1999 PLP 2734 (YLR)

28. Learned trial Court gave the benefit of doubt to three accused and passed the judgment on the confessional statement of Aish Muhammad accused and convicted him under section 302(c), P.P.C., and sentenced to twenty years R. I. The benefit of sec tion 382‑B, Cr.P.C., was also given to him.

29. Learned counsel for the appellant has alleged that the prosecution has not proved its case beyond reasonable doubt and that the whole matter is based on confessional statement of Aish Muhammad accused which even if accepted as a whole as correct, the law laid down in the case of "Ali Muhammad v. Ali Muhammad and another" (PLD 1996 SC 274) is fully applicable in this case and that after seeing her real daughter and her paramour committing Zina with each other it was natural that in such a grave and sudden provocation that he was justified to act in the manner he has acted. At any rate the learned counsel for the appellant has submitted that the sentence awarded in the circumstances of the case was harsh and excessive which may be reduced to one already undergone. 30 On the other hand learned counsel for the State has generally supported the conclusion made by the learned trial Court. He opposed and controverted the arguments of the learned counsel for the appellant.

31. I have given due consideration to the valuable arguments on both the sides and perused the record of the trial Court with their able assistance.

32. So far as the motive is concerned in Exh.P.A. it was that Mushtaq Ahmad and Mst. Sheeman were seen by Aish Muhammad in the house of Abdul Sattar in an inexcusable position. While appearing as P.W.6 the complainant changed the motive to the effect that Aish Muhammad had suspicion of illicit relation between the two deceased. No explanation has come for this change.

33. On the other hand the appellant/ accused Aish Muhammad stated that he found both the deceased committing Zina with each other against Hudood of Allah. He lost control and out of sudden grave provocation and Ghairat and protection of his and his family's honours injured both the deceased at the spur of moment. The motive as given by the accused is supported on the record as both the deceased were found committing Zina, the Investigating Officer also stated that when he inspected the spot both the deceased were found in objectionable condition. A secret and open investigation also concluded that both the deceased were found committing Zina.

34. As to the ocular account, the name of Razzak does not appear in Exh.P.A., there is mention of electricity bulb which is also not believable, the .presence of Munir Ahmad and Zulfiqar as stated by P.Ws.6 and 7 is also an improvement. Had P.Ws. been present at the time of occurrence they would have atleast made an attempt to save Mushtaq Ahmad but there is no such thing on the record. The occurrence as per P. Ws. took place at 9‑00 p.m. on 1‑1‑1992 and report was lodged on the next morning at 7‑30 a.m. The police station was at a distance of only 7 miles. The village is a populated area but there was no alarm to call the people by the real brother which was highly unnatural and unbelievable. P. Ws. were not certain about the time of occurrence. The names of Iqbal, Riaz and Razzaq were added later on. It has come on the record that the accused were waiting arrival of the P. Ws. at the spot and then to kill both the deceased are all circumstances which cannot be ignored easily. The accused‑appellant has stated six things clearly in his statement under section 342, Cr.P.C. as under:‑‑‑ (i) The P.Ws. have opposed against him falsely; (ii) none of them was present at the time of occurrence; (iii) both the deceased were found by him while committing Zina with each other which is against Hudood of Allah (Almighty); (iv) finding them in such situation he lost his self‑control and out of sudden and grave provocation and Ghairat and for protection of his own and his family honours he injured both the deceased at the spur of moment; (v) none from the remaining accused was present at the time of occurrence; and (vi) he voluntarily appeared with weapon of offence before the police after the occurrence.

35. The story as stated by the P. Ws when kept into juxtaposition with the story as given by the accused‑appellant seems to be false. As such the story as given by the accused‑appellant is only taken as true. The medical evidence also shows that only one injury to each deceased was caused by the sharp‑edged weapon to which also the statement of the accused confirms.

36. In this view of the matter, the learned trial Court has very correctly appreciated the whole evidence and came to the just conclusion that ocular account of prosecution case was unbelievable, Abdur Razzak was not named initially in the F.I.R. According to the P. Ws. Abdur Razzak, Shafique and Rashid were empty handed. There was no mark of grip and scuffle on the persons of both the deceased and that the confessional statement of Aish Muhammad was true and confidence inspiring.

37. The question is as to what offence is constituted in the above circumstances. A similar question was emerged for resolution in the case of Ghulam Yaseen and 2 others v. The State (PLD 1994 Lah. 392), in which my learned brother Khalil‑ur‑Rehman Ramday, J., observed as under:‑‑‑ "The newly added section 338‑F in Chapter XVI of the Pakistan Penal Code provides that in the inter pretation and application of the provisions of the said Chapter, which Chapter includes Qatl and Hurt etc., the Courts were to be guided by the Injunctions of Islam as laid down in the Holy Qur'an and Sunnah. It is true that the provisions of this Chapter relating to Qatl do no make any allowance for Qatl com mitted under Ghayrat, nevertheless, in view of the abovementioned pro visions of section 338‑F of the P.P.C. the Courts are bound to apply the provisions of law in accordance with the injunctions of Islam. It was reported that when Sa'd bin Uba‑dah mentioned to the Holy Prophet (Sallallahu Alayhi Wasallam) that he would kill a person whom he saw near his wife, the Holy Prophet (Sallallahu Alayhi Wasallam) did not forbid him to take up such a course of action nor did the Holy Prophet (Sallallahu Alayhi Wasallam) objected to the same and instead declared that he was more Ghayratwala than Sa'd bin 'Uba dah. This Hadith is reported in Volume III of Saheeh Bokhari Sharif published by Deeni Kutab Khana, Lahore. and is being reproduced hereunder alongwith certain other Ahadith on the subject for ready reference:‑‑‑ CHAPTER OF SENSE OF HONOUR "And Warrad reported on the authority of Al‑Mughirah (that) Sa'd Bin ' Ubada said: If I saw a man with my wife, I would strike him with the sharp‑edge of the sword." The Prophet (p.b.u.h.) said (to his companions), "Are you astonished by Sa'd's (Ghayrah) sense of honour? (By Allah) I have a greater sense of Ghayrah than he has, and Allah has still more greater sense of Ghayrah than I have. " (Sahih, Al‑Bukhari, Kitab al‑Nikah, Bab al‑Ghayrah, (Ch.108); Arabic -English, Translation by Dr. Muhammad Muhsin Khan, Islamic University, Al‑Madina Al Munawwarah, Kazi Publications, Lahore, p.109) To us reported ' Umar bin Hafs, (who stated) to us reported my father, to us reported Al‑A'mash on the authority of Shafiq to whom narrated Abdullah (bin Mas'ud) that the Prophet (p.b.u.h.) said, "There is none having a greater sense of Ghayrah than Allah. And for that He has forbidden the doing of evil actions (illegal sexual intercourse etc.) There is none who likes to be praised more than Allah does." (Sahih, Al‑Bukhari, Kitab al‑Nikah, Bab Al‑Ghayrah, Hadith No.147, Vo1.VII, Op.cit.page 110). To us reported Abdullah Bin Muslamah on the authority of Malik to whom narrated Hashim to whom his father to whom narrated ' Aisha (R.A ) that Allah's Apostle (p.b.u.h.) said, "O followers of Muhammad! There is none, who has a greater sense of Ghirat (self- respect) than Allah, so He has forbidden that His slave commits illegal sexual intercourse or His slave girl commits illegal sexual intercourse. O followers of Muhammad! if you but knew what I know, you would laugh less and (Sahih, Al‑Bukhari, Kitab al‑Nikah, Bab al‑Ghayrah, (Ch.108) Hadith No. 148 Vol.NO.VII op‑cit page 110). To us reported Musa bin Ismail who stated that to us reported Hammam who got it from Yahya and he from Abu Salama and he from Urwah bin Al‑Zubair and he got from his mother Asma who narrated: I heard Allah's Apostle (p.b.u.h.) saying, "There is nothing (none) having a greater sense of Ghayrah (self‑respect) than Allah. And narrated Abu Huraira that he heard the Prophet (p.b.u.h) (saying the same). (Sahih, Al-Bukhari, Kitab al‑Nikah, Bab al‑Ghayrah, (Ch.108) Hadith No.149 VOl.NO.VII op‑cit page 110/111). To us this Hadith was transmitted by Abu Na'im, to whom it was transmitted by Shayban to whom it was transmitted by Yahya to whom it was transmitted by Abu Salama who heard Abu Huraira (R.A) that the Holy Prophet (p.b.u.h.) said, "Allah has sense of Ghayrah and Allah's sense of Ghayrah is provoked when a believer does something which Allah has prohibited." (Sahih, Al‑Bukhari, Kitab al‑Nikah, Bab al‑Ghayrah, (Ch.108) Hadith No.150 Vol. No. VII op‑cit page 111). "This Injunction of Islam in the form of "AHADITH" does not find any reflection in the specific provisions relating to Qatl which now stands incorporated in the Pakistan Penal Code. The omission is understandable as the process of bringing the old provisions of the law on the subject in conformity with the Injunctions of Islam, is still in its infancy and attaining expertise about the law which has now been put into practice is likely to take some time. While I am the subject, I may also make mention that there is no dearth of Ahadith recognizing the right of an individual to defend himself against any aggression against him or his property or the right to defend other individuals but our law on the subject makes no specific mention of giving any allowance to persons causing injuries or even Qatls in the exercise of such right. I have no doubt in my mind that by the time the present legislation on the subject, which is presently only in the form of an Ordinance, is laid before the legislature, due notice will be taken of these omissions and others in the law presently in force. Be that as it may, as has been mentioned above, the provisions of section 338‑F of the P.P.C., do repose some authority in the Courts to notice the Injunctions of Islam on the subject and to take benefit of the same while dealing with the cases in hand. From the above quoted Ahadith, it is obvious that a Qatl committed on account of Ghayrat is not the same thing as Qatl‑e‑Amd pure and simple and the persons found guilty of Qatl committed on account of Ghayrat do deserve concession which must be given to them. The least that can be done in the present state of law is to convict such‑like persons, guilty of Qatl‑e‑Amd committed on account of Ghayrat, under clause (c) of section 302, P.P.C., as such, a Qatl cannot be said to be punishable with Qisas as per Injunctions of Islam. "

38. In view of the recommendations made in this judgment; Bill NO.VII of 1998 called the Pakistan Penal Code (Amendment) Act, 1998 was introduced in the Senate on 24th of August, 1998.

39. In the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 Supreme Court 274) on which the learned counsel for the appellant has relied was a case in which the learned counsel for the appellant had also appeared before the Hon'ble Supreme Court of Pakistan wherein the question of quantum of sentence was also decided where a case falls under section 302(c), P.P.C., and does not fall within the ambit of Qatl‑i‑Amd liable to Qisas or Qatl‑i‑Amd liable to Qisas as Ta'zir. The relevant portion of the judgment of the Hon'ble Supreme Court of Pakistan as contained in paras.29 to 31 is reproduced for ready reference:‑‑‑ "

29. The new section 302 itself divides Qatl‑i‑Amd, for purposes of punishment into three categories: (1) Qatl‑i‑Amd which is punishable with death as Qisas; (2) Qatl‑i‑Amd punishable with death or life imprisonment as Ta'zir; and (3) Qatl‑i‑Amd punishable with imprisonment of either description for a term which may extend to twenty‑five years, where according to the Injunctions of Aslam the punishment of Qisas is not applicable. Section 302 of the. P.P.C., therefore, itself contemplates plainly clearly a category of cases which are within the definition of Qatl i‑Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law‑maker has left it to the Courts to decide on case to case basis. But keeping in mind the majority view in Gul Hassan case PLD 1989 SC 633, there should be no doubt that the case covered by the Exceptions to the old section 300, P.P.C., read with the old section 304, thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C. In this connection I should be content. to refer to (Kitabul Fiqah) by (Abbul Rehman Aljzeri) (translation by Manzoor Ahsan Abbasi), Volume V at page 582 which enumerates a large number of situations in which Qisas is not liable for Qatl‑i‑Amd; one of the situations mentioned by the learned Author at page 584 is:‑‑ (30) I can now return to the facts of this case. This was not a case of a mental condition described in picturesque, if inaccurate language, as the 'Othello syndrome' which is defined as morbid jealousy for which there is no cause. For the reasons given by the learned Judge in the High Court, which are based upon those stated by Justice Shafiur Rehman, as Chairman, of the Supreme Appellate Court, in Muhammad Hanif case 1992 SCMR 2047, the Courts below were entitled to accept the truth of the story in toto given by the accused. According to that story the deceased had intruded into the accused's home‑‑his castle‑ at the unearthly trespass. As if that was not enough, the property and privacy and was criminal trespass. As if that was not enough, the deceased was found by the accused sleeping with his wife. In these facts, the accused was, in my opinion, entitled to invoke the defence of grave and sudden provocation; he was also entitled to invoke the defence of self‑defence based on verse 34 Sura Al‑Nisa as interpreted by Justice Shafiur Rehman, J. in Muhammad Hanif case. In such cases, there is no duty to retreat. (31) It appears however that in addition to the grounds stated in Muhammad Hanif case, the accused had also exceeded his right of self -defence. In that he had overpowered the deceased man by putting a 'Chaddar' around his neck but had pressed it so hard as to strangulate him to death. His case, therefore, clearly fall under clause (c) of section

302. It must follow, therefore, that the learned Judge in the High Court was not right in holding that the accused had committed no offence and was not liable to any punishment."

40. After making the above discussions on the new law, the Honourable Supreme Court of Pakistan convicted the accused in that case under section 302, clause (c), P.P.C., and held that the sentence of imprisonment already suffered will serve the ends of justice.

41. The present case is also in line with the above precedents. As such the appeal of the appellant is accepted to the extent of quantum of sentence. The accused appellant was arrested on 26‑2‑1992, was released on bail on 4‑10‑1992, his bail was cancelled on 25‑1‑1993 and he was again granted bail on 9‑3‑1994. Thus, the total period of detention comes to one year, eight months and twenty two days.

42. In my opinion, the sentence undergone by the appellant will serve the ends of justice. He is on bail. His bail as well as surety bonds stand discharged.

43. The complainant has filed a criminal revision bearing Criminal Revision No, 152 of 1995 against the acquittal of Rashid Ahmad, Abdur Razzak and Muhammad Shafiq. As discussed above, this Court has come to the conclusion that the Trial Court has given very valid and cogent reasons for their acquittal which could not be rebutted on record. As such Criminal Appeal No. 152 of 1995 has no legs to stand. The same is hereby dismissed. Q.M.H./M.A.K./A‑67/L Order accordingly.