#tbsIVoi. Win#tbe.Nadccm V. I lie State Cr.C. I.>9{Ifiikliiir Husain ('liaiulhry. ./)JUDGMENTIITIKHAR HUSSAIN CHAUDHRY. .1.- Nadeem alias Deema lias suhmiited ibis appeal under 'Section 25 of Ami- Terrorism Act. 1907 against judgment dated 2I.IO.IW7 passed by Judge. Special Court No. 2. Anti- Terrorism. Lahore Division. Lahore whereby he was convicted on two counts of murder and sentenced to death and was also convicted under Section 338-C. PPC and awarded seven years'
R.I. Lor causing isc/ai-i jaiiiii.
2. The prosecution case described by Muhammad Tariq son of Muhammad Rafique complainant was to the effect that iiii 5.7.1W2 he was sitting in the house of Muhammad HaniL PVV. All of a sudden he heard a noise, coming* from outside. He rushed out and saw Nadccm convict, appellant.Coming out of house of Sharif, father-indaw of the complainant while holding a "Churri".
The complainant entered the hotise of Muhammad Sharif and saw Msi. Sughran Bibi Iving' dead while Mst. Dccbn was civiiie that Nadeem had injured her and' her mother Mst. Sughran Bibi. Mst. l ar/ana PVV (since dead)-was. Also inside the house who informed the complainant that Nadccm.
Accused (husband of her aunt) had given "churri" blow to Mst. Sughran Bibi am1 ;V/vv. Dceba and lied away. The complainant removed Mst. Dceba to Hospital leaving dead-body of Mst, Sughran behind. Muhammad Hani!' PVV and other residents of the locality also gathered there. The complainant thereafter proceeded to the Police Station. Rana Muhammad A/atn. SI PW-12 met him where his statement Ex.PF was recorded and later case I IR No. 130/f992 Ex.PF/l was registered at Police Station.Motive for this offence was stated to be, that Nadeem was married to Mst. Dceba (sister-in-law) of complainant. He was un-employed and maltreated Mst. Dceba to coerce here to fetch money from her parents. He had even sold away the belongings o( Mst. Dceba. She had come to her parents, house in connection with the death of her brother. Tipu. The accused came to the house of his in-laws to take Mst. Deeba back to his.House but his mother-in-law Mst. Sughran Bibi declined to oblige him by saying that Mst. Dceba would stay till Chehlum of her brother, lt was further alleged that mother of the accused also used to extend threats to the inlaws of the accused with dire consequences and for that reason the accused had committed the offence.
3. On the completion of'investigation challan against Nadccm w as sent up*for trial to the Court of an Additional Sessions Judge. Lahore. Later on. However, the case wms transferred to Special Court constituted under the Ami-Terrorism Act. I '>07.' %
4. The appellant w;ts charged under Section 302. PPC under two counts as well as under Section 338-C. PPC to which he pleaded not the guilty. Prosecution was thus when called upon to lead evidence produced 13 witnesses to prove its case.
5. -' Muhammad Siddiq. Constable PW1. Zulfiqar Ali. ('unstable PW2. Shah/ad Ahmad appeared tis PW3. Dr. Muhammad Khalid PW4 conducted postmortem examination of Mst. Sughran Bibi on 5.7.1992 and noted as many as 10 injuries on. Her person the injuries were ante-mortem and caused by sharp edged weapon. Post-mortem examination on the dead-body of Mst. Decba was also conducted by the same witness am1 nine incised injuries were noticed on her dead- body.o.
Mst. Farzana appeared as PW5. The recording of her evidence was deferred but before her testimony could be recorded she died a natural death. Tariq complainant-appeared as PW6.
Muhammad Hanil PW7 supported the version of the complainant. Imran Ali Bukhari Draftsman appeared as PWS. He prepared site plan Fx.PJ and Fx.PJ/I. Mst. Nasim Akhlar daughter of Mst.
Sughran and sister of Mst. Decba deceased appeared as PW9. Zamir-ul-Haq. AS1 appeared as PW10. Altai Hussain. AS1 PW11 deposed about having recorded the formal FIR. Rana Muhammad Azam appeared as PW12. Dr. Nuzhat Naheed Ishaq. Medical Officer, appeared as PW13. She had attended to Mst. Decba when she was brought to Hospital and had noted nine injuries on her person.
7. The accused in his examination under Section 342, Cr.P.C., denied the prosecution case against him and stated thru he was falsely involved in the case on account of-suspicion and-mis- understanding. He also stated that Mst. Sughran*used to quarrel with her husband and he Was turned out of the house and that Mst. Decba was being kept by her mother for immoral purpose and that some unknown assailants had killed both the deceased in darkness who could not be traced.X. Muhammad Latif DW1 staled that he had seen Nadeem accused at 8.30 p.m. On the night of occurrence and he was stitching clothes at liis shop. Muhammad Bashir DW2 stated that accused was running a tailoring shop and that he had closed his shop at 9.30/10.00 p.m. And that Nadeem was taken into custody I rout his house. Abdul Hameed DW3 produced Register No. I of Police Station Mozang relating to year 1995 and FIR No. 102. Dated 10.7.1995 which was registered against Muhammad Hanif for offence under Section 5 of Prevention of Gambling Act. 1978.
9. Learned trial Court believed live prosecution case in totally, and convicted the accused for offence under Section 302. PPC (on two counts) and sentenced him to death on both the counts.
He was also directed to pay Rs. One Lac as compensation to legal heirs of Mst. Decba as well as Mst. Sughran, ln case of default, the convict was ordered to undergo Rigorous Imprisonment for one year. The learned trial Court also convicted the accused for offence under Section 3:38-0, PPC and sentenced him to seven years' R.I.I voi. Xvm10. 11. #tbs12. Cr.C. 14113. #tbe
14. The convict submitted the titled appeal.* Learned counsel for the appellant' as well learned Assistant Advocate-General have been heard in the mailer.
15. Learned counsel for the appellant did not challenge the conviction ol the appellantbut submitted that he would be pleading lor awarding lesser penalty to the appellant and in this context it was argued that Mst. Deeba, wife of the appellant had gone to her parents house when her brother met an accident and had died. She did not return to the appellant, and that mother of the. Appellant according to evidence on record as well its appellant had gone on several occasions to bring back Mst. Deeba but they were insulted and - that occurrence took place in that background. It: was contended that mother of appellant was insulted by the deceased on the day of occurrence and then appellant had visited the house of in-laws but no body had seen as to what had happened before the appellant started inflicting blows to Mst. Sughran. Bibi and then had injured Mst. Deeba. It was argued that possibility could not be ruled out that provocation was- provided by the ladies whereafter the accused under sudden and grave provocation caused injuries to both the ladies and that' this was a factor which warranted mitigation of*the sentence imposed on the appellant by the trial Court. Learned Assistant Advocate-General on ill#- other hand strenuously argued that the accused had gone to the house of in-laws with determination to eliminate both the lathes and had inflicted large number of injuries on them and .The-manner in which the offence was committed was .Heinous and the appellant did not deserve any concession.
16. Since conviction of the appellant for offence tinder Section 302/ or 338- C PPC' has not been challenged by the learned counsel for the appellant and only prayer has been made for mitigation of sentence imposed on the appellant. Therefore, we shall be attending to question of sentence only and would not advert to other aspects of the case.
17. Punishments are awarded to offenders for three purposes- and these are said to be retributive, preventive and reformative. While the wronged desire vengeance, the normative system or the legal system which prescribes the punishment aims at prevention or recurrence of similar misdeeds; the society considers that the chastisement provided \yould reform the offender.
Human indiscretions in desires or in revenge, are limitless. Vendetta or rage over a trite case of insult or supposed insult might result in even a greater outrage. The revenge has to be contained.
Undue harshness of punishment erodes deterrent character of the punishment with passage of time due to human insensitiveness developed as an instinctive reaction. And a normative system which ignores social sensibilities of the society (which in the first instance prescribes the conduct and punishment for violators) gradually reduces its acceptability which is the ultimate requirement for success of any legal system. Therefore, sentencing in a rational society is a difficult and often delicate task. The competing demands of the victim, the society and theslide have 10 he kepi in view while prescribing any punishment for a crime. The punishment should satisfy the retributive teeth of the wronged, should be adequate enough to serve as deterencc for would be offenders and should also cater lor the societal morality. We have attended to the question of sentence keeping these factors in view.
18. , The wife of the convict-Mst. Deeba. Deceased, went to her parentshouse when her brother Tipu met an accident, and then stayed on even alter all the nuptial rituals were over. Mst. Nasim, mother of the convict went several limes to bring her back but failed in her .Efforts. Though, prosecution had tried, to set up a ease that Mst. Deeba libel'to leave her husband's house due to his unreasonable demands which the family of deceased could not meet, yet that aspect appears to be an overdoing on the part of complainant party. Mst: Deeba, deceased, has hot been shown to have deserted her husband earlier though she stayed with her husband for I1: years. Anyhow. Mst.
Nasim, mother of the convict, went to house of the deceased on the day of occurrence and according to PW9, she stayed there for quite sometime and when Mst. Sughran and Mst. Deeba declined to oblige her, she kept scolding the deceased's family for"hours. Lt would not be wrong to assume that Mst. Nasim should have got the same treatment at the hands of the deceased. Later she returned home, insulted, dejected and unsuccessful, ln the backdrop of these events, the appellant reached the home of his in-laws. What transpired between the parties, has not conic on record. The only alleged eye witness, Farzana, died during the trial. The complainant and other PWs.
Reached the spot after hearing hue am1 cry and had not seen or heard its to what transpired shortly before the accused opened attack. May be the parties exchanged hot words or traded insults and insult by the wife and the mother-in-law (the deceased) prov ided provocation to the appellant, in an enlightened society, retort or even a rebuke by a wife can be taken in a good stride by the husband, but an tin-educated environment where, the males have somewhat medieval notions of honours..Disrespect shown by a wife or a mother-in- law would not be that much palatable. We. Therefore feel inclined to give a marginal allowance to the convict of the societal notions in this regard. As record does not highlight the prelude to the final denouement we do not feel inclined to confirm the sentence of death.
14. For the foregoing reasons, we maintain the conviction of the appellant :ts recorded by the trial Court on all the charges. However, sentence of death on two counts of murder imposed on the appellant/convict is converted into imprisonment for life on both the counts. The brujaliiy exhibited in commission of the crime by the convict is immeasurable and, therefore, the sentences of imprisonpient awarded to appellant are directed to run consecutively. Benefit, of provisions of Section 382-B. Cr.P.C, shall be extended to the convict.
15. Murder reference is answered in the negative. Appeal is dismissed.Muhammad Sultan on the left side ol his head. He repealed the blow which also landed at the led side o!' the head. On alarm, Muhammad Yousar and Muhammad Arshad who were passing by'the Daira were attracted to the site. Amanat Ali fled away alongwith his hatchet. Muhammad Sultan was removed to the hospital but he succumbed to the injuries over there.,v The motive was slated to be that one Alia Jhaidu was residing at the Dnira of Amanat Ali appellant. Amanat Ali had illicit relations with daughters of Alia Jhaidu. Amanat Ali suspected that Muhammad Sultan visited the Daira in order to accomplish his illicit liaison with the daughter of Alia Jhaidu. On-the statement of Ghufran. FIR Ex.PA was recorded at 7.00 p.m. With P.S-. Samundri located at a distance'of ten miles from the place of occurrence. F.Arooq Ahmad, Inspector PW-8 identified that Ex.PA had been recorded by Gha/.Anfar Abbas, SI. Hc'conducted the investigation, got recovered hatchet P I at the instance of the appellant. He also performed other formalities necessary to complete the investigation.
4. The prosecution in order to prove its case examined eight witnesses. Dr. Hafeez IJllah PW-7 initially examined Muhammad Sultan and prepared the medical legal report and found the following two injuries on his person:-(1) An incised wound 8 cm x 1/2 cm x going deep into brain cavity. Brain membrain and brain matter were coming out. Cut was through and through. This wound was on left side of the head. X-Ray was advised.(2) An incised wound 3 cm x 1.2 cm x going deep into brain cavity at head on left side. It was 2 cm posterior from injury No. 1: Occipital bone was also cut through and through. Patient, was pulseless. There was laboured breathing. Patient was un-conscious. The condition was very serious?Unfortunately, the victim expired at 6.45 p.m. On the same day i.e. 16.9.1991 and he conducted to post-mortem examination. The sameInjuries were again noted in the post-mortem examination. The injuries were found to be antemortem and sullicient to cause death in the ordinary course of nature.
5. PW-1 Ghufran complainant and Muhammad Rashid PW-2 furnished the eye-witness account.
Both the witnesses made consistent statements and reiterated the statement made by PW-1 in the FIR Ex.PA. PW-2 Muhammad Rashid made statement similar and identical to that of PW-1. PW-1 also attested the recovery of blood-stained hatchet P-1 which was taken into possession vide memo.
Ex.PB on 22.9.1991 at the instance of the appellant from the corner room of his Daira. The remaining witnesses are of formal nature and all of them supported the. Prosecution case and deposed about their respective, functions performed by them during the investigation. The prosecution also-tendered in evidence the report of Chemical Examiner Ex.PL and that of Serologist Ex.PM and with that closed the case for the prosecution.6. After the close of the prosecution evidence, the appellant was-examined u/S. 342, Cr.P.C. In answer to Question No. 7, he made the following reply:- "The case is false. The PWs. Had deposed falsely. Actual facts are that on the day of occurrence at about noon time, Sultan-deceased came to . The Derail of Haji Wali Muhammad, and that I used to live with Wali Muhammad who was my maternal grand-lather, temporarily. Actually I used to reside at Chak No. 476/GB. Alia Jhaidu used to reside at the Derail of Haji Wali Muhammad, who was residing there alongwith his family members including his grown up daughters. Sultan deceased who had developed illicit relations with Mst. Bakht Bibi daughter of said Alia and started dragging her in order to abduct her and commit zina-bii-jabr with her. On her cry, 1 came to the Deorhi of the said Derail from the cattle-shed where I was serving fodder to the cattle and .1 intervened to save the honour of Mst Bakht Bibi, whereupon, Sultan ' AluriH deceased aimed his revolver at me, I picked tip a small hatchet from'the Deorhi which was already lying (here and injured the deceased . . In order to save myself and to save the honour of Mst Bakht in exerciseof right of my self-defence and to save the honour of said lady. Mst Bakht Bibi was to be married after few days after the occurrence, Hurmat Ali' Chaokidar and Alia Jhaidu also reached the place of , occurrence after the occurrence was over. I appeared before the police on the day of occurrence and produced the small hatchet before the I.O. Ghazanfar Abbas and made the statement which I am making today but the said Ghazanfar Abbas had connived with the complainant and he falsely got me challaned".
7. On conclusion of the trial, the learned trial Court, convicted the appellant and passed the sentence as noted above.8. The learned counsel appearing on behalf of the appellant argued that the prosecution has not been able to establish the guilt of the appellant; that the prosecution version is not plausible; that the PW-1 Muhammad Ghufran could not have accompanied the deceased at the instance of the appellant; that Muhammad Rashid PW-2 is a chance witness being a passer-by. When confronted with the statement of the appellant, that he has admitted the occurrence and has comeforward with the defence plea..Therefore, killing of the deceased by the appellant is admitted, although he has urged Ids .Own explanation. The learned counsel, therefore, look up the plea that the case is of two versions and if both the versions tire placed in juxta position, the delehee version as taken up bv the appellant is more plausible as compared with the'prosecution version.#
9. The learned counsel appearing for the prosecution- has however, controverted the submission and argued that the prosecution has produced truthful and reliable witnesses and neither of the eye-witnesses has any enmity against the appellant and had no motive to falsely implicate him.
Their statements are supported by the medical evidence and with the fact of recovery of blood- stained hatchet at the instance of the appellant. Moreover, the appellant himself admits the killing of the deceased, therefore, the argument that the prosecution has not proved its case has no substance. Further submits that the defence version on the face of it is not acceptable and has been rightly discarded by the leat'ned trial Court.10. After going through the prosecution evidence, we feel that the prosecution witnesses have made consistent statements and the fact that Sultan deceased was done to death by Amanai Ali appellant has been proved beyond doubt. The statements of witnesses arc supported by the medical evidence and also found corroboration from the recovery of blood-stained hatchet tin the pointation of the appellant. Their version is also supported by the admission of the appellant himself during the statement u'S. 342, Cr.P.C, to the extent that Muhammad Sultan deceased was done to death by him. However, with a view to consider and appreciate the defence version we have examined in detail the version put forward by the appellant.
11. The perusal of his statement reveals that he has come forward with two defence pleas. Firstly, that Muhammad Sultan deceased came to the Daira of Haji Wali Muhammad where the appellant was also putting up being his grand son. Alia Jhaidu also resided in the Daira alongwith his daughters. Muhammad Sultan developed illicit relations with Afa/.Bakht Bibi daughter of Alia Jhaidu and she was being dragged in order to abduct her and commit zina-bil-jabr, the appellant intervened with a view to rescue her. The second part of the version is that when the appellant intervened Muhammad Sultan deceased took out his revolver and turned at him, therefore, the appellant picked up a small hatchet lying in Deorlii and inflicted injuries on the deceased to safe life and also the honour of Mst Bakht Bibi.
12. As regards the question that the appellant caused injury to save his life as the deceased intended to fire at him with his revolver, is not acceptable. If Muhammad Sultan deceased was armed with revolver and intended to fire at the appellant then it is inconceivable that he would have permitted the appellant to pickup the hatchet and thereafter, to cause injury on his head. The version is rendered|Vol. XVIH Amanal Ali V. The Stale Cr.C'. 147{/.Ajar Pasha ('liiiinlliry. .1)still more unacceptable when alter inflicting one injury the appellant tried to repeal the injury on his head but the deceased did not fire any shot at him. Had the deceased been armed with the revolver, he would not have permitted the appellant to inflict the injuries one after the other on his head. This pari of the defence version cannot be accepted being implausible and unreasonable.
13. The second part of the version that Amanat Ali appellant committed the murder in order save the honour of Mv/ Bakht Bibi who was being forcibly dragged by the deceased in order to commit iina-bil-jabr. He intervened and to prevent the deceased caused jurisdiction to him, |s equally uncoil ringing and self-contradictory, lt is inconsistent for the reason that 1m one hand it is alleged by the appellant that deceased developed illicit relations \< ith Mst Bakht Bibi and at the same time she was being dragged as if she was not a consenting party. If Mst Bakht Bibi had an illicit liaison with the deceased she would hare willingly accompanied him and there was no need of dragging her forcibly. This version is not acceptable because tit the alleged time and place it is inconceivable that any one would hare made an attempt to forcibly drag a girl in order to commit zina-bil-jahr. Daim of Haji Wali Muhammad is in an inhabited place where-inmates of the family including male and female resided. Alia Jhaidu had also his family. During the month of April at Zahar Vaila a number of people go round about in the streets, if the appellant at all laid to abduct Mst Bakht Bibi or to elope with her. The same does not appear to be possible at that time and place. The learned counsel however, argued with vehemence that the appellant has taken up this version before the police and PW-8 during his cross- examination admitted that the version has been taken during the investigation, as well. Further submits that it is admitted ln the Investigating Officer that deceased used to visit the Daim of Alia Jhaidu frequently and had young daughters with whom deceased had developed illicit relations. The deceased did not stop even on the intervention of Alia Jhaidu. He, therefore, argues that the appellant, therefore, acted out of provocation and tis such cannot be held guilty of offence u/S. 302( A) or 302(B), PPC. Being a case of grave and sudden provocation lie is entitled to gel benefit of the same.
14. As already observed, we are of the view that the appellant may have taken this defence before the Investigating Officer and it seems to be true that the deceased might have been making indecent access towards the daughters of Alia Jhaidu, a worker, or servant of his grand-father Haji Wali Muhammad but it is not acceptable that a girl who statedly has illicit relations with the deceased would have been forcibly dragged and as such provided an occasion for the appellant to intervene or to come to rescue her. No defence of grave and sudden provocation is as such available to the appellant, however, at the best these facts and circumstances may provide mitigating or extending circumstance in favour of the appellant, as a result of which lesser penalty may be imposed. It has also come bn record throughthe evidence of prosecution that the appellant had also been taking steps to develop illicit relations with the girls.
15. The upshot of the above discussion is that although the prosecution has proved its case beyond doubt and it is admitted fact that the deceased was done to death by the appellant, but he is not entitled to the benefit of grave and sudden provocation or self-defence. The facts and circumstances that the deceased was suspected to develop illicit relations thus furnish a valid ground for award of lesser penalty, we accordingly, hold the same. As a result thereof, the appeal is dismissed. However, the sentence of death is converted to that of imprisonment for life u/S. 302(b), PPC. The benefit of Section 382-B, Cr.P.C, is also extended. The order relating to award of compensation of'Rs. 10.000/- and in default thereof, to suffer six months' R.I. Is maintained.Sentence of death is not confirmed.