1992 PLP 2047 (SCMR)

JUSTICE SHAFIUR RAHMAN (CHAIRMAN).

The State has appealed against the judgment of the Special Court for Speedy Trials dated 1-6-1992 whereby only one of the accused out of six who stood trial (respondent No.1/Muhammad Hanif) was found guilty under section 302(c) of the Pakistan Penal Code and sentenced to 10 years' R.I. and a fine of Rs.25,000 to be paid as Arsh to the heirs of the deceased, and the other co-accused were acquitted of the charges. The State considers that it was a case of Qatl-i-amd punishable under section 302(a) of the Pakistan Penal Code and the co -accused of Muhammad Hanif/respondent No.1 were also jointly responsible for committing the offence. Reliance is heavily placed on the appellate decision of this Court in The State v. Abdul Waheed alias Waheed and another 1992 PCr.LJ 1696.

2. The prosecution case as disclosed at the trial was that Muhammad Khurshid, a brother of Muhammad Hanif was murdered in which the deceased alongwith his other brothers was implicated and were facing the trial. On the 9th of November, 1991 at about 4-45 p.m. the deceased Muhammad Ashraf happened to be in the Bazar of Qutabpur, District Multan at a spot close to the house of Allah Mehr. Sher Din (P.W.5) and Muhammad Akhtar (P.W.8) happened to be present at that time in the same Bazar for their own errand. All of a sudden, Muhammad Hanif armed with Chhurri, his two brothers Sharif and Akram and three other relatives Rashid, Akram and Asghar two of whom were armed with hatchets emerged from the shop of Allah Mehr and gave repeated blows to Muhammad Ashraf who died of the injuries the same night. As many as 17 incised injuries were found on his person at the time of autopsy. In support of the prosecution case, apart from the motive, Sher Din (P.W.5) and Muhammad Akhtar (P.W.8) appeared as eye-witnesses and the one other eye-witness was given up as unnecessary. The accused were arrested on 12-11-1991 and incriminating recoveries were effected allegedly on 17-11-1991. The accused standing their trial, other than Hanif, denied their presence or participation in the occurrence and took up the plea that they were falsely implicated. Hanif respondent No.1, however, made the following statement with regard to his role:-- "I myself caused the death of Muhammad Ashraf under the state of grave and sudden provocation when he disgraced and dragged my wife on the date of this incident:'

3. The trial Court totally disbelieved the presence of the two eye witnesses. They were held to be chance witnesses and had not satisfactorily accounted for their presence. Their testimony was further found to be intrinsically unsound. Besides, it was held that the occurrence having taken place in the Bazar, some evidence should have been available independently of such interested and uninspiring witnesses. The medical evidence was also found to be inconsistent inasmuch as hatchet injuries attributed to two of the co-accused were not found present on the deceased. The recoveries were also totally disbelieved. The Court concluded as hereunder:-- "In this case the ocular evidence has been disbelieved, medical evidence does not fully corroborate the prosecution story and the recoveries have been planted on the accused. The proof of motive does not prove the prosecution case as it is a corroborative piece of evidence. When the ocular witnesses have been disbelieved, the evidence of motive also loses its force. A vast net has been cast to entangle as many persons of the family of Allah Mehr as the complainant could."'

4. On the legal question, whether the act of Muhammad Hanif on the established facts amounted to Qatl-i-Amd liable to Qisas or not, the trial Court held as hereunder:-- "Muhammad Hanif has taken the plea of grave and sudden provocation which is not available to him now as section 300, P.P.C. has been substituted by a new section 300, P.P.C. and the exceptions contained in the old section have been deleted. The definition of Qatl e-i-Amd has been given in the new section 300, P.P.C. Any how it serves as a mitigating circumstance in favour of Muhammad Hanif. Another fact that he has taken revenge of the murder of his brother Khurshid is also an extenuating circumstance which goes in his favour. I find Muhammad Hanif guilty under section 302(c), P.P.C. and award him ten years' rigorous imprisonment. Muhammad Hanif accused is also directed to pay. Rs.25,000 as Arsh to the heirs of the deceased, in default of the payment of the said amount, he shall further undergo rigorous imprisonment for two years." The other co-accused of Muhammad Hanif respondent No.1 were acquitted of the charges.

5. The learned counsel for the State (Rana Muhammad Arshad Khan, Additional Advocate-General Punjab) has contended that even if there be the statement of the. accused in the form in which it had appeared, it was insufficient to allow him the benefit under section 302(c), P.P.C. because he had to prove his plea in the same manner the prosecution was required to prove its own case. He has heavily relied on the case of Waheed 1992 PCr.LJ 1596 for showing that even where prosecution evidence was deficient, the accused was required to proved that there was sudden and grave provocation and that the offence which was being committed was not liable to be punished with death under the injunctions of Islam.

6. There are two legal questions arising in the case and one factual. The factual question is, whether the trial Court was justified in totally rejecting the ocular evidence and recovery evidence. We have gone through the judgment as well as the evidence and find that there is no misreading of the record, that conclusions which could be drawn in a criminal trial have been drawn in appraising the evidence and other material brought on record. There is no perversity in the same. That factual question having been answered, the two legal question which arise are; (i) what is the effect of total rejection of the prosecution evidence? and (ii) whether the requirement of section 302(c), P.P.C. has to be proved by the prosecution as a requirement of substantive law or has to be proved by the accused as an Exception?

7. On the first question the Supreme Court has consistently held that where the prosecution evidence stands rejected in its totality, the statement of the, accused has to be accepted in totality and without scrutiny. The first judgment on the point coming from the Supreme Court is that of Faiz and another v. The State 1983 SCMR 76 wherein at page 79 the following observations were made:

"The judgment of the High Court makes it abundantly clear that the ocular evidence was totally discarded and the only material utilized by the Court for determining the guilt of the appellants was the "defence version". There were no proved or established facts to test the defence version. This distinguishes the decision in Imamuddin's case 1975 PCr.LJ 948 which had proved or established facts. In Balmakund's case AIR 1931 All. 1 a reference to Full Bench of the High Court became necessary because the Judges hearing the case found the exculpatory part of the statement of the accused to be so unworthy of belief that no Court could act upon them. The Full Bench noted that during the last one hundred years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception:-- (a) where there is other evidence a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence. (b) where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible. In the case of Rahim Bux PLD 1952 FC 1 also it was held that where the conviction is based entirely on the statement of the accused then that statement should be taken into consideration in its entirety. The above view is based on sound reason. The accused is questioned only on matters found incriminating against him in the evidence. His reply or narration is not tested or completed either by cross-examining him or by putting him further questions. The state of his mind is not prodded. His bare statement about it exists on record, for whatever its worth. In the absence of any other evidence it has to be accepted as a fact, though apparently not fully established." The same law point was reaffirmed in Sultan Khan v. Sher Khan and others PLD 1991 SC 520 in the following words:

, "After excluding the entire prosecution evidence against the accused; the question calls for determination is whether the statement of the accused is to be accepted as a whole or exculpatory part of the statement could be excluded from consideration and his conviction can be based on the inculpatory statement. There is no doubt that the statement of an accused recorded under section 342, Cr.P.C. may be taken into consideration but the Court cannot select out of the statement the passage which goes against the accused. Such statement must be accepted or rejected as a whole. The Federal Court in Rahim Bakhsh v. Crown PLD 1952 FC 1 has observed that "if the conviction of the petitioner is to be based solely on his statement in Court it is obvious that this statement should be taken into consideration in its entirety". The statement of an accused should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved to be false may be excluded. See Balmakund v. Emperor AIR 1931 Al1.1; Sher Gul v. Emperor AIR 1935 Lah. 671, Muzaffar Khan v. The State PLD 1956 (W.P.) Lah. 1045, Mohan Lai. v. Ajeet Singh AIR 1978 SC 1183 and Ghulam Muhammad v. The. State PLD 1961 (W.P.) Lah. 146."

8. The second legal question can be answered by reference to the specific provision of section 302(c) of the Pakistan Penal Code. The whole of section 302, P.P.C. is reproduced with all its clauses, as hereunder:-- "

302. Punishment of Qatl-i-amd

Whoever commits Qatl-i-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 Ta'zir 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." Going through the Injunctions of Islam, Qatl-i-amd liable to Qisas takes place only when the person murdered is not liable to be murdered or is `Maasoom-ud-Dam'. This fact finds mention in all the books containing the Injunctions of Islam. For brevity sake, the following is reproduced from the book `Islami Qawanin Hudood, Qisas, Diyat wa Ta'ziraat' by Dr. Tanzilur Rahman:-- The exact words of section 302, P.P.C. make it clear that there is no Exception provided therein. What is provided is a substantive law and the prosecution has to prove every part of it i.e., whether it is a `Qatl-i-amd' liable to Qisas, whether it is `Qatl-i-amd' not liable to Qisas, or whether it is Qatl-i amd liable to Ta'zir. The prosecution having itself taken the position that this murder was on account of the murder of a brother of the respondent, it had further to be shown that the deceased was not the person named, accused or suspected of having committed the murder. The F.I.R. of the earlier case was not produced or exhibited. The trial Court could, in the absence of any material, say that Ashrafs death could be caused without the liability of Qisas because of the murder of the brother of the convict.

9. If we go by the strict Injunctions of Islam we find that punishment of death is permissible where under Hadd the offence already committed or sought to be committed by the person is one liable to Hadd of death. If this strict view of the Injunctions of Islam is kept in view, then if an unmarried person commits Zina-bil-jabr with ones wife, the husband will have no right, even though the event takes place in his sight, to murder the Zani/accused of that crime because Zina-bil-jabr by or Zina by itself by an unmarried man is not punishable with death. The other requirement of the law that the person who is done to death must be `Maasoom-ud-Dam' is stronger repugnance. The Qur'anic Verse 34 of Sura An-Nisa starting with "Alrijal Qumoona ala nisa " has been translated as `Mard urtun per qawam hain' and interpreted in Tafhim-ul- Qur'an (Volume 1) at page 349, as hereunder:

A person like the deceased who suffered from a prohibition under Quranic injunctions not to touch or deal with a lady who was not Mehram to him could not so disgrace and insult as to evoke the corresponding duty of the husband to protect and guard the wife. Such a man under the Injunctions of Islam cannot be said to he `Maasoom-ud-Dam when he is indulging in such an activity. Be it a person disgracing a lady or committing Zina-bil-jabr with her being unmarried, it is not provocation but an exercise of the right conferred on the husband under the express words of the Quran itself. Qisas will not be liable in such a situation.

10. There are three distinguishing features so far as the case of Waheed 1992 PSC (Cr.) 498 is concerned. First of all, it was a case where the ocular evidence was not totally rejected or disbelieved. The trial Court considered it unsafe to act on it without independent corroboration. One looks for independent corroboration when the evidence is found to be worthy of credit but not of such a degree as resulting in conviction of the accused. There is no question of a rejected evidence being utilised by corroborated evidence. That has never happened in criminal trial. The other distinguishing feature of that case is that it proceeded by having recourse to a provision of the Evidence Act with regard to proof of an exception but in case before us there is no Exception to be proved. It is substantive law. Thirdly, in Waheed's case the reliance was placed on Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633 with regard to requirements of Qisas that the man murdered should not be liable to be murdered. The other requirement that he should be Maasoom-ud-Dam also was not at all examined in the judgment of Gul Hasan Khan's case. Another wide field of Exceptions was referred to which under the Injunctions of Islam has not been explored so far in Courts judgment is the right of defence of ones own person and of the person of those whose protection is the duty of the man. Such an Exception finds mention in the judgment of Mr. Justice Maulana Muhammad Taqi Usmani in Gul Hasan Khan's case PLD 1989 SC 6-3'3 at page 674, in the following words:

11. The amplitude of right of self-defence under Injunctions of Islam is far wider than is available under the Pakistan Penal Code. This is borne out by the following illustrations appearing in Mishkat-al-Masabih English Translation by James Robson (Volume II) in Book XV--Retaliation, Chapter III:

"(i) Abu Huraira told that he heard God's messenger say, "If any one were to look into your house without receiving your permission and you were to throw a pebble at him and put out his eye, you would be guilty of no offence (Bukhari and Muslim). (ii) Sahl B. Sa'd said that a man looked through a hole in God's messenger's door when God's messenger had a spike with which he was scratching his head, so he said, "If I knew that you were seeing me I would poke it in your eyes, for asking permission has been appointed only on account of what people may see." (Bukhari and Muslim). (iii) Abu Dharr reported God's messenger as saying, "If anyone removes a curtain and looks into a house before receiving, permission and sees anything in those within which should not be seen, he has committed an offence which it is not lawful for him to commit. If a man confronted him when he looked in and put out his eye, I would not blame him; but if a man passes a door Which has no curtain and is not shut and looks in, he has committed no sin, for the sin pertains only to the people inside." Tirmidhi transmitted it, saying this is a gharib tradition."

12. We find that on the evidence and material on record considered with the Injunctions of Islam applicable to them, the judgment of the trial Court suffers from no such infirmity as may require our interference. The State appeal is, therefore, dismissed. N.H.Q./46/SAC Appeal dismissed.