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No. 168 of 1964, decided on 6th September 1965.

Ss. 300, Exception 1, 302 & 304, Part‑I‑Accused seeing his maternal uncle's wife and deceased making love to each other lying on same cot, causing fatal injuries to deceased‑Case, held, one of grave and sudden provocation Conviction under S. 302 altered to one under S. 304, Part Sentence of death reduced to 2 years rigorous imprisonment.

Govindappa's case (1931) M W N 533; Fazal Dad's case 4 P R 1904; Hussain's case A I R 1939 Lab. 278 and State v. Akbar P L D 1961 Lab. 24 ref.

Ch. Khadim Mohy‑ud‑Din for Appellant.

M. A. Bajwa for the State.

Date of hearing: 23rd August 1965.

.‑Muhammad Sadiq aged about 21 years has been convicted by the learned Second Additional Sessions Judge, Lyallpur, under section 302, P. P. C. for the murder of his cousin Shaukat Ali aged about 25 years and sentenced to death. He has appealed against his conviction and sentence and his case is also before us under section 374 of the Code of Criminal Procedure, 1898 for the confirmation of capital sentence. This judgment will dispose of both the appeal and the reference.

2. Shaukat Ali deceased was son of Mubarik Ali (P. W. 12) born of Mst. Hashmat Bibi (P. W. 11), whom Mubarik Ali divorced before Independence, when they lived in Ludhiana, in what is now East Punjab in India. At that time Shaukat Ali was only two years of age and his custody remained with his mother who brought him up. At the time of Independence Mst. Hashmat Bibi and the deceased migrated to Pakistan and settled in Lyallpur. Sometime after her arrival in Pakistan, she married Abdul Latif (C. W. 1) and took up residence in a house situated in Gali Baghwali in Abdullahpur in the suburb of Lyallpur.

3. Mubark Ali too, after his migration to Pakistan, settled in Lyallpur and married one Mst. Hamida, described by the prosecution witnesses as a fat dominating woman. They lived in a house in street No. 1 in Model Town‑also a suburb of Lyallpur. With them also lived Muhammad Sadiq appellant who was Mubarik Ali's sister's son, but was left orphan and brought up by Mubarik Ali as his own son. Mubarik Ali ran a sweet‑meet shop and the appellant also worked with him at his shop.

4. For quite sometime after Mubarik Ali's marriage with Mst. Hamida there was no child of the marriage. Mst. Hamida would, therefore, sometime visit Mst. Hashmat Bibi and take Shaukat Ali deceased (who had by then grown up into young man of 18‑20 years) with her to her house. The prosecution case is that Mst. Hamida developed illicit intimacy with the deceased and, therefore, would visit Mst. Hashmat Bibi often and would take the deceased with her saying that she loved him as his own son and that her own children also longed to see him. It is also alleged that once about seven months before the occurrence, Abdul Latif found in his own house the deceased and Mst. Hamida in the same room which was chained from inside and when the door was forced open both of them came out wearing the appearance of guilty persons. Abdul Latif apprised his wife Mst. Hashmat Bibi of this incident.

5. According to the prosecution case, on the 16th of June 1963 at about 10.00‑11.00 A. M., Mst. Hamida came to the house of Mst. Hashmat Bibi and asked the deceased to accompany him to her house for an hour or two. The deceased complied. However, he did not return till about 4.00 P. M., upon which his mother Mst. Hashmat Bibi became anxious. She, therefore; went to the house of Mubarik to enquire about the deceased. When she reached the house she found a number of persons collected there of whom Abdul Qadus (P. W. 6), Zulfiqar (P. W. 8), Muhammad Sharif (P. W. 9) and Fazil Din alias Fajja (C. W. 2) told her that her son had been killed by Muhammad Sadiq, appellant. Of them the first two named said that they had actually seen her son being fatally injured by means of a knife by the appellant. Mst. Hashmat Bibi then went to the Police Station to lodge the report. She, however, met Ata Ullah Khan, A. S. I. (P. W. 13) at Adda Narwala who recorded her statement Exh. P. A., on the basis of which a formal F. 1. R. Exh. P. A; 1 was registered at the Police Station. The A. S. I. immediately proceeded to the scene of occurrence where the dead body of the deceased lay. After preparing the statement of injuries Exh. P. L. and the inquest report Exh. P. J. sent the dead body for autopsy.

6. Muhammad Sadiq, appellant was arrested in the same evening and blood‑stained knife Exh. P. 3 was recovered from his possession.

7. The case for the prosecution mainly rests upon the state ment of Mst. Hashmat Bibi, Abdul Qadus (P. W. 6) and Zulfiqar (P. W. 8). The evidence of the first named is material in so far as it furnishes a motive for the crime. The other two are eye‑witnesses of the occurrence who state that at about 4.00 on the 16th of June 1963 they were attracted by the alarm raised by Mst. Hamida who was shouting that the deceased was being killed by the appellant. They rushed to the scene of occurrence and saw the appellant causing the deceased multiple injuries with knife. The deceased in order to save himself came out in the court‑yard but eventually fell down dead. Muhammad Sharif (P. W. 9) reached the spot immediately after the occurrence and saw the appellant running away from the scene of occurrence with the blood stained knife in his hand. Fazal Din alias Fajja who was originally included in the calendar of prosecution witnesses was given up having been won over but at the request of the accused. was examined as C. W. 2. He also testified to the fact that on the day of occurrence at about 4.00 p.m., he heard Mst. Hamida crying aloud "Sadiq has killed Shaukat" and he also saw Sadiq coming out of tile house carrying a blood stained knife in his hand.

8. Dr. Abdul Wahid (P. W. 4), who performed the autopsy, found the following injuries on the body of the deceased :‑

(1) A contusion mark, 2" x 1" just outside the right eye on the right temple.

(2) An incised wound, 1" x " skin deep verticle 1" from the left lip angle.

(3) An incised wound, 1" x " skin deep, injuries Nos. 2 and 3 were connected with each other and were 1 " apart.

(4) An incised wound, " x 1/8" x skin deep one inch vertically below the left lip margin. I

(5) A penetrating incised wound, 2" x 1" cutting the right shoulder blade upper and.3" away from the shoulder joint, the wound was going down, cutting the third rib obliquely and had cut the pleura penetrated the upper lobe of right lung. The cut in the lung was 1" x "x 1 " and there was blood in the right chest cavity.

(6) An incised wound, 1 " x 1/8" X skin deep going obliquely backwards and outwards, one inch above and parallel the inner part of the right clavical.

(7) An incised wound " X 1/3" cutting the sternum partially 1" below the inner end of left clavical verticle in direction.

(8) An incised wound, " x 1/3" x skin deep going " obliquely inwards transverse in direction 1-2/3" to the left and at the level of injury No. 7. An incised wound, " x " x skin deep transverse in direction going for two inches under the skin 1 " above the nippa.

(10) A penetrated wound, " x " going deep obliquely inwards and downwards 1 " outside and at the level of the injury No. 9. The injury was passing between the 2nd and 3 ribs, cutting the muscles, the pleura was cut and the lower part of the upper lobe of the left lung was cut. The cut in the lung was " and was going into its whole thickness. There was about one pound of liquid blood collected in the left chest cavity.

(11) A penetrating wound, " x " transverse on the mid‑line of the sternum 1" above the lower end of sternum, the bond bone underneath was cut and the adjoining ,part of the costal cartilage was also cut. It had cut the diaphram and the upper surface of the liver under it. The cut in the liver was 2 " x " x 1".

(12) An incised wound, 1"x " x " verticle in direction 2" below injury No. 11.

(13) A penetrating wound, " x " on the left side of the abdomen 2" above the umbilicus and 1 " from the mid line. It was going backwards and it had cut the stomach. The cut in the stomach was 2" long and the contents of the stomach (semi‑solid partially digested food) was scattered about in the abdominal cavity.

(14) A punctured wound, " x 1/3" X 1/3", on the left side of the abdomen 1 " outside and slightly at higher level to the anterior superior iliac spine.

(15) A punctured wound, 1" x 1 " on the right side of the abdomen 4" outside the umbilicus and at the same level going obliquately outward and backward for 1 ", it was muscle deep.

(16) A punctured wound, " x ", on the front of lower part of right shoulder joint going upwards and backwards for 1".

(17) Two incised wounds, 1 " x " skin deep and 1" x " skin deep on the front of right arm 3 " below the shoulder joint, both were connected with each other under a bridge of skin " wide.

Death, in the opinion of the doctor, was due to injuries Nos. 5, 10, 11 and 13 causing haemorrhage and shock. In his opinion these injuries collectively and individually were sufficient in the ordinary course of nature to cause death.

9. The appellant admitted having caused injuries to the deceased but pleaded grave and sudden provocation in mitigation. He, however, denied that he used the knife Exh. P. 3 in causing injuries to the deceased. Instead he stated he had a smaller knife which he had picked at the spot when he found the deceased and Mst. Hamida lying on the same cot making love with each other. In answer to question No. 10 by the committing Magistrate he stated as follows:‑

"On the day of occurrence I came to my house from my shop when I entered the room I found that Shaukat deceased was lying with Mst. Hamida P. W: and making love to her, his back was towards me while the face of Mst. Hamidan was towards me. On seeing both making love to each other, I lost control of my senses and in the meantime Mst. Hamidan ran away. and out of great sudden and grave provocation I caused injuries to Shaukat deceased with a small knife which I picked up from the room at very time as Shaukat had his back towards me he had not seen me entering the room so he could not run away. After causing injuries to Shaukat I myself appeared before the police at the Police Station. Mst. Hamidan is like my mother."

He adhered to the above statement in the Sessions Court.

10. In order to forestall the defence of grave and sudden provocation, a question was also asked to the appellant in the committing Court as to whether he himself had any clandestine relation with Mst. Hamidan implying thereby that it was in a fit of jealousy and not because of any grave and sudden provocat ion that he killed the deceased. To this question the appellant replied in the following terms:‑

"Mst. Hamidan mother had mothered through out my life. It is absolutely baseless and false to suggest I could have any clandestine relation with my mother. Any how there was a rumour that Shaukat deceased had developed such relations with one Mst. Hamidan but I did not believe it on the day of occurrence."

11. The fact that the appellant caused the fatal injuries to the deceased having been admitted, the only question for determination in this case, therefore, is what were the circumst ances under which the appellant caused the fatal injuries to the deceased. On this aspect of the case, there is the statement of the appellant himself before the Committing Magistrate to which he adhered in the Sessions Court. There is also the statement of Mst. Hashmat Bibi which she made to Ataullah Khan (P. W. 13) without any loss of time after she had seen the dead body of her son. In that statement she definitely admitted of her son's illicit connections with his step mother, Mst. Hamida. It is true that while in the witness‑box she went back on that part of her statement and denied having made any admission before the A. S. I., but there can be no manner of doubt that she did make such statement and her subsequent retraction there from is futile. Absence of any other motive is also a fact which, in our opinion, lends support to the defence version, that the appellant caused injuries to the deceased, in a fit of grave and sudden provocation when be saw the deceased and Mst. Hamidan on the same cot making love with each other. The fact that the deceased was found wearing only a Banian Exh. P. 1 and under wear P. 2 and no shirt or Pajama at that time of the occurrence also lends support to the defence version. It is in the statement of Mst. Hashmat Bibi that when the deceased accompanied Mst. Hamidan in the morning he had a shirt and a Pajama on him. .

12. The learned Additional Sessions Judge discounted the defence versions and held the appellant guilty of murder. In reaching that conclusion, he relied upon the following four circumstances listed in paragraph 11 of his judgment:

(i) that the number of injuries on the person of the deceased tended to show that at the time of occurrence the deceased was asleep and not engaged in love making with his step mother for otherwise he would have offered resistance being "also a healthy and grown up young man";

(ii) that if the deceased and Mst. Hamidan were seen by the appellant while engaged in love making then he should have had also caused injuries to Mst. Hamidan;

(iii) that the dimension of knife Exh. P. 3 tended to show that the appellant had come prepared to kill the deceased and this was not a type of knife which a person would ordinarily carry on his person.

(iv) that most of the injuries caused to the deceased were on the front part of the body and riot at his back which should have been the case for according to the defence version the deceased had his back towards the entrance, when the appellant entered the room.

13. We have given our anxious consideration to the reasons which led the learned Additional Sessions Judge to reject the defence plea of grave and sudden provocation but these reasons do not impress us. For one thing, the number of injuries on the person of the deceased would not by themselves show that he was asleep. Indeed the post‑mortem report shows that injury No. 5 had cutaway the shoulder blade from the shoulder joint. This injury fits in with the defence version that when the appellant surprised the deceased and Mst. Hamida the former had his back towards the entrance and, therefore, was injured by the knife from behind. This injury is likely to have incapaci tated the victim from offering any resistance. Secondly, the fact that no injury was caused to Mst. Hamidan despite her being caught in a disgraceful act is capable of being explained. For as is clear from the accused's statement, he had filial reverence for the woman who had brought him up like a son. It may also be that the appellant's first victim being the deceased, gave an opportunity to Mst. Hamidan to escape from the scene of ignominy.

14. Learned counsel appearing for the State also frankly conceded that he could not support the conclusion of the learned Additional Sessions Judge in so far as he discounted the plea of grave and sudden provocation and convicted the appellant under section 302. We have no doubt that in the face of evidence on the record, it is not possible to avoid the conclusion that fatal injuries to the deceased were caused by the appellant in a) fit of grave and sudden provocation bringing his case under Exception I to section 300, P. P. C.

15. This brings us to the question as to what should be the appropriate sentence to meet the ends of justice in this case. On the one hand, we are quite cognizant of the facts that the deceased was brutally done to death by the appellant who caused him as many as 18 injuries. On the other hand, we cannot be oblivious to the fact that the deceased was caught while engaged in an act which was revolting to all sense of decency and morality, known to the society particularly the Muslim society. He was engaged in love making with no other woman than his own step mother who being the wife of his father according to the Quranic injunction was within the prohibited degree. Therefore, the act in which the deceased was engaged at the fateful time was abomi nable in the extreme and it is no wonder that the appellant who revered Mst. Hamidan as his mother lost power of self control and in a fit and grave provocation caused the fatal injuries to the deceased. In the case of Govindappa ((1931) M W N 533) a sentence of one year's R. I. to the accused, who found his wife in actual inter course with her paramour and killed the latter, was regarded as sufficient. In the case of Fazal Dad (4 P R 1904) one year's imprisonment was awarded to the appellant who caught the deceased in the act of adultery with his married sister and struck him one blow on the head with a stick which killed him by fracturing his skull. Similarly, in the case of Hussain (A I R 1939 Lah. 278) a sentence of three months' rigorous imprisonment to an accused who killed the deceased who was found lying on the same cot with his wife but had carried on adulterous intercourse with her when he was in jail was held sufficient. Recently in State v. Akbar (P L D 1961 Lah. 24) the trial Court had sentenced respondent Akbar to imprisonment till the rising of the Court although he killed the deceased whom the respondent saw committing fornication with his unmarried sister and seeing this lost his self control and gave beating to the deceased which caused his death. In revision filed by the State for enhancement of sentence the learned Judge though did not quite approve of the trivial sentence did not enhance it.

16. In the instant case it is true that there is no evidence that the deceased was actually engaged in sexual intercourse with Mst. Hamidan when the appellant surprised them, yet considering the moral values and the standard of chastity and social behaviour precluded for Muslim society, the act in which the deceased was engaged was no less obnoxious to and in principle it should not make any difference whether the victim of the crime is actually engaged in love making preparatory to fornication or in the actual act of fornication.

17: For the aforesaid reasons, we accept the appeal and alter the conviction from one under section 302 to that of under section 304, Part I, P. P. C. and sentence the appellant to two years rigorous imprisonment. The sentence of death is not confirmed.

K. B. A.

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