1989 PLP 10)5 (SCMR)

Date of hearing: 22nd June, 1988. ALI HUSSAIN QAZILBASH, J.‑‑This is an appeal by (cave against the order of a learned Division Bench of the Lahore High Court, dated 27‑10‑1985, whereby the appeal of Abdur Rashid appellant as well as the revision petition filed by the complainant were dismissed.

2. The occurrence in this case took place on 16‑11‑1981 at 10 in the morning in front of the Baithak of Muhammad Siddique deceased in village Thathi Noor Ahmad Shah, Tehsil Pindi Gheb, District Attock, the report of which was made at 12.45 by Muhammad Aslam in the Civil Hospital Pindi Gheb. It was alleged that on the fateful day Muhammad Siddique deceased and his cousin Muhammad Aslam P.W. were sitting in front of the Baithak of the deceased and were chiselling grave stones. In the meantime the appellant alongwith his two brothers, namely, Mushtaq Ahmad and Ghulam Sarwar (acquitted accused), appeared appeared ), on the scene, raised Lalkaras and thereafter the appellant fired a shot from his pistol hitting the deceased effectively on the right side of his head and he fell down. hlushtaq Ahmad (acquitted accused) then fired a shot at Muhammad Aslam complainant which hit him at his back on the right side. Thereafter, Ghulam Sarwar (acquitted accused) fired a shot at Muhammad Aslam P.W. hitting him inside the right thigh. On the alaram, Abdur Rchman and Mehr Muhammad (both not produced) as well as Mst. Saran Bano P.W., mother of Muhammad Aslam P.W., were attracted and on seeing the witnesses the appellant and his two co‑accused ran away.

3. The motive given for the commission of the crime in the F.I.R. is that Mushtaq Ahmad (acquitted accused) had raped the wife of Muhammad Aslam in 1977. He was convicted and sentenced to five years' R.I. In retaliation, Muhammad Siddique deceased and Muhammad kslarn P.W. had molested the sister of the appellant and the acquitted accused, they were tried, convicted and sentenced to one year's R.I. The present occurrence is as a result of the previous enmity.

4. The report was recorded by Muhammad Anwar P.W. in the hospital and on its basis F.I.R. Ex. P.N/1 was drawn.

5. The investigation in 'his case was conducted by Dost Muhammad, then S.H.O. Pindi Gheb (P.W. 15). On the arrest of the appellant and his co‑accused and after the completion of the investigation the appellant alongwith his co accused was put to trial where the prosecution in support of its case produced as many as 15 witnesses including the doctor. The two acquitted accused denied the charge against them as well as the recovery of the crime weapons. Abdur Rashid appellant also denied the occurrence as put forth by the prosecution and also the motive. He also disowned the recovery of pistol Ex. P.9 and as to the case against him stated: "On 15‑11‑1981, I went to sec my sister at village Thatti Nur Ahmad Shah from Rawalpindi. I stayed the night there and when I came out in the morning of 16‑11‑1981, 1 happened to see Muhammad Aslam P.W. standing in the crossing. He started abusing me saying why I had come to the village. I grappled with him. In that process, he took out a revolver from his dab which I snatched from him and fired two shots at him. Hearing alarm, Muhammad Siddique deceased came out of his house with a Tesa in his hand and tried to attack me and I in self‑defence fired at him and he fell down. Thereafter, I ran away to the house of my sister and shut myself in the house. The police came in the evening and I appeared before them and handed over the revolver."

6. The trial culminated in the conviction of the appellant under section 302/307, P.P.C. and the learned Sessions Judge, Attock, vide his judgment dated 15‑1‑1983, sentenced the appellant to death for committing the murder of Muhammad Siddique and a fine of Rs.20,000 or in default 1o two years' R.I. He was further sentenced under section 307, P.P.C. for attempting at the life of Muhammad Aslam P.W. to ten years' R.I. and a fine of Rs.10,000 or in default to undergo one year's R.I. It was further ordered that out of the fine, if realized, half of it shall be paid to the heirs of tile deceased and the remaining half to Muhammad Aslam P.W. as compensation. Mushtaq Ahmad and Ghulam Sarwar accused were, however, acquitted by giving them the benefit of doubt.

7. On appeal by Abdur Rashid appellant, the High Court maintained the conviction and sentence imposed by the trial Court whereas the criminal revision filed by the complainant was dismissed.

8. The only question for which have had been granted is to consider whether in the facts and circumstances of the case the appellant is entitled to a lesser sentence.

9. We have heard the learned counsel for the parties. The plea set up by the appellant in his statement under section 342, Cr.P.C. was that of self‑defence which stood discarded by the learned trial Court as well as the learned appellate Court and the same is sustained. The learned counsel for the appellant submitted that earlier Mushtaq Ahmad, the acquitted accused, may have criminally assaulted the wife of Muhammad Aslam P.W. but then Muhammad Siddique deceased and Muhammad Aslam P.W. had no right to outrage the modesty of the sister of the appellant, Mushtaq Ahmad and Ghulam Sarwar, the acquitted accused, because she was not at all responsible for that incident. Since the family honour was involved, the appellant obviously was smarting under the feeling of disgrace which resulted in the present occurrence and is, therefore, entitled to a lesser punishment. This question though raised before the High Court has been repelled as under: "Be that at it may, the background of enmity between the parties is obnoxious because they have been either molesting or raping the women‑folk of each other and this incident had taken place in this background. In our view the appellant does not deserve any sympathy in the circumstances of the case." With respect, we would not agree with the above. Once it is admitted that the incident was as a result of outraging, molesting or dishonouring of women‑folk, I the accused earns for himself an advantageous position to a certain extent. In the I case in hand though the incident of molestation of the sister of the appellant by the deceased and his cousin Muhammad Aslam P.W. had taken place 5/6 years, earlier, the appellant being a youngman must be carrying in himself the sting of continuing provocation which furnishes an extenuating circumstance for a lesser penalty.

10. Thus, maintaining the conviction of the appellant ant under section 302, P.P.C. his sentence from death is altered to imprisonment for life. The sentences under sections 302, and 307 shall run concurrently. The benefit of section 382‑B, , Cr.P.C. is allowed. The sentence of fine on both the counts is, however, maintained.