SARDAR MUHAMMAD Versus STATE

Five persons, namely, Sardar Muhammad, Muhammad Hanif, Zafar Iqbal, Muhammad Idrees and Abdul Majeed faced trial under sections 302/ 14fi and 149, P.P.C. for committing the qatl‑i‑amd of Muhammad Suleman Khan and Mst. Naseem Bibi. The learned trial Judge vide his judgment dated 27‑I1‑1994 acquitted Muhammad Hanif, Zafar Iqbal, Muhammad Idrees and Abdul Majeed whereas Sardar Muhammad, the present appellant, was convicted under section 302‑C, P.P.C. on two counts and sentenced to five years R.I. on each count. As the deceased Muhammad Suleman Khan lost his life on account, of his unlawful and immoral act, no compensation was ordered to be paid to his heirs.

2. The convict has challenged his conviction and sentence through this jail appeal.

3. The prosecution case as contained in the F.I.R., Exh.PK recorded by Inspector Shoaib Ahmad, P.W.9 on the basis of statement of Bashir Ahmad, P.W.2 is that on 29‑6‑1992 at about 'Ishawela, he alongwith Muhammad Shafi was returning 'to his village from his tubewell. When they reached near the sugarcane field of Maseetay Khan, they saw Suleman Khan running ahead while Sardar Muhammad armed with a hatchet was chasing and giving him hatchet blows. Suleman Khan fell down and in that condition Sardar Muhammad gave repeated hatchet blows. In the meanwhile, Sardar Muhammad caught hold of his daughter Mst. Naseem Bibi who had hidden herself in the sugarcane field with untied Azarband. He started giving hatchet blows hitting on various parts of lien body. Both Suleman Khan and Naseem Bibi succumbed to the injuries and died at the spot.

4. Soon after the occurrence, the appellant Sardar Muhammad armed with hatchet himself appeared before the police and handed over the blood‑stained hatchet (P.7) in his possession to the police which was taken into possession vide memo Exh.PR.

5. Inspector Shoaib Ahmad, then proceeded to the place of occurrence and inspected the dead bodies of Suleman Khan and Nasim Bibi. He prepared injury statement, Exh.PE and inquest report, Exh.PD of Suleman Khan. Similarly, injury statement, Exh.PG and inquest report, Exh.PF in respect of Nasim Bibi were also prepared. The police officer collected the blood‑stained earth from the spot. The Kassi P.1 lying in the sugarcane field was taken into possession vide recovery memo Exh.PM. The police officer drafted the rough site plan of the place of occurrence as Exh.PS. From the personal search of Suleman Khan, a wrist watch, a Tasbeeh, a cap, some tablets opium half gram and a sum of Rs.243 were also recovered and taken into possession vide memo Exh.PT. After recording the statements of the P.Ws., the officer arrested Sardar Muhammad at the spot. After the post‑mortem examination of Muhammad Suleman Khan, on the following day, Muhammad Ashraf, FC produced before the Inspector shirt P.2 and Dhoti P.3 which were taken into possession vide recovery memo Exh.PO. The said FC also produced the last worn clothes of Nasim Bibi consisting of shirt P.4, Shalwar P.5 and Dopatta P.6 which were taken into possession vide recovery memo Exh.PQ. The report of the Chemical Examiner Exh.PC was received by the police officer on 27‑7‑1992 which he submitted before the D.S.P., CIA. The challan was later on prepared by Inspector Ali Ahmad.

6. On 30‑6‑1992, Dr. Mubashir Ahmad, Senior Medical Officer, Civil Hospital, Sheikhupura, P.W.1 conducted the post‑mortem examination on the dead body of Suleman Khan and found 12 injuries on his person including a cut throat 12 x 5 and 4 x 1 on the front of neck. The injuries were ante-mortem and sufficient to cause death in the ordinary course of nature. According to the opinion of the. doctor, the cause of death was severe shock, haemorrhage and cardio respirator failure due to injuries 1, 3, 4 and 5 individually and collectively. The time between the injury and the death was immediate and the time between death and post‑mortem examination was within twenty four hours.

7. The doctor also conducted post‑mortem examination on the dead body of Nasim Bibi on the same day and found 16 injuries on her person. In the opinion of the doctor, the death occurred due to severe shock, haemorrhage and cardio respiratory failure. Injuries 1, 3, 4 and 5 collectively and individually were sufficient to cause the death. The vaginal swabs of the dead body were taken and sent to the Chemical Examiner. The report of the Chemical Examiner is Exh.PC according to which the swabs were stained with semen.

8. As Amjad Ali, son of Suleman Khan, deceased was dissatisfied with the police investigation, he filed a complaint, Exh.PA under sections 148/302 and 149, P.P.C. in the Court of learned Sessions Judge, Sheikhupura. Accordingly an inquiry under section 202, Cr.P.C. was conducted and the learned Inquiry Officer opined that prima facie a case under sections 302/148 and 149, P.P.C. was made out. Both the challan and complaint cases were tried by the learned trial Court.

9. The appellant when examined under section 342, Cr.P.C., denied the prosecution allegations and professed innocence. In answer to the question why this case against him, he submitted as under:‑

"As a matter of fact on 29‑6‑1992 at Isha vela I was coming back from my field and when I reached near the field of sugarcane owned by Maseetay Khan I heard whispring. I went inside the field and saw my unmarried daughter Naseem Bibi and Suleman Khan in a compromising position. I was armed with a hatchet at that time which I keep with me usually. I lost my control and senses. Under grave and sudden provocation, I killed both of them there and then and went to the Police Station where I narrated the whole incident and also produced the hatchet. "

10. The learned trial Judge holding that the appellant committed the murder of two persons on account of "Ghairat" convicted and sentenced the appellant, as indicated above.

11. Learned counsel for the appellant contended that once the learned trial Court held that the murder was committed due to "Ghairat", he should have acquitted the appellant instead of awarding him the sentence specially when according to report of the Chemical Examiner, the swabs taken from the body of Naseem Bibi (deceased) were stained with semen. The accused appellant is none else than the real father of Naseem Bibi, the deceased.

12. Learned counsel for the State did not seriously support the judgment of the learned trial Court rather conceded that he would have no objection if the sentence of the appellant is reduced to one already undergone.

13. I have heard the learned counsel for the parties at length and have gone through the record with their able assistance. The learned trial Court having come to the conclusion after appreciation of the evidence on record that the "Qatl" of the deceased was committed on account of "Ghairat", has not adverted to the provisions of sections 96, 97 and 100 of the Pakistan Penal Code, 1860 (XLV of 1860) which are reproduced as under:‑

"96. Things done in private defence.‑‑Nothing in an offence which is done in the exercise of the right of private defence."

97. Right of private defence of the body and of property.‑‑Every person has a. right, subject to the restrictions contained in section 90, to defend:

First. His own body, and the body of any other person, against any offence affecting the human body;

Secondly. The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition, of the theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

100. When the right of private defence of the body extends to causing death.‑‑The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions herein after enumerated, namely:

Firstly

Secondly

Thirdly. An assault with the intention of committing rape;'

Fourthly

Fifthly

The statements of Bashir Ahmad P.W.2 and Muhammad Shaft P.W.3 coupled. with the report of the Chemical Examiner Exh.PC which says that the vaginal swabs of Mst. Naseem Bibi were stained with semen leave no room for doubt that at the relevant time Suleman Khan deceased was committing Zina with Mst. Naseem Bibi deceased who was the real daughter of the accused‑appellant. In such a situation the appellant being father of Mst. Naseem Bibi one of the deceased was overpowered by the wave of his family honour and "Ghairat" and killed both the deceased at the spot. In my opinion he has committed no offence liable to punishment.

14. Resultantly, I do not uphold the judgment of the learned Additional Sessions Judge, Sheikhupura and acquit the accused‑appellant. He shall be released forthwith if not required in any other case. Order accordingly.

N.H.Q./S‑122/L Appeal accepted.