1998 P Cr (PLP)

KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑ One Niamat Ali had been tried by a learned Additional Sessions Judge at Sargodha for the murder of one Muhammad Asghar and having found the said Niamat Ali guilty of the said charge, through his judgment, dated 7‑4‑1992, the said learned Additional Sessions Judge convicted the said Niamat Ali under section 302(b), P.P.C. and punished him with death as Tazir.

2. Murder Reference No.240 of 1992 seeks confirmation of the said sentence of death while Niamat Ali approached this Court through Criminal Appeal No.415 of 1992 calling in question the above noticed conviction and punishment recorded against him. Both these matters are being disposed of together through this single judgment.

3. The occurrence in question had taken place near the house of Asghar deceased in Mohallah Islampura on 3‑10‑1991 at about 8‑30 p.m. about 2‑1/2 kilometres from Police Station Urban Area of District Sargodha and the said occurrence had been reported at the said police station by a brother of Asghar deceased, namely, Muhammad Ashraf at about 9‑15 p.m.

4. Narrating the occurrence and the background leading thereto Muhammad Ashraf complainant had mentioned that his brother Asghar deceased had two wives and that he had kept his second wife, namely, Mst. Irshad Bibi in a rented house in Islampura. He had added that Asghar deceased had not returned to his house in Sunbal Colony for two days and that in the evening of the day of occurrence he went to Islampura to find out about his said brother and was informed by Mst. Irshad Bibi that Muhammad Asghar deceased had still not returned home, Muhammad Ashraf complainant had further alleged that just as he was returning from the said house of the deceased he saw Niamat Ali appellant launching an attack on Muhammad Aslam deceased near the turning of the street with a dagger. The complainant had further claimed that while he saw the appellant injuring his deceased brother he raised a Lalkara at which the appellant ran away towards the Chowk. The complainant had further disclosed that on receiving these injuries Asghar deceased fell injured while Suleman (P.W.6), Abdul Majeed (given up) and Haji Shaukat Ali (given up) who had also witnessed the occurrence managed to overpower and apprehend Niamat Ali appellant at the spot. Ashraf complainant had further added that leaving Niamat appellant with Suleman P.W. he and Abdul Majeed (given up) rushed his brother Asghar to the hospital who however, died on the way.

5. The motive alleged by the complainant for the murder in question was that Mst. Irshad Bibi was earlier married to Niamat Ali appellant who however, divorced her whereafter Asghar deceased had married Mst. Irshad Bibi. Niamat Ali appellant had felt aggrieved of this act of Asghar deceased and it was on account of this grievance that the appellant had done the deceased to death.

6. After recording the F.I.R. Muhammad Azam, S.‑I./S.H.O. (P.W.9) reached the place of occurrence where Suleman (P.W.6) handed over Niamat appellant to him who was then formally arrested by the said Investigating Officer. Suleman P.W. had also produced blood‑stained dagger (P.5) before Muhammad Azam, S.I. which dagger was seized by the said Investigating Officer vide memo. Exh. P.F. Azam, S.I./Investigating Officer found blood in the paved street and he collected one of the blood‑stained bricks and took the same into possession vide memo. Exh. P.D.

7. When confronted with the prosecution case under section 342, Cr.P.C. the appellant denied having inflicted injuries on the person of Asghar deceased; denied his arrest at the spot and also denied recovery of a blood‑stained dagger. He had also denied having divorced Mst. Irshad Bibi or that Asghar deceased had married the said lady after seeking divorce from the appellant. The appellant's plea which, however, emerges from the suggestions made through cross‑examination of eye‑witnesses and the Investigating Officer was that the appellant had never divorced Mst. Irshad Bibi and that the deceased was keeping the said female or had married her without dissolution of her marriage with the appellant.

8. Canvassing acquittal for Niamat appellant, his learned counsel pleaded that the complainant and Suleman P. W. were planted eye‑witnesses of the occurrence in question; that the apprehension of the appellant at the spot and the alleged snatching of dagger P.5 from him by the alleged eye‑witnesses was a fabrication; that the said appellant had been falsely implicated only on account of suspicion and enmity and that in the circumstances, it could not be said that the prosecution had been successful in proving its case against Niamat appellant beyond all reasonable doubts. In the alternative, it had been argued that the appellant having acted under Ghairat, was not liable to any punishment under section 302(a) or 302(b), P.P.C.

9. Suleman (P.W.6) is not connected at all with the complainant party in any manner whatsoever nor could the defence demonstrate any ill‑will or ?animosity on his part, which could have prompted him to maliciously involve Niamat appellant in the occurrence in question. He was, thus, an independent witness of the murder in question. On a question put to him by the learned cross‑examiner, this witness had declared that his place of residence was only about 3/4 furlongs away from the place of occurrence. He was, thus, also a witness of the vicinity of the place of occurrence. The defence could not impeach his credibility and, therefore, nothing exists on record, which could persuade us not to place reliance on the testimony offered by Suleman (P.W.6).

10. It is true that Ashraf complainant who is the other eye‑witness of the occurrence in question is a brother of Asghar deceased but that by itself would not be sufficient to discard his testimony because it could not be demonstrated at the trial that he had any reason or motive which could have led him to falsely involve the appellant in the present occurrence. It shall also be noticed that the occurrence in question had taken place at about 8‑30 p.m and the F.I.R. had been recorded at the police station within about 45 minutes of the said occurrence. The F.I.R. thus, being so prompt, eliminates the possibility of Ashraf complainant not having witnessed the occurrence and having been falsely planted as an eye‑witness. His testimony also inspires confidence.

11. Not that any corroboration was required to believe the eye‑witness account of the occurrence yet the fact that Niamat appellant had been apprehended at the spot by the eye‑witnesses alongwith blood‑stained dagger P.5 and the fact that the said appellant and the said dagger P.5 had been produced before the Investigating Officer at the spot when he reached the place of occurrence is a rather important piece of evidence which rather strongly supports the prosecution case.

12. Consequently, we hold that no exception could be taken to the finding reached by the learned trial Judge that it was Niamat appellant who had done Asghar deceased to death.

13. The question which now requires determination is as to whether Injunctions of Islam permitted punishment of Qisas in the present case.

14. It was the prosecution's own case that Mgt. Irshad Bibi above?mentioned was married to Niamat Ali appellant. It had, however, been claimed that the said appellant had divorced the said Mst. Irshad Bibi whereafter, Asghar deceased had contracted marriage with her and was thereafter keeping her in a separate house in Islampura. 15 Niamat appellant had specifically denied having divorced Mst. Irshad Bibi. The prosecution did not bring on record any proof of the dissolution of the appellant's marriage with the said lady nor did the prosecution produce any evidence in the form of Nikahnama etc. establishing the marriage of Asghar deceased with the said Mst. Irshad Bibi. Therefore, it is not possible for us to hold that Niamat appellant had in fact divorced Mst. Irshad Bibi and further that Asghar deceased was keeping the said lady as his validly married wife. The complainant had claimed that the appellant had divorced his said wife about two years prior to the occurrence. As has been noticed above, no proof is available on record about this alleged divorce and in any case, it is not believable that having divorced his wife about two years ago, Niamat appellant would nourish such a strong grudge against the one marrying his divorced wife so as to take the life of the one marrying his former wife. Because of the conspicuous omission on the part of the prosecution to lead evidence with respect to the above-noticed important aspect of this matter, we feel compelled to hold that the appellant had not divorced Mst. Irshad Bibi and that Asghar deceased was keeping the said lady without any valid marriage.

16. In Muhammad Siddique's case PLD 1994 Lah. 129 which was although a bail matter, one of us (Khaki‑ur‑Rehman Ramday, J.) had the occasion to consider such a situation in the light of the Injunctions of Islam and had reached the conclusion that the Holy Quran and the Sunnah of the Holy Prophet (s.a.w.) clearly recognised Ghairat as one of the rights vesting in a person where any female connected with such a person, as in the present case, was subjected to an immoral act. The Honourable Supreme Court also had the occasion of considering a similar matter in more than one cases. In State v. Muhammad Hanif 1992 SCMR 2047, it was declared by the Supreme Court that Qatl‑e‑Amd could be held liable to Qisas only where the person killed was not liable to be killed or was Maasoom‑ud‑Dam and it was further held that a person disgracing the modesty of a female could not be said to be Maasoom‑ud‑Dam. Similar was the declaration of the Supreme Court in Ali Muhammad v Ali Muhammad PLD 1996 SC 274.

17. Consequently, we hold that Niamat appellant was not liable to be punished in the present case either under section 302(a) of the P.P.C. or under section 302(b) of the said Code. His case, thus, falls within the ambit of section 302 (c) of the P. P.C.

18. Resultantly, we set aside the impugned conviction and punishment recorded against Niamat Ali appellant under section 302(b) of the P.P.C. He is, however, convicted under section 3021c) of the said Code and is directed to suffer ten years' R.I. Having examined the matter, we do not feel inclined to pass any order under section 544‑A, Cr.P.C. because it was an immoral act on the part of the deceased himself which had led to his murder.

19. Niamat Ali appellant shall be allowed the benefit of the provisions of section 382‑B of the Code of Criminal Procedure.

20. The sentence of death awarded to Niamat All appellant having been set aside, there is no question of confirmation of the same. Murder Reference No.240 of 1992 is, therefore, Answered accordingly.

21. Criminal Appeal No.415 of 1992 is disposed of in the above terms. Sentence of death is not confirmed. H.B.T./N‑91/L ??????????????????????????????????????????????????????????????????????????????????? Order accordingly.