SHER ALI Versus STATE

Sher Ali aged (41) and Muhammad Hayat aged (39), both real brother and sons of Ghulam Ali residents of village Bahnaka were tried by the learned Additional Sessions Judge, Sargodha on charges under section 302 read with section 34, P.P.C. for having committed double murder of deceased Muhammad Khan and Mst. Halim Khatoon (wife of Muhammad Khan deceased). Muhammad Hayat (acquitted accused) was also charged under section 342, P.P.C. for having wrongfully confined Muhammad Khan deceased on the night between 17/18‑9‑1968. The learned Additional Sessions Judge, Sargodha vide his judgment, dated 15‑11‑1974 acquitted Muhammad Hayat of all the charges, but convicted Sher Ali appellant on two counts under section 304, Part II, P.P.C. for the murder of Muhammad Khan and Halim Khatoon and sentenced him to undergo 5 years' R.I. on each count. It was directed that the sentence would run concurrently. The learned Additional Sessions Judge did not impose any fine on account of the poverty of the appellant.

2. Aggrieved by the aforesaid conviction, this appeal was filed through jail, but at the time of hearing of this appeal, Mr. Bashir Zafar, Advocate entered appearance on behalf of the appellant.

3. The occurrence took place on 18‑9‑1968 at about 7‑00 a.m. in the area of Dhok Chouhr. The F.I.R. with regard to the occurrence was lodged by Muhammad Nawaz P.W.7 at about 12‑00 noon at Police Station Naushehra situated at the distance of 12 miles from the place of occurrence. The first informant Muhammad Nawaz P.W. 7 stated in the F.I.R. that at about Khuftanwela he heard the noise of 'thief' 'thief' coming from the side of Dhok Chouhr and thus he proceeded towards the said Dhok. On his way he was joined by Qutab Din and Mian Muhammad (given up witnesses). According to the first informant, on reaching Dhok Chouhr he was informed by Mst. Bakhat Bhari P.W.8, that at about Isha prayer's time, Muhammad Khan deceased came running to her while being chased by Muhammad Hayat (acquitted accused). It was further stated that Muhammad Hayat caught hold of Muhammad Khan deceased and took him in his Kotha and confined him therein. According to the first informant, he was further informed by Mst. Bakhat Bhari, that Muhammad Hayat accused sent for Sher Ali appellant through his son Akbar, and Sher Ali came from Dhok Arara. Allegedly the appellant Sher Ali reached the spot at about sun rise time on the next day. It was further stated, that the appellant brought out Muhammad Khan deceased from the Kotha and after putting him on a cot murdered him, by inflicting hatchet blow on his neck while Muhammad Hayat (acquitted accused) had held the deceased Muhammad Khan from his hairs. It was further alleged that after killing Muhammad Khan deceased, the appellant and Muhammad Hayat (acquitted accused) murdered Mst. Halim Khatoon in the same manner, on the same cot. It was stated that beside the first informant the occurrence was witnessed by Qutab Din and Muhammad Khan (given up witnesses) in addition to many other residents of the village.

4. The F.I.R. containing the above narrated events was recorded by Muhammad Sadiq, S.I. P.W. 9 who reached the spot and conducted the necessary investigation.

5. On 19‑9‑1968 P.W.1 Dr. Mukhtar Ahmad conducted the post‑mortem examination on the dead body of Muhammad Khan deceased, who had received 11 injuries. Injuries Nos. 1 and 2 were found to be grievous and dangerous to life. In the opinion of the doctor, the death was caused due to sever external haemorrhage caused by injuries Nos. 1 and 2. The same doctor on the same day also conducted the post‑mortem examination on the dead body of Mst. Halim Khatoon and found 12 injuries on her person. Injuries Nos. 5 and 6 were declared grievous and dangerous to life. The death in the opinion of the doctor occurred on account of external haemorrhage caused by the aforesaid two injuries.

6. On arrest, the appellant Sher Ali got recovered the blood‑stained hatchet which was found to be stained with human blood.

7. In their examinations under section 342, Cr.P.C. Muhammad Hayat (acquitted accused) denied the charge and stated as follows:‑--

"The complainant is related to Malik Sarfraz Khan, Advocate. He has got a long standing enmity with Muhammad Hayat, our landlord. I am implicated due to this enmity, although I was not present at the spot, because I live in village Bahnaka."

Appellant Sher Ali in his examination under section 342, Cr.P.C. stated as under:‑--

"I am innocent and the act was committed when I acted under the grave and sudden provocation and under such circumstances which are intolerable for a normal human being. Hayat co‑accused lives at village Bahnaka and was not present at the time of occurrence."

8. I have carefully perused the evidence on the record of the case. In my view, the learned Additional Sessions Judge rightly disbelieved the entire prosecution case and proceeded to record the conviction on the basis of admission of Sher Ali appellant. The perusal of evidence reveals that P.W.7 the first informant Muhammad Nawaz and P.W.8 Mst. Bakhat Bhari contradicted themselves and tried to improve upon their statement as well as the F.I.R. To illustrate, Muhammad Nawaz P.W. 8 in the F.I.R. categorically stated, that motive I behind the crime was that Sher Ali appellant, had seen his wife Mst. Halim Khatoon and deceased Muhammad Khan in objectionable condition on the same cot. At the trial Muhammad Nawaz resiled from such version in the F.I.R. as to the motive, and stated that the cattle of both parties had trespassed into the land of each other, therefore, the crime was committed. Second illustration as to the infirmity in the prosecution case is, with regard to the time of occurrence. In the F.I.R. the first informant indicated the time of occurrence as between 1/2.00 a.m. while at the trial he stated that it was Ishawela when Muhammad Khan deceased was captured by Hayat (acquitted accused). The learned Additional Sessions Judge rightly observed that at Ishawela in a village, a person could not have been confined in the manner as the prosecution wanted him to believe. Similarly Met. Bakhat Bhari also resiled at the trial with regard to the time of occurrence. In my view, the learned Additional Sessions Judge rightly observed that there was considerable delay in the lodging of F.I.R. and also that the material facts had been suppressed by the prosecution.

9. It is important to note that Qutab Din and Mian Muhammad (given up witnesses) were not produced by the prosecution which was the best evidence in this case and the adverse inference had to be drawn against the prosecution for withholding such evidence. It is further important to note that Mst. Bakhat Bhari had no occasion to be present at the scene of occurrence, inasmuch as, she was a married woman and was resident of a different village. In her statement she attempted to justify her presence but such attempt proved to be futile. It is further pertinent to mention that the names of the eye‑witnesses were not mentioned either in the inquest report or in the inspection notes prepared by the Investigating Officer, which facts though not vital in every case, attains importance in the circumstance in this case in so far as, it had been specifically alleged in the F.I.R. that the given up witnesses and the other residents of the village had seen the occurrence while standing in the courtyard.

10. Without further appraising the evidence, I am convinced that the prosecution did not come with clean hands and, therefore, the learned Additional Sessions Judge, rightly discarded the prosecution case as sought to be established at the trial. In such circumstances, the resort was rightly had to the admission of the appellant in its entirety. The learned Additional Sessions Judge, therefore, justifiably found it to be a case falling within the exceptions of the conviction under section. 304, Part‑II of the P.P.C. which is not open to any exception.

11. Furthermore, the admission of the appellant Sher Ali finds support from the contents of the F.I.R. and thus plea of the appellant that he found his deceased wife Mst. Halim Khatoon in an objectionable condition with Muhammad Khan deceased is worthy of belief.

12. Having considered all the aspects of the case, next question arising for consideration is quantum of sentence to be imposed upon the appellant. In the case decided by this Court reported as State v. Akbar P L D 1961 Lah. 24 this Court had observed that in such cases, the punishment to be meted out, has to be measured by a different yard stick. Preponderance of the authorities is that the Courts have always been reluctant to impose heavy punishment on such offenders. It cannot be laid down as general rule the particular period of punishment which has to be imposed. The case law on the subject further reveals that the superior Courts have considered sentence of few months for such like offences to be sufficient to meet the ends of justice in appropriate cases. In support of my view, I would refer to A I R 1933 Lah. 165 and Muhammad Zaman v. Emperor and another A I R 1939 Lah. 471. In both these cases sentence of three months in such like cases, was considered sufficient to meet the ends of justice. Similarly, in Aziz‑uz‑Zaman v. Crown P L D 1950 Pesh. 76 sentence of four months was considered as adequate.

13. To sum up, to see one's wife, in an objectionable condition, in the background of social custom prevailing in our society and also moral values, notion of honour and chastity, it must be regarded as the provocation of the gravest kind to witness the degrading spectacle of a woman of one's family being subjected to illicit sexual intercourse.

14. The occurrence took place in September, 1968, the trial was concluded on 15‑11‑1974 and the appeal has come up for hearing in 1984. Since 16 years have elapsed since the commission of the offence and the sentence of the appellant was suspended as far back as on 16‑4‑1975, therefore, in these circumstances, I would hold that the sentence already undergone would be sufficient to meet the ends of justice.

15. With these observations, this appeal is dismissed with the modification as to the sentence altered above.

H.A.K. Sentence reduced.