' This judgment shall dispose of Criminal Appeal No,24 of 1999 and connected Criminal Revision No,14 of 1999.
2. The criminal appeal is against the order of conviction handed down by Mian Khadim "'Hussain, learned Additional Sessions Judge, Chakwal, in Sessions Case No,13 of 1997 which became Sessions Trial No,8 of 1997, convicting the appellant to life imprisonment under section 302(b), P.P.C. As Ta'zir, while also directing him to pay compensation of Rs,1,00,000 to the legal heirs of the deceased, or in lieu thereof, to suffer further five years' rigorous imprisonment. He was given the benefit of section 382-B, Cr.P.C. Whereas, through the criminal revision, the complainant side is asking for enhancement of sentence awarded to the appellant.
3. Tahir Abbas (P.W.5), the complainant in this case, is the resident of village Bikhari Kalan but lives in Kassowal in District Sahiwal on his lands there. During Muharram-ul-Ahram and being a Shia Muslim by faith, he had returned to his village, and during the days of the occurrence was in village Bikhari Kalan for the same reason. Ahmad Khan deceased was his Khalazad. On 4-6-1997 at about 5-30 a.m. Someone had informed him that his dead body was lying outside the gate of the house of the deceased. He rushed to the spot and found the dead body lying there smeared with blood.
When. Tahir Abbas made query from the inmates of the house, he learnt that Ahmad Khan had gone the previous night after taking his meals to the house of Iqbal Shah for viewing a video film of a procession which was taken out in the village. The complainant proceeded to the house of Iqbal Shah who informed him that because of low-voltage the deceased and one Madda Shah had instead gone to the house of Zaheer Abbas for watching the video film there. According to Iqbal Shah, the deceased stayed with them till midnight and later he left for his house. The complainant then went to the police station and recorded his statement, (Exh.P.C). On the basis of which, the F.I.R. Was lodged against unidentified assailant. He also identified the dead body of Ahmad Khan and later he received the same. According to him, he subsequently learnt about the involvement of the appellant in this case because the appellant suspected the deceased of having illicit relationship with his wife namely Mst. Nasira.
4. Dr. Munir Ahmad, Medical Officer, D.H.Q. Hospital, Chakwal, (P.W.4) conducted the autopsy on the dead body of Ahmad Khan. His observation and opinion given in his testimony are reproduced below in extenso:-- "It was a dead body of an average built and stated age with paler face and mouth and eyes closed. The rigor mortis developed all over the body and post-mortem staining on the right side of the body of lower parts in between the area of contact flattening'. The dead body was clad in Kareem colour Kameez Shalwar and white vest. Kameez and vest contained corresponding cut marks and blood soaked. I noted the following injuries:--
(1) An incised/stab wound 4 x 1.5 c.m. On back of right chest 4 c.m. From midline and 11 c.m. Below nape of neck. On dissection it destroyed muscle of the back, pleura, right lung and injured venacava. The whole right chest was full of blood.
' In thorax larynx, left lung, pericardium and heart were healthy and other structure injured.
' In abdomen everything was healthy with half-filled of semi-solid material and bladder almost full with urine.
' Death in my opinion was due to sole injury explained and was totally responsible for death in ordinary course of nature leading to haemorrhage shock and death. The injury was ante-mortem and caused by some sharp-edged weapon.
' Time between injury and death was 5 to 10 minutes and between death and post-mortem was 10 to 14 hours. After autopsy I handed over a well-stitched and washed dead body alongwith relevant papers and clothing to abovesaid constable. The postmortem report is Exh.P.B. Which is original carbon copy and bears my signatures. The pictorial diagram is Exh.P.B./1 which also bears my signatures."
5. Muhammad Saleem (P.W.7) is the witness of the motive. According to him, the deceased was his brother-in-law. Because of that relationship, a week before the occurrence when he was visiting village Bikhari Kalan, the appellant Afraz Akbar came to him and complained that Ahmad Khan had illicit relations with his wife Nasira and asked him to stop him from carrying on such a liaison.
That, however, when he enquired this fact from the deceased, his reply was that there was a mere suspicion against him because the wife of the appellant used to travel on his wagon but he had no illicit relationship with her. He came to know the appellant about 6 to 8 months prior to the occurrence. He stated that although many relatives of the deceased lived in Bikhari Kalan, he did not disclose this matter to anyone else except to the deceased himself. His statement was recorded by the police immediately after the funeral in the presence of several persons whose names he was, however, unable to provide.
6. Asghar Abbas (P.W.9) on the fateful evening of 3/4 June, 1997 is said to have seen the appellant coming from the south of the road carrying a Chhuri in his hand. That he called him but the appellant went in speed towards the house of his in-laws. He learnt about the occurrence over the telephone when he went back to Faisalabad where he worked with a transport company. He immediately returned to the village. He joined police investigation on 4-6-1997 and recorded his statement, that at the middle of the night when he had seen the appellant, he was standing near a bus stop waiting for a bus for taking him, to Faisalabad.
7. Muhammad Khan (P.W.6) is the witness of the recovery of the Chhuri from the appellant. This happened on 20-6-1997 when he was present at Police Station Sadar Chakwal alongwith others.
The appellant made a disclosure and led to the recovery of blood-stained Chhuri (P.4) from the roof of a cattleshed, wrapped in a newspaper, which was taken into possession vide memo. Exh.P.E., which he attested.
8. Altaf Hussain (P:W.10) was present in his house on the night of 4-6-1997 when the appellant came to him and made an extra-judicial confession. He also admitted the motive part of the story and asked for help in bringing about a compromise on the ground that this witness was related to both the parties. He was also told that the appellant was making a confessional statement before him because he had been seen by Asghar Abbas P.W. And the talk of the village was also focusing on him.
9. Manzoor Ahmad (P.W.12) is the Investigating Officer of this case. Who on the statement of Tahir Abbas registered the F.I.R. Exh.P.C. He then proceeded to the spot and prepared the injury statement of Ahmad Khan, Exh.P.G., and inquest report, Exh.P.H. He also prepared the rough site plan, Exh.P.I. He secured the blood-stained earth from the spot vide recovery memo. Exh.P.D. After inspecting the spot, he despatched the dead body of Ahmad Khan through Rafaqat Ali, Constable to the mortuary and later received the last-worn clothes of.The deceased. He recorded the statements of the witnesses under section 161 of the Cr.P.C. On 20-6-1997 he recovered the blood- stained Chhuri (P.4) from the appellant which was taken into possession vide memo. Exh.P.E. And was made into a sealed parcel. The site plan of the place of recovery (Exh.P.J.) was also made by him and he scribed his notes over this document. He got the site plan prepared and parcels containing bloodstained earth and the Chhuri sent to the office of the Chemical Examiner and the Serologist.
10. Amongst the formal witnesses are Munawar Khan (P.W.1) who delivered the sealed parcel containing blood-stained earth to the office of the Chemical Examiner. Rafaqat Ali (P.W.2) escorted the dead body to the mortuary and after getting the post-mortem examination conducted, retrieved the last-worn clothes of the deceased which he handed over to the S.H.O. On 4-6-1997, who took the same into possession vide memo. Exh.P.A. Muhammad Rafique (P.W.3) had stored the parcel of the blood-stained earth intact in the Malkhana on 4-6-1997 and later transmitted it to Lahore on 12-6-1997. He also received the sealed parcel containing Chhuri on 30-6-1997 and later sent them to the Office of the Chemical Examiner through a Constable. Muhammad Sharif, Draftsman (P.W.8) at the instance of the police and the witness prepared the site plan, Exh.P.F. And its copies while writing his own notes in black ink. Those in red ink were written by the Investigating Officer. Nasrullah Khan, Constable (P W.11) took the sealed parcel of tl.e Chhuri to the office of the Chemical Examiner.
11. Report of the Chemical Examiner (Exh.P.K.) and that of the Serologist Exh.P.M. With respect to the blood-stained earth and Exh.P.N. With respect to the Chhuri, were also produced before the trial Court by the prosecution.
12. In his statement under section 342, Cr.P.C., the case of the appellant was one of complete denial.
13. This, of course, was a blind murder and the prosecution case is based on the following pieces of evidence; (a) Waj Takkar, (b) extrajudicial confession, (c) motive, and (d) recovery.
14. A glimpse of the background of the deceased is gathered from the statement of the complainant both in his examination-in-chief and in cross-examination. The following relevant excerpts from his statement are reproduced below:-- "Subsequently, I heard that Ahmad Khan deceased was done to death by Afraz Akbar accused present in the Court due to suspicion of illicit liaison between the deceased and wife of Afraz Akbar accused namely Nasira.
' It is incorrect that said Madda Hussain Shah was suspected of having illicit liaison with mother of the deceased and for that reason he was removed from the wagon of the deceased some time earlier to the present occurrence.
' It is correct that case of abduction relating to Firdous Begum another sister of Ahmad Khan deceased and Muhammad Khan P.W. Was registered against Muhammad Tariq who was their servant."
14. The witnesses who advanced the different pieces of evidence may be related to the deceased but there is nothing on record to suggest their such an enmity with the appellant which may show that they were interested in his conviction and punishment for personal reasons or with a vested interest. While making his statement under section 342, Cr.P.C. The appellant hardly furnished an alternate version of the case. The statement of the P.Ws. With respect to the motive part of the story had come on record immediately after the funeral and later on disclosures were made about the extra-judicial confession etc., therefore, leaving a 'minimum possible chance for substitution.
15. The learned counsel appearing on behalf of the appellant side was not able to advance any cogent argument helpful to the defence in demolishing the case of the prosecution by suggesting motive to the witnesses for a false implication.
16. Argument in alternate of the learned counsel for the appellant related to the question about the quantum of sentence. The learned counsel stated that the deceased was, anyhow, not a Masoom- ud-Dam and having developed illicit relations with the wife of the appellant he had created a constant worry for the appellant with respect to his honour and his home. That even if the prosecution story was to be believed, he did not desist from his nefarious acts even when complaint was made to his brother-in-law Muhammad Saleem (P.W.7). And that, therefore, the appellant could not have been punished under the provisions of section 302(b), P.P.C.
17. The learned counsel appearing on behalf of the complainant side was firm in his argument with respect to the motive part of the story. But when questioned whether the motive part of the story was to be believed and which created no good impression about the deceased, his answer was in the affirmative.
18. This Court, therefore, is of the view on the basis of the prosecution story that the deceased was not a person of good morality and, therefore, was not a Masoom-ud-Dam. He was on the wrong and his entire conduct must have upset the appellant tremendously. By giving a single fatal blow at the back chest, the appellant had not acted in a barbaric way after all his efforts in stopping the deceased from carrying on illicit relations with his wife, had failed. And the possibility may have been that he was aiming only at causing a grievous hurt. But this is just a probability.
19. ' From the circumstances of this case, this Court has drawn the conclusion that the deceased was not a Masoom-ud-Dam and had been a catalyst for provoking the commission of this offence which this Court is trying today. If this conclusion is taken as an extenuating circumstance, it will serve the interest of justice. Whereas the infamous and so-called honour killings of the women are condemned by the civilized society but killings over questions of Ghairat (family honour) where these are provoked, have been accepted by our case-law for grant of lesser sentence and as an extenuating ground. The protection to the family by the State is a principle of policy laid down in Article 35 of the Constitution. Not only the State but also a head of the family has to protect his family and his family honour befittingly. It is but natural that he will be intolerant against acts of disgrace to his family or where someone hurts his honour and tries to destroy his family life. In this connection, reference may also be made to the following cases:-- (1) Ali' Sher v. The State 1999 PCr.LJ 682, (2) Ghulam Yasin and others v. The State PLD 1994 Lah. 392, (3) Muhammad Ishaq v. The State 1998 PCr.LJ 1110 (4) Sardar Muhammad v. The State 1997 MLD 3045 and (5) Ghulam Haider v.
The State 1996 PCr.LJ 2021.
20. Therefore, this Court would modify not only the orders of conviction but also of sentence. The appellant is convicted under section 302(c), P.P.C. And his sentence is reduced from life imprisonment to nine years' R.I. He shall also get the benefit under section 382-B, Cr.P.C. The criminal appeal is disposed of accordingly.
21. In view of the above, this Court finds no good ground for enhancement of sentence as prayed in the criminal revision and which was even otherwise not pressed during the course of arguments and hence it is dismissed.