P L D 1971 Lahore 703 (PLP)

On the 27th October 1967, Dr. Abdul Shakoor performed autopsy on the dead body of Mst. Zubaida. He observed four injuries on her person. He opined that the death was instan taneous and was the result of fire‑arm injuries. Two vaginal swabs of the deceased were sent to the Chemical Examiner, who opined that the same were stained with semen.

4. At the trial, Maulvi Karim Bakhsh (P. W. 8) stated that on the 22nd December 1963, he performed the Nikah between Ijaz Ahmad and Mst. Zubaida. Ijaz Ahmad (P. W. 9) described, in detail, the version set out above. Talehmand (P. W. 12) stated that he heard a report and coming out saw that Mst. Zubaida was lying dead. He added that he could not discover the assailant. He was declared hostile and his statement before the committing Magistrate was brought on the record. In that statement he had stated that, in his presence, the appellant had killed Mst. Zubaida by firing at her. Ali Akbar (P. W. 13) stated that on hearing the report he came to the spot and found that Mst. Zubaida was lying on the ground. He added :‑ "The accused was shaping to shoot again and while I shouted to prevent him from doing that he fired for the second time." Yaqub Masih (P. W. 15) proved the first information report. S. I. Muhammad Banaras (P. W. 16) gave the details of the investigation. The appellant denied the occurrence and urged that he had been implicated out of enmity. He did not produce any evidence in defence.

5. The learned Sessions Judge, on a survey of the evidence, concluded that it was the appellant who had caused the death of his sister Mst. Zubaida and that the motive was the illicit intimacy between Ijaz Ahmad and the deceased. He observed as follows:‑ "The state of mind of the accused at that time can be visualized very easily. It is a young brother of a wayward girl who knows that his sister has returned from an intrigue of love which is proved by the fact of semen; which was found in the vaginal swabs, and that she had not desisted from her course, the brother could easily have lost his head on seeing his sister, unmarried, of a respectable family, coming home in the middle of night after meeting her lover. Provocation would be grave and the effect of first sight of the sister would be electric and the brother would not allow such a sister to step inside the house and he shot her dead before she could enter the house. The action of the accused is obviously a harsh act but perhaps according to his light of the moment it was an honourable act." Accordingly, he convicted and sentenced the appellant as stated above.

6. A re‑appraisal of the evidence leads to the inescapable conclusion that the appellant killed Mst. Zubaida by gunshot, at about 2‑00 a. m., on the 27th October 1967, in front of hi s house. This conclusion is not disputed by the appellant either. Learned counsel for the appellant contended that the appellant, at that time, was deprived of the power of self‑control by grave and sudden provocation. In this connection, he refers to the following circumstances:‑ The appellant, as the elder brother of Mst. Zubaida, acted in the capacity of her guardian. He did harbour suspicion about her character. On returning home during the night, when he was not expected to be back, he found the sister missing. The women‑folk of the family" were unable to enlighten him. His suspicion became grave. Guided by the suspicion, he directly went to the house of Ijaz Ahmad and in a furious address, demanded if Mst. Zubaida was there. He was not allowed access to see for himself but was told to go back on the assurance that she would be sent back shortly. Finding no way out, but none theless furious, he returned home and stood waiting. Shortly thereafter, Mst. Zubaida was brought there. Her visit to the house of Ijaz Ahmad at that hour of the night when her own brother was supposed to be out of the Chak, was a tell‑tale venture. No wonder, the appellant required no explanation. Her misbehaviour was so grave and sudden that he lost the power of self‑control and fired at her from a close range. So great was his fury that he fired a second time, ignoring the presence of Talehmand and Ali Akbar and ignoring their pro testations. The appellant belongs to a respectable section of the society and his action was consistent with social notions of honour. According to the reported cases, a short sentence of imprisonment would serve the ends of justice. He referred to the case reported as The State v. Akbar (P L D 1961 Lah. 24). On the other hand, Mr. Rajab Ullah Tariq, learned counsel appearing for the State, referred to the following circumstances:‑ The appellant knew that Mst. Zubaida had secretly married Ijaz Ahmad. Ijaz Ahmad made this statement as he had learnt it from the deceased herself. In any case, the appellant had suspicion that the deceased was of loose character. Perhaps it was in the know of others as well. Talehmand immediately after the occurrence conveyed it to Yaqub Masih Chaukidar that the appellant had killed her on this account. The appellant was not wholly deprived of the power of self‑control he was amenable to percussion by Sardar Khan and, therefore, discreetly returned home. The appellant acted in a rash manner inasmuch as he did not bother to ask for an explanation; she might have given out a convincing explanation and might have satisfied him with regard to her absence at that hour. 1n any case, the appellant had no justification to believe that Mst. Zubaida had indulged in sexual intercourse with Ijaz Ahmad. He had not even seen them together. His case is not analogous to the case of a brother who kills the sister on finding her and the paramour flagrante delicto. He referred to the case reported as Mewa v. The State (P L D 1958 Lah. 468) and urged that the appellant deserved a substantial sentence. Mst. Zubaida and Ijaz Ahmad were secretly married in December 1963. The occurrence in question took place in October 1967. The appellant's other sister Mst. Attia Begum is married to Altaf Hussain, brother of Ijaz Ahmad. It appears that during the course of these four years, the appellant must have entertained substantial suspicion regarding the intrigue between Mst. Zubaida and Ijaz Ahmad. He went straight to the house of Ijaz Ahmad and the conduct of Sardar Khan and other inmates must have confirmed his belief that Mst. Zubaida was present there. The Chemical Examiner's report establishes beyond doubt that Mst. Zubaida visited Ijaz Ahmad and had intercourse there. The appellant did not ask Mst. Zubaida why she had visited the house of Ijaz Ahmad. It is remarkable that Mst. Zubaida of her own did not offer any explanation and exhibited a guilty conscience. It is further remarkable that neither Sardar Khan nor the person who escorted her to the house of the appellant, gave any explanation to the appellant. This incident, against the background of suspicious history, must have provided a reasonable hypothesis for the appellant to conclude that this was none other than a sexual amorous visit. I feel inclined to believe that the appellant had been considerably deprived of the power of self‑control when he fired at her. I also believe that his case is not at par with the case of a brother who surprises his sister and paramour in the act of love‑making. In the case reported as State v. 4kbar, a brother who had seen the deceased committing fornication with his unmarried sister, a sentence of a few months rigorous imprisonment was found to be sufficient to meet the ends of justice. In Mewa's case, the accused had seen his brother's wife sitting in a cluster of keeker trees with a stranger and had killed her, the stranger having escaped. A sentence of three years rigorus imprisonment under section 304, Part 1, P. P. C. was held to be sufficient. In the instant case, the appellant had greater justification. In my opinion, the ends of justice will be served adequately if the sentence of five years rigorous imprisonment is reduced to rigorous imprisonment for two years and six months.

7. The conviction is upheld and the sentence is reduced to 2 years rigorous imprisonment. Subject to this modification, the appeal is dismissed. Order accordingly.