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Criminal Revision No. 145 of 1985, decided on Ist January, 1986.

‑‑‑Ss. 148 & 302/149‑‑Sentence, whether adequate‑‑Grave and sudden provocation‑‑ Occurrence in house of accused‑‑Accused suspecting illicit relations between the two deceased‑‑Paramour and girl both killed by accused when seen in compromising position‑‑Girl being daughter of one of accused‑‑No blood‑stained earth collected from street where deceased allegedly was first injured‑‑Blood‑stained earth collected from inside house of accused where dead bodies were found lying by Police‑ Sentence awarded by Trial Court, not found illegal‑‑Legality of sentence not challenged by complainant‑‑High Court, held, would seldom interfere in legal sentence awarded by Trial Court even if considered lenient‑ Sentence of 5 years' R.I. under S. 304, Part I, P.P.C. considered adequate and legal in circumstances.

Muhammad Saleh v. The State P L D 1965 SC 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.

M.B. Zaman for Petitioner.

K. H. Khurshid for Respondent

Ehsan Ahmed Sheikh for the State.

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 at about 7 a.m. he was proceeding to a Hamam for bath. On his why he saw Safdar Ali deceased emerging out of his house for going to bus‑stand. When they reached near the house of Amir All accused, they saw Amir Ali armed with hatchet, Ramzan alias Kalu armed with carbine, Ashraf armed with Sota and Hyder armed Datar 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. , Mst. Bashiran P. W. , Hanif P. W., Master Inayat 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. Bashirgn Bibi accused wife of Amir Ali accused was present in the courtyard. She was asked by her husband to bring Mst. 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 ox Safdar. She was held by the accused from her arms and legs. Amir Alil 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 Mst. 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 Mst. 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 Mst. 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 Mat. Bashiran 45 were challaned and tried for the murder of Sardar Ali and Mst. Zahida. The learned Sessions Judge, Sheikhupura, vide the impugned judgment, dated 18‑11‑1984 convicted Ramzan, Amir Ali and Hyder Ali accused under section 304 (I), P.P. C. and sentenced each of them to 5 years' R.I. and tine of Rs.4,000 or in default one year's R.I. 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 Cr. 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 fox retrial according to law. In Cr. Revision 145 of 1985 it was prayed that the sentence awarded to the three convicts under section 3040), P.P.C. be enhanced. Both these revisions came up for hearing in motion on 19‑2‑1986. Crl. Revision 204 of 1985 seeking retrial of the case was dismissed in limine. Crl. Revision 145 of 1985 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 Muhammad Saleh v. The State P L D 1965 S C 366 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 (I), P.P.C. Their Lordships considered a sentence of 10 years' R.I. sufficient to meet the case. It will be observed that toe 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(1), P.P.C. The sentence of 10 years was awarded keeping in view the fact and circumstances of that case. In the 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. The complainant went upto Supreme Court to challenge the acquittal of the accused from the charge under section 302/34, P.P.C. The petition 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 1, 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 1984 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 on 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 of 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 from 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 members of a family to control the actions of their womenfolk particularly in the field of sexual relations is fully recognised 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 tram Court. The learned counsel for the petitioner has no objection to the legality of the sentence awarded to the 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 it is from some angle considered lenient. The sentence awarded to three accused being legal and adequate in the facts and circumstances of this case I find no merit in this petition which is accordingly dismissed.

S. A./M‑48/L Petition dismissed.

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