1. The appellant Taj Muhammad was convicted for the murder of his step-mother, Mst. Lalan and her paramour,Nazar Hussain under section 304 (1), P. P. C. And sentenced to R. I. For 5 years and fine of Rs, 2,000 or in default R. I. For one year with further direction that he would pay the compensation of Rs, 3,000 to the heirs of each deceased or in default of each payment suffer R. I. For 6 months vide judgment dated 13th May, 1982 of the Additional Sessions Judge, Kandkot.
2. The prosecution case, in brief, is that the appellant suspected this stepmother to have criminal liaison with Nazar Hussain son of complainant. Ali Bahar Golo. On the night of occurrence at about mid-night he found his stepmother missing from her cot, whereupon he took hatchet and set out in her search. The accused/appellant happened to see the deceased Mst. Lalan in sexual lap of Nazar Hussain, in the bushes of 'Lai trees' behind his house. The accused/appellant challenged the said Nazar Hussain and gave him hatchet blows. Thereafter he also murdered Mst. Lalan by throttling her to death. The cries of the two victims attracted complainant, Ali Bahar, his brother, Muhammad Bahar and their nephew, Mashooq Ali. On being challenged by these witnesses, the accused/ appellant declared that he had killed `Karo-Kari' warning them not to go near him. He ultimately fled away.
3. The complainant lodged F. I. R. At Police Station, Kashmore at 4-00 a, m. On the same night. It was recorded by S. H. 0. Abdul Majeed, who proceeded to the wardat and secured blood-stained earth in presence of mashirs Nabi Bahar and Abdul Majeed under memo. Exh.
8. He also secured a torch produced by the complainant under memo. Exh.
11. He prepared separate inquest reports of the two dead bodies, vide memos. Exh. 9 and Exh. 10 and despatched the dead bodies through P. C. Lab Bux to the hospital for post-mortem examination. He then recorded the statements of Muhammad Bahar and Mashooq Ali. Thereafter the accused/appellant was put under arrest by the S. H.0. Who secured bloodstained shirt from his person under memo. Exh. 12 on 27th May, 1981, accused/appellant was produced before the Mukhtiarkar and F. C. M. Kashmore for his judicial confession. On 3rd June, 1981 P. Ws. Muhammad Bahar and Mashooq Ali got their statements recorded under section 164, Cr. P. C. The accused/appellant was ultimately placed on trial on 9th June, 1981.
4. Doctor Muhammad Shahal Khan, who conducted the autopsy of the two dead bodies found the following injuries : Mst. Lalan: The external examination of the dead body revealed the following injuries on her person :- "There Were multiple abrasions on both sides of neck. Neck is feasible and craeklings of bones were present. On dissection first cervicle vertebrae was dislocated. Tongue was bitten between teeth.'
5. On internal examination of the dead body following damage was observed ;- "Stomach was intact and healthy containing thick mucilageous matter. The brain membrance were conjested. Pleaurae were conjested. Lyrnx and trachea were conjested. Both lungs were conjested. Blood vessels of the neck corrugated and conjested. First cervical vertebrae fractured and dislocated."
6. Nazar Hussain.
7. On external examination of the dead body, following injuries were noticed on his body :- "(1) One incised wound 3" x 1" x brain deep at partietal region, was cut.
(2) Incised wound each 2" x i" x bone deep below the injury No, 1.
(3) Two incised wounds each 2" x I" x bone deep on right occipital region.
(4) One incised wound 2i" x 1" muscle deep on left lower arm."
8. On internal examination of the dead body, following damage was observed :- "Skull, scalp were incised and out at site of injuries. Membrance and brain matter was incised at the site of the injuries. Stomach was intact and healthy containing thick mucilageous material."
9. In the opinion of doctor, the deaths of Mst. Lalan and Nazar Hussain were the result of the injuries found on their person. The injuries on person of Mst. Lalan were caused by throttling and those found on the person of Nazar Hussain appeared to have been inflicted by sharp cutting weapon such as hatchet. Thus it is established from the evidence of the doctor that the two deceased mentioned above had died of the injuries they had sustained.
10. According to the prosecution case the accused/appellant was responsible for causing injuries to both Mst. Lalan and Nazar Hussain. To link the accused/appellant with the commission of the crime, prosecution have produced ocular evidence of complainant, Muhammad Bahar and Mashooq Ali ; recovery of blood-stained clothes and blood-stained hatchet judicial confession ; and the evidence of motive.
11. Mr. Muhammad Dawood Baloch, who appeared on behalf of' the accused/appellant did not press the appeal on merits. He confined his arguments to only reduction of the sentence. In view of this it may not be necessary to undertake detailed reappraisal of the evidence and the conclusions of the trial Court reached thereon. The learned counsel for the accused/appellant contended that although the learned trial Judge rightly convicted the accused/appellant under section 304 (1), of P. P. C, yet the sentence awarded to him is excessive. He submitted that it is established from the evidence on record that the accused/appellant found the two deceased persons engaged in shameful act, which presented a sight difficult for the accused/appellant to bear. The learned counsel therefore, argued that in such cases the superior Courts have always taken a lenient view of awarding sentence. In support of his argument he has referred to several authorities which will be briefly reviewed.
12. The first case in this connection is of The State v. Akbar . In this case the accused saw the deceased committing fornication with his unmarried sister and seeing this he lost self-control and gave beating to the deceased which caused his death. The trial Court sentenced the accused to imprisonment till rising of the Court. Application was moved in the High Court for enhancement of the sentence. While dismissing the application Anwar-ul-Haq, J. (as he then was) made the following .Observations "Considering the moral values and notions of honour and chastity, as well as the social customs, which prevail in our society, particularly among the respectable families in the rural area 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 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 cases, 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."
13. In the above-reported case reference was made to the following cases :-
(i) Muhammad Zaman v. Emperor (AIR 1933 Lah. 165).
(ii) Hussain v. Emperor (AIR 1939 Lah. 471).
(iii) Aziz-ul-Rehman v. Crown (PLD 1950 Pesh. 76).
(iv) Muhammad Shaft v. Crown (PLD 1950 B J. 86).
14. In the first case the husband had seen the deceased having sexual intercourse with his wife and killed him. The trial Judge sentenced him to transportation for life but the Division Bench who heard the case observed that the man who acts under grave and sudden provocation of this nature cannot be put on the same terms as an actual murderer. Accordingly the sentence was reduced to imprisonment already undergone which was a little over 9 months.
15. In the second case the sentence of three months was considered to be adequate, in the case of a husband who had caught the deceased in the act of sleeping with the accused wife at night and had killed him instantaneously. It was observed :- who deprives him of self-control is not a proper criterion to take into account in awarding a sentence. The more self.Control is lost, the more likely are numerous injuries to be inflicted."
16. In the third case it was observed :- in this part of the country where a mere causal 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 feelings incapable of being explained in words."
17. The sentence was, therefore, reduced to that already undergone (i,e, less than three months).
18. In the fourth case the sentence was reduced to that already undergone and this amounted to less than a month although the accused was responsible for causing two deaths that of his wife and her paramour.
19. The next case relied upon is Ghulam Fareed v. The State , wherein the accused finding his wife and paramour in compromising position killed both. The sentence of three years was reduced to two years.
20. In the case of Muhammad Mithal v. The State , the deceased who stayed with family for night as guest, attempted to outrage modesty of a woman of household of the accused. The accused killed1 2 3 the deceased by giving him lathi blows on account of `Ghairats. The sentence of one year and 8 months already undergone by accused was held enough to meet the ends of justice.
21. In the other case Imam Bux v. The State , accused caused the death of deceased as the latter was found in objectionable position with the accused mother. Sentence of 9 years was reduced to 3 years' R. I.
22. The learned counsel for the accused/appellant urged the reduction of sentence on the additional ground that complainant's party have patched up with accused/appellant which is clear from the fact that almost all witnesses of the prosecution have changed and the only basis for conviction of accused/appellant is his own confession. This fact is not denied by the learned A. A.-G. In this connection the learned counsel for the accused/appellant has cited some authorities, to which I would presently refer.
23. In the case of Pathana v. The State , the sentence was reduced on the ground that the parties flied affidavit showing that they had entered into compromise and in consequence the accused was pardoned.
24. In another case of Iftikhar Ahmad v. The State , the compromise between the parties even though without compensation was held a good ground for reduction of sentence.
25. The other cases in the series in which the sentence was reduced on the ground of compromise between the parties are : (i) Muhammad Bashir v. The State , (ii) Khursheed Ahmad v. The State and (iii) Manzoor Ahmad and another v. The State .
26. In yet another case Muhammad Rafiq v. The State , the Supreme Court granted leave to consider reduction in sentence on the ground of compromise effected between the parties.
27. From review of the case law discussed above, it can be safely concluded that the trend of judicial opinion is that heavy sentences are not called for in cases of this kind where accused is deprived of self-control by the sight of a woman of his family being subjected to sexual intercourse. The reduction in sentence becomes more imperative if the parties have composed their differences and in consequence the accused has been pardoned. In the instant case the accused/appellant lost self-control when he saw his step-mother engaged in a sexual intercourse with her paramour.
28. It is also not denied that the compromise has taken place between the parties. In view of these two factors the learned State counsel conceded that this is a fit case for reducing the sentence.
29. The accused was arrested on 26th May, 1981 and was convicted on 13th May, 1982. The record shows that he has remained in jail right from the date of his arrest until today. If the benefit of section 382-B, Cr. P. C. Is given to the accused/appellant the total imprisonment that he has already suffered will come to 11 years. In my opinion keeping the principle laid down in the aforesaid reported cases this period would meet the ends of justice. Accordingly by allowing him the benefit of his detention as undertrial prisoner, the sentence awarded to the accused/appellant is reduced to that already undergone by him. However, the sentence of fine and direction with regard payment of compensation will remain undisturbed.
30. In view of above, appeal is partly accepted. PLD 1961 (W. P.) Lah. 24 1980 P Cr. L 3 306 PLD 1980 Kar. 397 PLD 1980 Lah. 434 1979 P Cr. L 3 354 PLD 1982 SC 277 PLD 1982 SC 139 1976 SCMR 1934 5 6 7 8 9 10 1 2 3 4 5 6 7 8