P L D 2002 Lahore 444 (PLP)

TASSADUQ HUSSIAN JILANI, J.‑‑‑Appellant Muhammad Siddique alongwith his son Muhammad Iqbal (acquitted accused) were tried by the learned Special Court, Gujranwala, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 (in case F.I.R. No.249 dated 12‑9‑1995 under section 302/34, P.P.C. Police Station Ladheywala Warraich, District Gujranwala) for the triple murder of Mst. Salma Bibi deceased (aged 18/20 years), Muhammad Aslam deceased (aged 25/30 years) and Mst. Saba Saleem deceased (aged 6/7 months). Vide judgment dated 12‑2‑2000, the learned trial Court, while acquitting Muhammad Iqbal, convicted the appellant as under:- (i) Death as Tazir under section 302(b), P.P.C. for the murder of deceased with a compensation of Rs.54,000 to be paid to the legal heirs of Muhammad Saleem deceased under section 544-A,. Cr.P.C. in default whereof he was further directed to suffer R.I. for six months. (ii) 25 years R.I. under section 302(c), P.P.C. read with section 306(b) P.P.C. for the murder of Mst. Salma Bibi deceased. (iii) 25 years' R.I. under section 302(c), P.P.C. read with section 306(b), P.P.C. The sentences of 25 years' R.I. were directed to run concurrently.

2. The prosecution story as given in the F.I.R. (No. 249 dated 12‑9‑1995) under section 302/34, P.P.C. Police Station Ladheywala Warraich, District Guiranwala) registered on the statement of Muhammad Riaz A.S.‑I. (P.W.6) briefly stated is that he received an information that Muhammad Saleem, who had abducted Mst. Salina Bibi daughter of Muhammad Siddique, accused‑appellant. (regarding which case vide F.I.R. No.52 of 1994 dated 5‑4-1994 under section 11, Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979. Police Station Ladheywala Warraich stood registered) and a baby girl from the wedlock was born, was called by appellant Muhammad Siddique to his house for the purpose of compromise where he killed all the three.

3. Having recorded F.I.R. (Exh.PL) P.W.6 Muhammad Riaz, A.S.‑I. went to the spot alongwith other police officials, prepared injury statements of Mst. Salma Bibi (Exh.PM), of Muhammad Saleem (Exh.PN) and that of Mst. Saba Saleem (Exh.PO), prepared site plan, took into possession blood stained earth from the place in respect of the afore‑referred three deceased, arrested the appellant on 7‑12‑1995 on whose pointation a .12 bore gun was recovered lying in the chaff.(Exh.P7) and licence (Exh.P8) which were taken into possession vide memo. Exh.PD.

4. Dr. Basharat Rasool (P.W.5) conducted the post‑mortem examination of the three deceased and. found following injuries on their persons:‑‑ Injuries on the person of Mst. Salma Bibi (aged 18/20 years): (i) Fire‑arm wound of entry 4 c.m. x 3‑1/2 c.m. on the left shoulder going deep inverted margin, blackening and tattooing ‑and around the wound with corresponding exit wound 6 in number on the back of the left chest upper part, size 1/2 c.m. x 1/2 c.m. everted margin on exploration. clavicle fracture scapula fracture, upper part of the left lung injured. (ii) Fire‑arm wound of entry on the outer side of the left breast, size 2‑1/2 c.m. x 2 c.m. x going deep with corresponding wound eight in number exit wound on the outer side of right chest each having size 1/2 c.m. with everted margin. On exploration fourth and fifth ribs fractured of left side and fifth and sixth fractured of the right side of chest. Left and right lung was injured. Heart injured. (iii) Fire‑arm wound of entry 1/2 c.m. x 1/2 c.m. four in number on the back of left forearm with exit wound four in number on the inner side of forearm, 3/4 c. m. x 1/2 c. m. in size. Injuries on the person of Mst. Saba Saleem (Minor): (i) Fire‑arm wound of entry with inverted, margin, blackening present, size 4 c.m. x 1‑1/2 c‑m. at the back of neck, base part, going deep corresponding exit wound 7 in number in the area of 7 c.m. x 3 c.m. in the right arm pit. Axilla, size of each wound 1/2 c.m. x 1/2 c.m. with everted margin. On exploration wad was found from the right side of chest. Lungs injured, spinal cord injured. Injuries on the person of Muhammad Saleem: (i) Fire‑arm wound of entry 3 c.m. x 3 c.m. going deep on the right chest middle part with blackening and tattooing 11 c.m. from midline with exit wound on the back of the left chest, exit wound are eight in number size of each exit wound 1/2 c.m. x 1/2 c.m. with everted margin. On exploration 4 pellets and one wad is recovered. Right sided 5th and 6th ribs fractured. Right lungs injured, left lung injured, heart and pericardium injured.

5. During trial prosecution examined eight witnesses. P. W.1 is Muhammad Asif who escorted the three dead bodies to mortuary for post mortem examination. P.W.2 is Tajammal Hussian, Constable. He is a witness who was associated with the recovery of .12 bore gun and the licence on the pointation of the appellant. He attested the recovery memo. Exh.PD. Muhammad Anwar (P.W.3) is an eye‑witness and father of Muhammad Saleem one of the deceased persons. He stated that his son had contracted marriage with Mst. Salina Bibi and a daughter was born from the said wedlock. whose name was Saba Saleem. He was told by Muhammad Iqbal co- accused that he should go to the house of the appellant in Kot Shera as he was trying to effect compromise between Muhammad Saleem his deceased son, Mst. Salina Bibi deceased and her father Muhammad Siddique appellant. 12th September was fixed as a date of meeting. He reached the house of Muhammad Siddique appellant on the afore‑referred date alongwith Muhammad Rafique (P.W.4) and found that Muhammad Iqbal, Muhammad Saleem deceased, his daughter Mst. Salma Bibi and the latter's daughter Mst.Saba Saleem were also present. Within their view Muhammad Iqbal co -accused raised Lalkara that Muhammad Saleem be taught a lesson for abducting Mst. Salma Bibi whereupon Muhammad Siddique brought out his .12 bore gun from the adjoining room, fired at Muhammad Saleem which hit him on his chest and thereafter killed Mst. Salma Bibi and her minor Saba Saleem as well. After the occurrence he ran away and came back having heard that the police had reached the spot whereafter he got the statement recorded. His statement was corroborated by P.W.4 Muhammad Rafique on all material particulars. P.W.6 is Muhammad Riaz, A.S.‑I who recorded the F.I.R. and partly investigated the case. P.W.7 is Masood Ahmad Bhatti who prepared the site plan. P.W.8 is Munir Hussain. A.S.‑I who received three parcels containing blood‑stained earth, kept the same in a Malkhana and thereafter delivered the same to Muhammad Jahangir Constable for onward transmission to the office of the Chemical Examiner.

6. The accused/appellant when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to enmity. The case of the appellant was that the murders had been committed at night; that none had seen the occurrence; that there is no independent eye‑witness; that P.W.3 and P.W.4 cannot be credited with truth as they are the father and brother of deceased Muhammad Saleem who had suspicion that the three murders in question had been committed by the appellant as he was annoyed over his daughter Mst. Salma Bibi's marriage with Muhammad Saleem decease; that no crime empties were recovered from the spot and that the prosecution had failed to prove its case beyond reasonable doubt.

7. Learned counsel for the appellant had also filed Criminal Miscellaneous No.631‑M of 2002 praying that the parties have compromised on which a report was called from the learned District and Sessions Judge, Gujranwala who confirmed that the legal heirs of all the three deceased made statements before him regarding the factum of compromise. Today those legal heirs have appeared, before this Court. We examined mother of Muhammad Saleem who did not deny that the parties have compromised. But we saw tears in her eyes which have not only raised serious questions about the genuineness of the said compromise but also with regard to what should be the judicial response to a gruesome triple murder even if the compromise is voluntary.

8. Mrs. Roshan Ara, the learned Assistant Advocate‑General submits that the act of three murders was a gruesome and cannot be forgiven. She added that it is a crime against society and is a fit case in which this Court may not accept the compromise.

9. Heard

10. It was a day light occurrence. Having registered, the F.I.R., P.W.6 Muhammad Riaz, A.S.‑I. reached spot at about 8‑30 a.m. and recorded the statement of P.W.3 and P.W.4 who are eye‑witnesses of the occurrence. Admittedly, Mst. Salma deceased (appellant's daughter) and the appellant had strained relations on account of her marriage of choice and against the wishes of her parents. This constitutes the motive. The appellant had got a Hudood case registered against her and her husband Saleem deceased. It is in evident that they had been called by the appellant through co‑accused Muhammad Iqbal on the pretext that the former (appellant Muhammad Siddique) wanted to compromise the matter. The invitation from an estranged father to his daughter must have been a message of forgiveness, of love and of hope. And for the credulous Saleem deceased it must have been a moment of excitement. It would have ended the long chase and his reactive hide after registration of the Hudood case. It was a moment when his marriage with Mst. Salma was to be accorded recognition by his in‑laws and to be more exact by his father‑in‑law (the appellant). It was to be a happy occasion even for his father and other family members. That explains the presence of P. W.3 (Muhammad Anwar, father of Saleem deceased) and P.W.4 (Muhammad Amin, his brother). They are, therefore, natural witnesses. Both these witnesses have no enmity with the appellant to falsey implicate him. Minor contradictions apart, these witnesses remained consistent on all material particulars i.e. the time, the manner in which the three were done to death and the locale of injuries caused. The medical evidence corroborates by the ocular account.

11. The recovery of three dead bodies from appellant's house is by itself yet another strong piece of circumstantial evidence and the appellant had no tenable explanation for this. He, also led to recovery of the licensed gun (P.7). Although no crime empty was recovered from the spot yet it has to be borne in mind that it was appellant's own house where the occurrence took place, the witnesses had run away finding him in that ferocious mood and the possibility could not be ruled out that the appellant must have removed the empties before arrival of police. Even otherwise, the non‑recovery of empty would not off‑set the overwhelming effect of the other pieces of evidence referred to in the preceding paragraphs. The prosecution case, in the light of the evidence led, stands proved beyond reasonable doubt to sustain conviction on a capital charge.

12. The application for compromise is an admission of guilt. No wonder after the receipt of report from the learned District and Sessions Judge about the factum of compromise, learned counsel for the appellant did not opt to argue the case on merits at all and submitted that the appellant had been forgiven by the legal heirs.

13. Most of the offences can be compounded under the Penal and procedural law of the land. The offence of murder can be compounded in terms of section 338‑E of the P.P.C. which reads as under:‑‑ "338‑E. Waiver or compounding of offences. ‑‑Subject to the provisions of this Chapter and section 345 of the Code of Criminal Procedure, 1898, all offences under this Chapter may be waived or compounded and the provisions of sections 309 and 310 shall, mutatis mutandis, apply to the waiver or compounding of such offences: Provided that, where an offence has been waived or compounded, the Court may, in its discretion having regard to the facts and circumstances of the case, acquit or award Tazir to the offender according to the nature of the offence."

14. The sentence for Qatl‑e‑Amd under section 302(b), P.P.C. is either death or imprisonment for life in cases of Tazir. The august Supreme Court while commenting on the afore‑referred provision in Faqirullah v. Khalil‑uz-Zaman and others 1999 SCMR 2203, at page 2214, held as under:‑‑

19. In cases where Qisas is not available, the Sharjah has given authority to the State and the Courts to award appropriate punishment to the offender keeping in view the circumstances of the case. Such punishment may reach up to life imprisonment or death by way of Tazir. This kind of death punishment has been termed variously by the Jurists but there is a general agreement that such a punishment is justified under the Sharjah in the special circumstances. "

15. For compounding an offence, leave to the Court is necessary both under section. 338‑E. P.P.C. and section 345, Cr.P.C. The proviso contained in section 338‑E, P.P.C. carries a rider i.e. that even if the offence has been waived or compounded the Court has discretion to acquit or award Tazir to the offender keeping in view "circumstances of the case" and "according ;o the nature of the offence" while interpreting these provisions, some questions of far‑reaching import regarding the parameters of these discretionary powers have engaged our attention. These are as under:‑‑ (i) What are those: "circumstances"" and why despite compromise an accused be convicted? (ii) What is the concept of crime and punishment which may emanate from this provision of law'? (iii) Can law be a social catalyst for change?

16. The "circumstances" or the offences which may justify conviction as Tazir despite compromise could be varied. Those may include criminal acts which are heinous on account of the number of people those are physically harmed or killed: or acts which are symbolic of a certain bias or prejudice against a section of society; or which are committed in the name of a creed or committed in reaction to the exercise of a fundamental right by the victim; or which cause general alarm and shock public conscience and acts which have the effect of striking at the fundamentals of a civil society. The concept embodied in this provision (of section 338‑E, P.P.C.) underpins an important legislative intent. The Court has to draw a line between those offences which are more serious and have graver social ramifications arid offences which are less serious or reflect some personal vendetta. In the former category of offences acquittal pursuant to compromise may encourage the social trends which led to those crimes whereas upholding a conviction would convey a social disapproval through the majesty of law. In the offences of latter kind, however, a compromise and the resultant acquittal may promote goodwill and social harmony.

17. We have given our anxious consideration to the prayer for appellant's acquittal on the basis of compromise and not that the appellant pre‑planned the triple murder and carried out the plan in a cold‑blooded. calculated and brutal manner. There was no element of grave and sudden, provocation. The only fault .of appellant's adult daughter Mst. Salma deceased was that she married some one (Saleem deceased) of her own choice. There is no evidence that there was no marriage or that they were living a life of adultery. They had entered the sacred union of marriage and had given birth to a baby girl.

18. While examining the case this Court, with a ting of dismay, took judicial notice of the fact that the act of the appellant is not a singular act of its kind. It is symptomatic of a culture and a certain behaviour pattern which leads to violence when a daughter or a sister marries a person of her choice. Attempts are made to sanctify this behaviour in the name of "family honour". It is this perception psyche which had led to hundreds of murders.

19. According to the report of the Human Rights Commission of Pakistan which has not been controverted by any State agency, over 1000 victims were of "honour killing" in the year 1999 and 888 in the single Province of Punjab to the year 1988. Similarly in Sindh, according to the statistical record maintained by the Crimes Branch of Sindh, it was 65 in 1980, 141 in 1999 and 121 in 2000. In the year 2001 there were at least 227 "honour killings" were reported in Punjab alone.

20. These killings are carried out with an evangelistic spirit. Little do these zealots know that there is nothing religious about it and nothing honourable either. It is male chauvinism and gender bias at their worst. These prejudices are not country specific, a region specific or a people specific. The roots are rather old and violence against women has been a recurrent phenomenon to human history. The Pre‑Islamic Arab Society was no exception. Many cruel and inhuman practices were in vogue which were sought to be curbed by the advent of Islam. It is well‑known that in those times, daughters used to be buried alive. It was strongly deprecated and a note of warning was conveyed in Holy Qur' an. In Sura No.81 (Al‑Takwir), Verse 8, the Day of Judgment is portrayed in graphic detail when inter alia those' innocent girls, who were buried alive or killed, would be asked to speak out against those who wronged them and the latter would have to account for that. Translation of the above verse given in "the Holy Qur'an" by Abdullah Yusuf Ali, Volume II published by Sh. Muhammad Ashraf, reads as under:‑‑

6. When the oceans Boil over with a swell;

7. When the souls Are sorted out (Being joined, like with like);

8. When the female (infant), Buried alive, is questioned.

9. For what crime She was killed;

21. Explaining the background of the practice of burning or burying the young girls alive prior to the advent of Islam, Pir Muhammad Karam Shah (Al‑Azhari), (in his famous translation of Holy Qur'an) "Tafseer Zia‑ul -Qur'an", Volume V, writes that once during war the victor tribe took away womenfolk of the vanquished tribe. After the end of war and the peace treaty the women were given a choice to return to their respective tribes. One of the young girls refused to go back and married a young man of the victor tribe. This was taken as a disgrace by the former tribe and thereafter a practice of burying the newly‑born girls alive, developed.

22. Notwithstanding the Qura'nic commandments and the penal law of the land, the incidents of violence against women remain unabated. In Mst. Humaira Mehmood v. The State and others PLD 1999 Lahore 494, authored by one of us (Tassaduq Hussain Jilani, J.) an adult woman having married a man of her choice but without parental consent, sought protection of this Court apprehending death threat. Holding that her apprehensions were not without substance, this Court commented on the predicament of such a woman, the role of State functionaries and the inherent social dichotomies as under:‑‑ As Muslim we loudly proclaim our commitment to the lofty ideals of an Islamic Ideology. The advent of Islam was a milestone in human civilization. It came at a time when women were treated as serfs and chattel. Instances were not lacking when men used to bury their daughters alive. It was Islam which declared equality between a man and a woman. In matters of marriage a woman was given equal right to choose her life partner. After obtaining the age of puberty she could exercise her option and choice. Unfortunately, in our practical lives we are influenced by a host of other prejudices bequeathed by history, tradition and feudalism. The self- righteousness demonstrated by the respondents in calling her "adulterous" the manner in which she was hunted like a prey and the way the State functionaries become partners in a feudal vendetta notwithstanding the mandate of their office in getting their pound of flesh, reminded the Court of George Bernard Shaw's Criticism of Englishmen in his Drama "The man of Destiny", he said: 'There is nothing so bad or so good that you will not find Englishman doing; but you will never find an Englishman in the wrong. He does everything on principle. He fights you on patriotic principles; he robs you on business principles; he enslaves you on imperial principles'."

23. The tragedy of the triple murder is yet another tale of an old Saga; the characters are different yet plot is the same, the victims were accused of the same "crime" and even the method in madness remained the same i.e. the prosecutor, the Judge and the executioners all in one. Perhaps if the police had fairly investigated the case and the subordinate Courts had gone by the book by extending requisite protection, Salma and Saleem deceased would not have run away to Islamabad. This is a typical example of misuse and misapplication of Hudood Laws in the country. This abdication of authority by the State institutions made the couple run for its life and provided an opportunity to the appellant to call them over by way of deception. In utter disregard to the basic right of an adult woman to marry, to the institution of family, and motivated by self‑conceived notion of "family honour", the appellant had started a tirade against them by having a criminal case registered. Baby girl was born out of the wedlock. The daughter left her home and hearth anti even the city of her birth and started living in Islamabad in the fond dream of creating a "new home" and "new world" but the appellant's venom, it seems, never subsided. To satisfy those baser called of venom, he thought a plan and a rather treacherous one of inviting them to his house. When they came, he brought out his gun and killed each one of them with repeated shots.

24. A murder in the name of honour is not merely the physical elimination of a manor a woman. It is at a socio‑political plane a blow to the concept of a free dynamic and an egalitarian society. In great majority of cases, behind it at play, is a certain mental outlook, and a creed which seeks to deprive equal rights to women i.e. inter alia the right to marry or the right to divorce which are recognised not only by our religion but have been protected in law and enshrined in the Constitution. Such murders, therefore, represent deviant behaviors which are violative of law, negatory of religious tenets and an affront to society. These crimes have a chain reaction. They feed and promote the very prejudices of which they are the outcome, both at the conscious and sub‑conscious level to the detriment of our enlightened ideological moorings. But are these social aberrations immutable? Is it an inexorable element of fate that the women should continue to be the victims of rage when it comes to the exercise of those fundamental rights which are recognized both in law and religion? NAY! No tradition is sacred, no convention is indispensable and no precedent worth emulation if it does not stand the test of the fundamentals of a civil society generally expressed through law and the Constitution. If humans were merely slaves of tradition or fate, they would still be living in caves eating, mating and fighting like other animals. It is the mind and the ability to reason which distinguishes them from other living creatures. Human progress and evolution are the product of this ability. Law is part of this human odyssey and achievement. Law is a dynamic process. It has to be in tune with the ever‑changing needs and values of a society failing which individuals suffer and social fabric breaks down. It is this dimension of law which makes it a catalyst of social change Law, including the judge‑made law, has to play its role in changing the inhuman social moors. The offence which stands proved against the appellant has to have a judicial response which serves as a deterrent, so that such aberrations are effectively checked. Any other response may amount to appeasement or endorsement. A society which fails to effectively punish such offenders becomes privy to it. The steady increase in these kinds of murders is reflective of this collective inaction, of a kind of compromise with crime and if we may say so of a complicity of sorts. A justice system of crime and punishment, bereft of its purposive and deterrent elements looses its worth and credibility both. The individual, institutional and societal stakes, therefore, are high. In these attending circumstances we are of the considered view that the appellant does not deserve 'the indulgence of a compromise leading to acquittal. The sentences awarded to the appellant, therefore. do not call for interference.

25. For what has been discussed above Criminal Appeal No.170 of 2000 tiled against the conviction and sentence of the appellant is dismissed. Criminal Miscellaneous No.631‑M of 2002, seeking compromise, is disposed of in terms noted above. The death sentence awarded to the appellant is confirmed. M.B.A./M‑1279/L Appeal dismissed.