P L D 1953 Lahore 456 (PLP)

MUHAMMAD JAN, J.‑--Fateh Muhammad, aged 25 years, of Darkhast Jamal Khan in Dera Gazi Khan District, has been convicted under section 304, Part I, P. P. C., for killing his wife Mst. Rani and her lover Tagia, on 20th March 1952. He was sentenced to five years' rigorous imprisonment on each count but the sentences were ordered to run concurrently. There is no direct evidence in this case and the decision rests upon the judicial confession of the accused corroborated by the recovery of the blood‑stained knife Exh. P. 1 and the blood‑stained clothes Exhs. P. 2 to P. 4 from his person. The confession is to the effect that on the day of the occurrence, shortly after sunrise, some camels strayed into the appellant's field. He went to turn them out and on returning to his house heard some whispering from behind a jal tree. He went round and found his wife Mst. Rani committing adultery with Tagia. Tagia had a shirt on but no loin cloth and Mst. Rani had taken off her shalwar. He flew into rage and picking up the knife belonging to Tagia which was lying near him stabbed Tagia to death. He then caught hold of his wife and killed her too. Then he went to a man named Rohel Kalri and told him what he had done. After that he went to Alu Hamadani Lambardar and, accompanied by him, went to the police station where he made a report and handed over the knife. . He adhered to the confession in the Court of Session and was convicted and sen tenced, as stated above, on the basis of this confession. The only points urged in appeal are that the appellant acted on grave and sudden provocation, that he himself informed the police about the offence and that the sentence of five years' rigorous imprisonment is excessive. A number of cases have been cited on the point of sentence which are summarised below:‑ Emperor v. Hira Lal (22 Cr. L J 341). In this case the accused was a Bania who bad found his daughter‑in‑law in a compro mising position with a Muhammadan Faqir. He killed the girl and was convicted under section 304 by the Sessions Judge. A learned Judge of the Allahabad High Court issued notice to him to show cause why he should not be convicted under section 302, P. P. C. When the case came up for hearing before a Division Bench consisting of Walsh and Ryves, JJ., they maintained the conviction under section 304 and observed that in cases of provocation of this kind, the law ought not to be administered in such a way as to encourage the belief that it creates a right in the person provoked. On the other hand, the law in its function of protecting person and property is compelled to award punishment which is not only punitive as applied to the individual but deterrent in the general sense. It was pointed out that according to the authors of the Code, crime on sudden provocation ought to be punished in order to compel a man to respect human life and to control his passions even when they are aroused by grave provocation. The report does not show that sentence was awarded by the trial Court; but, in the opinion of the learned Judges of the High Court, it was not based upon a consideration of the principle enunciated above and they enhanced it to a term of five years' rigorous imprisonment so that it may serve as a deterrent to others. In Chandan Ram v. The Crown (A I R 1923 Lah. 312), the accused woke up at night and found his cousin's wife in bed with a stranger. He killed the stranger and admitted this in Court. He was convicted under section 302, I. P. C., and sentenced to trans portation for life. In appeal, it was held that the crime was committed under grave and sudden provocation. The conviction was, therefore, altered to one under section 304, I. P. C., and the sentence was reduced to three years' rigorous im prisonment. In Muhammad Zaman v. Emperor (A I R 1933 Lah. 165), the accused was convicted under section 304, Part I and sentenced to trans portation for life. In appeal it was held that a man who kills another on seeing him committing adultery with his wife, cannot be put on the same terms as a murderer and the sentence of transportation for life in such a case was too severe. It was reduced to the period of imprisonment already undergone which was about nine months; the order of convic tion having been passed on 8th March 1932, and the appeal being decided on 21st December 1932. In Allah Ditta v. Emperor (A I R 1934 Lah. 428), the accused killed his married sister on seeing her committed adultery. Bhide, J. reduced his sentence from five to three years' rigorous imprisonment. In Hussain v. Emperor (A I R 1939 Lah. 471), one Murad carried on adul terous intrigue with the appellant's wife during his absence and gave her a baby. On Hussain's return, he was told of his dishonour but he controlled himself and did nothing to take revenge. Two years passed like this after which one day Hussain left his village in the morning but unexpectedly returned in the evening. Murad came to Hussain's house and got into the bed of Hussain's wife. Hussain saw this and killed him. Sir Douglas Young, C. J., considered that the provocation was the gravest imaginable because the deceased had taken advantage of Hussain's absence to seduce his wife and to make her pregnant, Hussain had exercised the greatest self‑restraint when he returned to his village and learnt about his dishonour, but when he saw Murad in bed with his wife, even he lost self‑control and killed him. In the circumstances of this case, the sentence of three years' rigorous imprisonment was reduced to a period of three months. These circumstances do not exist in all cases of this kind and the sentence of three months' rigorous imprisonment has not been treated as a stan dard sentence in such cases. In Kadir Bakhsh v. Emperor (48 I C 403), the accused killed his wife and her lover on seeing them in a compromising position. His conviction under section 302 was set aside and his sentence was altered from death to five years' rigorous imprisonment under section 304, P. P. C. The learned counsel for the appellant relies particularly on two cases for reduction of sentence. One is from Peshawar and the other from Baghdad‑ud‑Jadid. In the Peshawar case, Aziz‑ur‑Rahman v. Crown (P L D 1950 Pesh. 76), it was said that "it is an un written but very‑well established law of the Code of morality of this country that a man in order to maintain his honour has the right to kill his wife who ceases to be true to him and is guilty of illegal attachment with another man." With the utmost respect, I am unable to agree that a man has any right to kill his wife if she becomes unfaithful to him. He has the right to divorce her, aright given by. Islam and lawfully exercised by all civilized peoples of the world. The learned Judicial Com missioner of Peshawar, after observing that the appellant in that case "did nothing but obey this Code and also perhaps the dictates of his conscience," proceeded to say that "the existing, law of the land, however, does not excuse the murder under these circumstances although it does give the offender the benefit of Exception I to section 300, I. P. C." In other words, the law reduces an offence of this kind to culpable homicide not amount ing to murder. The appellant in the Peshawar case was con victed under section 302, P.P.C. and sentenced to transportation for life. His conviction was altered to one under section 304, Part 1, P. P. C., and the sentence .was reduced td the term of imprisonment already undergone. The learned Judges said that they had given anxious consideration to the question of sentence and in view of what they had said "about the characteristics of the people of this country and the fact that it would have been quite impossible for the appellant to live honourably in the society to which be belonged if he had not vindicated his honour," he was held to be liable for only a nominal punish ment. The sentence was, therefore, reduced from transportation for life to that already undergone which was only about three months. The order of conviction was dated 31st March 1950, and the appeal was decided on 28th June 1950. This sentence is on par with the sentence awarded by Sir Douglas Young, C. J., in Hussain v. Emperor (supra). In the Baghdad‑ul‑Jadid case, Muhammad Shafi v. Crown (P L D 1950 B J p. 86) the Crown counsel relied upon Hussain v. Emperor (supra) in which Young, C. J. had given three months' imprisonment, and the counsel for the appellant relied upon Muhammad Zaman v. Emperor (A I R 1933 Lah. 165) in which the sentence was reduced from transporta tion for life to the imprisonment already undergone i.e., nine months. Following the decision in Muhammad Zaman's case, the sentence was reduced to the term of imprisonment already under gone which in Shafi's case was less than one month. The order of conviction was dated 10th June 1950, and the appeal was decided on 6th July 1950. I am not in favour of such, light sentences in cases of culp able homicide. They cannot have the desired effect of deterring people from committing such crimes but will, on the contrary, encourage them. In Rehmat Ullah Khan v. The Crown (P L D 1950 Lah. 109), the accused on being told by his wife that a man had entered their house and molested her shot that man dead. He was convicted under section 304 and sentenced to three years' rigorous imprisonment. On appeal I held, in Single Bench, that the sentence was not excessive. I am still of the opinion that a sentence of three to five years' rigorous imprisonment is the appropriate sentence in cases of grave and sudden provocation caused by adultery. The measure of sentence is largely a matter of judicial discretion but, as a working rule for myself, I favour a sentence nearer three years than five where only one person is killed and nearer five than three where two are killed. In this case the appellant has killed two persons and the learned Sessions Judge has, in my opinion, exercised his discretion wisely in sentencing him to five years' rigorous imprisonment. I refuse to interfere with that discretion and dismiss this appeal. A. H. Appeal dismissed.