' The appellant Muhammad Ishaq (30) was tried under section 302, P.P.C. For the murder of Muhammad Yousaf (20/21) by the learned Additional Sessions Judge, Depalpur. Learned trial Court vide its judgment, dated 5-1-1995 while convicting and sentencing the appellant, held as under: "Ordinarily, the accused would not have deserved any leniency but I find that at the time of committing the murder of Muhammad Yousaf, the accused was overpowered with some element of 'Ghairat' as he was certain about his sister Mst. Nargis having illicit relation with the deceased. A day prior to the occurrence, his sister Mst. Nargis went to the house of the deceased Muhammad Yousaf after some altercation with her parents. She was brought back by her mother and even the complainant had to concede that the accused had been considering his sister Mst. Nargis to be on illicit terms with the deceased. The accused not only murdered Muhammad Yousaf but on the next day, he is also alleged to have killed his own sister Mst. Nargis. As observed above, this is not a case of sudden provocation but of course, an element of Ghairat' does exist under which the accused put both his sister and her paramour to death. As such, I feel compelled to take a lenient view in the matter of sentence. Accordingly, while convicting accused Muhammad Ishaq under section 302(b), P.P.C., he is sentenced to suffer imprisonment for life. He is also directed to pay a sum of Rs,25,000 (twenty-five thousands) as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased Muhammad Yousaf. In default of payment of compensation, he shall further undergo R.I. For six months."
2. The appellant has filed Criminal Appeal No,153 of 1995 challenging the legality of his conviction and sentence.
3. A case F.I.R. No,400 of 1993 (Exh.P.C.) was registered at Police Station Haveli, District Okara on 3- 10-1993 at 6-20 p.m. On the statement of complainant Ali Muhammad P.W.3 (father of the deceased) which was recorded by Ahmad Ali, S.-I. P.W.9.
4. The prosecution case as narrated in the F.I.R. Is that the complainant Ali Muhammad son of Dost Muhammad, Caste Khokhar Kumhar, was resident of Mohallah Peer Islam and was an agriculturist by profession, his son Muhammad Yousaf deceased also joined him in the same profession, the appellant Muhammad Ishaq alias Baig, Caste Jat, was also resident of the same Mohallah and a day prior to the occurrence on 2-10-1993 at about 5-00 p.m. Mst. Nargis, sister of the appellant after having developed differences with her parents came to the house of the complainant, she was chased by her mother who took her back to her home, on this the appellant developed a suspicion that Mst. Nargis was having illicit relations with the complainant's son, Muhammad Yousaf deceased. On the day of occurrence, at about 5-30 p.m. While the complainant and Bashir Ahmed P.W.4 were on their way home from the graveyard and the deceased Muhammad Yousaf was going ahead of them and they saw that the appellant was coming from the opposite direction towards the deceased and as soon as he reached near the deceased, he took out a Chhuri from his trousers (Shalwar) and after having caught hold of the deceased from the collar of his neck, inflicted a Chhuri blow on his abdomen and thereafter, inflicted many Chhuri blows on his chest, right shoulder near his neck and on abdomen. The deceased Muhammad Yousaf fell down on the ground and died on the spot. The complainant and Bashir Ahmad P.W.4 tried to apprehend the appellant but the appellant made his escape good while brandishing the knife and threatening the complainant. It is also narrated in the F.I.R. That the occurrence was also witnessed by one Muhammad Sharif (not produced).
5. Ahmad Ali, S.-I. P.W.9, recorded the F.I.R. (Exh.P.C.), visited the spot at once, prepared the inquest report Exh.P.G., injury statement Exh.P.H., despatched the dead body to the mortuary for autopsy, prepared site plan P.1, collected blood-stained earth from the spot P.D., recorded the statements of the P. Ws. Under section 161, Cr.P.C., took into possession the last worn clothes of the deceased which were produced before him by Muhammad Mansha Constable P.W. On 4-10-1993 vide memo.
Exh.P.B., arrested the appellant on 5-10-1993, while in police custody on 10-10-1993 the appellant led to the recovery of blood-stained Chhuri P.3 from his residence which was taken into possession by him vide memo. Exh.P.F. He got prepared site plan Exhs.P.A. And P.A./1 from the Draftsman on 12-10- 1993 and after the necessary investigation, submitted the challan in the Court.
6. The appellant was charged under section 302, P.P.C., to which he pleaded not guilty and claimed trial. The prosecution has produced as many as nine witnesses.
7. P.W.1 Abdur Rashid Draftsman prepared site plan Exhs.P.A. And P.A./1. P.W.2 Muhammad Iqbal identified the dead body and also attested the memo. Exh.P.B. Relating to the last-worn clothes of the deceased. P.W.8 Ghulam Murtaza, Head Constable received the sealed parcels of blood- stained earth on 3-10-1993 and a blood-stained Chhuri on 10-10-1993 handed over both of them respectively on 10-10-1993 and 24-10-1993 to P.W.6 Muhammad Abbas, Constable who delivered them in the Office of Chemical Examiner, Lahore respectively on 11-10-1993 and 25-10-1993.
8. P.W.5 Dr. Abid Mahmood conducted the post-mortem on the dead body of the deceased on 4- 10-1993 at 8-30 p.m., observed that it was the dead body of a young man, thin but muscular physique, clothes were completely stained with blood, shirt bore corresponding holes and found the following injuries:-- "(1) Stab wound 4 c.m. x 3 c.m. On the base of right side of neck, going deep into the chest cavity.
(2) A stab wound 3 c.m. x 1 c.m. Horizontal on the middle of front of chest which went into the chest cavity after passing through the central chest bone.
(3) A stab wound 3 c.m. x 2 c.m. Verticle going deep into the cavity of left chest 1 c.m. Above left nipple.
(4) Three number of stab wounds in horizontal row each. Measuring 3 c.m. x 2 c.m. Spindle shape on the middle of upper most part of abdomen. All leading into abdominal cavity and chest.
(5) A stab wound 3 c.m. x 2 c.m. Going into the cavity of abdomen on the front of right side of abdomen, 4 c.m. Below injury No,4.
(6) Two stab wounds 1/2 c.m. Apart on the front of right side of abdomen middle part. Both measuring 3 x 2 c.m. And leading to the abdominal cavity.
(7) Small stab wound 1/2 c.m. x 1/2 c.m. Muscle deep on the back of middle of left chest."
' He opined that all the injuries except injury No,7 were dangerous to life and were caused by sharp- pointed weapon. He also declared that all the injuries were ante-mortem and all of them except injury No,7 were incompatible with life in the ordinary course of nature. The time between injuries and death was immediate and between death and post-mortem report was between 12 to 18 hours.
9. The complainant Ali Muhammad P.W.3 has reiterated the prosecution story as narrated by him in the. F.I.R. And Bashir Ahmed P.W.4 also supported the prosecution version.
10. The prosecution gave up Muhammad Sharif P.W. As having been won-over and Muhammad Mansha and Jaffer P.Ws. As being unnecessary, tendered in evidence reports of Chemical Examiner Exhs.P.J. And P.K. And that of Serologist Exh.P.L. And closed its case.
11. The statement of the appellant was recorded under section 342, Cr.P.C. Who denied the prosecution allegations and in answer to a question stated as follows: "I am innocent. I have been falsely involved in this case due to suspicion. The P.Ws. Have falsely involved me who are relatives of the complainant party. In fact, mother of Muhammad Yousaf deceased had demanded the hand of my sister Nargis for her son but my family refused to do so.
Two days prior to this occurrence, my sister Mst. Nargis was abducted by Amina Bibi due to our refusal of her hand. Muhammad Yousaf deceased was a man of bad character and was murdered by some unknown persons. My sister Nargis Bibi was also murdered after two days of this occurrence by Amina Bibi, Muhammad Amin and Muhammad Mansha. I have been involved due to suspicion."
12. The appellant refused to appear as his own witness under section 340(2), Cr.P.C., tendered in evidence copy of judgment dated 23-11-1993 of Additional Sessions Judge, Depalpur Exh.D.A., statement of Muhammad Sharif P.W. Exh.D.B. And statement of Muhammad Afzal P.W. Exh.D.0 and closed the defence evidence.
13. The perusal of the judgment dated 23-11-1994 (Exh.D.A.) shows that the appellant's sister was murdered on 4-10-1993 and the appellant was tried for her murder and as the witnesses of extra- judicial confession did not support the prosecution version, he was acquitted by the trial Court under section 265-K, Cr.P.C.
14. Learned counsel for the appellant has not challenged the conviction of the appellant and has submitted that the evidence available on the record shows that the appellant suspected his sister for having illicit relations with the deceased and acting in Ghairat, killed her as well as her paramour and in these circumstances the sentence of life imprisonment is harsh and excessive.
Learned counsel has placed his reliance on Fateh Muhammad alias Fattu v. The State PLD 1967 Lah.
579, Imanullah and another v. The State 1996 PCr.LJ 1095, Ghulam Farid v. The State 1997 PCr.LJ 1411, Akbar v. The State 1997 PCr.LJ 1887 and Muhammad Ayub v. The State 1997 PCr.LJ 2056.
15. On the other hand, learned counsel for the State while opposing the appeal and supporting the conviction and sentence, has submitted that the element of Ghairat is not apparent as it is not a defence plea and such prosecution allegations of appellant suspecting his sister of having illicit relations with the deceased have been denied by the defence. Learned counsel for the State has also placed his reliance on The State v. Abdul Waheed and another 1992 PCr.LJ 1596 and Abdul Haque v. The State PLD 1996 SC 1.
16. I have heard the learned counsel for the appellant, the State and have also seen the record.
17. The argument of the learned counsel for the State that the element of Ghairat is not apparent, has no force as it is the prosecution case itself that the appellant suspected of illicit relations of his sister Mst. Nargis with the deceased and for this reason he committed the murder. This version also finds support from the occurrence of day after in which the appellant's sister Mst. Nargis was murdered and the appellant was tried for her murder as well. After having gone through the entire evidence, I am convinced that the appellant acted in Ghairat and the question is whether the conviction of the appellant under section 302(b), P.P.C. And his sentence of life imprisonment as recorded by the trial Court is justified in the circumstances.
18. In The State v. Akbar PLD 1961 (W.P.) Lah. 24, it was held that "Considering the moral values and notions of honour and chastity, as well as social customs, which prevail in the society in this country, particularly among the respectable families in the rural areas, it must be regarded as provocation of the gravest kind for a man to actually witness the degrading spectacle of a woman of his family being subjected to illicit intercourse. If he loses self-control under the impact of such grave and sudden provocation and assaults the person responsible for bringing this disgrace to him and his family, his act is clearly such as requires to be viewed in a light different from that in which ordinary criminal acts are regarded. It would follow, therefore, that the punishment to be meted out in such a case would have to be measured by a different yardstick. It is for this reason that Courts are reluctant to impose heavy punishments on such offenders. It is not easy to prescribe any particular period of punishment which may apply as a general rule in such cases, nor is it desirable to do so, but it would appear that a sentence of a few months' rigorous imprisonment should generally meet the ends of justice in most cases". Likewise, in Muhammad Sadiq v. The State PLD 1966 (W.P.) Lah. 104, a sentence of two years' rigorous imprisonment was awarded to an accused who having seen his maternal-uncle's wife and the deceased making love to each other while lying on same cot, killed the deceased and, his conviction under section 302, P.P.C. Was altered to one under section 304, Part I, P.P.C. Holding the case to be one of grave and sudden provocation. In Fateh Muhammad alias Fattu v. The State (supra), a Division Bench of this Court while sentencing the accused-appellant to just three years' R.I. Under section 304, Part I, P.P.C., held that "The conduct of the woman shows that she was not prepared to abandon her criminal relations with Muhammad Din P.W., and she proposed continuing her course of misconduct in the husband's house. This conduct must have been and was causing extreme agony, shame and humiliation to the appellant. This wicked conduct of the woman cannot .Be lost sight of and must be taken into consideration. This, we think, amounted to provocation grave enough and sudden enough to deprive the appellant of his self-control, and in our opinion the provocation received by the appellant was in the circumstances almost as "grave and sudden" as it would have been had the appellant seen the deceased in the act of sexual intercourse with Muhammad Din." In Imanullah and another v. The State (supra), this Court reduced the sentence from 10 years to 4 years' R.I. Of the accused who having seen both the deceased in a pari declicto position lost power of self-control and acting under grave and sudden provocation fired at them causing their death.
' Likewise, in Ghulam Farid v. The State (supra), learned Single Bench of this Court while referring to some citations on the point has also mentioned a tradition of Hazrat Umar, according to which "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".
' In Akbar v. The State (supra), not only the sentence of imprisonment for life was reduced to five years' R.I. But also the legal heirs of the deceased were held to be disentitled to any compensation because of the deceased being involved in an immoral activity with the convict's daughter. In Muhammad Ayub v. The State (supra), this Court while dealing with the plea of Ghairat as the accused killed his own wife on seeing her in an objectionable position with another person, reduced the sentence of 25 years' R.I. To 5 years' R.I. And held that "I have also considered the aspect from this angle that the appellant is an uneducated young man belonging to a tribe and area where no loose conduct of a female is tolerated and family honour is relishly guarded.
Furthermore, the appellant is in such an age group where tolerance is nonexistent and rashness is the order of the day irrespective of the ensuing consequences".
19. The citations, referred to above, have a tendency to justify imposition of lesser penalty for an offence involving element of Ghairat. On a careful consideration of the facts and the evidence of the present case, I am of the firm view that the appellant acted under Ghairat, for which he deserves to be dealt with from an angle different from one normal criminal acts are treated and in these circumstances smaller sentence would meet the ends of justice.
20. In view of the above discussions, the conviction of appellant Muhammad Ishaq under section 302(b), P.P.C. Is altered to that under section 302(c), P.P.C. And the sentence for imprisonment for life is reduced to 5 years' R.I. However, the compensation of Rs,25,000 to be paid to the legal heirs of deceased Muhammad Yousaf as recorded by the trial Court is maintained, but, in default of payment of compensation, the appellant shall suffer S.I. For six months and not R.I. For six months.
The appellant shall also be entitled to the benefit of section 382-B, Cr.P.C. The appeal stands disposed of accordingly.