2005 P Cr (PLP)

ALI NAWAZ CHOWHAN, J.

Muhammad Nawaz appellant in Criminal Appeal No.71/J of 2000 was convicted under section 302(b), P.P.C. by the learned Additional Sessions Judge, Bhalwal District Sargodha vide judgment dated 22-3-2000 in case F.I.R. No.375 dated 5-10-1998 registered at Police Station Bhalwal District Sargodha and sentenced to death as Tazir and was asked to pay compensation to the tune of Rs.30,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default to undergo six months' S.I. The learned trial Court has also sent murder reference No.133 of 2000 for confirmation of death sentence. Both these matters are being disposed of together.

2. Muhammad Aslam deceased while in an injured condition through complaint Exh.P.A. narrated the story put forth in the F.I.R. Exh.P.A./1 as under:-- The motive part of the story was narrated as follows:--

3. Ahsan P.W.7, who is an eye-witness while making his deposition in Court narrated the prosecution case as under:-- "About one year and one month ago, I had gone to the house of Muhammad Aslam deceased at about 6-00/6-30 p.m. I along with Ahmad and Nazir P.Ws. was present in the house of Muhammad Aslam when Muhammad Aslam deceased was taking meal, when Muhammad Nawaz the accused now present in Court came in the house of Muhammad Aslam. He was armed with rifle. Muhammad Nawaz accused gave a Lalkara and simultaneously he fired a shot with the rifle which hit Muhammad Aslam deceased on the right arm (right Dauhlah). Muhammad Aslam deceased ran towards his Bethic when Nawaz accused fired two shots with his rifle at him which hit the wall of the Bethic. Muhammad Aslam fell down inside the Bethic. I, Ahmad and Nazir went towards the accused when he saw us approaching near him he ran away outside the house of Muhammad Aslam along with his rifle. We then removed Muhammad Aslam to Civil Hospital, Bhalwal in an injured condition, where he was medically examined. Some police person reached the hospital and they after inquiry from the M.O. recorded the statement of Muhammad Aslam." His testimony was corroborated by Ahmad P.W.9.

4. Dr. Fazal Rasool P.W.6 medically examined Muhammad Aslam on 5-10-1998 and found the following injuries on his person:-- (1) A lacerated wound 1 c.m. x 1 c.m. into going into situated on (R) upper arm on middle and outer part with corresponding hole on the Qameez wound was bleeding, margins of wound were inverted with blackening around wound margin was present. (2) A lacerated wound 3-1/2 c.m. x 1 c.m. x going into with everted margins situated on the back of left side of chest in upper part 2 c.m. outer to middle line. After the death of Muhammad Aslam the same doctor conducted post-mortem examination on his dead body on 6-10-1998. In his opinion death in this case occurred due to excessive haemorrhage and shock as a result of injuries Nos.1 and 2 which were sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem and caused with fire-arm. Probable time which elapsed between injures and death was about 5 to 6 hours and between death and post-mortem examination was about 10 to 12 hours. Exh.P.B. is the post-mortem examination while Exh.P.E./1 and Exh.P.E./2 are the sketches of injuries. Inquest report is Exh.P.D. and injury statement is Exh.P.C.

5. Ghulam Hussain P.W.1 deposed about the safe custody of sealed parcel containing blood-stained earth in the Malkhana of the police station. Muhammad Ijaz P.W.2 recorded the formal F.I.R. Exh.P.A./1 on the basis of complaint Exh.P.A. Muhammad Hayat P.W.3 transmitted the sealed parcel said to contain rifle .244 bore to the office of Director Forensic Science Laboratory, Lahore. Altaf Hussain P.W.4 deposed about the safe custody of sealed parcel containing rifle .244 bore in the Malkhana of the police station. Muhammad Nawaz P.W.5 transmitted the sealed parcel containing blood-stained earth to the office of Chemical Examiner, Lahore. Muhammad Hafeez Khan, Draftsman, P.W.8 prepared site plan Exh.P.G. and Exh.P.G./1. Gul Hameed, S.-I. P.W.10 recorded statement of Muhammad Aslam deceased Exh.P.A., inspected the place of occurrence, collected blood-stained earth vide memo. Exh.P.F. He arrested the accused on 18-2-1999 and completed the investigation. Ahman P.W.11 identified the dead body of the deceased at the time of post-mortem examination. Muhammad Hayat P.W.12 escorted the dead body of the deceased to the mortuary and handed over last-worn clothes of the deceased to the Investigating Officer who took them into his possession vide memo. Exh.P.H.

6. The report of Chemical Examiner is Exh.P.J. that of the Serologist is Exh.P.K. and Director Forensic Science Laboratory is Exh.P.L.

7. The accused was examined under section 342, Cr.P.C. and the accused took the plea that he had fired at the deceased Muhammad Aslam out of Ghairat and at that time his sister Mst. Kausar Parveen was with him in the house of occurrence. He did not opt to appear as his own witness under section 340(2), Cr.P.C. but produced Muhammad Yar D.W.1.

8. After hearing the learned counsel for the appellant and going through the facts of the case we do appreciate that a question of family honour somehow was involved, Mst. Kausar Parveen the sister of the appellant had developed illicit relationship with Muhammad Aslam, the deceased. The question is as to why he spared his sister Mst. Kausar Parveen. This matter remained obscure and shrouded and the possibility is that the assailant may have thought that she was being exploited by Muhammad Aslam.

9. No Court of law would encourage honour killings. But people do get provoked on such questions either suddenly or otherwise, when they remain under the obsession of Ghairat and unleash their negative impulse at the first available opportunity. They need to be punished. But then we have our own culture and background and customs. These influence him to develop the impulse for revenge and because of such a revenge when a killing takes place it based on human frailty rather than any wickedness. As human frailty over powers a person because of the society, surroundings, ear poisoning, provocation, incitements and scandal mongering. Such an act attracts the principles of diminishing liability/extenuation.

10. We find that this case is fully proved against the appellant whose order of conviction is being upheld by us but keeping in view the entire background and the circumstances and the judicial standards used for choosing an appropriate sentence, we think it proper in reducing the sentence from death to 14 years' R.I. We are not interfering with the order of conviction with respect to the payment of compensation already awarded to the legal heirs of the deceased by the trial Court and are maintaining the same. Since the sentence of the appellant has been altered from death to 14 years' R.I., therefore, the appellant will be entitled to the benefit under section 382-B, Cr.P.C. The appeal is disposed of in the above terms and Murder Reference No.133 of 2000 is answered in the negative. H.B.T./M-920/L Order accordingly.