P L D 1966 Supreme Court 602 (PLP)

CORNELIUS, C. J.-The appellant Umar Hayat was granted special leave to appeal against the sentence of death awarded to) him for the murder of one Muhammad Zaman. In the order granting leave, it was said that the direct evidence placed it beyond doubt that Umar Hayat did indeed cause the death of Muhammad Zaman. The evidence also proved that Muhammad Zaman had illicit connection with the wife of Umar Hayat's, brother, and since a question of family honour affecting female was involved, it was a matter for consideration whether, having regard to the fact that Umar Hayat belonged to a Pathan tribe of the Western District of Mianwali, the lesser sentence o: transportation for life was not more appropriate in the case. This Court has on several occasions taken notice of the intensity of the sentiment entertained in such matters by members of the agricultural tribas of West Pakistan. Reference may be made on this point to the cases of Fazal Khan v. The State (P L D 1964 S C 54) and Ghulam Rasul v. Ali Akbar (P L D 1965 S C 363). In the former case, it was observed that "questions of family honour, touching the females of a family, are of almost over powering importance to the tribes in the western regions. To vindicate that honour they feel bound to go to very great lengths." In Ali Akbar's case it was said that a sentiment of the same kind which had led to excess in action could not be ignored. Relying on these views earlier expressed by the Court, Mr. Ihsanul Haq appearing for Umar Hayat has urged that his client was moved by a strong desire to clear the stain on the honour of his family which had been created by the guilty association of Muhammad Zaman with his brother's wife. There was no premeditation, but seeing Muhammad Zaman by himself in a street in Mianwali town before his eyes, Umar Hayat had been impelled by feelings of honour to attack and kill him. Reference was also made by Mr. Ihsanul Haq to the fact that a plea of insanity had been raised before the Sessions Court and the Sessions Judge had called for evidence. The Deputy Superintendent of the Jail at Mianwali deposed that when Umar Hayat was first admitted to the Jail he used to talk, but later he started to make mad noises and then became silent. On one occasion he was found sharpening a bar in his cell during the night, and told the Deputy Superintendent on being questioned, that he was sharpening the weapon for one Khawas Khan, his enemy, who was also in the Jail and whom he intended to kill. Khawas Khan is brother to the wife of Nur Khan, brother of the deceased Muhammad Zaman. The enmity alleged was never investigated. The Medical Superintendent of the Jail said that Umar Hayat used to talk to his friends in the Jail, but when presented before the medical staff, he would immediately stop talking. When threatened he was willing to give his name. A question was also raised at the trial that Umar Hayat was dumb and on this point as well as on the point of insanity, the Sessions Judge held that Umar Hayat was pretending, and accordingly proceeded with the trial. Umar Hayat was assisted by a counsel appointed by the State. At the close of the commitment proceedings, when questioned, he replied in the negative to every question, but in the Sessions Court he said nothing in answer to any question. Mr. Ihsanul Haq thought that so far as the evidence thus provided went, it might not establish insanity, but it could be sufficient for concluding that Umar Hayat was not a man of normal mind, that is to say he was capable of sentiments, but not capable of the quality of control over his actions which a person of strong or even normal mind possesses. The learned Advocate-General emphasised that the crime had been committed in a public place, that is in an open bazaar, and needed to be punished severely. He argued also that Umar Hayat's sentiments need not have been so greatly aroused in this case, since the woman was his brother's wife, and could be divorced. The latter suggestion appears to proceed on the assumption that the honour of a wife is not regarded among the tribes as highly as is the honour of a mother or a sister or a daughter, with whom the relationship is unbreakable. That assumption cannot be made. Innumerable cases occur where violence follows upon a wife's unchastity, and the learned Advocate-General was obliged to admit that if Umar Hayat had found his sister-in-law in an act of intimacy with Muhammad Zaman, and had killed one or both of them, the plea of grave and sudden provocation would have been available to him to the same extent as to the woman's husband. The feeling cannot be wholly excluded that Umar Hayat is a man of not l wholly sound mind, but that apart, the ground of intensity of the sentiment among people of his class, which is aroused through interference by a man who is a stranger to the family with a woman belonging to the family, is in our view, sufficient in the circumstances of this case for avoiding the penalty of death, and replacing it by the lesser sentence of transportation for life. We entertain no doubt that this sentiment will never be diminished, in the slightest degree, by any number of death sentences. We accordingly allow this appeal to the extent that we set aside the sentence of death awarded to Umar Hayat and in its place impose the sentence of transportation for life. A. H. Sentence reduced.