2006 PLP 798 (MLD)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.1657 of 2000 filed by Muhammad Asif, appellant, who as convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide his judgment dated 27-10-2000 to death under section 302(b), P.P.C. with further direction to pay Rs.100,000 (one lac) as compensation to the legal heirs of Muhammad Asif, deceased or in default three years' R.I. with the benefit of section 382-B, Cr.P.C. He was also directed to pay Rs.45,000 as Diyat to Mst. Rehana Kausar, mother of Mst. Nazia deceased to extent of her share. It was also ordered that till the payment of Diyat amount Mst. Rehana Kausar mother of Mst. Nazia deceased, the appellant would be kept in Jail. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. Murder Reference No.672 of 2000 for confirmation of death sentence or otherwise of the appellant shall also be disposed of through this single judgment.

3. Brief facts of the case, as narrated by Mst. Hafeezan Bibi complainant in Exh.PB are that on 28-1-2000 the date of the marriage of her sister's daughter namely, Nazia, daughter of Muhammad Mansha was fixed. In the intervening night of 27/28-1-2000 at about 11-00 p.m. she came to know that Mst. Nazia and her son Asif had disappeared from the house so they started their search. When she reached Sirtaj Colony of Rakh Kikranwali she came to know that Mst. Nazia and Asif deceased and detained by accused Muhammad Asif in his residential house so she along with her brothers Maqsood Ahmad and Yaqoob went to Sirtaj Colony. They saw Muhammad Asif accused in state of range and violent condition and had a double-edged dagger in his hand. Muhammad Asif accused gave repeated dagger blows on the person of Muhammad Asif and Nazia in front of his house and thereafter cut the throats of Nazia and Asif deceased. Accused Muhammad Asif extended threats of murder of them that if anyone dared to come near to him he would be murdered, therefore, they remained standing on the same place at a some distance from the place of occurrence, thereafter, accused fled away while brandishing the dagger.

4. Faqir Ullah, S.-I. P.W.10 took over the investigation of this case. He reached at the spot, inspected the dead bodies of both the deceased, prepared injury statement of Asif deceased Exh.P.L. and injury statement of Nazia deceased Exh.P.M., also prepared inquest reports of both the deceased Exh.P.N. and Exh.P.Q. respectively, took into possession blood-stained earth of both the deceased Exh.P.C. and Exh.P.D. respectively. He arrested the accused Asif on 2-2-2000, who during investigation got recovered dagger P.1, which was taken into possession vide memo. Exh.PU. After completion of remaining formal investigation, the accused was challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 10 witnesses in all, thereafter, learned A.D.A. tendered in evidence reports of Chemical Examiner Exh:P.V., Exh.P.W., Exh.P.S. and closed the prosecution case, then, the statement of the accused was recorded under section 342, Cr.P.C. in which he pleaded the plea of grave and sudden provocation. Muhammad Mansha was examined as D.W.1 in this case.

6. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for the appellant in support of this appeal submits that it is a case of two versions, that the version put forward by the appellant is more plausible and convincing one, that he had acted under grave and sudden provocation, that both the deceased were related to the appellant, that on the next morning the marriage of Mst. Nazia deceased had to take place but she had left her house, that there are mitigating circumstances in this case, that if according to him it is not a case of grave and sudden provocation, then it is a case of family honour and death sentence is not called for in this case.

7. On the other hand, both the learned counsel for the State submit that neither it was a case of grave and sudden provocation nor family honour. They support the judgment of the learned trial Court.

8. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. In the instant case, occurrence took place in the morning hours. The complainant had also stated that on the said date the marriage of Mst. Nazia deceased was going to take place but she had left her house and was present with Asif deceased where the occurrence had taken place. This is a case of two versions, the version of the appellant, which he has given in reply to question No.7, is reproduced below: "The marriage of Mst. Nazia Bibi, the deceased, my real (Bhaangee) was to take place on 28-1-2000. She eloped with her paramour namely Asif deceased, my nephew (son of my maternal sister) on the night between 27/28-1-2000. I started for search of both deceased and when, I was going back to my house at about 4-00/5-00 a.m. (night) on 28-1-2000, both the deceased per chance met me near Ferozewala Road. I asked Mst. Nazia to accompany me so that her marriage could take place and by this way the honour of his family would be saved, upon which she refused to accompany me. I also requested Asif deceased to take her in the house back but they both flatly refused and replied that they would prefer their death instead of going back to their house. I also stated to them that the prestige and honour of their family will be ruined and the people would call us as (Beghairat). Both the deceased in the same breath replied me that when my sister Mst. Rehana Kausar i.e. mother of Nazia Bibi went with her paramour when she was a small girl, by that whether your Ghairat was lost. Both the deceased exchanged taunting and pinching dialogues with me. They did not pay any heed to my requests. Upon which I in grave and sudden provocation keeping in view the "Ghairat" in my mind committed the murder of both my close re1atives.in the street near the metalled road. I myself after the commission of murders appeared to the police station along with weapon of offence. None of the P.W. was present at the time of occurrence at the spot, therefore, P.W.l Muhammad Yaqoob has not supported the prosecution version who is real brother of the Complainant."

9. After considering both the versions, one put forward by the appellant and other put forward by the prosecution; we are of the considered opinion that both the parties are telling a lie, even in these circumstances, the light is taken from a case titled as Syed Ali Bepari v. A Nibaran Mollah and others (PLD 1962 SC 502) wherein, their Lordship of the Hon'ble Supreme Court of Pakistan had ruled out that when the parties are telling a lie, then, the Court can get his own inference to reach near the truth. To our mind, it is not a case of grave and sudden provocation because it is not a case of the appellant that he saw both the deceased in compromising position but the fact remains that occurrence had taken place in dark hours of night, Mst. Nazia, who was going to be married on the same day, was real niece of the appellant, she had left'her A house and if on the day of marriage, Mst. Nazia was not available in her house, then, the family honour of the appellant and his other family members was to be dishonoured in which of the society at Gujranwala, so treating it a case of family honour, we are of the opinion that death sentence of the appellant is not called for in this case. In this view of the matter, as far as, conviction and sentence of the appellant for the murder of Asif deceased is concerned, though that's, maintained under section 302(b), P.P.C. but convert the same from death of imprisonment for life with the benefit of section 382-B, Cr.P.C. So far as, murder of Mst. B Nazia Bibi is concerned, appellant has been awarded only compensation amounting to Rs.45,000 to the mother of the deceased, that compensation is also maintained. Death sentence awarded to the appellant is not confirmed and murder reference is replied in negative. H.B.T./1395/L???????????????????????????????????????????????????????????????????????? Order accordingly.