P L D 1965 (W (PLP)

MUHAMMAD GUL, J.‑The appellant Behram, aged 25 years and his paternal‑aunt's son Mahmud, aged 20 years, were jointly tried by the learned Sessions Judge, Kalat, under section 302/34, P. P. C., for the murders of Dad Karim and Mst. Rahim Bibi. Mahmud was acquitted of the charge under section 302/34, P. P. C. but was convicted under section 304, Part 1, P. P. C. and sentenced to imprisonment till the rising of the Court However, the appellant was convicted on the same facts under section 302, P. P. C. and sentenced to transportation for life: He appeals against his conviction and sentence as aforesaid.

2. The appellant and Mahmud along with the latter's parents lived in the same Haveli in village Ghulam Paraiz. Mst. Rahim Bibi deceased aged about 25 years was real sister of Mahmud. She and her husband Jangi Khan (P. W. 6) also used to live in the same Haveli till a few days prior to the occurrence when they shifted to their own house in a nearby village at a distance of about two furlongs from village Ghulam Paraiz. Dad Karim deceased belonged to village Kacha Khad but had settled in village Ghulam Paraiz where he ran a shop.

3. The case for the prosecution is that on 7‑4‑1963, about midday, Mahmud accused came, out of his house and went towards Baghecha of Badal Khan. As he jumped over the wall of Baghecha, he was shocked to see his sister Mst. Rahim Bibi and Dad Karim in a compromising position. He challenged the miscreants to get up and rushed towards them. Being thus surprised by Mahmud, they got up. Dad Karim made a bid to escape but Mahmud accused succeeded in getting hold of him. Even then Dad tried to free himself by pushing asunder his captor. This led to a scuffle between the two. Mahmud shouted to the appellant for help asking him to bring weapons because he had caught a `Siahkar'. The appellant immediately responded to the call and taking a sword and pick‑axe ran to the spot and saw Dad Karim and Mahmud still grappling with each other. Mahmud told the appellant that his sister Mst. Rahim Bibi and Dad Karim had been guilty of `Siahkari'. Thereupon, the appellant threw the sword towards Mahmud and himself attacked Dad Karim with the pick‑axe. Mahmud also gave him blows with the sword and when Dad Karim was incapacitated and fell down, Mahmud slaughtered him with the sword. Dildar (P. W. 2) saw the appellant and Mahmud inflicting injuries upon Dad Karim with their respective weapons. Having finished with Dad Karim, the appellant and Mahmud followed Mst. Rahim Bibi who had in the meantime disappeared from the scene. They found her going towards the village and having over‑taken her also killed her with the weapons they were carrying. She was also slaughtered by Mahmud after she had fallen on the ground. Ghulam Nabi (P. W. 3) saw the appellant and Mahmud in pursuit of her and Ata Muhammad (P. W. 4) and Mira Khan (P. W. 5) saw her being actually killed. Having killed her, the appellant and Mahmud dragged her body to the place where Dad Karim lay dead and stayed with the dead bodies till Takri Nawab (P. W. 1) on hearing the commotion came to the scene of occurrence. On inquiry by the witness, the appellant. and the accused told him that they had killed Dad Karim and Mst. Rahim Bibi because they were guilty of `Siahkari'. Takri Nawab P. W. went to report the matter to the Tehsildar, who in turn informed the S. H. O. over the telephone. The tatter immediately, proceeded to the scene of occurrence. The appellant and Mahmud remained at the spot till the arrival of the police and handed over the pick‑axe Exh. P. 1 and sword Exh. P. 2 to the police.

4. On 11‑4‑1963, the appellant was produced before the Tahsildar‑cum‑Magistrate 2nd Class, for recording his confession. After the Magistrate had satisfied himself that the appellant was going to make confession of his own free‑will and not under any pressure from the police, he recorded his statement Exh. P. W. In this statement he gave a graphic description of the entire transaction and made a down‑right confession as being a partner in crime with Mahmud and having killed both Dad Karim and Mst. Rahim Bibi with pick‑axe and sword respectively. On the following day, i.e., on 12‑4‑1963, Mahmud accused was also produced before the Tehsildar and he made a similar confessional statement Exh. P. V.

5. In the course of trial both before the committing Magistrate and in the Sessions Court, Mahmud modified his statement in so far as it implicated Behram appellant. In both the statements, he entirely exculpated the appellant from being concerned in the killing and himself assumed the sole responsibility for having killed both Dad Karim and Mst. Rahim Bibi in the circumstances mentioned above. When confronted with his earlier confession Exh. P. V., he admitted having made the statement but repudiated it so far as it implicated the appellant and said he was innocent. The appellant too completely went back upon his confessional statement Exh. P. U. and denied all knowledge or participation in the commission of the crime.

6. However, the learned Sessions Judge relied and rightly so, upon the two confessional statements Exhs. P. U. and P. V. That apart, the ocular evidence (which is of the unimpeachable character) and the medical report, (which shows that two different weapons, namely, sword and pick‑axe were used) which clearly points out to two persons taking part in the crime. The appellant's participation m the crime is established beyond doubt.

7. Faced with this overwhelming evidence both ocular and circumstantial, appellant's learned counsel frankly conceded that the appellant was a co‑partner in crime with Mahmud accused and argued in support of the appeal on that basis. He contended that on the evidence produced in the case, which the learned Sessions Judge had accepted in the case of Mahmud, he ought to have allowed the benefit of grave and sudden provocation to the appellant as well and should have also similarly convicted 9 him under section 304, Part 1, P. P. C. instead of section 302, P. P. C. We feel that there is force in the learned counsel's contention. The learned Sessions Judge distinguished the case of the appellant from that of Mahmud, in paragraph 14 of his judgment in the following words: "The only point to be determined in his case therefore is as to whether he (the appellant), too acted under grave and sudden provocation or not. From the circumstances of the case I am, however, of the opinion that he did not act under any grave and sudden provocation. He admittedly did not see the two deceased in a compromising position and it is in evidence that Rahim Bibi was not present at all when he arrived for the help of Mahmud. In the circumstances there was therefore nothing to give grave provocation. The mere telling of Mahmud that Dad Karim had committed adultery with Rahim Bibi could not in my opinion give him any sudden provocation." The learned Sessions Judge, reached this conclusion against the unanimous opinion of the Assessors, who assisted him in the trial. They were of the opinion that the plea of grave and sudden provocation was equally available to the appellant as in the case of Mahmud. Whether plea of grave and sudden provocation will avail in a case will depend upon its circumstances and it is nowhere laid down as an inflexible rule, that an outraged relation should also be an eye‑witness to the sexual indecency before he can take advantage of the mitigating circumstance. The view taken by the trial Court appears to us to be an unwarranted limitation on the operation of the 1st Exception to section 300, P. P. C. The learned Sessions Judge perhaps overlooked the very important fact in this case, that the appellant besides. being a close relation of Mst. Rahim Bibi also lived with Mahmud and his parents as member of the family in the same Haveli and, therefore, he was so much honour‑bound as Mahmud himself to assert his right to redeem the in fame that has been brought upon the family by Mst. Rahim Bibi by her sexual relation with Dad Karim. The learned Sessions Judge further overlooked the fact that the appellant responded to the call for help by Mahmud accused who had actually seen the two miscreants in the act of sexual intimacy. Not only that: Dad Karim gave him the further provocation by offering resistance to make good his escape and indeed during the initial stage had better of Mahmud, who was comparatively younger in age and, therefore, not strong enough to over‑power him single handed. All these factors are in our opinion, very material and go a long way to bring the appellant's case at par with that of Mahmud. Indeed, the learned A. A.‑G., could not support the proposition enunciated by the learned Sessions Judge in respect of the appellant's case. Therefore, we hold that the appellant's convic tion under section 302, P. P. C. cannot be maintained.

8. On the point of sentence, learned counsel for the appellant next urged that prior to integration of Kalat Division with the rest of the Province, for the purposes of the administration of justice, the tribal custom recognised the right of male members to kill with impunity a `Siahkar' female member of the family and her paramour and that it was precisely for this reason that the learned Sessions Judge let off Mahmud with a token sentence of imprisonment till the rising of the Court. Therefore, lie pleaded for similar token sentence in the case of appellant also. To this aspect of the case, we have given our anxious consideration and if we may say so, the learned Sessions Judge misdirected himself when he allowed extraneous consideration to weigh with him in awarding trifling sentence to Mahmud. Having found him guilty under section 304, Part I, P. P., C., he was bound to impose a sentence as warranted by law and if in his opinion any extra‑judicial consider ation had any bearing on the case, then he ought to have brought the case to the notice of the Provincial Government who have ample powers under section 401 .of the Criminal Procedure Code, C 1898 to deal with the case and to mitigate the rigour of law, as the justice of the case may require. It is not permissible to Courts to encroach over the prerogative power of the Executive reserved under section 401, Cr. P. C. or Article 18 of the Constitution. The offence under section 304, Part I, P. P. C. is punishable with transportation for life or imprisonment which may extend to ten years and also to fine. As a rule, sentence actually awarded must bear some proportion to the punishment prescribed by the statute. This is not to say that in assessing the actual sentence. the Court should disregard the circumstances of the case before calling for what may be severe or as the case may be lenient sentence. But to award the sentence of imprisonment till the rising of Court in a case where the maximum prescribed is transportation for life and in which two human lives were lost is to reduce the criminal justice to a mockery: Learned counsel for the appellant strongly relied upon State v. Akber (P L D 1961 Lah. 24), in which the accused who pleaded grave and sudden provocation in his defence was convicted under section 304, Part II, P. P. C., and sentenced to imprisonment till the rising of the Court and a revision by the State for enhancement of sentence failed. That case proceeded on its own facts. For one thing, the conviction in that case was under Part II of section 304, which is lesser offence. Secondly, the learned Single Judge did not quite approve of the trifling sentence imposed by the Sessions Judge in that case. It is true, that the learned Single Judge made some observations underlining the desirability of preserving the moral values and notions of honour and chastity as well as social customs, which prevails in the society, and to deal such cases with leniency. But it is wrong to read that judgment as laying down, that in cases of grave and sudden provocation caused by sexual delinquency of female relatives, a trifling sentence will do. While on the one' hand law gives the benefit of shock to the accused in the circumstances furnishing grave and sudden provocation within the meaning of Exception I to section 300, P. P. C., in prescribing a sentence of transportation for life or imprisonment extending up to ten years, it also inculcates a peculiar sanctity for human life. Therefore, a balance is to be maintained between the two different concepts underlying the provisions of P. P. C. relevant to this case.

9. For the foregoing reasons, we set aside the conviction and sentence of the appellant under section 302, P: P. C. and convict him for an offence under section 304, Part I, P. P. C. and sentence him to three years' rigorous imprisonment. With the above modification, the appeal is dismissed. S. A. H./S. Q. Sentence modified. Appeal dismissed.