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Criminal Appeal No. 74 of 1956, decided on 14th January 1958, against the order of Qaisar Khan, Sessions Judge. Derajat dated 26th January 1956.

‑Measure of‑Considerations to be kept in view.

In deciding the measure of punishment, the Court ought to take into consideration the nature of the offence, the circumstances in which it was committed, the degree of the offence, the degree of the deliberation' shown by the offender and lastly his age, antecedents and character.

In the case of an accused, a young man with a clean past, who had killed a man found misbehaving with his step mother in his own house, a sentence of 7 years' rigorous imprisonment under section 304 (1), P. P. C. was a bit too much and the High Court reduced the same to imprisonment already undergone.

S. 165‑Duty of Judge to put, questions to clear doubts arising out of statements of witnesses.

Abdur Rahim for Appellants.

Muhammad Ali, Additional Advocate‑General for Respon dent.

Date of hearing : 14th January 1958.

‑In this case Hakim Khan, aged about 28 years, son of Qurban of Lakki Mina Khel is alleged to have killed Gul Muhammad, aged about 26 years, the paramour of his step‑mother Mst. Nek Bibi aged about 30 years (P. W. 8), by causing, on different parts of his body, 11 stab wounds and 2 small abrasions, with a dagger, on the morning of 13th of August 1955. According to the doctor these stab wounds had injured the chest walls, right and left pleuras, right and left lungs, bronchi on the right side and pericardium. After killing the deceased, Hakim Khan himself went to Police Post Lakki and lodged a report at 8‑30 a.m., wherein he stated that he had brought some maize from his land beyond river Gumbeela, which he sold in Bazar Mina Khel and then returned to his house to find his step‑mother Mg. Nek Bibi committing sexual intercourse with the deceased. He attacked the deceased with a dagger which he had in his hands, whereupon the deceased ran outside in the courtyard, where he caught hold of him and stabbed him to death. His step‑mother, in the meanwhile, ran out of the house. The Lakki Post arrested the accused. He was later on produced before Mr. Amir Muhammad Khan (P. W. 2), who recorded his confession wherein he stated exactly the same story as he had done in the first information report except that he modified it to this extent that he only saw his step‑mother and the deceased embracing each other, but not actually committing adultery. He also said that his wife was present in the house, although earlier in the report he had said that, apart from the two erring persons, there was nobody else present there. Eventually the accused was challaned and in due course committed to the Court of Session, where he stuck to his confession and repeated the same story. Out of the four assessors, who sat at the trial, two were of the opinion that the accused was not guilty of the offence of murder, one said that he was guilty of it and the fourth opined that he was only guilty of culpable homicide not amounting to murder. The learned Sessions Judge, Derajat, agreed with the fourth assessor, found the accused guilty under section 304, Part I of the P. P. C. and sentenced him to undergo rigorous imprisonment for a period of seven years. The accused was also convicted under section 19, Arms Act, to which he pleaded guilty and was sentenced to six months' R. I. Both the sentences were ordered ro run concurrently.

The accused has come up on appeal to this Court. Ghulam Muhammad son of Yar Muhammad has put in a revision petition with the prayer that the sentence awarded to the accused be enhanced to the maximum punishment provided by law. This order will dispose of both the appeal and the revision petition.

So far as the actual killing of the deceased is concerned, it is admitted by the accused appellant that he did it. The facts of the case are therefore only necessary for this Court to consider so far as they may affect the measure of punishment. In deciding the measure of punishment, the Court ought to take into consideration the nature of the offence, the circumstances in which it was committed, the degree of the offence, the degree of the deliberation, a shown by the offender and lastly the age, antecedents and character. The accused is a young man with a clean past, There can also be no dispute with regard to the nature of the offence which certainly is culpable homicide not amounting to murder.

The learned Additional Advocate‑General put forward a theory that the accused was entitled to a complete right of self‑defence, because, according to him, the deceased was attempting to forcibly rape Mst. Nek Bibi. This argument is based on the statement of Mst. Nek Bibi (P. W. 8) herself, who stated that she had gone out to fetch water and when she returned, she found the deceased present there. she told him to go away and while she was altercating with the deceased, the accused arrived and started grappling with the deceased. In the course of the grappling, the accused drew out a dagger and stabbed the deceased. This statement does not show that the deceased was either committing rape with Mst. Nek Bibi, or attempting to do so. The rape theory, therefore, must be rejected as fantastic.

Before I proceed further. it will be necessary to examine the evidence of Mst. Halima Bibi (P. W. 7), the wife of the accused. Her statement was that on the day of occurrence at about morning meal time Mst. Nek Bibi went to Bazar and brought some meat from there. Shortly after wards, Gul Muhammad deceased, who incidentally is a butcher, also arrived and sat on a cot in the courtyard of the house and demanded the huqqa. Mst. Nek Bibi gave him the huqqa. Shortly afterwards, the deceased and Mst. Nek Bibi entered the kotha of her father‑in‑law and there committed adultery. While they were doing so, the accused arrived, went inside the kotha and started stabbing the deceased.

The material which has been placed upon the record clearly goes to show that Mst. Halima Bibi (P. W. 7) was not present in the house at the time when Gul Muhammad arrived there and to this extent the statement of the accused made in the first information report corroborates this fact. It appears that Mst. Nek Bibi (P. W: 8) went to Bazar in order to purchase the meat probably from the deceased when the inmates of the house, namely, her husband, his two sons and Mst. Halima Bibi were absent from it. She invited the deceased with‑whom she was incontinent and it was at this invitation that the deceased followed her.

The question arises whether he committed adultery with her‑at this occasion or not The learned Sessions Judge has arrived at the conclusion on the strength of the statements of the accused himself made in his confession and in Court, that no adultery was committed. There are, however, indications in the case which point out to the adultery, Mst. Nek Bibi was examined by Miss Benjemin (P. W. 1) who took her vaginal smear and sent it to the Chemical Examiner. Semen was found in the smear. The learned Sessions judge did not connect this semen with the woman having committed adultery that day, but said that it could have been that of her husband, who might have had an intercourse with her any day within fourteen days, prior to the examination, because according to the Lady Doctor, semen in the vagina could remain for fourteen days after the sexual intercourse with a man. So far as the deceased is concerned, there was a drop of seminal fluid which was collected at the tip of his male organ. His trousers which were sent for the examination of the Chemical Examiner were also found stained with semen. The learned Sessions judge explaining the semen away stated that this may have been quite natural, because, according to the statement of the doctor in violent deaths, it is not uncommon that the victim should get a discharge before death.

It is really unfortunate that when Mst. Nek Bibi appeared into the witness‑box, she was not questioned by the Sessions judge, as to whether she had had marital relations with her husband within fourteen days of her examination by the Lady Doctor. That would have cleared the matter considerably. The trial Courts, when they record the evidence should, in my opinion, apply their mind to the case a little carefully and try to clear away the doubts created by different pieces of evidence. At the time when Mst. Nek Bibi was examined by the learned Sessions judge, he had already before him the statement of the Lady Doctor, which was recorded by the learned Committing Magistrate and transferred to the Sessions file. It should have at once occurred 13 to him to ask Mst. Nek Bibi to explain away the presence of semen in her vagina. Not having done so, in my humble view, he should not have strained himself in order to seek an explanation in favour of prosecution and against the accused which is indeed against all canon of criminal juris prudence. It certainly strikes not a little remarkable that both the persons alleged to have committed the adultery should be found to have semen, one in the vagina and the other on the tip of his male organ. Taken alone both these facts may not mean much, but if considered in conjunction with the circumstances mentioned below they speak a lot more than mere love making.

As has already been stated the deceased, was a young man of about 26 years of age and Mst. Nek Bibi, according to her own was about 30 years of age, and according to the Lady Doctor 35 years of age, married to an old man. The deceased had come to the house in all probability as invited by the woman herself. I find it a bit difficult to believe that the couple sat close to each other, snugged together, embraced each other and yet their animal‑self was not excited and they did not satisfy their lust even though ground was clear for them and the time and oppor tunity were in their favour. It is true that it was day time, but then if there is an opportunity, the two young people hungry of each other's company would commit adultery at any time available to them. I cannot believe that the deceased either if he came himself or was invited by the woman, just came to embrace and cuddle.

But in view of the statements of the accused made in his confession and trial Court, I am quite prepared to believe that the accused did not actually see the couple flagrante delicto. It was a case of fait accompli and the miscreants were only busy in parting embraces when the accused surprised them. He is a young man and I can quite believe that finding his step‑mother in the embraces of the supplanter and that too in his own house he for a moment became a ravina mediac. That is exactly what I would expect of any Pakistan. young man, even if he may otherwise be exceedingly gentle. It will be unnatural to expect him to retain the coolness of mind. In these circumstances, it will be unjust and idle to apply to his conduct the ordinary standard of law. lie struck viciously, because he was furious and extremely indignant to find Gul Muhammad misbehaving with his step‑mother in his own house.

It is suggested that the accused acted rather cruely in causing upon the deceased 11 stab wounds, but in the moments which jump up, it cannot possibly be expected of the man whose honour has been violated to stop for one instant in order to think, because if he did so then in ninety‑nine out of hundred cases he will not commit the murder at all, or he himself be hit. The violent actions of the moment of assault, the overwhelming emotions accompa nying the actions are too much for the mind to assimilate. It is all moments and no reflection like a torrent rushing headlong over a rocky steep. In my view, the action of the accused was perfectly normal and legitimate, which in this part of the country at least justifies his act. All that happened was a matter of sordid incident rather than murder. The accused had no chance or opportunity to form a murderous intention. In such circumstances, therefore, I am firmly of the opinion that seven years' R. I. is a bit too much. I consequently while maintaining the conviction of the accused under section 304, Part I of the P. P. C. reduce the sentence to the one already undergone. Six months' R. I. awarded under the Arms Act has already run out. The result would be that the accused will be released forthwith. Revision automatically fails.

Z. A. S. / A. H. Sentence reduced.

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