1992 P Cr (PLP)

JUSTICE NASIM HASAN SHAH, CHAIRMAN.

The prosecution case stated very briefly is that on 18-10-1991 at about 8-45 p.m. Abdul Waheed, respondent No.1 (alongwith Khalil Ahmad, respondent No.2) fired upon Shaukat Nizami with his gun and caused his death. This occurrence was allegedly witnessed by two eye-witnesses. The motive of Abdul Waheed (respondent No.1) for firing at Shaukat Nizami and causing his death was that the abovenamed respondent suspected that the deceased had illicit relations with his sister Mst. Nazira.

2. The respondents, Abdul Waheed and Khalil Ahmad, were challaned for the murder of Shaukat Nizami and both were tried by the learned Judge, Special Court for Speedy Trial No.1, Lahore under section 302/34, P.P.C. The learned trial Court after hearing the evidence felt doubtful with regard to the presence of the two witnesses who claimed to have seen the occurrence at the spot and, therefore, opined that they could only be relied upon if some independent corroboration was available to support their testimony. As this was not available, he acquitted respondent No.2 (Khalil Ahmad) but as regards respondent No.2 he found that in so far as he (Abdul Waheed, respondent No.1) had himself admitted in his statement both under section 342, Cr.P.C. and under section 340, Cr.P.C. that he had fired at the deceased on account of grave and sudden provocation because he saw him in a compromising position with his sister, he (respondent No.1) was guilty of the offence under section 302, P.P.C. but liable to punishment under clause (c) thereof. Accordingly, he was, sentenced to seven year's R.I. vide judgment dated 12-1-1992.

3. This is an appeal by the State challenging the above judgment of the learned Special Court.

4. The appeal first came up for hearing on 8-2-1992 before this Court. After hearing the learned Deputy Attorney-General it was admitted to regular hearing in so far as respondent No.1 is concerned on the ground that the contention of the State that the finding recorded by the learned Special Court Judge to the effect that respondent No.1's case fell under clause (c) of section 302, P.P.C. and did not fall under clause (a) thereof was against the Islamic Injunctions, prima facie had force. The appeal directed against the acquittal of Khalil Ahmad was dismissed.

5. The appeal against Abdul Waheed respondent was ultimately heard on 7-3-1991 when the learned counsel for all the parties were heard at length. The judgment, in view of the important question arising for consideration therein, was reserved on conclusion of the arguments.

6. The statement of Abdul Waheed, respondent No.1, in mitigation of his act, is as follows:-- "At about 9/9-15 p.m. on the night of occurrence I was coming to the house of my sister Mst. Nazira (deceased) engaged in sexual act in the graveyard. I felt enraged, ran to my house, brought the licensed gun of my father (P.4) and fired at my sister but the deceased came in between and was hit. The cartridge was stuck in the chamber and so I could not reload the gun. She was able to run away from the spot. I myself went to the police station and produced my gun."

7. The reasons given by the learned Special Court for finding Abdul Waheed punishable under clause (c) of section 302, P.P.C. are stated in para. 17 of the judgment as follows:-- "Waheed accused as per his own pica, fired at and murdered the deceased. He is, therefore, on his own statement, convicted for Qatal i-Amd under section 302, P.P.C. Learned AA.-G, argued that the normal penalty of death as Qisas be imposed. On the other hand, learned counsel for the accused contended that the case fell within clause (c) of section 302 ibid. The deceased was committing Zina with Mist. Nazira when he was fired at, he was liable to punishment of stoning to death for the Zina, both he and Mst. Nazira being Mohsins (married) so, the punishment as Taazir was to be awarded. He tried to fortify his argument by referring to Federation of Pakistan v. Gul Hassan Khan P L D 1989 SC

633. The observations made in the judgment do go to support his contention in view of the conclusion on the factual aspects of the case."

8. Now section 300, P.P.C. (as amended by the Criminal Law Amendment Ordinance, 1991) defines Qatl-i-Amd as under:-- "Qatal-i-Amd.

Whoever, with 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-i-Amd."

9. Section 301, P.P.C. relates to the case of causing death of a person other than whose death was intended and reads a., follows:-- . "

301. Where a person, by doing anything which he intends or knows to be likely to cause death, causes death (it' any person whose death he neither intends nor knows himself' tai 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 Qtl-i-Anid 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 sections 304 is not available; or , (c) punished with imprisonment of either description for a term which may extend to 25 years where according to 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 a voluntary and true confession of the commission of the offence, or (b) by evidence as provided in Article 17 of Qanun-e-Shahadat.

11. There is no dispute that as per evidence on the record the instant case . is one of Qatl-i-Amd, in that, death was intended and was actually caused. The only plea raised in defence: by Abdul Waheed respondent who caused the death is that as he saw the deceased and Mst. Nazira in a compromising position he, on account of this sudden and grave provocation, fired on the deceased Shaukat Nizami which resulted in his death. The learned trial Court accepted the explanation given by Abdul Waheed for his act and went on to observe that as under Islamic Law grave and sudden provocation on seeing Zina being committed, for which the penalty is death, is a mitigating circumstance, punishment less than Qisas can be awarded for Qatl-i-Amd committed in such circumstances. In this connection reliance was placed by him on the judgment of the Supreme Court in Pakistan v. Gul Hassan P L D 1989 SC 633.

12. 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 Hassan'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:-- (Provocation)

13. The learned counsel for respondent No.1 (Abdul Waheed), Mr. R.A. Awan, did not dispute that the above-noted portion of the judgment has not been referred to by the learned Special Court.

14. The observations made in Gul Hassan's case clearly show that grave and sudden provocation is not an exception per se and the punishment of Qisas 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.

15. 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.

16. 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 the Court shall presume the absence of such circumstances."

17. In Mohib Ali v. The State 1985 S C M R 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 inn(,cent people."

18. As a result of the foregoing discussion, we find that the plea of grave and sudden provocation raised by Abdul Waheed could not have been given effect to in this case so as to make his case fall within the ambit of clause (c) of section 302, P.P.C. and to take it out of the mischief 'of clause (a) of section 302, P.P.C., because the requisite evidence to establish this plea under the Islamic Injunctions was not produced by Abdul Waheed respondent.

19. The appeal, accordingly, must succeed and is allowed. The impugned judgment of the learned Special Court dated 12-1-1992 is, therefore, set aside C and the respondent Abdul Waheed found guilty under clause (a) of section 302, P.P.C. of Qatl-i-Amd punishable with death as Qisas. Order accordingly. Note.

20. This appeal was presented in this Court on 1-2-1992 and came up for hearing on 8-2-1992 when it was partly disposed of. It came 'up for ultimate hearing on 7-3-1992 and judgment reserved on the conclusion of the arguments. It is being announced today, some days after the expiry of the period of 30 days of its presentation. This circumstance, however, has no effect on the validity of this judgment as held in Muhammad Nadeem v. The State 1992 P Cr. L J 1520. N.H.Q./40/SAC Order accordingly.