2000 PLP 2023 (MLD)

12. While making a statement under section 342 of the Cr.P.C. and in answer to question No. 17 the appellant had made the following statement: "The deceased and her step-mother are notorious of the vicinity who are running business of prostitution in the house. The deceased was also persuaded by her step-mother to do the immoral activities and for that matter, the deceased indulged in such activities. Time and again I reprimanded the deceased and her step-mother to refrain from immoral activities. Due to this, the deceased had very strained relations with her real mother and for that matter she had only intimacy with her step-mother. The occurrence took place late at night in the house of the complainant and after having the information that some strange male persons were busy in immoral activities at the complainant's house with Mst. Nazir Shaukat. I went there and after witnessing my wife (deceased) in a compromising position, took a small knife from the adjacent kitchen and caused injuries under the heat of passions and ego. I also attempted , to follow the male person but in vain. I myself surrendered before the police. The complainant is inimical towards me and interested one. The rest of the prosecution witnesses are at the friendly terms with the complainant party. Therefore, they deposed against me falsely."

13. While cross-examining Shaukat Hayat (P.W.5), the suggestions which were made to the complainant are reproduced below in extensor "It is incorrect that the occurrence took place late at night in my house and having information that some stranger male persons were busy in immoral activities at my home with Mst. Nazia Shaukat (deceased), the accused came there and after witnessing his wife in a compromising position took a small knife from the adjacent kitchen and caused injuries under the heat of passion and ego".

14. However, while cross-examining Ashfaq Ahmad (P.W.6), the suggestions made to this witness are being reproduced below in extenso: "It is incorrect to suggest that the wife of Shaukat is a notorious who runs business of prostitution in her house and for that matter myself, Mukhtar and others used to pay visits for immoral activities. It is incorrect that the deceased was also supplied by her for the said purpose and on account of this reason, she used to immoral activities of inlaws as well as wife, the accused had strained relations with them and he oftenly reprimanded them to desist from immoral acts. It is incorrect that the deceased was asked many a times by the accused to refrain from immoral business and to come back to his house through respectables but in vain. It is also, incorrect that Shaukat P.W. was in the knowledge of all the nefarious activities of womenfolk of his house; rather he was partner to it. It is incorrect that on account of those immoral activities and having unlawful relations with the family of Shaukat P.W.1 have deposed falsely and maliciously against the accused. It is incorrect that, I have deposed to bring the case .in line of the prosecution. "

15. During the course of the arguments before this Court the learned counsel appearing on behalf of Saeed Iqbal accused reiterated the pleas which were brought on the file through the suggestions aforementioned. According to him there was no premeditation involved and the appellant was entitled to a lesser punishment because there was mitigating circumstance and the punishment given by the learned trial Court under section 308(2) of the P.P.C. was harsh.

16. When Dur Muhammad (P.W.10), the Investigating Officer appeared in the witness-box he denied regarding the accused having ever taken such a defence plea before him. A portion of his statement reads as follows:-- "The accused did not narrate to me that he received information that during the late hours of the night some strangers were present in the company of his wife and on this information, he reached there. It is further incorrect to suggest that the accused had narrated that in result of the information, he reached the spot and saw the deceased in compromising position with one stranger and out of ego (Ghairat) in order to save his honour, he took a small kitchen knife and dealt a blow on the person of the deceased. "

17. The accused admits his involvement in the occurrence. But he is asking for reduction in the sentence on the ground that because of grave and sudden provocation, which is an infirmity, he was constrained to cause the said injuries to his deceased wife.

18. His story was not believed by the learned Sessions Judge and tightly so because, the appellant was not successful or persuasive in advancing the plea steadfastly with respect to the grave and sudden provocation which may have been caused. While going through the file one tends to agree with the A learned Sessions Judge, Rawalpindi in this connection. It may be mentioned that the appellant did not come in the witness-box to make a deposition under section 540(2) of the Cr.P.C. in support of his version. He did not produce any evidence in support of his version and even about the notoriety of the family of his inlaws. So much so that he even failed to provide a description of the person whom he might have seen emerging from the room of his in-laws and with whom, as per his allegations, his wife, the deceased was, having intimacy. His version, therefore, is unbelievable and an afterthought.

19. The prayer in the second appeal is with respect to the enhancement of the sentence. It is said that the case of the appellant Saeed Iqbal did not fall under section 308(2), P.P.C., rather it fell under section 302(b), P. P. C.

20. The accused in this case was tried under section 302, P.P.C. and the learned trial Court while concluding the trial and writing the judgment and rightly felt that the case fell under section 308(2) of the P.P.C. because the appellant was the husband of the deceased and the case was not liable to Qisas and where his story of grave and sudden provocation had not been believed. The punishment which has already been given by the trial Court is the maximum limit prescribed by law. The appeal, therefore, asking for enhancement in punishment is not competent and is

21. Section 308(2) of the P.P.C. reads as follows: "308(2). Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Ta'zir." 308(2), P.P.C. only speaks of liability to pay the Diyat and of t under Ta'zir which may extend to 14 years. Whereas, the C appellant was also sentenced under section 544-A, Cr.P.C. and asked to pay additional compensation. This later part of the judgment is assailed.

22. Reference in this connection may be made to Aivat No. 178 of Al-Baqr, which-reads as follows: Ye who believe! The law of equality is prescribed to you in cases of murder. The free for the free. The slave for the slave. The woman for the woman. But if any remission. Is made by the brother Of the Slain, then grant Any reasonable demand, And compensate him. With handsome gratitude; This is a concession And a Mercy, From your Lord. After this whoever Exceeds the limits Shall be in grave penalty.

23. Section 308 of the Pakistan Penal Code already prescribes the liability to pay Diyat only in case of the non-enforcement of Qisas as well, as the punishment of imprisonment for a term which may extent to 14 years as Ta'zir. Diyat is the blood money and is a compensation which is to be paid p in the case of Qatl-i-Amd and nothing is said beyond this in this section. Under the circumstances any further compensation under section 544-A of the Cr.P.C. will not be attracted. Therefore, the judgment of the learned Sessions Judge to the extent it asks for compensation under section 544-A, Cr.P.C. is set aside. The appeal of Saeed Iqbal appellant to this extent only is accepted. M.B.A./S-82/L Order accordingly.