This judgment will dispose of Criminal Appeal No.358 of 2000 filed by Muhammad Rafique and Abdur Rehman's against their conviction and also Criminal Revision No.215 of 2000 filed by Muhammad Nawaz complainant for the enhancement of sentence of the respondents Muhammad Rafique and Abdur Rehman's, as both have arisen out of the same judgment dated 17-7-2000 passed by the learned Additional Sessions Judge, Khanewal by which he found the appellants in Criminal Appeal No.358 of 2000 as guilty of offence under section 302(c), P.P.C. And sentenced them to 25 years' R.I. Each on two counts and both the appellants have also been directed to pay Rs.50,000 each to the legal heirs of each deceased as compensation under section 544-A, Cr.P.C. In default of payment of compensation they were directed to further undergo S.I. For six months on each count. Both the sentences have been directed to run concurrently while extending benefit of section 382-B, Cr.P.C. To them. The other accused were acquitted from the charge by extending them benefit of doubt. Criminal Appeal No.376 of 2000 was filed against their acquittal which admittedly has been dismissed by this Court.
2. The brief facts of the prosecution case are that at 11-00 p.m. In the night between 12/13-5-1997 the complainant alongwith the witnesses on hearing attracted to the house of Abdur Rehman's appellant and they saw in the light of bulb that Muhammad Siddiq and Ghulam Muhammad accused persons had caught hold of Zahoor Ahmad, while Rafiq, Abdur Rehman's, Bashir, Muhammad Aslam and Mustafa accused persons while armed with a hatchet and a Sabbels were giving blows to Zahoor Ahmad; that within their (P.Ws.) view Muhammad Aslam accused gave successive Tooki blows to Zahoor Ahmad which landed on the fingers of his right hand and on his left hand. Abdur Rehman's alias Abbi accused gave a Sabbel blow to Zahoor Ahmad on his head due to which Zahoor Ahmad fell down; that while he was lying on the ground, Muhammad Rafiq accused gave successive blows of hatchets which landed on the back side of the face of Zahoor Ahmad. Bashir accused gave successive blows of hatchet which landed on the right ear and face of Zahoor Ahmad. Mst. Naseem in order to safe her husband fell on him whereupon Mustafa accused started giving Chhurra blow on her neck while Abdur Rehman's and Bashir caught hold of her from her legs and arms. Thereafter Rafiq accused took Chhurra from Mustafa accused and started giving Churra blows on her neck; that on raising alarm by the P.Ws., other inhabitants of the vicinity were attracted to the spot and the accused persons on seeing them by raising Lalkara that whosoever intervened would receive the same treatment, fled away 'from the spot alongwith their respective weapons of offence. It is further stated by - the complainant that he and the P.Ws.
Attended to Zahoor and Mst. Naseem who had succumbed to their injuries. F.I.R. No. 102 (Exh.P.M.) was recorded on the statement of P.W.10 Muhammad Nawaz on 13-5-1997 at 2-15 .P.M. At Police Station, Chub Kalan, District Khanewal under sections 302/148/149, P.P.C. Which was recorded by Muhammad Sharif, S.-I. Not produced and C.W.1 appeared to prove his handwriting. The appellants were arrested on 23-5-1997. The recoveries were effected from them and after the conclusion of the investigation report under section 173, Cr.P.C. Was submitted. Charge was framed against the appellants and their co-accused which was denied by them and in order to prove their guilt the prosecution produced 14 witnesses. The material evidence includes the ocular account furnished by Muhammad Nawaz, Muhammad Rafiq and Farooq P.Ws. 10 to 12 and medical account given by Dr. Abdus Sattar P.W.8 who conducted the post-mortem examination of Zahoor deceased and P.W.4 Dr. Kausar Sultana who conducted the post-mortem examination of Mst. Naseem. The other witnesses are of formal nature whereas the accused in their statements under section 342, Cr.P.C.
Denied the allegations and stated that the case is false. Appellant Muhammad Rafiq when was questioned "why this case against you and why the P.Ws. Have deposed against you" gave the following reply:-- "The case is false and fabricated. The P.Ws. Have deposed falsely because they are closely related to Zahoor deceased. The P.Ws. Are on inimical terms with us due to the abduction of Mst. Naseem deceased by Zahoor deceased. Zahoor deceased abducted Mst. Naseem in the lifetime of her husband Muhammad Ramzan. The husband of Mst. Naseem Mai died after many months of abduction. Zahoor has not married with Mst. Naseem Mai. They were leading immoral life without Nikah and marriage. The complainant party could not produce any Nikahnama and Nikah Khuan during prolonged investigation. Now they had fabricated forged Nikahnama and Nikah Khuan who had deposed falsely in the Court as is evident from his evidence in the Court.
Mst. Naseem Mai was restored through the intervention of Malik Zakir Lurka Ex-M.P.A. And other respectables of the Brothery. She was kept in the house of Abdur Rehman's co-accused with her sister Mst. Shamim Mai were of Abdur Rehman's co-accused. On 12-5-1997, I and Abdur Rehman's had gone outside for threshing of wheat and Mst. Shamim was also not present in the house. When I and Abdur Rehman's came back to the house of Abdur Rehman's in Chak No.62/15-L, we saw Mst.
Naseem Mai lying in a room with Zahoor Ahmed in objectionable position. We could not tolerate the position. I being real brother and Abdur Rehman's being brother-in-law of Mst. Naseem Mai lost control of ourselves and out of Ghairat and sudden and grave provocation inflicted injuries on the person of Naseem Mai and Zahoor due to which both died there. No other accused was present there nor had taken part in the occurrence with us. Nobody had abducted Zahoor Hussain from Adda Vaginawala to our house rather Zahoor deceased himself taking benefit of our absence came to the house of Abdur Rehman's to commit Zina with Mst. Naseem Mai. Other accused had been implicated due to relationship with us. The complainant or any other witnesses were also not present there nor they had witnessed the occurrence. They had deposed falsely due to enmity with us over the abduction of Mst. Naseem and their relationship with the deceased. There was no source of light in the house of Abdur Rehman's. Electric bulb has been shown wrongly for the identification of accused. In fact we informed the respectables of the village who informed the police. The police visited the spot, removed the dead bodes to Civil Hospital, Mianchannu prior to the registration of case. The dead bodies were naked. They were cladded later on by the police in consultation with complainant party. The police later on after spot inspection and preliminary investigation called the complainant and P.Ws. And registered this false case against us and all other family members and relatives. The Roznamcha was stopped and the case was registered after long discussions and consultations, with the complainant party that is why the post-- mortems were delayed. "
Abdur Rehman's appellant also gave the same reply. The learned trial Court after hearing the parties acquitted the co-accused and convicted the appellants under section 302(c), P.P.C., hence this appeal.
3. Learned counsel for the appellants contends that the learned trial Court has correctly disbelieved the ocular account, recoveries and the motive and has convicted the appellants under section 302(c), P.P.C. On the statements of the appellants alone. The main contention of the learned counsel for the appellants is that the learned trial Court has erred in not accepting the defence version in toto. It is further contended that the defence version in toto is to be accepted which is the basic principle of criminal administration of justice and relies on judgments reported as "1992 SCMR page 983" and The State v. Muhammad Hanif and 5 others 1992 SCMR page 2047. It is further contended that the sentence awarded under section 302(c), P.P.C. Is liable to be reduced as it is established on record that the occurrence had taken place due to grave and sudden provocation by the appellants when Muhammad Rafique brother of Mst. Naseem Mai and Abdur Rehman's brother-in-law of said Mst. Naseem saw both the deceased in compromising position and lost self-control. He relies on the State through Advocate-- General, N.-W.F.P., Peshawar v. Taus Khan and 2 others 2001 SCMR page 1416 and Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 at page 291 and also contends that no compensation can be awarded to the legal heirs of the deceased who were found in such a situation and were involved in immoral act.
4. Learned counsel appearing on behalf of the complainant while pressing criminal revision for enhancement of sentence has opposed this appeal and contended that it is a case of maximum sentence and both the appellants/accused by accepting criminal revision are liable to be convicted and sentenced to death as the learned trial Court has erred in law by bringing their case under section 302(c), P.P.C. Instead of section 302(b), P.P.C. It is further contended that awarding of lesser punishment to the accused under the garb of grave and sudden provocation and family honour has been deprecated by the Supreme Court of Pakistan and relies upon Abdul Zahir and another v. The State 2000 SCMR page 406. He also contends that the Division Bench of this Court in Muhammad Khan and others v. The State and others 2001 PCr.LJ page 1766 has awarded the death sentence to the accused in similar circumstances. It is also contended that it is a cold blood double murder and nobody can be given a licence for murder under the garb of Ghairat hence notice in revision petition may be issued. It is further contended that the running of sentences concurrently has been ordered while very lenient view by the learned trial Court whereas sentence for each murder has to be served separately. It is further contended that it was proved on the record that Mst. Naseem who was aged about 45 years became widow when her husband Muhammad Ramzan on 23-12-1995 died and she contracted marriage with Zahoor Ahmed on 8- 10-1996 after 10 months which Nikah was conducted by said Zahoor Ahmed with a widow and same is encouraged by Islam whereas respondents/accused have no legitimate right to kill the deceased when they were leading a matrimonial life and P.W.13 Muhammad Tayyab appeared to prove the death of said ,Muhammad Ramzan hence prays for the acceptance of the revision petition.
5. I have heard the learned counsel for both the parties and also perused the record carefully. The learned trial Court has not relied upon the ocular account and held that the witnesses were not present at the spot. The story of the prosecution has been found incorrect. The motive also has not been found as true. The conviction has been passed on the statements made by the appellants while replying question No.9 why this case against them in which both of them have stated that they had murdered both the deceased while seeing them in a compromising position. The, case- law relied upon by the learned counsel for the complainant reported in "2000 SCMR page 406" is not applicable to the facts and circumstances of this case as these observations have been made by the august Supreme Court in the cases where the murders were being committed due to "Siah Kari" and those were cold-blooded murders committed merely on suspicion by the brothers and husbands. The facts of this case are entirely different as the case of the appellants is that they found both the deceased in the house of Abdur Rehman's appellant who was brother-in-law of Mst. Naseem deceased and saw both the deceased in a compromising position and having lost their self-control in the state of grave and sudden provocation had given the injuries to them.
Similarly the case-law cited by the learned counsel for the complainant "2001 PCr.LJ 1766" is also on different footing. In this case it has been held that in cold-blooded murder cases the accused cannot be sentenced with lesser punishment on the plea of grave and sudden provocation.
However, "PLD 1996 SC 276" cited by the learned counsel for the appellants is applicable to the facts and circumstances of this case and is more fit in, in the peculiar circumstances of this case. The Supreme Court of Pakistan set aside the acquittal order of an accused who had committed the murder under grave and sudden provocation and due to "Ghairat" and awarded him the sentence which he had already undergone. All the cases have been discussed including the case of Gul Hassan Khan reported in PLD 1989 SC 633 and has relied upon the case of Muhammad Hanif reported in 1992 SCMR page 2047 but has not relied upon The State v. Abdul Waheed alias Waheed 1992 PCr.LJ page 1596, where the lesser punishment to the extent of years sentence was passed under section 302(c), P.P.C. To Muhammad Hanif as he committed the murder due to the circumstances which put him in the state of grave and sudden provocation. The relevant portion of the judgment is reproduced as under:-- "It has been seen also that the judgment of the Bench of the Supreme Appellate Court which decided Abdul Waheed case '1992 PCr.LJ page 1596' was based upon the views of Maulana Muhammad Taqi Usmani, J. In Gul Hassan Khan case. The ratio of Abdul Waheed case was explained and if we may say so with great respect, was explained away, in Muhammad Hanif case 1992 SCMR 2047. Fortunately for the development of the Islamic Penal Law, Shafi-ur-Rehman's, J.
Was able in Muhammad. Hanif case; to discover the Qur'anic provision in Verse 34 of Sura Al-Nisa and to enunciate the law that in such circumstances the offender has a right of self-defence which includes the right to defend the honour of his were and that such a case falls under section 302 clause (c) of the P.P.C. I respectfully adopt the view of Shafi--ur-Rehman's, J. In Muhammad Hanif case as also the reasons supporting it. I may add that the fundamental right to act as 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 and on the principle of interpretation enunciated by the U.S. Supreme Court and adopted by this Court in Muhammad Nawaz Sharif case. PLD 1993 SC 473, 557, peripheral rights or rights of pnumbra, 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 honour of his women and to defend them from outrage, disgrace and insult. "
This dictum (I use this expression purposely) tends to give the impression that clause (c) of the new section 302 of the P.P.C. Is limited to cases mentioned in this new section 306, P.P,C. Namely (a) when an offender is a minor or insane (b) when an offender causes death of his child or grandchild howlowsoever and (c) when any Wali of the victim is a direct descendant, howlowsoever of the offender. If this impression be correct, then, I would venture to say, and I do so with great respect, that it does not take into account the provisions of the new section 308 which provides that where an offender guilty of Qatl-i-Amd is not liable to Qisas under section 306 of the Qisas is not enforceable under clause (c) of section 307, he shall be liable to Diyat. So, for cases enumerated in section 306, punishment is provided in section 308 and that punishment is the payment of Diyat.
On the other hand the cases falling in the category of Qatl-i-Amd but punishable under clause (c) of section 302, P.P.C. Are punishable with imprisonment of either description for a term which may extend to twenty-five years. It seems to me, therefore, that the class of cases to which clause (c) of section 302 applies is different from the cases enumerated in section 306 and punishable under section .308 and that clause (c) of section 302 is not limited to cases enumerated in section 306 and punishable under section 308: "The new section 302 itself divides Qatl-i-Amd, for purposes of punishment into three categories: (1)Qatl-i-Amd which . Is punishable with death as Qisas; (2)Qatl-i-Amd punishable with death or life imprisonment as Tazir; and (3)Qatl-i-Amd punishable with imprisonment of either description for a term which may extend to twenty-- five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.
Section 302 of the P.P.C. Therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl-i-Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) or section 302 the law-maker has left it to the Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the cases covered by the Exceptions to the old section 330, P.P.C. Read with the old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C. In this connection I should be content I to refer to by translation by Manzoor Ahsan Abbasi), Volume V at page 582 which enumerates a large number of situations in which Qisas is not liable for Qatl-i- Amd; one of the situations mentioned by the learned author at page 584:--
6. From the above discussion I do not find any merit in the revision petition for the enhancement of sentence awarded to the respondents/appellants as both of them have been convicted on their defence plea and the Nikah of Mst. Naseem with Zahoor Ahmad was not found by the learned trial Court as a true story. It is not a cold-blooded murder hence the case-law cited by the learned counsel is not applicable to the facts and circumstances of this case. The presence of Zahoor Ahmad and Mst. Naseern in the house of the deceased Mst. Naseem in the odd hours and according to the convicts in a compro--mising position does not warrant the award of maximum punishment to the convicts in the case in hand hence the revision petition has no merit and is liable to be dismissed.
7. Both the appeal and revision petition are dismissed and the impugned judgment of conviction and sentence is maintained.