1998 PLP 862 (SCMR)

MAMOON KAZI, J.

We propose to dispose of Cr. Appeal No.345 of 1993 and Cr. Appeal No.346 of 1993 by this common judgment as both arise out of the same judgment of the Lahore High Court dated 6-10-1992.

2. Abdul Jabbar son of Muhammad Shafique resident of R.A. Bazar, Lahore, was convicted under section 302, P.P.C. on three counts by the Special Court for Speedy Trials and was sentenced to death and to pay a fine of Rs.5,000 on each count. He was also sentenced to R.I. for 5 years and to pay a fine of Rs.2,000 under section 449, P.P.C. and imprisonment for life and a fine of Rs.5,000 under section 307, P.P-.C. On appeal before the High court although, his conviction on all the charges was maintained but his death sentence was altered to imprisonment for life. All the sentences were further ordered to run concurrently.

3. Mst. Bismillah has appealed against the said judgment as. according to her, death sentence awarded to the accused by the trial Court was the only appropriate sentence, whereas Muhammad Jabbar has appealed against the said conviction and the sentence.

4. According to the case of the prosecution, Mst. Nasreen (deceased) daughter of Mst. Bismillah (complainant), was married to Abdul Jabbar (accused) while her sister, Mst. Shaheen (P.W.15), was married to Ghulam Haider, the real brother of the accused

5. Both Mst. Nasreen and Mst. Shaheen were having strained relations with their husbands, as a result of which. about a month prior to the occurrence they were turned out by their husbands. Their children were however kept by their husbands.

6. On 25-8-1988 at about 1-30 p.m. when Habibullah, husband of Mst Bismillah, Mst. Nasreen, Mst. Aamna, P U' Mst. Parveen, P.W. Mst. Shaheen and Mst. Najma were present in their house, accused Abdul Jabbar went there and declared that he would teach them a lesson. He then took out a Chhuri and gave blows to Habibullah inflicting several injuries on him, who then fell down. At this time, Mst. Nasreen stepped forward to save her father when she was also given Churri blows by the accused on her chest and abdomen and on receiving injuries she also fell down on the ground. Mst. Aamna also tried to intervene but the accused felled her to the ground by pulling her hair and then he cut her throat with the Chhuri. On this P.W. Mst. Parveen and P.W. Mst. Shaheen and Mst. Najma raised alarm at which the accused went towards Mst. Parveen who ran out of the house to save her life. Nevertheless, the accused caught hold of her outside the house and inflicted Chhuri blows on her abdomen and arms after throwing her on the ground. This attracted residents of the Mohallah and on seeing them, the accused took to his heels.

7. Mst. Aamna and Mst. Nasreen succumbed to the injuries on the spot while deceased Habibullah and P.W. Mst. Parveen were immediately taken to the hospital by the residents of the area. However, subsequently Habibullah died in the hospital.

8. The accused at his trial admitted to have caused the said murders but. according to him, at the time of the incident when he had gone to the house of deceased Habibullah, he had seen his wife, deceased Mst. Nasreen, in a compromising position with one Moulvi Akrain and he thus lost his senses and after picking a knife from kitchen he inflicted injuries on the deceased under grave and sudden provocation. The prosecution witnesses, according to him, had made false statements on account of their relationship with the deceased.

9. The trial Court while believing the evidence of the prosecution witnesses, convicted and sentenced the accused, as pointed out earlier. On appear filed by the accused, although, his conviction by the trial Court was upheld but his sentence of death was modified to that of life imprisonment. The learned Judges of the High Court from the evidence of the prosecution witnesses could not find any explanation for the strange behaviour of the accused as injuries were inflicted not only to Mst. Nasreen who was wife of the accused, .but even deceased Habibullah, Mst. Aamna and Mst. Parveen were attacked against whom the accused did not bear any grudge. The learned Judges also could not find any further explanation to the fact that the other ladies who were the eye witnesses in the case were spared by the accused. The learned Judges also appear to have been further intrigued by the fact that a kitchen knife had been used by the accused which led them to an inference that the same must have been picked up from the house of the deceased. If the accused had come to the house of his m-laws to take his wife with him there was no occasion for him to have come armed with a Chhuri to commit the said murders. Consequently, a lenient view was taken by the learned Judges resulting in modification of the sentence of death, as pointed out earlier.

10. Leave was granted to examine whether the death sentence awarded by the Trial Court was the only appropriate sentence in view of the enormity of the crime committed by the accused.

11. Mr. Hasnat Ahmad Khan, learned counsel for the accused has argued that when in the view of the High Court, the real motive for the alleged crime could not be conclusively established by the prosecution, the version put forth by the accused should have been taken into consideration by the High Court which indicated that the accused had acted under grave and sudden provocation. Even if the accused has failed to succeed in proving the existence of sudden and grave provocation yet the circumstances indicate that a serious provocation must have been received by him from the deceased which caused the accused to attack them. Therefore, according to the learned counsel for the accused, in any case, when benefit had already been allowed to the accused by the High Court by modification of his sentence for which cogent reasons have been assigned, further interference by this Court was not warranted. Support in this regard has been sought by the learned counsel from various judgments of this Court.

12. In Niaz Ahmad v. Naim Akhtar (1977 SCMR 159) in view of a long delay of 5 years occurring on account of intervening circumstances of the ;case it was held that in such a case, particularly when the accused was given expectation of life resulting from the decision of the High Court, death sentence should not be inflicted on the accused. In Muhammad Mukhdoom v. The State (1984 SCMR 837), notwithstanding the allegations of violent attack by the accused's side on the complainant party, when motive deposed by the witnesses at the trial on proper scrutiny could not be found strong enough to support the prosecution for such an attack, it was held that under such circumstances benefit could be extended to the accused in so far as the sentence was concerned. In this case although, the plea of grave and sudden provocation taken by the accused could not get support from the evidence, his sentence was nevertheless modified and a sentence of transportation for life was awarded in place of sentence of death. In yet another case reported as Muhammad Yaseen v. Muhammad Shafique (1997 SCMR 1527) although leave to appeal was refused to the accused under the circumstances of the case but the sentence of imprisonment for life awarded to the accused by the High Court after conversion of his sentence of death was upheld by this Court for the reason that motive for the commission of the crime was found to be shrouded in mystry. Similarly, in Akram Beg v. The State (1998 SCMR 317), Muhammad Ishaque Khan v. The State (PLD 1994 SC 259) and Muhammad Ashraf v. The State (1981 SCMR 856), awarding of capital punishment was not found to be warranted under the circumstances of each case. In Ghulam Muhammad v. The State (1972 SCMR 393), this Court declined to interfere with the judgment of the High Court. The question before this Court was whether sentence of 4 years' rigorous imprisonment awarded b~ the trial Court was too excessive in relation to the nature of injuries caused to the complainant. It was held by this Court that question of awarding sentence was a matter for the trial Court and the Courts acting in appeal or revision. The Supreme Court would not ordinarily interfere by imposing its own assessment of the appropriate punishment, unless it is shown that the sentence is against law or otherwise not in accordance with the sound judicial principles.

13. No doubt, the various judgments relied upon by the learned counsel for the appellant indicate that ordinarily this Court would be too reluctant to Interfere with the sentnece awarded by the High Court, unless the sentence is against law or it is not in consonance with the sound judicial principles, but tile circumstances of the present case are clearly distinguishable. The findings of the learned Judges that the real motive for commission of the alleged offence had been withheld by the prosecution or that there was no occasion for the accused to have come armed with a Chhuri if his intention was to take his wife with him, (to not appear to be warranted by the circumstances of the case. The evidence of P.Ws. Mst. Parveen and Mst. Shaheen indicates that when the accused entered the house of the complainant and the deceased at the time of the occurrence, he had immediately declared that he wanted to teach thetas a lessor for not sending his wife, deceased Nasreen, to his house. The evidence of the witnesses clearly indicates that the accused had strained relations with his in-laws as Mst. Nasreen had left the accused's house and was living with her parents for about a month prior to the occurrence. The accused, therefore, had sufficient motive to commit the said crime. The attack on deceased Habibullah and Mst. Nasreen by the accused is, therefore, clearly accounted for by the circumstances. Mst. Aamna and Mst. Parveen appear to have been attacked for the simple reason that they also tried to intervene and come to the rescue of their father and sister, deceased Habibullah and Mst. Nasreen. The learned Judges are, therefore, clearly in error while coming to the conclusion that the real motive behind the said crime had been concealed by the prosecution.

14. So far as the version given by the accused in his defence viz., that he had acted under sudden and grave provocation is concerned, the same on the face of it appears to, be absurd and not worthy of any credence. First of all, the story given by the accused that he had seen his wife, deceased Mst. Nasreen, in a compromising position with Moulvi Akram appears to be absurd as it is difficult to believe that even a woman of doubtful character would go to this extent in presence of liar parents and other family members in the house. Secondly, in such a case, it cannot be easily explained how Mouvli Akram got away from the scene, so easily. Thirdly, there appears to be ho evidence on record in support of the said defence version. Therefore, such plea appears to have been rightly rejected by the learned Trial Court.

15. Consequently, there appears to be no justification for modification of the sentence by converting it from sentence of death to that of imprisonment for life. In case of conviction under section 302, P.P.C., if there are no mitigating circumstance, justifying awarding of sentence of imprisonment for life, then ordinarily, sentence of death is to be awarded. In Muhammad Sharif v. Muhammad Javed alias Jeda Tedi (P1,D 1976 SC 452), this Court, while noticing hesitance on the part of the Courts to award death sentence even in cases where a sentence of imprisonment for life is not warranted, disapproved such tendency to find a laboured pretext to alter a sentence of death to imprisonment for life.

16. In the result, the appeal filed by Mst. Bismillah is allowed to the extent that sentence of imprisonment for life awarded to accused Muhammad Jabbar is converted to death sentence. The appeal filed by Muhammad Jabbar is dismissed. N.H.Q./B-12/S Sentence enhanced.