' This order will dispose of Criminal Appeal No,56 of 1992 and Criminal Revision No:8 of 1993 as both arise from the judgment of Sessions Judge, Attock, whereby on 1-2-1992 he had convicted the appellant under section 302 (b), P.P.C. And sentenced him for life imprisonment. The appellant was given benefit of section 382-B, Cr.P.C.
2. The facts necessary for disposal of this appeal are that on the fateful day at about 5-45 p.m. The complainant alongwith her uncle Abdul Aziz were present in her house. They heard Ghulam Farid accused, their neighbour at a loud voice started calling bad names. The complainant along with her uncle went into the street and saw her husband coming towards his house. Muhammad Idrees P.W. Was also going behind the deceased. When her husband reached in front of Pipal tree Ghulam Farid gave a Chhuri blow to Rashid Alam deceased on his chest below his shoulder who fell down and succumbed to the injury at the spot after a short while.
3. The motive behind the occurrence as stated in the F.I.R. Is that Ghulam Farid suspected that Rashid Alam had developed illicit relations with his wife Mst. Fahmida Begum.
4. On the statement of complainant a case was registered against the appellant under section 302, P.P.C., vide F.I.R. No,99, dated 12-1-1991 at Police Station Pind Sultani, District Attock.
5. To prove its case the prosecution examined as many as eleven witnesses. Dr. Zafar Manzoor, Medical Officer P.W.11 conducted post-mortem examination on the dead body of Rashid Alam. He found the following injuries on his person:--
(1) A stab wound 3 c.m. x 1 c.m. x chest deep on the left side of the chest 7 c.m. Above the left nipple.
(2) An incised wound 1 c.m. x 1/4 c.m. x muscle cut on the left side of the chest 10 c.m. Below the left nipple. In his opinion the death Was caused due to shock and haemorrhage as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature.
6. Mst. Imtiaz Begum P.W.1 and Abdul Aziz P.W.2 gave the eye-witness account, which finds reflection in the above narration of the prosecution case. Khaki Jan P.W.3 has stated that in his presence the police took into possession blood-stained earth from the place of occurrence vide memo. Exh.P.B. Zahoor Alam P.W.4 identified the dead body of Rashid Alam deceased at the time of post-mortem examination. He has also stated that on 18-10-1991 the accused had led to the recovery of blood-stained Chhuri Exh.P.1 in his presence. Muhammad Hanif P.W.5 on the pointation of P.Ws. Had prepared the site plan Exh.P.D. And Exh.P.S./1. Sikandar Khan, S.-I./S.H.O. P.W.10 gave the details of the investigation conducted by him. He inspected the spot and prepared inquest report and injuries statement Exh.P.G. He has stated that on 16-10-1991 the sons of the brother and sister of the accused produced the accused before him. The rest of the witnesses produced by the prosecution were of formal nature.
7. The appellant in his statement under section 342, Cr.P.C. Stated:-- "It is not a question of suspicion. He was carrying on with my wife and despite asking for did not desist and it is for the same reasons that on the evening of occurrence finding him in compromising position with my wife when he started running away I gave him a Chhuri blow which proved to be fatal."
' The appellant neither gave statement on oath in disproof of the charge against him nor did he produce any witness in defence. On the conclusion of the trial the appellant was convicted and sentenced as stated above and aggrieved by the judgment of conviction, he appealed to this Court.
8. It is submitted on behalf of the appellant that the occurrence was not witnessed by anyone and this fact is highlighted by the position that no male member of the deceased family went to lodge the report and the stand of the defence that Mst. Imtiaz Begum was not present in her house appears to be correct. It was argued that Abdul Aziz P.W.2 was employed at a place three miles away from the place of occurrence and he was also not present at the time of occurrence and the entire story in this regard has been concocted. It was also contended that according to prosecution's own version the deceased could not have been in the village on the day of occurrence and the position of the dead body seen at the time of occurrence also supports this view. It was argued that the appellant was a poor cobbler and the deceased was an Inspector in Cooperative Department and in the absence of the appellant the deceased was carrying on with the wife of the appellant who on seeing them in compromising position under grave and sudden provocation killed the deceased and as such had committed no offence under the law. - 9. Learned counsel for the State as well as complainant have supported the impugned judgment.
Learned counsel for the complainant has submitted that the appellant had committed murder of deceased on suspicion only and as such maximum penalty of death ought to be awarded to him.
10. According to F.I.R. Prosecution case is that the deceased who was employed as Inspector in the Cooperative Department used to spend three days in his village and the other three days at Rawalpindi and that he had come to village on the preceding Thursday. In that event the deceased according to prosecutions own stand was to remain in village till Sunday i,e, day after the occurrence and no reason was given as to why he shortened his visit to the village. A strong piece of evidence to contradict the prosecution stand that the deceased was coming from Rawalpindi at the time of occurrence is provided by the inquest report. According to this nothing was recovered from the dead body of the deceased. Shoes of the deceased were not found near the dead body.
The deceased was not carrying any article such as bag. No ticket of the bus was found from his pocket nor any sum of money was found on his person. Had the petitioner been returning from Rawalpindi as alleged by the prosecution he ought to have been very properly dressed and must be carrying some paraphernalia showing him to be a traveller. The physical evidence in this case strongly negates the prosecution stand that deceased was returning from Rawalpindi when he was attracted by the appellant.
11. The F.I.R. In this case was lodged by Imtiaz Begum wife of the deceased which is quite unusual in this area. The deceased was a permanent resident of the village and had many relatives in the village but none of them went to lodge report. The version of the defense is that Imtiaz Begum was not present in the village but had gone to her parents to next village. And she was informed there and then she reported the matter to police. The view of the defence in this regard does not appear to be improbable. The other eye-witness of the case is Abdul Aziz who admittedly was working as lineman in the village three miles away. No reason has been given by him as to why he was not present at the place of his duty and secondly that what was the occasion for him to have come to the house of the deceased. This witness appears to be a chance witness and his presence at the spot is ruled out. The house of the deceased and the appellant are situated at some distance from each other. The defence version is A that deceased had illicit relations with the wife of the appellant and that he was found in compromising position with her on which he was done to death. This version appears to be more probable as compared to the prosecution case which has been held to be doubtful. According to prosecution own story the deceased should have been present in the house on Saturday, the day on which the occurrence took place. The apparel being worn by him did not show that he was travelling from Rawalpindi to village. One ground urged by the complainant and the State to support the prosecution version in this regard was that blood- stained earth was recovered from the street and not from the house of the appellant. But the appellant had left the house after the incident as admitted by the prosecution though the stand of the parties varies in this regard but in all probability deceased was removed from the house of the appellant and was placed outside in the street and since he had bled profusely the blood-stained earth could have been taken from the street as well but this circumstance alone does not negate the defence version. Therefore, the defence version submitted by the appellant is held to be correct version of the incident as it fits into ambient circumstance of the case adequately.
12. Now question arises as to what sentence should be awarded to the appellant. Before the Pakistan Penal Code was amended in 1990 cases of this nature where grave and sudden provocation was proved were punished under section 304, Part I, P.P.C. And normally very light sentences were awarded. 'There is authority on the subject that position has not undergone any charge.
13. In Mst. Bashiran v. The State 1994 PCr.LJ 908 where the appellant had acted under grave and sudden provocation and murdered the deceased with kitchen knife and had undergone the sentence of two years and two months only his sentence was reduced to that already undergone.
In Ghulam Yasin and 2 others v. The State PLD 1994 Lah. 392 it was held that the provision of section 338-F of the P.P.C. Do give some authority in Courts to notice the Injunctions of Islam on the subject of Qatl on account of Ghairat and to take benefit of the same while dealing with such cases. It was further held that a Qatl committed on account of Ghairat is not the same thing as Qatl-e-Amd pure and simple and the persons found guilty of such Qatl do deserve concession which must be given to them. The least that can be done in the present stage of law is to convict such-like persons guilty of Qatl-e-Amd committed on account of Ghariat, under clause (c) of section 302, P.P.C., as such, a Qatl cannot be said to be punishable with Qisas as per Injunctions of Islam. In Ali Muhammad v. The State 1993 PCr.11 557 the facts of which case are quite near to the present one, the appellant who had killed the deceased while he was engaged in sexual act with his wife was done to death, was acquitted.
14. Beside the above precedent there is a tradition of Hazrat Umar. A man was brought to Hazrat Umar by relatives of another person saying that he had killed their brother. When Hazrat Umar inquired from the accused he admitted the occurrence by saying that he had given a stroke by his sword to the thighs of his wife and if their man was in those thighs he was not at fault. Hazrat Umar at this asked the person who had brought the accused to him, whether the statement of the accused was correct and they acknowledged that the accused was saying right thing. Hazrat Umar asked them to let the man go. The accused was let off and was not awarded any punishment (Fiqh-us-Sunnah by Syed Sabiq, Vol.2, P.579 published by Darul Kut'b, Beirut, 1979).
15. For foregoing reasons it is held that the appellant had committed no offence in the facts and circumstances of the case and resultantly he is acquitted. The revision petition filed by the complainant stands dismissed.