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Criminal Appeal No. 365 and Murder Reference No. 91 of 1983, decided on 21st February, 1987.

‑‑‑Ss. 302 &307/34‑‑Mitigating circumstance‑‑Accused, a girl of 18 years brutally murdered a day before her marriage‑‑Presence of inured witness (mother of the deceased) not open to doubt‑‑Case admittedly proved against accused‑‑Accused previously engaged with deceased who was being married to another person‑‑Breaking of Mangni' and marriage of Mangetar' to someone else, considered outrage of one's honour in rural society, held, was likely to provoke a person and would be mitigating circumstance‑‑Death sentence reduced to life imprisonment in circumstances.‑ ‑[Sentence]

M.B. Zaman for Appellant.

Ch. Qamarrud Din Meo for the State.

Date of hearing: 21st February, 1987.

‑Appellant Muhammad Ali and his brother co -accused Mulazim Hussain sons of Jalal, caste Jhamat cultivators by occupation, resident of the area falling within the jurisdiction of Police Station Khushab were tried by the learned Sessions Judge, Khushab on a charge under section 302/34, P.P.C. for causing the murder of Mst. Alam Khatoon. They were further charged under section 307/34, P.P.C. for, causing murderous assault on Mst. Aziz Fatima.

2. Vide judgment, dated 5th June, 1983, the learned Sessions Judge, Khushab found appellant Muhammad Ali guilty on the said charges, while the co‑accused Mulazim Hussain, the brother of the appellant, was acquitted from the charge. The appellant on the charge under section 302, P.P.C. was sentenced to death, and to pay a fine of Rs.20,000 or in default to suffer rigorous imprisonment for a term of two years. On the charge under section 307, P.P.C. the appellant was sentenced to suffer rigorous imprisonment for a term of 7 years and to pay a fine of Rs.10,000 or in default to suffer further rigorous imprisonment for a term of one year.

3. Aggrieved by the aforesaid convictions, the appellant has preferred this appeal, while the case has also been referred to us under section 374. Cr.P.C. This judgment shall dispose of both the appeal as well as the Reference.

4. The unfortunate occurrence resulting into the death of Mst. Alam Khatoon took place at Sehri Vela on the night between 23rd and 24th of June, 1981 at Dera Sheran Dakhli Shekhu Wal situated at a distance of 12 miles from the Police Station, Khushab.

The occurrence was reported at the police station by Fateh Khan, complainant at 7‑30 a.m. on 24‑6‑1981. Ch. Muhammad Aslam P.W.8 S.H.O. Police Station Khushab recorded the first information report Exh. P.H.

5. Briefly, the prosecution case as folded in the F.I.R. was that the complainant Fateh Khan is father of the deceased Mst. Alam Khatoon and husband of Mst. Aziz Fatima, the inured P.W. the family lived at Dera Sheran at a distance of one and a half miles from village Shekhu Wal. Six years before the occurrence, the deceased Alam Khatoon was betrothed with Muhammad Ali, appellant. After sometime of the betrothal the engagement was broken, and the Nikah of the deceased was performed with one Wali Muhammad, but no Rukhsati took place. According to the complainant, the appellant, the acquitted co‑accused and his father bore grudge because of the break of the engagement and the Nikah of the deceased with Wali Muhammad.

The complainant father stated that 25th June, 1981 was fixed as day for the Rukhsati of the deceased Mst. Alam Khatoon and the arrangements for the ceremony had been made. Some of the guests namely Muhammad Ramzan and Shah Wali alias Shabbali (not produced) had come to the house of complainant for the arrangements. On the fateful night, Aziz Fatima (injured P.W.) her deceased daughter Alam Khatoon and the other children slept in front of their Kotha on a raised platform (Thara). Male members of the family and the male guests slept at the Behk situated at the back side of the house of the complainant. At Sehri Vela, the barking of dogs awakened the complainant and thus he accompanied by Muhammad Ramzan and Shah Wali rushed to their Dera. No sooner, they reached Dera, they heard cries of Mst. Aziz Fatima and Mst. Alam Khatoon. It was moonlit night and a lantern was also hanging in the door of the Kotha facing the scene of occurrence. The complainant and his companions saw appellant Muhammad Ali causing hatchet blows to Mst. Alam Khatoon deceased while his brother Mulazim Hussain (the acquitted co‑accused) was standing holding a hatchet. The acquitted co‑accused Mulazim Hussain raised Lalkara that if somebody dared to come near, he shall also meet the same fate. Mst. Aziz Fatima P.W. mother of the deceased physically intervened to save her daughter. In that attempt she could not succeed, but she received hatchet blows caused by the appellant on her head, arm and other parts of the body. The appellant and his associate ran away from the scene of occurrence. Mst. Alam Khatoon died at the spot, and the complainant Fateh Khan proceeded to the police station to lodge the F.I.R.

6. On 24th June, 1981 at 4‑30 p.m. Doctor Muhammad Riaz Ali (P.W. 7) performed the post‑mortem examination on the dead body of the deceased, and the following injuries were noticed:‑

(1) An incised wound 4" x 1/3" x bone deep on both sides of the head transversely.

(2) An incised wound 4" x 3/4" x bone deep on right of the neck.

(3) An incised wound 1" x 1/6" x skin deep on right eye‑brow.

(4) An incised wound 5" x 2‑1/2" x bone deep out‑right forearm at middle.

(5) An incised wound on the right hand at back (ring middle and index finger were cut at their joints and attached with piece of skin).

(6) An incised wound around the right leg bones are cut and cut portion attached with skin in front and medial side.

(7) An incised wound 1" x 1/6" x, bone deep on left foot.

In the opinion of the doctor the death had occurred due to the haemorrhage and shock which resulted from multiple injuries. Injury No. 2 was declared sufficient to cause death in the ordinary course of nature. Injuries Nos. 1 and 6 were also sufficient to cause death individually as well as collectively in the ordinary course of nature. Injuries Nos. 5 to 7 were grievous and all the injuries were opined to have been caused with a sharp‑edged weapon.

7. Mst. Aziz Fatima received 3 incised wounds, one contusion and two superficial cuts on the left upper arm and the shoulder. Injury No. 1 had been caused with blunt weapon, while the remaining injuries were caused with a sharp‑edged weapon.

8. The appellant and the acquitted co‑accused Mulazim Hussain were arrested on lst July, 1981. The appellant while in police custody led to the recovery of blood‑stained hatchet P.6, which was taken into possession, vide memo. Exh.P.F. The lantern P.7 vide memo. Exh.P.J. was also taken into possession Kurta P.8 vide memo. Exh. P.K. belonging to Mst. Aziz Fatima was also taken into possession.

During the investigations, Mulazim Hussain was found innocent and, therefore, his name was placed in column No. 2, in the report under section 173, Cr.P.C. At the trial the prosecution relied upon the ocular testimony furnished by the complainant Fateh Khan (P.W.5), and his injured wife, namely, Mst. Aziz Khatoon (P.W.6).

9. The accused when examined under section 342, Cr.P.C. denied the charge and stated that they were not present at the scene of occurrence. The appellant Muhammad Ali stated that he had been involved falsely on account of an existing dispute between him and the complainant over the sale proceeds of certain trees grown in the joint land.

10. We have carefully gone through the evidence on record. We cannot help but appreciate the laudable conduct of Mr. M.B. Zaman, Advocate who appeared on behalf of the appellant. The learned counsel for the appellant frankly conceded that the case against the appellant stands proved to the hilt. After perusal of the records, we are also of the same view because in presence of the injured mother of the deceased Mst. Alam Khatoon, a young girl of 18 years who was to be married on the next day of the occurrence was brutally murdered. The presence of injured witness and her testimony is not open to doubt.

11. Learned counsel for the appellant, however, vehemently argued that this was a case in which mitigating circumstances exist, inasmuch as, in rural society Mangni and the break thereof is resented to on account of the norms and the sanctity attached thereto. We are also conscious of the fact that the marriage of Mangetar with another person is likely to provoke a person, because it is outrightly considered as outrage of one's honour. The rural society, no doubt, treats it as grave insult. In this view of the matter, we feel that the background and the motivation for the crime, does not call for exacting the extreme penalty of death from the appellant.

Accordingly, we will dismiss this appeal with the modification that the sentence of death is set aside, and is altered into life imprisonment. On the charge under section 307 of the P.P.C. the conviction of the appellant and the sentence awarded to him is maintained. However, both the sentences would run concurrently. The sentences of fine on the charges under sections 302, P.P.C. and 307, P.P.C. are maintained.

12. With this amendment, this appeal is dismissed and the death sentence is not confirmed.

S.A./M‑171/L Death sentence reduced to life imprisonment,

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