MUHAMMAD BASHI R vs THE STATE

1. MUHAMMAD AFZAL ZULLAH, J.-This Jail appeal through special leave, is directed against the judgment dated 18-11-1978 of the Peshawar High Court ; whereby the conviction of and sentence of death and fine awarded to, the appellant under section 302, P. P. C. For the murder of Mst. Nasreen, his first cousin (paternal-) were upheld.

2. The appellant wanted to marry the deceased, whose parents gave him promise and hope in this behalf and accepted gifts from him for sometimes ; but ultimately did not keep the promise. They refused to give him the hand of Nasreen deceased on lame excuses. On the day time of occurrence, the appellant a disappointed suitor, in desperation waylaid the deceased and asked her to elope with him for marriage in revort against or reaction to, her parents volte face refusal.

3. She did not oblige him presumably because she wanted to be married in an honourable manner rather than through the ignominy of elopement. The appellant on her said refusal acted like a jolted lover and in order to satisfy his injured feelings gave her a knife blow in the abdomen, on account of which, she died subsequently. The victim suffered two more insignificant injuries on her hands and the appellant also had a similar injury on his person. It appears, they suffered them in the scuffle, which might have preceded the infliction of the fatal blow.

4. The prosecution case for conviction of the appellant was supported by two eye-witnesses, as also the dying declaration of the victim. The appellant had also admitted his guilt is a duly recorded confession ; which was, however, retracted at the trial.

5. The plea of the appellant for acquittal, on consideration of the submis--sions regarding some so- called infirmities in the aforementioned items of evidence, was repelled in the leave granting order on consideration of the evidence and merits of the case, his second plea against conviction for murder, to the effect that he be given the benefit of Exception 1 to section 300, P. P. C. (and conviction under section 304 (1), P. P. C.1, as it was a case of grave and sudden provocation, was also rejected. The provocation attribut--able to the parents of the deceased might have been grave but it was not, sudden. And even if it would have been so, the benefit of Exception I could not be extended to the appellant, as in terms it applies only if the death is caused of the person, who gave the provocation or any other person only if it is by mistake or accident. These conditions were not satisfied in this case.

6. Leave to appeal, however, was granted to consider the plea for lesser sentence on the grounds

(a) that on account of the conduct of the parents of the deceased, the appellant reacted like a dejected suitor and jolted lover when she refused to elope with him and gave her a solitary knife blow ;

(b) that refusal of the parents of the deceased, in the background of earlier promises, caused provocation which even if it was not sudden, was grave enough to give him the benefit of lesser sentence ; and

(c) that the parents of the deceased having accepted compensation from the appellant and also having pardoned him, could this be not treated as a mitigating circumstance in the light of the Muslim Jurisprudence, wherein compensation and pardon are relevant factors in deciding murder cases ?

7. No doubt there are some precedent cases wherein lesser penalty was awarded when a lover or paramour was jolted and driven to the act of murder of the fiancee herself on her refusal to respondent to his advances for illicit sexual intercourse in preference to another suitor or for other similar reason-the Lahore cases of Muhammad Siddique v. The State (1) and Muhammad Younus v. The State (2) are some of them, but in face of our view on the third ground of mitigation, namely, jurisprudential, we will not accept this by itself a mitigating circumstance. Motive and desire to pursue or to make advances, preparation or attempt regarding illicit liaison/ B affair are not approved by Islam and are not acts of justification in Muslim Jurisprudence for mitigation of sentence ;'as, they impinge upon moral, ethical, matrimonial or sexual norms in Islamic Philosophy, we, therefore, while overruling the decision in this behalf in the Lahore cases of Siddique and Younus, reject the first ground earlier noted. The further circumstance in connection with the afore discussed ground that the appellant inflicted only one fatal blow, also is of no avail to him. The singleness of the blow can be treated as one of the mitigating factors in peculiar circumstances of a case. But there is no universal rule that whenever there is only one fatal blow, the penalty for murder would be the lesser one. The seat of the injury, the weapon used, and the damage done together with the relevant knowledge, preparation, intention or premeditation are various factors which c would influence the question of mitigation on the ground of blow being solitary. In this case these factors when carefully scrutinised, go against the appellant. We, therefore, do not attach much importance to this aspect either.

8. There are decided cases where lesser sentence for murder was awarded on proof of a vital and essential condition of any of the exceptions to section 300, P. P. C. When some other similar condition remained unsatisfied ; and the culprit could not be given full benefit of the exception for the. Conversion of the offence from 302 to 304, P. P. C. Adoption of such a course, while keeping in view all other relevant factors positive or otherwise, is in accord with the principles of criminal justice. But in the circumstances of this case, as already observed, a foundational condition of Exception I (no other exception is relevant) is not satisfied. Even if it be assumed that the parents of the deceased gave provocation to the appellant which o might be grave but not sudden, tie .Appellant instead of causing any harm to them, murdered his fiancee, who admittedly was not responsible or party) to, such provocation. This ground also fails.

9. We, however, find considerable force in the last ground. Superior Courts in Pakistan have, in a large number of cases, applied Islamic teachings

(1) PLD 1958 Lah. 601'(2) PLD 1978 Lah. 82 and philosophy, when the statute law is silent about a situation, the field is unoccupied so to say, a statutory void is to be filed, or the Court ha discretion to follow one of the several courses, one of which is more in accord with Muslim Jurisprudence. A survey of some of these cases can be found in the judgment of the Lahore High Court in the case of Haji Nizam Khan v. Additional District Judge, Lyallpur and others (1) under the heading "Trend of superior Judiciary of Pakistan qua norms/Rules of Muslim Jurisprudence and Law, in situations" not otherwise specially provided for"-in paras. 40 to 52 of the report. In addition to cases noted in the said survey, this Court took similar view in the case of Mst. Hamida Begum v. Mst. Murad Begum and others (2). It was held that; " `It seems to us that it is an appropriate case where mention may be made of the directives enshrined in the Constitution of the Islamic Republic of Pakistan (1973), regarding the enforcement of Muslim Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Responsibility also devolves on the Judiciary to implement the spirit underlying these provisions of the Constitution." (The same aspect was dealt in more detail in Nizam's case under the heading "Duty of the Judiciary in Pakistan, under the Constitution, regarding `Fundamental principles and basic concepts of Islam', including the accepted Islamic judicial norms and philosophy"-in paras. 53 to 60).

10. Amongst others, there are subsequent judgment also which proceed on similar reasoning and basis. See the cases of Abdur Rahman Mobashir v. Amir All Shah Bokhari and others (3) and A. M.

11. Qureshi v. Union of Soviet Socialist Republics and another (4).

12. In so far as the application of the above rule is concerned, there is no legal impediment, but the question arises how can it benefit the appellant insofar as the question of mitigation of sentence is concerned. 1t can be answered by first making reference to the statute (namely section 302, P. P.

13. C.) whether the field in question has been left to the discretion or option of the Court or the law has specified and marked the course to be followed. If the statutory law does not )create any bar then as a second step it is to be seen whether in exercise of its discretion, the Court when, guided l, by Islamic Law and principles (philosophy and jurisprudence included), can give any benefit to the appellant in matter of sentence.

14. There are two penalties for murder, under section 302, P. P. C. Courts and commentators have laid down rules of wisdom and guidance for awarding one or the other. They are mostly drawn from Common Law of England. Western jurisprudence and sub-continental conditions. Islamic principles as such did not find any place in them as source material. Constitutional and other legal measures in Pakistan have accorded/conceded, sufficient importance/ground, to these principles in the legal field in addition to certain other fields. There is no bar to their application to the question of sentence only in this case, as it is left to the discretion of the Court, which is to be guided by Islamic Law and principles, in addition to or in supersession of considerations of other origin. Therefore, while after affirming the finding of `guilty' under section 302, P. P. C. The statute has left no choice to Court but to punish the culprit with either of the two main sentences provided therein-death or imprisonment for life, it has left it open for the Court to award any one of them, in the circumstances of each case,

(1) PLD 1976 Lah. 930 (2) PLD 1975 SC 624

(3) PLD 1978 Lah. 113(4) PLD 1981 SC 377 in accord with sound judicial principles, including those which are based on Islamic Jurisprudence and teachings.

15. That being so, the reliance in this case on the acceptance of compensation by the parents of the deceased and their having pardoned the appellant is in no way misplaced, insofar as the question of the reduction of sentence R is concerned. These factors advance the purpose of some of the Injunctions of the Holy Qur'an. They amongst others are;

(1) Al-Baqarah II, Ayat 178 and 179 ; and

(2) Al-Asara XVII, Ayat 33.

16. (Urdu Translation by Maulana Fateh Muhammad).

17. This plea has also the support of the rule in the case of Khurshid Ahmad v. The State 1976 SCMR 193 The concept of punishment, for homicide and the like offences, in Islam is relateable neither society to the Absolute Theory nor its purpose is entirely utilitarian. It is manifold wherein the main consideration is the fulfilment of God's will. This, in turn, is conducive to the improvement, reformation and preservation of good society. Regarding the citizen, while on the one hand it serves as strong deterrent for the criminal ; on the other, it acts on his soul as a measure of repentance reformation and expiration ; which when fulfilled qualify him for God's mercy. Higher social goals are also achieved. In this behalf the aggrieved individual is not considered as an outsider. He, the criminal and the society all suffer on account of crime, when the aggrieved is compensated society also acts benefited. And when the criminal earns pardon from the aggrieved, that too serves God's purpose ; wherein Devine attribute of mercy is involved, as also, piety and Taqva for the individuals. Thus looked at the society gains, the aggrieved individual is not ignored and the criminal's option for reform is not satisfied. Same would apply to the exercise involved in the offer and acceptance of compensation.

18. There has been a slight statutory change regarding the position of an aggrieved individual even in non-compoundable cases. Recent amendments in Criminal Procedure Code recognise his interest even in murder case prosecu--tion, in the matter of award of compensation (section 544-A) and the filing of appeal against acquittal (section 417), though under certain conditions. In this case the acceptance of compensation and eventual pardon by the parents of the deceased cannot give any benefit to appellant on the question of his guilt under section 302, P. P. C. And conviction thereunder ; because this offence is not compoundable, but in the matter of sentence there is no statutory bar to the exercise of discretion in accordance with principles of Islamic Law and Jurisprudence. We, therefore, while setting aside the sentences of death, award the sentence of imprisonment for life. The sentence of fine which was awarded by the trial Court and was to be paid as compensation is also remitted ; as the condition regarding compensation has otherwise been satisfied by the settlement on this question between the culprit and the aggrieved.

19. Before parting with this judgment, it needs to be noticed that under the existing statutory and other legal considerations relateable to the power o f review by this Court, it would not be possible for it to reduce the sentence in exercise of the review power even on the grounds which prevailed in this case. Thus the case of Karam Khan v. The State 1981SCMR1072wherein the Court declined to review its earlier order, is distinguishable on this basis. The parties in that type of cases, as indicated therein, might pursue other remedies. In this connection, it is also necessary to emphasise that for the smooth working of the judicial system during the period of transition, it will be more beneficial to all concerned that the plea as is involved in this case, should be taken at the proper lower stage ; because it cannot be accepted without due regard to and consideration of all the relevant facts and circum--stances-including the genuineness of the settlement between the parties, adequacy of compensation and freedom from coercion of all sorts. Although in this case we have been able to satisfy ourselves regarding these aspects --the compensation consists of "the lands, house and all movables" of the appellant and/or his mother who are closely related to the aggrieved party ; it might not be possible for us to do so in disputed cases. It is also clarified that all the aspects of the question involved except the one relevant in this case, have not been exhaustively dealt with. They cover a very vast field ; which might also involve examination of the considerations relevant to infliction of Hadd or in place therefore of when permitted the Tazir ; and in the latter, the considerations which determine the exercise of discretion on the severity of punishment (as Tazir).

20. They will have to be studied more carefully and in depth in due course of time by the Courts, as and when variety of cases particularly those of the present age, come before them.

21. With the foregoing observations, this appeal is partly allowed on the question of sentence only.

22. Short order was passed earlier. This judgment furnishes the reasons.