1996 P Cr (PLP)

7. We, now, turn to the plea of the appellant, who, in his statement under section 342, stated that on the day of occurrence, his wife had gone to ease herself in the cotton field adjacent to place of occurrence; that he was also present in the field to cut Datan with knife; that meanwhile, he heard shrieks of his wife and rushed to scene of occurrence and found that the deceased was making endeavours to outrage her modesty; that he killed the deceased out of grave and sudden provocation. No evidence was led by the appellant to substantiate his plea. Even his wife was not examined. It is not in dispute that this case falls under section 302(a) as substituted by Criminal Law (Fourth Amendment) Ordinance (XXX of 1991). Through this Ordinance, section 300, P.P.C. was amended and definition of "Qatl‑i‑Amd" has been given as under:‑‑‑ "Qatl‑e‑Amd.‑‑‑ Whoever, with‑the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause, death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, 'is said to commit Qatl‑e‑Amd." . Section 301, P.P.C. relates to the case of causing death of a person other than whose death was intended and reads as follows:‑‑ "301 Where a person, by doing anything which he intends or knows to be likely to cause death, causes death of any person whose death he neither intends nor knows self to be likely to cause, such an act committed by the offender shall be liable for Qatl‑i‑Amd." Section 302 provides for the punishment for "Qatl‑i‑Amd" and is couched in the following terms:‑‑ "

302. Whoever commits Qatal‑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." The provision dealing with proof is contained in section 304 and this provision reads as follows:‑‑ "

304. Proof of Oatl i‑Amd liable to Qisas etc: ‑‑ (1) Proof of Qatl‑i-?Amd shall be in any of the following forms, namely:‑‑ (a)??????? The accused makes before a Court competent to try the offence of voluntary and true confession of, the commission of the offence, or (b) ?????? by evidence as provided in Article 17 of Qanun‑e‑Shahadat:

8. The question as to whether the plea of grave an sudden provocation was available under amended section 302, came up before the Supreme Appellate Court of Pakistan in a case reported as The State v. Abdul Waheed alias Waheed and another 1992 PCr.LJ 1596. His Lordship Mr. Justice Nasim Hasan Shah (Chairman of Bench as he then was) speaking for the Bench held:‑‑ "The above finding of the learned trial Court has been criticised by Mr. M.K. Chaudhry, learned counsel for the State, and it is pointed out that the learned Special Court, while giving this finding, took into consideration one part of the dictum of Gul Hasan's case and totally ignored the other, which was more if not equally important. The relevant part of the judgment which was not noticed by the learned Special Court is reproduced below:‑‑ The learned counsel for respondent No.l (Abdul Waheed), Mr. RA. Awan, did not dispute that the above noted portion of the judgment has not been referred to by the learned Special Court. The observations made in Gul Hasan's case clearly show that grave and sudden provocation is not an exception per se and the punishment of Oisas where Qatl‑i‑Amd is committed under grave and sudden provocation, can be mitigated only if proof of Zina is produced, which conforms to the required standard of evidence prescribed under the Islamic Injunctions. In other words, Qatl‑i‑Amd by husband (or by inference, by a near relative, as in the instant case) will attract a punishment lesser than Qisas only if proof of commission of such Zina exists which satisfies the required standard of evidence prescribed under Islamic Injunctions. Here, except for the bare statement of Abdul Waheed (respondent) no other evidence was produced by him in support of his plea that Zina was being committed by Abdul Waheed with his sister. We note also that the principle enshrined under Article 121 of Qanun-?e‑Shahadat is to the same effect. Article 121 reads:‑‑ "When a person is accused of an offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence is upon him and Court shall presume the absence of such circumstances." In Mohib Ali v. The State 1985 SCMR 2055 the following observation appearing at page 2059 is significant:‑‑ "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." This point again cropped up before Supreme Appellate Court of Pakistan in The State v. Muhammad Hanif and 5 others 1992 SCMR 2047. Dealing with this question, his Lordship Justice Shafiur Rahman, (as he then was) observed as under:‑‑ "If we go by the strict Injunctions of Islam we find that punishment of death is permissible there 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 one's 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 vers 34 of Sura An‑Nisa starting with has been translated as and interpreted in Tafhim‑ul-?Qur'an (Vol. 1) at page 349, as hereunder:‑‑ A person like the deceased who suffered from a prohibition under Qur'anic 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 be `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 Qur'an itself. Qisas will not be liable in such a situation. There are three distinguishing features so far as the case of Waheed 1992 PCr.LJ 1596 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 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 the 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 one's 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 633 at page 674, in the following words:‑‑ 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‑Masahih English Translation by James Robson (Vol. II) in Book XV‑‑?Retaliation, Chapter III:‑‑ (i)???????? Abu Huraira told that he heard God's Messenger say, `If anyone 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 spite 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 seen, he has committed an offence which it is not lawful for him to commit. If a man confronted him then he looked in and put out his eye, I would not blame him; but if a man passes a door which has no curtain it 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 a Gharib Tradition. The question attracted the attention of my learned brother Khalil‑ur‑Rehman Ramday, J., in Ghulam Yaseen and 2 others v. The State PLD 1994 Lah.

392. After analysing the applicable Injunctions of Islam and precepts of Holy Prophet (may peace be upon him), the learned Judge held as follows:‑‑ "From the above quoted Ahadeeth, it is obvious that a Qatl committed on account of Ghairat is not the same thing as Qatl‑i‑Amd pure and simple and the person found guilty of Qatl committed on account of Ghairat do deserve concession which must be given to them. The least that can be done in the present state of law is to convict such like persons, guilty of Qatl‑i-Amd committed on account of Ghairat, under clause (c) of section 302, P.P.C., as such, a Qatl cannot be said to be punishable with Qisas as per Injunctions of Islam."

9. Guided by the above principles, we now proceed to examine the facts and circumstances of this case. No doubt, it is settled law that if prosecution evidence is disbelieved, then the statement of the accused under section 342, Cr.P.C. is to be believed in entirety. Even if this test is applied, we, on the perusal of the material on record, do not find any circumstances which might lead to a conclusion that the deceased was committing any offence, punishable with Qisas or accused was committing any such offence which might have given the appellant any right of self‑defence as laid down in The State v. Muhammad Hanif and 5 others 1992 SCMR 2047. The appellant contented himself by taking the plea under section 342 of the Criminal Procedure Code and did not lead any evidence. He even did not dare to put his wife in witness‑box. The record indicates that he did not suffer any scratch during the alleged scuffle. In Mohib Ali's case 1985 SCMR 2055, it was held that whenever a plea of grave and sudden provocation was claimed, it was the duty of the person raising such, plea to lead material in support of that plea; that normally, such pleas should not be accepted, which are taken in a stereotype manner. Judged from the above diamension, we have no doubt in coming to conclusion that the case of prosecution stood fully proved by ocular evidence, backed by the evidence of recovery and the medical evidence. Minor discrepancies would not give any benefit to the appellant (See Ghulam Rasul v. Ali Akbar and others PLD 1965 SC 363). In the light of the foregoing discussions, we find no reason to interfere with the decision of the Court below. We, accordingly, dismiss the appeal and confirm the sentence of death awarded to appellant by the trial Court. In result, the Murder Reference succeeds and the appeal fails which is dismissed. N.H.Q./R‑20/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.