This appeal arises from the judgment dated 31-3-1994 of the learned Additional Sessions Judge, Swabi whereby the appellant Abdul Nabi, aged about 40 years, having been found guilty of committing double murder of his step-sister Bakhte Saba and her husband's younger brother Said Ghani was convicted under clause (c) of section 302, P.P.C. And sentenced to four years' R.I. On two counts.
2. Put shortly, the facts of the case are that on 8-11-1990 at about 9-00 p.m. The husband of the appellant's step-sister Bakhte Saba lodged a report at Police Station Utla to the effect that in the morning when he left his house alongwith his co-villager Ghulam Sarwar to earn his livelihood he came across the appellant who was going towards Tangi duly armed with a `topak'. When he returned to his house in the evening he found his wife and younger brother Said Ghani missing. On enquiry his parents informed him that they had gone to Deval Tangi mountain for washing clothes but had not returned on which he left for the said mountain and on reaching there found them lying murdered. He was convinced that they were killed by the appellant who had asked him a few days ago to leave his parents and set up a separate abode and had also instigated his wife several times to desert him but she had not responded favourably.
3. The appellant was arrested on 10-11-1990 and on 13-11-1990 a judicial confession was made by him in the following terms:
4. When examined under section 342, Cr.P.C. The appellant not only controverted the allegations levelled against him by the complainant Abdul Nazir but also retracted his judicial confession.
However, at the conclusion of the trial the learned trial Court by treating his retracted confession as voluntary and true and placing implicit reliance on it found him guilty of the offence of Qatl-i-amd but convicted and sentenced him as stated above for the reason that on seeing his sister and her brother-in-law in a compromising position he had killed them under grave and sudden provocation.
5. It was contended by the learned counsel for the appellant that the occurrence was unseen and the learned trial Court had overlooked the fact that the retracted judicial confession of the appellant was not corroborated in material particulars by independent evidence.
6. The learned counsel appearing for the State on the other hand argued that there was no need to look for corroborative evidence as on facts and circumstances of the case the retracted judicial confession sounded true and voluntary and in any event it was corroborated by the medical evidence inasmuch as the gunshot entrance wounds being on the chest of the lady and on the back of her paramour clearly suggested that they were in a compromising position at the crucial time.
7. There is no ocular or circumstantial evidence to connect the appellant with the crime beyond any reasonable doubt. The judicial confession was retracted by him at the earliest opportunity and no independent corroborative evidence is available on record. The medical evidence cannot serve as a corroborative piece of evidence inasmuch as it does not point to commission of Zina. It rather negates the allegation for the reason that it was categorically stated by Dr. Abdul Latif (P.W.1) that there was no evidence of sexual intercourse before death. In this background it goes without saying that the appellant was convicted on surmises and high probabilities. It is scarcely necessary to mention that conjectures and probabilities cannot be a substitute for legal proof. The appellant is thus entitled to the benefit of doubt. This appeal is, therefore, accepted, the conviction and sentences of the appellant are set aside and he is acquitted of the charge levelled against him. He be set at liberty forthwith if not required in any other case.
8. Before parting with the case I deem it necessary to mention that while dealing with the plea of grave and sudden provocation taken by the appellant the learned trial Court did not appreciate the import of amendments made in the Pakistan Penal Code by the Qisas and Diyat Ordinance.
Prior to the promulgation of Qisas and Diyat Ordinance the plea of grave and sudden provocation arising from illicit liaison used to be taken by an accused on the strength of the provisions of Exception 1 to section 300, P.P.C. And if established it used to serve as a mitigating circumstance for awarding lesser or nominal punishment under section 304(I), P.P.C. The Qisas and Diyat Ordinance has deleted both these provisions from the Pakistan Penal Code but this does not mean that now Zina-related plea of grave and sudden provocation cannot be raised at all and if established cannot serve as a mitigating circumstance for awarding lesser punishment. Such a plea can certainly be taken but the accused doing so shall have to prove by producing evidence in accordance with the standard laid down by the Islamic Law that the victims were committing Zina liable to death. If the plea is established through such evidence it will serve as a mitigating circumstance for awarding lesser punishment under clause (c) of section 302, P.P.C. Which reads as follows: "Whoever, commits Qatl-i-amd shall, subject to the provisions of this Chapter be-- (a)x x x x x x x x x x x x x x x x x x x x x x x x
(b) x x x x x x x x x x x x x x x x x x x x x x x x
(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable."
The rationale is that under the Islamic Law punishment of Qisas is not applicable if a husband on seeing his wife and her paramour committing Zina, which is punishable with death, kills one or both of them and proves the factum of Zina by producing the requisite evidence. In holding this view I am fortified in the following observations made in the Federation of Pakistan through Secretary, Ministry of Law and another v. Gul Hassan Khan PLD 1989 SC 633:-- 8-A. Another authority on the point as The State v. Abdul Waheed alias Waheed and another 1992 PCr.LJ 1596. In that case Abdul Waheed and his cod---accused Khalil Ahmad were charged for committing the murder of one Shaukat Nizami. While Khalil Ahmad was acquitted by the learned trial Court Abdul Waheed was held guilty of the offence of Qatl-i-amd and sentenced to seven years' R.I. Under clause (c) of section 302, P.P.C. On the basis of his statements under sections 340 and 342, Cr.P.C. Wherein he had taken the stance that on seeing the deceased committing Zina with his sister he had killed him under grave and sudden provocation. The appeal filed by the State was accepted by the learned Supreme Appellate Court and the convict was sentenced to death as Qisas under, clause (a) of section 302, P.P.C. For the reason that he had.-not produced the requisite evidence to lend support to his plea. The following excerpt from.The said judgment may be reproduced advantageously:--- "The observations made in Gul Hassan's case clearly show that grave and sudden provocation is not an exception per se 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, Qatl-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 Zina exists which satisfies the required standard of evidence prescribed under Islamic Injunctions."