1. MIR MUHAMMAD NAWAZ MARRI, J.-1 had the privilage to go through the judgments recorded by my learned brothers Mr. Justice Iftikhar Muhammad Choudhary and dissenting judgment written by Mr. Justice Amir-ul-Mulk MengaL
2. The facts need not be re-iterated as have been discussed in the main judgment. Both the learned Judges are in total agreement as far conviction of appellant under section 302 PPC (as amended) is concerned. Mr. Justice Iftikhar Muhammad Choudhary was pleased to accept Revision petition No. 73 of 1993 and enhanced the sentence from life imprisonment as awarded by the trial Court to death sentence whereas Mr. Justice Amir-ul-Mulk Mengal dismissed the appeal as well as Criminal revision petition filed by State for enhancement of sentence.
3. Notices were issued to the learned Counsel for the parties and Mr. Muhammad Aslam Chishti Advocate was requested to assist the Court as Amicus curiae. The only question for consideration is the quantum of sentence. For this purpose case of prosecution maybe described in brief on 10th February 1993, at about 11 A.M. Deceased Muhammad Shafique was brought in Police custody to produce him in the Court of Additional Sessions Judge-HI Quetta where he was facing trial in case The State. Vs. Muhammad Shafique regarding murder of Abdul Haq father of appellant Abdul Haq. According to appellant Abdul Haq he and Abdul Haleem were sitting in the Court room, deceased Muhammad Shafique where passing the appellant abused him in low voice by saying that he would "fuck his were and wives of his tribe men if he is acquitted*. As a consequence of abusive language used by deceased the appellant stated that he blinded by rage and last control Thereafter he did not know what he had done. Deceased Muhammad Shafique succumbed to the injuries on his way to Civil Hospital Appellant Muhammad Shafique and Abdul Haleem were arrested. The charge was framed to which he stated as under:- "I plead guilty to the charge but this offence was committed by me on sudden provocation as the deceased Muhammad Shafique threatened me that he would fuck my were and whole tribe, if he is acquitted*.
2. The prosecution produced 17 witnesses. The appellant was examined under Section 342 Cr.P.C, and statement on oath as envisaged under section 340(2) Cr.P.C was also recorded. He had admitted the allegation levelled against him in both the statements. Th pistol was snatched from him and taken into possession. The learned trial Court .On completion of trial convicted the appellant on account of mitigating circumstances sentenced him to life imprisonment with the fine of Rs.5,000/- (Rupees five thousand). In default whereof to further undergo for two months. The benefit of Section 382-B Cr.P.C, was also extended to him. Co-accused Abdul Haleem was acquitted of the charge. Appellant filed an appeal praying for reduction in sentence whereas complainant and the State had filed two separate Revision petitions for enhancement of sentence. While deciding the case there was difference of opinion between the Hon'be members of Division Bench of this Court comprising of Mr. Justice Amir-ul-Mulk Mengal and Mr. Justice Iftikhar Muhammad Choudhary, hence the matter was referred to me as a referee Judge. Both the Hon'be Judges have agreed with the conviction of the appellant and held that the guilt of the appellant was established to the hilt, as such, dismissed the appeal but there was a difference of opinion on the quantum of sentence.
5. It will be seen that the- main reason that convinced my lord Mr. Justice Amir-Ul-Mengal to hold that the guilt of the appellant was mitigated and the appellant had not gone to the Court to commit murder with pre-meditation. Muhammad Shafique abused him that if he is acquitted he would fuck his were and wives of his tribe men. On hearing this darkness spread in his eyes and he did not know what he was doing. These reasons can barmy be considered mitigating and circumstances in view of the facts of this ease. Appellant had tone to the Court of Additional Sessions Judge Quetta tarrying loaded Pistol with hint. After being abused by the deceased appellant took out bis loaded Pistol shot and killed him in the Court room while he was hand-cuffed and in Police custody. The act killing the deceased by the appellant of an un-armed and helpless person, hand-cuffed, right in the Court room is highly condemnable act. Abusive language that too in a low tone cannot be considered a solid ground for giving him lesser penalty. According to the Injunctions of Islam Qatl-i-Amd liable to Qisas takes place when the person murdered is not liable to be murdered or is Maasoom-Ud- Dam.
3. Qatl-i-Amd is defined under Section 300 PPC which is re-produced there-in- below:- Qatl-i-Amd. Whoever, with the intention of causing death or with the Intention of causing bodily injury to a person, doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd.
4. The punishment for Qatl-i-Amd is provided under Section 302 PPC, which is as under:- Punishment for murder; whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.
5. Qtal-i-Amd is proved in the following forms as provided under Section 304PPC.
(1) Proof of Qatl-i-Amd liable to Qisas shall be in any of the following forms, namely,-
(a) the accused makes before a Court competent to try the offence a.Voluntary and true confession of the commission of the offence, or
(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984(P.O.19 of 1984).
6. In the instant case the only allegation against the deceased person was that he had abused the appellant. The death penalty could not have been awarded to him for abusing him, therefore, it can be said that he was Maasoom-Ud-dam. As it has been held by Mr. Justice Iftikhar Muhammad Choudhury that due to provocation no exception can be claimed by the appellant from the punishment of Qisas. In this regard the relevant paras from the judgment in case of Federation of Pakistan Vs. Gul Hassan and others reported in PLD 1989 S.C page 633, has already been re-produced. In the said judgment it was observed that grave and sudden provocation is not a exception perse and the punishment of Qisas where Qatl-i-Amd is committed under grave and sudden provocation, can be mitigated only if proof of Zina is produced which conforms to the required standard of evidence prescribed under the Islamic Injunctions. In other words Qalt-i-Amd by husband (or by inference, by a near relative, as in the instant case) will attract a punishment lesser than Qisas only if proof of commission of such Tina exists which satisfy the required standard of evidence prescribed in the Islamic Injunction (1992 P.CrXJ 1596 S.C). The case referred here-in-above is identical to the case in hand. In the said case the appellant pleaded guilty of murdering Shoukat Nizami and took the plea that he had seen the deceased with his sister in compromising position, therefore, he lost his control and killed him. The trial Court on the plea of sudden and grave provocation sentenced him under Section Abdul Haque v. The State(Mir Muhammad Nawaz Mari, J)
7. 302(c) PPC for 7 years. The State filed an appeal against the judgment before Hon'ble Supreme Appellate Court. His lordship Mr. Justice Dr. Naseem Hassan Shah (as he then was) allowed the appeal and set aside the judgment of trial Court and concluded as under:- "As a result of the foregoing discussion, we find that the plea of grave and sudden provocation raised by Abdul Waheed could not have been given effect to in this case so as to make his case fall within the ambit of clause (c) of section 302, PPC and to take it out of the mischief of clause (a) of section 302, PPC., because the requisite evidence to establish this plea under the Islamic Injunctions was not produced by Abdul Waheed respondent.
8. The appeal, accordingly, must succeed and is allowed. Theimpugned judgment of the learned Special Court dated 12.1.1992 is therefore, set aside and the respondent Abdul Waheed found guiltyunder clause (a) of section 302, P.P.C, of Qatl-i-Amd punishable withdeath as Qisas. Order accordingly."
9. In the present case the appellant failed to prove that the deceased had abused him. Both the eye-witnesses deposed that they had heard them talking, as they could not understand Pashtoo, therefore, did not know what they have talked about. The judgment in case State Versus Muhammad Haneef 1992 SCMR page 2047 has relied by my learned brother Mr. Justice Amir-ul-Mulk Mengal With great respect I do not agree with him for the simple reason that the case of Muhammad Haneef is distinguishable so far instant case is concerned. In Muhammad Haneef s case the prosecution witnesses were totally dis- believed and dis-carded, therefore, the statement of respondent Muhammad Haneef was accepted in totality. Secondly that in the above referred case the were of respondent was dis-graced and draged on the date of incident. The Hon'ble Mr.'
10. Justice Shafi-UR-Rehman's held that it was not provocation but exercise of right conferred on the husband under the express words of Holy Quran itself. The relevant para is reproduced here-in-below:-"
11. A person like the deceased who suffered from a prohibition under Quranic Injunctions not to touch or deal with a lady who was not Mehram to him could not so disgrace and insult as to evoke the corresponding duty of the husband to protect and guard the were. Such a man under the Injunctions of Islam cannot be said to be "Maasoom-Ud-Dam" when he is indulging in such an activity. Be it a person disgracing a lady or committing Zina bil-Jabr with her being un-married, it is not provocation but an exercise of the right conferred on the husband under the express words of Quran itself. Qisas will not be liable in such a situation".
12. Whereas in the instant case apart from the statement of appellant recorded under Section 342 and 340(2) Cr.P.C, the trial Court believed the ocular as well as circumstantial evidence. Secondly there was no question of right of self-defence or protecting the honour of his wife.
13. Before parting with the judgment I would like to thank Mr. Muhammad Aslam Chishti Advocate for his complete assistance as Amicus Curea.
14. In view of the above discussion I respectfully with the judgment recorded by Mr. Justice Iftikhar Muhammad Choudhary.
15. Consequently Criminal Appeal No. 61 of 1993 filed by appellant Abdul Haq is dismissed. Criminal Revision No. 73 of 1993 filed by complainant Abdul Hadi is accepted and sentence is enhanced/substituted with that of death and in Criminal Revision No. 79/1993 no order is required to be passed as learned Advocate General did not press for enhancement.