ABDUL HAQUE Versus THE STATE Muhammad Zafar , Syed Ayaz Zahoor

1. IFTIKHAR MUHAMMAD CHAUDHRY, J .--By this common judgment, we have proposed to dispose of Criminal Appeal No. (11/93 which has been filed by accused Abdul Haq, challenging his conviction and Criminal Revisions Nos.73 and 79 of 1993, filed by complainant Abdul Haii soil of Mqhammad Siddique and the State respectively praying for enhancemclit of sentence awarded to appellant, by the Additional Sessions Judge-II, Quetta, vide order dated 18-9-1993. .

2. According to, the prosecution story, as has been unfolded in FIR, on loth February, 1993, at about 12-25 p.m. complainant lodged report at Civil Lines Police Station vide FIR No. 18/93 his brother Muhammad Shafique was brought in police custody to produce him before the Court of Additional Sessions Judge-111, Quetta where he was facing the charge of criminal case relating to the murder of one Abdul Hayee father of appellant Abdul Haq. As soon as the case was called, complainant went to inform his Advocate and in the meanwhile heard fire reports on Which he returned back towards the Court room and while entering inside saw that police had caught hold of accused Abdul Haq and acquitted accused Abdul Haleem, who had pistols in their hands whereas his brother Muhammad Shafique was lying on the ground in an injured condition and had received bullet injuries. He alongwith police officials evacuated the injured Muhammad Shafique to hospital who succumbed to injuries on way to hospital. The appellant Abdul Haq and acquitted accused Abdul Haleem were arrested and or, conducting relevant investigation were sent up to answer the charge of murder of Muhammad Shafique in the Court of Additional Sessions Judge-111, Quetta.

3. Trial Court framed the charge and read over to the accused on 11-4-1993, under section 302, P.P.C. to which they replied as follows:--

(1) Abdul Haq son of Abdul Hayee:

4. Ans. I plead guilty to the charge-but this offence was committed by me on sudden provocation as the deceased threatened me that he would fuck my wife and whole tribe, if he is acquitted.

(2) Abdul Haleem son of Adam Khan:

5. And. I do not plead guilty to the charge and claim trial

6. It may be noted that according to the statement made by learned counsel appearing for accused and complainant on the fateful day the Additional Sessions Judge-III, Quetta had fixed the case of murder pending against the deceased Muhammad Shafique for the announcement of judgment. The learned trial Court, recorded the evidence of P.Ws. Nisar Ahmed, Police Constable; Gunman of Additional Sessions Judge-111, Quetta. Abdul Samad, Naib Qasid, Khan Ali, Stenotypist, Yar Muhammad, Naib Qasid, Abdullah Jan, Senior Clerk, Muhammad Aziz Constable, Abdul Qayyum Akbar Ail Tahir, District Attorney Amjad Ali Naib Court, Fazlur Rehman, Police Constabic (Mushir) Dr. Muhammad A min Mengal, Police surgeon.Syed Abdullah Shah,-Chemical Expert, Abdul Hadi Complainant, Haideran Khan Zarkoon, who recorded the statement of witnesses Dawood Khan (given up) Yar Muhammad, under section 104, Cr.P.C. Muhammad Anwar, Patwari, and Mushtaq Hussain Sitb-Inspector/I.O.

7. The appellant made statement on oath under section 340(2), Cr.P.C. admitting the guilt with the plea that he committed the murder of deceased Muhammad Shafique `in grave and sudden provocation because he lost the balance of his mind when deceased Muhammad Shafique abused him and stated that he would fuck his wife and the wives of his tribe. No defence witness was produced. .

8. The learned trial Judge on the completion of trial vide impugned order concluded that prosecution has succeeded in establishing the charge against the appellant under section 302, P.P.C., however, on account of mitigating circumstances, convicted and sentenced him to suffer life imprisonment with fine of Rs.5,000 and in default whereof to further undergo for two months. The benefit of period during which he remained under trial prisoner was also extended to him under section 382-B, Cr.P.C. As far as the co-accused Abdul Haleem is concerned, he was acquitted of the charge for want of sufficient material.

9. The aforesaid conviction order has been assailed by the appellant in appeal whereas the complainant as well as the State, have filed separate revisions praying that the sentence awarded to appellant Abdul Haq be enhanced and normal capital sentence for the offence of murder be awarded to him.

10. It is to be noted that so far no proceedings have been instituted against acquitted accused Abdul Haleem.

11. Syed Ayaz Zahoor, learned counsel appeared on behalf of appellant Abdul Haq whereas Mr. Yakub Khan Yousafzai, A.-G. and Mr. M. War, Advocates appeared for the State and complainant respectively.

12. Syed Ayaz Zahoor, Advocate contended that commission of offence has not been denied 6y the appellant but he has successfully established the plea of sudden and grave provocation i.e. as soon as the deceased Muhammad Shafique entered inside the Court-room of Additional Sessions Judge-111, Quetta. he abused him on account of which accused lost his mental balance and felt darkness before his, eyes and thereafter rte did not know as to what ht has done. Learned counsel was of the opinion that accused had no pre meditation for the commission of offence, but: incident had occurred all of a sudden on account of a grave provocation under the cl,-cumstances the trial Court was not lusted to award him punishment for life imprisonment. He lastly sraicd that facts and circumstances of the case warrant reasonable reduction in the sentence. Appellant in addition to his above plea had also offered an explanation for keeping pistol in his possession at the time or commission of the offence. According to him he had been keeping with him the pistol terror the period when the trial of deceased Muhammad Shafique was started to protect himself in view of the enmity with the deceased.

13. On the other hand, learned Advocate-General and Mr. M. War, counsel sated that the accused had brought a pistol in his pocket with an intention to commit the murder of the deceased, who was absolutely helpless Because of being, handcuffed. They emphasized that the intention of accused can be gauged from this fact alone that having full knowledge that he is going to attend the Court but dared to sit inside the Court-room with a fire-arm in his possession. Otherwise if he had been a law-abiding citizen he could have left the pistol somewhere outside the Court. The plea raised by accused of sudden and grave provocation is not recognized by the Islamic Administration of Justice. Even otherwise accused had failed to substantiate this plea as weir. Mr. Yakub Khan Yousaf zai, learned Advocate-General stated that the impugned order of conviction be maintained, whereas Mr. M. Zafar, Advocate for the complainant stressed to award the normal punishment of the offence of murder to appellant because charge fully stands proved against him.

14. Perusal of evidence produced by prosecution as well as the statement made by appellant before the trial Court abundantly makes it clear that the accused is responsible for commission of .the murder of deceased Muhammad Shafique, therefore, the only question requiring consideration would be regarding the quantum of punishment, Keeping in View the plea of accused, and attending circumstances of the case.

15. It would also be relevant at this stage to note that deceased Muhammad Shafique was involved in a case under section. 302, P.P.C' registered at Qaidabad Police Station on 14-3-1991, vide F.I.R. Exh.PJ7-E. In that case the deceased was not nominated by accused Abdul Haq. (Complainant in the case of murder of his ,father Abdul Hayee) nor he expressed any enmity with turn. But it subsequently transpired that actually an incident of firing took place between the deceased Muhammad Shaftque and one Nasrullah due to which a bullet hit the father of appellant Abdul Haq on right side of his chess. In this background the trial of deceased Muhammad Shafique was completed and on 10th February, 1993; the matter was fixed for announcement of the order.. -

16. Keeping in mind that previously section 300, P.P.C. had defined generally two types of offences concerning killing of a, person one culpable homicide amounting to murder and second culpable homicide not amounting to murder. The latter form used to be considered an offence which has been committed on account of provocation in different conditions prescribed by the law itself. On the amendment sections 300 and- 302, P.P.C. were changed to make them in accordance with the injunction of Qur'an and Sunnah. For reference both the amended sections of P.P.C. i.e. 300 and 302 are reproduced hereinbelow:--

17. "300. Qatl-i-Amd. --Whoever, with the intention of causing death or al with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in probability cause death, causes the death of such person, is said to commit Qatl-i-Amd.

302. Punishment of Oatl-i-Amd --Whoever commits Qatl-i-Amd shall, subject to the provisions of this chapter be---

(a) punished with death as Qisas;

(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof is either of the forms specified in section 304 is not available; or

(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the Qisas is not applicable."

18. In view of the above existing position of the law the prosecution is required to prove `whether the offence of Qatl-i-Amd has been committed or not'. On bare perusal of governing section 300, P.P.C., it is revealed that any accused who with the intention of causing death or with intention of causing bodily injury to 3 a person by doing any act which in the ordinary course of nature is likely to cause death or with the knowledge that his act is so imminently dangerous that ` it must in all probability causes the death of such person would be said to have committed Qatl-i-Amd.

19. In our opinion the aforequoted definition of Qatl-i-Amd under section 300, P.P.C. as amended, in its simple meaning, does not provide any A exception in respect of the offence of Qatl-e-Amd, if committed due to sudden and grave provocation.

20. Syed Ayaz Zhoor, learned counsel, however, was not agreeable and insisted that according to Islamic criminal system of justice, section 300 of P.P.C. would be deemed incomplete if the causing of murder out of provocation is not read as an exception to section 300, P.P.C. The learned counsel in support of his arguments made reference to State v. Muhammad Hanif and S others (1992 SCMR 2047).

21. We have gone through this judgment of the Hon'ble Supreme Court but in our opinion the principle which has been enunciated herein does not support the case of appellant. The Hon'ble Supreme Appellate bench, appears to be of the opinion that under concept of Islamic Criminal Justice, the amplitude of right of self-defence has far wider meaning but merely due to provocation no exception from the punishment of Qisas can be claimed. In ,this behalf, it would be appropriate to quote hereinbelow two paras. from the case of federation of Pakistan v.Gul Hassan and other (PLD1989SC633) Written by Hon ble justice Muhammad Taqi usmani. The above quotation is sufficient to hold that commission of offence of murder due to provocation would be liable to ordinary punishment which has been provided in the substantive law coupled with the nature of the standard of evidence produced by the prosecution before the Court. However, keeping in view the particular facts of the case, Courts would be precluded to award the I I punishment of Qisas. For example, if it is shown that the person who has been killed was not `Masoomuddam' and he himself was found committing the I offence at the time of his killing, which itself was punishable with death under the Criminal Islamic Justice, but as far as the sentence prescribed under the Tazir is concerned that would be inflicted against the accused facing the trial.

22. Syed Ayaz Zahoor, Advocate, then argued that the deceased Shafi Muhammad was not `Masoomuddam' because, he was murderer of father of appellant Abdul Haq.

23. Mr. Yakub Khan Yousafzai, learned Advocate-General, controverted the stand of appellant's counsel and contended that the deceased was not seen by appellant committing the offence resulting in the murder of his father.. Therefore, unless the Court had not made a judicial pronouncement, holding him guilty for the commission of offence, it is not possible to declare that the deceased was not `Masoomuddam'. In this behalf, it is observed that according to F.I.R. Exh. P/17, registered at Qaidabad Police Station, in respect of the murder of appellant's father deceased Shafi Muhammad was not named as an accused person. Moreover, till the time of the commission of his murder he was not found guilty of the offence of murder, because the judgment* cannot be announced due to present incident. Therefore, merely for the reason that a person is charged for an offence of murder, is not possible to conclude that he was not `Masoomuddam'.

24. It is also a principle of Islamic Jurisprudence that if deceased was not `Masoomuddam' then the accused charged for killing him would not be liable for Qisas but he would not be exonerated from the punishment of Ta'zir or the payment of compensation (Diyat) to the heirs of deceased. In this -text reference can be made to 1992 SCMR 2047, which reads as under:--

25. "Going through the Injunctions of Islam, Qatl-i-Amd liable to Qisas takes place only when the person murdered is not liable to be murdered or is `Masoom-ud-Dam'. This fact finds mention in all the books containing the Injunctions of Islam. For brevity sake, the following is reproduced from book Islami Qawanin Hudood, Qisas, Diyat wa Ta'ziraat' by Dr. Tanzilur Rehman:--

26. In addition to above with benefit reference can also be made to the following para. from the book of Dr. Tanzilur Rehman, namely Islami Qawanin Hudood, Qisas, Diyat wa Ta'zitaat':--

27. Following the above quotation, the contention of Syed Ayaz Zahoor, Advocate, is not acceptable and it is held that subject to furnishing the evidence for the commission of offence of murder according to section 302 (as amended) under section 304, P.P.C. an accused charged for the commission of murder would be liable for Oisas and in absence thereof punishment of Ta'zir as has been prescribed under section 302, P.P.C. can be inflicted upon him.

28. It was then argued by Syed Ayaz Zahoor, Advocate, that under the new scheme of the law under section 302(c), P.P.C. keeping in view the circumstances of the case, the Court in view of extenuating circumstances was empowered to award lesser punishment to the appellant, particularly when the appellant has not denied the commission of offence, but explained the circumstances, on the basis whereof,, offence of murder was committed by him. The learned counsel was of the opinion that in such view of the matter the version of the appellant which he put forth in his statement, on oath under section 340(2), Cr.P.C. was liable to be believed in its totality because the prosecution witnesses namely Yar Muhammad and Muhammad Aziz have proved that the deceased abused him thus he lost the balance of his mind and committed the offence. Reference was made to PLD 1991 SC 520.

29. Mr. Yakoob Khan Yousafzai, learned Advocate-General contended that the statement of accused in totality can be believed if the Court has discarded the other prosecution evidence and the determination of accusation is solely rests on the statement of accused, otherwise in the cases where prosecution evidence is consistent, coherent, confidence inspiring then it is not obligatory upon the Court to believe the statement of accused in its entirety.

30. It is to be seen that in the case of State v. Muhammad Hanif (1992 SCMR 2047), the Hon'ble Supreme Court has also discussed this proposition of the law as well in the following words:--

31. "On the first question the Supreme Court has consistently held that where the prosecution evidence stands rejected in its totality, the statement of the accused has to be accepted in totality and without scrutiny. The first judgment on the point coming from the Supreme Court is that of Faiz and another v. The State (1983 SCMR 76) wherein at page 79 the following observations were made:--

32. `The judgment of the High Court makes it abundantly clear that the ocular evidence was totally discarded and the only material utilized by the Court for determining the guilt of the appellants was the defence version'. There were no proved or established facts to test the defence version. This distinguishes the decision in Imamuddin's case (1975 PCr.LJ 948) which had proved or established facts. In Balmakund's case (AIR 1931 All. 1) a reference to Full Bench of the High Court became necessary because the Judges hearing the case found - the exculpatory part of the statement of the accused to be so unworthy, of belief that no Court could act upon them.

33. The Full Bench noted that during the last one hundred ,years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception--

(a) where there is other evidence a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence;

(b) where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible. in the case of Rahim Bux (PLD 1952 FC 1) also it was held that where the conviction is based entirely on the statement of the accused then that statement should be taken into consideration in its entirety."

34. Applying the above Rule of law on the instant case it is held that the statement of appellant in its entirety cannot be believed for the reason that prosecution produced overwhelming confidence inspiring evidence to prove the accusation against him and the learned lower Court had also not disbelieved arid discarded the ocular testimony of the eve-witnesses as well as the recovery of incriminating articles from the possession of accused i.e. weapon of offence etc. The appellant has raised in his defence a special plea, thereby taking upon himself responsibility to discharge the burden. Although Syed AyaL Zahoor, learned counsel stated that the appellant has got proved through P.W.4 Yar Mulraminad and P.W. Abdul Aziz that deceased abused him. He referred to a portion from his cross-examination. We believe that the witness had not understood the conversation which took place between the appellant and deceased immediately when he was brought in police custody inside the Court room where the appellant alongwith the acquitted accused Abdul Haleem was already present. According to his version, the deceased entered into the Court room and when he was passing nearby the accused Abdul Haq he talked to him in Pashto language which he could not understand. He further stated that it is correct that neither he speaks Pushto nor understands the same. '1 "he witness has also stated that it is correct that as soon as deceased Muhammad Shafique talked with accused Abdul Haq, in Pashto, suddenly accused stood up and started firing at deceased Muhammad Shafique. Thus, it is held that as far as Y.w. Yar Muhammad is concerned appellant cannot take any help from his testimony to prove the plea. Likewise P.W. Abdul Aziz in cross-examination did not agree that the deceascd abused the appellant, however, he only admitted that some conversation took place between both of them, when the deceased was brought inside the Court-room. According to him, as he do not understand Pushto, therefore, he did not follow, what they were talking to each other.

35. Under Article 17 of the Qanun-e-Shahadat, 1984 whenever the accused takes a special plea the burden of proving the same shifts on him. Since the appellant except his own evidence has failed to produce arty other corroborative piece of evidence, therefore, the plea put forth by him is not believable thus the contention of appellant's counsel that the statement of accused is to be believed in toto including its inculpatory and exculpatory portions and allowing him the benefit of imposing lesser punishment on account of extenuating circumstances is riot entertainable for the reasons discussed hereinabove.

36. In continuation of the above plea learned counsel also referred to 1989 MLD 2615, 1990 PCr.LJ 311, 1390 and stressed that in the cases where commission of murder has taken place on account of provocation etc. the Courts have always taken a lenient view in awarding the punishment. Since u, the reported judgments the concept of the commission of offence due to provocation under the Islamic Criminal Law has not been discussed, therefore. these authorities as well are not of any help to appellant,

37. Mr. M. Zafar, Advocate argued that the commission of offence has M CU committed by the appellant with premeditation because he and acquitted accused Abdul Haleem came fully armed in 'the Court premises to hear the announcement of judgment of the case and taking the advantage from the total helplessness of the deceased who at the relevant time was fettered brutely committed his cold blood murder inside the Court-room of Additional Sessions Judge-III, Quetta, even without caring for the respect and sanctity of the Court. Moreover, there were no extenuating circumstances in favour of the appellant therefore, the learned trial Court has no judicial discretion to inflict the punishment of life upon him, instead of normal punishment laid down under the law.

38. Mr. Yakub Khan Yousafzai, learned Advocate-General urged that the facts and circumstances of the case warrants to maintain the punishment which has already been awarded to accused by the trial Court.

39. We failed to understand that revision petition has been filed on behalf of the State after completion of all codal formalities wherein prayer has been made for the enhancement of the punishment to the accused from life imprisonment to that of death penalty but surprisingly during arguments the learned State Counsel did not claim the relief claimed in the petition.

40. Anyway, there is connected revision petition filed by the complainant with the same object. Needless to observe that under the newly introduced scheme of criminal administration of justice, according to the Injunctions of Islam and Sunnah, the complainant/a person who is primarily interested in the proceedings has got equally valid right to place his grievance for redress before the Court of law. Thus, the ultimate result of these proceedings shall rest on the appeal of accused as well as revision filed by the complainant, so far the punishment is concerned.

41. On thorough and independent reappraisal of material produced on record, we are of the considered opinion that appellant committed the murder of deceased Muhammad Shafique with pre-planning. The plea put forth on his E behalf for keeping fire-arm in his possession at the relevant time is after thought, just to save his skin from the accusation. Thus, in the given circumstances of the case same is not acceptable in his favour. The prosecution has fully discharged, its burden in proving the guilt of murder against the appellant without any doubt. There is no cavil with the principle that once the guilt of Qatl-i-Amd is brought home, the accused does not deserve any leniency, so far infecting of punishment is concerned.

42. Undisputedly, prosecution evidence is not of the standard as has been laid down under Article 17 of the Oanun-e-Shahadat, 1984. Therefore, in absence of proof required to be produced against the accused for awarding the punishment of Qisas, he would be liable for the conviction under Ta'zir.

43. As discussion on various aspects of the case goes on in the above paras. on the basis whereof, it is abundantly clear that ostensibly no extenuating circumstances have been proved by the defence for holding the appellant liable for lesser punishment than from the normal one. Hence keeping in view the gravity of the offence and the manner, in which, it has been committed coupled with the fact that a cold blood brutal murder of a person, who was chained, has been committed in the broad daylight in the premises of i a Court-room, without even caring the sanctity of Court and supremacy of law, the accused is not entitled for any leniency. We found our self in disagreement with the plea of learned counsel for appellant concerning reduction in sentence. Likewise, the reasons advanced in the impugned order, by the trial Court for inflicting lesser punishment are not convincing nor sustainable in view-of the principles of Criminal Islamic Justice pertaining to the commission I of offence on account of alleged sudden -and grave provocation. The facts of the case persuade us that the appellant was liable to be exacted the normal punishment provided under section 302(b); P.P.C.. On perusal whereof, it I emerges that judiciously a Court is empowered either to award death penalty to the accused or life imprisonment in view of the facts and circumstances o: the case. As it has been noted above, that the given circumstances of the case do not warrant for exercising a discretion in favour of appellant to award him punishment of life imprisonment instead of death penalty, as such, we art satisfied and convinced that normal punishment for committing Qatl-i-Amd b.N the appellant without reasons and rem warrants death penalty against him. it will not only meet the ends of justice but also serve a deterrent for the like minded persons.

44. Accordingly the Criminal Revision No. 73/93 filed by complainant Abdul Hadi is allowed, the conviction and sentence awarded to accused- I appellant of life imprisonment with fine of Rs.5,000 and in default to suffer R.I. I for two months by the Additional Sessions Judge-II, Quetta yide order dated 18-9-1993, is enhanced/substituted with that of death sentence.

45. Thus, it is ordered that appellant Abdul Haq son of Abdul Hayee be hanged by neck till he be dead.

46. Consequently the Criminal Appeal No.6~1/93 filed by appellant Abdul Haq is dismissed and no order in Criminal Revision No. 79 of 1993, is .required to be passed, because learned Advocate-General, did not press for the enhancement of sentence awarded to appellant by Trial Court. Thus, it also stands accordingly disposed of.

47. (Sd.)

48. IFTIKHAR MUHAMMAD CHAUDHRY, J.

49. AMIR-UL-MULK MENGAL, J.--I have had the opportunity of going through the proposed judgment to be delivered in this case written by my learned brother Iftikhar Muhammad Chaudhary, J. in Criminal Appeal No.61 of 1993 and connected Revision Petitions. I found myself in total agreement with his Lordship's observations that the prosecution has successfully brought home the charge that the appellant was responsible for commission of offence under section 302, P.P.C. (as amended) and thus his conviction has rightly been maintained.

50. But, however, with great respect I could not contribute to the view that in the circumstances of this case sentence of imprisonment for life should be enhanced to death.

51. Facts need not be reiterated. Thus, I directly come to the quantum of sentence. Before promulgation of Qisas and Diyat Ordinance while awarding sentence if a Court had the authority to pass one of the two alternative sentences then it was incumbent upon it -to take into consideration the' cumulative effect of the evidence and all the circumstances of the case and award such a sentence which in its view was more befitting, keeping in view the circumstances of the case. Although the normal sentence was of death in the case under section 302, P.P.C., but there were circumstances where the Courts awarded the second alternative sentence of imprisonment for life instead of death. No hard and fast rules could be determined as to what were the mitigating circumstances to be taken into consideration. But it has been held time and again that mere conjectures and surmises derived by fallacious logic, could not be termed as extenuating circumstances for awarding lesser sentence than normal penalty of death in a murder case (i) PLD 1984 SC(AJ&K) 82, (ii) 1984 PSC 548. It is to be noted that death sentence was normally awarded to an accused if he was found guilty of gruesome and brutal murder. Where the accused committed murder of tile deceased who was handcuffed and in police custody arid thus was unable to protect himself, death sentence was awarded (1981 PCr.LJ 219). However, it was the discretion of the convicting Judge to award sentence of death or imprisonment for life but such discretion must have 'been exercised bearing in mind that natural sentence for a murder was death unless extenuating circumstances were found. Therefore, when in a murder case the trial Court imposed a sentence of death penalty, he need not give reasons for the same (as regards sentence). .When he came to the conclusion that the accused was guilty but death sentence was not imposed then reasons must be extended.

52. After promulgation of Qisas and Diyat Ordinance, 1991 (as extended up to date) it is to be noted whether an alternative sentence has been provided for lesser punishment of imprisonment for life or not? It is, therefore, necessary to reproduce the section as under:

53. "302. Punishment of Oatl-i-Amd: --Whoever commits Qatl-i-Amd shall, subject to the provisions of this Chapter be--

(a) punished with death as Oisas; '

(b) punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or

(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunction of Islam the punishment of Qisas is not applicable."

54. From bare perusal of section 302, P.P.C. (as amended) the Court has been given a discretion to pass a sentence of imprisonment of either description which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable. ,

55. Bare perusal of the above section would show that whoever commits Qatl-i-Amd, shall subject to the provisions of said chapter, be punished with death as Qisas or punished with death or imprisonment for life as Ta'zir having regard to the facts and circumstances of the case, if the proof in either of the _ forms specified in section 304 is not available; and lastly with punishment .;:k which may extend to 25 years where according to Injunctions of Islam the A, punishment of Qisas is not applicable. Thus, a case falling under section 302(b) shall not be punishable with 'Hadd but as Ta'zir only when the proof under section 302(1), P.P.C. is not ,q !4 available. Perusal of section 302, P.P.C. would indicate that proof of Qatl-i a Amd liable to Oisas can be roduced by following two ways:--

(i) by voluntary and true confession of the commission of the offence by the accused;

(ii) by competent witnesses as provided in Article 17 of the Qanun-e- Shahadat, 1984.

56. Before I attend to determine this important aspect I feel it incumbent , to mention that my esteemed brother on page 20 of the proposed judgment has made observations as under:--

57. "Undisputedly, prosecution evidence is not of the standard as has been laid down under Article 17 of the Qanun-e-Shahadat, 1984, therefore, in absence of proof required to be produced against the accused for awarding punishment of Qisas he would be liable for the conviction under Ta'zir."

58. Similarly it would be expedient to reproduce the relevant portion of the ;', judgment of the trial Court:

59. "In view of the above discussion, I have come to the conclusion that the prosecution has established the charge against accused Abdul Haq under section 302, P.P.C. (as amended) I convict him accordingly However, in view of the mitigating circumstances of the case, I award lesser penalty to accused Abdul Haq as discussed in (1990 PCr.LJ page 1109) and sentence him to life imprisonment and fine of Rs.5,000 and in default of payment of fine to undergo further imprisonment for two months,"

60. Thus, from perusal of the relevant observations of learned trial Court it is not clear whether offence committed by accused was Qatl-i-Amd liabie to Otsas or punishable as Ta'zir. However, in the proposed judgment my learned brother has specifically held that the accused would be liable for conviction under Ta zir.

61. Leaving the discussion regarding interpretation of section 302, P.P.C, I think it proper and just to attend to the evidence led in the case. The evidence is of three kinds as produced in this case:--

(i) Pleading guilty and statement recorded under section 340(2), Cr.P.C. by the accused:

(ii) ocular evidence;

(iii) circumstantial and other evidence;

62. In his statement recorded under section 340(2 j, Cr.P.C. he stated, inter alia, as under:--

63. "On the day of incident before the call in the case "State v. Muhamad Shafique, I and accused Al-dul Haleem were sitting in the Court-room. I was sitting towards northern side on the last chair of the last row of chairs while the accused Abdul Haleem was sitting alongwith the on the chair towards southern side. As soon as deceased Muhammad Sha fique came near me, he abused me with low voice and said that ire will tuck my wife. He further said that he would tuck my, wife and the wives of my tribe, if he is acquitted. When deceased Muhammad Shafique was abusing me, at that time Abdul Aziz Constable and Yar Muhammad N/Q were standing near me. I learnt about the names of Abdul Aziz Constable and Yar Muhammad N/Q later on. When deceased Muhammad Shafique called me names about my wife I felt darkness before my eyes and I lost balance of my mind and thereafter I did not know as to what I did."

64. Similarly accused PLEADED GUILTY . to the charge framed on 11-4-1993 in the following terms:--

65. , "I plead guilty to the charge but this offence was committed by me on sudden provocation as the deceased Muhammad Shafiq threatened me that he would fuck my wife and my whole tribe if he is acquitted,'

66. Besides pleading guilty, the prosecution has ex amined many witnesses but here

67. I mention statement, of P.W.4. Yar Muhammad. Naib Qasid, in the Court of Additional Sessions Judge-III, Quetta. He stated that as soon as deceased Muhammad Shafique . entered the Court-room, accused Abdul Haq started -firing and just after firing deceased Muhammad Shafique fell down on the ground and he jumped a d caught hold of accused Abdul Haque. In cross examination he stated that it is correct that when deceased Shafique entered the Court-room and when he was passing nearby accused Abdul Haque he talked to accused Abdul Haque in Pashto language which he could not understand ... ... ...It is correct that as .soon as deceased Muhammad Shafiqut talked to accused Abdul flaque in Pashto, suddenly accused Abdul Haq stood up and he started firing at deceased Shafique. So also P.W.9 Muhammad Aziz Constable fully corroborated the above version. Likewise P.W.10 Akbar Ali Tahir, District Attorney Quetta almost corroborated the aforementioned statements but he added that after firing upon the deceased accused Abdul Haq told accused Abdul Haleem ~in loud voice that he took revenge of his father from deceased Shafique.

68. Judging the aforementioned depositions and statements of the witnesses besides other evidence on record it cannot be said that the prosecution failed to prove the charge of Qatl-i-Amd within the meaning of Article 17 of Qanun-e-Shahadat, 1984.

69. Adverting now to the discussion left as far as punishment awarded to the accused, we can take benefit from the illuminative judgement written by Justice Shafiur Rehman, Chairman Supreme Appellate Court of Pakistan (as he then was) in case State v. Muhammad Hanif and others (1992 SCMR 2047). The reason being that facts of said case are much relevant and the law laid down is apt to the circumstances of the case. ,

70. While discussing section 300, P.P.C. it has been held in the said judgment that no exception has been provided in section 302, P.P.C. as before. What is provided is a substantive law and the prosecution has to prove every part of it particularly whether it is a case of Qatl-i-Amd liable to Qisas or whether it is Qatl-i-Amd not liable to Qisas or whether it is Qatl-i-Amd liable to Ta'zir. With the change in law, the accused cannot claim any exception as provided before, therefore, the plea of sudden and grave provocation or of self defence etc. no more provide an exception to the general rule. However, the circumstances of the case as produced by the prosecution has to be seen while awarding punishment.

71. In the aforecited cast, decided by Supreme Appellate Court, accused Muhammad Hanif, had made a voluntary confession like present appellant but dyad taken the plea that he did so because the deceased has dragged his wife. In this case in hand according to the accused the deceased after when he entered the court-room spoke to him in Pashto saying he would fuck his wife and wives of his tribesmen after being acquitted.

72. Another important aspect of the case is that deceased Shafique was facing trial for murder of father of the accused. On the eventful day the judgment.was going to be announced in the said case. The mere fact as observed by my learned brother that in F.I.R. nobody was nominated has no relevance because thereafter, deceased Muhammad Shafique was arrested in that case. Since except F.I.R. no other material had been brought before the trial Court, of the case against deceased who was facing trial for killing appellant's father, therefore, the trial Court in the absence of any matter could hold that Shafique's death could be caused without the liability of the Qisas because of the murder of father of appellant.

73. In this regard observation made in case "The State v. Muhammad Hanif (1992 SCMR 2047) would be very relevant thus reproduced hereunder:--

74. "If we go by the strict Injunctions of Islam we find that punishment of death is permissible where under Hadd the offence already committed or sought to be committed by the person is one liable to Hadd of death. If this strict view of the Injunctions of Islam is kept in view, then if an unmarried person commits Zina-bil-Jabr with one's wife, the husband will have no right, even though the event takes place in his sight to murder the Zani/accused of the crime because Zina-bil-Jabr by or Zina by itself by an unmarried man is not punishable with death. The other requirement of the law that the person who is done to death must be `Maasoom-e-Dam' is stronger repugnance. The Qur'anic Verse 34 of Sara Al-Nisa starting with has been translated as and interpreted in Tathim-ul-Qur'an (Volume 1) at page 349, as hereunder:--

75. A person on like the deceased who suffered from a prohibition under Qur'anic Injunctions not to touch or deal with a lady who was not Mehram to him could not so disgrace and insult as to evoke the corresponding duty of the husband to protect and guard the wife. Such a man under the Injunctions of Islam cannot be said to be "Maasoom-e-Dam" when he is indulging in such an activity. Be it a person disgracing a lady or committing Zina-bil-Jabr with her being unmarried, it is not provocation' but an exercise of the right conferred on the husband under the express words of the Our'an itself. Qisas will not be liable in such a situation.

76. It would be relevant at this stage to mention that two of the prosecution witnesses P.W.4 Yar Muhammad and P.W.9 both affirmed in cross-examination that. when the deceased entered the Court-room he talked some thing in Pushto to Abdul Haq in the Court-room. Just after talking, the appellant suddenly got up and started firing at the. deceased. It has also come on record that both the witnesses did not know Pushto language, therefore, they did not understand what was stated to the accused appellant. This portion. of the statement of appellant that deceased spoke to him in Pushto is established by the prosecution evidence. Since none of the witnesses know L Pushto. therefore, we have to rely on the appellant's version wherein he stated that the deceased told him that he would fuck his wife after being acquitted.

77. Besides, the deceased was facing trial for the murder of appellant's father. It cannot safely be said that deceased was a Maasoom-e-Dam. Qatl-i- I Amd liable to Qisas can't be imposed against an accused killing a person who is not a Maasoom-e-Dam as has been held by the Supreme Appellate Court in N the aforecited case (in the para. already quoted).

78. From the aforementioned discussion and keeping. in view the attending circumstances of the case I have come to the conclusion that the punishment of imprisonment for life to the appellant is legal and I am, therefore, inclined to reject the plea for enhancement of the punishment .of imprisonment for life to death.

79. With above observation I part with the judgment and endorse the proposed judgment to the extent of rejecting the appeal of convict. Consequently Criminal Appeal No. 61 of 1993 filed by appellant Abdul Haq is dismissed. So also Criminal Revision No. 73 of 1993 filed by complainant Abdul Haq is rejected and Criminal Revision No.79 of 1993 is also rejected because the learned Advocate-General did not press for the enhancement of sentence awarded to appellant by the trial, Court. All the three matters are accordingly dismissed. However, sentence of imprisonment for life as awarded to the appellant by the trial Court is upheld.

80. (Sd.)

81. AMIR-UL-MULK MENGAL, J.

82. MIR MUHAMMAD NAWAZ MARRI, J.---I had the privilege to go through the judgments recorded by my learned brothers Mr. Justice Iftikhar Muhammad Choudhry and dissenting judgment written by Mr. Justice Atmr-ul-Mulk Mengal

2. Thu tacts need not be reiterated as have been discussed in tile main judgment. Both- the learned judges are in total agreement as far conviction of appellant under section 3U:j, P.P.C. (as amended) is concerned. Mr. Justice Iftikhar Muhammad Choudhry was pleased to accept Revision petiton No. 73 of 1993 and enhanced the sentence from life imprisonment as awarded by the trial Court to death sentence whereas Mr. Justice Amir-ul-Mulk Mengal dismissed the appeal as well as Criminal revision petition filed by State for enhancement of sentence.

3. Notices were issued to the learned counsel for the parties and Mr Muhammad Aslam Chishti, Advocate was requested to assist the Court as amicus curiae. The only question for consideration is the quantum of sentence. For this purpose case of prosecution may be described in brief. On 10th February, 1993 at about 11 a.m. deceased Muhammad Shafique was brought in Police custody to produce him in the Court of Additional Sessions Judge III, Quetta where he was facing trial in case. The State v. Muhammad Shafique regarding murder of Abdul Hayee father of appellant Abdul Haq. According to appellant Abdul Haq he and Abdul Haleem were sitting in the Court-room, deceased Muhammad Shafique while passing the appellant abused him in low voice by saying that he would "fuck his wife and wives of his tribemen if he is acquitted." As a consequence of abusive language used by deceased the appellant stated that he was blinded by rage and lost control. Thereafter, he did not know what he had done. Deceased Muhammad Shafique-succumbed to the injuries on his way to Civil Hospital. Appellant Muhammad Shafique and Abdul Haleem were arrested. The charge was framed to which he stated as under:--

83. "I plead guilty to the charge but this offence was committed by me on sudden provocation as the deceased Muhammad Shafique threatened me that he would fuck my wife and my whole tribe, if he is acquitted."

4. The prosecution produced 17 witnesses. The appellant was examined under section 342, Cr.P.C. and statement on oath as envisaged under section 340(2), Cr.P.C. was also recorded. He had admitted the allegation levelled against him in both tic statements. The Pistol was snatched front him and taken into possession. The; learned trial Court on completion of trial convicted the appellant on account of mitigating circumstances sentenced him to life imprisonment' with the fine of Rs.5,000 (Rupees five thousand). In default whereof to further undergo for two months. The benefit of section 382-B, Cr.P.C. was also extended to him. Co-accused Abdul Haleem was acquitted of the charge. Appellant filed appeal praying for reduction in sentence whereas complainant and the State had f iled two separate Revision Petitions for enhancement of sentence. While deciding the case there was difference of opinion between the Hon'ble Members of Division Bench of this Court comprising of Mr. Justice Amir-ul-Mulk Mengal and'Mr. Justice Iftikhar Muhammad Choudhry, hence the matter was referred to me as a Referee Judge. Both the Hon'ble Judges have agreed with the conviction of the appellant and held that the guilt of the appellant was established to the hilt, as such, dismissed the appeal but there was a difference of opinion on the quantum of sentence.

5. It will be seen that the main reason that convinced my Lord Mr. Justice Amir-ul-Mulk Mengal to hold that the guilt of the appellant was mitigated and the appellant had not gone to the Court to commit murder with premeditation. Muhammad Shafique abused him that if he is acquitted he would fuck his wife and wives of his tribemen. On hearing this darkness spread in his eyes and he did` not know what he was doing. These reasons can hardly be considered mitigating circumstances in view of the facts of this case. Appellant had gone to the Court of Additional Sessions Judge, Quetta carrying a loaded pistol with him. After being abused by the deceased appellant took out his loaded pistol, shot and killed him in the Court-room while he was hand cuffed and in Police custody. The act killing the deceased by the appellant of an unarmed and helpless person, handcuffed, right in the Court-room `is highly condemnable act. Abusive language that too in a low tone cannot be considered a solid ground for giving him lesser penalty. According to the Injunctions of Islam Qatl-i-Amd liable to Qisas takes place when the person murdered is not liable to be murdered or is Maasoom-ud-Dam.

84. Qatl-i-Amd is defined under section 300, P.P.C. which. is reproduced hereinbelow:--

85. " Oatl-i-Amd .--Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit Qatl-i-Amd."

86. The punishment for Qatl-i-Amd is provided under section 302, P.P.C.; which is as under:--

87. " Punishment for murder. --Whoever commits murder shall . be punished with death, or imprisonment for life and shall also be liable to fine:"

88. Qatl-i-Amd is proved in the following forms as provided under section 304, P.P.C.

(1) Proof of Qatl-i-Amd liable to Qisas shall be in any of the following forms, namely,---

(a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence, or ~, -

(b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat,

89. 1984 (P.0.19 of 1984).

90. In the instant case, the only allegation against the deceased person was that he had abused the appellant. The death penalty could not have been awarded to him for abusing him, therefore, it can be said that he was Maasoom-ud-Dam. As it has been held by Mr. Justice Iftikhar Muhammad Choudhary that due to provocation no exception can be claimed by the appellant from the punishment of Qisas. In this regard the relevant paras. from the judgment in case of Federation of Pakistan v. Gul Hassan and others reported in PLD 1989 SC page 633, has already been reproduced. In the said judgment it was observed that grave and sudden provocation is not an Exception per se and the punishment of Qisas where Qatl-i-Amd ib'committed under grave and sudden provocation, can be mitigated only if proof of Zina is produced which conforms to the required standard of evidence prescribed under the islamic injunctions. In other winds Qatl-i-Amd by husband (or by inference, by a near relative, as in the instant case) will attract a punishment lesser than Qisas only if proof of commission of such Zina exists which satisfy the required standard of evidence prescribed in the Islamic Injunction (1992 PCr.LJ 1596. The case referred herwinabove is identical to the case in hand. In the said case the appellant pleaded guilty of murdering Shoukat Nizami and took the plea that he had seen the deceased with his sister in compromising position, therefore, he lost his control and killed hiru. The trial Court oil the, 'plea of sudden and grave provocation sentenced him under section 302(c), P.P.C. for 7 years. The State filed an appeal against the judgment before Hon'ble Supreme Appellate Court. His Lordship Mr. Justice Dr. Nasim Hassan Shah (as he then was) allowed the appeal and set aside the judgment of trial Court and concluded as under:--

91. "As a result of the foregoing discussion, we find that the plea of grave and sudden provocation raised by Abdul Waheed could not have been given effect to in this case so as to make his case fall within the ambit of clause (c) of section 302, P.P.C. and to take it out of the mischief of clause (a) of section 302, P.P.C., because the requisite evidence to establish this pleat under the Islamic Injunctions was not produced by Abdul Waheed respondent.

92. The appeal, accordingly, must succeed and is allowed. The impugned judgment of the learned Special Court dated 12-1-1992 is, therefore, set aside and the respondent Abdul Waheed found guilty under clause(a) of section,302, P.P.C. of Qatl-i-Amd punishable with death as Qisas. Order accordingly"

93. In the present case the appellant failed to prove that the; deceased had abused him. Both the eye-witnesses deposed that they had heard them talking, as they could riot understand Pashto, therefore, did not know what they have talked about. The judgment in case State v. Muhammad Haneef 1992 SCMR page 2047 has been relied by my learned brother Mr. Justice Amir-ul-Mulk Mengal. With great respect I do not agree with him for the simple reason that the case of Muhammad Haneef is distinguishable so far instant case is concerned. In Muhammad Haneef;s case the prosecution witnesses were totally disbelieved and discarded, therefore, the statement of respondent Muhammad Haneef was accepted in totality. Secondly that in the above referred case the wife of respondent was disgraced and dragged n the elate of incident. The Hon'ble Mr. Justice Shahur-Rahmn hold that it was not provocation but exercise of right conferred on the husband under the expressed words of Holy Qur'an itself: The relevant para. is reproduced hereinbelow:--

94. "A person like the deceased who suffered from a prohibition under Qura'nic injunctions not to touch or deal with a lady who was not Mehram to him could not so disgrace and insult as to evoke the corresponding duty of the husband to protect and guard the wife. Such a man under the Injunctions of Islam cannot be said to be 'MaaNuumuddam' when he is indulging in such an activity. Be it a person disgracing a lady or committing Zina-bil-Jabr with her being unmarried, it is not provocation but an exercise of the right conferred on the husband under the express words of Qur'an itself. Qisas will not be liable in such a situation." whereas in the instant case apart from the statement of appellant recorded under Section 342 and 340(2), Cr.P.c., the trial court believed the ocular as well as circumstantial evidence. Secondly there was no question right of self-defence or protecting the honour of his wife,

95. Before parting with the judgment I would like to thank Mr. Muhammad Aslam, Chishti, Advocate for his complete assistance as amicus Curiae.

96. In view of the above discussion I respectfully agree with the judgment recorded by Mr. Justice Iftikhar Muhammad Choudhary. Consequently Criminal Appeal No. 61 of 1993 filed by appellant Abdul Haq is dismissed criminal Revision No.73 of 1993 filed by complainant Abdul Hadi is accepted and sentence is enhanced/substituted with that of death and in Criminal Revision No. 79 of 1993 no order is required to be passed as learned Advocate, General did not press for enhancement.

97. (Sd.)

98. MIR MUHAMMAD NAWAZ MARRI, J.

99. N.H.Q./526/Q Order accordingly.