' RAJA MUHAMMAD KHURSHID, J.---The appellant was convicted under section 302, P.P.C. And sentenced to death on two counts for committing the murder of Zia Ullah and Mst. Perveen on the night of 29-3-1992 at about Sehri Wela within the area of village Bhedian Khanpur, District Kasur vide judgment dated 26-11-1992 passed by Sardar Ghulam Farid, the then learned Sessions Judge, Kasur. The appellant was also sentenced to fine of Rs,2,000 on two counts or in default to further undergo one year's S.I. On each count. He was further directed to deposit Rs,20,000 on each count which if deposited was to be paid to the legal heirs of the deceased persons as compensation failing which he would suffer further S.I. For six months each.
2. The learned Sessions Judge also made reference under section 374, Cr.P.C. For the confirmation of aforesaid death sentences passed upon the appellant.
3. Briefly stated a brother of the deceased made a report to the police that his brother Zia Ullah was done to death at about Sehri Wela when he had gone to the tubewell for irrigating the land. On reaching the spot the complainant and his brother-in-law Asghar Ali P.W. Heard noise of " " and saw in, the light of an electric bulb that the appellant along with one other who remained unidentified were giving Chhuri blows to the deceased. The tried to intervene but were threatened.
The accused allegedly escaped after brandishing Chhuri. Zia Ullah deceased and Mst. Perveen, a sister of the appellant were found fatally injured at the spot and both of them succumbed to the injuries. The motive as alleged in the E.I.R. Was that Zia Ullah and the appellant had some quarrel on the preceding " " in which the appellant had threatened the deceased that if The latter came to the side of Sanda Phatak he will have to lose his life.
4. The prosecution examined 13 witnesses to prove its case against the appellant. It included the medical evidence, witnesses relating to ocular account and the recovery witnesses of the weapon of offence i,e, Chhuri recovered from the appellant. It may be pointed out that the other assailant mentioned in the F.I.R. Was never caught or brought to book. The appellant was examined under section 342, Cr.P.C. In which he denied that he had committed the offence. On the contrary he alleged that he was falsely implicated in this case and was substituted for the real culprits namely Hasan and his son who had in fact developed enmity with Zia Ullah deceased who had contracted Nikah with Mat, Shakila, a daughter of aforesaid Hasan but was not willing to consummate marriage with her by bringing her to his home as his wife. The deceased had also numerous enemies because of his immoral habits and any one of such enemies killed him during darkness of night. The occurrence remained unseen but he was made a scapegoat,
5. The learned counsel for the appellant contended that it was an unseen occurrence as the eye- witnesses were allegedly not present nor they had actually seen the murders; that it has not been made clear by the prosecution as to how Mat. Perveen had come to the place of occurrence at the dead of night putting on nice clothes and ornaments; that how she was present with the deceased being a stranger to her. It was, therefore, contended that the prosecution had suppressed the true facts regarding the occurrence.
6. According to the learned defence counsel, the appellant surprised the deceased when they were flagrant delicto. As such it was alleged to be a case of grave and sudden provocation which compelled the appellant to commit the unfortunate occurrence. In this respect it was alleged that deceased Zia Ullah was found without Shalwar and anybody seeing one's womanfolk, such as sister, with a stranger at a deserted place during dead of night would lose his self control and blood will come to his eyes depriving him of the normal and logical faculty of his mind. For a moment the faculty of one mind would be totally paralysed on seeing such shameful scene. Such a provocation is the gravest of provocations which a mortal man can receive, is universally acknowledged, and the Courts are, therefore, specially lenient with an offender who avenges such insult by slaying the adulterer or fornicator of his female relative. Even in Islam such situation would not be permissible nor one's honour will allow such a shameless affair to be seen by an Ehl-e- Eman without losing normal faculty of mind for a moment. It was, therefore, argued that although the appellant had not taken a specific plea that he had caused killing of his sister and her paramour on seeing them in a situation explained above, but the Court had to analyse the whole facts and to deduce a conclusion therefrom irrespective of the fact whether such plea was taken or not. It was, therefore, contended that it was not Qatl-eAmd so as to warrant the maximum penalty and would squarely fall within the parameter of section 302(c), P.P.C. In this respect reliance was placed on 1993 PCr.LJ 557 Lahore, the principle of which was later approved in PLD 1996 SC 274 by establishing that the right to act as " r I " must receive a construction most beneficial to the widest possible amplitude of that right, thereby departing from the principle enunciated in 1992 PCr.LJ 1596 (Supreme Appellate Court) whereby it was held that the plea of grave and sudden provocation could not have been given effect, so as to make the case of the accused to fall within the ambit of clause (c) of section 302, P.P.C. The pronouncement of the principle laid in PLD 1996 SC 274 was evolved after discussing the wide range of case-law including the law revealed in the Holy Qur'an, and different books of Islamic Jurisprudence.
7. The learned counsel for the State, however, contended that the life having priority over the honour would not give a right to an offender to take the life of a fornicator even under grave and sudden provocation; that the appellant in this case never took a special plea that he had acted under grave ,md sudden provocation and as such he cannot take the advantage of the aforesaid plea nor the same can be pressed during arguments to be raised in appeal; that the defence taken in the trial Court was totally different than the plea of sudden provocation raised during the hearing of this appeal and as such cannot be given any credence and that the eye-witnesses have proved that the murders committed by the appellant were not only cruel, but gruesome and had a motive behind them. The recovery of weapon of offence i,e, blood-stained Chhuri further linked the accused with the occurrence, which provided corroboration to the ocular account of occurrence. Hence it was alleged that there was no escape for the appellant from the above situation. The conviction and sentences passed upon him, therefore, were requested to be maintained under the situation.
8. We have heard the learned counsel for the parties and have also gone through the record carefully. Eye-witnesses are closely related to the deceased Zia Ullah, but it is no ground to discard their testimony as the same has been corroborated by the recovery of weapon of offence at the instance of the appellant; hence it cannot be said that either the eye-witnesses were chance witnesses or had implicated the accused falsely in this case on account of some enmity. However, the motive alleged by the prosecution seems to be too weak under the given circumstances, nor it would provide a convincing cause that the appellant would kill his own sister alongwith the deceased Zia Ullah. It is particularly so because the other accused, who remained unidentified was never brought to book. In such a situation any normal mind of an average person would be put on inquiry as to how and under what circumstances Mst. Perveen had reached the tubewell of the deceased Zia Ullah at the dead of the night. One of the Investigating Officer had admitted that in the report under section 173, Cr.P.C. It was mentioned that there was illicit liaison between the two deceased. In the backdrop of the situation it can be easily understood that the presence of Mst.
Perveen with a stranger at a lonely place at the dead of the night would show that there was some foul play which brought them together out of home. It is particularly so when it is in evidence that the deceased was found without Shalwar at the place of occurrence after he was fatally wounded.
The number of injuries on the persons of both the deceased would show that the assailant .Had lost control over himself by witnessing the paramour of his sister without Shalwar, at a lonely place during odd hours of the night, and therefore, heedlessly, assaulted both the flagrant delicto. Even the observation made by the learned trial Judge would show that Mst. Perveen had come to the spot after preparing herself to meet her paramour by putting attractive clothes and ornaments in order to add to her charm and attraction. The observation made by the learned trial Judge is as follows: "It is conceded by all that Mst. Perveen deceased is the sister of Barkat accused and she had no legal relationship with Zia deceased. The perusal of the dead body of Mst. Perveen,. And thereafter the production of her last-worn blood-stained clothes including the ornaments and wrist-watch on her right hand, before the police show that she had come to the tubewell of Zia Ullah after having made preparation for any foul play like fleeing away with him. The last-worn blood-stained clothes of the dead body of Zia Ullah also suggest the same. The presence of the two at odd time of the night at the tubewell concerned, situated nearly in a jungle also inferred an abnormality so also showing some liaison between them."
9. After taking into account the above observation of the learned trial Judge and the evidence brought on record, it becomes crystal clear that in fact both the deceased had assembled for love making and were surprised by .The appellant who lost self-control to finish them with a traditional weapon of Chhuri. It, therefore, does not seem to be a case of Qatl-i-Amd falling within the purview of clauses (a) and (b) of section 302, P.P.C. It would rather fall under clause (c) of section 302, P.P.C., as held in PLD 1996 SC 274. The conviction of appellant is, therefore, altered from clause (b) of section 302, P.P.C. To clause (c) of section 302, P.P.C. The death sentence on both the counts is accordingly not confirmed.
10. The sentence in this case is not difficult. We have already made observation that keeping in view the attending circumstances of the case and the norms prevalent in our society any reasonable person in a situation like this would lose his self-control and the present case is no exception to the aforesaid universally acknowledged phenomenon. We therefore, sentence the appellant under clause (c) of section 302, P.P.C. To the imprisonment of 10 years' R.I. On two counts for the murder of deceased namely Zia Ullah and Mst. Perveen each. The sentences shall run concurrently. The sentence of fine passed by the learned trial Judge not being maintainable under section 302, P.P.C.
Is set aside. We however, feel that the amount of compensation of Rs,20,000 fixed by the learned trial Court is inadequate. A notice for its enhancement is accordingly given to the appellant, who has accepted it. After hearing on this point we have come to the conclusion that it will be just and proper that proportionately adequate compensation be awarded in this case. We accordingly enhance the compensation from Rs,20,000 on two counts to Rs,50,000 on two counts, which shall be paid to the heirs of the deceased as required by the provisions contained in section 544-A, Cr.P.C. The appeal is dismissed with the above modification in the conviction, sentence and compensation. The appellant shall be entitled to the benefit of section 382-B, Cr.P.C.
11. Death sentence of the appellant is not confirmed. The Murder Reference No,443 of 1992 is accordingly decided.