RANA BHAGWAN DAS, J.--- Leave to appeal, arising out of judgment dated 20-11-1998 passed by Lahore High Court, Bahawalpur Bench dismissing appellant's appeal against his conviction and sentence of A death for the murder- of deceased-Safdar Hussain, was granted in order to examine the question of quantum of sentence.
2. Prosecution case in nutshell, as per F.I.R. Lodged by Ghulam Nabi Complainant at Police Station City-Khanpur on 13-6-1993 at 7-15 a.m, appears to be that 2/3 months earlier, appellant- Muhammad Saleem and coaccused-Murid Hussain had a fight with the complainant party.
Appellant suspected that deceased-Safdar Hussain, brother of complainant had illicit relationship with his aunt Mst. Manzooran, Muhammad Shaffi, Vice-Chairman, District Council had convened a Punchayat and brought about reconciliation amicably but appellant and his co-accused harboured a grudge and did not appear to be, satisfied with the settlement. On the fateful day, at about 6-30 a.m. Ghulam Nabi as well as his brother Safdar Hussain went to Khanpur City for their livelihood. They were followed by Ashiq Hussain P.W-8, Abdul Hakeem P.W.9 and Rab Nawaz (not produced). At about 7-15 a.m., when they reached Chowk Nawan Kot deceased-Safdar Hussain was going ahead on bicycle at some distance from the complainant. At this moment, appellant- Muhammad Saleem armed with .12 bore pistol while accused Murid Hussain (since acquitted) armed with .12 bore gun were proceeding on a Yamaha Motorcycle followed by Muhammad Iqbal, Muhammad Hayat and Muhammad Asghar riding on C.D. 70 Motorcycle. Out of them Muhammad Iqbal was carrying a .12 bore gun with him. Murid Hussain fired from his weapon in the air and stopped Safdar Hussain, whereafter appellant Muhammad Saleem fired from his .12 bore pistol hitting the back of the deceased on his left side shoulder, who fell down. Complainant party tried to apprehend the assailants but Muhammad Iqbal pointed out his gun towards them and threatened to kill them if approached. Thereafter, the assailants while firing in air drove away on their motorcycles while firing in air. Safdar Hussain succumbed to his injuries. Besides the appellant, accused-Muhammad Iqbal, Murid Hussain, Muhammad Hayat and Muhammad Asghar were nominated in the F.I.R. As responsible for committing the murder.
3. During the course of investigation, appellant alone was found responsible for the commission of murder, therefore, other accused were got discharged. Ghulam Nabi, however, filed a private complaint after 36 days against Muhammad Saleem, Murid Hussain, Muhammad Iqbal, Muhammad Hayat and Asghar Ali but, after holding preliminary inquiry, trial Court summoned only appellant-Muhammad Saleem, Murid Hussain and Muhammad Iqbal. Complaint case as well as State case were tried together and three accused were charged under section 302/34, P.P.C. For the commission of murder. On assessment of evidence, learned Additional Sessions Judge, Rahim Yar Khan found the appellant guilty of the charge and convicted him under section 302(b), P.P.C.
He was sentenced to death and to pay compensation of Rs,15,000 to the legal heirs of the deceased or in default to undergo R.I. For six months. Co-accused Murid Hussain and Muhammad Iqbal were extended the benefit of doubt and acquitted.
4. In his statement under section 342, Cr.P.C., appellant denied the accusation and alleged that he was falsely implicated on account of enmity of the complainant. With regard to the witnesses, he stated that they belonged to far off area, were interested in the complainant and inimical towards him, therefore, they had given false evidence. He also disputed the recovery of .12 bore pistol at his pointation and complained of plantation at the behest of complainant. In appeal against conviction and murder reference for confirmation of death sentence, learned Division Bench of the Lahore High Court, on reappraisal of the evidence, upheld the conviction and death sentence and dismissed the appeal. Petition for leave to appeal against acquittal of co-accused Murid Hussain and Muhammad Iqbal was also dismissed. As being without any merit.
5. As observed earlier, at the leave granting stage, learned Advocate Supreme Court for the appellant did not challenge the vires of the conviction on merits but agitated the question of sentence on the averments. That in view of the motive admitted by the prosecution in the F.I.R. And for the ends of justice, appellant was entitled to lesser penalty instead of capital punishment.
6. We have heard Mr. Munir Ahmad Bhatti, learned Advocate Supreme Court for the appellant, Ch. Arshad Ali, learned Advocate Supreme Court for the State duly assisted by Haji Qaiser Muhammad Shaffi, learned Advocate Supreme Court for the complainant. Learned counsel for the appellant vehemently contended that since the deceased was suspected to be on illicit relationship with Mst.
Manzooran aunt of the appellant, he acted under grave and sudden provocation and that this circumstance per se was strong extenuating factor for the award of lesser penalty in terms of section 302(b), P.P.C. Learned counsel urged that it was in order to save family honour that the appellant committed the murder of the deceased and was, thus, liable to lesser punishment. In order to reinforce his submissions, learned counsel relied upon Muhammad Afzal v. State (1987 SCM R 1864), Abdul Aziz v. State (1994 SCM R 35), Ghulam Hussain v. State (PLD 1994 SC 3.1), Shamoon v. State (1995 SCM R 1377), Shera v. State (2000 PCr.LJ 139) and Nazir v. State (2000 PCr.LJ 175).
7. On the other hand learned counsel for the State, assisted by private counsel for the complainant, seriously controverted the submissions of the learned counsel for the appellant and urged that this was neither a case of sudden and grave provocation nor act of the appellant, to save his family honour. Suspicion about illicit relationship of deceased with Mst. Manzooran about 2/3 months before the occurrence was settled once for all in a Punchayat. It was further submitted that Mst.
Manzooran was residing with her sons and daughters and not under the care or custody of the appellant, who cannot plead family honour for illusory and imaginary suspicion of illicit liaison between her and the deceased at this stage. At any rate, this plea was neither raised by the appellant before the Investigating Officer nor before the trial Court. He referred to the cases reported as State v. Muhammad Hanif (1992 SCM R 2047), Farman Ali v. State (1992 SCM R 2055), Ali Muhammad v. Ali Muhammad (PLD 1996 SC 274), Abdul Haq v. State (PLD 1996 SC 1), Noor Muhammad v.. State (1999 SCM R 2722), Waris Ali v. State (1999 SCM R 1469), Abdul Salam v. State (2000 SCM R. 338), Sarfraz v. State (2000 SCM R 1758), Muhammad Akram Khan v. State (PLD 2001 SC 96) and Robina Bibi v. State (2001 SCM R 1914).
8. In Muhammad Afzal (supra), this Court declined leave to appeal against enhancement of sentence of life imprisonment to death, as it was noticed that, on prosecution's own showing, respondent had killed the deceased in order to rehabilitate his family honour. In Ghulam Hussain (supra), leave to appeal was granted, inter alia, to consider the question whether the plea of grave and sudden provocation taken by one of the accused at the trial had received due attention of the High Court. On reappraisal of evidence accused were found, responsible for doing away with the lives of two persons but under grave and sudden provocation and, thus liable under section 304, Part. I, P.P.C. (before amendment). On merits of the case it was found that accused had been able to substantiate their plea of suspicion of illicit relationship of deceased-Muhammad Ashraf with Ghulam Hussain's real sister Mst.Zohra. In Abdul Aziz's case (supra), this Court expressed its reluctance to interfere with the alteration of sentence from sentence of death to life imprisonment by the High Court as the High Court had found the penalty of death awarded to the accused unjustified for the reason that material evidence to support the motive had not been produced. In the case of Shamoon (supra), conviction of accused was solely based on his admission under section 342, Cr.P.C. It was laid down by this Court that it was not open to the Courts below to have relied upon only that part of his statement in which he admitted having killed the deceased and to discard that part of his statement in which he stated that it was done under grave and sudden provocation as he had found the deceased in a compromising position with his wife in the early hours of morning. Shera's case (supra) was decided by Lahore High Court in which the accused was found to be of 16 years of age at the time of occurrence but he was mature enough to realize the consequences of his act of murder. Sentence of death awarded to him under section 302, P.P.C.
Being illegal was, thus, set aside and accused convicted under section 308, P.P.C. With the observation that vindication of family honour could be treated as extenuating and mitigating circumstance in favour of the offender. In Nazir v. State (supra), learned Judge in Chambers of the Lahore High Court, on reappraisal of evidence, concluded that the deceased was not done to death as alleged by the prosecution in F.I.R. But he was killed by the appellant under impulse of grave and sudden provocation. He altered the conviction from section 302(b), P.P.C. To section 302(c), P.P.C. Suffice it to observe that the facts and background of the cases relied upon are quite dissimilar to the facts of this case and, thus, of no assistance.
9. In the facts and circumstances of the present case, in which active and specific role of firing at the deceased was attributed to the appellant, after due preparation and premeditation, it is hard to believe that he acted under grave or sudden provocation. Obviously, the suspicion of illicit liaison between the deceased and Mst. Manzooran had been amicably settled about 2/3 months before the occurrence by Punchayat and there was hardly any immediate cause prompting the appellant to do away with the life of an innocent person. For all intents and purposes it was a past and closed issue. The appellant having followed the deceased, duly equipped with a deadly weapon and hitting at him in a pre-planned manner can hardly be said to have acted under heat.
Of passion or completely lost control over his sentiments. Indeed, the facts and circumstances of the case manifestly tend to show that it was deliberate, intentional and pre-concerted move on the part of the appellant to find out an opportunity to eliminate the deceased in order to satisfy his so-called honour, false ego and prestige without any legal or moral justification. Precedent cases are, thus, of no assistance to him. Needless to point out, every judgment in a criminal case must be read in the context of its peculiar facts and cannot be applied in each case as misunderstood by the learned counsel.
10. Admittedly, Mst. Manzooran being the sister of father of the appellant was not residing with the appellant and he did not notice the deceased in her company in an objectionable position. Plea of family honour might have been available to him if he had seen the deceased in a compromising position with his close kith and kin residing with him when it could probably be said that he was deeply charged by emotion and lost his self-restraint and control. It is common knowledge that in our less civilized and under-developed social set up, people tend to take the law in their hands; adopt unlawful means to achieve undesirable objects and seek shelter behind a plea of grave and sudden provocation in order to avoid the consequences of their inhuman acts. In the peculiar circumstances of this case, we are firmly convinced that the appellant neither acted under grave nor sudden provocation. In fact no such plea was advanced by him after his arrest or at the trial.
Not a single question was suggested to any of the two ocular witnesses namely Ashiq Hussain P.W.8 and Abdul Hakeem P.W.9, which manifestly reflects upon the hollowness of his afterthought plea. After minute scanning of the prosecution evidence in juxtaposition to the defence theory at the trial, we are of the firm view that the prosecution had no motive to charge the appellant falsely.
The defence plea raised on behalf of the appellant, on the face of it, is absurd, unnatural and afterthought. Indeed such plea appears to be cooked-up in order to save appellant from the clutches of Qisas. In the absence of Tazkiya-e-Shuhood of the P.Ws. Within the contemplation of Article 17 of the Qanun-e-Shahadat Order, 1984, conviction and sentence against the appellant was rightly recorded by way of Ta'zir. In our view, no person has the legal or moral right to take away the life of a human being in the disguise of "Ghairat". Indeed, act of Qatl-iAmd, being iniquitous and vile act is manifestly violative of fundamental right guaranteed under Article 9 of the Constitution which lays down that no person shall be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8 of the Constitution.
11. Adverting to the case-law cited on behalf of the State, in Muhammad Hanif (supra), Supreme Appellate Court of Pakistan observed that no exception has been provided in section 302, P.P.C., which only contains a substantive law and the prosecution has to prove every part of it i,e, whether it is a Qatl-i-Amd liable to Qisas, Qatl-i-Amd not liable to Qisas or Qatl-i-Amd liable to Ta'zir. In Farman Ali (supra) Supreme Appellate Court, on reappraisal of evidence, upheld the conviction and sentence of the accused. This case in fact did not deal with the question of mitigation of sentence on account of provocation. In Ali Muhammad's case (supra), this Court laid down certain illustrations for accepting plea of grave and sudden provocation namely provocation consisting of three elements the act of provocation, the loss of self-control, both actual and reasonable and the retaliation proportionate to the provocation--their relationship to each other--particularly in point of time, whether there was time for passion to cool, would be of the first importance. The point to emphasise is that provocation in law means more than a provocative incident. It is not all provocations that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control as a result of which he commits the unlawful act which causes death. In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind. In Abdul Haq's case (supra) expression "having regard to the facts and circumstances of the case" in section 302(b), P.P.C. Under which sentence is provided for death or life imprisonment as Ta'zir utterance attributed to the deceased by the accused that the deceased had sworn at him saying that "if acquitted, he would commit Zina with his wife and with the wives of other members of his tribe" was considered to be a relevant factor for mitigation of sentence. No doubt, sentence of imprisonment for life was awarded to the accused in the said case but the facts of the instant case are altogether distinguishable. In Waris Ali's case (supra), in the absence of extenuating circumstances, it was ruled that Courts, on proof of accusation for causing murder, should normally award death penalty. In Noor Muhammad's case (supra), it was laid down that, it is not a universal rule that whenever the motive alleged by the prosecution is found to be weak or not proved, the Court is bound to award lesser sentence than death for the murder nor it can be said that an accused is entitled as a matter of right to claim lesser sentence than death when he allegedly acts under the influence of his father or any other elder member of his family. It was firmly laid down that it is high time that Courts should realize that they owe duty to the legal heirs/relations of the victims and also to the society. Sentences awarded should be such, which should act as a deterrent to the commission of offences. Earlier decision in State v. Farman Hussain (PLD 1995 SC 1) was reaffirmed laying down the principle that the approach of the Court should be dynamic and if it is satisfied that the offence has been committed in the manner as alleged by the prosecution, the technicalities should be overlooked without causing any miscarriage of justice. In Abdus Salam's case (supra), basic difference as regards punishment provided in clauses (a) and
(b) of section 302, P.P.C. Highlighted reiterating that where Qatl-i-Amd cannot be punished with death as Qisas under section 302(a), there was no bar in awarding punishment of death as provided by section 302(b), P.P.C. The maxim 'falsus in uno falsus in omnibus' was elaborately interpreted in Sarfraz v. State, which is not attracted in the circumstances of the case. In Muhammad Akram Khan's case (supra), defence plea of the murder having been committed under grave and sudden provocation was rejected and the motive being directly against the deceased, plea of 'Ghairat' was held to be not a mitigating circumstance. The case of Robina Bibi (supra) is distinguishable on facts, in which this Court elaborately dealt with evidence of last seen and retracted judicial confession.
12. On an overall assessm ent of the evidence in the light of the precedent case-law, legal position appears to be that where prosecution has established the guilt of the accused by satisfactory and reliable evidence on the touchstone of Tazkiya-e-Shuhood, normal penalty for Qatl-i-Amd is Qisas i,e, penalty of death in which the Court is left with no' option. However, if the witnesses do not qualify the standard of competent witnesses, as prescribed by Islamic Injunctions, conviction can be recorded under clank (b) of section 302, P.P.C., by way of Ta'zir i,e, death or imprisonment for life, depending on the facts and circumstances of each case. If the prosecution case is proved to its hilt, normal penalty of death must be awarded but in cases with extenuating circumstances, Court is required to judiciously consider the award of life imprisonment, which is also a sentence for Qatl- i-Amd recognised by law as Ta'zir. The facts of every case may vary, therefore, no hard and fast rule of universal application can be laid down but suffice it to say where the accused is able to demonstrate that he was deprived of his capability of self-control or that he was swayed away by circumstances immediately preceding the act of murder or there was an immediate cause leading to serious provocation, Court may be justified in mitigation of sentence. No doubt, wider discretion is conferred upon the Court, under all circumstances it must be exercised in a judicious manner and not at the whims of the Court in an arbitrary manner.
13. As a sequel to the aforesaid discussion, we are of the considered view that the sentence of death was rightly and lawfully awarded to the appellant which does not admit of any interference by this Court. For the aforesaid circumstances, facts and reasons, appeal fails and is hereby dismissed.