2000 PLP 406 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

This judgment will dispose of Criminal Appeals Nos.299, 300 and 301 of 1997. The first mentioned is by two convicts, namely, Abdul Zahir and Gul Baran against their convictions under sections 302(c) and 324, P.P.C. and award of sentences of rigorous imprisonment respectively for 14 years, fine of Rs.1,00,000 each, rigorous imprisonment for 7 years and a fine of Rs.50,000 each recorded by the learned Additional Sessions Judge, Pishin, vide judgment, dated 3-6-1996. The latter two are by Haji Bismillah Khan, complainant against the dismissal of his two revision petitions for setting aside acquittal of Haji Allah Dad respondent recorded and ehancement of sentences awarded to the two convict-appellants by the trial Court and upheld by a learned Division Bench of High Court of Balochistan.

2. The incident giving rise to these appeals took place on 7-3-1994 at 8-15 a.m. Bismillah appellant in Criminal Appeals Nos.300 and 301 of 1997 (hereinafter called as the complainant) reported the occurrence to the police at Civil Hospital, Chaman, in injured condition alleging that earlier, in the morning of the same day, he alongwith his brothers Dawood Shah, Ahmed Shah, Haji Muhammad Raza and Obaidullah was going in his 'Land Cruiser" bearing registration No.173-125 Karachi, towards College Colony, Chaman, to see off Hajis. When they reached near the Telephone Exchange, they were stopped by Abdul Ali, Muhammad Khan, Musa Waris, Abdul Hakim, Abdul Zahir alongwith 6/7 others and attempted to abduct them at gun point. This attempt was resisted by the complainant party and in consequence Abdul Ali and the two convicts opened fire at the former with 'Kalakof' and Pistol, killing Dawood Shah and Muhammad Raza while causing fire-arm injuries to the complainant, Obaidullah and Ahmad Shah P.Ws. They also forcibly took away the vehicle of the complainant party.

3. The motive for the offence, duly set in the F.I.R. and later attempted to be sustained by evidence in the witness-box, was that a year before the incident, Shah Muhammad, a brother of the complainant and Dawood Shah deceased on the one hand and nephew of Abdul Ali on the other, had a quarrel inter se wherein the latter had been seriously injured.

4. On registration of the case, Syed Ikram Hussain Zaidi, S.I. (P.W.13) reached the spot, secure two empties of 'Kalakof', two empties of Pistol of .30 bore and one empty of Pistol of .32 bore vide memo. Exh.P/8.C. He also took into possession vide memo. Exh.P/8.D, a live cartridge of .32 bore from the spot. On the arrest of Gul Baran, appellant, the same S.I. took into possession his blood-stained turban vide recovery memo. Exh.P/8.F. Likewise, two magazines of 'Kalakof', 36 live cartridges and a photo copy of National Identity Card were also recovered. He then recorded the statements of prosecution witnesses. In the identification parade held on 19-5-1995 at Police Station, Chaman, appellant Gul Baran was identified by the complainant. On completion of investigation and putting up challan, the convicts and others were tried by the learned Additional Sessions Judge, Pishin.

5. All the accused at the trial denied all the accusations that were levelled against them including the recoveries alleged to have been effected either from the venue of the crime or at their instance. Both the convicts appellants in their statements under section 342, Cr.P.C. stated that they had been falsely involved in the case. They also adduced the evidence of Jumma Gul (D.W.1), Amanullah (D.W.2), and Muhammad Afzal (D.W.3), in defence.

6. The learned trial Judge, relying upon the ocular testimony of Haji Bismillah, (P.W.1), Obaidullah (P.W.2), and Haji Ahmad Shah (P.W.3), the recovery of the empty shells and the medical testimony, convicted Abdul Zahir and Gul Baran convicts-appellants under sections 302(c) and 324, P.P.C. and awarded the sentences in the above terms with the following observations:

"In view of the above, the case of the prosecution is established against accused Gul Baran and Abdul Zahir under sections 302(c) and 324, P.P.C. (as amended). Since their role is not specific, therefore, they cannot be punished severely. As such accused Gul` Baran and Abdul Zahir are convicted and sentenced under section 302(c), P.P.C. for 14 year R.I. each and fine of Rs. One lac each. In case of default they will further undergo one years S.I. each. They are convicted and sentenced under section 324, P.P.C. (as amended) for seven year R.I. and fine of Rs.50,000 each. In case of default they will further undergo six months S.I. each. They are in custody since 7-5-1994 and 24-11-1994 respectively and is given benefit of section 382-B, Cr.P.C. Both the above sentences will run concurrently. Accused Allah Dad has been acquitted, if not required in any other case be released forthwith. "

7. The learned Judges of the Division Bench of the High Court, upheld the appraisal of the ocular account of occurrence, the recoveries and the medical testimony and affirmed the findings of the trial Judge that the convicts-appellants were guilty under sections 302(c) and 324, P.P.C., and thus, maintained convictions recorded against and sentences awarded by the learned trial Judge and dismissed their appeals.

8. In the abovementioned three Criminal Petitions, leave to appeal was granted on 19-11-1997 to re-appraise the evidence for considering the questions-- (1) Whether the acquittal of Haji Allah Dad (respondent No.1 in Criminal Appeal No.301 of 1997) and conviction of the two convict-appellants (in Criminal Appeal No.299 of 1997). is justified? (2) V If the conviction of the two convicts-appellants is justified on record, whether the offence made out falls under section 302(b), P.P.C. and not under section 302(c), P.P.C.? (3) If proposition at Serial No.2 is answered in the affirmative, whether the imprisonment for life as 'Tazir' is to be awarded to the convicts appellants?

9. After hearing the learned counsel for the parties, the proposition at serial No. l was not seriously pursued and was accordingly abandoned. Only the law points remained to be examined.

10. Mr. Mehta K.N. Kohli, learned Advocate-on-Record, in support of Criminal Appeal No.300 of 1997 brought by Haji Bismillah Khan complainant against the two convicts-appellants vehemently contended that in the circumstances of the case, the convicts-respondents were liable under section 302(b) and not under section 302(c) applied by the learned Additional Sessions Judge, Pishin and maintained by the learned Division Bench of the High Court of Balochistan. In this context, the learned counsel further urged that there were no mitigating circumstances in favour of the convicts-respondents for awarding lesser sentence even under section 302(c), P. P. C.

11. Sardar Muhammad Aslam, learned Advocate Supreme Court, representing the convicts-respondents, in the alternative, has supported their conviction under section 302(c) and award of imprisonment for 14 years to them. He has placed reliance on the case-law reported in (i) The State v. Muhammad Hanif and 5 others (1992 SCMR 2047), (ii) Abdul Haque v. The State and another (PLD 1996 SC 1), (iii) Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274), (iv) Abdur Rauf v. The State and 2 others (1998 SCMR 1771) and Muhammad Mumtaz Khan v. The State (1999 SCMR 837).

12. There are distinguishable features in all the cases cited above. In the first case of Muhammad Hanif (supra), the five accused in that case were arrested on 12-11-1991 on the charge of murder of Muhammad Ashraf by giving repeated "Chhurri" blows to him who died of the injuries the same night. The accused standing their trial, other than Hanif, denied their participation in the occurrence and took up the plea that they were falsely implicated. Hanif respondent No. 1, however, took up plea that he had caused the death of Muhammad Ashraf under the "state of grave and sudden provocation" when he disgraced and dragged his wife on the date of the incident. The trial Court acquitted four co-accused of Muhammad Hanif and convicted him under section 302(c), P.P.C. and awarded him ten years R.L' besides the payment of 'Arsh' to the heirs of the deceased. It appears that in the case of Muhammad Hanif, the prosecution evidence had been rejected in toto and the conviction and the sentence of the convict rested on the statement of the accused in totality. In consequence, the conviction of Muhammad Hanif respondent under section 302(c) was maintained on the ground that one or more exceptions provided for in section 300, P.P.C. could be pressed into service by the accused, notwithstanding the omission of those exceptions in the P.P.C. inasmuch as amplitude of right of self-defence in Islam which right falls within the said exceptions, is far wider than available under the Pakistan Penal Code (XLV of 1860) it could be considered by the Court for the purpose of conviction and sentence under section 302(c). In effect the exception equal right of self-defence was read into the P.P.C. notwithstanding its omission therefrom. It was further propounded that under Islamic Law claim of right of self-defence stood covered by the provisions of section 302(c).

13. The case of Ali Muhammad (supra) on the other hand is against a case of "grave and sudden provocation" which is not pleaded in the instant case nor is there any semblance of grave and sudden provocation available to the convicts-respondents. It was only a year prior to the occurrence that the younger brother of the convict-respondent was injured and in order to avenage that occurrence, the convicts respondents formed an unlawful assembly to kill the two deceased and that assembly in prosecution of the common object caused gun shot injuries to the three P.Ws.

14. The law laid down in the case of Abdur Rauf is that section 308, P.P.C. can only be invoked where a person is found to be guilty of Qatl-i Amd, but he is not liable to Qisas either under section 306 or the Qisas is not enforceable under clause (c) of section 307 and, therefore, even if section 308, P.P.C. is attracted, it cannot be applied until first the offender is found guilty of Qatl-i-Amd under section

302. In that case, the accused was not charged under section 302, P.P.C. It was, therefore, held that when such charge under section 302(a), P.P.C. had been established, the provisions of section 308, P.P.C. can be applied to the case. The case was, therefore, remanded to the trial Court to first charge the accused therein under section 302(a), P. P. C: and then proceed to apply section 308, P. P. C. and not otherwise.

15. The case of Abdul Haque is also distinguishable from the facts of the case. The ratio of the case of Abdul Haque is that if the offence of murder committed is punishable under Ta'zir and falls either under section 302(b) or 302(c), the Court can taken into consideration the mitigating, circumstances like grave and sudden provocation for award of lesser penalty.

16. In the last mentioned case of Muhammad Mumtaz Khan (supra), the son of the deceased, half an our before the incident, had injured the brother of the accused. It was, therefore, held that the earlier incident might have provoked the accused who was of tender age about 17/18 years at the time of the commission of offence. It was found that the son of the deceased half an hour before the incident allegedly on the exhortation of the deceased, had injured the brother of the accused which might have provoked the accused, and provocation, "even though neither grave nor sudden had brought his case within the ambit of section 302(c), P.P.C." and, therefore, the death sentence awarded to the accused was set aside and he was sentenced to undergo 14 years' imprisonment under section 302(c).

17. Clause (c) of section 302, P.P.C. ante applies in case of Qatl-i-Amd where, according to Injunction of Islam, the punishment of Qisas is not applicable. A bare reading of the clause would reveal that section 306, P.P.C. is applicable to cases of Qatl-i-Amd which are not liable to Qisas whereas Qatl-i-Amd not liable to Qisas is indeed punishable under section

308. There is distinction, albeit very slight, between Qatl-i-Amd to which punishment of Qisas is not applicable and that of the Qatl-i-Amd which is not liable to Qisas. A bare reading of section 308, 1?.P.C. would show that where offender is guilty of Qatl-i-Amd not liable to Qisas under section 306 or the Qisas is not enforceable under clause(c) of section 307, P.P.C., shall be liable to Diyat. We, therefore, endorse the view held by this Court in the case of Ali Muhammad (supra) (PLD 1996 SC 274) that class of cases to which clause (c) of section 302, P.P.C. applies is different from class of cases enumerated in section 306 and punishable under section 308, P.P.C. Prima facie the cases covered by clause (c) of section 302, P.P.C. are of Qatl-i-Amd: (1) where according to the Injunctions of Islam the punishment of Qisas is not applicable but not falling within the ambit of section 306, P.P.C. punishable under section 308, P.P.C.; (2) Qatl-i-Amd to which clause (b) of section 302, P.P.C. is attracted, namely, Qatl-i-Amd wherein proof in either of forms specified in section 304, P.P.C. is not available is punishable with death or imprisonment for life, by way of Tazir. The use of the word 'or' at the end of clause (b) of section 302, P.P.C. reinforces this interpretation. In other words, it is a class of Qatl-i-Amd which is not punishable with death as Qisas or death or imprisonment for life by way of Tazir but is liable in the matter of punishment to imprisonment of either description for a term which may extend to twenty five years. Some of those cases have been noticed in the precedent of Muhammad Hanif (1992 SCMR 2047), Ali Muhammad (PLD 1996 SC 274), and that of Muhammad Mumtaz Khan's case (supra) to a larger extend of minority and lesser extend of 'provocation'.

18. In the instant case, as stated earlier, the motive was that about a year prior to the occurrence, Shah Muhammad, a brother of Haji Bismillah complainant and Daud Shah deceased on the one hand and nephew of Abdul Ali absconder on the other, had a quarrel inter se wherein the latter been seriously injured. Obviously it was neither a case of 'sudden' nor of a 'grave' provocation, in contradistinction to the case of Muhammad Mumtaz Khan (supra) (1999 SCMR 1771) wherein the son of the deceased therein half an hour before the incident had injured the brother of the convict. Significant time had not yet elapsed between the earlier incident of causing injury to the brother of the convict by the son of the deceased therein. Obviously it was rightly held to be case of provocation fully covered by section 302(c), P.P.C.

19. Before parting, I may add that by and large all the cases of grave and sudden provocation would not ipso facto fall within the purview of section 302(c) particularly those of Qatl-i-Amd of wife, sister or other very close female relatives at the hands of males on the allegation of "Siahkari'. In this context reference may be made to the case of Gul Hasan (supra) wherein Moulana Muhammad Taqi Usmani, learned Member of Shariat Appellate Bench of this Court had very aptly observed as under:--

20. In a recent illuminating Article authored by Professor Rafi Ullah Shehab, who is a religious scholar in his own right published in Daily "The Nation" on August, 20, 1999 had reiterated the position in Islamic Law on the 'grave and sudden provocation' which is usually pleaded by the accused professing customary 'Ghairat' and get away with murders. Relevant excerpts therefrom are reproduced hereunder:-- ...Before the advent of Islam, women were treated as a commodity. Islam granted them equal status as men. Verse 35 of Surah Al -Ahzab and verse 228 of Surah Al-Baqrah make clear that women have rights similar to men. Special care was taken to save women from the unjust treatment of males. Divorce by pronouncing the word 'divorce' thrice was a common practice in the Jahilliah period. In some cases, people did not hesitate to kill women in the name of honour. Islam allowed separation of spouses, but in exceptional cases, restricting men's right of divorce. The husband cannot divorce his wife even on the charge of immorality. He has to prove the charge in an Islamic Court. The practice of the Jhilliah period is followed in our country even though Islam prohibits it. A companion. Owamer Ijlani, suspected his wife, and presented this case before the Holy Prophet (p.b.u.h.). The Holy Prophet (p.b.u.h.) instead of allowing him to punish his wife or divorce her, asked him to produce four witnesses to support his accusation otherwise, he might be subjected to the Hadd punishment prescribed in the Holy Qur'an. He said that he had no witness, but swore by Allah that he was truthful, At this the Holy Prophet (p.b.h.u.) became silent. In the meantime the following injunction was revealed in the Holy Qur'an:-- 'And those who accuse their wives and have no witnesses except themselves, let one of them, testify four times, bearing Allah to witness that he is of those who speak the truth. And the fifth time that the curse of Allah be on him if he is of those who lie. And it shall avert the chastisement from her if she testifies four times bearing Allah to witness that he is of those who lie. And the fifth time, that the wrath of Allah be on her if he is of those who speak the truth' (Surah Alnoor 6-9). The Holy Prophet (p.b.u.h.), soon after this revelation, called Hazar Owamer and asked him to prove his accusation by the procedure prescribed in the Holy Qur'an. He at one took the oath. His wife was also called to establish her innocence. She too took the prescribed oaths and claimed that her husband had falsely accused her. However, while taking the oaths, she flattered which convinced the Holy Prophet (p.b.u.h.) that she was at fault. But as she had established her innocence by taking the oaths, the Holy Prophet (p.b.u.h.) did not inflict Hadd punishment on her. He -only asked her husband to divorce her. This Qur'anic procedure shows that if the husband had an unrestricted right of divorce, then the said companion would have divorced his wife forthwith. But he knew that Islam had placed restrictions on his right of divorce. Thus, while killing accused women is not Islamic by any standard, the believers are not even allowed to divorce them without establishing their accusation. We profess our love for Islam and demand its enforcement in the country, but ignore clear Qur'anic Injunction about the rights of woman. Dozens of innocent women are slaughtered in the name of honour in our society. Almighty Allah eliminated the evil of the Jahilliah period, and thus, no case of 'honour' killing was reported in the early period of Islam.

21. In this view of the matter, the learned trial Judge had seriously erred in convicting the convicts-respondents under section 302(c), P.P.C. and awarding sentence of rigorous imprisonment for 14 years. Similarly the learned Judges of the Division Bench of High Court of Balochsitan were not justified to have maintained the conviction recorded against and sentences awarded to the convicts-respondents. In the circumstances, we uphold the order of acquittal of Haji Allah Dad accused-respondent No. l and dismiss Criminal Appeal No.301 of 1997. We are, however, inclined to accept Criminal Appeal No.300 of 1997, set aside the conviction recorded against and sentences awarded to the accused-respondents and convict them under section 302(b), Cr.P.C. and sentence them to imprisonment for life. We would, however, maintain the sentence of fine of Rs.100,000 each or in default of payment thereof the convicts-respondents shall further undergo rigorous imprisonment for one year each. Similarly we maintain their conviction under section 324, P.P.C. and their sentences to seven years rigorous imprisonment and a fine of Rs.50,000 each or in default to further undergo six months simple imprisonment.

22. All the three appeals are, thus, disposed of in the above terms. N. H. Q./A-211/S Order accordingly.