' MUHAMMAD NAWAZ ABBASI, J.--- Hassan Bakhsh and Muhammad Ramzan sons of Jan Muhammad alongwith their real brother Jindwada and father Jan Muhammad (both acquitted) were tried upon the charge under section 302/337-A/34, P.P.C. For the allegation of committing the murder of Muhammad Musa, brother of Haji Muhammad complainant, by the Additional Sessions Judge, Lodhran, who vide judgment, dated 15-6-1993 convicting Hassan Bakhsh and Muhammad Ramzan appellants sentenced them to death and life imprisonment, respectively, and acquitted them from the charge under section 337-A, P.P.C. Learned trial Judge giving benefit of doubt to the remaining two accused, namely, Jan Muhammad and Jindwada, acquitted them from all the charges. The appellants have challenged their conviction and sentence through Criminal Appeal No,200 of 1993 and Haji Muhammad complainant through Criminal Revision No,174 of 1993 has sought enhancement of sentence of Muhammad Ramzan appellant. The trial Court has sent Murder.
' Reference No,202 of 1993 under section 374, Cr.P.C. To this Court for confirmation of death sentence awarded to Hassan Bakhsh. All these matters are disposed of together through this single judgment.
2. According to the prosecution, the occurrence in the present case took place at 2-00/2-30 p.m.
On 4-10-1990 in the cotton field in the village Koundi within the area of Police Station City, Lodhran.
The report was lodged by Haji Muhammad (P.W.3) through F.I.R. (Exh.P.B.) on the same day at about 3-30 p.m. With Police Station City Lodhran situated at 5 k.m. From the place of occurrence. As per facts narrated therein, the appellants and their co-accused having suspicion of illicit relations of Muhammad Musa deceased with Mst. Bashiran daughter of Jan Muhammad (acquitted accused) and sister of the appellants, suddenly on the day of occurrence emerging from the cotton crop attacked upon the deceased Jan Muhammad (acquitted accused) allegedly inflicted a blow on the forehead of the deceased with a brick, who fell down whereupon Jindwada, the other acquitted accused, caught hold of him from his feet and Muhammad Ramzan while sitting on his chest strangulated him. Hassan Bakhsh appellant was assigned the role of squeezing the testicles of the deceased. Jan Muhammad and Jindwada acquitted accused upon intervention of complainant statedly caused him fist and kick blows. The occurrence was witnessed by Sadiq Muhammad and Mukhtar Hussain in addition to the complainant.
3. Hassan Bakhsh appellant in his statement under section 342, Cr.P.C. Has admitted the occurrence with his participation in the following manner:-- "On the day of occurrence about 2-30 p.m. Buffalo of deceased Muhammad Musa trespassed into my crop and damaged the same, rounded up buffalo of deceased and started taking the same to cattle pond, when I started taking buffalo to cattle pond deceased Muhammad Musa reached there and he tried to snatch away buffalo from me. Muhammad Musa started grappling with me.
He caught hold of me from my neck and started pressing. I fell down. Because of pressing my throat I felt that death will take place I gave a kick blow to deceased in order to save myself. My kick blow, however, hit the testicles. After receiving kick blow on the testicles Muhammad Musa fell down on the ground and he died there and then. Such occurrence was witnessed by Sahibyar and Muhammad Ramzan. Neither complainant Haji Muhammad nor P.Ws. Muhammad Mukhtar and Muhammad Sadiq were present at the spot. My co-accused Jan Muhammad, Jindwada and Muhammad Ramzan were not present at the spot. They had not participated in the occurrence.
Myself and my co-accused have falsely been implicated in this case by the police under the influence of Muhammad Saddique Baluch, M.P.A. As we were supporting P.P.P. And had opposed Muhammad Saddique M.P.A. Self-suffered injury were made on the person of Haji Muhammad in order to show his presence at the spot. The allegation that deceased was suspected of having illicit connection with my sister Mst. Bashiran is totally false. My sister was married about 15/16 years before. She is mother of four children and is residing about one and half mile away from our house."
' He in support of his version produced Sahib Yar as defense witness. The remaining accused denying their presence and participation in the occurrence pleaded false implication.
4. The defense version having disbelieved, the learned trial Judge giving weight to the prosecution story of the F.I.R. Supported by eye-witnesses and also seeking corroboration from medical evidence found Hassan Bakhsh and Muhammad Ramzan appellants guilty of the charge. They were accordingly convicted and sentenced under section 302/34, P.P.C.
5. The post-mortem examination of Muhammad Musa conducted by Dr. Muhammad Ismail revealed the injuries of the following description on the dead body:--
(1) A contusion 3 c.m. x 1 c.m. On the right side of forehead.
(2) Multiple abrasions of various sizes on right side of neck. On dissection slight congestion of the underlying tissue hyoid bone fractured.
(3) Testicles were swollen on dissection congestion and hemorrhage spots were present.
' Injury No,3 on testicles was declared the cause of instantaneous death.
' The medical examination of Haji Muhammad complainant revealed five simple injuries of the nature of contusion and lacerated wounds.
6. Haji Muhammad (P.W.3), complainant and real brother of Muhammad Musa deceased giving the detailed narration of the occurrence as disclosed in the F.I.R. Deposed that all the accused emerging from the cotton field and suddenly catching the deceased, attacked on him. Jan Muhammad striking brick on the head of the deceased, fell him down on the ground Jindwada, acquitted accused, caught hold of him from the feet, whereas Muhammad Ramzan while sitting on his chest strangulated him and Hassan Bakhsh pressed his testicles. The reason in the background for the occurrence as stated was the suspicion of illicit relations of Muhammad Musa with Mst.
Bashiran, daughter of Jan Muhammad, acquitted accused and real sister of appellants.
' Mukhtar Hussain (P.W.4) giving ocular account of the incident has fully supported the prosecution version. The defense despite lengthy cross-examination to the eye-witness has not been able to bring anything on record contradictory or in confrontation to the story pleaded by the prosecution and create doubt in favor of defense. The trial Court while judging the 'punter-story introduced by the defense found no plausibility therein to accept the same.
7. The material facts of the case pertaining to the place and the time of happening the occurrence and the manner of receiving the injuries by the deceased on testicles except that the presence of Muhammad Ramzan appellant and two acquitted accused at the spot and that the occurrence was the result of quarrel between Hussain Bakhsh appellant and the complainant upon causing damage to the crop of the appellant by the cattle of complainant are admitted. As per defense plea, the occurrence was not premeditated, which took place suddenly and during the quarrel, the deceased as a result of receiving kicks blows on his testicles died.
8. Learned counsel for the appellants contended that admittedly the accused were empty-handed and the circumstance under which the occurrence happened and the manner of causing injuries with fists and kicks and use of brick strongly suggested it a sudden occurrence with no element of premeditation. He forcefully argued that visualizing the situation in the normal course, the possibility of having seen the deceased by the appellants in the company of Mst. Bashiran being not ruled out, they loosing self-control 'under grave and sudden provocation caused him kick and fist blows and Hussain Bakhsh picking brick-bat struck on his head and Suring the course of quarrel, the deceased receiving injuries on testicles, a sensitive part of body could not, survive. He placing reliance on Ali Muhammad son of Noor Muhaifmiad v. Ali Muhammad son of Wali Muhammad and another PLD 1996 SC 274 and The State v. Muhammad Hanif and 5. Others 1992 SCM R 2047 argued that there being no intention to kill, the offence being not definable an act, of murder falling within the purview of section 302(b), P.P.C. And that the same being confined only to the extent of knowledge would be covered under section 302(c), P.P.C. Which contains all exceptions to section 302(a) and (b), P.P.C. And consequently in such cases the nominal sentence of imprisonment for a term not more than ten years is awarded and prayed for reduction of sentence equal to the period of more than seven years already spent by the appellants in jail as convicts and under-trial prisoners by giving them benefit of section 382-B, Cr.P.C.
9. Conversely, learned counsel for the complainant argued that keeping in view the background of motive of suspicion of illicit relations and the nature of injuries of squeezing the testicles and strangulation commonly known as dangerous to life would prove the intention fixing the liability of Qatl-e-Amd punishable under section 302(b), P.P.C. And no exception having created or pleaded as such, the provisions of section 302(c), P.P.C. Are not attracted for the purpose of sentence.
10. Learned State counsel adopting the arguments advanced by the learned counsel for the complainant supported the conviction and sentence award to the appellants by the learned trial Judge.
11. We have examined the evidence in detail and perused the record with the help of the learned counsel for the parties and also heard them at length.
12. The totality of the facts under examination with the background of illicit liaison of the deceased with Mst. Bashiran a lady of the family of the appellant could plead provocation due to the family honor but even in case of visualizing such possibility, the element of sudden and grave provocation being not traceable, the same cannot be sound in favor of the appellants. The defense having denied the motive has excluded even the plea of simple provocation as a result of injury to their honor and dignity. The defense plea of sudden quarrel between Hussain Bakhsh and the deceased in the nature of admission produced a corroborating circumstance in support of prosecution version of the case as the occurrence might be result of provocation due to unjustifiable conduct of the deceased which having developed hatred and grudge in the mind of the appellants furnished motive for the occurrence, but .There being no allegation or evidence of having seen the deceased committing any objectionable act on the fateful day or at any time before that day, the element of grave and sudden provocation being missing, the same cannot be pleaded on the basis of presumption. The defense version despite running counter to the prosecution does not bring a distinctive story to dislodge the prosecution version. Tie possibility of provocative occurrence on account of losing self-control must be supported through the positive circumstances and not on the basis of presumptive assumptions. The mere fact that the accused were unarmed by itself is not enough to bring the case from the purview of murder. However, the material fact relating to the immediate cause for the occurrence having withheld is not known, therefore, the possibility of happening something suddenly leading to the occurrence is not ruled out to exclude the application of section 302(c), P.P.C. The explanation to the section 300, P.P.C.
(old) being no more available on the statute book as such is embodied in clause (c) of section 302, P.P.C. Providing sentence which may extend to 25 years. The normal punishment of Qatl-e-Amd as Qisas under section 302(a) and as Ta'zir under section 302(b), P.P.C. Provided therein is the death penalty, whereas the eases with some exceptions not strictly falling within the definition of Qatl-e- Amd are punishable under section 302(c), P.P.C. With sentence of either term as provided therein on the facts of an individual case. The implied inclusion of exceptions to section 302(a) and (b), P.P.C. In section 302(c), P.P.C. Will definitely distinguish the cases visa-a-visa the quantum of sentence, which depends upon the nature of transaction and gravity of offence relating to the mental state of affair of the wrong doer and the men's read to commit a criminal act. The gravity of provocation would definitely reduce and cooled down to the normal condition with the interval of some time and if a wrong doer still persists to go for a criminal act, the same would be the result of development of element of revenge and not the state of affairs of only grave provocation. The illicit liaison of the deceased with Mst. Bashiran was not in the direct knowledge of the complainant, rather the same suspiciously being in the mind of appellant, could compel him to take revenge in consequence thereof. Therefore, the prosecution story does not properly represent the, correct state of affairs regaling the immediate reason for taking the action by the empty-handed appellants, at the relevant time. If it had been a presonsulted and pre-arranged occurrence, the appellants must not be empty-handed and the deceased must not be only dealt with fist and kick blows. Thus, keeping in view the circumstances, under which the occurrence took place, it can conveniently be visualized that the possibility of happening something unnatural suddenly concurring with the alleged objectionable and immoral conduct of the deceased is not ruled out.
Consequently, the transaction would not be constituted an offence of Qatl-e-Amd definable under section 302(a) or (b), P.P.C. Liable to be punished as Ta'zir, as the case may be, and the same would fall within the ambit of section 302(c), P.P.C. The actual disgracing and insult and the correspondence duty of the male members of the family to protect and gent their ladies for preservation of their dignity and honor and not to allow any excess to them being distinguishable cannot be equally a source of provocation of the nature justifiably conferring the exercise of right of taking life of a wrong doer.
13. We, therefore, will not be wrong in saying that plainly the act of appellants would be the result of provocative conduct of the deceased. Thus, excluding the possibility of grave and sudden provocation, the case against the appellants shall be covered by clause (c) of section 302, P.P.C.
For the purpose of determination of quantum of sentence. The classification of the cases under clauses (a), (b) and (c) of section 302, P.P.C. Is made on the basis of nature of transaction and the circumstances under which the act not definable as Qatl-eAmd is committed.
14. Learned counsel with reference to Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633 argued that the appellant in normal course could have no justification to take the life of deceased, but he having developed strong suspicion and feeling of illicit liaison of his sister with the deceased wanted to punish him by pressing his testicles, an organ to be used to enjoy such relations, and also strangulated his neck to the extent of causing death due to the insult caused to him. The appellants in the present case overpowering the deceased caused him injuries through squeezing his testicles and strangulation, therefore, it would not be a case punishable under section 302(b), P.P.C. We accordingly converting the conviction of the appellants from section 302(b), P.P.C. Into the clause (c) of section 302, P.P.C. Sentenced them to 15 years' R.I. Each with benefit of section 382- B, Cr.P.C. The trial Court having not given effect to the mandatory provision of section 544-A, Cr.P.C.
Has not burdened the appellants with payment of compensation to the legal heirs of the deceased. Learned counsel for the appellants unhesitant accepting notice on behalf of the appellant voluntarily offered payment of Rs,50,000 as compensation by each of the appellants to the legal heirs of the decease with direction that in case of default in payment of compensation, the appellants will suffer simple imprisonment for six months each and the amount of compensation shall be recovered from them as arrears of land revenue. Criminal Appeal No,200 of 1993 filed by the appellants with the above modification in conviction and sentence is dismissed.
Criminal Revision No,174 of 1993 filed by the complainant with awarding of compensation is disposed of. Murder Reference is answered in the negative.
Sentence reduced.