' TANZIL-UR-REHMAN, J.-- This appeal by Nisar Ahmed, alongwith Confirmation case, is directed against the judgment dated 22-9-1988 passed by the learned District and Sessions Judge, West, Karachi, in State v. Nisar Ahmed Criminal Case No. 1648 of 1985, whereby the appellant abovenamed was convicted under section 302, P.P.C. And sentenced to death and was ordered to pay a fine of Rs.10,000 or in default to suffer R.I. For one year and was also directed to pay damages of Rs.10,000 as compensation to the heirs of the deceased by virtue of section 544-A, Cr.P.C. Or in default to suffer R.I. For six months more.
2. The appellant was tried and convicted for causing murder of his wife, namely, Salma Rani and his mother-in-law, namely Kulsum Begum, at his in-laws' house, where the appellant was residing as Ghardamad, on 6-9-1982 at about 4-00 p.m. Within the precincts of P.S. Orangi Town, Karachi.
3. According to the prosecution case, the appellant and Mst. Salma Rani were married, on 17-7- 1982, about 1-1/2 months prior to the occurrence. He was living in the house of his in-laws as Ghardamad with his wife and other in-laws. Some days after the marriage, dispute arose between the appellant and his wife as he wanted to take his wife with him to Lahore, so much so that the matter reached the point of divorce, which was demanded by his wife's relations including the mother. Regarding the incident, the complainant, P.W.3 (Wasim Akram), brother of the deceased wife, stated in the F.I.R. That at about 4-00 p.m. He reached his house when he saw the appellant coming from the side of his house with a blood-stained Chhuri in his hand. He told the complainant that he had killed his sister, Salma and the mother, Kulsum Begum. The appellant also declared that he would see as to how the complainant would ask for Talaq to his deceased sister. The complainant went to the house and found that his mother was lying dead in a pool of blood outside the house and when he entered the house he found that his sister was also lying dead there, in a pool of blood. His other sisters, namely, Shahnaz, Shahana and his brother Tariq were weeping. It was further stated by him in the F.I.R. That the appellant asked the complainant to take him to the police station and so the complainant and P.W. Abdul Karim took the accused to the police station.
4. The above F.I.R. Was recorded by P.W.5 Ghulam Hussain, S.H.O. Of Police Station, Orangi Town, who after investigation, had submitted two challans in the Sessions Court; One under section 302, P.P.C. And the other under section 13-D of Arms Ordinance. On 5-1-1984, against the appellant a charge was framed under section 302, P.P.C. To which he pleaded not guilty and claimed to be tried.
5. At the trial, the prosecution, in support of its case, examined P.W.1 Mst. Shahnaz, P.W.2 Muhammad Tariq, P.W.3 complainant Wasim Akram, P.W.4 Muhammad Idris Khan, D.W.6 Medical Officer Dr. Abdul Majeed, P.W.5 Investigation Officer Ghulam Hussain and P.W.7 Nasir Muhammad A.C.M. 1st Class. A.S.I. Muhammad Ramzan and A.S.I. Muhammad Salem were also examined as Court-witnesses regarding non-service of process on some of the witnesses. The learned prosecutor gave up P.W. Shahana as she was a child. P.W. Police Constable Hussain BID( was also given up by him (vide his statement Exh.33. The prosecution case was then closed on 10-8-1988.
6. The appellant in his statement under section 342, Cr.P.C. Again pleaded innocence and simply denied the various allegations of the prosecution as false. Regarding the judicial confession (Exh.13) he, however, stated that he was neither produced before the Magistrate nor made any such confession.
7. The appellant was also examined under section 340(2) of Cr.P.C. He stated on oath that he got married with Mst. Salma Rani on 11-7-1982. After marriage he started living with his in-laws in Aurangi Town. At the time of incident he used to reside in the house of his in-laws where his deceased wife also used to reside. On the day of incident at about 8 or 9 p.m. The police arrested him from the house of his friend, Riaz where he had gone to meet him. He was innocent and has been falsely implicated by the police at the instance of his in-laws. He did not know who had killed his wife and his mother-in-law. In cross-examination, it was stated by him that it was incorrect to suggest that after his arrest he was produced before a Magistrate for recording his confession. He was shown Exh.P./13 (the judicial confession). He admitted that it bears his signatures but stated that his signature was obtained at the police station. He denied that Wasim Akram, his brother-in- law, had apprehended him and had produced him before the police alongwith Chhuri. He also denied the suggestion that his shirt and Shalwar both were blood-stained and were taken into possession by the police at the Thana. He further submitted that it was incorrect to suggest that he had committed murder of his wife and mother-in-law because his wife had refused to go with him to Lahore.
8. The learned trial Judge after hearing arguments, found that appellant, on the basis of ocular as well as circumstantial evidence, has committed murder of the said two deceased and, convicting him under section 302, P.P.C., sentenced him to death, as aforesaid.
9. Mr. Muhammad Ashraf Kazi, learned counsel for the appellant -submitted that the judicial confession is not, to be relied upon as it was recorded n English and the appellant being ignorant of the said language, it was not explained to him in Urdu. He has further sUbmitted that the learned trial Judge has not correctly appreciated the evidence. It was a case of sudden and grave provocation and the appellant was liable to a. Lesser punishment.
10. As regards the counsel's first submission regarding the judicial confession, reliance was placed by him on Dost Muhammad v. State PLD 1982 Kar.
1000. In this case it was observed that 'the confessional statement had been recorded in Urdu language and there is no dispute that the accused appellant is Sindhi speaking and there appears no mention throughout the confession that it was read over and explained to the accused appellant in Sindhi', and thus the confession was, inter alia, held to be invalid. Although P.W.7, the Magistrate stated before the trial Judge that he had explained the confession recorded by him to the appellant in Urdu, but frankly admitted that he did not append any certificate to that effect.
However, in the confession it was stated that the appellant killed his wife and mother-in-law due to Ghairat as he saw his wife in a compromising position with one Ilyas, and his mother-in-law was also sitting on the same cot. 'The contents of the abovesaid confession reveal altogether a different story which is against the case set up by the prosecution. Moreover, it looks highly improbable that the mother would sit on the cot where her daughter was engaged in the shameful act in her presence. Besides the legal objection as to the validity of the confession, discussed earlier, the confession seems to be false intrinsically, and is, therefore, not at all creditable in law or fact.
11.. As regards the second submission of the counsel about reduction of sentence, it was submitted that there was no intention or preparation on the part of the appellant to commit murder of his wife and mother-in-law. It was as a result of sudden and grave provocation that the offence was committed by the appellant. In order to examine the submission of the counsel it seems necessary to assess the evidence in the light of the above submission.
12. P.W.1 Shahnaz daughter of Kulsum and sister of Salma, the deceased, while speaking about the relationship deposed about the incident as under:- "On the day of incident at about 4-00 p.m. When we all the above-named persons except Irshad and the accused Nisar were present in the house the accused Nisar came there and told my mother that he will take away Mst. Salma Baji to Lahore. My mother and my sister Salma refused.
Upon this accused Nisar Ahmed abused my mother and sister Salma. He then said as to who was there to resist him from taking Salma. He then took out Chhuri from the fold of his Shalwar and gave blows with it on the chest and waist of my sister. My mother raised cries and shouted running out. Then my Dullah Bhai i.e. Nisar Ahmed ran after my mother and caught her. He then stabbed my mother with that Chhuri, at chest and waist for several times."
' She further stated that accused Nisar was butcher by profession.
13. P.W.2 Tariq son of Mst. Kulsoom deposed asunder: "On the day of incident, at about 4-00 p.m. Five years back my mother, my sister, Salma, Shahnaz and Shahana myself were at =the house, when at that time the accused came inside the house and told my mother and sister Salma Baji that he would take Salma Baji to Lahore. My mother and sister refused, upon which Dullah Bhai abused them, and was enraged. He took out Chhuri from the fold of his Shalwar and stabbed Mst. Salma Baji at the chest and waist many blows. She fell down on the ground and died. My mother raising cries started running out, Dullah Bhai, ran after her and caught her neck. He also stabbed her with Chhuri at her chest and waist many times. She fell down on the ground and died."
14. P.W.3 Wasim Akram son of Mst. Kulsum and brother of Salma, the complainant, deposed as under:- "The accused was Ghardamad. He used to live in our house alongwith his brother Irshad. He was insisting to take away Mst. Salma Rani to Lahore. There used to be quarrel on this point, whenever I used to return to my house. My mother used to tell the accused that if he wanted to go he should divorce Salam Rani."
15. The above pieces of evidence shows that the appellant was insisting on taking his wife to Lahore. On the day and time of incident, he seems to have declared his intention, somewhat firmly, to take his wife to Lahore (The appellant was a resident of Punjab and, perhaps, had his place of residence there at Lahore). To this, there was resistance. On the part of his wife and mother-in-law, there was some exchange of hot words with him. The appellant seems to have flared up, took out the Chhuri and stabbed his wife and mother-in-law.
16. The fact that the appellant was a butcher by profession, and, perhaps, people of such profession generally keep a Chhuri should not be lost sight of. In any case, the appellant has been acquitted by the learned 4th Additional Sessions Judge, Karachi in the other case under section 13- D of Arms Ordinance, as the Chhuri was held to be an ordinary one used in a kitchen, for which no licence is required. A reference to this fact has been made by the learned Sessions Judge in the impugned judgment.
17. Mr. K.M. Nadeem, however, submitted that the defence in the trial Court had not made an attempt to establish the case of sudden and grave provocation and, therefore the appellant will not be entitled to take the said plea for the first time in this appeal.
18. In our view, if on reappraisal of evidence on record the plea of sudden and grave provocation can find its support, there should not be any bar to entertain the plea of such a nature. Besides, in a confirmation case which is also fixed before us, it is the duty of the High Court to re-assess the evidence and on consideration of the case, both factually and legally, reach its own conclusion as to the conviction and sentence, for reasons to be so recorded, irrespective of the fact whether the plea has been taken or not in the trial Court, in the interest of justice, which should be paramount in all such cases.
19. On the basis of evidence already on record, we are of the view that the offence of murder was not premeditated and it was committed by the appellant as a result of sudden provocation, but not grave.
20. Now, we are left with the question of reduction of sentence. A number of cases have been relied upon by the learned counsel for the appellant, namely, (i) Muhammad Sharif v. The State 1985 SCMR 1041, (ii) Muhammad Ashraf v.He State 1981 SCMR 856, (iii) Vali Muhammad v. Bajoo and others 1978 SCM R 257 and (iv) Mahmood v. The State 1989 SCM R 341.
(i) In the first case 1985 SCMR 1041 the appellant was tried for murder of his wife and was sentenced to death. No background of enmity or between the spouses was shown. On the day of incident, appellant got infuriated by his wife's refusal and insistence not to accompany him. The Honourable Supreme Court held that the act of the accused was impulsive and without premeditation. The sentence was, thus, reduced to life imprisonment.
The relevant portion from the judgment is reproduced as under:- "We find that the appellant got infuriated by the refusal of Mst. Nuran Bibi and her insistence not to return and it was an impulsive act. The fact that he was allegedly caught after nine months of the occurrence carrying the same pistol in the same bag would show that it was carried not necessarily for murdering the wife or others. The conviction of the appellant under section 302, P.P.C. Is maintained. The sentence of death awarded to him is set aside and is substituted by the sentence of life imprisonment. The appellant shall also be given the benefit of section 382-B, Cr.P.C."
(ii) In the second case 1981 SCMR 856, the accused-appellant was suspicious of his wife's fidelity leading to frequent quarrels between them. Few days before the occurrence the appellant's wife (deceased) left the house without his permission. The appellant resenting such conduct very much and reprimanding her strongly leading to the deceased's parent having visited appellant next morning to patch up the matter and calm him down. Obviously, some untoward incident occurred on the day of incident which led the appellant to attack his own wife with a sharp weapon.
Although the appellant was not successful in proving the existence of grave and sudden provocation, as alleged by him, yet there were clear indications existing of some serious provocation having been given to him by his wife (deceased) just before the incident. It was thus held by the Honourable Supreme Court that it was not a case for award of capital punishment, and the sentence of death was reduced to that of imprisonment for life.
(iii) In the third case 1978 SCMR 257 the prosecution had failed to prove occurrence as a premeditated murder. In the circumstances, the possibility of sudden fight was found probable and, therefore, the accused/respondent was held to be entitled to lesser penalty. The offence of murder having been committed before enactment of Law Reforms Ordinance, 1972, it was held that sentence could not be one of imprisonment for life but only one of transportation for life. However, the sentence of death was substituted,
(iv) In the fourth case 1989 SCMR 341, the parties were closely related to each other and no previous enmity was found existing. The deceased had detained his daughter, wife of the accused, and to get her back accused went a number of times to the house of the deceased but did not receive any positive response. The accused was disgraced by the deceased on one such occasion.
It was observed that the accused and the co-accused might have gone to the deceased on the day of occurrence with the intention to make him agree to let his daughter go with the accused, but during the course of talking an altercation ensued between them at the spur of moment. The accused became infuriated and fired at the deceased fatally. It was found that there existed no pre-planned intention. The death happened just because of the reluctant attitude of the deceased which worsened the situation to that extent. In the circumstances, the substitution of imprisonment for life for death to the accused by the High Court was upheld by the Honourable Supreme Court. In its own words:- "We have carefully considered the arguments raised before us but we do not find any force in them. The parties are closely related and there is no background of previous enmity. The occurrence took place because the deceased had detained his daughter Mst. Aziz Mai, wife of the appellant and to get her back the appellant went a number of times to the house of his father-in- law but did not receive any positive reply. On one occasion when the appellant went to the house of the deceased to make an attempt to bring his wife, he was disgraced by the deceased and returned all alone. Under the circumstances, we have come to the conclusion that on the day of occurrence the appellant alongwith his brother Haider might have gone to the deceased when he alongwith his wife Mst. Minhas was busy in cutting the maize crop, with the intention to make him agree to let his daughter to go with him but during the course of talking an altercation ensued between them at the spur of moment. As a result the appellant became infuriated, picked up his gun and fired at the deceased fatally. There seems to be no pre-planned intention of the appellant and of his brother, when they saw that both the deceased and his wife are away from home and are busy in cutting of maize crop in the field, otherwise they could have easily taken Mst. Aziz Mai from home by using little force but instead they preferred to solve the problem amicably. But what happened is just because of the reluctant attitude of the deceased which worsened the situation to that extent. We have examined the judgment of the learned Division Bench of the High Court and noticed that the learned Judges have thoroughly sifted the evidence of the P.Ws. And examined the finding of the trial Court. Thus we find ourselves in agreement with the view taken by the learned Judges of the High Court. There was satisfactory reason for substituting the death sentence of the appellant for life imprisonment. We do not see any justification to interfere with their impugned finding."
21. Mr. K.M. Nadeem, learned counsel for the State although supported the conviction but has later on conceded to the reduction of the sentence of death to life imprisonment.
22. It may be added by us that eversince distinction has been made between an intentional murder and (or any other crime), and the one caused involuntarily; they have never been treated alike. The Holy Prophet Muhammad (Sallallah alaihi wa Sallam) has said ) i.e. Acts are not (to be judged) except by motive. 'refer Sahih Al-Bukhari. Tradition No.1, Kitab al-Wahi Reference may also be made to the juristic principle No.2 as mentioned in Part it of the preface to the Majallah Al- Ahkam al-Adliye of Turkey, compiled during 1869-76, to the same effect, that is, translated in the Majelle as 'A judgment is in accordance with what the object of an act may be'.
Esides, there exists in the present case, a strong circumstantial evidence of P.W.3, son of the deceased Kulsum and real brother of Rani, the appellant's wife, who has deposed that while he was talking to P.W. Abdul Karim at about 4 p.m., on the day of incident in the Muhallah, he saw the appellant coming from the side of his house with a blood-stained Chhuri in his hand.
23. With regard to this piece of circumstantial evidence a passage from AlMajallah, sections 1740 and 1741 is reproduced as under:- {{URDU TEXT}} I ' Its English translation from the Majelle, Law Publishing Company Lahore, p.306 reads as under:-- "1740. A _ground of judgment. One of the grounds of judgment also is complete presumptive proof.
1741. Complete presumptive proof. A complete presumptive proof is an inference which attains the degree of positive knowledge.
' For example. On someone's going into an empty house, immediately after a man has come from the house with fear and haste, and with a blood-stained knife in his hand, if there is seen a person with his throat recently cut, there is no doubt that man is the murderer of the person.
' No attention is paid to the mere possible chance that that person perhaps killed himself. (See Art.74)."
25. Illustration to section 10 of the Council of Islamic Ideology's proposed Ordinance relating to the enforcement of Qisas and Diyat, as amended, reads as under:- "Two adult male Muslims give evidence that they saw A coming out of Z's room with a blood- stained dagger in his hand or with stains of fresh blood on his clothes and his face having signs of perplexity. Immediately thereafter they find Z lying dead in the room with fresh blood oozing from his body. There was no other exit of that room except the one from which A had gone out. In these circumstances, if the Court is satisfied that it was sufficient proof of the commission of the offence, A may be held guilty of Qatl-i-amd."
' It is, however, provided in section 10 that if the accused is a non-Muslim, the witnesses may be non-Muslims.
26. For the above discussion, we are clear in our mind that the appellant killed his wife and his mother-in-law and has been rightly convicted under section 302, P.P.C. However, in view of the facts and the law as applicable to the facts of the present case, the murders were caused on account of sudden provocation. We, therefore, substitute the death sentence to imprisonment for life, with benefit of section 382-B, Cr.P.C. To the appellant. It is, however, clarified that the sentence of fine of Rs.10,000 (Rupees ten thousand), in default further R.I. For one year, and order regarding payment of compensation of Rs.10,000 (Rupees ten thousand) to the heirs of each deceased and in default to suffer further R.I. For six months are maintained and the reference of confirmation is declined.
27. Hereinabove are the reasons for our short order dated 27-3-1989 passed by us on conclusion of the arguments. .