2007 SCMR 1496 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

This appeal with leave of the Court is directed against the judgment, dated 20-7-1998 passed by a learned Division Bench of the Lahore High Court vide which respondents (Muhammad Riaz son of Ghulam Sarwar and Muhammad Feroze son of Ali Akbar) appeal against their convictions under section 302(c) for the murder of Mst. Amir Khatoon as also against conviction of Riaz respondent under section 337(E), P.P.C. for murderous assault on Abdul Jabbar complainant was dismissed. However, the sentence of 25 years' R.I. awarded by the trial Court under section 302(2), P.P.C. was reduced to what they had already undergone and criminal revision filed by the complainant was also dismissed.

2. The respondents were proceeded against vide F.I.R. No.153 dated 18-7-1993 under sections 302/324/34, P.P.C., Police Station Jauharabad. The prosecution story as unfolded in F.I.R. and narrated in the impugned judgment of the learned Lahore High Court is as under:-- "Brief facts of the case as narrated in Exh.P.H. by Abdul Jabbar, were that he along with Abdul Ghaffar, real brother, Muhammad Akhtar (Maternal-uncle), Mst. Jawahar Khatun, mother of Abdul Jabbar, Muhammad Khan father of Abdul Jabbar and one Noor Muhammad son of Mian Muhammad went to the Court of learned Additional Sessions Judge, Khushab where they had to appear in a case under sections 10/11 Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979 registered at Police Station Naushera vide F.I.R. No.25 of 1992. They were waiting for call of the Court and were sitting in Shahzad Hotel which was situated on the road near the Sessions Court, Khushab. He along with his wife Mst. Amir Khatun (now deceased) and mother Jawahar Khatun sat in Shehzad Hotel while his other companions went in the Court of Sessions Judge to know about the date. At about 8-45 a.m. Abdul Jabbar brother of the complainant and Muhammad Akhtar came in the hotel and asked them to accompany them to the Court, they followed them, when they reached near Sessions Court, both the appellants while armed with guns came there from the southern side while raising Talkars' on which he and his wife Amir Khatun ran towards Shahzad Hotel and entered there and bolted the door from inside. The appellants also came there. They broke the window panes of the gate of the hotel and thereafter first of all Feroze Khan fired with his gun which hit Amir Khatun on his right thigh. The other shot was fired by Muhammad Riaz appellant which hit Amir Khatun on his right leg who fell down, thereafter both the appellants fired one shot each which hit on different parts of the body of Amir Khatun who died there and then. Thereafter Muhammad Riaz fired with his gun which hit on the right arm of Abdul Jabbar P.W. making an entry wound also. The occurrence was witnessed by Abdul Ghaffar, Muhammad Akhtar and Jawahar Khatun etc. The motive behind the present occurrence was that one year and 3 months prior to the present occurrence Mst. Amir Khatun without consent of her parents married Abdul Jabbar complainant who in turn lodged the above said case against the complainant, his wife Amir Khatun and other near relations."

3. During trial the prosecution examined 9 witnesses including the doctor and the Investigating Officer. The ocular account was furnished by Abdul Jabbar P.W.7/complainant who is an injured witness and Abdul Ghaffar P.W.S. the respondents-appellants denied the prosecution story and pleaded innocence. However, they also moved an application duly supported by affidavits from heirs of the deceased to the effect that they had forgiven the respondents and they be acquitted. Learned trial Court taking into account the fact that though parent of Amir Khatoon, deceased had forgiven the respondents-convicts but as complainant Abdul Jabbar husband of the deceased had not pardoned them, proceeded to convict the respondents under section 302(c)/34, P.P.C. by way of Ta'zir as according to it death sentence could not be awarded. They were accordingly sentenced to 25 years' R.I. each and were also directed to pay 1/2 share of Rs.1,70610 as Diyat in equal share to Abdul Jabbar legal heir of the deceased within a period of three years. Muhammad Riaz respondent was also convicted under section 324 read with section 337, P.P.C. for causing fire-arm injuries to Abdul Jabbar. He was sentenced to one year's R.I. and to pay Rs.1,000 as Daman to said injured in default whereof to undergo S.I. for three months. The sentences were directed to run concurrently and they were also given the benefit of section 382-B, Cr.P.C. The learned High Court though dismissed the appeal but reduced the sentence to what the respondents had already undergone.

4. Leave to appeal was granted by this Court on 13th of November, 2000, inter alia on the ground as under:-- "On appeal learned Judge in Chambers altered the conviction of respondents and reduced their sentence of 25' years' imprisonment to the period already undergone. Complainant has assailed the said judgment on the ground that deceased was his legally-wedded wife. A case under Hudood Ordinance was got registered against the deceased and her husband but they were acquitted upto the level of Shariat Appellate Bench of this Court, therefore, it is a sufficient proof of the petitioner/complainant and the deceased being husband and wife. It is contended that in such circumstances the ground of sudden provocation or family honour would not arise at all. After hearing the learned counsel for the petitioner, we are of the view that it is a fit case for grant of leave as it requires consideration whether lesser sentence in such-like cases can be awarded."

5. Learned counsel for the appellant submitted that the deceased Mst. Amir Khatoon was legally-wedded wife of the appellant/ complainant, that a false case was got registered by the accused party vide F.I.R. No.25 of 1990 under section 10/11 of the Offence of Zina (Hudood Ordinance), 1979; that when appellant and Mst. Amir Khatoon deceased went to the District Courts to appear in the said case, she was done to death in broad-daylight; that it was a premeditated murder; that the appellant and the deceased were living as husband and wife for the last more than one year when the occurrence took place; that there was no element of grave and sudden provocation to warrant lesser punishment; that the judgment of the learned High Court is likely to give licence to deviant social behaviours reflected in murder in the name of honour and that the impugned judgment is not sustainable in law. In support of the submissions made, learned counsel relied on Walayat v. The State 1998 PCr.LJ 111 and Riaz Ahmed v. The State 1996 PCr.LJ 43.

6. Learned counsel for the respondents-convicts defended the impugned judgment by submitting that the appellant-complainant had started claiming Mst. Amir Khatoon to be his legally-wedded wife on the basis of a forged Nikahnama; that cases were registered against them not only under Hudood Laws but under sections 420, 468, 471 and 419, P.P.C.; that the matter in which Mst. Amir Khatoon was going around with her paramour was a sufficient provocation and the learned High Court rightly reduced the sentence of the respondents.

7. Learned counsel for the State submitted that section 302, P.P.C. is a. compoundable offence and since the heirs of the deceased Mst. Amir Khatoon had forgiven the respondents, death could not be awarded to them and even otherwise the manner in which Mst. Amir Khatoon was seen with Abdul Jabbar appellant was sufficient grave and sudden provocation to warrant indulgence which was rightly extended by the learned High Court by reducing the sentence.

8. We have heard Ms. Asma Jahangir, learned Advocate Supreme Court for the appellant/complainant, Mr. Muhammad Ilyas Siddiqui, learned Advocate Supreme Court for the respondents/accused and Ch. Munir Sadiq, learned Deputy Prosecutor General, Punjab for the State.

9. The conviction of both the respondents under section 302(c), P.P.C. for the murder of Mst. Ameer Khatoon stands upheld by the learned High Court vide the impugned judgment, dated 20-7-1998 with .the modification qua the quantum of sentence i.e. sentence of imprisonment for 25 years awarded by the learned trial Court was reduced to what they had already undergone. The respondents never challenged the impugned judgment. Thus, the concurrent findings of fact and conviction recorded have attained finality. The learned trial Court having found the respondents guilty proceeded to convict and sentence them in the following terms:-- "Since Ali Akbar father of Mst. Amir Khatun and Mst. Alam Khatun her mother have given UFW to both the accused and filed application and affidavits to said effect in terms of section 309 of Qisas and Diyat Ordinance and as such `Qisas' is not applicable to the circumstances of the case. Now comes the question of sentence to be awarded to the accused. In the background of motive discussed in the earlier part, accused launched a premeditated attack on deceased Amir Khatun by tiring shots from their guns which resulted in her death on the spot. As stated above, the parents of Mst. Amir Khatun have granted UFW to the accused whereas P.W. Abdul Jabbar husband of deceased (whose status as such has been declared by Federal Shariat Court vide judgment Exh.P.Q.) has not been granted UFW to the accused, the sentence of death cannot be enforced against them and their case shall be covered by section 302(c), P.P.C. in view of the NLR 1993 Cr. 203 and 204."

10. The learned High Court however, dismissed respondents' criminal appeal but reduced the sentence holding as follows:-- "That under section 302(c), P.P.C. a Court can award the sentence till the rising of the Court up to 25 years. In our society nobody forgives any person who marry with his sister or daughter without the consent of his parents or his near relations. On the day of occurrence it has not been denied by both the parties that the case F.I.R. No.25 of 1992 registered against the complainant party was fixed for hearing. The appellants amongst them, Feroze is real brother of Mst. Amir Khatun and Muhammad Riaz is the first cousin of said lady and seeing the deceased with Abdul Jabbar, appellants under grave and sudden provocation, in my humble view, committed the murder of Mst. Amir Khatun and also cause injuries on the person of the complainant. Both the appellants were arrested in the month of July, 1993 and were granted bail by this Court in March, 1996. I am of the opinion that the sentence which they have already undergone would be sufficient to meet the ends of justice."

11. In the light of the submissions made by learned counsel for the parties, the questions which crop up for consideration in the instant appeal are preliminary two-fold:

(i) Whether having held the respondents to be guilty of Qatl-i-Amd and in absence of requisite proof of Qisas (in terms of section 304, P.P.C.) could the learned trial Court sentence 'them under section 302(c), P.P.C. and not under section 302(b), P.P.C. on the ground that parents of the deceased had granted UFW (in terms of section 309, P.P.C.) and her husband had not? (ii) Whether the respondents acted under 'grave and sudden provocation' to warrant indulgence extended by the learned High Court with regard to the quantum of sentence?

12. To appreciate the issues raised it would be in order to keep in mind the relevant penal provision i.e. section 302, P.P.C., which reads as under:-- Punishment of Qatl-e-Amad.

Whoever commits Qatl-e-Amd shall, subject to the provisions of this Chapter be-- (a) punished with death as Qisas; (b) punished with death or imprisonment for life as Tazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable. 'Provided that nothing in this clause shall apply to the offence of Qatl-i-Amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b) as the case may be." (Note: This proviso was added by Act 1 of 2005 and would not be relevant in the instant case as the occurrence is dated 18-7-1993).

13. A bare look at the afore-referred provision of law would indicate that Qatl-i-Amd is punishable with death as Qisas if the proof in either of the forms specified in section 304, P.P.C. is available. In absence of such a proof a Qatl-i-Amd can be visited "with punishment of death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case under section 302(b), P.P.C." In the instant case as admittedly the evidence led did not satisfy the requirement of proof as required in section 304, P.P.C. the case fell within the ambit of section 302(b), P.P.C. and the respondents were liable to be punished with death or imprisonment for life as Ta'zir'. Moreover only the parents of Mst. Ameer Khatoon had forgiven the respondents-convicts in the name of God Almighty and not her husband. However, the learned trial Court held that since parents of Mst. Ameer Khatoon deceased had given UFW to the respondents-accused but her husband had not, in terms of section 309(2), P.P.C., punishment of Qisas could not be awarded and proceeded to sentence the, respondents under section 302(c), P.P.C. Under section 309, P.P.C. an adult sane Wali can waive his right of Qisas even without compensation. But this section is applicable only if proof in terms of section 304, P.P.C. (for Qisas) is available against the accused which proof admittedly is non-existent in the instant case. On account of this deficiency in the quality of the evidence led, but the case otherwise having been proved, the respondents were liable to be punished under section 302(b), P.P.C. as Ta'zir. A conviction/sentence under Ta'zir can be compounded only if all the heirs forgive the offender and the relevant provisions for compounding such offences are section 338(E) read with section 345, Cr.P.C. and not section 309, P.P.C., which is evident from a comparative perusal of the these sections which is as follows:-- "Section 309, P.P.C. Waiver

Afw of Qisas in Qatl-i- Amd.

(1) In the case of Qatl-i-Amd, an adult sane Wali may, at any time and without any compensation, waive his right of Qisas: Provided that the right of Qisas shall not be waived

(a) where the Government is the Wali; or (b) where the right of Qisas vests in a minor or insane. (2) Where a victim has more than one Wali anyone of them may waive his right of Qisas: Provided that the Wali Who does not waive the right of Qisas shall be entitled to his share of Diyat. (Emphasis is supplied). (3) Where there are more than one victim, the waiver of the right of Qisas by the Wali of one victim shall not affect the right of Qisas of the Wali of the other victim. (4) Where there are more than one offenders, the waivers of the right of Qisas against one offender shall not affect the right of Qisas against the other offender."

14. As stated earlier the relevant provisions for compounding offences under Ta'zir are section 338(E), P.P.C. and section 345, Cr.P.C. which are as under:-- "338-E, P.P.C. Waiver or compounding of offences.-- (1) Subject to the provisions of this Chapter and section 345 of the Code of to the provisions Criminal Procedure, 1898 (V of 1898), all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis apply to the waiver or compounding of such offences; Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award Ta'zir to the offender according to the nature of the offence. Provided further that where an offence under this Chapter has been committed in the name or on the pretext of honour, such offence may be waived or compounded subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. (2) All questions relating to Waiver or compounding of an offence or awarding of punishment, under section 310, whether before or after the passing of any sentence, shall be determined by trial Court: Provided that where the sentence of Qisas or any other sentence is waived or compounded during the pendency of an appeal, such questions may be determined by the Appellate Court: Provided further that where Qatl-i-Amd or any other offence under this Chapter has been committed as an honour crime, such offence shall not be waived or compounded without permission of the Court and subject to such conditions as the Court may deem fit having regard to the facts and circumstances of the case. Section 345, Cr.P.C. offence Sections of Pakistan Penal Code application Persons by whom offence may be compounded 49 [Qati-i-Amd 302 By the heirs of the victim 50[other than the accused or the convict the offence has been committed by him in the name or on the pretext of Karo Kari, Siyah Kari or similar other customs practices

49. Subs. By Criminal Law (Amendment) Ordinance 1991 + The same re-enacted by Ordinance XVII of 1992 PLD 1993 Cent. St. 70, Ordinance XCIX of 1995, etc. Act II of 1997.

50. Added by Criminal Law Amendment Act 2004 (Act I, 2005), PLJ 2005 Fed. St. 207."

15. It is a case of partial compromise. The offence of Ta'zir under section 302, P.P.C. can be compounded only by the "heirs of the victim". In the instant. case all the heirs have not compounded the offence but only parents of Mst. Ameer Khatoon deceased have done so and not her husband. The respondents having been tried and convicted as Ta'zir, they could be extended the benefit of compromise only if all the legal heirs had compounded the offence. In Manzoor Hussain and 4 others v. The State 1994 SCMR 1327, this Court took a similar view and held at page 1330 as follows:-- "Admittedly, Mst. Sakina is the wife of Muhammad Siddique deceased and being his Shari heir falls within the definition of `Wali' and entitled to `Afw' under section 309, P.P.C. and to compound the Qisas under section 310, P.P.C. According to her statement recorded by the Court, she has waived her right of Qisas but the same cannot help the appellants in any ways as all the appellants were tried, convicted and sentenced under Ta'zir and not Qisas, therefore, the favour bestowed upon them by the widow of the deceased who happens to be their sister cannot come to their rescue in any way the Trial Court has fairly dealt with this, aspect of the case and we have no reason to differ with it."

16. The afore-referred view was reiterated in Muhammad Aslam v. Shaukat Ali 1997 SCMR 1307 wherein at page 1327 it was observed as under:-- "there is no doubt that section 338-E, P.P.C. provides that subject to the provisions of this Chapter and section 345 of Cr.P.C. all offences under this Chapter may be waived or compounded on the provisions of sections 309 and 310 shall mutatis mutandis apply to the waiver of compounding of such offences. The proviso to the same lays down that where offences have been waived or compounded, the Court may by its discretion having regard to the facts and circumstances of the case acquit or award Ta'zir to the offender according to the nature of the offence. The above section is to be interpreted in the light of the guideline for interpretation provided in section 538-F, which enjoins that the Court while interpreting and applying the provisions of the Chapter in question of the P.P.C. and in respect of matter ancillary or akin thereto, shall be guided by the Injunctions of Islam as laid down in the Holy, Qur'an and Sunnah. In our view, this provision does not nullify the well-settled proposition of law that in case where an accused person has been awarded sentence for murder as Ta'zir and not Qisas, the legal heirs cannot waive or accept Badal-i-Sulh. However, in view of the amendment in section 345(2), Cr.P.C. the sentence awarded for murder as Ta'zir can be compounded by all the legal heirs of the deceased with the permission of the Court concerned." (Emphasis is supplied). "(23) The upshot of the above discussion is that since the mother of the deceased had not joined compromise and as the High Court has altered the death sentence into imprisonment for life which could be awarded as Ta'zir and not as Qisas, section 309(2), P.P.C., cannot be pressed into service. The above application for compromise is rejected."

17. The afore-referred view has been reiterated by this Court in Niaz Ahmed v. State PLD 2003 SC 635.

18. The learned trial Court found it to be a case where the respondents were liable to be punished with death, but the said sentence according to it could not be enforced because "As stated above, the parents of Mst. Amir Khatoon have granted UFW to the accused whereas P.W. Abdul Jabbar husband of deceased (whose status as such has been declared by Federal Shariat Court vide judgment Exh.P.Q.) has not been granted UFW to the accused, the sentence of death cannot be enforced against them and their ease shall be covered by section 302(e), P.P.C. in view of NLR 1993 Cr. 203 and 204". Accordingly, in invoking section 302(c), P.P.C., the Court fell in error. It failed to appreciate that neither this provision nor section 309, P.P.C. which stipulates grant of UFW by a Wali was applicable as these would have been relevant only if the evidence led trial and sentence awarded was for Qatl-i-Amd as Qisas. The facts in the instant case were distinguishable and that the law laid down by a larger Bench of this Court in Muhammad Aslam v. Shaukat Ali 1997 SCMR, 1307 was not brought to its notice.

19. For what has been discussed above, we are persuaded to hold that the offence of Qatl-i-Amd having been proved against the respondents as Ta'zir and all heirs of the victim having not compounded the offence, the respondents ought to have been sentenced under section 302(b), P.P.C. to life imprisonment and not under section 302(c), P.P.C. While upholding conviction, we convert the same from 302(c), P.P.C. to one under section 302(b), P.P.C. and sentence the respondents to life imprisonment. Under section 544-A, Cr.P.C., they are burdened with a sum of Rs.50,000 each to be paid to Abdul Jabbar complainant as compensation in default whereof they shall undergo S.I. for six months each. They shall be granted benefit of section 382-B, Cr.P.C. The remaining convictions and sentences recorded shall remain intact.

20. Coming to the second question i.e. whether the respondents acted under 'grave and sudden provocation we find that the motive alleged was marriage of choice and without permission of her parents by Mst. Ameer Khatoon with the complainant a year prior to the day of occurrence. The accused party got a criminal case for abduction registered against Abdul Jabbar, Mst. Ameer Khatoon and parents of Abdul Jabbar etc. On the day of occurrence complainant and Mst. Ameer Khatoon had come to the District Courts to appear in the said criminal case. Both the respondents armed with guns in a broad-daylight i.e. 8-45 a.m. chased the victims who tried to take refuge in a nearby hotel, they broke open the door and made repeated fires on her and the complainant. Mst. Ameer Khatoon received as many as 14 fire-arm injuries whereas Abdul Jabbar who Managed to hide himself received only fire-arm injury. Admittedly, Mst. Ameer Khatoon and Abdul Jabbar claimed to be and were living as husband and wife pursuant to a registered Nikah Nama, the veracity of which was affirmed by the learned Federal Shariat Court in a judgment delivered subsequent to the occurrence. The motive alleged, the weapons used, the manner of attack and place of occurrence, reflected pre-meditation and planning both. It was neither sudden nor grave. The only "sin" of Mst. Ameer Khatoon in the eyes of the respondents was that she had married a person of her choice without the permission of elders. There is nothing in evidence to indicate that she had acted in a manner which constituted Zina. In Mohib Ali v. The State 1985 SCMR 2055, commenting on the elements which could constitute grave and sudden provocation this Court observed as follows:-- "A mere allegation of moral laxity without any unimpeachable evidence to substantiate would not constitute grave and sudden provocation. If such pleas, without any evidence are accepted, it would give a licence to people to kill innocent people." '

21. In the case of Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274, this Court quoted with the approval of a passage from Lord Goddard in Kumarasinghege Don John Perera (1935) A.C. 200:-- "The defence of provocation may arise where a person does intend to kill or inflict grievous bodily harm but his intention to do so arises from sudden passion involving loss of self-control by reason of provocation. An illustration is to be found in the case of a man finding his wife in the act of adultery who kills her or her paramour, and the law has always regarded that, although an intentional act, as amounting only to manslaughter by reason of the provocation' received."

22. In Abdul Zahir and another v. The State 2000 SCMR 406 dilating on the nature of murders in the, name of honour and pleas of grave and sudden provocation taken as defence, this Court held as follows:- "Before parting, I may add that by and large all the cases of grave and sudden provocation would not ipso facto fall within the purview of section 302(c) particularly those of Qatl-i- Amd of wife, sister or other very close female relatives at the hands of males on the allegation of Siahkari. In this context reference may be made to the case of Gul Hassan (supra) wherein Moulana Muhammad Taqi Usmani, learned Member of Shariat Appellate Bench of this Court had very aptly observed as under:--

23. The evidence led examined in the light of the precedent case-law referred to in the preceding paragraphs would indicate that the ground of grave and sudden provocation taken by the learned High Court to reduce the sentence was not available to warrant award of lesser punishment and the judgment on that score is not H sustainable.

24. For what has been discussed above, we allow this appeal, set aside the impugned judgment of the learned trial Court, dated 20-7-1998 and restore the judgment of the learned trial Court dated 8-5-1994 with modification in terms of para. 19 above. M.H./A-41/SC Appeal allowed.