' Muhammad Yaqub alias Ayub 30 and his real brother Khurshid Ahmad 40 were tried by the learned Sessions Judge, Faisalabad, under section 302, Pakistan Penal Code, for causing the murder of Muhamrnid Hussain 48, their, co-villager, on 16.7-1978, at 11 a. m. In the area of Cbak No, 268/RB, about four miles away from Police Station Dijkot, District Faisalabad.
2. The learned trial Judge vide his judgment, dated 10-2-1981, convicted Muhammad Yaqub under section 302, Pakistan Penal Code, and sentenced him to imprisonment for life and a fine, of Rs, 1,000 or in default six months' R. I. He was further directed to pay Rs, 3,000 as compensation to the legal heirs of the deceased or in default to suffer six months' R. I. His co-accused Khurshid Ahmad was, however, acquitted.
3. Muhammad Yaqub alias Ayub has challenged his conviction and sentence through the present appeal while Ibrar Hussain, complainant and brother of the deceased, has filed Criminal Revision No, 219 of 1981 against the acquittal of Khurshid Ahmad and for the enhancement of the sentence of Muhammad Yaqub. Needless to say that the Criminal Revision has not yet been admitted to regular hearing. This judgment shall dispose of the appeal as also the Criminal Revision.
4. The occurrence was reported at the Police Station Dijkot at 1.30 p.m. On the same day, i. e.
15.7-1978. By Ibrar Hussain P.W. 7, the brother of Muhammad Hussain deceased. First Information Report, Exh. PD, was recorded by Masood-ul-Hassan, P. W. 9, the then Sub-Inspector/Station House Officer, Police Station Dijkot.
5. As per F. I. R. Account of the prosecution version, on 15-7-1978 at 11 a. m. Muhammad Hussain deceased went towards the watercourse to take bath while his brother ibrar Hussain, P.W. 7, was sitting under the shade of a tree in his field. Suddenly, the appellant and his brother Khurshid Ahmad armed with knives' emerged at the scene raising la/karas. They attacked Muhammad Hussain deceased with their respective knives and caused injuries on his chest and neck. Ibrar Hussain raised an alarm and ran towards the place of occurrence. Muhammad Hussain deceased, in the meantime, fell down on the ground after receiving the injuries and the assailants made good their escape towards their dhari. Shah Muhammad (not produced) and Mansoor Ali, P.W. 8, on hearing the alarm, also came running to the place of occurrence. They also witnessed the occurrence. Muhammad Hussain deceased succumbed to the injuries on the spot.
' P. W. 7 Ibrar Hussain, the brother of the deceased, and P.W. 8 Mansoor Ali (not related) testified at the trial to furnish ocular account of the prosecution version. These two witnesses by and large supported the prosecution case as disclosed in the F. I. R. As for motive, it is stated in the F. I. R. As also disclosed by the aforementioned two eye-witnesses that the house of the appellant and his brother was adjacent to that of Muhammad Hussain deceased and Ibrar Hussain. The appellant and his brother wanted to raise construction on the common wall but the deceased obstructed them from doing so. They were thus compelled to raise their separate wall along the common wall.
They thus nourished grudge against Muhammad Hussain.
7. Muhammad Yaqub appellant was arrested on 17-7-1978 while Khurshid Ahmed, the acquitted accused, was arrested on 27-7-1978.
8. Blood-stained shirt, P. 2, was recovered from the person of the appellant at the time of his arrest vide memo. Exh. P. F. On 17-7-1978. This recovery was witnessed by Mansoor Ali, P. W. 8, Masood-ul- Hassan, Investigating Officer, P..W. 9, and one Muhammad Sarwar (not produced)... Blood-stained knife, Exh. P. 3, was recovered at the instance of Muhammad Yaqub appellant on 17-7-1978, from his hope vide memo. Exh. P G. In the presence of the aforesaid witnesses. No recovery, of course, could be effected from Khurshid Ahmad, the acquitted accused.
9. Autopsy on the dead body of Muhammad Hussain was performed by P. W. 6 Dr. Bak Hussain Kabloon on 16-7-1978, at 9 a, m. Vide post-mortem report Exh. P.C. Pictorial presentation of the injuries is Exh. P. C.
1. Dr. Bashir Hussain Kahloon noticed 11 stab wounds on the neck, shoulder and chest of the deceased at different locations. He opined that the death occurred due to shock and haemorrhage as a result of injuries numbers 2, 6, 7, 8, 9, 10 and 11 and all these injuries were sufficient to cause death in the ordinary course of nature. He further opined that all the injuries found on the body of the deceased at the time of post-mortem were ante-mortem. He stated that all the injuries could be inflicted with one weapon.
10. Khurshid Ahmad, the acquitted accused, pleaded that he had been falsely implicated in this case and was not present on the spot at the time of occurrence. He, however, did not produce any defence.
11. The appellant in reply to question No, 9, "why this case against you?" replied:- "I was walking along the sugarcane crop field when Muhammad Hussain deceased emerged from one side of the sugarcane field and Mst. Hafeezan wife of my brother Khurshid Ahmad accused emerged from the other side. Seeing them coming out of the field together I could not control myself. I had a knife with me. I killed Muhammad Hussain with it. Mst. Hafeezan ran away. I then went after Mst. Hafeezan and actually caught her but she was rescued by the women. If I had been allow'ed to do so, I would have killed her too. I had made a similar statement to the S.-I. And numerous persons had supported me in this version."
' No evidence in defence has been produced by the appellant except that he placed reliance on medico legal certificate, Exh. D. D., in respect of Mst. Hafeezan,. His sister-in-law.
12. The learned trial Court has not believed the motive as set up in the F. I. R. He had found that the appellant killed the deceased for %indicating honour of a woman of the family, namely, Mst.
Hafeezan, his sister-in-law. The learned trial Court has also not believed the testimonies of the eye- witnesses and has expressed doubt about their presence at the time of occurrence.
13. It is noteworthy that Ibrar Hussain complainant, while appearing as P. W. 7, admitted that there was no dispute between the complainant party and the appellant party over the wall for about six months before the murder. He also conceded that when dispute over the wall started some respectables of the neighbourhood had intervened to bring about a reconciliation and the deceased and this witness had built their residential houses in their land about 8 or 10 years ago and since then they were living in the houses built in their land. According to this witness, the deceased had gone towards the watercourse, where the occurrence had taken place, in order to take bath and at the time of occurrence he was wearing only loin cloth and had carried with bim soap and a bottle of oil. No such soap and bottle of oil were recovered from the spot by the police.
According to lbrar Hussain he, and the other eye-witnesses were sitting at a distance of about 40 karams from the place of occurrence and, sugarcane and chari crops intervened the place of their presence and the place of the occurrence. He also admitted that Mst. Hafeezan had appeared before the Sub-Inspector and she was got medically examined He futther conceded that when the Sub-Inspector came to the spot, Muhammad Yaqub accused had given his own version of the case, and had also produced Mst. Hafeezan and many others in his support. According to this witness, Khurshid Ahmad (not the acquitted accused) was their Lamberdar and was from the brotherhood of this witness. According to this witness, the matter was agreed to be settled on oath
14. The other eye-witness, namely. P. W. 8, Mansoor All conceded that he saw the occurrence from a distance of 44 karams and there were serkandas (reeds) along the watercourse where the occurrence had taken place. The witness could not tell as to whether the deceased had already taken bath or not. The witness disclosed that he did not see any soap or bottle of oil at the spot. Mr. Masood-ul-Hassain, P. W. 9, the investigating officer, stated that he reached the place of occurrence at about 2-30 p. m. On 15-7.1978. Many persons were present at the spot. According to him, Khurshid Ahmad Lamberdar was one of them and this witness was informed by Khurshid Ahmad Lamberdar that the occurrence according to the rumours in the village, had occurred in this manner that Muhammad Yaqub appellant alone had killed the deceased on having seen the deceased in a compromising position with Mst. Hafeezan and that Muhammad Yaqub appellant bad also tried to beat Mst. Hafeezan but she was saved by the villagers. The investigating officer further disclosed that Mst. Hafeezan and a scratch on her wrist and one of the versions was that she had been beaten by Muhammad Yaqub accused. Masood ul Hassan admitted that many persons had appeared before him in support of the version of Muhammad Yaqub and in view of this version, the witness deputed Khurshid Ahmad Lumberdar to make inquiries from Mst. Hafeezan and produce her. On 15-7-1978, Khurshid Ahmed Lamberdar reported that Mst. Hafeezan was not traceable but subsequently she was produced before the investigating officer on 19.7-1978. He prepared her injury statement Ex. D. B. And got her medically examined, the medical certificate being Exh. D.D. According to Masood-ulHassan, both the accused persons had come out with the version that Muhammad Yaqub alone had killed Muhammad Hussain on seeing the deceased and Mst. Hafeezan in a compromising position. He further conceded that he had arrested Muhammad Yaqub but had postponed the arrest of Kburshid Ahmed accused in view of this version.
15. In the light of the testimonies of the eye-witnesses and the investigating officer, as detailed above, the learned trial Judge was justified in disbelieving the prosecution version. He, therefore, relied upon the statement of the appellant. He, however, concluded that although in the cross- examination of the P. Ws. It was suggested to them that the appellant had killed the deceased when be saw the deceased and his sister-in-law in compromising position but in the statement recorded under section 342, Code of Criminal Procedure, he disclosed that he saw the deceased coming out of the sugarcane field from one end and his sister-in-law coming out of sugarcane field from the other end and, therefore, he under grave and sudden provocation killed the deceased. The learned trial Judge has .Held that merely seeing the deceased coming out from the sugarcane field from one end and the sister-in-law of the appellant from the other end of the same field was not a circumstance constituting grave and sudden provocation as envisaged in exceptional to section 300 of the Pakistan Penal Code. The appellant has, therefore, been convicted under section 302, Pakistan Penal Code.
17. The only point, in view of the above circumstances, for determination is as to whether the circumstances in which the appellant killed Muhammad Hussain deceased amounts to murder or culpable homicide not amounting to murder on account of application of exception I to section 300, Pakistan Penal Code, Exception I supra reads:- "Culpable homicide is not murder if the offender,. Whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."
' There are provisos to this exception but none of them is applicable to the facts of the case.
18. By virtue of the explanation under this exception, the question whether the provocation was grave and sudden enough to prevent the offence amounting to murder is a question of fact. The appellant saw the deceased and his sister-in-law coming out of the same field at an odd hour, that is a 11 a. m. In the hot month of July. They came out from the field simultaneously although from two different ends. The deceased was wearing only a loin cloth at that time. These circumstances were sufficient to raise a genuine suspicion in the mind of the appellant about their affair and thus to cause grave and sudden provocation to him, under which he acted and killed the dereased. He also wanted to kill his own sister-in-law but she was rescued by the women and other villagers. In Mewa v. The State (1 the appellant had killed his sister-in-law when The saw her sitting with one Dahu in suspicious circumstances which suggested that they had committed' adultery. Dahu, of course, made good his escape. It was held that the appellant had killed Mst.
Durnaz under grave and sudden provocation an he should, therefore, had been convicted under section 304, Part I of the Pakistan Penal Code. The sentence was ordered accordingly and he was awarded three years R. I. In Hanif v. The State (2) the accused saw hi mother sitting with her paramour on the same cot. He killed her on the spot. It was held that he acted under grave and sudden provocation. His sentence was reduced to three years' R.
1. And the sentence of fine was set aside. In Allah Dad v. The State (3) The accused saw the deceased, the widow of his first cousin, in suspicious circumstances with her menial servant. He killed her under grave and sudden provocation. He was convicted under section 304 Part I, Pakistan Penal Code and his sentence was reduced to four years' R.
1. In Muammad Shafi v. The Statc (4) it was observe d:- "The question whether the offender acted under the impulse of grave and sudden provocation, is a question of fact and has to be established or inferred like any other fact. However, in forming the view whether the accused acted under such impulse many factors, such as the age of the accused, his environments, his occupation, are to be kept in view. No hard and fast rule can be laid down in such cases. Much depends upon imdividual character of an accused person and that element cannot be ignored in the determination of this matter".
19. In the aforementioned judicial precedents, the accused had nor seen their women folk in compromising position with strangers but nevertheless in the circumstances of those cases they were allowed benefit of grave and sudden provocation. In the present case also the appellant had not actually seen his sister-in-law Mst. Hafeezan and Muhammad Hussain deceased in, compromising position but he found them coming out of the same field at the odd hour of the day in suspicious circumstances. He, therefore, lost his power of control and killed the deceased. The manner in which he has
(1) PLD 1958 (W. P.) Lah. 468 (2) 1968 P Cr. L J 1505
(3) .1970 P Cr. L I 826 (4) 1978 p Cr. L J 635 ' caused as many as 11 stab wounds on the person of the deceased is indicative of his rage and his state of mind the time of occurrence. His case is, therefore, covered by exception I to section 300, Pakistan Penal Code and the offence committed by him does not amount to murder.
20. For the foregoing conclusions, the conviction of the appellant is altered to section 304, Part I, Pakistan Penal Code, and his sentence is reduce, from imprisonment for life to five years' R. I. The sentence of fine and the direction regarding compensation, in the circumstances, are set aside. It is further directed that while computing the sentence of the appellant he shall be extended the benefit of the period of his detention during trial, under section 382-B, Code of Criminal Procedure.
21. The Revision Petition, in the above circumstances, fails and is accordingly dismissed in lirnine.
Revision