MIAN BURHANUDDIN KHAN, J.--Leave was granted, per order of this Court dated 13-1-1985 and the petition for leave to appeal was converted into appeal in view of the contention of the learned counsel that since the prosecution has failed to establish any motive on the A part of the accused /appellant, therefore, the accused /appellant is entitled to a lesser punishment if the prosecution evidence is otherwise believed.]
2. The appellant was tried by the learned Additional Sessions Judge under section 302, P.P.C. For committing the murder of Mst. Atiya Rehana by strangulating her to death in her house at 47, Tufail Road, Lahore on 29-4-1979 at about mid-night. He also caused injuries to Mat. Yasmin daughter of the deceased and Muhammad Ishaq P.W. On the same date and the. The learned trial Judge found Tufail Masih appellant guilty and sentenced him to death under section 302, P.P.C. And to pay a fine of Rs.1,000, in default, six months R.I. The accused/ appellant was also convicted under section 323, P.P.C. For causing injuries to P.W. Muhammad Ishaq and was sentenced to one year R.I. And was also sentenced to six months' R.I under section 323, P.P.C. For voluntarily causing injuries to the daughter of the deceased namely Mst. Yasmin P.W. Half of the amount of fine, was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P.C. Amanullah co- accused was, however, acquitted. Appeal filed by the accused-appellant before the Lahore High Court failed, his death sentence was confirmed and other sentences as mentioned above, were upheld by the learned High Court Judges per judgment dated 1-11-1982.
3. Briefly stated the prosecution case is that the deceased was lying asleep in her bungalow at Tufail Road, Lahore on 29-4-1979 at about 2 a.m., and Mst. Yasmin P.W. Her daughter and to minor sons of the deceased were also sleeping under the same roof. Mst. Atiya deceased got up because the air-conditioners in her room had stopped working and she called the Chowkidar of her house, Tufail Masih appellant and asked him to find out the cause of sudden stoppage of the air- conditioners. After a while the appellant returned to her and told her that the cause of failure of the air-conditioners could not be detected. The deceased directed the appellant to go again and make proper inquiries as to why her air-conditioners have ceased to function all of a sudden. The accused /appellant again returned to her after some the and reported his inability to find out the cause of failure of the air-conditioners, whereupon Mst. Atiya browbeat the accused/ appellant.
Her daughter Mst. Yasmin P.W. Stated that at about mid-night she heard her mother Mst. Atiya crying "Chowkidar, Tufail is assaulting me." Mst. Yasmin then rushed to her mother's room where the light was on because of to separate power connections for air-conditioners and electricity connection for bulbs in the house. Mst. Yasmin saw her mother lying on the ground and the appellant was sitting on her chest and was strangulating her neck with the trouser-string of her mother. As she could not rescue her mother Mst. Atiya, she called her Cook Ghulam Hussain for help but he to felt helpless because the appellant harshly threatened him. Mst. Yasmin further stated that she again went out and cried for help and her cries attracted Muhammad Ishaq P.W.
Who was Chowkidar at the adjoining house of one Mr. Mukhtar who reached the spot with a Danda in his hand but the accused /appellant soon snatched the Danda from Ishaq and dealt blows with the same to Chowkidar Muhammad Ishaq P.W. Until Ishaq fell unconscious. Then the accused beat her to and tied her with a Charpoy Mst. Atiya, her mother, was later on found dead. Mst. Yasmin also stated that her late mother had earlier repeatedly abused the appellant and for that reason he strangulated her.
4. On receipt of the information Abdul Rauf S.H.O. P.W. 18 reached the scene of occurrence and recorded the statement of Mst. Yasmin complainant and sent the body of Mst. Atiya to the mortuary.
5. It is mentioned in the report that Mst. Atiya was the second wife of Malik Khizar Hayat. His wives had dispute over the property of their husband. Mst. Atiya deceased suspected her Chowkidar Tufail Masih the accused /appellant of having been won over by her rival.
6. Post-mortem examination on the dead body of Mst. Atiya was performed by Dr.Sabir Ali P.W.1, and he found a ligature mark 1 c.m. Placed in the middle of her neck with multiple scratches below the chin and upper part of her neck, and also the following injuries.
(i)scratch -- x --cm. On left cheek.
(ii)scratch --x --cm. On left side of chin.
(i.e)contusion4 1/2x 2 --cm. On front of right shoulder.
(iv)contusion 6 x 2 cm. Upper part of right chest.
(v)contusions 4 x 2 cm. And 2 x 2 cm. On back of shoulder.
(vi)contusion 3 x 2 front lower half left leg.
(vii) contusion 2 x 2 of the dorsum of left foot.
On dissection of the neck of the deceased the Doctor found the soft tissues effused with blood mucosa of wind pipe congested and opening the chest both the lungs were also found congested.
In the opinion of Dr. Sabir the deceased died of asphyxia brought about by the compression of her neck.
7. The same doctor medically examined Mst. Yasmin P.W. Daughter of the deceased on 29-4-1979 and found following injuries on her person: - (i)scratch linear --cm. On the back of right hand.
(ii)contused swelling 2 x 2 cm. On the back of right wrist.
(i.e)contusion 4 x 2 cm. Front lower end right arm.
(iv)contused swelling with linear scratch 3 x 2 cm. On thumb.
(v)contusion 2 x 1 em. Front, outer, lower half left arm.
(vi)second and third toes of right foot found swollen.
The doctor found the injuries to have been caused with some blunt weapon.
8. Dr. Sabir also medically examined Chowkidar Muhammad Ishaq P.W. And found the following injuries on his person:-
(i) contusion 11 x 7 cm. Outer front, back, upper left arm.
(ii) abraded contusion 5 x 3 cm. Back left elbow.
(i.e) contusion 6 x 2 cm. Back left shoulder.
(iv) contusion in area 15 x 10 cm. Back right shoulder region.
(v) contusion 20 x 2 cm. Across the back of the chest.
(vi) contusion 9 x 7 cm. Outer back upper right arm.
(vii) abrasion in area 8 x 4 cm. Back right elbow.
(viii) contusion 6 x 3 cm. Back upper half right forearm.
(ix) contusion 14 x 6 cm. Upper part of right buttock.
(x) swelling of the whole left index finger.
(xi) abrasion in area 6 x 4 cm. Front left knee.
(xii) abrasion 2 x 1 cm. Front right knee.
(xiii) swelling 3 x 2 cm. Right temporal region.
(xiv) multiple scratches on nose.
(xv) contused swelling 4 x 3 cm. Just below the left eye, and
(xvi) contusion 5 x 3 cm. Left side of the neck.
In the opinion of Dr. Sabir Ali P.W. The injuries appeared to have been caused with some blunt weapon.
9. Learned counsel submitted that the deceased was a woman of frayed temper and she used to insult and abuse the accused /appellant constantly; and that her own daughter Mst. Yasmin .P.W.
Complainant, in her report Exh. P.D. Has stated "Tufail had told me that my mother had insulted him and had hurled filthy abuses on him and for that reason he had killed her." As stated above, the learned counsel contended that the prosecution had failed to establish any motive on the part of the accused /appellant; and as per the statement of Mst. Yasmin, the appellant was provoked, because of the constant abuses and insults by the deceased Mst. Atiya, that he attacked her, though not with the intention to cause her death, therefore, the accused/appellant, the learned counsel submitted, is entitled to a lesser punishment if the prosecution evidence is otherwise believed.
10. We have gone through the entire evidence on record and carefully considered the contentions raised by the learned counsel and find that the to Courts have relied on the statements of P.Ws.
Mst. Yasmin and Muhammad Ishaq, and rightly to. Therefore, we do not find any reason to disagree with this finding. Accordingly, we uphold conviction of the accused/ appellant under section 302, P.P.C.
11. So far as the quantum of sentence is concerned, it remains a captivating question. No doubt, in the F.I.R. Mst. Yasmin P.W. Had maintained that the accused /appellant asserted immediately that he had done ine deceased to death as she used to abuse him in filthy language. However, we find that Mst. Yasmin had not been confronted, at the trial, with this portion of her statement in the F.I.R.
Could this be used for the benefit of the appellant? There is no cavil with the proposition that report under section 154, Cr.P.C. Is not a substantive piece of evidence, and as such it cannot be used against the accused, or in his favour unless put to the maker for corroboration or contradic--tion.
But the Courts have to consider if something had happened immediately before the assault. The fact remains that there is no evidence as to what happened before the attack. Moreover Mst.
Yasmin P.W. Has admitted the contents of her report Exh. P.D to be correct, and signed it.
12. The co-accused Amanullah has been acquitted against whom a charge under section 302/109, P.P.C. Was framed to establish a pre-planned murder and for removing the valuables of the deceased. The learned trial Court did not believe the story of conspiracy and discarded the statement of the to witnesses, and observed as follows: "I am fully convinced that the prosecution has failed to substantiate this part of the case. The conspiracy does not stand proved which has rendered the case of Amanullah accused highly doubtful."
13. Regarding the motive, we have come to the conclusion that the prosecution evidence does not live upto the required standard of proof. Thus there being no other motive, it has to be inferred from the circumstances of the case that there was display of bad temper and hurling of abuses which annoyed the accused /appellant. In conclusion, we would alter the death sentence to life imprisonment and a fine of rupees twenty thousand, or in default, five years' R.I. The sentence shall run concurrently with the substantive sentence of life imprisonment. Amount of fine, if realized, shall be paid to the heirs of the deceased.
NASIM HASAN SHAH, J.--I agree with my learned brethren that the appellant was rightly convicted under section 302, P.P.C. But regret that I cannot share their view that he is entitled to the lesser penalty.
The reason, which has weighed with my brothers for awarding the lesser penalty to the appellant, is that the prosecution evidence did not furnish any clear motive for the murder and that in the circum--stances it had to be inferred "that there was display of bad temper and hurling of abuses which annoyed the accused /appellant". The death sentence has been altered to life imprisonment and a fine of Rs. 20,000 on this ground.
The question is that even if it is accepted that the deceased had used abusive language towards the appellant could this circumstance be considered a sufficient provocation to entitle him, a servant of the house, to throw down a helpless lady on the ground, sit on her chest, take out the trouser-string out of her Shalwar and put it around her neck and strangulate her? I do not think so.
The display of bad temper and hurling of abuses cannot, in my opinion, entitle a murder to the lesser penalty because the provocation which can entitle a killer to the concession of the lesser penalty must be of such a kind which should deprive an ordinary normal man of self-control. In this case, the details of the filthy language allegedly used by the deceased are not known. On the other hand, the manner in which the appellant murdered the mistress of the house and a helpless woman, even if she had hurled abuses at him, cannot be considered to be such a provocation which can deprive an ordinary normal man of his self-control and commit murder in the manner that the appellant has done in this case. The hurling of abuses by the deceased did not amount, in my opinion, such a mitigating circumstances as could entitle the appellant to leniency in the matter of sentence in the circumstances of this case.
I would, therefore, dismiss this appeal in to and uphold the sentence of death.
ORDER OF THE COURT In view of the majority view, we alter the death sentence to life imprisonment and a fine of rupees twenty thousand, or in default, five years R.I. The sentence shall run concurrently with the substantive sentence of life imprisonment. Amount of fine, if realized, shall be paid to the heirs of the deceased. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.