1984 P Cr (PLP)

In the opinion of doctor, the deaths of Mst. Lalan and -Nazar Hussain were the result of the injuries found on their person. The injuries on person of Mst. Lalan were caused by throttling and those found on the person of Nazar Hussain appeared to have been inflicted by sharp cutting weapon such as hatchet. Thus it is established from the evidence of the doctor that the two deceased mentioned above had died of the injuries they had sustained. According to the prosecution case the accused/appellant was respon sible for causing injuries to both Mst. Lalan and Nazar Hussain. To link the accused; appellant with the commission of the crime, prosecution have produced ocular evidence of complainant, Muhammad Bahar and Mashooq Ali recovery of blood-stained clothes and blood-stained hatchet judicial confession ; and the evidence of motive. Mr. Muhammad Dawood Baloch, who appeared on behalf of the accused/appellant, did not press the appeal on merits. He confined his arguments to only reduction of the sentence. In view of this it may not be necessary to undertake detailed reappraisal of the evidence and the conclusions of the trial Court reached thereon. The learned counsel for the accused,/appellant contended that although the learned trial Judge rightly convicted the accused/appellant under section 304 (1), of P. P. C., yet the sentence awarded to him is excessive. He submitted that it is established from the evidence on record that the accused/appellant found the two deceased persons engaged in shameful act, which presented a sight difficult for the accused/appellant to bear. The learned counsel therefore argued that in such cases the superior Courts have always taken a lenient view of awarding sentence. In support of his argument he has referred to several authorities, which will be briefly reviewed. The first case in this connection is of The State v. Akbar (P L D 1961 (W. P.) Lah. 24). 1n this case the accused saw the deceased committing fornication with his un married sister and seeing this he lost self-control and gave beating to the deceased, which caused his death. The trial Court sentenced the accused to imprisonment till rising of the Court. Application was moved in the High Court for enhancement of the sentence. While dismissing the application Anwar-ul-Haq, J. (as he then was) made the following observations:

"Considering the moral values and notions of honour and chastity, as well as the social customs, which prevail in our society, parti cularly among the respectable families in the rural area 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 act 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 a case would have to be measured by a different yardstick. It is for this reason that Courts are reluctant to impose heavy punishments 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." In the above-reported case reference was made to the following cases: -- (i) Muhammad Zaman v. Emperor (A I R 1933 Lah. 165). (ii) Hussain v. Emperor (A I R 1939 Lah. 471). (iii) Aziz-ul-Rehman v. Crown (P L D 1950 Pesh. 76). (iv) Muhammad Shafi v. Crown (P L D 1950 B J. 86). In the first case the husband had seen the deceased having sexual intercourse with his wife and killed him. The trial Judge sentenced him to transportation for life but the Division Bench who heard the case obser ved that the man who acts under grave and sudden provocation of this nature cannot be put on the same terms as an actual murderer. Accord ingly the sentence was reduced to imprisonment already undergone, which was a little over 9 months. In the second case the sentence of three months was considered to be adequate, in the case of a husband who had caught the deceased in the act of sleeping with the accused wife at night and had killed him instantane ously. It was observed: - " .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." In the third case it was observed: -- "......in this part of the country where a mere causal talk by a woman with a stranger is looked upon by the relations and in parti cular 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." The sentence was, therefore, reduced to that already undergone (i.e. less than three months). In the fourth case the sentence was reduced to that already undergone and this amounted to less than a month although the accused was respon sible for causing two deaths that of his wife and her paramour. The next case relied upon is Ghulam Fareed v. The State (1980 P Cr. L J 306), wherein the accused finding his wife and paramour in compromising position killed both. The sentence of three years was reduced to two years. In the case of Muhammad Mithal v. The State (P L D 1980 Kar. 397), the deceased who stayed with family for night as guest, attempted to outrage modesty of a woman of household of the accused. The accused killed the deceased by giving him lathi blows on account of `Ghairat'. The sentence of one year and 8 months already undergone by accused was held enough to meet the ends of justice. In the other case Imam Bux v. The State (P L D 1980 Lah. 434), accused caused the death of deceased as the latter was found in objectionable position with the accused 5 mother. Sentence of 9 years was reduced to 3 years' R. I. The learned counsel for the accused/appellant urged the reduction of sentence on the additional ground that complainant's party have patched up with accused /appellant which is clear from the fact that almost all witnesses of the prosecution have changed and the only basis for convic tion of accused /appellant is his own confession. This fact is not denied by the learned A. A. G. In this connection the learned counsel for the accused /appellant has cited some authorities, to which I would presently refer. In the case of Pathana v. The State (1979 P Cr. L J 354), the sentence was reduced on the ground that the parties filed affidavit showing that they had entered into compromise and in consequence the accused was pardoned. In another case of Iftikhar Ahmad v. The State (P L D 1982 S C 277), the compromise between the parties even though without compensation was held a good ground for reduction of sentence. The other cases in the series in which the sentence was reduced on the ground of compromise between the parties are: (i) Muhammad Bashir. v. The State (P L D 1982 S C 139), (ii) Khursheed Ahmad v. The State (1976 S C M R 193) and (iii) Manzoor Ahmad and another v. The State (1982 P Cr. L J 166). In yet another case Muhammad Rafiq v. The State (1982 S C M R 641), the Supreme Court granted leave to consider reduction in sentence on the ground of compromise effected between the parties. From review of the case law discussed above, it can be safely conclu ded that the trend of judicial opinion is that heavy sentences are not called for in cases of this kind where accused is deprived of self-control by the sight of a woman of his family being subjected to sexual intercourse. The reduction in sentence becomes more imperative if the parties have composed their differences and in consequence the accused has been pardoned. In the instant case the accused/appellant lost self-control when he saw his step-mother engaged in a sexual intercourse with her paramour. It is also not denied that the compromise has taken place between the parties. In view of these two factors the learned State counsel conceded that this is a fit case for reducing the sentence. The accused was arrested on 26th May, 1981 and was convicted on 13th May, 1982. The record shows that he has remained in jail right from the date of his arrest until today. If the benefit of section 382-B, Cr. P. C. is given to the accused /appellant the total imprisonment that he has already suffered will come to 1 years. In my opinion keeping the principle laid down in the aforesaid reported cases this period would meet the ends of justice. Accordingly by allowing him the benefit of his deten tion as undertrial prisoner, the sentence awarded to the accused /appellant is reduced to that already undergone by him. However, the sentence of fine and direction with regard payment of compensation will remain undisturbed. In view of above, appeal is partly accepted. S. Q. Appeal partly accepted.