ANWAR HUSSAIN Versus THE STATE

The appellants, Anwar Hussain Shah aged 22 years and Jafar Hussain Shah aged 21/22 years, were convicted under section 302/34, P.P.C. on two counts for the murders of Amjad Hussain aged 17/18 years and Mst. Jamila Bibi aged 17/18 years, and were sentenced to suffer life imprisonment on each count plus a fine of Rs.10,000 each and in default in the payment of fine, they were directed to suffer further two years' R.I. each by the learned Additional Sessions Judge, Sialkot on 30-10-1986. It was also directed that the fine if recovered shall be paid to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. was also allowed to the appellants. The appellants have challenged their conviction and sentence by filing this appeal.

Briefly stated, the prosecution case is that on 15-8-1985 at about 6-00 a.m. the complainant Mst. Shahnaz Bibi P.W.8 disclosed in her statement that her parents had died and that her brother Amjad Hussain, deceased, had been living with her in the house of her husband, Muhammad Ashraf Shah. Amjad Hussain deceased, had developed illicit relations with Mst. Jamila Bibi, deceased daughter of Muzaffar Shah, who was the daughter of the sister of Ashraf Shah, the husband of the informant. The abovesaid Muhammad Ashraf Shah came to know about the illicit links between the above-mentioned two deceased only 8/10 days ago. In this connection, Amjad Hussain, deceased was reprimanded ,by Muhammad Ashraf Shah. The complainant, therefore, had apprehension in her mind that her deceased brother might be subjected to some harm and, therefore, she sent him to village Korayki to live in the house of her other brother. She further requested Mst. Safia Bibi, the mother of Mst. Jamila Bibi, deceased, for giving the hand of Mst. Jamila Bibi to her brother Amjad Hussain, deceased. However, this request of the complainant was not accepted. The husband of the informant went to Gujranwala for earning his livelihood there. In the meantime, Mst. Safia Bibi and Sarwar Shah agreed to give the hand of Mst. Jamila Bibi, deceased, in marriage to Amjad Hussain, deceased. Under the circumstances, the complainant summoned her husband from Gujranwala in the village. A day before the occurrence Muhammad Ashraf Shah went to village Korayki and brought back his brother-in-law, Amjad Hussain: deceased in his house. It was agreed amongst the elders that both the deceased shall be linked together in marriage. However, father of Mst. Jamila Bibi, deceased, was not available. The complainant further disclosed that the two appellants had nursed a grudge against the two deceased for having illicit relations with each other. Therefore, the complainant as well as her husband Muhammad Ashraf Shah in order to give protection to the deceased from the two appellants accommodated them in the cattle shed of Sher Shah. The idea was that both the deceased will stay in the cattle shed of Sher Shah during the night and on the following morning their Nikah shall be performed. After some time, the complainant went towards the Haveli of Sher Shah in order to satisfy herself about the safety of her brother and when she reached near the cattle shed, she saw that the appellant Jafar Shah was holding a lantern in his hand while Anwar Hussain Shah, appellant was inflicting blows with his Toka on the neck of Amjad Hussain deceased, who was lying on the ground. The appellant Anwar Hussain Shah later on gave the Toka to the other appellant Jafar Shah and ? with the same Toka he gave blows on the neck of Mst. Jamila, deceased who was sitting on the ground. Thus, both Mst. Jamila Bibi and Amjad Hussain were done to death by the appellants. On the hue and cry being raised by .the complainant, Maqbool Shah and Abdullah Shah reached the spot and witnessed the occurrence. Both these witnesses were not produced by the prosecution during the trial. After killing Mst. Jamila Bibi and Amjad Hussain deceased, the appellants left. the place of occurrence leaving behind the Toka.

3. Ahmad Shujah S.I./S.H.O. P.W.10 conducted the investigation of the case, being the Incharge of the Police Station Satrah. He recorded the statement of the complainant vide F.I.R. Exh.P.J. The witness visited the place of occurrence and prepared the site inspection report. He prepared the inquest report Exh.P.K. and Exh.P.L. of the deceased. He prepared the injury statements of the deceased Exh.P.M. and EXh.P.N.. The witness took into possession the blood-stained earth vide memo. Exh.P.F. and also took into posses?sion blood-stained chaff vide memo. Exh.P.G. Blood-stained Toka P.8 was taken into possession vide memo. Exh.P.O. on 15-8-1985. The witness stated that both the appellants appeared before him. Blood-stained clothes of the appellant Anwar Hussain Shah, Dhoti P.9, vest P.10 and Parna P.11 were taken into possession vide memo. Exh.P.T. Similarly, blood-stained clothes of the appellant Jafar Shah Lacha P.12, vest P.13 and Parna P.14 were taken into possession vide memo. Exh.P.H. On 16-8-1985, the blood-stained clothes, Qamees P.1, Brassier P.2, Shalwar P.3 and Dopatta of Mst. Jamila Bibi, deceased were taken into possession vide memo. Exh.P.A. The blood-stained clothes, Qamees P.5, vest P.6 and Shalwar P.7 of Amjad Hussain Shah, deceased were taken into possession vide memo. Exh.P.B. The witness got the site plan of the place of occurrence prepared from Akhtar Naqash P.W.2 vide Exh.P.C. The report of the Chemical Examiner Exh.P.P. on the articles sent to him stated that the same were stained with blood. The report of the Serologist Exh.P.Q. on the articles sent to him shows that the same are stained with human blood.

4. Dr. Nazeer Ahmad P.W. 3 on 16-8-1985 conducted the post-mortem examination on the dead body of Mst. Jamila Bibi and found the following injuries on her person:-

(1) An incised wound 9 x 2? ? c.m. x muscle deep on right side of neck below lower jaw.

(2) 2 incised wounds (in one) in front and on left side of neck 10 x 4 c.m. x bone deep. Big blood vessles windpipe muscles were found cut.

(3) An incised wound 6 x 2 c.m. x bone deep in front of neck below the injury No.2. Blood vessles other structure found cut.

(4) An incised wound 5 x 2 c.m. x muscle deep on back of neck left side.

(5) An incised wound 3 x 1 x muscle deep in front of right shoulder upper part.

(6) 2 incised wounds 3 x ? x skin deep each 2 c.m. apart on left shoulder and back.

(7) An incised wound 6 x 2 c. m. x bone deep on the back of left wrist joint found out with tendens on the back.

In the opinion of the doctor the death occurred due to shock and haemorrhage resulting from injuries Nos. 1 and 2. These injuries were ante-mortem caused by sharp-edged weapon. The injuries were sufficient to cause death in the ordinary course of nature. The time between the injuries and death wah instantaneous and that between death and post-mortem examination was 36 hours.

On the same day at about 2-00 p.m. the same witness conducted post-mortem examination upon the dead body of Amjad Hussain, and found the following injuries on his person:-

(1) An incised wound (2 in one) 17 x 3? c.m. x bone deep on left side of neck below the ear in transverse direction. Lower jaw bone found cut through and through. Big blood vessles in left side neck found cut, through and through alongwith muscles and lower part of the ear.

(2) 5 incised wounds not less than 4 x 1 c.m. x muscle deep each on left side neck below injury No. 1 in transverse direction in area from below the injury No.1 to left shoulder.

(3) An incised wound 3 x 1 c.m. x bone deep on the back of neck left side 2 c.m. above the injury No.1.

(4) An incised wound on the back of right index finger on metacarpophal eangial joint.

In the opinion of the doctor, death occurred due to shock and haemorrhage resulting from injury No.1. Injury No.1 was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem and were caused by sharp-edged weapon. The time between injuries and death was instantaneous and between death and post-mortem examination was about 36 hours.

5. Mst. Shahnaz Bibi, complainant P.W.8 is the only eye-witness in the case. As stated earlier, she is the sister of the deceased Amjad Hussain and Mst. Jamila Bibi was the daughter of her uncle. Further, she was the niece of the husband of th8 complainant as well. The witness supported the case of the prosecution. She claimed that she saw light in the room where the occurrence took place and that she went there and saw both the appellants while inflicting injuries on the persons of the two deceased. In cross-examination she stated that she did not know as to whether Mst. Jamila Bibi, deceased was pregnant or not. She was, however, confronted with her statement Exh.P.J. wherein it was recorded that 'Amjad Hussain deceased had illicit relations with Mst. Jamila Bibi, deceased. The appellants while making statements under section 342, Cr.P.C. denied the allegation levelled against them. Anwar Hussain Shah appellant stated that he was innocent and that the prosecution has deliberately suppressed the evidence and that he has been falsely implicated in the case. He further, stated that the complainant by giving false statement wants to save her own husband Muhammad Ashraf Shah from his involvement in the murder case. The appellant went on to say that on account of the illicit relations between the two deceased, all their relatives including Muhammad Ashraf Shah were offended. Almost to the same effect is the statement made by the other appellant Jafar Shah. He stated that everybody in the village dislike the immoral acts on the part of the two deceased. He further urged that Muhammad Ashraf Shah, the husband of the complainant, was vitally interested in the matter inasmuch as he had the reason to murder Amjad Hussain and Mst. Jamila Bibi. He stated that Amjad Hussainy, deceased, the brother-in-law of Muhammad Ashraf Shah was responsible for pregnancy of Mst. Jamila Bibi which fact was known to everybody in the village.

6. Learned counsel for the appellants contended that there is not an iota of evidence to link the appellants in the commission of the crime inasmuch as he stressed that the solitary statement of Mst. Shahnaz Bibi, P.W.8, was not at all enough to convict 46d sentence the appellants under a capital charge. He submitted that the prosecution has failed to produce Abdullah Shah and Maqbool Shah without any legal justification. Learned counsel submitted that if these two witnesses had been produced, they would have definitely given evidence against the prosecution and in favour of the defence version. The learned counsel stated 'that from the evidence available on record it is clear that the two appellants have committed the murders under grave and sudden provocation and as such, their case will not fall under the provisions contained in section 302, P.P.C. and instead the same shall fall under section 304, Part I, P.P.C. Lastly, the learned counsel stated that it is in the evidence that Mst. Jamila Bibi, deceased was pregnant for having illicit relations with Amjad Hussain, deceased. The learned State counsel submitted that there is absolutely no motive for the false involvement of the appellants in the case. However, the learned State counsel agreed with the learned counsel for the appellants that the offence committed by them will at the most fall under section 304, Part I, P.P.C. being a case of grave and sudden provocation.

7. I have heard the learned counsel for the parties and have perused the record. The learned counsel made a candid statement at bar that from the facts, circumstances and available evidence on record it is proved that the offence committed by the appellants at the most will fall under exception 2 of section 300, P.P.C. and as such they cannot be convicted and sentenced under section 302, P.P.C. Learned counsel stated that it is' established beyond doubt that the deceased Mst. Jamila Bibi was pregnant because of her illicit relations with the other deceased Amjad Hussain. This statement of the learned counsel for the appellants has not been challenged by the learned State counsel, at the very outset. The submission of the learned State counsel is that the circumstances of the case show that the offence committed is attracted by the provisions contained in section 304, Part I, P.P.C. In view of the agreement of the learned counsel for the parties on the question as to what offence has been committed by the two appellants, it is not necessary that the entire evidence be discussed in the case. It is sufficient to observe here that the solitary witness Mst. Shahnaz Bibi P.W.8 in her cross?-examination did not specifically deny that Mst. Jamila Bibi, deceased was pregnant. She has tried to make improvements in the prosecution case during the trial. However, she was confronted with her statement Exh.P.J. where she stated that Amjad Hussain deceased had illicit relations with Mst. Jamila Bibi deceased. From the trend of the evidence of Mst. Shahnaz Bibi P.W.8 it is crystal clear that she had not told the whole truth. Even otherwise she had taken a contradictory stand before the learned trial Court from the one which she took before the police. In my view, it is proved from the evidence that both the deceased were carrying on illicit relations with each other and that Mst. Jamila Bibi was pregnant because of these illicit links. It may be noted that doctor Nazir Ahmad P.W.3 disclosed that the deceased Mst. Jamila Bibi was found pregnant for a period of about 14 weeks. Thus, the medical evidence is wholly in line with the prosecution story. This clearly shows that Mst. Jamila Bibi, deceased, and Amjad Hussain, deceased, were carrying on illicit liaison with each other. This is in the evidence that at the eventful night both the deceased were present in the cattle shed of Sher Shah and it is just possible that they might have been found while indulging in sexual intercourse with each other when they were located by the two appellants. Therefore, in my view, this is a case of grave and sudden provocation under which the two appellants committed the murder of Amjad Hussian and Mst. Jamila Bibi in the cattle shed. The admitted position in the case is that both the appellants are closely related with Mst. Jamila Bibi, deceased, and as such they might have been highly infuriated at the sight of the two deceased indulging in sexual intercourse in the cattle shed. Even the case of the prosecution is that both the deceased were made to stay together in the cattle shed during the night of occurrence. Under the circumstances it was nothing but natural in the dead of night that both-the deceased who were young and of course were the lovers must have been indulged in sexual intercourse when actually spotted by the two appellants in that process. The appellants on the sight of the two deceased while committing sexual intercourse must have lost self-control under' grave and sudden provocation. The two appellants had absolutely no animosity against the deceased. The prosecution as well as the defence have agreed upon the common motive for the commission of the offence in the case. This being, so, in my view this is a case which is covered by section 300(2), P.P.C. and, therefore, under the circumstances the appellants cannot be convicted and sentenced under section 302, P.P.C. Obviously, the conviction and sentence of the two appellants under section 302/34, P.P.C. is not called for in view of the evidence of this case. Thus, the conviction of the appellants under section 302/34, P.P.C. is accordingly altered to the one under section 304, Part 1/34, P.P.C. While dealing the question of quantum of sentence, I will like to refer the following cases for coming to the correct conclusion for awarding sentence to the appellants. In the case State v. Akbar P L D 1961 (W.P.) Lah. 24, under the similar circumstances, the learned trial Court convicted and sentenced the accused under section 304, P.P.C. till the rising of the Court. The sentence was not enhanced by the High Court despite the fact that the complainant moved a criminal revision for the abovesaid purpose. In Muhammad Sadiq v. The State P L D 1966 (W.P.) Lah. 104 the accused on seeing his maternal uncle's wife and the deceased making love to each other lying on one cot gave injuries to the deceased. It was held that the case was of grave and sudden provocation and as such the conviction was altered from section 302, P.P.C. to section 304 Part I , P.P.C. The sentence of two years was awarded to the accused. In Ghulam Murtaza v. State 1985 P Cr. L J 1191 the accused killed on seeing his wife with the deceased in a compromising position. The deceased was found naked. It was held that the accused acted under grave and sudden provocation and as such he was not guilty of murder. He was accordingly sentenced to three years' R.I. under section 304, Part 1, P.P.C. In Maqsood Ahmad v. The State 1983 P Cr. L J 2236 under similar circumstances, the accused was sentenced to the period of imprisonment already undergone by him. In view of the above referred authorities, it is clear that almost the range of sentence to be awarded to such like accused persons who are guilty of the commission of killing under grave and sudden provocation under section 304, Part I, P.P.C. is from till the rising of the Court to three years' R.I. Respectfully following the above authorities on the quantum of sentence, I proceed to sentence the two appellants to a period of three years' R.I. each on two counts. The sentences shall run concurrently. The benefit of section 382-B, Cr.P.C. shall be given to the appellants.

In Ghulam Murtaza v. State 1985 P Cr. L J 1191 it was held that the deceased being immoral, their legal heirs were not entitled to any compensation and as such the sentence of fine was set aside. In the case in hand, the two deceased also indulged in immoral act and as such, there is no legal justification to sentence the appellants to pay fine for its onward disbursement to the legal heirs. Accordingly, respectfully following the rule laid down in the above-referred authority, the sentence of fine of the two appellants is set aside. With this modification in the sentence, the appeal is dismissed.

M.Y.H./A-369/L ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.