' This judgment will dispose of Criminal Appeal No,246/J of 2000 filed by Muhammad Latif, appellant through jail, who was convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide his judgment, dated 5-10-2000 under section 302(c), P.P.C. To undergo 10 years' R.I.
And a fine of Rs,30,000 for committing Qatl-e-Amd of Muhammad Akram deceased. He was also directed to pay Rs,50,000 as compensation to the legal heirs of said deceased under section 544- A, Cr.P.C. And in default six months' S. I. He was also convicted under section 308, P.P.C. For committing Qatl-e-Amd of his daughter Mst. Kauser Perveen and was sentenced to 10 years' R.I.
And a Diyat of Rs,2,80,000 for the said deceased. In case of non-payment of Diyat amount mentioned above or any part thereof, till the expiry of his above noted sentences, he was ordered to be kept in jail till the payment of abovesaid amount of Diyat and to be dealt with in the same manner as if sentenced to S.I. Both the sentences were ordered to run concurrently with the benefit of section 382-B, Cr.P.C.
2. Occurrence in this case took place on 7-11-1994 at about 4-30 a.m. Within the jurisdiction of Police Station Tatlay Aali, District Gujranwala at a distance of two furlongs away while the matter was reported to the police on the same day at 7-35 a.m. By Muhammad Waris complainant and the formal F.I.R. Exh.P.W.7/1 was lodged by Muhammad Afzal M.H.C.
3. Briefly stated the facts of the prosecution case are that Muhammad Waris complainant submitted an application Exh.P.W.1/1 before the local police on 7-11-1994 stating therein that there was litigation of 32 Acres of land between his mother Mst. Nazir Begum and Muhammad Latif, Muhammad Bashir, Muhammad Munir and Muhammad Jamil for the last, 27/28 years and the matter is pending adjudication in the Honourable Lahore High Court. However, on Baradari basis they were on visiting terms to each other. However, Latif etc. Were having grudge against them in their hearts. In order to and with intent to get the case decided from the Honourable High Court, Mst. Nusrat Bibi, wife of Muhammad Latif came to their house 5/6 months ago and offered the hand of her step-daughter Mst. Kausar Bibi for Muhammad Akram, brother of the complainant, but they refused. On 6-11-1994 at about 9-30 p.m. Riaz Mahmnod, Behnoi of the complainant and Muhammad Akram were lying on cot in their house when the door bell rang, his mother opened the door and saw Muhammad Jamil present out side, who asked her to call Akram upon which she said that Akram was lying with Riaz Mehmood inside, he should go and call him whereupon Jamil entered the house and took Akram with him who did not return uptill 4-00 a.m., then Riaz Mehmood asked hiaqat Ali, Tayazad of the complainant, who was present in the house to inquire about the health of father of Liaqat Ali, to inquire about Akram and they both went to the roof of the house of Muhammad Latif etc. Via their roof and saw Muhammad Latif armed with gun .12 bore double barrel, Muhammad Jamil armed with carbine, Muhammad Munir and Muhammad Bashir empty- handed present there. Liaqat Ali called Muhammad Latif and asked about Akram who was taken away by Muhammad Jamil and gone out of room of the said house upon which Muhammad Latif made fire with his gun at Akram and thereafter, Muhammad Jamil also made fire with his carbine at Akram who fell down. Both Liaqat Ali and Riaz Mehmood raised alarm. The abovenamed accused (Latif etc.) took Akram inside the room and thereafter Muhammad Bashir and Muhammad Munir forcibly brought out Kausar Bibi daughter of Muhammad Latif who was sleeping in the other room and Latif as well as Jamil also committed her Qatl-e-Amd and of his brother Akram, they also committed Qatl-e-Amd of Kausar Bibi. Hence this case.
4. After registration of the formal F.I.R. Exh.P.W./7/1 Javed Aslam, S.-I. P.W.11 went to the spot, prepared inquest report Exh.P.W.11/1, injury statement Exh.P.W. 11/2, then prepared inquest report of Kauser Parveen Exh.P.W.11/4, her injury statement Exh.P.W.11/5, prepared site plan without scale Exh.P.W.11/7, took into possession blood-stained earth vide memo. Exh.P.W.5/1, also took into possession Dari P.1 and Wan of cot P.2 vide memo. Exh.P.W.11/8, took into possession last-worn clothes of both the deceased vide memo. Exh.P.W.6/1 and P.W.6/2, got prepared site plan from the draftsman, arrest Muhammad Latif on 16-11-1994, who got recovered .12 bore gun P.40 which was taken into possession vide memo. Exh.P.W.8/1, except Muhammad Latif the remaining accused were found innocent and submitted the challan accordingly.
5. At the trial, prosecution in order to prove its case produced 13 witnesses in all, Abdul Rauf Dogar, S.P. Was produced as C.W.1 thereafter, learned D.D.A. Tendered in evidence reports of the Chemical Examiner Exh.P.A. And Exh.P.B. Report of the Serologist Exh.P.C. And closed the prosecution case; then the statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded innocence and claimed false implication.
6. Learned counsel for the appellant after reading the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. And other relevant material available on record submits that it was a case of grave and sudden provocation, that dead body of Akram deceased was recovered from the house of the appellant, that Mst. Kausar Bibi deceased is daughter of the appellant, that appellant had killed both the deceased when saw both of them in an objectionable position in his house, that occurrence had taken place at 4-00 a.m. i.e, before the Fajar prayer on 7-11-1994, that appellant is behind the bars since his arrest.
7. On the other hand, learned counsel for the complainant submits that two young persons have been murdered, that appellant had killed them in a very brutal manner, that in fact deceased Muhammad Akram was taken from his house, that no semen was detected from the vagina of Mst.
Kausar Bibi, that already a very lenient view has been taken by the learned trial Court by not awarding the death sentence or imprisonment for life to the appellant.
8. Learned counsel for the State supports the submissions made by learned counsel for the appellant.
9. I have heard learned counsel for the parties and have also gone through the evidence recorded by the learned trial Court and the judgment of the trial Court.
In the instant case, one thing, which is to be kept in mind, is that both the dead bodies of the deceased were taken into possession from the house of the appellant, Mst. Kausar Bibi is daughter of the appellant, version of the appellant seems to be more plausible, convincing and appeals to the reason because he had killed both the deceased when he saw both of them in an objectionable position, the explanation given in the F.I.R. By the first informant is not plausible that deceased was taken from his house in presence of the witnesses, both the eye-witnesses i.e, P.W.2 and P.W.3 are real brothers of the deceased Muhammad Akram, appellant was arrested in this case on 7-11-1994. For the just decision of the case, I would like to mention below the answer to Question No,8 recorded under section 342, Cr.P.C. Where specific plea was taken by the appellant which is as under:- "A. Yes. I am an uneducated middle aged man, born in a Katre Islami Gharana, where teachings of non-tolerance of loose conduct over family honour were jealously guarded. On the fateful night, Muhammad Akram, deceased was stopped in pari delicto position on the cot of my daughter Kausar Parveen deceased in a room of my house. I was overpowered with element of Ghariat, picked up the licensed loaded gun of my brother co-accused Munir, lying nearby and killed both the paramours at the spot on the same cot in a state of frantic fronsy. Both deceased were having ' immoral liaison' with clandestine amourous visit of. Which I was unaware. After killings I voluntary appeared before Muhammad Javed S.H.O., Police Station Tatlay Aali alongwith gun and- put forth my first version having acted under impuls of grave and sudden provocation at the initial stages of investigation and reiterated the same in the Court. The Investigating Officers, have upheld my plea of Ghairat as bearing hall-mark of truth.
' Deceased Akram had intruded into my house at unearthly midnight hours through Dharras of the common wall of our roofs, which amounted to invasion of my property, privacy and criminal trespass. Sanctity of privacy has been enjoined by the Holy Qur'an to the extent that .Entry into a house without permission is strictly forbidden (Reference to Verses 27 and 28 of Sura Al Noor could be made). To enter a house without permission at night and sharing bed with wife/daughter/sister of the owner of the house is vice/abomination which could be dealt with force. This is borne out from the following illustrations appearing in Mishkat-al-Masabih English translation by James Robson.
' 'If any one were to look into your house (said Abu-Hurarira) without receiving your permission and you put out his eye by throwing pebble, you would be guilty of no offence'.
' Defence of the person, property and honour is a virtuous act and he who lays down his life for such a noble cause, is a Shaheed.
' Right to defend the honour at the cost of killing the aggressor is not only available to the aggressed lady, but, also who is husband, Mehram or the person, in whose lawful custody, she Was residing (reference to Verse 34 of Sura-Al-Nisa is made which is read-- 'Men are incharge of women'.--- Deceased Muhammad Akram was violating the honour of my daughter by lying on same cot to satisfy his animal lust. I could not watch the abnoxious act in pease without violating Qur'anic Order. Being (Qawam) Custodian of honour of my daughter)
Whatever I did, I did under impuls of Ghairat. (Grave and sudden provocation).
' Section 337-F, P.P.C. Is a unique provision of law introduced by Qisas and Diyat Ordinance and the Courts are to be guided by the Injunctions of Islam, as laid down in Holy Qur'an and. Sunnah. It expressly permits the Court to assess the culpability of guilt of the accused not only under man- made laws, but, also under the Divine made laws. There is further Verse of Holy Qur'an touching the subject-matter of homicide. It is read as ' And slay not the life which ' Allah: has forbidden, save with right Verse 33 Bani-Israel.
' It clearly permits taking life of another in assertion of 'Haq" (right) in exceptional circumstances like protecting person, honour, etc. Which in this case was my exclusive entitlement person of my daughter and if this entitlement (Haqq) is transversed, I was within my limits to get to the extent of Qatl-e-Hill-Haqq. Even under old laws, section 100, P.P.C. Extended right to voluntary causing death or any other harm to the assailant, if the assault was with intention committing rape. I committed no offence due to grave and sudden provocation (Ghariat) on account of daring immorality of two deceased. Justice in such situation, applying the golden principle of Islam, has to be done with Mercy (Adel-Bil-Ehsan)."
Appellant has discharged the onus lying on him as required under Article 121 of the Qanun-e- Shahadat Order, 1984. In the instant case, Investigating Officer also admitted the first version of the appellant which was stated by him before the learned trial Court. After having gone through the evidence recorded by the learned trial Court and the submissions made by learned counsel for the parties I am of the considered opinion, that both the deceased were killed by the appellant under grave and sudden provocation.
' In these circumstances, the sentence of the appellant is converted into one already having been undergone by him under section 302(c), P.P.C. Which in my considered view would be sufficient to meet the ends of justice. I . However, the other sentences i.e, fine, compensation and Diyat awarded to the appellant are set aside. Appellant is behind the bars since 7-11-1994. He shall be released forthwith if not required to be detained in any other case.
Sentence reduced.