DOST MUHAMMAD Versus KHIZAR HAYAT

1. JAVED IQBAL, J .--- This is a criminal revision preferred under section 435, Cr.P.C. on behalf of Muhammad Ibrahim against judgment, dated 12-3-1996 passed by Additional Sessions Judge, Pishin at Quetta in Sessions Case No.68 of 1994 convicting the accused/respondent namely Soofi Abdul Razzaq under section 302(c), P.P.C. and awarded him sentence of three (3) years' R.I. and fine of Rs.2,000 or in default whereof to undergo one month's S.I.

2. Briefly stated the facts of the case are that F.I.R. was got lodged by Ikrar Khan, S.-I., Police Station Pishin alleging therein that one Abdul Razzaq has .killed his wife Mst. Nek Bibi by means of firing. A case accordingly was registered under section 302, P.P.C. and after usual investigation accused was sent for trial. In support of accusation the prosecution examined eight witnesses namely P.W.1 Sahib Jan, P.W.2 Toor Jan, P.W.3 Juma, P.W.4 Dr. Arbab Abdul Wahid, P.W.5 Amanullah H.C., P.W.6 Syed Abdul Jabbar, P.W.7 Muhammad lqbal and P. W .8 War Khan, Investigating Officer. Accused/ respondent Soofi Abdul Razzaq pleaded guilty to the charge and also admitted his offence in his statement got recorded under section 340(2), Cr.P.C. and stated that on the day of incident when he arrived after offering Zohar prayer he saw his wife Mst. Nek Bibi with Ahmed Jan in an objectionable position and killed his wife by means of firing while Ahmed Jan managed his escape and he followed him and also fired upon and resultantly he was injured. On conclusion of trial the learned trial Court convicted and sentenced under section 302(c), P.P.C. for three years' R.I. and fine of Rs.2,000 and in case of default further to undergo one month's S.I. Being aggrieved this revision petition has been filed.

3. It is mainly contended by Mr. M. Zafar, Advocate that the learned trial Court has failed to exercise its jurisdiction in accordance with law and has fallen in error as conviction should have been awarded under section 302(a), P.P.C. as the offence committed was Qatl-i-Amd. It is further argued that the conviction awarded by learned trial Court under section 302(c), P.P.C. is conjectural as no evidence has come on record whereby conviction under section 302, P.P.C. could have been awarded.

4. Malik Sikandar Khan, Advocate appeared on behalf of deceased and strenuously controverted the position as explained by Mr. M. Zafar, Advocate on behalf of complainant by arguing that no conviction could have been awarded even under section 302(c), P.P.C. In the light of Islamic Law as in such-like cases the husband has an absolute right to kill his wife. In this regard the Qura'nic version as mentioned in Sura Nisa (V: 34), Sura Bani Israil (V:33), Sura Maida (V:2) and Sura Baqara (V:173) were referred in order to substantiate his abovementioned contention. Besides that he has also relied on the following books:--

(1) Islamic Qanoon Fojdari

(2) Kitab-ul-Ikhtiar.

5. Learned Advocate-General appeared on behalf of State and supported the judgment and pointed out that a lenient view has already been taken by learned trial Court. He, however, did not agree with the main contention as adduced on behalf of accused Abdul Razzaq that a husband has an absolute right to kill his wife on seeing her in objectionable position and there should be some proof for such allegation and circumstances should justify that timely action was taken by the husband as no other option was available in the peculiar prevailing circumstances at the time of commission of alleged offence. He further contended that unconditional authority cannot be conferred upon the husband to kill his wife and even under Islamic Law no such authority has been conferred upon and it is considered desirable to pronounce Talaq in such eventuality.

6. We have 'carefully examined the respective contention as adduced on behalf of Muhammad Ibrahim (petitioner) Soofi Abdul Razaq (accused/ respondent) and for State in the light of relevant provisions of law and record of the case. We may point out at the outset that no appeal was filed by the accused/ respondent against the impugned judgment whereby he was convicted and sentenced to undergo three years' R.I. under section 302(c), P.P.C. It is also to be noted that the said conviction was awarded as the accused/respondent pleaded guilty. It seems beneficial to reproduce hereinbelow the charge and its reply:--

"CHARGE

2. I, Muhammad Nadir Khan, Sessions Judge, Quetta do hereby charge you:--

3. Soofi Abdul Razzaq son of Muhammad Jan,

4. That on 3-1-1994 at about 3-20 p.m. at Killo Baso Pishin in your house you fired with a revolver at your wife Mst. Naik Bibi with intention to commit her Qatl-i-Amd and due to your firing she died thereby, you committed Qatal-i-Amd of Mst. Naik Bibi which is punishable under section 302, P.P.C. within cognizance of this Court.

5. And I hereby direct that you be tried by this Court for the aforesaid charge',

6. Dated 17-3-1994 (Sd.)

7. Sessions Judge,

8. Quetta.

9. Plea of accused .

10. The above charge having read over to the accused in 'Pashto' which he fully understands and he is asked whether he pleads guilty to the charge or not to which he replied as under:--

11. Ans. It is correct that I killed Mst. Naik Bibi due to her bad character, on the day of incident when I reached my house I found her in objectionable position with Ahmed Jan on which 1 killed her and Ahmed escaped.

12. (Sd.)

13. Sessions Judge,

14. Quetta. "

15. A bare perusal would indicate that the accused pleaded guilty in a categorical manner but simultaneously mentioned that the murder was committed as he had seen his wife in objectionable position with Ahmed Jan who escaped from the place of occurrence. It further transpires from the scrutiny of record that Ahmed Jan was also followed by the accused and he also launched murderous assault upon him by means of firing and he was injured but remained alive. It is remarkable to point out that there is no eye-witness of the occurrence. We have carefully examined the evidence as adduced on behalf of prosecution and to see whether in fact the alleged offence was committed or not. Sahib Jan (P.W.1) has deposed that at about 3-00 p.m. he heard a fire shot and after a while accused Abdul Razzaq came there and fired upon Ahmed Jan which hit on his right shoulder. The accused was caught hold of by Toor Jan Ghamai and Juma and pistol was taken from accused who told that he killed his wife as she was having illicit relations with Ahmed- Jan. He was subjected to cross -examination but nothing beneficial could be extracted. Toor Jan (P.W.2) has corroborated the version of Sahib Jan (P. W.1) and as such it would be of no use to reproduce his version. He however, stated in an unambiguous manner that accused Abdul Razzaq informed them that he killed his wife and would kill Ahmed Jan as he was having illicit relations with his wife and the pistol was also snatched from accused. He was subjected to cross-examination but nothing advantageous could be elicited. Juma Khan (P.W.3) has also corroborated the version of Sahib Jan (P.W.1) and Toor Jan (P.W.2). He also stated that accused informed that he killed his wife as he saw Ahmed Jan in objectionable position with his wife and he would also kill Ahmad Jan. Dr. Arbab Abdul Wahid (P.W.4) has examined the dead body and issued certificate (Exh.P.4/A) which indicates the injuries received by deceased Nek Bibi. Since the violent death has not been challenged, therefore, we do not consider necessary to offer detailed comments on medical report. Amanullah (P.W.5) is recovery witness in whose presence the blood-stained earth and blood-stained clothes were taken into possession. He also produced revolver (Art.2) which was got recovered vide recovery memo. (Exh.P.5/B). Syed Abdul Jabbar (P.W.6) has conducted chemical examination of the blood-stained earth and blood-stained shirt, which were found stained with human blood. He produced his report as (Exh.P.6/A). Muhammad Iqbal (P.W.7) is Arm Expert who produced certificate (Exh.P.7/A) indicating that alleged recovered revolver bearing No.96210 in working condition and positive findings were given regarding its use. Ikrar Khan (P.W.8) has deposed that he conducted the investigation and recorded the statements of witnesses namely Juma Khan, Toor Jan and Ghamai and also visited the place of occurrence where dead body of deceased Mst. Nek Bibi was lying in the compound of the house of accused who was also present at the spot. He further deposed that Juma Khan produced revolver allegedly snatched from Soofi Abdul Razzaq. He also secured blood-stained earth from the place of occurrence and sealed parcel was prepared. He also visited Civil Hospital, Pishin and dead body of deceased Mst. Nek Bibi was handed over to the relatives namely Lalak, Habibullah and Hazrat Ali without having the post-mortem examination as per direction of Assistant Commissioner, Pishin. He produced receipt of dead body (Exh.P.5/A), blood-stained shirt of deceased (Exh.P.5/C) and recovery memo. (Exh.P.5/B) pertaining to revolver, live cartridges and empties. He also sent all the parcels to F.S.L. Chemical Examination and also got recorded the confessional statement of accused under section 164, Cr.P.C. which was recorded by Tehsildar Mir Ahmed Sherwani. He also produced site plan (Exh.P.8/C) and challan (Exh.P.8/D). He also identified the signature of Mehram Shah, S.-I./S.H.O. on supplementary challan (Exh.P.8/E). He was also subjected to lengthy cross-examination but nothing beneficial could be extracted. The statement of accused was recorded on oath wherein he deposed that he killed his wife with the fire of pistol when he found her in objectionable condition with Ahmed Jan who managed his escape from the scene. He further stated that he followed Ahmed Jan and injured him by means of firing.

7. We have carefully perused the evidence led by the prosecution in support of accusation. The prosecution has been able to prove its case beyond shadow of doubt and the conviction as recorded on the basis of confession of accused, statements of eye-witnesses, recovery of crime weapon, Arms Expert report and circumstantial evidence does not call for any interference. It is remarkable to note that no appeal has been filed by Soofi Abdul Razzaq against order of his conviction. We are fully satisfied that he admitted his guilt voluntarily before Court of law when charge was framed against him and besides that the evidence has produced is concrete enough to justify the conviction.

8. The pivotal question to be determined is as to whether an absolute right has been conferred upon a husband under Islamic Law to kill his wife on seeing her in an objectionable condition.

9. Malik Sikandar Khan, Advocate has mainly relied on the judgment as reported in 1993 PCr.LJ 564 wherein it was observed as follows:--

16. "In the instant case, the deceased entered into the house of the accused without his permission and at the dead of night and while the deceased was violating the honour of his wife, he surprised him, picked up his Chadar which was lying nearby and put it around his neck to expel him out of room and the deceased died of asphyxia. The appellant could do it. He had to stop him by force. He could also inflict Danda blows as he did. He, therefore, had committed no offence. He was left with no other course. He could not watch the sex act in peace without violating Qura'nic order to him.

17. 'Help not one another unto sin and transgression'. (Verse 2, Surah Al Maida).

18. Then another Verse covering the situation aptly is:

19. 'But he who is driven by necessity, neither craving nor transgressing it, is no sin for him' (Verse 173, Surah A1 Baqarah).

20. This means in weak moments of provocation anything otherwise forbidden may be done with impunity.

21. Had the deceased run away from the place then the situation would have been different and the appellant could not kill the deceased after chase because the urgency to desist him from commission of the offence of Zina by force would have evaporated.

22. For reasons aforementioned, I am of the view that the appellant as custodian of honour of his wife had the right to kill the deceased while he was engaged in sex act with his wife and he had not earned liability of Qisas or Ta'zir or even Diyat, and is hereby acquitted. The appeal accordingly stands accepted and revision rejected."

23. We have not been persuaded to agree with the abovementioned observation for the following reasons:--

(1) The circumstances of the case as mentioned above referred to authority is not identical with that of the present one and as such being distinguishable it cannot be made applicable.

(2) Honourable Supreme Court has set aside the said dictum in case reported in PLD 1996 SC 274.

(3) Islam does not give blank cheque for brutal and merciless killing of a woman being on the basis of speculative and imaginary doubts.

10. Malik Sikandar Khan, Advocate has also referred Sura-Al-Nisa in support of his contention. We have respectfully perused Surah-Al-Nisa and relevant Verses are as under:--

24. A bare reading would indicate that without proof no extreme action can be taken. It must not be inferred from circumstances or conjectural presumption. Even the presumption that male and female having lived in the same room must have committed Zina was not found acceptable PLD 1983 FSC 497 and it was held that living together may cause suspicion which was not enough for conviction for the Offence of Zina PLD ~ 1983 FSC 522. There must be some categorical assertion by the witness showing the existing of illicit relations in order to establish the charge of Zina. It is necessary to show that a man and woman without being validly married to each other have wilfully committed sexual intercourse. The onus is on the prosecution to establish the charge against the accused persons by producing some positive or direct evidence where no such accusation is made even by the prosecution witnesses the onus cannot be said to be discharged. PLD 1992 FSC 397. According to Hedaya "Zina both in its primitive sense and also in its legal acceptance, signifies the carnal conjunction of a man with a woman who is not his property either by right of marriage or of bondage, and in whom he has no erroneous property, because Zina is denomination of an unlawful conjunction of the sexes, and this illegality is universally understood where such conjunction-takes place devoid of property, either actual or erroneously supposed" (Hedaya by Hamilton 182) but at the same time it must be kept in view that "Islam in order to save the Muslim society from the havoc of Zina has not solely depended .upon punishment by Hadd or Ta'zir but has introduced various preventive and reformative methods. Penal punishment is used as a last measure and the intent to punish persons of Zina etc., is not to allow Zina as a frequent act so that the people be punished every day for such a heinous offence. Purpose of these measures is that Zina be not committed and be rare phenomenon. Zina has been considered to be not only a grave offence but also a great sin, the punishment of which is also to be had in world hereafter and it is so oftenly repeated by the Holy Qur'an. On the other hand, God has provided all the facilities of marriage and ordained every Muslim to marry and to shun celibacy. In some cases, Islam has allowed a man to marry more than one woman and in proof of Zina the Holy Qur'an as well as the Ordinance has provided that at least four eye-witnesses are required to depose before the Court that they have seen the accused in the actual act in intercourse. Those witnesses should be of unimpeachable character and have to state that they have seen both the persons in the very act of the. actual-.intercourse. These hard rules of evidence themselves indicate that the purpose of law is not to fix scaffold in crossings to flog people every day but to punish only those who, despite preventive methods adopted by-Islam, commit Zina in such a wanton way that four or more persons can see them. It is another fundamental principle of Muslim Law that in order to inflict Hadd or Ta'zir the evidence shall be proved beyond any reasonable doubt. It is therefore, a fundamental rule of Islam that doubt cannot be the basis for punishment but provides a ground to pardon". PLD 1980 Lah. 386 (404).

25. It is nowhere provided in Islam that even on the basis of doubt punishment can be awarded. The doctrine of "Shubh" has got a very important position in Islam i.e. jurisprudence which is known as Fiqa. It is fundamental rule of Islam that doubt Cannot be the basis for punishment but provides a ground to pardon and it is mentioned by Ibni Maja the Holy Prophet (peace be upon him) having stated:--

26. In another Hadis the Holy Prophet (peace be upon him) stated:--

27. The upshot of the above discussion is that action taken on the basis of omissions and doubts cannot be ignored on the interpretation, which is not in consonance with true spirit of Islamic Laws.

28. In our view the real problem seems to be that we could not decide by now that which system of law is to be followed and we are doing different experience on ad hoc basis. The Qisas and Diyat Ordinance whereby Islamic provisions were incorporated in P.P.C. is yet to be placed before Parliament and haphazard legislation in the shape of Ordinance has highlighted various flaws and ambiguities which are apparent in punishment to be awarded by way of Ta'zir and no specific mode or mechanism has been provided to deal with certain eventualities such as the commission of murder under grave and sudden provocation and on account of Ghairat. This aspect of the matter was also discussed by Honourable Lahore High Court in case titled ' Ghulam Yasin and 2 others v. The State' PLD 1994 Lah. 392 as under:--

29. "Injunction of Islam in the form of 'Ahadeeth' relating to Qatl on account of Ghairat does not find any reflection in the specific provisions relating to Qatl which now stands incorporated in the Pakistan Penal Code. The omission is understandable as the process of bringing the old provisions of the law on the subject in conformity with the Injunctions of Islam, is still in its infancy and attaining expertise about the law which has now been put into practice is likely to take some time. There is no dearth of Ahadeeth recognizing the right of an individual to defend himself against any aggression against him or his property or the right to defend other individuals, but present law on the subject makes no specific mention of giving any allowance to persons causing injuries or even Qatl in the exercise of such right. It is hoped that by the time the present legislation on the subject, which is presently only in the form of an Ordinance, is laid before the Legislature, due notice will be taken of these omissions and others in the law presently in force. (PLD 1994 Lah. 392). "

30. Be as it may we are conscious of the fact that provisions as contained in section 338-F, P.P.C. can be invoked but the same are not very useful in the absence of Islamic law and different conflicting interpretation of different school of thoughts. There is, however, no cavil to the proposition that Qatl on account of grave and sudden provocation cannot be termed as Qatl-i-Amd but it must be proved that provocation was in fact grave and sudden based on concrete base and free from all doubts. The concept of Ghairat could not be stretched too far as a liberal interpretation would be detrimental to the entire society and any woman could be killed on the plea of so-called Ghairat. There must be some confidence inspiring evidence to show that murder was committed on account of Ghairat. Mere bald assertion would not be sufficient to take refuge beyond the plea of Ghairat after commission of murder. No yardstick, however, could be fixed to adjudge that when such extreme action can be taken as it would depend upon circumstances of each case and nature of evidence available in support of the said plea. It would be essential to mention here that it was made clear in Surah-Al-Nisa translation whereof is reproduced hereinbelow for ready reference:--

31. The abovementioned Qur'anic verdict makes it abundant clear that evidence of four witnesses regarding Zina allegedly committed by woman is essential and no free hand has been given to a husband for slaughtering his wife on account of mere suspicion.

32. Honourable Supreme. Court of Pakistan in the recent past has diverted its attention to the plea of grave and sudden provocation and two relevant provisions as contained in section 302, P.P.C. have been discussed in two cases:

(1) Abdul Haque v. The State PLD 1996 SC 1.

(2) Ali Muhammad v. Ali Muhammad PLD 1996 SC 274

33. While discussing the plea of grave and sudden provocation in case of Ali Muhammad v. The State PLD 1996 SC 274 it was observed a4 follows:--

34. "The case- of Abdul Haq, referred to above was a case of provocation by words: in such cases the Courts proceeded on the basis that 'hard words break no bones, and the law expects a reasonable man to endure abuse without resorting to fatal violence', and that "mere words (not being menace of immediate bodily harm) do not reduce murder to manslaughter-------" (Holmes case). The significance of Abdul Haq case, however, lies in the fact that it recognised that grave and sudden provocation is a factor to be taken into consideration in determining, the punishment in cases within clause (b) of section 302 of the P.P.C. and that cases such as this in which the husband finds his wife in the act of adultery or in a compromising position with another man are a class apart.

35. The provisions as contained in section 302, P.P.C. were also examined and it was held:

36. "Section 302, P.P.C. (as substituted), itself divides Qatl-i-Amd, purposes of punishment into three categories---

(1) Qatl-i-Amd, which is punishable with death as Qisas;

(2) Qatl-i-Amd punishable with death or life imprisonment as Ta'zir; and

(3) Qatl-i-Amd punishable with imprisonment of either description for a term, which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of Qisas is not applicable.

37. Section 302 of the P.P.C. therefore, itself contemplates plainly and clearly a category of cases, which are within the definition of Qatl-i- Amd but for which the punishment can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law-maker has left it to the Courts to decide on a case to case basis."

38. The provisions as contained in section 302(e), P.P.C. were also examined with the following observations:--

39. S. 302(c)---Grave and sudden provocation---Right to defend the honour of one's wife falls under S.302(c), P.P.C.---Right to act as " Qawam"- must receive a construction most beneficial to the widest possible amplitude of that right.

40. The offender has a right of self-defence, which includes the right to defend the honour of his wife and that such a case falls under section 302, clause (c) of the P.P.C.

41. The fundamental right to act as "Qawam" conferred as it has been by the Holy Qur'an, which is intended to endure for all times to come, must receive a construction most beneficial to the widest possible amplitude of that right peripheral rights or rights of penumbra, that is, rights closely associated to it are also basic rights. There can be no doubt that included in the basic right of the man to act as "Qawam" is the right to protect the honour of his women and to defend them from outrage, disgrace and insult."

42. In view of abovementioned discussion and guideline as provided by Honourable Supreme Court we have focussed our attention to the pivotal question as to whether accused can invoke the defence of grave and sudden provocation or otherwise? It transpires from the scrutiny of record that the accused had admitted his guilt in the following words:--

43. "It is correct that I killed Mst. Nek Bibi due to her bad character, on the day of incident I reached my house I found in an objectionable position with Ahmed Jan on which I killed her and Ahmed escaped."

44. (Answer to the charge framed on 17-3-1994).

45. It has also come on record that accused had launched a murderous assault upon Ahmed Jan and injured him by means of firing. The statements of Sahib Jan (P.W.1), Toor Jan (P.W.2) and Juma Khan (P.W.3) can be referred in this regard. No other motive has come on record as such we have to believe the statement of his guilt as a whole 1992 SCMR 2047, but here at this conjecture the question arises as to whether under circumstances of the case the accused had a right, while defending his honour as contended by Malik Sikandar, Advocate to the extent of killing his wife and launching murderous assault upon Ahmed Jan. Malik Sikandar, Advocate has mentioned Kitab-ul-Ikhtiar translated by Moulana Salamat Ali, page 619. A thorough perusal of record would indicate that accused had exercised his right of defending his honour but nowhere he had alleged that at the fateful time deceased was in a compromising position or he had seen both of them committing Zina. We have to keep in view the circumstances of the case and it would be essential to mention here that a marriage ceremony was being performed in the next door neighbour and it was day time and it seems impossible that in presence of various guests and marriage ceremony such risk would have been taken by Ahmed Jan, but the possibility of his being there in the house of accused cannot be ruled out. In our view it was not mere a suspicion but something more than that as is corroborative from record. The prosecution witnesses namely Sahib Jan (P.W.1), Toor Jan (P.W.2) and Juma Khan (P.W.3) have mentioned about the factum of firing upon Ahmed Jan who escaped. The only motive which has come on record and as mentioned earlier is the admission of accused who pleaded guilty and stated in a categorical term that he killed his wife as he saw her in objectionable condition with Ahmed Jan. It is remarkable to note that no evidence could be produced by the accused to show that in fact act of Zina was being committed by Ahmed Jan and as such it cannot be declared that on seeing Zina the accused on account of grave and sudden provocation killed his wife but there is no denial to the fact that he must have seen accused Ahmed Jan in his house which flared him up and consequently fateful incident occurred. In such view of the matter accused does not deserve acquittal as contended by Malik Sikandar, Advocate. In the light of above reasons and legal position as explained while maintaining conviction of convict Abdul Razzaq under section 302(c), P.P.C. we are inclined-to enhance the sentence of three years' R.I. to that of five years with benefit of section 382-B, Cr.P.C. The fine as imposed being not provided in substance law is hereby set aside. The revision petition is resultantly accepted.

46. N.H.Q./584/Q Sentence enhanced.