P L D 2003 Karachi 655 (PLP)

5. An incised wound 10 c.m. into 2 c.m. backside of right thigh.

6. An incised wound 4 c.m. into 5 c.m. on backside of left thigh.

7. An incised wound 8 c.m. into 2 c.m. on left leg. "Walls ruptured; pleura right lung congested arid ruptured. Blood vessels ruptured on affected side. Stomach contained some digested food. Right tibia, left tibia left fibula. right ulna and radires fractured." After external and internal examination, he is of the opinion that death has occurred because of shock and haemorrhage due to damages to vital regions mentioned above. Injuries were anti mortem in nature and appear to have been caused by discharge from fire‑arm (Injuries Nos. 1, 2 and 3), rest by sharp cutting weapon (Injuries No.4, 5, 6, 7 and 8). The injuries No. 1 and 2 individually and all collectively are sufficient to cause death in the normal course of life. The time between injuries and death was instantaneous.

16. In cross he admitted that while conducting the post‑mortem of deceased Qadir he did not see any mark of abrasion on his person.

17. On examination of dead body of Mst. Shehzadi, he, found as under:‑‑‑ A lacerated punctured wound of 1/2 c.m. in diameter at right hypocboudrien region. A lacerated punctured wound of 1 c.m. in diameter at left hypocboudrien region. A lacerated wound of size 4 x 10 c.m. at right fore‑arm with blackening. A lacerated punctured wound of size 1 and c.m. in diameter at back of right side of chest. Injury No.5. An incised wound at right thigh on interior surface of size 1 c. m. x 2 c. m. An incised wound of 1/2 c.m. x. 3 c.m. on right leg on posterior surface. An incised wound at left thigh back, of size 1/2 c.m. x 3 c.m. An incised wound of 1 c.m. x 1 c.m. on left leg on posterior surface. "The wall of thorax ruptured with pleurae and right lung ruptured and perforated. Blood vessels ruptured at side of injuries. The abdominal walls and peritoneum ruptured. Stomach contained some digested food: Small intestine and large intestine perforated. Both kidneys damaged."

18. He opined that the death was caused due to shock and haemorrhage, and damage of vital organs mentioned above; injuries were ante‑mortem, appeared to have been caused from fire‑arm (injuries Nos.1, 2, 3 and 4). Injuries Nos.5, 6, 7 and 8 have been caused by sharp cutting weapon. The injuries Nos. 1, 2 and 4 are sufficient to cause death in the normal course; the death is instantaneous. Time between death and post‑mortem is about 4 to 5 hours. The evidence was not questioned in the cross‑examination.

19. In view of the evidence of P.Ws.9 and 10 it is established that the two persons died of unnatural death.

20. The prosecution examined P.W.6, Mumtaz Exh.16 was Mashir of place of Wardat and dead bodies as Exh.16/A, Mashir of arrest and personal search of appellant No. 1 at Exh.16/B, Mashir of arrest and personal search of Gul Hassan at Exh.16‑C, Mashir of arrest and personal search of appellant No.2, Exh.16/D. According to his evidence when he was made a Mashir per Exh.16/B appellant No. 1 was already available at the Police Station he signed the Mashirnama at the police station. He acted as Mashir of arrest of Wazir as well who according to him was already available at Police Station. P.W. Ghulam Nabi the co‑Mashir was not produced in the Court.

21. P.W.7, Exh.18 is Rub Dino the Tapedar who inspected the site and gave the details of the surroundings and location of the dead bodies. He was cross‑examined as to the number of houses, surroundings of place of incident.

22. P.W.8 Ghulam Sarwar Exh.20 is a police constable who acted as a Mashir for the recovery of crime weapons namely gun and Toka on the pointation of appellants Nos.1 and 2 respectively and he produced Ex‑20‑A. In examination‑in‑chief he stated that appellant No. 1 produced one gun from the street adjacent to his house; the appellant No.2 produced one Toka from the same place. He admitted that the area where weapons alleged to have been recovered is thickly populated area. He denied that no recovery was made from the two appellants. From his evidence it appears that the recovery was made at one and the same time and can be said a joint recovery.

23. The other witness who appeared, in support of recovery of crime weapon is P.W.12 Syed Pervaiz Ali Shah, the Inspector of Police Exh.25. He stated that he arrested the appellant No. 1 on 18-11‑1990 from near, Shikarpur Phattak in presence of Mashirs Mumtaz and Ghularn Nabi. He relied upon the Exh.16‑B. On 24‑11‑1990 he arrested accused Gulsher and Manzoor Ali from bus stand in presence of the same Mashirs and relied upon Exh.16/C. On 26‑11‑1990 he arrested appellant No.2 in presence of the said Mashirs and prepared Mashirnama Exk.16‑D. He adds that or. 29‑11‑1990 appellants Nos .1 and 2 volunteered to produce crime weapons in presence of the aforesaid Mashirs; they proceeded to, the house of the appellants from where at their pointation he recovered double barrel gun and two empty cartridges and blood‑stained Toka. He prepared Mashirnama as Exh.20/A. Looking into the evidence earlier discussed above, the appellant No.1 was already in custody when the P.W.1 went to Police Station for lodging F.I.R.; according to P.W.6, appellant No.2 was also in custody when he was made a Mashir of arrest.

24. There is serious contradiction in the evidence of the prosecution witnesses as to the arrest of the two appellants. No reliance can be placed on such evidence. P.W.8, the Mashir of recovery of crime weapons stated that on 29‑11‑1990 at the pointation of two appellants, the crime weapons were recovered from the street adjacent to their house; whereas P.W.12 stated that the crime weapons were recovered from the house of the appellants. It has been a joint recovery through one Mashirnama which does not create confidence in the recovery proceedings.

25. It is noted that the recovery of crime weapon from appellant No. 1 is further tainted from the fact that according to P.W.1 when he went to lodge the F.I.R. at the police station immediately after the incident and appellant No. 1 was already found locked‑up, at police station. If we consider here the statement of appellant No. 1 under section 342, Cr.P.C. it creates confidence that he had himself appeared in the police station and admitted the guilt. If so there is no plausible reason for the appellant No. 1 to conceal the gun in the house or in the street as suggested by P.Ws.12 and 8 respectively. It is further noted that the trial Court has acquitted the three co‑accused in this matter giving them benefit of doubt but convicted the appellant No.2 in the similar circumstances having accepted the fact that a Toka was recovered on his pointation admittedly during the joint recovery of the two crime weapons on the pointation of the two appellants. As discussed above, if the recovery of Toka does not create confidence the case of appellant No.2 will be at par with the acquitted accused.

26. P.W.12 also produced inquest reports Exh.25/A and 25/B of the two victims and also Exh.25/C, D, E & F. Exh.25/F is the Chemical Analyser Report who shows that the earth and iron "Kat" were stained with

27. The sum‑up of the above is that while examining the evidence of the prosecution in juxtaposition to the version of the defence in cross examination and in the statement under section 342, Cr.P.C. of appellant No. 1 it is found that the prosecution evidence does not inspire confidence whereas the defence plea is to be believed. The version of prosecution is, therefore, rejected.

28. Now we consider the plea of appellant No.1 put by him in the cross examination and in the statement under section 342, Cr.P.C. His version has already been reproduced hereinabove. His statement is to be taken in totality without scrutiny. We are to decide that in view of his statement under what provision of the P.P.C. and for what quantum of sentence he is liable for. See State v. Muhammad Hanif 1991 SCMR 2047. His case is not covered by section 302(a), P.P.C. due to the bar placed under section 304 ibid; there is neither his judicial confession nor is there evidence available as provided under section 17 of Qanun‑e‑Shahadat.

29. In 1989, number of criminal appeals from the Federal Shariat Court came before, a Shariat Appellate Bench of the Supreme Court consisting of Hon'ble Muhammad Afzal Zullah, Chairman, Naseem Hassan Shah, Shafi ur‑Rahman, Pir Muhammad Karam Shah, Maulana Taqi Usmani, JJ.; the first appeal was that of the Federation of Pakistan v. Gul Hassan Khan thereafter known as case of Gul Hassan Khan PLD 1989 SC

633. In this matter the Appellate Bench in detail examined the provisions of sections 299 to 338 and other provisions of P.P.C. as well as the provisions of Cr.P.C. and Qanun‑e‑Shahadat. The leading judgment was authored by Hon'ble Pir Muhammad Karam Shah, J. and was concurred by all the Hon'ble members of the Bench. The Hon'ble members, for reasons separately recorded, had unanimously decided that sections 299 to 338 of P.P.C. 1860 are repugnant to the Injunctions of Islam. The Hon'ble Shariat Bench fixed the time for making the said order effective from 23‑3‑1990 whereby the provisions which to the extent have been held to be repugnant to the Injunctions of Islam, shall cease to have effect. In addition to the detail judgment of Hon'ble Pir Muhammad Karam Shah, J. Hon'ble Taqi Usmani and Shafi‑ur- Rehman, JJ. also recorded their separate notes. He observed that under Islamic Law the plea of grave and sudden provocation does not cover the Qatl‑e‑Amd of one by the other Learned Taqi Usmani, J. on page. 674 discussed the exceptions of section 300, P.P.C. He is of the view that provocation of any gravity, however, sudden does not mitigate the offence of Qatl‑e‑Amd. He observed the circumstances, which permitted the one by Islamic Law to Qatl‑e‑Amd the other; but the plea of grave and sudden provocation is not covered by those circumstances. He added that even in those cases one has to prove through evidence the circumstances in which he deprived the other of his life, he observed that even if one is able to prove to justify his action he will be penalized under Tazir for taking the law in his own hands. It appears that in pursuance of the recommendations of the Shariat Bench, the Ordinance VII of 1990; Gazetted on 15th of September, 1990 was promulgated and made effective from 12th day of Rabiul Awwal and the Legislature thereby, substituted the original sections 299 to 338, P.P.C. with the existing sections 299 to 338‑H ibid. The result of this amendment was that the original section 300 and its exceptions including Exception 1 pertaining to culpable homicide caused due to provocation was also done away with.

30. While discussing the cases of grave and sudden provocation and killing of near relative on the ground of "Siyakari" the apex Court in para.(19) of the judgment in Abdul Zaheer and another v. The State 2000 SCMR 406 recorded in verbatim the observations of Hon'ble Taqi Usmani, J.

31. In case of Mumtaz Khan v. The State 1999 SCMR 837 the Hon'ble Supreme Court relied upon its earlier judgment in Abdul Haq v. The State PLD 1996 SC 1 and considering a possibility of a degree of provocation sentenced the appellant under section 302(c), P.P.C.

32. We have considered the circumstances in which the appellant No. 1 claimed to have committed the Qatl‑e‑Amd of two persons.

33. The act of committing Qatl‑e‑Amds for Karo Kari, Siyakari, Ghairat etc. are being accepted and condoned on the basis of customs and traditions prevailing for centuries but these pleas in defence are absolutely baseless. The crime of Karo Kari and Siyakari has already been looked after and dealt with by the Zina Ordinance, 1979 and no one is to be permitted any more to take the law in his own hands on the pretext of punishing infidels. In Muhammad Siddique v. The State FLD 2002 Lah. 444‑458 where a girl in violation of family traditions married to a person of her choice was murdered by her father for infringing the family prestige, a Division Bench of the Lahore High Court, rejected the compounding of she offence at the appellate stage and at page 458 observed as under:‑‑ "‑‑‑‑Law is a dynamic process. It has to be in tune with the ever changing needs and values of a society failing which individuals suffer and social fabric breaks down. It is this dimension of law which makes it a catalyst of social change Law, including the Judge made law, has to play its role in changing the inhumane social moors. The offence which stands proved against the appellant has to have a judicial response which serves as a deterrent, so that such aberrations are effectively checked. Any other response may amount to appeasement or endorsement. A society which fails to effective‑punish such offenders becomes privy to it. The steady increase in these kinds of murders is reflective of this collective inaction, of a kind of compromise with crime and if ‑we may spy so of a complicity of sorts. A justice system of crime and. punishment, bereft of its purposive and deterrent elements loses its worth and credibility both. The individual, institutional and societal stakes, therefore, are high. In these attending circumstances we are of the considered view that the appellant does not deserve the indulgence of a compromise leading to acquittal. The sentences awarded to the appellant, therefore, do not call for interference.‑‑‑

34. Case in hand is of double Qatl‑e‑Amd admittedly committed by the appellant No.1. As noted above, in such matters the Courts are not awarding the major penalty of death to the offenders but treating such matters one under section 302(c), P.P.C. and awarding lesser punishments.

35. Once the prosecution case is rejected in totality the version of the P.Ws. that there was a dispute between the children of the appellant No.1 and Qadir Bux is also to be ignored. The appellant No.1 had not brought on record that he and Mst. Shehzadi had any descendant i.e. the children from their wedlock therefore, his case will not attract the provisions of sections 306 and 308, P.P.C. Keeping in view his intolerant uncivilized behaviour, the conduct and his taking the law into his own hands and thus depriving two human beings of their lives to a brutal manner, the appellant is liable for maximum punishment under section 302(c), P.P.C. We accordingly convert his sentence of death as Qisas under section 302(a) to the sentence of 25 years under section 302(c), P.P.C. for committing Qatl‑e- Amd of Qadir Bux. Since a notice for enhancement of sentence from 14 years under section 308, P.P.C. to 25 years under section 302(c) has not been given to him thereof re, we maintain his sentence of 14 years but under, section 302(c) for committing Qatl‑e‑Amd of Mst. Shehzadi as sections 306 and 308, P.P.C. are not applicable as discussed above. Both sentences to run concurrently. He is entitled to the benefit under section 382(b), Cr.P.C. With this modification the appeal of the appellant No.1 is disposed of; we also decline to accept the reference for confirmation of death sentence.

36. The appeal of Wazir, appellant No.2 is allowed and reference for confirmation of death sentence awarded to him is also rejected. He be set free if not required in any other case. N.H.Q./M‑536/K Order accordingly