' RAJA MUHAMMAD KHURSHID, J.-- This judgment will deal with Criminal Appeal No,,698 of 1993 and the connected Murder Reference No,,287 of 1993 sent by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentence passed upon the appellant/convict vide the impugned judgment, dated 31-10-1993.
2. The brief facts are that Muhammad Ashraf (P.W.5) a brother of the deceased Zahoor Ahmad reported the present occurrence vide F.I.R. (Exh.P.F.) in which he stated that he was working as Ward Attendant in the Services Hospital, Lahore and he had come to his house in the village on leave. On the day of occurrence at about 7-30 p.m., he along with his paternal-cousin Nazir Ahmad (P.W.6)
Were coming on cycle to their home from the village Lalapur. The deceased was riding a bicycle alongwith milk cans and was going ahead of them to his home from Lalapur. They reached near the Dera of. Muhammad Boota son of Inayat (acquitted accused). The forenamed Boota came out and asked the deceased to get down from the cycle. The deceased got down from the cycle, whereupon, he held the deceased in Japha and in the meantime, the appellant/convict Pervaiz alias Paiji came out along with a dagger. The aforesaid Pervaiz gave dagger blows to the deceased thereby causing injuries on right and left side of the deceased's chest. The later fell down, whereupon, the aforesaid Pervaiz gave a blow which fell on his neck. The 4th blow given by the assailant injured the left cheek of the deceased. On hearing the noise Khalil son of Umar Din (given up P.W.) arrived at the place and saw the occurrence. The accused, however, made their escape good while raising Lalkaras.
3. During the trial conducted by Mr. Pervaiz Ali Chawla, the then learned Additional Sessions Judge, Gujranwala, the co-accused of the appellant namely Muhamniad Boota was acquitted, whereas, the appellant/convict was convicted under section 302(a), P.P.C. And sentenced to suffer death as Qisas. As pointed out above, a reference was also made for the confirmation of the aforesaid sentence by the learned trial Court.
4. The prosecution relied upon the ocular account of occurrence consisting of Muhammad Ashraf (P.W.5) and Nazir Ahmad (P.W.6). Apart from that, the recoveries of cycle of the deceased (P.4) and two milk containers (P.5 and P.6) and a Degchi (P.7) from the spot vide memo. (Exh.P.D.) were also relied upon. The appellant/convict was arrested on 6-2-1991 and led to the recovery of weapon of offence similar to dagger vide memo. (Exh.P.E.) from his house on 15-2-1991. The motive of the occurrence was some quarrel between the deceased and the appellant a day before the murder over the payment of money regarding the supply of milk. The medical evidence consisting of statement of Dr. Ali Muhammad was brought on record to show that the deceased had suffered six injuries during the transaction which were inflicted at the seats of his body corresponding to the seats pointed out by the eye-witnesses. The injuries were found to have been inflicted with sharp- edged weapon and were considered dangerous to life and were sufficient to cause death in the ordinary course of nature. The post-mortem report (Exh.P.A.) and the diagram of the injuries (Exh.P.A./1 and Exh.P.A./2) were brought on record to show that the death of the deceased had occurred spontaneously due to the aforesaid injuries. The motive of the occurrence was not proved at the trial. The recovery of the dagger was also disbelieved by the learned trial Court but relying on the eye-witnesses and the medical evidence, it recorded the conviction and sentence of the appellant/convict vide the impugned judgment.
5. Learned counsel for the appellant has assailed the judgment on the ground that the prosecution had failed to prove its case; that one of the co-accused was acquitted on the same set of evidence after disbelieving the same which could not be legally utilized against the appellant/convict; that the presence of the eye-witnesses at the spot was highly doubtful; that the conduct of the eye-witnesses was unnatural as they could easily overpower the appellant as he was not armed with any unformidable weapon but a Chhuri or dagger; that the accused had taken a specific plea that he had acted under grave and sudden .Provocation as his sister was under grave danger of being outraged by the deceased and as such, he had taken up that plea from the very start before the police which was not properly evaluated by the learned trial Court. It was, therefore, contended that at the most, the appellant/convict could be held guilty under section 302(c), P.P.C. As he had acted under grave and sudden provocation to save the honour and chastity of his young sister who was being taken away to a nearby Sem Nullah for outraging her modesty. It is, therefore, contended that in view of that situation, the provisions contained in section 302(a), P.P.C. Were allegedly not attracted for which reliance was placed on The State v.
Muhammad Hand and 5 others 1992 SCM R 2047 (Supreme Court of Pakistan) and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274.
6. Learned counsel for the State, however, submitted that the prosecution has been successful to prove that it was a gruesome murder committed by the appellant/convict in the presence of the eye-witnesses who were accompanying the deceased. One of those eye-witnesses is the brother and the other is the paternal-cousin of the deceased. It would be natural on their part to name such person who had taken the life of their kith and kin instead of substituting someone else.
Secondly, it was contended that the motive and the recovery of dagger has been advanced by the prosecution witnesses but the learned trial Court fell in error to disbelieve them without any cogent reason. In addition to that, it was contended that the eye-witnesses were supported by the recovery of the weapon of offence, last belongings of the deceased from the spot such as cycle (P.4), milk containers (P.5 and P.6) and Degchi (P.7), from the spot. The medical evidence also clearly showed that a sharp-edged weapon was used by the assailant to take the life of the deceased and the seats of injuries and the wounds clearly linked the appellant with the occurrence which provided sufficient corroboration to the eye-witnesses who were clear enough to name the appellant for doing the awful murder of the deceased. It was, therefore, submitted that the appellant/convict had rightly been convicted and sentenced by the learned trial Court in accordance with law.
7. We have considered the foregoing submissions raised at the Bar. It is to be seen if the prosecution has been successful to prove its case as alleged in the F.I.R. Beyond any reasonable doubt. The eye-witnesses in this case includes the brother of the deceased namely Muhammad Ashraf (P.W.5) and Nazir Ahmad (P.W.6), his paternal-cousin. The analysis of the statements recorded at the trial will show that they were not present when the occurrence relating to the motive had taken place. As such, the learned trial Court had rightly held that the motive in this case remained unproved. The question would now rise whether or not those witnesses were present at the spot. First of all, it is to be noted that Muhammad Ashraf (P.W.5) was an employee in Services Hospital. According to him, he had come to the village o,n leave on the day of occurrence. However, nothing was produced to show that he was actually on leave on that day. Even according to the cross-examination, the witness had clearly admitted that he had taken the leave for that very day on which the occurrence had taken place. In the same breath, he said that he had come one day earlier in the village than the day of occurrence. In this regard, he further stated that on 26-1-1991, he came to his house on 3-00 or 4-00 p.m. And went back from there at about 8-00 or 9-00 p.m.
He came to know about the motive from his family members. This clearly shows that he was not present when the occurrence regarding the motive had taken place. As already observed, he being an employee in the Services Hospital had come to village to visit his house but he failed to prove that he was in fact on leave on that day. The occurrence had taken place on 27-1-1991 at about 7- 30 p.m., whereas, according to P.W.5, he had come to his house on 26-1-1991 at about 3-00 or 4-00 p.m. And had gone back from there at 8-00 or 9-00 p.m. It is not understandable as to why he had left the house on the aforesaid day at about 8-00 or 9-00 p.m. And to which place, he had gone. If he had come on leave to his house for 27-1-1991 then the natural conduct on his part would have been to stay at his house instead of going away at 8-00 or 9-00 p.m. Fully knowing that he was on holiday for the next day. These facts make the presence of P.W.5 doubtful in his village particularly when there is nothing on record to show that he was actually on leave on the day of occurrence and for what purpose. The other witness while appearing as P.W.6 clearly stated that his statement was never recorded by the police with regard to the occurrence and that he was making his statement for the first time during the trial in the Court. If it is so then it is quite doubtful that he might be present in the village of occurrence on the day or the time when the murder had taken place. He said during the cross-examination that he had no relative in village Lalapur where the occurrence had taken place, but P.W.5 stated that this witness was his brother-in-law i,e, husband of his sister. Hence he falsely tried to conceal his relationship with the deceased in order to show himself as an independent witness. Such type of person cannot be believed particularly when he belonged to a different village. He said during the cross-examination that he had gone to village Lalapur ton bring petrol but admitted that there was no petrol pump inside the village and that the same was at Adda Lalapur. If it is so then his visit to village Lalapur would become quite doubtful and as such his presence at the place of occurrence would become highly doubtful. He also did not state anything about the occurrence relating to motive. He denied the suggestion that the deceased had illicit relations with the sister of the accused/appellant. He admitted that there was a Dera near the place of occurrence but according to him, nobody had turned out to see the murder. The natural course would be that if the murder had taken place near the Dera then somebody should have turned up to see the occurrence who would have been a natural witness instead of P.W.6 who had admittedly come from a different village. P.W.5 admitted that it was just a chance that he and Nazir Ahmad were proceeding to village Lalapur at the relevant time. It is also clear from the statement of P.W.5 that they had taken the route which was little longer than the route usually is to be followed and as such, their presence in front of the Dera of the co-accused Boota would look to be seriously doubtful. It is particularly so when P.W.6 was trapped during the cross-examination by saying that his purpose of visit to the village of occurrence was to fetch petrol but he admitted that there was no petrol pump in the village. In such a situation and particularly even according to the P.W.5, they had met per chance and had taken unusual way to make their presence available near the Dera of Muhammad Boota co-accused i,e, where the murder had taken place which would show that some well-thought out efforts were made to show their presence at the place of occurrence although the same was seriously refuted and negated by the attending circumstances enumerated above. It, therefore, follows that the presence of the eye-witnesses at the place of occurrence as claimed by them is highly doubtful and as such, they cannot be readily believed nor they had been believed qua the acquitted by the trial Court. In such a situation, the defiance taken by the convict/appellant would call for serious consideration. The appellant was about 17 to 18 years of age as per his statement recorded under section 342, Cr.P.C.
He stated in his defence as follows:-- "My maternal-aunt resides in village Matoo Bhike and her name is Bilquis. My sister Mst. Nargis had gone to see her 5 days prior to the occurrence. I went to bring back my sister in village Matoo Bhike and reached there at about 3-00/4-00 p.m. I returned alongwith my sister and when we reached on the metaled road to come to our village Lalapur, it was Shamwela. There was no bus available. I and my sister boarded a tractor trolley which was coming from Qilla Bathan. We alighted from the said tractor trolley on Qila Bathan stop because the trolley was to proceed from there to Qila Bathan. Therefrom, we proceeded on foot towards our village and when we reached on our way near the Dera of Boota, I went to urinate at a place low lying near the road and left my sister Nargis on the road. I was in the process of passing the urine when I heard the alarm of my sister Nargis who was crying to save her because Zahoor deceased wanted to outrage he modesty. I rushed towards my sister and saw that Zahoor deceased had grabbed my sister and he was pulling her towards Sem Nullah, so that he might commit Zina with her. When I saw this, I out of grave and sudden provocation inflicted Chhuri blows upon deceased Zahoor in order to save the honour of my sister. The Chhuri was given to me by my maternal-aunt because my mother had asked her to send the Chhuri for domestic use because in village Matoo Bhike, the Chhuris are manufactured.
There was no witness available at the spot. I myself appeared on the following morning in the police station but the police in connivance and in collusion with the complainant registered the case. I had produced the Chhuri voluntarily in the police station but the police with mala fide showed my arrest on a subsequent date in record and I was kept under the lock-up of police station without having been shown under arrest. No recovery was effected by the police from me."
8. The aforesaid defence was taken by the appellant/convict from the very start as would be found in the cross-examination of the Investigating Officer Riaz Hussain Shah (P.W.11). The aforesaid witness had admitted during the cross-examination that the first plea of the accused Pervaiz i,e, the appellant/convict was that the deceased had illicit relations with his sister Mst. Nargis and on the day of occurrence, the deceased overpowered the aforesaid Mst. Nargis as stated in the defence version upon which, he (accused/appellant) was highly provoked and committed the occurrence under grave and sudden provocation and out of Ghairat.
9. Now the question would arise whether the statement of the accused/appellant should be believed and if so to what extent. The accused/appellant had taken a specific plea which he had raised from the very start even before the police and also by taking up the stance that he had voluntarily appeared before the police and surrendered himself after the commission of the occurrence but his arrest was delayed in order to fabricate the prosecution version. The law in this respect is very clear which says that the statement of the accused should be taken as a whole and not in piecemeal. It shall stand or fall as a whole but cannot be chosen in fragments. If any defiance is made out after taking the statement as a whole, the law should proceed to deal with the situation even if the prosecution has not been able to prove its case as alleged in the F.I.R. In the instant case, the accused had taken up the plea of grave and sudden provocation from the very start. The circumstances attending to this case also lead to an irresistible conclusion that the statement made by the accused in defiance is truthful particularly when the motive, recovery of weapon of offence and presence of the eye-witnesses have been disbelieved. In such a situation, the statement made by the accused is to be treated as a one whole leading to an irresistible conclusion that the defiance story reasonably rings true qua the improbabilities of the prosecution.
It is an unending fact that in our society, the honor of the family and more particularly of the females in close relationship are zealously guarded and watched by the male members. In the instant case, the appellant/convict was returning with his very young sister and had stopped on his way to urinate in a nearby depression that he heard the alarm raised by his sister and rushed to the spot. On seeing his sister being forcibly taken away by the deceased towards a Sem Nullah for dishonoring her, created an uncontrollable instinct in his mind, making him temporarily imbalanced due to the sudden impulse of grave provocation compelling him to an instantaneous intervention. He accordingly rushed towards the deceased who was still holding his sister and opened the attack with a Chhuri which was given to him by his maternal-aunt for domestic use.
The occurrence lasted for 4 or 5 minutes and as such, the appellant/convict had practically no time to cool himself and to get out of frenzy which had occupied him on seeing dishonoring scenario of his unmarried young sister. In view of the above, it is clear enough that the case of the appellant would not fall within the purview of Qatl-i-Amd punishable ui der section 302(a), P.P.C.
Nor it would warrant the maximum penalty. Rather it will be fully covered by the provisions contained in section 302(c), P.P.C. The rule to protect the honor of the female relatives was fully recognized by the Honorable Supreme Court of Pakistan in the judgment reported as Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 in which the wide range of case-law was brought under discussion and after taking into account the law revealed in the Holy Qur'an, Sunnah and other Authoritative works of the known scholars of Islamic Jurisprudence, it was held that clause (c) of section 302, P.P.C. Is meant for the cases falling within the category of grave and sudden provocation involving the honor of a female relative. It is based on the right of act as which is further elaborated in the following words:-- "The fundamental right to act as ' riJ , conferred as it has been by the Holy Qur'an, which is intended to endure for all times to come, must receive a construction most beneficial to the widest possible amplitude of that right peripheral rights or rights of penumbra, that is, rights closely associated to it are also basic rights. There can be no doubt that included in the basic right of the man to act as is the right to protect the honor of his women and to defend them from outrage, disgrace and insult."
10. In this regard, further reference may be made to Barkat Ali v. State reported as 1998 PCr.LJ 1418.
Hence the case of the appellant/convict, while acting under grave and sudden provocation, would fall within clause (c) of section 302, P.P.C.
11. The appeal is partly accepted and the conviction of the appellant/convict under section 302(a), P.P.C. Is set aside and is modified to that under section 302(c), P.P.C. The question of sentence after such conviction would not remain difficult. Keeping in view the circumstances as explained above, it would suffice the ends of justice if the sentence of death awarded to the appellant/convict is reduced to 10 years' R.I. After the modification of the conviction under section 302(c), P.P.C. The benefit of section 382-B, Cr.P.C. Is extended to the appellant/convict Ordered accordingly.
12. The death sentence of the appellant/convict is not confirmed. The murder reference is also disposed of in the above terms.