' Ghulam Yasin, his brother Muhammad Azeem and their nephew Bashir had been tried by the learned Sessions Judge of Bhakkar for the murder of one Ghulam Akbar Khan. All three of them were found guilty but each one of them was convicted under section 302 (b)(c)/34 of the P.P.C.
And In pursuance of the said conviction, each one of them was punished with 25 years' R.I. The said convicts have approached this Court through Criminal Appeal No,1087/91 and call in question the above-noticed conviction and sentences recorded against them while Nazar Khan complainant has filed Criminal Revision No,735/91 and prays that each one of the said respondents be punished with death on the abovementioned charge. Both these matters are being disposed of together through this single judgment.
2. The occurrence in question had taken place on 10-2-1991 at about 9-30 p.m. In the DERA of Ghulam Akbar Khan deceased situate in village Dera Mochianwala in the area of Mauza Bate Bogha about 18 miles from Police Station, Saddar Bhakkar of District Bhakkar. The said occurrence had been reported to Sagheer Hussain Shah, S.I. (P.W.10) by Nazar Khan (P.W.7) at about 10-45 a.m.
On 11-2-1991 while the former was present at Adda Lorrian Notak.
3. Nazar Khan complainant had mentioned that he was a resident of Dasti Jamal while his brother Ghulam Akbar Khan deceased was residing in his land situate in Dera Mochianwala where he had constructed a der dera for the purpose. He had added that he had gone to see his deceased brother on the previous night and had gone off to sleep in a Kotha at the Pad of his deceased brother alongwith Sarfraz Ahmad and Allah Dad (given-up), when he heard alarm at about 9-30 p.m. He had further claimed that he came out of the Kotha alongwith the said Sarfraz and Allah Dad (given-up) and saw that Ghulam Yasin accused armed with a Sota, Muhammad Azeem accused also armed with a Sota and Bashir accused armed with a Lathi, were beating up Ghulam Akbar deceased and one Mst. Bakho. The complainant had further reported that the said Mst.
Bakho Mai managed to run away from the place of occurrence but the abovmentioned three assailants continued beating Ghulam Akbar deceased who fell down on the spot whereafter, the complainant and his two abovementioned companions, entreated the said assailants and thus rescued the said deceased who had become unconscious by that time. The complainant had further added that while he wanted to carry Ghulam Akbar deceased to the hospital for treatment, he found that the said deceased had already succumbed to the injuries received by him.
4. Divulging the motive for the present murder, the complainant had disclosed that the three assailants had suspected illicit liaison between Mst. Bakho and Ghulam Akbar deceased and that on the night of occurrence when Mst. Bakho who was an unmarried girl had entered the Kotha of Ghulam Akbar deceased, the three accused persons suddenly reached there and belaboured the deceased and Mst. Bakho, as abovementioned. The complainant had claimed that this part of the motive had been told to him by Ghulam Akbar deceased after he had received injuries as abovementioned and before he had fallen unconscious and had later died.
5. During the spot inspection, Sagheer Hussain Shah S.I./I.O. Had found blood stained earth at the place of occurrence which he had seized vide memo. Exh. P.G. He had also found a broken bangle P-7 at the said spot which he had secured vide memo. Exh. P.H. While a lamp P-6 which he had found at the spot, had been taken into possession vide memo. Exh. P.F. During the course of investigation, all the three appellants had been arrested by Amir Abdullah I./S.H.O. (P.W.11) on 22-2- 1991 whereafter, Ghulam Yasin appellant had produced a Danda P-8 on the very day of his arrest while Azeem and Bashir appellants had produced Lathis P-9 and P-10, respectively, on the same day which articles had been taken into custody vide memos. Exh. Pi., Exh. P.K. And Exh.P.L., respectively.
6. When confronted with the prosecution case, all the three appellants had denied their participation in the occurrence in question and had pleaded innocence. They had, however, pleaded that at the time of occurrence, Mst. Bakho had gone out of her house to answer the call of nature when Ghulam Akbar deceased caught hold of her. They had added that Mst. Bakho raised hue and cry at which, some passersby reached there and gave injuries to Mst. Bakho has also to the deceased as a result of which, Ghulam Akbar had .Ost his life. The appellants had pleaded that the occurrence in question was an unseen occurrence which had been detected the next morning and that they had been falsely implicated due to their relationship with Mst. Bakho. It may be mentioned here that Mst. Bakho is a sister of Bashir appellant while Ghulam Yasin and Muhammad Azeem appellants are her real paternal uncles.
7. The post-mortem examination of the dead body of Ghulam Akbar deceased which had been conducted on 12-2-1991 at about 8-30 a.m. Had revealed ten blunt weapon injuries on his person.
The seats of these injuries were the left side of the abdomen of the deceased; left side of the lower abdomen of the deceased which had resulted in the fracture of the hip bone and in damage to the femoral artery; the entire back of the chest; back of both the hips; front of right leg; left arm; right chest; left thigh and the right thigh. In the opinion of the doctor, it was the damage to the femoral artery which had caused the death of the deceased. This evidence had been offered by Dr. Sajid Mehmood (P.W.4).
9. Lady Doctor Mrs. Falak Riffat (P.W.5) had medically examined Mst. Bakho on 12-2-1991 at about 9- 00 p.m. And had found six injuries on her entire back of the chest; her breast; her leg and her right wrist joint; fracture of her left arm; some minor lacerations on her breast and complaint of pain on the back of her neck.
10. The ocular testimony has been offered by complainant Nazar Khan who is a brother of the deceased and Muhammad Afzal (P.W.8) who is not connected with either of the two parties. The defence had not been able to point out any material at all which could demonstrate any ill-will or animosity on the part of the two eye-witnesses which could have prompted them to falsely substitute the present appellants with the actual assailants. The possibility of a brother being on a visit to another brother's house is not a remote possibility and is thus believable. In the circumstances, the defence claim and the claim of Mst. Bakho who had been summoned by the learned trial Court and examined as C.W.1, that it was some stranger who having seen the deceased and Mst. Bakho together, had belaboured the two, is not a plausible explanation of the occurrence. The prosecution story is being fully supported and corroborated by the injuries not only on the person of the deceased but also the injuries found on the person of Mst. Bakho C.W. It may be added that the close relationship of the three appellants with Mst. Bakho C.W., out of which, Bashir is her real brother while Muhammad Azeem and Ghulam Yasin are her real paternal uncles, is a further circumstance in verification of the ocular testimony. In the circumstances, I do not feel persuaded to believe that it was some stranger who had inflicted injuries on the person of deceased and Mst. Bakho and consequently hold that the said injuries had been dealt by the three appellants, as alleged by the prosecution.
11. The place of occurrence; the night time when the occurrence had taken place; the injuries on the person of Mst. Bakho C.W. Which stand proved as having been caused at the same time when the deceased had received injuries and the resultant established presence of Mst. Bakho C.W. With the deceased at the relevant time are, definite indicators of the fact that the three assailants who were the close relatives of Mst. Bakho, had caused the above noticed injuries on the person of the deceased and Mst. Bakho after having seen the two in an objectionable condition in the dark hours of the night.
12. The question which thus, emerges for resolution is the determination of the offence which had thus been committed by the appellants in the above noticed circumstances.
13. The newly added section 338-F in Chapter XVI of the Pakistan Penal Code provides that in the interpretation and application of the provisions of the said Chapter, which Chapter includes Oatl and Hurt etc., the Courts were to be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. It is true that the provisions of this Chapter relating to Qatl do not make any allowance for Oat' committed under Ghairat, nevertheless, in view of the abovementioned provisions of section 338-F of the P.P.C., the Courts are bound to apply the provisions of law in accordance with the Injunctions of Islam.
14. It was reported that when Saad bin Abaadah mentioned to the Holy Prophet (Sal-llaho Alaha Wasalam) that he would kill a person whom he saw near his wife, the Holy Prophet (Sal-llaho Alaha Wasalam) did not forbid him to take up such a course of action nor did the Holy Prophet (Sal-llaho Alaha Wasalam) objected to the same and instead declared that he was more Ghairatwala than Saad bin Abaadah. This Hadeeth is reported in Volume III of Saheeh Bokhari Sharif published by Deeni Kutab Khana, Lahore and is being reproduced hereunder alongwith certain other Ahadeeths on the subject for ready reference:- {{URDU TEXT}} This Injunction of Islam in the form of "AHADEETI-I" does not find any reflection in the specific provisions relating to Oatl which now stands incorporated in the Pakistan Penal Code. The omission is understandable as the process of bringing the old provisions of the law on the subject in conformity with the Injunctions of Islam, is still in its infancy and attaining expertise about the law which has now been put into practice is likely to take some time. While I am the subject, I may also make mention that there is no dearth of Ahadeeth recognizing the right of an individual to defend himself against any aggression against him or his property or the right to defend other individuals, but our law on the subject makes no specific mention of giving any allowance to persons causing injuries or even Oatls in the exercise of such right. I have no doubt in my mind that by the time the present legislation on the subject, which is presently only in the form of an Ordinance, is laid before the legislature, due notice will be taken of these omissions and others in the law presently in force.
16. Be that as it may, as has been mentioned above, the provisions of section 338-F of the P.P.C. Do repose some authority in the Courts to notice the Injunctions of Islam on the subject and to take benefit of the same while dealing with the cases in hand.
17. From the above-quoted Ahadeeth, it is obvious that a Oatl committed on account of Ghairat is not the same thing as Oatl-e-Amd pure and simple and the persons found guilty of Oatl committed on account of Ghairat do deserve concession which must be given to them. The least that can be done in the present state of law is to convict such-like persons, guilty of Oatl-e-Amd committed on account of Ghairat, under clause (c) of section 302, P.P.C., as such, a Oatl cannot be said to be punishable with Oisas as per Injunctions of Islam.
18. Consequently, the conviction of the three appellants is converted to one only under section 302(c)/34 of the Pakistan Penal Code. Under the old law, such-like culpable homicides were termed as homicides committed under grave and sudden provocation and no such convict was ever punished with twenty-five years' R.I. This being so, the sentence of 25 years' R.I. Awarded to each one of the three appellants is reduced to a term of five years' R.I. To be suffered by each appellant under section 302 (c)/34 of the Pakistan Penal Code. In view of the fact that the deceased had lost his life on account of his unlawful and immoral act, the present is not a case where the convicts could be directed to pay compensation to his heirs. Therefore, no order is being made directing the appellants to pay any compensation to the heirs of Ghulam Akbar Khan deceased. Tile appellants shall be allowed the benefit of the provisions of section 382-B of the Code of Criminal Procedure.
19. Criminal Appeal No, 1087 of 1991 is, thus, partly allowed in the above terms and for the reasons above stated, Criminal Revision No, 735 of 1991 is dismissed.