1998 PLP 1607 (SCMR)

NASIR ASLAM ZAHID, J.

Respondent Lala Khan son of Fazal Muhammad was convicted by judgment dated 22-2-1992 passed by the Sessions Judge (Ad hoc), Quetta under section 302, P.P.C. for the murder of deceased Akhtar Muhammad son of Muhammad Mir and finding no extenuating circumstances for awarding the lesser punishment, sentenced to death. The respondent was also convicted under section 307, P.P.C. for the attack on complainant Jalat Khan and sentenced to suffer R.I. for 3 years with a fine of Rs.1,

000. Criminal appeal filed by the respondent and Murder Reference for confirmation of the death sentence awarded to him were disposed of by the impugned judgment dated 31-3-1992 passed by a Division Bench of the High Court of Balochistan. Partial relief was granted to the respondent and the death sentence was not confirmed. Paras. 16 and 17 of the impugned judgment of the High Court read as follows:-- "

16. The cumulative effect of evidence is that offence under section 302, P.P.C. is not proved. However, we find that appellant has committed an offence under section 307, P.P.C. as far as Jalat Khan is concerned, and culpable homicide not amounting to murder As far as Akhtar Muhammad deceased is concerned. He is, thus, found guilty under section 304(1) and not under section 302, P.P.C. In the circumstances we are not inclined to confirm his death sentence. However, we convert death sentence into imprisonment for ten years.

17. The appeal, thus, filed by appellant is dismissed with modification in the sentence i.e. death sentence is converted into rigorous imprisonment for 10 years. Appellant shall also pay a fine of Rs.25,000 or in default to further suffer 1 year R.I. If the fine is recovered, Rs.15,000 out of the same shall be given to the legal representatives of deceased Akhtar Muhammad. Benefit of section 382-B, Cr.P.C. is also awarded to the appellant. The sentence awarded under section 307, P.P.C. is, however, upheld."

2. Judgment of High Court was not challenged by the respondent. However, petition for leave to appeal against the impugned judgment was filed by Muhammad Mir (father of deceased Akhtar Muhammad) and complainant Jalat Khan. Leave to appeal was granted by the following order dated 3-4-1993 of this Court: "This petition for leave to appeal against acquittal has arisen out of the following facts and circumstances as they emerge from the statement of facts made in the concise statement.:-- Jalat Khan P.W.1 the complainant stated that on 4-3-1989, he opened his shop as usual in the morning. In the meanwhile, Akhtar Muhammad, deceased, one of his relatives also came there and was sitting with him when at about 8-30 a.m. Lala Khan, the convict respondent reached there. He had two pistols in his hands. He fired at the complainant as well as the deceased. Both of them were injured and fell down. Lala Khan respondent ran away. Ghulam Nabi, Syed Muhummad, Nazar Muhammad, Khan Muhammad and some other persons carried both the injured to the Civil Hospital, Chaman. and from there to Civil Hospital, Quetta. Akhtar Muhammad died. Jalat Khan survived and appeared as star prosecution witness. The motive for the occurrence was that about two months prior thereto, the respondent Lala Khan had met Jalat Khan and threatened him with the accusation that Jalat Khan was suspected to be having illicit relations with the wife of the respondent. Jalat Khan denied the allegation and also offered to take oath in order to clear his and respondent's wife honour. This accusation and denial statedly had smitten the accused-respondent. As a result of the trial of the respondent (who was arrested on the day o occurrence and from his search two pistols and six live cartridges had been recovered and whose statement had also been recorded under section 164, Cr.P.C.) was convicted under section 302, P.P.C. and was awarded sentence of death thereunder. He was also convicted under section 307, P.P.C. with a sentence of three years' R.I. He was also awarded the sentence of fine. On appeal, the High Court acquitted the respondent in so far as the charge of murder is concerned. He was, however, convicted under section 304, Part I and was sentenced to ten years' R.I. and fine of Rs.25,

000. In default, he was ordered to suffer R.I. for one year. Compensation out of fine when recovered was ordered to be paid to the heirs of the deceased to the extent of only Rs.15,

000. The conviction and sentence for offence under section 307, P.P.C., were, however, upheld. The complainant's side has submitted this petition for leave to appeal with the prayer that the conviction and sentence awarded to the respondent by the trial Court should be restored by setting aside the impugned judgment of the High Court. We have heard the learned counsel from both the sides and have also perused the relevant record. In our view, it is a fit case for examination: whether any benefit could be given to the respondent with regard to the causing of death of Akhtar Muhammad on account of provocation, if any, attributable to Jalat Khan only; in case the intended victim of the firing by the respondent was only Jalat Khan could the respondent be not convicted under section 302, P.P.C. for having caused the death of Akhtar Muhammad by the same act of firing at Jalat Khan; whether the reasons contained in the impugned judgment for converting the offence from section 302, P.P.C to section 304, Part I can be treated as valid reasons, and other related questions, if and when the conviction under section 302, P.P.C. is restored, whether it would be necessary to restore the sentence of death also in the peculiar circumstances of this case wherein the motive, if believed, might give benefit to the respondent on the question of sentence; and, if not believed and the case is treated as one in which the motive alleged is not established in either case then will it be possible to withhold the benefit which might accrue to the respondent in the matter of sentence only while accepting this appeal. Order accordingly. The respondent who is stated to be serving the sentence of 10 years shall not be released from jail on the expiry of his present sentence in case, by then, this appeal is not disposed of. "

3. We have heard Mr. Yahya Bakhtiar, learned Senior Advocate Supreme Court for the appellants, Syed Ayaz Zahoor, learned Advocate Supreme Court for the State and Mr. M.K.N. Kohli learned Advocate-on-Record for respondent Lala Khan. With the assistance of the learned counsel, we have gone through the relevant record.

4. The incident of firing by the respondent had taken place on 4-3-1989 in broad daylight m a Bazar of Chaman. The F.I.R. was lodged by injured P.Vb` I Jalat Khan at P.S. Chaman. As a result of the firing, Akhtar Muhammad died and complainant Jalat Khan received several fire-arm injuries but he survived. Respondent was arrested on the same day. Recoveries included 5 empties from the site and from respondent two pistols, 6 live cartridges and a spare magazine. There were a number of eye-witnesses who had seen the incident and, apart from complainant Jalat Khan, injured eye-witness, P.W. 2 Muhammad Iqbal, P.W. 4 Syed Muhammad and P.W.5 Nazar Muhammad gave an eye-witness account of the incident. Medical evidence of P.W. 10 Dr. Sarfraz shows 7 bullet injuries on the person of injured Jalat Khan. Respondent Lala Khan did not produce any defence witnesses but gave three statements one under section 342, Cr.P.C. in answer to questions put by the Court; another under section 304(11), Cr.P.C. on oath and the other being his judicial confession under section 164, Cr.P.C. The respondent did not deny that the fired at the deceased and the injured on the day in question at the place mentioned in the F.I.R. and the prosecution case but he did not take a consistent stand regarding his defence in his three statements. In his statement under section 342, Cr.P.C. he denied various suggestions put to him by the Court but in answer to a question he stated that he himself appeared before the police and produced one pistol; admitted that he gave a judicial confession on 6-3-1989 before the Assistant Commissioner/First Class Magistrate, Chaman, one pistol was of Jalat Khan and the other was that of the respondent and that the report of the expert was correct; all the P. Ws. were related to Jalat Khan. He then stated that he would also give statement on oath. In his statement on oath, respondent stated that after he was married, his wife told him that, six months earlier, she had been raped by Jalat Khan. He further stated that Jalat Khan used to tease-and taunt him and as respondent had kept silent despite coming to know that Jalat Khan had raped his wife before she was married to the respondent. According to the respondent, a day before the incident, when he passed by the shop of Jalat Khan he saw Jalat Khan sitting at the shop. He shouted at the respondent and hurled filthy abuses at the respondent. He then said that he could not sleep the whole night and when on the day of the incident, he passed by the shop of Jalat Khan he again shouted at the respondent and abused him. Thereafter, according to respondent, after seeing that Jalat Khan was taking out his pistol he became afraid and took out a pistol from his own pocket and fired at Jalat Khan which hit him at his hand and feet and then Jalat Khan started firing at the respondent. Respondent hid himself behind a three feet "Thara" of respondent's shop and discharged the remaining one or two bullets and then got an opportunity and escaped. According to the respondent, he then went straight to the police station and put his pistol at the table of the Moharrir and surrendered himself. According to the respondent, he was tortured at the police station and he was asked as to who he had killed and the respondent replied that he had not killed any one. Later on, he was produced before a Magistrate. He stated that neither he killed Akhtar Muhammad nor he had enmity with him and that he had only been forced to fire at Jalat Khan. During his cross-examination, however, he admitted that his confessional statement was recorded by the Magistrate on 6-3-1989 and that the same was given by him with his free-will. P. W.9 is Magistrate Abdul Manan who had recorded the judicial confession of the respondent while he was posted as A.C./SDM, Chaman. In his confession, respondent stated that after one year of the marriage, his wife told him that 4/5 months prior to the marriage Jalat Khan had committed rape upon her and then he mentioned about the taunts and abuses by Jalat Khan whenever he passed by the shop of Jalat Khan. He further stated in his confession that he knew that Jalat Khan had a pistol with him and he might kill the respondent and for several days he could not sleep and on the day of the incident, after offering his "Fajar" prayers he decided that instead of Jalat Khan attacking him why respondent should not attack Jalat Khan first. He had bought two pistols one year earlier from a refugee. He took both the pistols and went to the bazar and came in front of the shop of Jalat Khan. According to the respondent, at that time there were two other persons alongwith Jalat Khan one white-bearded and the other who had been killed. According to the respondent, in the first instance he passed by the shop of Jalat Khan and did not do anything as he wanted the other two persons to go away so that he may attack, Jalat Khan but then he came back in front of the shop of Jalat Khan. He then stated:

5. From the evidence on record including the ocular testimony, recoveries and medical evidence, it stood established that respondent had fired at the two victims out of whom Akhtar Muhammad died but Jalat Khan recovered despite receiving several bullet injuries at the hands of the respondent. Though the respondent has not taken a consistent stand in his three statements, the fact that he had fired has not been denied by him. The incident is admitted by the respondent. It has already been noted that the respondent did not even challenge the judgment of the High Court. Conviction and sentence passed by the trial Court under section 307, P.P.C. for causing injuries to Jalat Khan by the trial Court have been affirmed by the High Court. No. plea has been raised from any side for interfering with or modifying the conviction and sentence of the respondent in that regard.

6. The questions which arise for consideration are whether the conversion of the conviction from section 302, P.P.C., to section, 304, Part I, P.P.C. in respect of the death of Akhtar Muhammad by the High Court is sustainable and, if the conviction under section 302, P.P.C., initially awarded by the trial Court is to be restored, whether it would be necessary to restore the sentence of death also.

7. According to Mr. Yahya, Bakhtiar, learned counsel for the appellants, the entire story put forward by the respondent regarding rape of his wife several months or a year previous to the date of the incident and that Jalat Khan used to taunt him in the open Bazar is not corroborated by any witness and these assertions are simply the uncorroborated statements of the respondent. According to Mr. Yahya Bakhtiar, no witness of the family was produced regarding the alleged rape of respondent's wife by Jalat Khan and that also long beford she was married to Jalat Khan and that there must be a number of witnesses in the Bazar where, according to the respondent, Jalat Khan used to tease and taunt him whenever respondent passed by his shop, but not a single witness came forward or was produced by the respondent in this behalf. According to Mr. Yahya Bakhtiar, it was a case of premeditated murder in which two pistols were used by the respondent and he fired at Jalat Khan and deceased Akhtar Muhammad in broad daylight in the presence of witnesses. According to learned counsel, on the basis of the evidence on record, no case had been made out for conversion of the conviction from section 302, P.P.C. to section 304, P.P.C., Part 1, P.P.C. Mr. Syed Ayaz Zahoor, learned counsel representing the State did not support the High Court's judgment. He referred to the case of Abdul Haque v. State (PLD 1996 SC 1) for the proposition that at the most it would be a case where lesser punishment i.e. life imprisonment was awarded to the respondent, but this is not a case for conversion of the conviction from section 302, P.P.C. to section 304, Part I, P.P.C. Mr. M. K. N. Kohli, learned Advocate-on-Record for the respondent vehemently argued that the judgment of the High Court is based on sound reasoning and does not call for interference. According to learned counsel, the respondent's action was the result of grave and sudden provocation on the part of Jalat Khan and as such his conviction under section 304, Part I, P.P.C. instead of under section 302, P.P.C. by the High Court was manifestly legal and proper. In support of his proposition, he referred to a judgment of a Division Bench of the Lahore High Court in the case of Muhammad Mansha v. State (1987 MLD 1907).

8. We may here refer to the reasoning of the High Court in the impugned judgment which convinced the High Court that this was not a case under section 302, P.P.C. but under section 304, Part I P.P.C. The entire reasoning of the High Court is contained in para. 18 of the impugned judgment which reads as follows:-- "In this regard plea of appellant is to be carefully scrutinized. He stated persistently that the motive for the incident was the rape of his wife committed by Jalat Khan. In his confessional statement as well as in the statement recorded by trial Court on oath, appellant, stated that not only injured Jalat Khan raped his wife but he never repented on that. On the contrary, Jalat Khan continued to minimise the appellant by filthy gestures and spoken words giving an impression that he (Jalat Khan) would further humiliate him. The irony of fate was that both, Jalat Khan and appellant, have their shops in Chaman Bazar. Thus, very often they confronted each other and on every such confrontation, appellant got humiliation and in turn provocation. It seems that the appellant was under a continued mental agony, particularly in a triable society, where it is very difficult to live peacefully with a lost honour. Every time when they came across to each other, it left a deep impact upon the appellant who finally decided to take revenge of all this from Jalat Khan who was responsible for bringing this disgrace and bad name to him in the society. We are conscious of the fact that appellant did not bring any evidence, including his wife to support allegation of rape, but admittedly prosecution has also not established any motive other than the motive assigned by the appellant for commission of the offence. Yet the most important feature of the case was that instead of Jalat Khan one Akhtar Muhammad died in the altercation. Admittedly appellant had no intention to kill Akhtar Muhammad. His anxiety was to kill Jalat Khan in order to defend his family honour but as Akhtar Muhammad happened to he there who tried to save Jalat Khan hence he received a bullet injury and died." In view of the above facts and reasoning, the High Court came to the conclusion that offence under section 302, P.P.C. had not been proved. After hearing learned counsel for the parties and perusing the record including the impugned judgment of High Court, we are of the view that the High Court erred in converting the conviction of the respondent from section 302, P.P.C. to section 304, Part I, P.P.C. The eye-witnesses' account including the testimony of Jalat Khan proved that this was a case where respondent had killed Akhtar Muhammad and seriously injured Jalat Khan and for the purpose of attacking Jalat Khan he had gone armed with two pistols. If the plea raised by the respondent is not taken into consideration, it would be a case squarely falling under section 302, P.P.C. In his cross-examination, while he was giving his statement under oath, the respondent stated that he had given his judicial confession voluntarily. Even if all the facts and pleas taken by the respondent in his judicial confession are accepted, the case yet would not fall under section 304, Part I, P.P.C. According to Exception 1 of the repealed section 300, P.P.C. culpable homicide is not murder if the offender whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. From his judicial confession it followslthat in the morning of the day of the incident, respondent took the decision to kill Jalat Khan. He offered "Fajar" prayer and then took two pistols with him, went to the shop of Jalat Khan and knowing that other persons were sitting there fired several rounds which resulted in the death of Akhtar Muhammad and serious injuries to Jalat Khan. It is not an action which could be described as being the action of a person who had been deprived of his self-control by grave. and sudden provocation of the complainant. High Court's observation that the respondent was under a continued mental agony, particularly in a tribal society, where it is very difficult to live peacefully with a lost honour is a no ground to justify the act of murder. The High Court by observing that respondent had finally decided to take revenge has itself accepted that it could not be a case where respondent was deprived of the power of self-control by grave and sudden provocation. Yet, the High Court came to the conclusion that offence under section 302, P.P.C. had not been proved. In our view this is not a case of grave and sudden provocation which deprived the respondent of power of self-control. On his own showing, respondent had time to think over the matter and then take a decision to kill Jalat Khan, but in the firing Jalat Khan survived and Akhtar Muhammad lost his life. The respondent is guilty of murder of Akhtar Muhammad under section 302, P.P.C. as rightly found by the trial Court. The decision of the Lahore High Court in the case of Muhammad Mansha v. State (1987 MLD 1907) relied upon by the learned Advocate-on-Record for the respondent does not help the case of the respondent that the present was not a case under section 302, P.P.C. but a case under section 304, Part 1, P.P.C.

10. The other question is of sentence as noted in the leave granting order. Mr. Yahya Bakhtiar, learned counsel for the appellants, does not press for restoration of the death sentence. Syed Ayaz Zahoor, learned counsel for the State also does not press for restoration of the death sentence. As noted in the leave granting order, there are peculiar circumstances of this case. A motive has been alleged by the respondent for the action he had taken. The prosecution has not alleged any motive. Additionally, the sentence of death had not been confirmed and conviction under section 302, P.P.C. was converted to section 304, Part I, P.P.C. For all these reasons, we are not inclined to restore the death sentence and while accepting this appeal and restoring conviction of the respondent under section 302, P.P.C. he is awarded the lessser sentence of life imprisonment. Conviction and sentence under section 307, P.P.C. remain unaltered. Both the sentences will run concurrently and benefit of section 382-B, Cr.P.C. is extended to the respondent in respect of both the sentences. Criminal Appeal No.3-Q of 1993 stands disposed of in the above terms. N.H.Q/M.157/S Appeal accepted.