MUHAMMAD AKRAM Versus THE STATE

1. MUHAMMAD NAWAZ ABBASI, J.-- -The petitioner namely, Muhammad Akram. son of Muhammad Amin has preferred this petition under Article 185(3) of Constitution of Islamic Republic of Pakistan, 1973, from jail seeking leave to appeal against, the judgment, dated 25-7-2001-passed by a Division Bench of Lahore High Court, Multan Bench, in Criminal Appeal No.172 of 1998 and Murder Reference No.215 of 1980. The petitioner was tried by the learned Sessions fudge, Lodhran for the charge of committing Qatl-i-Amd of his wife namely Mst. Salina and upon conviction was sentenced to death vide judgment, dated 13-5-1998. The petitioner was also awarded to pay 50,000 as compensation to the legal heirs of Mst. Salma deceased under section 544-A, Cr.P.C. and in default of payment of compensation he was directed to undergo simple imprisonment for six months. The petitioner challenged his conviction and sentence in the Lahore High Court at Multan Bench, through Criminal Appeal No. 172 of 1998 whereas learned trial Judge sent a reference under section 374, Cr.P.C. for confirmation of sentence of death awarded to the petitioner. The learned Division Bench of the High Court vide judgment, dated 25-7-2001 dismissed the appeal of the petitioner and while confirming the sentence of death awarded to h by the trial Court answered the murder reference is the affirmative.

2. The fateful occurrence in which Mst. Salam a young lady, was murdered took place at 5 a.m. on 11-6-1996 in the house of petitioner situated in village Khanwah Ghalwan, Police Station Lodhran, District Lodhran, Abdul Aziz (P.W.1) father of the deceased lodged the report at police station at 8-30 a.m. on the same day and on the basis of his statement (Exh. P.A.), a case vide F.I.R. (EXh.P.A.1) was registered against the petitioner under section 302, P.P.C.

3. The relevant facts in small compass as narrated by Abdul Aziz, the first informant are that Mst. Salam his daughter was married with Muhammad Akram and in exchange Abdul Majeed brother of complainant, was married with Mst. Nasreen daughter of Muhammad Amin and sister of Muhammad Akram. Mst. Salma was not being allowed by Muhammad Akram to pay visit to his house for the last two months prior to the occurrence and consequently he (the first informant) alongwith his wife Mst. Zanib Mai, his brother Hafeezullah and a relative namely Raheem, Bakhsh on 10-11-1945 went to Mouza Ghulwanwala to the house of Muhammad Akram to bring Mst. Salma to their house. They reached at the house of in-laws of Mst. Salma at 5 p.m. and made a request to Muhammad Akram to send Mst. Salma with them for a few days and on his refusal Mst. Salma sought permission from her father-in-law to go with her parents but he also did not agree and made a demand that complainant party should first send Mst. Nasreen his daughter to his house and only then Mst. Salina could go to their house. The complainant alongwith his wife and brother stayed at the house of Muhammad Akram during' the night. They slept in the courtyard of the house whereas Mst. Salma and Muhammad Akram slept in a room of the house. The complainant and his companions at about 4 a. m. on hearing commotion from the room of Muhammad Akram and Mst. Salma became attentive and saw that petitioner while armed with Churri was inflicting Churri blows to Mst. Salina and on their attempt to interfere he extended threats of life to them and after inflicting injuries to Mst. Salma, escaped from the spot The motive behind the occurrence as disclosed in the F.LR. was that petitioner was annoyed on the demand of Mst. Salma to go with her parents as his sister Mst. Nasreen was not being sent by her husband to the house of net parents. Ghulam Gilani (P.W.6) having prepared inquest report of the deceased dispatched the dead body to mortuary for post-mortem examination through a constable and during spot inspection collected blood-stained earth underneath the dead body of Mst. Salma, recorded statements of witnesses and prepared site plan of the place of occurrence. Muhammad Akram on arrest on 6-7-1996 led to the recovery of blood?stained Churri (P-1). The Investigating Officer having completed the formal investigation, submitted challan against the petitioner in the Sessions Court. The prosecution in addition to the eye-witnesses, the Investigating Officer and the formal witness, who remained associated with the investigation produced lady doctor Samina, who conducted post? mortem examination on the dead body of the deceased. The petitioner in his statement under section 342, Cr.P.C. pleaded innocence and false implication and did not make a statement on oath under section 340(2), Cr.P.C.

4. Learned counsel for the petitioner has contended that Abdul Aziz (P.W.1), is real father of the deceased and Ahmad Buksh (P.W.2) is closely related to the complainant, therefore, it would not be safe to rely upon, their testimony without independent corroboration. The learned counsel argued that stay of the witnesses at the house of the accused in the night after his refusal to send Mst. Salma with them was unnatural, therefore, their claim of having witnessed the occurrence was doubtful, and further there was nothing on record to suggest that accused, was unhappy with the deceased or he took ill of desire of Mst. Salma to go with her parents on that their relations inter se were strained and thus the petitioner would have no reason to commit the murder of Mst. Salma. The learned counsel alternatively argued that the circumstances under which the occurrence took place would lead to on inference that due to something suddenly happened between the accused and deceased which provoked he while losing self-control caused injuries to her wife and thus in any case it was not a case of Qatl-i-Amd punishable under section 302 (a) and (b), P.P.C. and would safely fall within the purview of section 302(c).

5. The fateful occurrence in the present case had taken place in the room of the house of petitioner to which he and deceased were sleeping together during the night. The visit of the complainant to company of his wife, son and Raheem Bakhsh to the house of their son-in-law bring) their daughter to their house was not questionable and their stay at the house of their son-in-law during the night was quite natural-in the given circumstances, therefore, their presence at the spot at the time of occurrence would be beyond doubt. The evidence does not even remotely, suggest that either complainant and his companions did not pay visit at the house. of his son-in-law on the day of occurrence or they did not stay at his house, during the night. It is not understandable that why Abdul. Aziz, father of Mst. Salma deceased, and father-in-law of Mst. Nasreen would involve his son-in-law in the murder of his daughter and substitute him for the real culprit. The petitioner has neither denied his presence at his house on the fateful day nor offered any explanation that how and under what circumstances Mst. Salma while sleeping with him in a room of his house sustained injuries with the sharp-edged weapon on the sensitive part of her body. The bare denial of the petitioner of knowledge of occurrence and not offering any explanation that how Mst. Salma sustained injuries would be a strong corroborative circumstance provided to the eye-witness account to prove the guilt of the petitioner. As per medical evidence the deceased sustained injuries with sharp-edged weapon and the recovery of blood-stained Churri (P-1) which was used as weapon of offence, at the instance of petitioner on his arrest and the B positive report of Chemical Examiner that it was stained with human blood would provide another strong corroborative evidence to the ocular account of the eye-witnesses. The deceased was married with petitioner in Wata Satta and except the traditional difference `Watts Satta' marriages between the parties 'of two ladies there was no serious dispute between them and innocent Mst. Salma was made victim of unnecessary controversy between the two families. The analysis of the evidence would lead to no other result except holding the petitioner guilty of the charge and, therefore, we without taking any exception to the finding of guilt of the petitioner arrived at by the trial Court and upheld by the High Court hold the petitioner guilty of the charge. The next contention of the learned counsel for the petitioner related to the quantum of sentence. According to the learned counsel petitioner being Wali of the deceased would be entitled to the benefit of section. 308, P.P.C., therefore: the conviction and sentence of the petitioner under section 302(b), P.P.C. was illegal. In the alternative, learned counsel argued that in any case the immediate cause of occurrence being not known. it would not be a case of extreme penalty. The fist contention of the learned counsel relating to the application of section 308, P.P.C. by virtue of sections 306, P.P.C. is without any substance, sections 306, C 307 and 308. P.P.C. would only attract in the cases of Qatl-i-Amd which are liable to Qisas under section 302(a), P.P.C. and not in the cases in which sentence for Qatl-i-Amd has been awarded as Tazir under section 302 (b) and (c), P.P.C. For the purpose of removing the confusion and misconception of law on the subject the above provision must be understood in the true spirit. Section 306, P.P.C. provides that Qatl-i-Amd shall not be liable to Qisas in certain cases mentioned therein and thus it is clear that in such cases the punishment of Qisas will remain inoperative but there is no such exception in a case of Qatl-i-Amd punishable as Tazir. Under section 307, P.P.C. the sentence of Qisas for Qatl-i-Amd cannot be enforced in the cases referred therein and therefore, the exceptions mentioned in sections 306 and 307, P.P.C. are confined only to the cases liable to Qisas and not Tazir. Under section 308, P.P.C. it is provided that where an offender guilty of Qatl-i?Amd is not liable to Qisas in terms of section 306, P.P.C., the sentence of Qisas will not be enforced against him as provided under section 307, P. P. C. , and he shall be liable to Diyat and may also be punished with imprisonment which may extend to a term of 14 years as Tazir. The above provision of law can be made applicable only if the essential conditions contained therein are available in a case which is liable to Qisas, and not in the cases of Qatl-i-Amd punishable as Tazir. The petitioner was tried for the charge of Qatl-i-Amd under section 302(b), P.P.C. and was convicted and sentenced to death as Tazir, therefore, he would not be entitled to the benefit of section 308, P.P.C. and was rightly punished under section 302(b), P.P.C. It is not permissible to extend the benefit of provisions of section 308, P.P.C. in the cases of Qatl-i-Amd which are punishable under section 302(b) and (c), P.P.C. as Tazir and therefore, the extension of such benefit to cases falling under section 302(a) and 302(c), P.P.C. would amount to grant the licence of killing of innocent persons by their Walies.

6. The second contention of the leaned counsel for the petitioner for the lesser punishment was That accused probably acted under sudden provocation without-any premeditation therefore, the capital punishment would not be justified. We hawing carefully examined then record have not been able to locate any direct or circumstantial evidence to suggest that the accused acted under sudden provocation. The possibility of exchange of dialogues between the deceased and accused as husband and wife on family affairs would not permit the petitioner to take such a cruel step of committing murder of his wife and further petitioner has not taken any 'such plea in his defence. The petitioner for a very petty dispute committed murder of deceased of innocent and helpless lady in a brutal manner, therefore, he would not deserve any leniency in the matter of sentence.

7. For the foregoing reasons, we do not find it a fit case for grant of leave and while maintaining the conviction and sentence awarded to the petitioner by the trial Court and upheld by the High Court, dismiss, this petition. Leave to appeal is refused.

8. N.H.Q./M-542/S ??????????????????????????????????????????????????????????????????????????????????????????? Leave refused