P L D 1961 (W (PLP)

Date of hearing : 15th November 1960. This is an application by the State for enhancement of sentence passed against the respondent Akbar by Mr. Aziz Ahmad, Additional Sessions Judge, Lyallpur Division at Jhang, in respect of a charge under section 304 Part II of the Pakistan Penal Code. The sentence was imprisonment till the rising of the Court.

2. The allegations against the respondent were that on the night between the 19th and 20th of May 1958, he caused the death of one Muhammad at Mekanwala well in village Ahmad wala in the jurisdiction of Police Station Bhowana. The learned trial Judge found that there was no satisfactory evidence as to how the incident happened, except the confession of the accused himself, recorded by a Magistrate of the 1st Class. In this confession the accused stated that he saw the deceased commit ting fornication with his unmarried sister named Mst. Fateb, and seeing this he lost all self‑control and give beating to the deceased WhiQb Caused his death. The beating was given just behind the sall of the accused. The confession was indirectly confirmed by the Chemical examination of the vaginal swabs taken from Mst. Fateh as well as stains on her chadar which showed that semen was present. The learned trial Judge has observed that "the deceased was fool hardy enough to go to the place of the accused and subject the girl to sexual intercourse under the very nose of the accused and his family. Further, the accused has been in the lock‑up for full one year." For this reason he considered that a sentence of imprisonment till the rising of the Court would be enough. On behalf of the State it is contended that the sentence is ridiculous and not all the commensurate with the gravity of the offence. It is also stated that the sentence is unprecedented in a case of this nature and has resulted in a miscarriage of justice.

3. In order to assess as to what would be an appropriate sentence in cases of this kind, learned counsel for the State has referred me to several authorities which may be briefly noticed. It may be stated that the learned counsel for the respondent, Akbar, also relies on these cases. In Muhammad Zaman v. Emperor (A I R 1933 Lah. 165), husband had seen the deceased having sexual intercourse with his wife and killed him. The trial Judge had sentenced him to transportation for life, but their Lordships comprising the Division bench, which heard the case, observed that a man who acts under grave and sudden provocation of this nature cannot be put on the same terms as an actual murderer, that the sentence was for too severe, and that it should be reduced to imprison ment already undergone. This period appears to be a little over nine months, as the order of the Session Judge is dated the 8th of March 1932, while the appeal in the High Court was decided on the 21st of December 1932.

4. In Hussain v. Emperor (A I R 1939 Lah. 471), a sentence of three months' rigorous imprisonment was considered to be adequate in the case of a husband who bad caught the deceased in the act of sleeping with the accused's wife at night with the intention of committing adultery with her and bad killed the man instan taneously. It was observed that "the mere amount of beating which one gives to the person who deprives him of self‑control is not a proper criterion to take into account in awarding a sentence. The more self‑control is lost the more likely are numerous injuries to be inflicted."

5. The facts in Rahmat Ullah Khan v. Crown (P L D 1950 Lah. 109) were slightly different. The accused, a police constable, was posted on duty at 6 a.m., about 20 yards or so from his house, when his wife came to him naked and said that a man had entered the house in his absence and had outraged her modesty. She further told him that she had locked the man up in the house and had come running to inform him. The accused lost self‑control, went to his house and fired three shots at the deceased, the last one of which felled him to the ground. The offence was held to fall under section 304 of the Penal Code, and a sentence of three years' rigorous imprisonment was not regarded as excessive.

6. Again, in Aziz‑ul‑Rahman v. Crown (P L D 1950 Pesh. 76), the sentence was reduced to that already undergone, and it was observed that "in this part of the country where a mere casual talk by a woman with a stranger is looked upon by the relations and in particular the husband of the woman as well as the society with great disapproval and resentment, the actual act' of adultery must excite feelings incapable of being explained in words". It appears that the judgment of the Sessions Judge was dated the 31st of March 1950, while the appeal in the Judicial Commissioner's Court was decided on the 28th of June 1950. The sentence already undergone would, therefore, amount to less than three months.

7. Reference was also made to a decision of the Bahawalpur High Court, cited as Muhammad Shaft v. Crown (P L D 1950 B J. 86). In that case also the sentence was reduced to that already undergone, and this amounted to less than a month, although the accused was responsible for causing two deaths, namely, that of his wife and her paramour.

8. Finally reference was made to Mewa v. The State (P L D 1958 Lah. 468), where a sentence of three years' rigorous imprisonment was imposed on the accused who had killed the wife of his brother on seeing her sitting in a cluster of kikar trees with a stranger. The accused had shouted for her, upon which the woman and her alleged lover ran away, but he overtook the woman and gave blows on her head with the blunt side of a hatchet which resulted in the fracture of the skull and caused her death.

9. On a review of the authorities cited at the bar, I think it can be stated that then trend of judicial opinion is that heavy sentences are not called for in cases of this kind where the accused loses self‑control on seeing a woman of his family being subjected to sexual intercourse. The two cases where a sentence of three years was considered to be appropriate were those where the accused had not himself seen any such thing, although the element of provocation was nonetheless present. Considering the moral values and notions of honour and chastity, as well as the social customs, which prevail in our society, particularly among the respectable families in the rural areas, it must be regarded as a provocation of the gravest kind for a man to actually witness the degrading spectacle of a woman of his family being subjected to illicit sexual intercourse. If he loses self‑control under the impact of such grave and sudden provocation and assaults the person responsible for bringing this disgrace to him and his family, his ct is clearly such as requires to be viewed in a light different from that in which ordinary criminal acts are regarded. It would follow, therefore, that the punishment to be meted out in such case would have to be measured by a different yardstick. It is this reason that Courts are reluctant to impose heavy punish ments on such offenders. It is not easy to prescribe any particular period of imprisonment which may apply as a general rule in such cases, nor in fact is it desirable to do so, but it would appear that a sentence of a few months' rigorous imprisonment should generally meet the ends of justice in most such cases.

10. Now, in the present case it would have been appropriate if the trial Court had sentenced the respondent to a few months' rigorous imprisonment instead of imprisonment only till the rising of the Court, which I regard as inadequate. At the same time, however, I am not convinced that it is a case where the respondent should now be recommitted to prison for a short time, especially in view of the fact that the respondent has already remained in custody for about one year as an under‑trial prisoner. Taking that factor into account, it cannot be said that there has been any grave miscarriage of justice in not imposing a somewhat longer sentence. The result is that, while not fully endorsing the sentence awarded in this case, I would not order enhancement. The revision petition is, therefore, dismissed. K. B. A. Petition dismissed.