2005 P Cr (PLP)

Ch. Sajjad Tabassam with Mian Saeed‑ud‑Din Ahmad (Defence Counsel) for Appellant (at State expense). Ch. Muhammad Nazir for the State. Date of hearing: 18th October, 2004. ASIF SAEED KHAN KHOSA, J.‑‑‑Inayat appellant was convicted on two counts of an offence under section 302(b), P.P.C vide judgment dated 29‑2‑2000 rendered by the learned Additional Sessions Judge, Faisalabad and was sentenced to death by way of Ta'zir on both the counts: He was also ordered to pay a sum of Rs.1,00,000 to the heirs of Muhammad Munir deceased by way of compensation under section 544‑A, Cr.P.C. or in default of payment thereof to undergo rigorous imprisonment for six months. The appellant has challenged his convictions and sentences before this Court through the present appeal which has been heard by us along with Murder Reference No. 127 of 2000 seeking confirmation of the sentences of death passed against the appellant by the learned trial Court. We propose to decide both these matters together through the present consolidated judgment.

2. The prosecution's case against the appellant is that at about 2‑00 a.m. on 1‑8‑1996 he had committed the murders of his own wife namely Mst. Nooran and her cousin namely Muhammad Munir in the house of one Mamman situated in Chak No.355/G.B., Baggay Da Chak Tehsil Jaranwala, District Faisalabad. F.I.R. No.572 was lodged in respect of the said incident by Bashir Ahmad complainant, a brother of Muhammad Munir deceased and a cousin of Mst. Nooran deceased, at Police Station Jaranwala, District Faisalabad on the same day, i.e. 1‑8‑1996 for an offence under section 302, P.P.C. After completing the investigation of the said case a challan was submitted against the appellant. He pleaded not guilty to the charge framed by the learned trial Court whereafter a full‑dressed trial was held and at the conclusion of the same he was found by the learned trial Court to be guilty of both the murders and was, thus, convicted and sentenced as mentioned and detailed above.

3. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. At the outset it has been argued by the learned counsel for the appellant that in his statement recorded under section 342, Cr.P.C. the appellant had admitted killing both Muhammad Munir and Mst. Nooran deceased and, therefore, he is not in any position to challenge the appellant's convictions recorded by the learned trial Court. He has, however, maintained that a compromise has already been entered into between the appellant and the heirs of Mst. Nooran deceased and in the peculiar circumstances of this case the appellant deserves reduction of his sentence qua the murder of Muhammad Munir deceased, He has also argued that the case against the appellant attracts the provisions of section 302(c), P.P.C: and not section 302(b), P.P.C. As against that the learned counsel for the State has maintained that the appellant has admitted killing Muhammad Munir deceased and there has not been any compromise between, the heirs of Muhammad Munir deceased and the appellant and, therefore, there is no occasion for reduction of his sentence on that count of the charge.

4. After hearing the learned counsel for the parties and going through the record it has straightaway been observed by us that in his statement recorded under section 342, Cr.P.C. the appellant had categorically and unambiguously admitted killing Muhammad Munir and Mst. Nooran deceased. However, he had maintained in the said statement that he had committed the said murders on account of Ghairat after finding, the two deceased indulging in sexual intercourse with each other. In this context we have noticed that the onus on the prosecution to establish as to who had committed the alleged murders had been discharged upon the appellant's admission that he had committed both the said murders but upon such admission of the appellant the onus had shifted upon the appellant to prove through positive evidence that the case against him attracted any general or special exception provided in the Pakistan Penal Code. We have found that the appellant had produced no such evidence at all in order to establish the plea of grave and sudden provocation or Ghairat advanced by him before the learned trial Court. In these circumstances there is hardly any occasion for us to accept the argument of the learned counsel for the appellant that the case against the appellant attracts the provisions of section 302(c), P.P.C. and not those of section 302(b), P.P.C.

5. We have also found that during the pendency of this appeal and the connected Murder Reference Criminal Miscellaneous No.884‑M of 2004 had been filed before this Court seeking giving effect to a compromise between the heirs of Mst. Nooran deceased and the appellant. We had referred the matter of compromise to the learned Sessions Judge, Faisalabad for its verification. The report dated 21‑7‑2004 submitted by the learned Sessions Judge, Faisalabad in this regard shows that all the heirs of Mst. Nooran deceased have already entered into a compromise with the appellant and they have offered no objection to the appellant's acquittal on the said count. The learned Sessions Judge, Faisalabad had felt satisfied with the genuineness, voluntariness and completion of the acclaimed compromise between the appellant and the heirs of Mst. Nooran deceased.

6. As regards Muhammad Munir deceased we have observed that the motive set up by the prosecution had not been established at all. We have further found that the occurrence in this case had taken place during the dead of a night and both the eye‑witnesses produced by the prosecution had admitted that the place of occurrence was the house of the appellant himself. Muhammad Munir deceased was not a resident of the said house and his presence inside that house during the fateful night had remained far from being explained properly. It may not be out of place to mention here that in the F.I.R. as well as in the statements of both the eye‑witnesses produced by the prosecution it had been admitted that tire appellant had entertained a suspicion regarding illicit relations between his wife namely Mst. Nooran deceased and her cousin namely Muhammad Munir deceased. In these circumstances by visiting Mst. Nooran deceased in the house of the appellant in the darkness of a night in furtherance of an illegal and immoral purpose Muhammad Munir deceased had himself asked for trouble and he was himself responsible for the harm coming his way. We have, therefore, felt that the appellant had not committed the murder of Muhammad Munir deceased with any premeditation and, thus, on the said score he deserves the lesser punishment provided under section 302(b), P.P.C.

7. For what has been discussed above Criminal Appeal No. 104‑J of 2000 is allowed to the extent of the appellant's conviction and sentence pertaining to the murder of Mst. Nooran deceased and the conviction and sentence of the appellant on the said charge are set aside on account of the compromise between the heirs of Mst. Nooran deceased and the appellant. The appellant is acquitted of the said count of the charge on the basis of the compromise. However, as regards the charge relevant to the murder of Muhammad Munir deceased the appellant's conviction under section 302(b), P.P.C. recorded by the learned trial Court is upheld and maintained but his sentence of death passed by the learned trial Court on that count is reduced to imprisonment for life. As Muhammad Munir deceased had lost his life in pursuance of an immoral and illegal purpose, therefore, we set aside the order passed by the learned trial Court regarding payment of compensation by the appellant to the heirs of the said deceased. The benefit under section 382‑B, Cr.P.C. is extended to the appellant. Criminal Appeal No.104‑J of 2000 is disposed of in these terms.

8. Murder Reference No.127 of 2000 is answered in the negative and the sentences of death passed by the learned trial Court against the appellant are not confirmed. H.B.T. I‑68/L Order accordingly.