2006 PLP 1676 (MLD)

ALI NAWAZ CHOWHAN, J.

This judgment shall dispose of Criminal Appeal No.969 of 2000, as well as Murder Reference No.496 of 2000 and Criminal Revision No.548 of 2000.

2. Zulfiqar Ali, appellant was convicted under section 302(b) of the Pakistan Penal Code for causing qatal-e-amd of Rab Nawaz deceased and sentenced to death. He was also directed to pay a compensation of Rs.50,000 to the legal heirs of the deceased. In default thereof he is to further undergo six months' R.I.

3. The matter arises on account of F.I.R. No. 187, dated 6-4-1999 registered under sections 302, P.P.C., at Police Station Satellite Town, Sargodha.

4. This is a case of plural versions. According to the complainant Khizar Hayat (P.W.7) on whose statement F.I.R. (Exh.PB) was registered and who is father of Rabnawaz deceased, his son Rabnawaz had been murdered over a dispute of money which Zulfiqar Ali, appellant was not paying to him. He narrated the story as under: "On 5-4-1999 at about 7 p.m. my son Rab Nawaz went to the house of Zulfiqar accused to take the said money from him. He did not return upto 10 p.m. I along with Muhammad Mumtaz and Mukhtar P.Ws. went to the house of Zulfiqar accused in Chatha Colony to inquire about Rab Nawaz. At about 10.30 p.m. when we reached near the door of Zulfiqar accused, the door of the house of Zulfiqar was lying opened and a lantern was on in the house of the accused, and there was also moon-lit night. In our view, Zulfiqar accused gave a hatchet blow to Rab Nawaz deceased which landed underneath his left ear, on the neck. Rab Nawaz deceased fell down. Zulfiqar accused inflicted another blow on the right side of the neck of the deceased. Another blow was given by the accused with hatchet to my son which landed on the right side of his head. The accused gave another blow to Rab Nawaz which landed on the right hand. Myself, Muhammad Mukhtar and Muhammad Mumtaz P.Ws. saw the occurrence and we raised hue and cry but the accused threatened us with dire consequences and fled away along with the hatchet."

5. It was also stated that because of this payment there has been an altercation two days prior to the occurrence.

6. Muhammad Mumtaz, P.W. another eye-witness and related to the deceased corroborated the complainant story.

7. Muhammad Sarfraz (P.W.9) is witness of the motive part of the story with respect to altercation which had taken place two days prior to the occurrence i.e. 3-4-1999 over the money dispute against the payment of milk supply to the accused.

8. Muhammad Riaz happened to be a recovery witness of the hatchet, which was got recovered by the appellant on 15-4-1999 to Aman Ullah, S.I. and is an attesting witness of sealed parcel (Exh. PJ): He is related to the complainant.

9. Dr. Abdul Ghani conducted the postmortem examination on the dead-body of the deceased and found the following injuries on the person of the deceased:-- (1) An incised wound 10 cm x 2 cm on left side of neck. (2) An incised wound 6 cm x 1-112 CM on right side of neck upper part. (3) An incised wound 7 cm x 2 cm on back of neck just below the hairline. (4) An incised wound 7 cm x 1 cm on right side of head 11 cm above the right ear. (5) An incised wound 2 cm x 1 cm on right hand between the right index finger and right thumb. (6) An abrasion on right side of right eye 2 x I-1/2 cm skin deep. While he opined as follows:-- "In my opinion, death in this case occurred due to commulative effect of injury Nos.1, 2, 3 and 4 which damaged the vital structure of the neck and scalp leading to haemorrhage, shock and death. These injuries were sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp-edged weapon except injury No.6. All the injuries were ante-mortem."

10. Ex. PD is the copy of postmortem examination while Exh. PD/1 is sketches.

11. Aman Ullah Khan, S.-I. (P.W.12) had conducted the investigation of this case. He went to the place of the occurrence and prepared the Injury Statement (Exh.PE) and Inquest Report (Exh.PF) and got the post - mortem examination conducted by sending the dead-body under escort to mortuary. At the spot he secured the blood-stained earth and made it into a sealed parcel Exh.PH. He also took into possession a lantern vide recovery memo Exhs. PI. He received the last-worn clothes of the deceased by Muhammad Sibtain (HC) which were taken into possession. He got the site-plan Exhs. PA and PA/1 prepared and he endorsed the notes on this in red. He arrested the accused after about nine days i.e. 15-4-1999 and got recovered the hatchet from him. Amongst the formal witnesses, we have Muhammad Saleem, Draftsman, who prepared Exh.PA and PA/1 according to the instructions of police. Khuda Dad, Constable (P.W.4) took blood-stained hatchet to the office of Chemical Examiner. Muhammad Sabtain, Constable (P.W.5) took dead-body for post-mortem examination to the Mortuary. He received the last-worn clothes of the deceased, which he gave to S.-I. He also took a sealed parcel containing blood-stained earth to the office of Chemical Examiner.

12. Muhammad Riaz (P.W.10) is recovery witness of the hatchet.

13. In his statement under section 342, Cr.P.C., the appellant did not deny his involvement in the occurrence but his version was as follows:-- "Mst. Shamim alias Shammon is my wife. She was having illicit intimacy with Rab Nawaz deceased and about two years before this occurrence, she eloped with Rab Nawaz and remained with him for about 8 or 10 days. She was restored to me through the intervention of Muhammad Aslam Kachola, Exh. MNA and a `panchayat' was convened that Rab Nawaz would not go to Chak No.46/NB in future. On the fateful night I had gone to Lahore to bring the children of Madni Travellers and reached my house at about 11-P.M. I found that Mst. Shamim and Rab Nawaz in compromising position. I picked up hatchet and under grave and sudden provocation due to ghairat I gave him injuries which resulted in his death in my house. I did not owe any money to the deceased. The respectables of the locality came there and I informed the Police and surrendered myself but the local police with the connivance of the complainant party, who is related to the complainant and even today .he is present in the Court took up a false version.

14. We have heard the arguments and have seen the record.

15. The following excerpt from the cross-examination of the complainant is relevant and is reproduced below:-- "On 5-4-1999 at about 7 p.m. my son Rab Nawaz went to the house of Zulfiqar accused to take the said money from him. He did not return upto 10 p.m. I along with Muhammad Mumtaz and Mukhtar P.Ws went to the house of Zulfiqar accused in Chatha Colony to inquire about Rab Nawaz. At about 10.30 p.m. when we reached near the door of Zulfiqar accused, the door of the house of Zulfiqar was lying opened and a lantern was on in the house of the accused, and there was also moon-lit night. In our view, Zulfiqar accused gave a hatchet blow to Rab Nawaz deceased which landed underneath his left ear, on the neck. Rab Nawaz deceased fell down. Zulfiqar accused inflicted another blow on the right side of the neck of the deceased. Another blow was given by'the accused with hatchet to my son which landed on the right side of his head. The accused gave another blow to Rab Nawaz which landed on the right hand. Myself, Muhammad Mukhtar and Muhammad Mumtaz P.Ws. saw the occurrence and we raised hue and cry but the accused threatened us with dire consequences and fled away along with the hatchet."

16. The following excerpts from the statement of Aman Ullah Khan, S.-I./I.O. are also relevant and are reproduced below:-- "It is correct that the dead-body of Rab Nawaz deceased was lying inside the house of Zulfiqar accused, situated in Chak No.46/NB. It is correct that Rab Nawaz deceased belonged to Chak No.41/NB. It is correct that all the P.Ws. mentioned at Sr. Nos.1 to 8 in the report under section 173, Cr.P.C. are residents of Chak No.41/NB. It is correct that there is no eye-witness or recovery witness from Chak No.46/NB." "It is correct that the first contention of the accused was that when he returned house at about 10.30 p.m. from Lahore, outer door of the Haveli was closed. I knocked the same, but my wife did not open the door for about four or five minutes. I again knocked it and when the door was opened I found that Rab Nawaz deceased was concealing under the cot and on the suspicion that they are in compromising position and in the circumstances I killed him by causing him hatchet injuries which was lying nearby for cutting the wood." "My wife slipped away by scaling over the wall. The affidavits of the residents of Chak No. 46 regarding illicit intimacy of Mst. Shamim Akhtar with Rab Nawaz were not produced before me."

17. The occurrence is admitted. The venue is the place of residence of the appellant whose version appears to be more convincing under the circumstances of the case and in course of natural behaviour of a man. We cannot expect the deceased going to the house of accused for merely retrieving his debts at that hour of the night when two days earlier he had a skirmish on this aspect with the accused. So, we believe the story of the appellant, which was his first defence version even before the I.O. The relevant portion of his statement is reproduced below: "Mst. Shamim alias Shammon is my wife. She was having illicit intimacy with Rab Nawaz deceased and about two years before this occurrence, she eloped with Rab Nawaz and remained with him for about 8 or 10 days. She was restored to me through the intervention of Muhammad Aslam Kachola. Ex MNA and a `panchayat' was convened that Rab Nawaz would not go to Chak No.46/NB in future. On the fateful night I had gone to Lahore to bring the children of Madni Tarvellers and reached my house at about 11 p.m. I found that Mst. Shamim and Rab Nawaz in compromising position. I picket up hatchet and under grave and sudden provocation due to ghairat I gave him injuries which resulted in his death in my house. I did not owe any money to the deceased. The respectables of the locality came there and I informed the Police and surrendered myself but the local police with the connivance of the complainant party, who is related to the complainant and even today he is present in the Court took up a false version.

18. The motive part of the story of the prosecution case is, therefore, not believed.

19. According to the defence version which we are believing, this is a case of a family honour. The appellant had merely seen the deceased in his house and had presumed that he may have come there for committing zina with his wife but he did not see it actually taking place. So, the possibility that the deceased came there only to meet the woman of the house is also there. There was also a previous background in the same connection as the S.-I./I.O. has mentioned in his statement about which there is a bare denial on behalf of the complainant side.

20. Family honour killings are to be discouraged as has been laid down by the Hon'ble Supreme Court in the case of Muhammad Saleem v. The State (PLD 2002 SC 558) but it does not mean that the benefits of mitigation are not to be given at all to the accused in whose house someone trespasses and invades privacy in fulfilment of a lust.

21. This case is certainly one calling for mitigation. We, therefore, while upholding the order of conviction reduce the sentence of the appellant from death to life imprisonment and answer the reference accordingly. The benefit of section 382-B, Cr.P.C. is also given to the appellant. We do not see any compensation was due as was ordered by the trial Court under the provisions of section 544-A, Cr.P.C. as he was not Masoom-ud-Dam. Disposed of. N.H.Q./Z-124/L Sentence reduced.