P L D 1965 Supreme Court 366 (PLP)

CORNELIUS, C. J.‑The appellant Muhammad Saleh was granted special leave to appeal against a judgment of a Division Bench of the West Pakistan High Court confirming his conviction under section 302, P. P. C., for the murder of his sister, Mst. Gulan and his partner in cultivation Loung. The facts of the manner in which these two persons were killed appear exclusively from statements made by the accused person himself. One was made to a First Class Magistrate on the 27th February 1961, at 10 a.m., the murders being allegedly committed on the previous day in the morning. It has been accepted on good grounds that this statement was voluntarily made. It runs as follows :‑ "Last night I woke up to observe fast but did not find my sister on her cot. I then went outside my house and heard some murmuring at the wheat cultivation on back side of my house. I went to that side and found Loung Khaskheli having sexual intercourse with my sister. I became provoked and killed both of them with my hatchet there and then.* My father and others enquired from me as to what I have done. I told them that I had committed murder. On this they directed me to lodge complaint at thana. Then I had directly come to Police Station, where I told the whole incident to the Sub Inspector." Another was made in the commitment proceedings as below :‑ "I had seen Loung and my sister Mst. Gulan in compromis ing position in wheat crop near our house at about dawn time when due to grave and sudden provocation I gave them hatchet blows. At about dawn time I was going to my cultivation when I saw Gulan and Loung in compromising position near boundary strip when due to grave and sudden provocation I gave them hatchet blows." At the trial, he admitted inter alia that he had killed Loung and Mst. Gulan and that he had made the judicial confession reproduced above. Muhammad Saleh himself went to the Police Station to report the matter. What he said was recorded at 11‑30 a.m., A on the 26th February. That statement was inadmissible evidence on account of its inculpatory nature. An attempt was however made at the trial to prove a part of this statement through the mouth of a witness Allah Bachayo, P. W. 9 and use was made of it by the trial Court, in its judgment, convicting the accused under section 302, P. P. C., and rejecting the plea of grave and sudden provocation. It should be noted, however, that when asked concerning this part of his Police statement, the accused denied having made it. The feature of this statement which gave it significance is that it mentions a suspicion in the accused's mind regarding his sister, and that he went out "in search of them" meaning Loung and Mst. Gulan. Two other persons were tried as abettors of Muhammad Saleh in the crime, but the only evidence to connect them with the incident was that furnished by the mother, wife and sister of the deceased Loung, which on examination were found by the trial Court to be unreliable and they were accordingly acquitted. It was to the effect that sometime after sunrise when Loung was having his morning meals, the two other accused persons Khan Muhammad and Ghulam Qadir came to his house and called him away, and shortly after information was brought that Loung had been murdered. The plea of grave and sudden provocation through the discovery of his young sister aged 18 years in the act of intercourse with Loung in, a wheat field was rejected by the learned Judges in the High Court, who gave the following reasons :‑ (1) a cold wintry morning in the month of Ramazan was an unsuitable time for the couple "to satisfy their lust for one another in an open field"; (2) the fact that the Police Station was only six miles away, and the report was made at 11‑30 a.m., showed that the incident did not occur at Sehri time as alleged by the appellant, but after sunrise as stated by his womenfolk; (3) that the injuries upon the two deceased persons clearly "indicate that more than one person was responsible for these injuries"; and (4) "that the appellant must have had some doubt in his mind concerning the relationship of his sister with his partner Loung and that it was for this purpose that he went searching after her in the darkness of that early morning" and therefore must be held to have gone "in search of the provocation which led him to commit this double murder" so that the "provocation was sought by him". It is clear from these passages that the learned Judges failed to reach a clear decision as to whether the incident took place at Sehri time or "much after sunrise". At two places they found a ground to disbelieve his version in the fact that the hour was very early and it was very cold. Such meetings cannot, in the conditions prevailing in villages, be arranged otherwise than at great trouble and risk, and the inconvenience of cold would be hardly felt by those whose desire to meet each other was great. The learned Judges appeared to be in no doubt that the two were in each other's company at the time. They appear to be in error when they say that the meeting took place in an open field. The evidence is that the place was in the middle of a wheat field where the crop was chest‑high. The bodies were found lying close to each other. Mst. Gulan's trousers were loose and were entangled with her feet, clearly indicating that when she met her death she was prepared for an act of intimacy. She was not a virgin. She had sustained a single blow with a heavy sharp cutting weapon on her neck so that with the exception of a strip of skin at the back, the whole of the neck had been cut through. Loung was wearing his tehmat, which of course does not need to be untied for such an act. He had received five blows, one on the front of the head, another over the front of the neck, two on the left arm and one over the right forearm. In all, six blows were struck. With due respect to the view of the learned Judges, we find no difficulty in believing that these six blows could have been delivered in rapid succession by a single person who found his victims in a prostrate position so that they could not immediately escape. The blow on the girl's neck delivered from the front clearly indicates that she was lying on the ground. The blows on the front of Loung s head and on his neck could equally easily have been delivered while he~ was lying on the ground as if lie were standing up. To estimate the time of the occurrence from the time of the report in relation to the distance to the Police station is inappropriate in a case where the culprit himself goes to make the report. It would be understandable if he "dragged his feet' somewhat. As for the conclusion that the appellant suspected his sister was intimate with his partner Loung, that rests exclusively on the inadmissible statement made by the appellant to the Police. There is no other evidence on the record to indicate that there was any ground for such a suspicion. We are unable to see anything in the circumstances to justify the view of the learned Judges that by going ‑ in search of his sister, whom he did not find on her cot, when he awoke for Sehri, the appellant can be said to have done anything to cause, or to provoke his sister to give cause for grave and sudden provocation to himself. Under village conditions, and even in many other parts of society in this country, the right of the male members of a family to control the actions of their womenfolk, particularly in the field of sexual relations, is fully recognised and is forcefully maintained. The idea that a young unmarried girl in a village family is entitled to leave her bed during the night and go where B she pleases, and that a male member of the family going in search of her is only asking for provocation if he finds her misbehaving in a sexual way, simply cannot be entertained. The taking of a hatchet can be explained by the fact that it was still dark, that is, for self‑protection, and it may be the accused expected to have to chastise his sister for mis-behaviour if that was found. But upon the admissible evidence in this case, there is no ground for thinking that the appellant expected to find his sister in an act of intimacy with a stranger. He must be allowed, on the evidence, the benefit of a shock, on making the discovery, such as is fully recognised in law as furnishing grave and sudden provocation within the meaning of Exception I to section 300, P. P. C., sufficient to cause loss of self control. The learned Judges have referred to a decision given by the Sind Chief Court in the case of Mahamdu v. The Emperor (A I R 1945 Sind 42) where expression appears to have been given to the opinion that a person who goes out in search of his wife whom he finds absent from her bed in the middle of the night, and finding her in the arms of her paramour kills them, must be thought to be seeking n the provocation thus occasioned. We do not find it possible to support that view, and in the circumstances of the present case, we are clearly of the opinion that the evidence is sufficient for allowing to the appellant the benefit of grave and sudden provocation in relation to the act which he committed. We accordingly alter the conviction to section 304, Part I, P. P. C. We consider that a sentence of 10 years' rigorous imprisonment is sufficient to meet the case, and we reduce the sentence accordingly, A. H. Order accordingly.