1 he applicant was convicted by the learned Civil Judge and 1st Class Magistrate, Hyderabad for an offence under section 403, brought on record"to assail their evidence. f1lfb(TfcI enmifv nofiinct nntJcp hut in tliio he'
P. P. C., and sentenced to fine of Rs. 2,000 or in default to under go R. I. for 6 months. The lenient sentence was awarded on the ground that the applicant was a young man and a student hailing from a good family. The appeal against the convictions and sentence was dismissed by the learned Sessions Judge.
The applicant was proprietor of vehicle repair business run in the name and style of "Azam Motor Service". Niaz the absconding accused was employed as a mechanic. The complainant owned a motor-cycle and he gave it to the applicant and Niaz for repair on 14-3-1966. After some time he went to the shop to take back the motor-cycle if it was repaired, but the applicant and Niaz were not present. One Mama who was tried along with the applicant and Niaz and was discharged under sec tion 253, Cr. P. C. was present at the shop and he informed the complainant that Niaz had taken away the motor-cycle for trial. However, Niaz did not turn up till 11 p.m, and, therefore, the complainant went to the house of the applicant but learnt that the applicant and Niaz Itad taken away the motor-cycle to Karachi. The complainant waited till 18th March 1966 and thereafter came down to Karachi and made a search. They met Nisar broker who told them that the motor-cycle in question was sold by the applicant and Niaz for Rs. 3,300 to Shahnawaz through him. Search was made for the applicant and Niaz but there was no trace. So the complainant returned to Hyderabad and lodged the first report. The police resumed the investigation and secured the motor-cycle from Shahnawaz to whom it was sold by the applicant and Niaz. 1 he applicant was arrested. After further investigation he was challaned.
The applicant denied that any motor-cycle was given to him for repairs or he had sold it. He pleaded that the witnesses had been set up by the police when he had failed to pay the commission. Two defence witnesses Ghulam Murtaza and Kasimuddin were examined.
The prosecution examined Mr. Allahdad, A. S. I. P., -Aziz Ali complainant, Yatnin, Shahnawaz, Ghulam Rasul and Nisar Ahmad.
The complainant slated that he had delivered his motor cycle to the applicant and Niaz for repairing, but he did not receive it back. He tried to contact the applicant and Niaz but there was no trace of them. He learnt that they had gone to Karachi. So he also came to Karachi and made a search where he came across a broker who told him that the motor-cycle had been sold to Shahnawaz through him. Thereafter he lodged * * - *:_ - -- .i xt;.v.............. Pakistan Criminal Law Journal [Vol. V Utam Singh v. Emperor AIR 1938 Lah. 260; Emperor v. Ram Sarup AIR 1931 Lah. 132; Hla San v. The King AIR 1942 Rang. 49; Talib etc. v. Crown PLD 1955 FC 42; Gundiithalavan alias Thailon v. The Crown I L R 53 Mad. 585J; State v. Akhar PLD 1961 Lah. 24; Behram v. State PLD 1965 Quetta 15 and Mewa v. State PLD 1958 Lah. 46S ref.
M. M. Anwar for Petitioner.
Eitazaz Hussain for Respondent.
Dates of hearing : 6th and 7th April 1971.
On the suggestion of Siraj Din that the dead body should be taken away to the nearby Tanoor
(oven) of one Khan Machhi and burnt therein, both the father and the son dragged the dead body of Ghulam Murtaza towards the oven. The occurrence was witnessed by Dost Muhammad (P. W. 7) and Mohabat Khan (P. W. 8), who was also passing by but they did not make any attempt to rescue the deceased. Dost Muhammad P. W, ran to the dera of Khuda Bakhah, petitioner (P. W. 9) and informed him about the occurrence. Mohabat Khan P. W. rushed to the dera of Mian Gul Muhammad (P. W. 11) and narrated the incident to him. Khuda Bakhsh, Dost Muhammad, Mian Gul Muhammad, and Muhabat Khan P. Ws. rushed to the said oven but in the meantime the respondents had thrown the dead body in the oven and set it on fire. Muhammad Nawaz, Lambardar, Maula Bakhsh, Muhammad Ali and Sher Muhammad P. Ws. also reached the spot and saw the accused respondents throwing the dead body of the deceased in the oven and setting it on fire. Sher Muhammad and Muhammad Ali P. Ws. extinguished the fire and took out the half burnt dead body of Ghulam Murtaza. The accused respondents had, in the meantime, gone to their house. Khuda Bakhsh reported the occurrence at the Police Station at 1-30 p.m. on the same day, Cute F.
1. R (Exit. PH) which was recorded by Fazal Hussain, S. H. O. (P. W. 12).
5. The prosecution produced as many as 12 witnesses to prove their case. Maula Bakhsh, Muhammad Ali and Muhammad Nawaz were given up by tlie prosecution on the ground that they were unnecessary.
6. Both the accused respondents on being examined under section 342, Cr. P. C. admitted that Mst.
Saban, daughter of Siraj Din and sister of Muhammad Ramzan had been abducted by Ghulam Murtaza deceased about two years before the occurrence. The details of their statements need not be given here but the counter-version of the occurrence given by Ramzan respondent is relevant for the purpose of adjudication of this revision petition. Hence it is being reproduced here. In answer to a question as to why this case against him, he made the following statement: "On the day of occurrence, I found the deceased sitting all alone in the Baithak of Allah Bakhsh, when 1 passed from near the baithak with a view to urinate somewhere near that. Finding him so, I went to him and entreated him to restore my aforesaid sister aged 13 or 14 years to me. He, on the other hand, abused me and after exposing his sex organ before me, replied that he had abducted the woman for adultery (instead of restoration). Thereupon I got sudden and grave provocation and became deprive of self-control. In that condition of mind I picked up a toka lying nearby and first of all gave a blow with the toka on the sex organ of the deceased. After this I, while still in the same condition of mind, gave some more toka blows to him, dragged his body to the oven and put the dead body into the oven. After this I went away to my house. I had thrown down the toka in the baithak of Allah Bakhsh. I did not set fire to the dead body. The P. Ws. have exaggerated and destorted the true story (as stated by me). Actually, none of them saw any part of the occurrence.
Sher Muhammad and Dost Muhammad are menials of Nangianas, while Muhabat Khan is a friend of the deceased and while the Nangiana P.Ws. are related to the deceased."
They did not produce any defence.
7. The learned Sessions Judge came to the conclusion that the prosecution evidence was insufficient to prove beyond reasonable doubt that Siraj Din had participated in the occurrence or that Muhammad Ramzan, while killing Ghulam Murtaza was not deprived of self-control due to sudden and grave provocation. I do not iind any reason to differ with him in his conclusions.
8. The deceased belong to Nangiana tribe which exclusively owned land in village Dharema where the occurrence had taken place. On the contrary, the accused respondents arc poor washermen.
All the alleged eye-witnesses, P. W. 7 Dost Muhammad and P. W. 10 Sher Muhammad, were clearly under the influence of the Nangianas. Dost Muhammad is a poor carpenter of the village while Sher Muhammad is the village cobbler. Dost Muhammad and Muhabat Khan are chance witnesses.
Khuda Bakhsh (P. W. 9) and Gul Muhammad (P. W. 11) are Nangianas and relatives of the deceased who had abducted Mst. Saban. Thus none of the eye-witnesses about the killing or burning is independent.
9. The learned Sessions Judge disbelieved the evidence of Dost Muhammad and Mohabat Khan, the witnesses of the killing for cogent reasons. He has discarded the testimony of Sher Muhammad and Gul Muhammad P. Ws. who claimed to have seen the burning of the dead body of Ghulam Murtaza. He has validly held that almost all the prosecution witnesses had attempted to improve upon their earlier version and therefore, they were partial. It looks strange that as many as six persons including near relatives and mueens of the deceased saw the deceased being thrown by the accused respondents into the oven, none of them attempted to rescue or capture any one of the accused. Even at the time of killing neither Dost Muhammad nor Mohabat Khan, who is a young sportsman attempted to intervene and saw the occurrence as a silent spectator. The learned Sessions Judge has, therefore, correctly disbelieved the eye-witnesses.
10. In these circumstances, when the ocular evidence is discarded, the only material left on the record about the occurrence is the counter-version of the incident as given by Muhammad Ramzan, respondent, and the same has been reproduced by me in the earlier part of this judgment. This version is corroborated by the presence of the injuries on the sex organ of the deceased. The learned Sessions Judge has, there fore, rightly acted upon the statement of Muhammad Ramzan, respondent. He lias held, and rightly too, that Muhammad Ramzan had, in the circumstances of the case, lost self-control and killed Ghulam Murtaza, due to sudden and grave provocation, lie convicted him under section 304, Part I, P. P. C. and sentenced him to undergo rigorous imprisonment for two years only and a fine of Rs. 5U0 or in default thereof to undergo R. I. for one month. The learned Sessions Judge was guided by the consideration in passing this sentence that the respondent Muhammad Ramzan had remained in custody for more than 1 years and that he was too poor to pay a heavier line.
11. Learned counsel for the petitioner has referred to me Muhammad Saleh v. State (l)but this case is clearly distinguishable because in the precedent case the appellant Muhammad Saleh had been convicted under section 302, P. P. C. for the murder of his sister Mst. Gulan and his partner in cultivation, Loung and his conviction had been conlirtned by the High Court. At the trial he admitted, inter alia, that he had killed Mst. Gulan and Loung. He took the plea that he had found Loung having sexual intercourse with his sister on (lie night of occurrence and that he had given them hatchet blows due to grave and sudden provocation. This plea was rejected by the learned trial Court and he was convicted under section 302, P. P. C. His plea was also rejected by the learned Judges of the High Court. He was granted Special Leave to Appeal against the judgment of the High Court confirming his conviction under section 302, P. P. C. The Supreme Court accepted the appeal and in the circumstances of the case allowed the appellant the benefit of grave and sudden provocation in relation to the act which he had committed and altered his conviction to section 304, Part J, P. P. C. and sentenced him to 10 years' R. I. That was a case in which conviction had been altered from section 302 to 304, Part I, P. P. C. and the Supreme Court was itself imposing the sentence. The Supreme Court was not in any manner interfering with the discretion of trial Court in the matter of imposing sentence as it was not a case for enhancement of sentence.,
12. Another submission of the learned counsel for the petitioner is that the respondent should have been convicted under section 201, P. P. C. but I do not agree because on the perusal of the evidence in this case I am of the opinion that it was insullicient to frame a charge under section 201, P. P. C.
The sum and substance on behalf of the prosecution in this respect is that the dead body of the deceased was dragged by the accused to a oven nearby within a full view of the witnesses who had gone to the place, the removal of the corpse of a murdered man A from the place of occurrence to another place by the alleged murderers itself does not amount to causing disappearance of evidence within the meaning of section 201, P. P. C. I am, therefore, lirntly of the view that the provisions of section 201, P. P. C. could not be attracted to the facts of the case.
13. Having heard learned counsel for the parties, coming to the question of enhancement of sentence, 1 consider it necessary to refer to the authorities on the subject. In Utam Singh v. Emperor
(2) it was held: [6] "I'he powers to enhance sentence should be sparingly exercised by High Court and sentence should be enhanced only in cases where violation to enhance the sentence would lead to a serious miscarriage of justice."
In another case, Emperor v. Ram Sarup (1), Addison, J. following the earlier authortics held that when the sentences are inadequate, but not grossly inadequate, there should be no interference on the revision side.
It was held in IIIa San v. The King (2) : "The question of sentence is always a nuttier.of discretion and therefore the High Court in revision will be loth to interfere unless the sentence passed is clearly wrong. The High Court will not interfere in revision in order to pass a sentence which is slightly different from the one originally passed. The fact that the sentence passed is veiy lenient is not a sufficient ground on which the High Court will exercise its powers to enhance the sentence. Generally speaking, a sentence will not be enhanced in revision unless it is such a manifestly inadequate punishment for the olfencc committed as to amount to a miscarriage of justice."
While considering the question of sentence, Abdul Rashid, C. J., observed in Talib etc. v. Crown (3): "So long as the trial Court performs its duty in this respect in accordance with law, the High Court should not enhance the sentence and thereby fetter the discretion vested in the trial Court and exercised by the learned Judge in accordance with law. If the reasons given by the Sessions Judge inflicting the lesser punishment are perverse, or foolish, or manifestly wrong, the High Court could hold that the discretion vested in the learned Sessions Judge had been exercised in an arbitrary, in judicious or capricious manner. In such circumstances, the High Court should be justified in enhancing the sentence. Where the reasons given by the Sessions Judge arc such that they might appear reasonable to some Judges and unreasonable to others, the Fligh Court is not entitled to enhance the sentence simply because it would have inllieted a higher sentence had it been trying the case itself."
11 is Lordship Bcasely, C. J., in his judgment in the case of Gwiduthalayan alias Thailan v. The Crown (4), was pleased to observe that "the principle of law is well settled that even in murder cases the High Court should enhance the sentence only if the imposition of the lesser sentence would cause serious miscarriage of justice."
In the same case (Talib v. Crown) ShahubudJin, J., in his separate judgment observed: "It has been invariably observed that the power of enhancement should be sparingly used. These and several
(2) AIR 1942 Rang. 49
(4) I L R 53 Mad. 5S5 other restrictions have been imposed by the High Court on themselves though the Code gives them unfettered discretion, because the trial Court has better opportunities of dealing with the delicate question of sentence than a Court of revision and, therefore, its discretion should be preferred as far as possible. The unfettered discretion has thus been settled by practice which, i think, should not be departed from except for strong reasons."
The observations of his Lordship Cornelius, J. (as he then was) in the same judgment, are of considerable importance. His Lordship has, inter alia, observed that "the power of enhancement should be exercised sparingly, and only to correct the serious miscarriage of justice which results where the punishment is inadequate to the point of being wholly incommensurate with the crime found to have been committed. Where the offence is punishable with imprisonment only, and a substantial sentence has been imposed, such a conclusion of gross inadequacy could obviously be reached in an exceptional case".
14. I have considered the question of enhancement of sentence in the light of the above authorities.
The question that has to be decided is whether the sentence passed on Muhammad Ramzan is so grossly inadequate as to call for interference by this Court. I have no hesitation in answering this question in thenegative. Considering moral values and notions of honour as well as.the social customs, prevailing in our society, it must be regarded as a provocation of gravest kind for a man who entreated the deceased to restore his sister but the deceased abused him and after exposing his penis before him replied that he bad abducted the woman for adultery instead of restoration. If one loses self-control under the impact of such a grave and sudden provocation and takes the responsibility for disgrace and dishonour to hitn and his family, his act requires to be viewed in a different light. It is for this reason that the trial Courts do not impose heavy punishments on such offenders. I am fortified in my views by a judgment of S. Anwarul Hacj, J. (as he then was). His Lordship has observed in State v. Akbar (1). "it is not easy to prescribe any particular period of imprisonment which may apply as a general rule in such cases, nor 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 cases."
Although his Lordship was of the view that there had been a grave miscarriage of justice in not imposing a somewhat longer sentence (the accused had been sentenced to imprisonment till the rising of the Court) yet the sentence was not enhanced. The trend of authorities is that heavy sentences are not called for in cases where the accused loses self-control in matters of family honour.
In Behram v. State (2), the conviction and sentence of the appellant under section 302, P. P. C. was set aside and he was [7] convicted for an olicnce under section 304, Part I, P. P. C. and sentenced to three years, R.
1. That was a case where the learned Judges had come to the finding that the accused had acted under grave and sudden provocation. In Mewa v. State (1), the conviction and sentence of three years R. I. was imposed on the accused under section 304, Part I, P. P. C. There is a long chain of authorities in which it has been held that a lenient sentence would meet the ends of justice when the accused had lost self-control under grave and sudden provocation in matters involving family honour.
15. After carefully considering the various aspects of the case, I decline to enhance the sentence of Muhammad Ramzan, respondent and dismiss this revision petition. .