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Criminal Appeal No. 661 of 1967, decided on 13th June 1968.
S. 304, Part I‑Grave and sudden provocation‑Accused seeing his mother sifting with her paramour on same cot killing her on the spot under grave and sudden provocation‑‑Factors to he considered in awarding sentence in such a case.
The sentence in such a matter ranges froth a ridiculously short sentence of still the rising of the Court to a sentence on the higher side that of seven years' R. I. The circumstances in each case differ. Therefore, no hard and fast rule can be laid down in the matter of sentence in a case where the plea is of grave and sudden provocation. The caste and tribe, the background of the family, the area to which the family belongs, the latent cause of the killing, the immediate cause giving grave and sudden provocation, the weapon used, the number and nature of injuries caused, the age of the accused, the relationship of the accused with the woman, the general circumstances appearing at the time of occurrence including also whether it is a day light or night time occurrence, and the pica of the accused apt the trial, tire some of the factors to be considered for awarding sentence in a case like the present one.
Muhammad Zaman v. Emperor A I R 1933 Lah. 165; Muhammad v. Emperor A I R 1939 Lah. 471; The State v. Akbar P L D 1961 Lah. 24 and Mewa v. The State P L D 1958 Lah. 468 cited.
M. B. Zaman for Appellant.
Sh. Zia‑ud‑Din for A.G. for the State.
Hanif, aged about 22 years, has been convicted of an offence under section 304, Part I, P. P. C. and sentenced to five years' R. I. and a fine of Rs. 500 in default whereof a further rigorous imprisonment of five months, for killing his mother Mst. Sabban who was about 40/45 years of age, by the learned Additional Sessions Judge, Sahiwal, vide his order, dated 17th of August 1967. This is appeal of Hanif which was admitted to hearing on 9th February 1968, only on the question of sentence.
2. The prosecution case is that Mst. Sabban, the deceased, was married to Warryam who is the father of the appellant. She eloped with one Muhammad Hussain and thereafter married him about six years before the present occurrence. About a year before this occurrence, the deceased started showing faithlessness towards Muhammad Hussain also and eloped with one Amin Dhudhi. After living with the new paramour, she was again brought back to the house of Muhammad Hussain about six days before she was killed. On 2nd January 1967, at about d1gerwela, the appellant killed her with a kassi in the courtyard of said Muhammad Hussain, the husband of the deceased. The occur rence was witnessed by P. W. 8 Bashir Ahmad, P. W. 9 Alia and P. W. 10 Ismail. Muhammad Hussain, who was at his shop, was informed about the occurrence and he reported the matter to the police.
3. The learned Additional Sessions Judge has held that the appellant killed his mother when she was seen by him sitting on the same cot with Amin Dhudhi with whom she had eloped earlier. This gave grave and sudden provocation to the appellant who lost his control, picked up a Kassi belonging to Muhammad Hussain from the courtyard, and wanted to kill Amin Dhudhi; but the latter escaped. In these circumstances, under the same grave and sudden provocation, he killed his mother. These findings of the learned Additional Sessions Judge are based on the statements of the above‑mentioned eye‑witnesses and the circumstances surrounding this occurrence. It may be mentioned here that the appellant did not take the plea of grave and sudden provocation. However, the learned Additional Sessions Judge held that the evidence produced by the prosecution made out a case of killing as a result of grave and sudden provocation. Therefore, even if the appellant did not plead this defence, he was entitled to it. No fault can be found with the above findings of the learned Additional Sessions Judge on the basis of either law or facts,
4. The only question raised by the learned counsel for the appellant in this appeal is that of sentence. He has cited the following cases in support of his contention that the sentence of five years' R. I. and Rs. 500 as fine is severe and requires substantial reduction:
(1) Muhammad Zaman v. Emperor A I R 1933 Lah. 165.
(2) Muhammad v. Emperor A I R 1939 Lah. 471.
(3) Aziz‑ur‑Rehman v. Crown P L D 1950 Pesh. 76.
(4) The State v. Akbar P L D 1961 Lah. 24.
5. Sh. Zia‑ud‑Din, Advocate appearing for the State supported the view that the sentence awarded to the appellant is the proper sentence and has supported his contention by reference to the following cases:‑
(1) Mewa v. The State P L D 1958 Lah. 468.
(2) Fateh Muhammad alias Fathu v. The State P L D 1967 Lah. 579.
(3) Ahmad Din alias Ahmi v. The State P L D 1967 Lah. 649.
6. There are some other decisions also on the question of sentence in such a case, which have not been cited from either of the sides. However, I have noticed that in the decided cases, the sentence in such a matter ranges from a ridiculously short sentence of 'till the rising of the Court' to a sentence on the higher side that of seven years' R. I. The circumstances in each case differ. Therefore, no hard and fast rule can be laid down in the matter of sentence in a case where the plea is of grave an sudden provocation. The caste and tribe, the background of the family, the area to which the family belongs, the latent cause o the killing, the immediate cause giving grave and sudden provoca tion, the weapon used, the number and nature of injuries caused, the age of the accused, the relationship of the accused with the woman, the general circumstances appearing at the time o occurrence including also whether it is a day light or night time occurrence, and the plea of the accused at the trial, ate some o the factors to be considered for awarding sentence in a case like the present one.
7. In this case the following injuries were caused by the appellant to the deceased:‑
(1) An incised wound 3 " x '' x " over the junction between head and neck starting from right lateral part of occipital region, directed obliquely downwards and medially to the level of right angle of lower jaw " from that angle.
(2) An incised wound 6 " x 1" x brain deep, underneath the bone was cut, on the right side of head and face, directed oblique from above downwards and medially, extending from the parietal region of the head to the zygomatic region of the face, cutting the right external ear through and through.
(3) An incised wound 11 " x " x. brain deep, shaped, underneath the bone and membrane were cut, brain matter was coming out, extending from the centre of posterior surface of the head of the anterior part of head, across the vertex, approaching the right frontal region of head.
(4) An incised wound " x " scalp deep, directed obliquely from left to right, parallel to middle of injury No. 3 on the right side of the head.
(5) Lacerated wound, shaped like three quarters of a circle, 4'' x 3/8 x bone deep, underneath the bone was fractured, on the top of the vertex, more on the right side.
(6) Incised wound 2 " x " x bone deep directed at right angle, 1" from injury No. 2.
(7) Contused wound 4 " x " x bone deep dome shaped on the lateral aspect of right middle upper arm.
(8) Incised wound 1" x " x bone deep, underneath bone was cut, on the top of right shoulder.
(9) Incised scratch 3" on the lateral aspect of right shoulder, oblique directed from the below upwards.
(10) Incised mound 1" x " covering dorsal lateral and anterior surface of medial border of middle of right hand.
The number, nature and seat of the injuries show that they were inflicted not only under grave and sudden provocation, but also in rage which, undoubtedly, shows that the provocation was uncontrollable. Nobody, in control of his mental process and faculties would cause so many injuries inn such a cruel manner to his own mother. The background, admittedly, was such that the emotions and sentiments of the appellant must have been heightened even prior to the occurrence. The appellant saw his mother marry the second man i.e. Muhammad Hussain. She did not prove faithful even to Muhammad Hussain and eloped with the third man Amin Dhudhi. She had come back to the house of Muhammad Hussain only about six days before the occurrence, presumably under an arrangement that she would, in future, be faithful to her second husband. But the appellant found at the time of the occurrence that she had flouted even this arrangement and was openly, in day‑light time, sitting on the same cot in the courtyard of her own husband; of course, taking benefit of the fact that her husband was away, working on the shop. This circumstance and the fact that the appellant picked up a kassi from the courtyard of Muhammad Hussain and killed the deceased there and then declaring to the witnesses that he bad done it due to gharit, could very well lead to the conclusion that the sentence should be on the lenient side.
8. On the other hand, it is an admitted fact that the deceased and her paramour were not caught in the act of either embrace or any other objectionable position. Nor there is any evidence that their clothes were in any unusual or unnatural condition. Another circumstance which would go against the appellant is that he was the only person who could disclose the real state of his mind at the time that he saw the deceased and her paramour sitting together on one cot. His insistence not to raise the plea of grave and sudden provocation either at enquiry stage or at the trial stage, has deprived the Court of very relevant circumstance, i.e. what exactly did he feel when he killed his mother. He could explain as to what did he think about his mother sitting with her paramour on the same cot. He could also have explained the position in which they were sitting, if it was an unusual position. Therefore, the Court is not in a position to find cut the real depth of resentment which the appel lant, in fact, experienced because he has not opened his mind.
9. In view of the above circumstances which I have analysed as going in favour of the appellant, I feel that the sentence of five years' R. I. is on the higher side and needs reduction. But at the same time the two facts which go against the appellant, and which have been mentioned by me in para g above, require that the leniency should not be too much on the side of the appellant. Therefore, I reduce the sentence of imprisonment from five years' R. I. to three years' R. I. About fine my impression is that if the sentence of fine is retained, the burden of this fine will not be on the appellant, who is in jail and has been an undertrial in a murder case for some time. And if it has to be paid by some body else, it will not be, in reality, a punishment awarded to the appellant. Therefore, I feel that no sentence of fine should be imposed. Thus this appeal succeeds partially, in that the sentence is reduced to three years' R. I. The sentence of fine, as explained, above is set aside.
Appeal panty accepted.
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