Appellant Khanan Khan son of Padshah Khan by caste Pathan was tried by Sessions Judge, Thatta, for the offence under section 302, P.P.C., who found him guilty for the offence under section 302(c), P.P.C, as amended, and sentenced him to suffer R.I. For ten years and to pay a sum of Rs.10,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of deceased Mst. Juma Bakht or in default to suffer R.I. For six months. By this jail appeal filed under section 410/412, Cr.P.C. The appellant has challenged his conviction and sentence.
2. Deceased Mst. Juma Bakht was married with the appellant about 1-1/2 months prior to this incident. About three days prior to this incident during late hours of night the appellant found her in objectionable position with a stranger who, however, escaped. Deceased Mst. Juma Bakht begged for mercy and she was pardoned by the appellant with a warning. On 23-2-1990 at about 7-30 a.m.
Deceased Mst. Juma Bakht was again found in compromising position with one Sawai, relative of complainant Jalal Khan in whose village the appellant resided with his wife Mst. Juma Bakht after the marriage. The appellant who had a Chhuri with him then killed Mst. Juma Bakht by virtually slaughtering her. He then followed Sawai, the alleged paramour of deceased Mst. Juma Bakht, who took refuge in the house of complainant Jalal Khan who saved him. On the same day Jalal Khan went to Bello Police Post and lodged F.I.R. By unfolding a totally different story. The copy of station diary was then sent to Sujawal Police Station, where the formal F.I.R. Was registered. On 24-2-1990 the appellant was arrested and from his possession blood-stained hatchet and clothes were recovered. On 25-2-199() the appellant was produced before Mukhtiarkar and F.C.M., Jatti, who recorded his judicial confession. After usual investigation the appellant was sent up to stand trial.
3. Charge under section 302, P.P.C. Was framed against the appellant and he was asked whether he pleads guilty or has any defence to make, to which he replied as follows:-- "I had married deceased Mst. Juma Bakht about one month 8/9 days before her murder. I was living in the Goth of Mal Khan complainant of this case. Three days before my wife had gone out to urinate at night time and when she did not return I came out and found my wife naked from Shalwar and a person was in compromising position. Seeing me that person ran away and my wife put on Shalwar. When I enquired why she allowed her subjecting to Zina she begged to be excused.
I warned my wife not to indulge again. On the day of incident I asked my wife to go and bring woods from the jungle telling her that I was going to some hospital for my treatment of scabbes. I sat on a cot and found that the same person namely Sawai also went in the jungle towards the side where my wife had gone. I went to follow them. When I reached I found that Sawai was in compromising position with my wife. I could not tolerate disgrace and I gave Chhuri blows on the person of my wife and leaving her I ran after Sawai who ran and entered inside the house of Jalal Khan. Mal Khan gave shelter to Sawai and showed rifle to me on which I went away. Jalal Khan then lodged report and police came and arrested me at a distance of one furlong away from my house.
I committed murder of my wife as I found her in compromising position with Sawai. I plead guilty that I have killed my wife with Chhuri. I am pleading guilty without any pressure."
4. At the trial the prosecution examined Jalal Khan (P.W.1), Umed Khan (P.W.2), Dr. Ghulam Rasool (P.W.3) and Nawaz Ali, A.S.I. (P.W.4).
5. In his statement recorded under section 342, Cr.P.C., the appellant adhered to the same statement, which was repeated by him in his statement on oath recorded under section 340(2), Cr.P.C. He, however, led no defence.
6. On the assessm ent of evidence available on record the learned Sessions Judge found the appellant guilty for culpable homicide not amounting to murder and convicted him under the amended section 302(c), P.P.C. And sentenced him accordingly.
7. I have hoard the appellant in person and Mr. Muhammad Zubair Quraishy, learned counsel for the State. The latter has supported the conviction of appellant under section 3114(11), P.P.C. By stating that section 302(c), P.P.C. Was not attracted in this case.
8. The case set up by the appellant was accepted by learned Sessions Judge who was of the view that Sawai, the alleged paramour of deceased Mst. Juma Bakht, newly wedded wife of the appellant, was deliberately saved by complainant Jalal Khan with the help of police. While discussing this aspect of the case the learned Sessions Judge observed as follows:-- "If the evidence of 10th these eye-witnesses is perused a definite conclusion can be drawn that complainant has concealed his relationship with Sawai and also concealed the fact that Sawai was living in his house. This shows that when defence claims that complainant Jalal Khan rescued Sawai by aiming gun at accused it has force and probability seems more probable and convincing. Sawai has beer made untraceable by the complainant. From the very beginning accused has connected Sawai to be the root cause of the murder but Sawai has taken left behind the curtain. The reason is quite obvious. A person charged for immoral offence by a husband who married deceased lady recently, having illicit connection with Sawai, has been left off by police also who was charged for such a heinous offence of moral turpitude. Even before the police and in the confession recorded immediately Sawai has been shown as the person responsible for murder if the prosecution was fair in prosecution then prosecution should have examined Sawai and produced him before this Court if he was an innocent person and the investigation agency should have challaned Sawai in case the allegation of accused was found correct that he had sexual intercourse with his wife. The immediate production of Sawai before' police would have solved .The problem as medical science is so perfect that it could have disclosed the signs of commission of Zina if Sawai would have been examined immediately, The conclusion which can be drawn from the evidence of complainant is that he had played active role in making Sawai untraced. If a husband has levelled such serious charges the police agency should have been fair in investigation but investigating agency also appears to have played a role in saving Sawai and leaving such a person scot free."
9. During the examination of the case advanced by the appellant in juxtaposition with the case of the prosecution, the learned Sessions Judge again observed as follows:-- "Admittedly accused and deceased lady were bound under the tic of relationship as husband and wife recently. No husband will in the ordinary course murder a newly wedded wife without any reason. The defence plea appears more probable and convincing. Accused belongs to Pathan family and this fact cannot be ignored. Pathan family considers the moral value and notions of honour and chastity. The social customs prevailing in Pathan society cannot be overlooked as the Pathan accused finding himself in such a situation can lose self---control under the impact of such grave and sudden provocation. In the present case defence theory proves that the murder was under the circumstances explained. While considering the prosecution evidence and defence evidence if both sides evidence arc equally balanced then in such case defence version should he preferred and accepted. I am fortified with authority NLR 1991 UC 168 Lah. This authority further speaks that accused's statement on oath should be accepted as a whole in a case where no implicit reliance can he placed on the prosecution evidence. In the present case for the reasons discussed above no reliance can be placed on prosecution evidence and the defence version which is supported by the circumstances and medical and chemical report is accepted as having been proved."
10. It is important to emphasise that the impact of provocation on human frailty is to be judged in the context of the social position and environments of the person concerned. The restraint which is generally shown by sophisticated persons used to modern living is hardly to be expected in the case of a villager who still regards a wife as his personal property and chattel amenable at all times to his desire for sexual intercourse. The law is now well-established that Exception I to section 300 can apply only when the accused is shown to have a been deprived of the power of self- control by grave and sudden provocation which is caused by the person whose death is caused.
The test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused, placed in the situation in which he was placed would 8 he so provoked as to lose his self-control and the provocation must be such as would upset not merely a hot tempered or a highly sensitive person but one of ordinary calmness. (Penal Law by Dr. Gour).
11. On consideration of the entire material available on record; m fully satisfied that the occurrence took place in the manner as stated by the C appellant. The learned Sessions Judge, however, found the appellant guilty under the amended section 302(c), P.P.C. And in coming to that conclusion he felt himself to lx; bound by the decision of the Supreme Court reported as Safdar Ali and others v.
The State and another PLD, 1991 SC 202. It is difficult to follow his reasoning for the simple reason that under Article 12(1) of the Constitution of Islamic Republic of Pakistan, 1973, no law shall authorise the punishment of a person:--
(a) ...........................................................................................................................
(b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by the law for that offence at the time the offence was committed.
12. This question was also considered by this Court in the case of State Bank of Pakistan, through The Banking Officer v. Messrs Raga Enterprises (Regd.) and 2 others reported in 1990 P Cr. L J 317, and it was observed:-- "Every legislature has the power of enacting laws both prospective as well as retrospective, but whenever a retrospective law is enacted the law states so. But where its powers are subject to constitutional restrictions it must act within those restrictions. Article 12 of the Constitution of Islamic Republic of Pakistan 1973, contains such restriction, viz., the legislator cannot punish an act that was not an offence when it was committed. Therefore, the `explanation' added by the Banking Companies (Amendment) Ordinance, 1988, which made the act of accused punishable, which was not punishable when committed, being in violation of constitutional provisions referred to above, cannot be given retrospective effect."
13. In general, when the law is altered during the pendency of an action, the rights of the parties are decided according to law, as it existed when the action was begun, unless the new statute shows a clear distinction to vary such rights. (See Bindra on Interpretation of Statutes). Such statutes, however, effect the procedural laws only and the case of Safdar Ali relied upon by learned Sessions Judge has dealt with procedural law only. For these reasons, I am in agreement with the view taken by Mr. Muhammad Zubair Quraishy, learned counsel for the State when he contends that the offence committed by the appellant is punishable under section 304(II), P.P.C. And not under section 302(c), P.P.C. The conviction is accordingly altered under section 304(II),P.P.C.
14. The question of sentence has engaged my anxious consideration. Due consideration has to be given to the emotional 6r sudden impulse of the appellant under which the crime was committed.
The length or severity of sentence has to be determined on the circumstances of the case, keeping in, view such a state of mind. The appellant is in custody for almost a period of two years. I would, therefore, reduce the sentence of imprisonment to that already undergone by him. The direction for payment of compensation to legal heirs of deceased Mst. Juma Bakht in a case of this nature is also set aside and instead the appellant is directed to pay a fine of.Rs.5,000 or in default to suffer R.I. For one month.
15. The appeal is partly allowed in the above terms.
N.H.Q./K/292/K