SAEED IQBAL BHATTI Versus STATE
These two Criminal Appeals Nos. 173 of 1999 and 186 of 1999 pertain to the same F.I.R. and are being disposed of together through this judgment.
2. Criminal Appeal No. 173 of 1999 is filed by appellant Saeed Iqbal Bhatti, who has been convicted and sentenced by the learned Sessions Judge, Rawalpindi in Sessions Case No.106/28-7-1996 and Sessions Trial No. l of 1997. Whereas, the connected Criminal Appeal No. 186 of 1999 is under section 417(2-A), Cr.P.C. asking for enhancement of sentence.
3. The matter relates to F.I.R. No.141, dated 7-3-1996, under section 302, P.P.C., lodged at Police Station Civil Lines, Rawalpindi.
4. The charge against the appellant Saeed Iqbal Bhatti is that on 7-3-1996, at about 7-15 p.m, while armed with a knife he came to the house of the complainant Shaukat Hayat in the area of Mamoon Jee Road, Lalkurti (P.S. Civil Lines, Rawalpindi) and caused injuries to Mst. Nazia, his wife and the daughter of the complainant, which resulted in her death. The charge was framed under section 302 of the Pakistan Penal Code.
Judge, Rawalpindi vide his judgment dated 12-7-1999 convicted him under section 308(2) of the Pakistan Penal Code and sentenced him to pay Diyat and also to suffer imprisonment of 14 years as Ta'zir. He was further directed to pay compensation under section 544-A, Cr.P.C. amounting to Rs.1,00,000 or in default to further undergo R.I. for 6 months. The accused was however given the benefit of section 382-B, Cr.P.C.
6. Shaukat Hayat, the - complainant in this case supported the prosecution theory. According to him his daughter Mst. Nazia was living with him having been turned out by the accused. She also had a boy and a girl born out of her wedlock with the accused Saeed Iqbal, who wanted to take away the two children forcibly. But the deceased was resisting the efforts. That on 7-3-1996, at about 7-30 p.m in his presence and in the presence of the wife of the complainant, Ashfaq Ahmad P.W., Mukhtar Ali P. W . , the accused Saeed Iqbal came on a car while armed with a knife. That he went upstairs in a room where the deceased was living and gave her knife blows causing her four injuries. That the appellant was apprehended at the spot; Which is located in a thickly populated Bazar. That the alarm had also attracted several people of the locality. He was disarmed and later handed over to the police. The deceased however expired on the way to the hospital.
7. Ashfaq Ahmad (P.W.6) supported the prosecution theory. He is a resident of the same area.
8. Ghulam Rubbani (P.W.9) also supported the prosecution case. He had handed over the accused alongwith the knife (Exh. P4) to the police which was taken into possession vide memo. Exh. PJ.
9. Dur Muhammad Shah, S.I. Police Post Cantt. Police Station Taxila is the, Investigating Officer, who had investigated the case and had challaned the accused.
10. Dr. Munir Ahmad Langha, M.O., DHQ Hospital, Chakwal (P.W. 7) conducted the post-mortem examination on the dead body of Mst. Nazia deceased and found the following injuries on her dead body:
(1) An incised (stab wound) 1 c. m. x 1/2 c. m. on right side of abdomen in middle.
(2) An incised (stab wound) 1 c.m. x 1/2 c.m. x cavity deep on left side of abdomen 6 cm from umbilicus and 4 c.m. below costal margin.
(3) An incised (stab wound) 2 c.m. x 1 c.m. x cavity deep on left breast 4 c.m. below and lateral to nipple.
(4) An incised (stab wound) 1 c.m. x 1/2 c.m. x cavity on left mis axillary line 20 c.m. below axilla.
According to him:
11. That: "On dissection under injury No.l skin, muscles of interior wall of abdomen, paritanium and small intestines punctured. Under injury No.2 skin, interior abdominal wall, paritanium, left lobe of liver and stomach punctured. Under injury No.3 skin, chest wall, upper lobe of left. lung damaged. Under injury No.4 skin, muscles of abdominal wall, lower lobe of left lung and spleen punctured.
The left chest cavity and abdominal wall full of blood. In thorax all structures were healthy except stated. In abdomen all structures were healthy except stated."
In his opinion death was due to haemorrhage shock leading to death. That "all injuries were fatal collectively and antemortemally caused by some pointed sharp-edged weapon".
That: "time between injuries and death was half to one hour and between death and post mortem was 12 to 18 hours. Exh. PF is the carbon copy of his report and Exh. PF/1 is the diagram of injuries, which are in his hand and bears his signatures."
12. While making a statement under section 342 of the Cr.P.C. and in answer to question No. 17 the appellant had made the following statement:
"The deceased and her step-mother are notorious of the vicinity who are running business of prostitution in the house. The deceased was also persuaded by her step-mother to do the immoral activities and for that matter, the deceased indulged in such activities. Time and again I reprimanded the deceased and her step-mother to refrain from immoral activities. Due to this, the deceased had very strained relations with her real mother and for that matter she had only intimacy with her step-mother. The occurrence took place late at night in the house of the complainant and after having the information that some strange male persons were busy in immoral activities at the complainant's house with Mst. Nazir Shaukat. I went there and after witnessing my wife (deceased) in a compromising position, took a small knife from the adjacent kitchen and caused injuries under the heat of passions and ego. I also attempted , to follow the male person but in vain. I myself surrendered before the police. The complainant is inimical towards me and interested one. The rest of the prosecution witnesses are at the friendly terms with the complainant party. Therefore, they deposed against me falsely."
13. While cross-examining Shaukat Hayat (P.W.5), the suggestions which were made to the complainant are reproduced below in extensor
"It is incorrect that the occurrence took place late at night in my house and having information that some stranger male persons were busy in immoral activities at my home with Mst. Nazia Shaukat (deceased), the accused came there and after witnessing his wife in a compromising position took a small knife from the adjacent kitchen and caused injuries under the heat of passion and ego".
14. However, while cross-examining Ashfaq Ahmad (P.W.6), the suggestions made to this witness are being reproduced below in extenso:
"It is incorrect to suggest that the wife of Shaukat is a notorious who runs business of prostitution in her house and for that matter myself, Mukhtar and others used to pay visits for immoral activities. It is incorrect that the deceased was also supplied by her for the said purpose and on account of this reason, she used to immoral activities of inlaws as well as wife, the accused had strained relations with them and he oftenly reprimanded them to desist from immoral acts. It is incorrect that the deceased was asked many a times by the accused to refrain from immoral business and to come back to his house through respectables but in vain. It is also, incorrect that Shaukat P.W. was in the knowledge of all the nefarious activities of womenfolk of his house; rather he was partner to it. It is incorrect that on account of those immoral activities and having unlawful relations with the family of Shaukat P.W.1 have deposed falsely and maliciously against the accused. It is incorrect that, I have deposed to bring the case .in line of the prosecution. "
15. During the course of the arguments before this Court the learned counsel appearing on behalf of Saeed Iqbal accused reiterated the pleas which were brought on the file through the suggestions aforementioned. According to him there was no premeditation involved and the appellant was entitled to a lesser punishment because there was mitigating circumstance and the punishment given by the learned trial Court under section 308(2) of the P.P.C. was harsh.
16. When Dur Muhammad (P.W.10), the Investigating Officer appeared in the witness-box he denied regarding the accused having ever taken such a defence plea before him. A portion of his statement reads as follows:--
"The accused did not narrate to me that he received information that during the late hours of the night some strangers were present in the company of his wife and on this information, he reached there. It is further incorrect to suggest that the accused had narrated that in result of the information, he reached the spot and saw the deceased in compromising position with one stranger and out of ego (Ghairat) in order to save his honour, he took a small kitchen knife and dealt a blow on the person of the deceased. "
17. The accused admits his involvement in the occurrence. But he is asking for reduction in the sentence on the ground that because of grave and sudden provocation, which is an infirmity, he was constrained to cause the said injuries to his deceased wife.
18. His story was not believed by the learned Sessions Judge and tightly so because, the appellant was not successful or persuasive in advancing the plea steadfastly with respect to the grave and sudden provocation which may have been caused. While going through the file one tends to agree with the A learned Sessions Judge, Rawalpindi in this connection. It may be mentioned that the appellant did not come in the witness-box to make a deposition under section 540(2) of the Cr.P.C. in support of his version. He did not produce any evidence in support of his version and even about the notoriety of the family of his inlaws. So much so that he even failed to provide a description of the person whom he might have seen emerging from the room of his in-laws and with whom, as per his allegations, his wife, the deceased was, having intimacy. His version, therefore, is unbelievable and an afterthought.
19. The prayer in the second appeal is with respect to the enhancement of the sentence. It is said that the case of the appellant Saeed Iqbal did not fall under section 308(2), P.P.C., rather it fell under section 302(b), P. P. C.
20. The accused in this case was tried under section 302, P.P.C. and the learned trial Court while concluding the trial and writing the judgment and rightly felt that the case fell under section 308(2) of the P.P.C. because the appellant was the husband of the deceased and the case was not liable to Qisas and where his story of grave and sudden provocation had not been believed. The punishment which has already been given by the trial Court is the maximum limit prescribed by law. The appeal, therefore, asking for enhancement in punishment is not competent and is
21. Section 308(2) of the P.P.C. reads as follows:
"308(2). Notwithstanding anything contained in subsection (1), the Court, having regard to the facts and circumstances of the case in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to fourteen years, as Ta'zir."
308(2), P.P.C. only speaks of liability to pay the Diyat and of t under Ta'zir which may extend to 14 years. Whereas, the C appellant was also sentenced under section 544-A, Cr.P.C. and asked to pay additional compensation. This later part of the judgment is assailed.
22. Reference in this connection may be made to Aivat No. 178 of Al-Baqr, which-reads as follows:
Ye who believe!
The law of equality is prescribed to you in cases of murder.
The free for the free.
The slave for the slave.
The woman for the woman.
But if any remission.
Is made by the brother
Of the Slain, then grant
Any reasonable demand,
And compensate him.
With handsome gratitude;
This is a concession
And a Mercy,
From your Lord.
After this whoever
Exceeds the limits
Shall be in grave penalty.
23. Section 308 of the Pakistan Penal Code already prescribes the liability to pay Diyat only in case of the non-enforcement of Qisas as well, as the punishment of imprisonment for a term which may extent to 14 years as Ta'zir. Diyat is the blood money and is a compensation which is to be paid p in the case of Qatl-i-Amd and nothing is said beyond this in this section. Under the circumstances any further compensation under section 544-A of the Cr.P.C. will not be attracted. Therefore, the judgment of the learned Sessions Judge to the extent it asks for compensation under section 544-A, Cr.P.C. is set aside. The appeal of Saeed Iqbal appellant to this extent only is accepted.
M.B.A./S-82/L
Order accordingly.