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Criminal Revision No. 145 of 1985, heard on Ist Ocrtober,1986.
‑‑‑S. 304, Part I‑‑Grave and sudden provocation‑‑Sentence, quantum of‑‑Sentence in such cases to be awarded keeping in view facts and circumstances of each case.‑‑[Sentence].
Muhammad Saleh v. The State P L D 1965 S C 366; Muhammad Essa v. The State and 3 others 1980 S C M R 848 and Muhammad Sharif v. The State 1985 S C M R 1984 ref.
------S. 304, Part I‑‑Grave and sudden provocation ‑Sentence‑ Accused killing his daughter and her paramour finding them in compromising position‑‑Lying of two dead bodies inside house of accused a strong circumstance to support accused's version‑‑Right of male members of family to control their women‑folk particularly in field of sexual intercourse fully recognized and forcefully maintained in Islamic society‑‑Sentence of four years' R.I. and fine of Rs.4,000, held, was adequate and fully met ends of justice.‑‑[Sentence].
‑‑‑S. 304, Part I‑‑Sentence, enhancement of‑‑Awarding of sentence, a discretionary matter with Trial Court‑‑Petitioner not objecting to legality of sentence awarded but contending that same was meagre‑‑High Court, held, would seldom interfere in legal sentences awarded by Trial Court even if it was from some angle considered lenient‑‑Sentence awarded being legal and adequate in facts and circumstances of case, petition for enhancement of sentence dismissed.‑‑[Sentence].
M.B. Zaman for Petitioner.
K.H. Khurshid for Respondents Nos. 1 to 3.
Ehsan Ahmad Sheikh for the State.
Date of hearing: 1st October, 1986.
Facts necessary for decision of this revision are as follows:‑
Muhammad Younas P.W.6 on 26‑11‑1982 at 7‑55 a.m. reported at Police Station Sadar, Sheikhupura that on the same day et about 7 a.m. he was proceeding to a Hamam for bath. On his way he saw Safdar Ali deceased emerging out of his house for going to bus stand. When they reached near the house of Amir Ali accused, they saw Amir Ali armed with hatchet. Ramzan alias Kalu armed with carbine. Asharf armed with Sota and Hyder armed with Dattar present in front of their house. Amir Ali shouted a Lalkara that Safdar should not be spared. Ramzan accused fired which hit the left arm of Safdar. Then all the four accused pounced upon him and caught Safdar from his legs and arms. They took him inside their house. In the meantime Safdar Dhudhi, P.W. Mat. Bashiran P.W. Manif P.W. Master Innyat P.W. and Muhammad Hayat P.W. appeared at the place of occurrence. They all entreated the accused to spare Safdar Ali but they were threatened not to come near. However, Mst. Bashiran Bibi mother of Safdar deceased managed to enter the house. Younas P.W. also tried to intervene physically but was fired at by Ramzan. He was not hit. Mst. Bashiran was turned out of the house. In the courtyard Riasat, Bashir Ahmad armed with Sotas and Amjad armed with Datar were also present. After taking Safdar deceased inside their house, Ramzan accused fired at his back. Safdar fell down. Amir Ali gave a hatchet blow on the chin of Safdar Ali who was given more blows by Ashraf, Amjad Riasat and Bashir Ahmad accused. They all held Safdar Ali whereafter Hyder accused slaughtered him with his Datar.
It is further alleged that Mst. Bashiran Bibi accused wife of Amir Ali accused was present in the courtyard. She was asked by her husband to bring Mat. Zahida who at that time was not there Bashiran accused brought her daughter Mst. Zahida and handed her over to her husband Amir accused. Mst. Zahida was taken near the dead body of Safdar. She was held by the accused from her arms and legs. Amir Ali accused secured Datar from Amjad accused and slaughtered his daughter Zahida.
The motive was stated to be that the accused suspected Mst. Zahida of having illicit relations with Safdar deceased.
2. The police registered the case regarding the occurrence which ‑took place at 7 a.m. on 26‑11‑1982 in village Jandiala Sher Khan about 9 miles from the Police Station vide first information report Exh.P.V. and undertook investigation. The police recovered crime weapon from the accused. The three respondents Ramzan, Amir Ali, Hyder Ali admitted the recoveries of crime weapons and incriminating articles at their instance. The remaining accused denied recoveries from them. The prosecution during the trial examined 9 witnesses in all. P.W.6 Muhammad Younas, P.W. 7 Mat. Bashiran and P.W.8 Safdar Ali son of Ghulam Muhammad furnished eye‑witness account of the occurrence. P.W. 3 Ghulam Muhammad witnessed recoveries of incriminating articles from the accused, P.W.1 Dr. Muhammad Rafique conducted post‑mortem examination on the dead bodies of Safdar Ali aged 25/26 years and Mat. Zahida aged 19/20 years on 27‑11‑1982. S.I. Mehr Khan who had investigated the case died before commencement of the trial. Muhammad Hanif S.H.O. appeared and identified his signatures and handwriting on various documents adduced in evidence by the prosecution during trial. The evidence of rest of the witnesses was of formal nature.
Muhammad Ramzan accused in his statement after close of prosecution evidence, stated that they suspected Mat. Zahida deceased of illicit relations with Safdar Ali deceased. He further stated that "in the early hours of the morning of the day of occurrence we surprised Mst. Zahida and Safdar Ali in a room of her house outside the main building in compromising position and we killed both of them under grave and sudden provocation". It was stated by him that the prosecution story was false. The remaining accused adopted his statement. They did not produce any evidence in defence.
3. In all 8 accused namely Ramzan 26, Ashraf 18, Amir Ali 50, Hyder 23, Amjad 21, Riasat 22, Bashir 30, and flat. Bashiran 45 were challaned and tried for the murder of Safdar Ali and Mst. Zahida. The learned Sessions Judge Sheikhupura, vide the impugned judgment dated 18‑11‑1984 convicted Ramzan; Amir Alt and Hyder Ali accused under section 304 (1), P.P.C. and sentenced each of them to 5 years' R.I. and fine of Rs.4,000 or in default one year's RI. each. It was ordered that two‑third of the amount if recovered shall be paid to the legal heirs of Safdar Ali deceased.
The remaining five accused were, however, acquitted by the same judgment.
The three convicts Ramzan, Amir Ali and Hyder Ali did not file any appeal to challenge their conviction and sentence.
Muhammad Younas complainant filed two revisions against the impugned judgment. In Criminal Revision 204 of 1985, it was prayed that the conviction of accused from the. charge under section 302/148/149, P.P.C. be set aside and the case be remanded for retrial according to law. In Criminal Revision 145 of 1985 it was prayed that the sentence awarded to the three convicts under section 304(1), P.P.C. be enhanced. Both these revisions came up for hearing in motion on 19‑2‑1986. Criminal Revision 204 of 1985 seeking retrial of the case was dismissed in limine. Criminal Revision 145 of 19.85 was admitted to consider the quantum of sentence awarded to the three accused under section 304 (I), P.P.C.
4. In support of this petition the learned counsel for the petitioner relying on P L D 1965 SC 366 Muhammad. Saleh v. The State contended that the sentence of 5 years' R.I. was inadequate and should be enhanced to 10 years' R.I. No other point was urged in support of this petition.
The learned counsel for respondents 1 to 3 controverted the contention on behalf of the petitioner and supported the impugned judgment.
The learned counsel for the State supported this petition.
5. I have considered the respective contentions on behalf of the parties. In the case of Muhammad Saleh it was held by their Lordships that upon the admissible evidence in this case, there is no ground for thinking that the appellant expected to find his sister in an act of intimacy with a stranger. He must be allowed, on the evidence, the benefit of a shock, on making the discovery, such as is fully recognised in law as furnishing grave and sudden provocation within the meaning of Exception I to section 300, P.P.C, sufficient to cause loss of self- control". Accordingly the conviction of Muhammad Saleh was altered to section 304 (1), P.P.C. Their Lordships considered a sentence of 10 years' R.I. sufficient to meet the case it will be observed that the case of Muhammad Saleh was not case of enhancement of sentence of Muhammad Saleh who was convicted under section 302, P.P.C. for the murder of his sister and her paramour. On the evidence on record it was found that no case under section 302, P.P.C. was made out against him and he was convicted only under section 304 (I), P.P.C. The sentence of 10 years was awarded keeping in view the fact and circumstances of that case. In this judgment imposition of sentence of ten years in a case of grave and sudden provocation has not been made an absolute Rule. Each case has to be considered on its own merits.
In the case cited as Muhammad Essa v. The State and 3 others 1980 S C M R 848 the accused were sentenced to death and other imprisonments by Sessions Judge Badin for the murder of Mst. Jamila and Mst. Sabhai. In appeal the High Court altered their conviction from section 302/ 34, P.P.C. to section 304 (I), P.P.C. and sentenced the accused to five years' R.I. The complainant went up to Supreme Court to challenge the acquittal of the accused from the charge under section 302/34, P.P.C. The petition was dismissed. It was observed by their Lordships that we agree with the view of the learned Judges that the case against the second respondent fell under 1st Exception to section 300, P.P.C. Therefore, we see no error of law in. the view taken by the High Court. That this respondent was guilty not under section 302, P.P.C. but only under section 304, Part I, P.P.C." It will be observed that there is nothing in this judgment to disapprove the imposition of sentence of five years in case of grave and sudden provocation.
In another case Muhammad Sharif v, The State 1985 S C M R 1684 the accused was convicted under section 302/34, P.P.C. by learned Sessions Judge, Gujrat, for which he was sentenced to imprisonment for life. The conviction and sentence was maintained by the High Court. It was held by the learned Judges of the Supreme Court "since the evidence produced by the prosecution itself sufficiently sustains the defence plea now advanced that it was or, account of, a sudden and grave provocation that the appellant had caused the death of the deceased, we cannot withhold the benefit of doubt regarding this plea to him. On this view of the case we reduce his conviction from section 302/34, P.P.C. to one under section 304, P.P.C. and since he has already undergone jail custody for more than 7 years, which we feel should meet the ends of justice, we reduce the sentence of life imprisonment imposed upon him to the one already undergone by him".
A perusal of the above and various other judgments would clearly indicate that sentence in such like cases is awarded keeping in view the facts and circumstances of each case.
6. In the present case no blood‑stained earth was collected from the street/road where Safdar Ali deceased allegedly received the first shot from Ramzan accused. No blood-stained earth was collected from the place in between the alleged first occurrence and the second occurrence. The Investigating Officer collected blood‑stained earth only' frog the places where the two dead bodies were allegedly found lying by him during investigation. The two dead bodies were lying inside the house of the accused. This is a strong circumstance to support the defence version. In the present Islamic Society in this country "the right of the male member of a family to control the actions of their women‑folk particularly in the field of sexual relations is fully recognized and. is forcefully maintained". In this situation I am of the considered view that the sentence of imprisonment and fine awarded to the three respondents by the trial Court was adequate and fully met the ends of justice.
It may here be added that the sentence awarded to the three convicts was not illegal. It was a discretionary matter with the trial Court. The learned counsel for the petitioner had no objection to the legality of the sentence awarded to respondents 1 to 3. His only contention was that the sentence was meagre. This Court seldom interferes in the legal sentence awarded by the trial Court even if is from some angle considered lenient. The sentence awarded to the, three accused being legal end adequate in the facts and circumstances of this case I find no merit in this petition which is accordingly dismissed.
M.A.K. Petition dismissed.
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