Muhammad Munir Farukee, J.--This appeal is addressed against the judgment dated 31st March 1970, of the then Addi tional Sessions Judge, Multan, who convicted Abdul Hainid appellant under section 302, P. P. C. and sentenced him to transportation for life.
2. The prosecution case as originally reported to the police vide Exh. P. F. by Mst. Hashmat Bibi (P. W.
7), the mother of Muhammad Sadiq deceased was that he had built a house about 11 years ago in Ansar Colony Multan City wherein he lived with his wife, children and herself. Abdul Hamid appellant was occupying the opposite house in the same lane along with other members of his family. Muhammad Sadiq deceased contracted illicit relations with Mst. Anwar alias Bholi, a grown up daughter of Abdul Hamid appellant, who became pregnant and being afraid of the consequences of his misdeeds he shifted to the house of his brother-in-law Muhammad Siddique (P. W. 9) in Mohailah Itafaqpura of the same town about three months prior to the occurrence. On 13th March 1969, at about 9 or 10 a.m. Muhammad Sadiq deceased had come to his own house to meet his mother when Abdul Hamid appellant came there and taking him inside the room for some talk started beating him. On hearing his outcries she rushed to its door followed by Muhammad Siddique, Lai and Nazir Ahmad and found Abdul Hamid appel lant giving blows with stones of the Chakki to Muhammad Sadiq deceased who was lying on the floor. Seeing them arrive he left him there and going in his house also killed his daughter Mst. Anwar deceased.
Sub-Inspector Siraj Ali Khan (P. W. 10) of Police Station Mumtazabad, while on his way back from District Courts at about 10 p.m. catne to know of this occurrence and reaching there recorded the above statement of Mst. Hashmat Bibi (P. W. 7) which forms part of this record as first information report in this case. He found the two stones (P. I and P. 2) of the Chakki lying blood-stained near the dead body of Muhammad Sadiq which he took into his possession and sealed them into separate parcels vide Exh. P. A. He also secured blood-stained earth from under neath the dead body of Muhammad Sadiq and sealed it into a parcel vide Exh. P. B. He then went to the house of Abdul Hamid appellant and secured blood-stained earth from underneath the dead body of Msi. Anwar and sealed it into a parcel vide Exh. P. C. He also found blood-stained churri (P. W. 3) lying near it and sealed it into a parcel vide memo. Exh. P. D.
About an hour and a half of the arrival of the A. S. I., Abdul Hamid appellant appeared before him of his own accord at the spot, who arrested him. His chador (P. 4) was found stained with blood which was got removed from his person and sealed into a parcel vide Exh. P. E. He then despatched the two dead bodies after the necessary formalities for post-mortem examination. Exh. P. K. is the inquest report and Exh. P. L, injury statement in respect of Muhammad Sadiq deceased and Exh. P.
M. is injury statement and Exh. P. N. the inquest report about Mst. Anwar deceased.
After the post-mortem examination Foot Constable Sardar Alt (P. W. 3) brought back the last wearing apparels (P. 5 to P. 10) of Muhammad Sadiq deceased and (P. 11 to P. 15) that of Mst. Anwar deceased and produced them before the A. S. I. who took them into his possession vide Exhs. P. G. and P. F. respec tively The A. S. I. also got prepared site plan (Exh. P. J.) with its duplicates (Exhs. P. J./1 and P. J./2) and after giving his notes in red ink signed it in token of its correctness. According to the report of the Chemical Examiner Exh. P. O. all the articles, submitted to him were stained with blood.
3. Dr. Abdul Wahad Khan (P. W. 1) on 14th March 1969, at 10-30 a.rn. held autopsy on the dead body of Mst. Anwar and found the following injuries vide Exh. P. J.:--
(1) A stabbed wound 10'x 4" with omentum coming out on the left side of abdomen upper part, the greater omentum was out and there was a cut in the stomach through which some thick liquid food material was coming out.
(2) A stabbed wound l['x i" going into the chest cavity with cut in the left pleura and lower lobe of lung underneath. Chest cavity contained blood.
(3) A stabbed wound 1' x J' going into the chest cavity 3' above injury No. 1, cutting the left pleura and the lower end of left lung, 2' above the outer end of the injury No. 1, behind the posterior auxiliary line. The chest cavity contained blood.
(4) A stabbed wound 1 x J' going into the abdominal cavity. It had cut the peritoneum underneath and had gone into stomach through which some thick liquid food material was coming out. It was situated on the left side of back 3' from vertebral line and 1" below injury No. 3.
(5) A stabbed wound 11" x going into the abdominal cavity 2' below injury No. 1 back end. It had cut the peritoneum and the tipper part of the left kidney.
(6) An incised wound 3/4'x 1/2" x 1/2* on the right side of the back of the chest A* from mid-line and 4' below the root of neck.
(7) An incised wound 6''xlY'x muscle deep on the right side of upper end of abdomen starting from the mid-line and obliquely going outside and downward.
(8) An incised wound 1/2'x 1/8" on the mid sternal line 2' above the xiphisternum.
(9) An incised wound 1" x J" going obliquely into the right breast for !]' and is situated 2" outside and at the level of the right nipple.
(10) A stabbed wound 1" x situated on the right side of abdomen 2" above injury No. 7, and 6" below the nipple in the anterior auxiliary line. It was going into the right lobe of the liver and diaphragm and there was a small cut on the back of right lower lobe of the lung lying on the diaphragm.
(11) A stab wound 11' x J* on the right side of the abdomen * below injury No. 10, and was going into the abdominal cavity passing through the peritoneum and there was a cut in the light lobe of the liver.
(12) A stab wound 2'x 1?/ on the right side of the abdomen just above the iliac crest and was going through the abdominal cavity. After cutting the peritoneum it had cut the right lobe of the liver.
(13) An incised wound 3' x 1 /4" x 1 /8* on the right palm.
(14) An incised wound Txl/4'xT on the front of right upper arm 2' above the elbow.
The stomach contained thick digested food material. Small and large intestines contained some faecal matter. The bladder was empty. Uterus was congested and product of conception approximately 4 to 6 weeks duration were present. The rest of the organs except those mentioned under the injuries were healthy. Death in his opinion was due to injuries to the liver, kidney, peritoneum, lungs, stomach, haemorrhage and shock caused by injuries Nos. 1 to 5, 10 to 12. All the injuries were ante-mortem and had been caused by sharp-edged and pointed weapon. These injuries were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death immediate and between death and post-mortem about 24 hours.
On the same day at 12 noon, the same doctor performed post-mortem examination on the dead body of Muhammad Sadiq deceased and found the following injuries vide Exh. P. K. :--
(1) There was a swelling on the whole of head and right side of the face. Under this on dissection was found opening of whole of the fronto-parietal suture fracture of the base of the skull and left temporal bone and right cheek bone. There was some bruising of the brain membrane.
(2) There was a contusion with abrasion in an area 5" x 3" on the upper end of front of chest.
(3) An abrasion l*x 1/2' on the front of right shoulder.
(4) An abrasion 1* x i" on the front of right chest, 4' directly below the nipple.
The heart was healthy and there was blood on the right side and left side was empty. The stomach was healthy and contained about 4 ounces of watery fluid. The small and large intestines were healthy and contained some faecal matter. The bladder was healthy and empty. All the other organs except those mentioned under the above-mentioned injuries were healthy. Death in his opinion was due to injury No. 1, which was sufficient to cause death in the ordinary course of nature.
Injuries were ante mortem and caused by blunt weapon. Probable duration between injuries and death immediate and between death and post-mortem about 24 hours.
4. The statement of this doctor recorded by the committing Magistrate was transferred to the record of the Sessions file under section 509, Cr. P. C. to show that the death of Muhammad Sadiq and Mst. Anwar deceased and resulted from violence which has not been denied by Abdul Hamid appellant in this case and giving his version of the occurrence and made the following statement : -- "I came to my house and found that my daughter, Mst. Anwar alias Bholi was not there. 1 went into the house of Sadiq and found that they were lying in an objectionable position and so I picked the mill stones from the room of Sadiq and smashed them on the head and other parts of the body.
Mst. Anwar ran to her own house. I followed her and in the courtyard I picked up the churri and caused her death. 1 caused both the deaths under grave and sudden provocation because my honour did not allow that my daughter should have illicit relations."
He has thereby set up a plea of grave and sudden provocation in causing the death of Muhammad Sadiq and Mst. Anwar deceased.
5. The prosecution in its turn had relied on the solitary statement of Mst. Hashmat Bibi (P. W. 7) about the deadly assault on her son Muhammad Sadiq deceased, the learned trial Judge disbelieved the version given by her as she had made con siderable deviations from and improvements on her previous statement and held that she did not see the occurrence at all and no reliance could be placed on her testimony.
6. The other three eye-witnesses, named in the first infor mation report, Muhammad Siddique, Lai and Nazir Ahmad were given up, but the last named witness was, however, examined as a Court witness, who had deposed only about the injuries caused to Mst. Anwar deceased. He stated that he was present in the lane aloig with Lai Din who they heard a hue and cry from the house of Muhammad Sadiq deceased and on going therein saw Mst. Anwar escaping from his house followed by Abdul Hamid appellant, that they followed them to their house and saw Abdul Hamid appellant giving injuries to her daughter, Mst. Anwar deceased with a churri. He added that they did not catch him as he went out leaving the churri (P. 4) at the spot and telling them that he was going to the police station.
They then went to the house of Muhammad Sadiq deceased and found him dead. Although he had stated nothing about the circumstances in which Muhammad Sadiq deceased had lost his life he had materially supported the defence plea by deposing about the presence of Mst. Anwar deceased in the room where Muhammad Sadiq was found dead and her escape from there in an unusual manner. Learned trial Judge accepted the statement of Nazir Ahmad (C. W. 1) as he was not related to either of the parties and resided in the same mohallah at a distance of 10 or 11 yards from the place of occurrence and relying on his testimony as true and correct he came to the conclusion that Muhammad Sadiq and Mst. Anwar deceased had no doubt given grave provocation to the appellant by their clandestine conduct, but he did not regard it a sudden provocation as he the appellant had himself sought it by going over to the house of Muhammad Sadiq at that time.
It will not be out of place to reproduce here the relevant portion of the judgment about it :-- "There is no denying of the fact that both the deaths were caused by the accused. I, further believe that Sadiq and Mst. Anwar had given provocation to the accused by their clandestine relations.
However, the question is whether the provocation was sudden. For the determination of this point, two facts must be kept into view, firstly, whether the accused, had no prior knowledge about the illicit relations of the deceased and secondly, whether the accused found the deceased in an objectionable position.
Regarding the illicit relations, it appears that all the residents of the mohallah knew that Mst. Anwar had illicit relations with Sadiq deceased. Not only this but it was also a known fact that Mst. Anwar was carrying on illegitimate child in her womb. Mst. Hashmat Bibi had mentioned in the first informa tion report that Mst. Anwar was pregnant. The medical report also said that a foetus of about six weeks was present in her uterus. Nazir Ahmad (C. W. 1) admitted that the illicit relations were known to all the residents of the mohallah and the matter was given so much importance that Sadiq deceased was turned out of the mohallah. Again it is admitted by Mst. Hashmat Bibi that he was not living there. All these facts put together, prove beyond any manner of doubt that the accused was well aware that his daughter, Mst. Anwar had not only illicit relations with Sadiq deceased but that she was pregnant from him. Under these circumstances, the provocation may be grave but it cannot be said to be sudden.
Muhammad Sadiq deceased had come to his house at 9 or 10 a.m. He kept the door of his house open. It was why that Abdul Hamid was in a position to enter into his house. The question is whether Muhammad Sadiq was committing sexual intercourse or was in any manner found in voluptous embraces with Mst. Anwar when Abdul Hamid entered into the house.
1 am of the opinion that it does not ring true that the deceased were found in an objectionable position. As the time was 9 or 10 a.m. and the outer gate was open, therefore, I am not prepared to believe that in such circumstances the deceased could be found in an objectionable position. It appears to me that Mst. Anwar entered into the house of Sadiq for help or consultation in such odds circumstances. She was aware that she was pregnant, she knew that her pregnancy was known matter to the mohallah people. She found that Sadiq had left the mohallah. In such circumstances, she could have gone to the house of Sadiq to seek his advice or help. I, therefore, do not agree with the contention of the accused that he found both the deceased in an objectionable position. The probability is that the blood of the accused was boiling since the departure of the deceased, Sadiq and as he came again into the mohallah, therefore, the accused became so much perturbed that he caused both the deaths. I am, therefore, of the view that the provocation, though grave but was not sudden."
In taking this view he had wrongly relied on Muhammad Saleh v.
The State (1) as an appeal to the Supreme Court in this very case reported as PLD 1965 SC 366 their Lordships had disapproved of this manner of approach in such cases observing as under :-- "We are unable to see anything in the circumstances to justify the view of the learned Judges that by going in search of his sister, whom he did not iind on her cot, when he awoke for Sehri, the appellant can be said to have done anything to cause, or to provoke his sister to give cause for grave and sudden provocation to himself. Under village conditions, and even in many other parts of society in this country, the right of the male members of a family to control the actions of their womenfolk, particularly in the field of sexual relations, is fully recognised and is forcefully maintained. The idea that a young unmarried girl in a village family is entitled to leave her bed during the night and go where she pleases, and that a male member of the family going in search of her is only asking for provocation if he finds her misbehaving in a sexual way, simply cannot be entertained. The taking of a hatchet can be explained by the fact that it was still dark, that is, for self-protection, and it may be the accused expected to have to chastise his sister for misbehaviour if that was found. But upon the admissible evidence in this case, there is no ground for thinking that the appellant expected to find his sister in an act of intimacy with a stranger. He must be allowed, on the evidence, the benefit of a shock, on making the discovery, such as is fully recognised in law as furnishing grave and sudden provocation within the meaning of Exception 1 to section 300, P. P. C., sufficient to cause loss of self- control." [15] The learned Judges of the Karachi Bench had based their con clusion in this case on Mahamdu v.
The Emperor (1). Their Lordships of the Supreme Court had expressed their views about it in the above quoted case as well in the following terms :-- "Where expression appears to have been given to the opinion that a person who goes out in search of his wife whom he finds absent from her bed in the middle of the night, and finding her in the arms of her paramour kills them, must be thought to be seeking the provocation thus occasioned.
We do not find it possible to support that view, and in the circumstances of the present case, we are clearly of the opinion that the evidence is sufficient for allowing to the appellant the benefit of grave and sudden provocation in relation to the act which he committed. We accordingly alter the conviction to section 304, Part I, P. P. C."
The facts of the present case were even otherwise distinguishable from that of the above cases as it could not be said in the circumstances of this case that Abdul Hamid appellant had himself gone out in search of this provocation. There was no evidence to show that he knew or had reason to believe that in defiance of the wishes of all the residents of the Mohallah Muhammad Sadiq deceased could have ventured to come back to his house in broad daylight muchless to meet Mst.
Anwar deceased in that privacy and the fact that he had gone out empty-handed was sufficient to confirm this inference. Their discovery in the company of each other was quite a shock for him and the weapon used by him for dealing with Muhammad Sadiq deceased, the grinding stones of the domestic Chakki already lying there, spoke volumes about it. This unpreparedness to meet any such eventuality was an eloquent testimony to the fact that all this was unexpected and had taken place on the spur of the moment when he lost all control over himself on seeing his wretched daughter in the same hole from where she had already been stung to live a miserable life thereafter.
7. Learned counsel for the appellant had assailed this finding of the trial Judge from another angle as well. His contention was that having disbelieved the prosecution evidence about the ocular account of the occurrence there was nothing in the field except the statement of the appellant which should have been accepted as a whole by the trial Judge and not in part only as lias been consistently held in Gliulam Khan v. The State (2), Ahmad Din v. The State (3) and Allah Ditta v. The State (4).
8. As a result of this discussion the case of the appellant was duly covered by exception I to section 300 of the Pakistan Penal Code. We, therefore, accept this appeal and setting aside his conviction under section 302, P. P. C. alter it to that under section 304, Part I, P. P. C.
9. This brings us to the question as to what should be the appropriate sentence in this case.
Muhammad Sadiq deceased
(2) PLD 1965 Pesh. II
(4) 1968 P Cr. L J 2 although married had spoiled the life of an unmarried daughter of a close neighbour and for this excess he had been turned out of the mohailah as a punishment, but he had shown the audacity of his going back to his house in broad daylight and closeting with Mst. Anwar deceased therein which showed that he had no intention to desist from prosecuting his criminal intrigue with her. If Mst. Anwar had gone to his house of her own accord to meet Muhammad Sadiq deceased it would indicate that she was not willing to abandon her illicit intimacy with a person who had no remorse or repentence for their misfortune, in this background it would have made no difference, if he had sent for Mst. Anwar or she bad herself slipped into his fold as their bare presence in the company of each other would be took much to tolerate for z\bdul Hamid appellant whose blood according to the trial Judge himself was already boiling under the agonising infamy which had befallen their family on account of their sexual delinquency. Although they were not found in flagrant delicto the bare site of Mst. Anwar deceased in the company of her paramour was sufficient to unhinge the mental balance of Abdul Hamid appellant in view of the torture he was suffering on account of the stigma of her pregnancy, so in the peculiar circumstances of the case we would not like to impose a heavy sentence on him. In a similar case of double murder Re : Bahrain v. The State (1) to which one of us (M. A. Cheema J.) was a party a sentence of three years was considered sufficient, although it was observed therein that as a rule the sentence actually awarded must bear some proportion to the punishment prescribed by the statute for such an offence. In another judgment In re : Muhammad Sadiq v. The State (2) another learned Judge, Muhammad Gul, J. awarded a sentence of rigorous imprisonment of two years although there was no evidence that the deceased was actually engaged in sexual intercourse with the lady involved in this case. In Fateh Muhammad alias Fattu v. The State (3), the facts of which come nearer to the present case the sentence of death awarded to the appellant was substituted with rigorous imprisonment for three years. In Ahmad Di:t alias Ahmi v. The State (4), the sentence of rigorous imprisonment for seven years awarded to the appel lant under section 304, Part I, P. P. C. was reduced to the imprisonment already undergone by him (three years and nine months). In awarding these sentences in the above noted cases their Lordships had taken into consideration the facts and the sentence imposed in Mewa v. The State (5), Muhammad Zaman v. The Emperor (6). Husain v. Emperor (7), Aziz Ahmad v. Crown (8) as also Akbar Khan v. The State (9). Taking these decided cases as a guideline we reduce the sentence of Abdul Hamid appellant to rigorous imprisonment for three years which should meet the ends of justice in the circumstances of this case.
Sentence reduced.
(1) PLD 1965 Quetta 15 (2) PLD 1966 Lah. 104
(3) PLD 1967 Lah. 579 (4) PLD 1967 Lah. 649
(5) PLD 1958 Lah. 468 (6) AIR 1933 Lah. 165