2015 PLP 912 (YLR)

ABDUL LATIF KHAN, J.

Through this single judgment we propose to decide Criminal Appeal No.2 of 2012 filed by convict/appellant Aurangzeb against his conviction passed by learned Additional Sessions Judge-IV, D.I. Khan dated 18-1-2012 vide which he has been convicted under section 302(c), P.P.C. and sentenced to imprisonment for three years S.I. However, benefit of section 382-B, Cr.P.C. was extended to him and Criminal Revision No.10-D of 2012 for enhancing the sentence of convict/appellant from three years S.I to normal penalty of death filed by the State through Advocate General of Khyber Pakhtunkhwa, Peshawar arising out of the same judgment/conviction order passed by the learned trial Court.

2. Short facts leading to the present appeal and revision are that on 14-5-2010, the present convict/appellant himself reported the matter to the local police to the effect that on the even date, at about 07.30 a.m. he left his house for cutting firewood but after an hour when he came back to his house, he saw Abdul Qayyum (now deceased) with his wife namely Naseem Bibi on a cot in objectionable condition in the room. He attacked with his axe Abdul Qayyum and killed him there. Hence FIR No.123 dated 14-5-2010 was registered under section 302, P.P.C. at Police Station, Gomal University, District D.I.Khan.

3. Challan against the convict/ appellant was submitted before the learned trial Court and the Court took cognizance of the case. Charge framed against him on 22-9-2010, who admitted that he killed the deceased on 14-5-2010 with his axe and the learned trial court instead of awarding sentence directly opted for trial of convict/ appellant.

4. The prosecution examined two CWs and three P.Ws. during trial against the convict/appellant and then closed its evidence. Where after statement of accused was recorded under section 342 Cr.P.C. Neither the convict/appellant recorded his statement on Oath nor produced any evidence in defence.

5. The learned trial Court after hearing arguments of both sides convicted the convict/appellant and sentenced him as per detail given in first Para of this judgment.

6. Learned counsel for the convict/ appellant contended that the impugned judgment/conviction order passed by the learned trial court was illegal and without jurisdiction as the convict/appellant could not be convicted on the basis of alleged retracted confession. He contended that the charge has been framed in disregard to the provision of criminal procedure. He contended that the prosecution has failed to prove the guilt of the convict/appellant strictly in accordance with law, statement of convict/appellant was referred by him where no detailed question was put to him by the learned trial court and as such both at the stage of framing of charge and statement of convict/ appellant, the learned trial court has committed illegality. He contended that the instant case is of no evidence and the convict/appellant was entitled for straight away acquittal from the charge.

7. On the other hand, learned State counsel assisted by learned counsel for the respondent No.2 contended that the convict/appellant has made voluntarily confessional statement supported by other circumstantial evidence. They vehemently questioned the maintainability of appeal on the touch stone of section 412, Cr.P.C. as the convict/appellant has pleaded guilty.

8. We have considered the arguments of both sides, in the light of evidence of prosecution, which led us to the following discussion and conclusion.

9. In the instant case, the convict/ appellant namely Aurangzeb, initially reported the matter to the local police himself on 14-5-2010, which was incorporated in murasila subsequently converted into FIR, to the effect that at 07.30 a.m. in the morning, he left his house with an axe for cutting firewood. He took tea in Hotel situated at Qureshi `Murr'. As he forgotten the rope for firewood, therefore, came back to his house at about 10.00 a.m. He entered the room and saw on a cot Abdul Qayyum, deceased with his wife Naseem Bibi in objectionable condition and he attacked Abdul Qayyum with axe and killed him while his wife escaped through window from there. No one was present at the house. After sometime his cousin namely Lal Khan, came. He was arrested on the same day. Blood stained parcel No.1, axe blood stained parcel No.2 were taken into possession through recovery memo Exh.P.W.3/1. The learned trial court framed the charge on 20-9-2010, wherein two specific questions were put to the convict/appellant which are reproduced as under:-- wherein the convict/appellant confessed the guilt in the name and pretext of the honour. P.W.1 namely Mehmud Jan, SMO District Headquarter Hospital, D.I.Khan was examined by the learned trial court who conducted the autopsy on the dead body of the deceased Abdul Qayyum. Lady Dr. Nagina Bibi, Medical College D.I.Khan was examined as P.W.2 who examined Mst. Naseem Bibi wife of Aurangzeb (convict/appellant). Abdullah S.I, appeared as P.W.3, who was the marginal witness of recovery memo Exh.P.W.3/1 vide which I.O. took into possession blood stained earth, one charpai and blood stained axe. He was also marginal witness of recovery memo Exh.P.W.3/2, through which I.O. took into possession clothes of accused and recovery memo Exh.P.W.3/3 vide which Rehmatullah ASI produced postmortem report, injury sheet, inquest report and clothes of the deceased. These were the only witnesses produced by the prosecution, however, father of the deceased namely Muhammad Fazil examined as CW-1 on 2-2-2011, who deposed that he does not know about the death of his son. Similarly, he further deposed that as he was killed in another village, therefore, he does not know who killed him. He deposed that the deceased was a gentleman and beside him his wife six minor children are his legal heirs. He deposed that he has no claim or accusation against the present accused namely Aurangzeb who is present in court. He did not charge him nor wanted to prosecute him for the murder of his son. He categorically stated that he has no objection if the accused is acquitted of the case. However, regarding diyat amount he undertakes that he would inform the court later on and the statement was continued. After that no further statement of this witness has been recorded and no reason given to this effect as why the continued statement was pot completed.

10. Kifayat Hussain, SHO Police Station, Paroa was examined as CW-2, who deposed that during investigation he came to know that the deceased Abdul Qayyum was a person of bad character and his own family members i.e., brothers, father, uncle, wife etc have taken no interest in the instant case. He has given the details of the case, arrested the accused, made recoveries, conducted investigation and recorded the statements of the witnesses including Naseem Bibi wife of the accused. He deposed that formerly both Abdul Qayyum deceased and Aurangzeb accused were neighbors in Najeeb Abad, Kotla Saidan and accused Aurangzeb was disturbed due to illicit relation between his wife and deceased Abdul Qayyum. Due to this reason he abandoned that place and started residing in Jhok Qureshi but Abdul Qayyum deceased chased him and used to come in the new place of abode in the absence of accused and due to the absence of accused this witness was not cross examined and his statement goes unrebutted.

11. During the examination of convict/appellant under section 342, Cr.P.C., the learned trial court put two questions to the convict/appellant but he kept mum without any response on his part, which is reproduced as below:-- "Q.1. It is in the evidence that you reported the incident to police and you were arrested on the spot along with dead body of deceased. What do you say about it? Ans. (The accused remained dumb. It appears that he is over powered emotionally and has nothing to say. Tears in his eyes are visible). Q.3. It is in the evidence that before this Court you had pleaded guilty and stated that you killed Abdul Qayyum for honor. What do you say about it? Ans. (The accused remained quite and did not spoke a word)."

12. The conduct of the convict appellant at the stage of the statement recorded under section 342, Cr.P.C. coupled with the charge framed against him by the learned trial court and his reply to the questions put to him by the learned trial court in juxtaposition reveals that the convict appellant was a victim of untoward circumstances. The learned trial Court has observed about him as a simple and innocent creature and does not seem cunning criminal and took the plea of convict/appellant as gospel truth.

13. In the circumstances as narrated by the convict/appellant referred to above in his statement under section 342, Cr.P.C. and at the time of framing of charge against him by the learned trial court, the vital point for consideration in peculiar circumstances of this case as to what kind of punishment and under which provision of law is provided in view of the situation into murder of the deceased took place at the hands of convict/appellant. Section 300, P.P.C. is reproduced as below for ready reference:-- "

300. Qatl-i-amd. Whoever, with the 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" Section 302, P.P.C. is reproduced as below:-- "

302. Punishment of Qatl-i-amd. Whoever commits Qatl-i-amd shall, subject to the provision of this Chapter be-- (a) punished with death as qisas; (b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or (c) Punished with imprisonment of either for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable; [Provided that nothing in this clause shall apply to offence to Qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.]"

14. New clause has been inserted through amendment of section 299 vide Criminal Law (Amendment) Act, 2004 which is reproduced as under:-- "

2. Amendment of section 299, Act XLV of 1860 .. "(ii) "offence committed in the name or on the pretext of honour" means an offence committed in the name or on the pretext of Karo Kari, siyah kari or similar other customs or practices;"

15. Clause C of section 302, P.P.C. was inserted vide Amendment Act referred above, which is reproduced as below:-- "Provided that nothing in this clause shall apply to the offences of Qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be."

16. In the instant appeal, the case of the convict/appellant was that he saw the deceased with his wife in compromising condition lost control of himself and in the name of honour due to Ghairat under the grave and sudden provocation killed him with axe. This plea if considered, still grave and sudden provocation would be missing and instead of setting machinery of law in motion the accused took the law in hands under the pretext and sudden provocation. The offence, committed on the pretext of Ghairat or family honour as different from that committed on the ground of grave and sudden provocation and rather to be looked into the circumstances of each and every case. A preplanned murder having knowledge of immoral act of deceased, would not be covered under section 302(c), P.P.C. and the same plea attracted in cases where ingredients of Qatl-i-amd 302 A and B are missing. The instant case falls within ambit of section 302(c), P.P.C. as the defence of honour of one's wife falls within the ambit of this provision for the reason that convict/appellant having no intention to take revenge or prepared himself for the commission of offence or received information about the act of the deceased, rather on sudden provocation arrived at his house and saw the deceased in compromising condition with his wife and committed murder of the deceased with axe taken by him for cutting firewood in the morning. The sudden provocation which is one of necessary element and deprived the convict/appellant of the power of control, happening an act without previous notice, cannot be saddled with immorality.

17. In wake of the above, incident took place at the spur of moment under grave and sudden provocation for the defence of honour of his wife resulting into murder of the deceased and in the above referred mitigating circumstances, this being case of no evidence against the convict/appellant. The convict/appellant is hereby acquitted of the charges levelled against him and he be set free forthwith if not required in any other case.

18. As far as Criminal Revision bearing No.10-D of 2012 is concerned it has become infrauctuous and accordingly dismissed. ARK/276/P Appeal accepted.