is entitled to claim the benefit of Exception 1 to section 300, P. P, C.
11. Mr. Aziz Ahmad argued on the basis of principles of policy embodied in Article 7 of Chapter II of the late Constitution of 1962 that it was the duty of each person and organ or authority of the State to at in accordance with the principles of policy and the Courts in the country should enforce Islamic Law in every case where it did not conflict with the provisions of any existing Statute. In this connection it was contended that Moha. And Fatima were disbelieved about the part ascribed by them to Gaffar Abbas, the acquitted-accused person, and as such they have to be branded as liars for all times and the rest of their statement cannot be believed according to the concepts of Islamic Law as once a witness had lied he was unworthy of reliance unless he was certified by Qazi that he had mended his ways.
12. We regret that we are unable to accept this argument and the learned counsel also did not press it any further as soon as he was warned that he was treading on a dangerous path. Under the Islamic Law there is. No justification for-causing death under grave and sudden provocation and if the principles of Islamic Law were to be applied to a case then these had to be applied in its entirety and we cannot pick and choose one rule from Islamic Jurisprudence for its application to a particular case and to exclude its other principles from its operation. If the evidence of Mohammad and Mst. Fatima were to be excluded according to the Islamic rule of evidence then there is nothing to prevent us from acting upon the solitary statement of the appellant made by him before the trial Court as that is also an evidence according to Islamic Law. There being no scope to claim the Exception of grave and sudden provocation under the Islamic Law the appellant will be held liable for a brutal murder if these principles are invoked. There can, therefore, be no mitigation for his crime.
13. Before parting with the appeal we would like to say that we are not satisfied with the finding of acquittal of the .Appellant for the charges under sections 307/34, P. P. C. As the appellant has admitted in his statement under section 342, Cr. P. C. That he cause! Gun-shot wounds on the person of Mst. Fatima by his fire- rm. It was, therefore, a fit case for recording a finding of guilty under this charge also. Since there is no appeal against this acquittal on behalf of the State we are unable to reverse this finding. This acquittal, however, does not materially effect the conviction of the appellant as recorded by the learned Additional Sessions Judge under section 302, P. P. C. For Intentionally causing the death of Noora. We are in agreement with the learned Additional Sessions Judge that the statement of the appellant made by him under section 342, Cr. P. C. At the stage of trial provides ample corroboration of- the statement of Muhammad and Mst. Fatima (P. Ws.). We, therefore, maintain the conviction and sentence as recorded in this case by the learned Additional Sessions Judge on 28th of June 1967. The appeal thus fails and is hereby dismissed.