This Criminal Appeal No.615 of 1983 against conviction and sentence and connected Criminal Revision No.447 of 1984 by Bashir Ahmad, complainant, for the enhancement of sentence arise from the judgment of learned Sessions Judge, Bhakkar, whereby he, on 25-10-1983 convicted Muhammad Bakhsh (30 years) and Mst. Mureedan Mai (60 years), respondents, under section 304, Part I, P.P.C. For the double murder of Amir Muhammad and Mst. Bano Mai on grave and sudden provocation and sentenced Muhammad Bakhsh 10 years' R.I. And a fine of Rs.5,000 or in default thereof six months' R.I. Mst. Mureedan Mai was sentenced to three years' R.I. And a fine of Rs.2,000 or in default thereof one month's R.I. With the directions that if fine is recovered half of it be paid to the legal heirs of the deceased. I propose to dispose of the two matters through single judgment.
2. The occurrence took place on 28-5-1983 at 2-00 a.m. In the house of Muhammad Bakhsh, appellant, situate at Chah Logranwala of Saddar Police Station Bhakkar. The F.I.R. Exh. P.B is statement of Bashir Ahmad recorded by War Ullah, S.I. P.W.11 on the s e day at Behal Bus Stand.
Formal F.I.R. Exh.P.B./1 was drafted by Shahnaw z A.S.I. P.W.2 on the same day.
3. Mst. Bano deceased was were of Muhammad Bakhsh appellant. Mst. Muridan Mai appellant is the mother of Muhammad Bakhsh appellant. Amir Muhammad deceased was admittedly the paramour of Mst. Bano Mai, were of Muhammad Bakhsh appellant. Amir Bakhsh and Mst. Bano were killed because of their illicit intimacy.
4. As for the main occurrence, it has been stated that at the eventful time Bashir Ahmad P.W.9, Muhammad Azeem P.W.10 and Qadir Bakhsh (not produced) were working at the thrasher of Hassan Baloch at a distance of 60 yards from the house of Muhammad Bakhsh appellant. They heard a noise coming from the house of Muhammad Bakhsh appellant, so they went to his house and saw Mst. Muridan Mai catching the legs of Amir Bakhsh deceased and Muhammad Bakhsh giving him hatchet blows. Mst. Bano was present nearby. After causing injuries to Amir Muhammad, the appellant Muhammad Bakhsh launched attack on Mst. Bano and gave her injuries with his hatchet. Mst. Muridan Mai also picked up a Chhuri lying nearby and gave two injuries to Mst. Bano.
Bashir Ahmad and his companions apprehended the appellants on the spot. They snatched hatchet from Muhammad Bakhsh and Chhuri from Mst. Muridan. Amir Muhammad and Mst. Bano succumbed to the injuries on the spot. Bashir Ahmad left for the police station to lodge report.
5. After recording the F.I.R., Zulfiqar S.I. P.W.1 came to the place of occurrence. He formally arrested the appellant. Muhammad Azeem P.W.10 produced blood-stained Chhuri Exh.P.1 of Mst. Muridan Mai before him. Qadir Bakhsh produced blood-stained hatchet Exh.P.2 of Muhammad Bakhsh before him. The Chhuri and the hatchet were taken into possession and memoranda were prepared.
6. Dr. S.M. Rafi Ullah performed post-mortem examination on the dead body of Amir Muhammad on 28-5-1983. He found 8 incised wounds on the head, neck, over the right clavicular region and three abrasions on the right and left forearms of the dead body. In his opinion, injury No.7 on the left side of the neck was sufficient to cause death in the ordinary course of nature. The death was immediate and the time between the death and post-mortem was about 16 to 18. Hours.
On the same day, he conducted post-mortem examination on the dead body of Mst. Bano Mai and found 5 incised wounds on her neck and left hand and one abrasion on her body. The death was due to shock and haemorrhage resulting from injuries on the right side of neck. The incised wounds found on the person of the two deceased were caused by sharp-edged weapon and the abrasions found on the dead body were caused by blunt weapon.
7. To prove its case, prosecution produced 12 witnesses. Bashir Ahmad P.W.9 and Muhammad Azeem P.W.10 are the eye-witnesses of the occurrence. They claim to have seen Amir Muhammad appellant causing injuries with hatchet on the person of the 2 deceased and Mst. Muridan Mai catching hold of Amir Muhammad at the time of infliction of injuries to him by Muhammad Bakhsh appellant and also causing two injuries with Chhuri on the person of Mst. Bano. They claim to have apprehended the appellants on the spot. They produced the production of blood-stained Chhuri and blood-stained hatchet before the police. Bashir Ahmad has also deposed about the motive of the occurrence. Dr. S.M. Rafi Ullah has proved the post-mortem examination report of the two deceased. Zafar Ullah, S.I. P.W.11 has proved the F.I.R.; the production of blood-stained Chhuri Exh.P.1 and blood-stained hatchet Exh.P.2 before him by the P.Ws. And the recovery memoranda prepared by him. The rest of the evidence is of formal nature.
8. When examined under section 342, Cr.P.C., Mst. Muridan Mai denied her participation in the occurrence. She stated that Muhammad Bakhsh appellant had killed the two deceased under grave and sudden provocation. Muhammad Bakhsh appellant admitted to have killed the two deceased on seeing them in compromising position.
9. The trial Court has disbelieved the ocular account of the occurrence given by the eye-witnesses.
Believing the plea of grave and sudden provocation raised by Muhammad Bakhsh appellant in his statement recorded under section 342, Cr.P.C., and forming opinion that Muhammad Bakhsh alone could not have killed the 2 deceased without the help of Mst. Muridan Mai, has convicted and sentenced them as stated above.
10. Learned counsel for the appellant submitted that the prosecution case having been disbelieved, there was no justification to convict Mst. Muridan Mai and that the sentence awarded to Muhammad Bakhsh was/is harsh and excessive. No one has appeared for the State. Learned counsel appearing in the connected criminal revision for the enhancement of sentence has requested for the enhancement of sentence on the ground that the 2 deceased were not seen committing adultery and were only seen together at the place of occurrence.
11. I have considered the submissions made by the learned counsel for the' parties with care. I feel persuaded to agree with the learned counsel for the appellant. I find that the trial Court for good reasons had disbelieved the statements of the eye-witnesses namely Bashir Ahmad and Muhammad Azeem P.W.10. He has also disbelieved the prosecution version that Mst. Muridan had caused injuries to Mst. Bano Mai deceased. He has virtually convicted Mst. Muridan Mai on surmises and conjectures that in view of the large number of the injuries on the two deceased, the commission of crime was not possible without', the help of Mst. Muridan Mai. So, the conviction of Mst. Muridan Mai cannot sustain.
12. As for Muhammad Bakhsh, the trial Court has convicted him on his confessional statement recorded under section 342, Cr.P.C. After having disbelieving the prosecution case, more particularly the ocular account of the occurrence given by the prosecution witnesses, the trial Court was obliged to accept the statement of the appellant as a whole, in which he had stated that he had seen the two deceased in compromising position. So, there was no justification to award heavy and harsh sentence of 10 years' R.I. To the appellant. It seems to me that white awarding unwarranted punishment, the trial Court was influenced by the negative report of the Chemical Examiner about the vaginal swa bs of Mst. Bano Mai deceased. Undisputedly, the two deceased had illicit relations even before the occurrence and Amir Bakhsh had come in the house of Muhammad Bakhsh appellant for the purpose of adultery. To v mind, mere sitting of Amir Muhammad with his (Muhammad Bakhsh's) were in his (appellant) house was a provocation grave and sudden enough to deprive him of the power of self-control. When the appellant came to his own house he detected his were Mst. Bano Mai with her paramour in flagrante delicto or at least he found his were with her paramour in his house. Under these circumstances, the blood of any husband, rustic or educated, civilized or crude, high or low, must boil. The degree of boiling may perhaps vary with people of Eastern countries and people of Western countries and even with different persons in the same country. It all depends upon the situation and character of the people, the state of general manner of a society and on other incidental circumstances which may, to look at, be slight in themselves but have most important bearing on the feelings of the people. It is a matter of experience that in our country (Pakistan) a mere casual talk or sitting with a stranger with one's were/daughter/sister/mother in suspicious circumstances is looked upon by the relations and in particular the husband/brother of the woman as well as the entire society with great disapproval and resentment and must excite feelings incapable of being explained in words. Marriage/Nikah is a promise and agreement by the were to yield her body to her husband alone and to remain faithful to him throughout life. So, the act of submitting herself willingly to another man's lust, alone is sufficient to turn the husband mad. I feel that in cases of this type, the Court has to take into account the height of degradation, which the husband has to suffer in the society. It is an unwritten but very established law of the Code of morality of this country that a man who in order to maintain his honour kills his were who ceases to be true to him and is guilty of illegal attachment with a stranger gains/earns sympathies from all quarters. In the instant case, Muhammad Bakhsh has killed his faithless and immodest were and her shameless paramour and as such has given vent to the feelings of the entire society in which we are living. Under the law, which existed at the time of occurrence, the act of murder under grave and sudden provocation was punishable under section 304, Part I, P.P.C. So, despite my feelings that the appellant while killing the two deceased had obeyed the code of morailty of this country and also the dictates of his conscience, I, as a Court of law, have no alternative but to sustain the conviction and punish him.
13. This brings me to the question of sentence. In the instant case, the two deceased had illicit relations before the occurrence and on the eventful day Amir Muhammad as a dare devil, came to the house of the appellant to have sexual intercourse with his were. So the two deceased had forced the appellant to kill them, if he wanted to live honourably in the society to which he belongs in order to vindicate his honour. This being the position, I hold that the sentence of 10 years awarded to him by. The trial Court was really very harsh, excessive and unwarranted. So, it is reduced to 3 years' R.I. On each count. The fine awarded by the trial Court is remitted. I do not see any legal or moral compulsion to direct payment of compensation to the legal heirs of the deceased, inasmuch as, awarding of compensation to them may tantamount to reward for the act of adultery committed by their predecessor-in-interest. The sentences will run concurrently. The appellant will get benefit of the provisions of section 382-B, Cr.P.C. The connected criminal revision stands automatically dismissed.