ASHIQ HUSSAIN Versus ABDUL HAMEED

TASSADUQ HUSSAIN JILLANI, J. ‑‑‑Through this criminal revision the petitioner complainant has challenged the judgment, dated 27‑7‑1999 passed by learned Sessions Judge, Rajanpur vide which having tried the respondent and co‑accused Ghulam Rasool for double murder of Abid Hussain, aged 16/17 years and Mst. Hafizan Bibi, aged 15/16 years he while acquitting Ghulam Rasool convicted respondent Abdul Hamid and sentenced him to seven years' R.I. under section 302(c), P.P.C., on each count. Sentences were directed to run concurrently and he was also granted benefit of section 382‑B, Cr.P.C. Petitioner has sought the enhancement of the sentence awarded to the respondent convict.

2. The prosecution story as given in the F.I.R. Exh.P.J. registered by P.W.9 Muhammad Anwar. A.S.‑I. on the statement of Ashiq Hussain P.W.7 briefly stated is that on 19‑10‑1996 at about 12‑00 noon the complainant alongwith Muhammad Hussain P.W.8 and Rasool Bakhsh (not produced) were in their cotton field, the women‑folk belonging to both the parties had gone to the field for picking the cotton, they saw Mst. Hafizan Bibi daughter of Abdul Latif and Abid Hussain carrying the meals, Mst. Hafizan Bibi was going a little ahead of him, Abdul Hameed, respondent‑convict was behind her at a distance and was carrying .12 bore gun. As the afore‑referred persons reached the cotton field of Haq Nawaz Gishkori which was at a distance of one acre from the complainant, Abdul Hameed respondent‑convict overtook Mst. Hafizan Bibi and fired at her from the front side which hit her on the chest, hearing the fire P. Ws. rushed to the spot. Abid Hussain turned back he too was fired at by the respondent‑convict hitting the former on his left shoulder on the backside in consequence of which he fell down. Abdul Hamid, respondent‑convict in the meanwhile decamped from the spot. The motive alleged in the F.I.R. was that the respondent‑convict suspected Mst. Hafizan Bibi, his niece‑ of having illicit intimacy with Abid Hussain.

3. After registration of the case on the statement of Ashiq Hussain P.W.7, Muhammad Anwar S.‑I., P.W.9 proceeded to the spot, prepared injury statement of Mst. Hafizan Bibi deceased Exh.P.E./1 and her inquest report Exh.P.E. He secured blood‑stained earth where Abid Hussain deceased was injured vide memo. Exh.P.L. empty cartridge P.6 lying near the dead body of Mst. Hafizan Bibi, deceased vide recovery memo. Exh.P.K, blood‑stained earth from the place where the dead body of Mst. Hafizan Bibi was lying vide memo. Exh.P.K. and prepared the site plan of the place of occurrence vide memo. Exh.P.N. Having received information about the death of Abid Hussain he went to the hospital, prepared his injury statement Exh.P.C., and inquest report Exh.P.C/1. He arrested Abdul Hamid. respondent convict on 11‑11‑1996 who while in police custody he led to the recovery of .12 bore gun vide recovery .memo. Exh.P.M., concluded the investigation and submitted the final report under section 173, Cr.P.C.

4. During the trial the prosecution examined nine witnesses including the Doctor and the Investigating Officer. P.W.1 is Noor Muhammad Patwari who prepared the site plan. P.W.2 is Dr. Rab Nawaz who conducted post‑mortem examination of two deceased and found the following injuries on the person of Abid Hussain, deceased:

External injuries:

(1) Circular lacerated wound 4 c.m. x 3 c.m. chest cavity deep on the upper part of back of left shoulder. 5 c.m. away from mid line. Edges of the wound were inverted. Skin around the wound was blackened and burnt. It was an entry wound.

On the same day at 12‑30 noon he conducted the post‑mortem examination of Mst. Hafizan Mai daughter of Abdul Latif and found the following injuries on her person:‑‑

(1) A oval lacerated wound 6 c.m. x 3 c.m. chest cavity deep on the upper part of front of left chest just below the left clavical. Edges of the wound was blackened due to burning. It was an entry wound.

(2) Six small punctured wounds 0.5 c.m. x 0.5 c.m. chest cavity deep in an area of 9 c.m. x 5 c.m. on the lower part of right side of chest. Edges of the wounds were everted. Exit wounds.

P.W.3 is Dr. Muhammad Ayub who initially examined Abid Hussain when he was brought to the hospital in an injured condition. He found following injury on his person:‑

(1) A fire wound of entry 5 c.m. x 4 c.m. on the back of left shoulder close to neck, fresh blood was coming out of the injury The wound was cavity deep. X‑ray of chest was advised

P.W.4 is Muhammad Suleman, Head Constable. He is a formal witness and kept the weapon of offence in Malkhana and handed over the parcel to Sarfraz Ahmad, constable for onward transmission to the office of Forensic Science Laboratory. P.W.5 is Hafiz Ahmad, constable who, escorted the dead body of Abid Hussain for post‑mortem examination. P.W.6 is Sarfraz Ahmad, Constable who escorted the dead body of Mst. Hafizan Mai for the purposes of post‑mortem examination. P.W.7 is Ashiq Hussain, complainant. P.W.8 is Muhammad Hussain who is another eye‑witness of the occurrence. He corroborated the statement of P.W.7. P.W.9 is the Investigating Officer.

5. The accused‑convict when examined under section 342, Cr.P.C., took up the following plea:‑‑

"I was making a round of my cotton field while carrying the licenced gun p.7 of my brother Abdul Majeed. On the way, I found both the deceased lying in objectionable condition in the cotton crop. I lost my self‑control and under the impulse of sudden and grave provocation I fired at the deceased. The P.Ws. were not, present at the spot at the time of occurrence. Then I myself went to the police station, produced the licenced gun P.7 of my brother Abdul Majeed and narrated the whole occurrence to the police, who summoned the complainant and the P.Ws. and cooked up a fake story and then made them the complainant of this case."

6. Learned counsel for the petitioner in support of this petition made the following submissions:‑‑

(i) That the respondent‑convict had confessed his guilt of Qatl‑e- Amd and he was liable to be sentenced to death and there was no mitigating circumstances to warrant lessor punishment;

(ii) that there was no evidence on record to support respondent convict's plea of having acted under grave and sudden provocation. Referring to the various Qur'anic injunctions and the law laid down in 1992 PCr.LJ 1596 and 2001 PCr.LJ 1766 he contended that the respondent convict deserves capital punishment of Qisas under section 302, P.P.C. and sentence awarded be enhanced accordingly.

7. Learned counsel for the respondent‑convict opposed the petition and submitted that the prosecution evidence having been totally disbelieved by the learned trial Court, it had not option but to accept the plea of the respondent‑convict who had having admitted the occurrence, took up the plea that he acted in a spell of grave and sudden provocation as he saw both the deceased lying in cotton field in an objectionable condition. Relying on the law laid down in PLD 1996 SC 274; 1992 SCMR 247; PLD 1994 SC 392 and 1997 PCr.LJ 2056 he convassed that Abid Hussain deceased being 'Ghair Mahram' was found alongwith Mst. Hafizan Mai niece of the respondent‑convict in a posture which accused feelings of 'Ghairat' and the offence committed under those conditions did not warrant conviction under section 302(a), P.P.C.

8. Mr. M. Qasim Khan, learned Assistant Advocate‑General assisted by Mehr Muhammad Saleem, Advocate for State supported the petitioner enhancement of sentence as, according to them, if a licence is given to private individuals to cause the murder of innocent persons then the law of jungle would prevail and none would be safe. He added that respondent convict confessed the murders of Abid Hussain and Mst. Hafizan Mai but there is no supportive evidence on record to show that they were found in a compromising position which could land credence to his plea that he acted in a grip of grave and sudden provocation.

9. We have heard the learned counsel for the parties and also gone through the statement of respondent‑convict Abdul Hamid. There is no dispute with regard to the time of occurrence, the place of occurrence, the identity of respondent and even the weapon of offence. The question as to whether the plea of grave and sudden provocation taken by respondent‑convict was available to him in the facts and circumstances of the case is crucial for a just decision of the case. It is a settled proposition of law that if the prosecution evidence is disbelieved as in the present case and the accused takes a plea to bring his case within any of the general exception in the Pakistan Penal Code the onus shifts on him to prove existence of those circumstances which could bring his case within those exceptions. Article 121 of the Qanun‑e‑Shahadat mandates as under:‑‑

" Burden of proving that case of accused comes within exception :‑‑‑When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions, in the Pakistan Penal Code (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."

In Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633 it was held in a murder case the plea of grave and sudden provocation under the Islamic Injunctions would be available to an accused only if the deceased‑victim was committing an act which under the Islamic Injunctions was punishable under death. At page 674 it was held as under:‑‑

The afore‑referred dictum was reiterated by the august Supreme Court in State v. Abdul Wahid 1992 PCr.LJ 1596. The said appeal was allowed, the judgment of the trial Court was set aside and the accused was awarded sentence of death.

In the said case the plea of the accused was that of having acted in grave and sudden provocation as he found his sister Mst. Nazira, deceased in compromising condition with someone, the prosecution evidence was disbelieved and the accused was convicted by the trial Court under section 302(c), P.P.C. but sentenced to 7 years' R.I. The august Supreme Court was persuaded to set aside the conviction under section 302(c), P.P.C. and convict him under section 302(a), P.P.C. and sentenced him to death because "except for bare statement of Abdul Wahid respondent no other witness was produced by him in support of his plea that the Zina was being committed by Abdul Wahid with his sister." The ratio laid down in Gul Hasan Khan's case (supra) have further been endorsed in the case.

10. In the instant case the respondent Abdul Hamid neither gave evidence on‑ oath in disproof of the charges against him nor produced any witness in defence in support thereof. There is nothing on record to indicate that Mst. Hafizan Bibi aged 15/16 years and Abid Hussain aged 16/17 years were found in compromising position. Their dead bodies were not naked and there is nothing in the medical evidence to show they were indulging in sexual intercourse at the time of occurrence. It was 12‑00 midday in the month of October, when admittedly cotton picking had started. It is repellent to common sense that the deceased would be indulging in sexual act or in any objectionable act at that time of the occurrence. There appears to be an element of pre‑meditation in the manner in which respondent acted. It is a matter of common knowledge that people do not carry their guns with them when they take a round of their cotton particularly during day time. The Gun (P.7) with which respondent fired did not belong to him. It was his brother's licenced gun. It appears that having seen two deceased talking with each other he went to his house, brought out his brother's licenced gun and fired at them. There was a distance of 4‑1/2 Karams between the dead bodies of Abid Hussain and Mst. Hafizan Bibi which further belies their plea that they were lying together in an objectionable condition. There is nothing in medical evidence to endorse his plea that two deceased receiving fire arm injuries in lying condition. Surprisingly no suggestion was put to that effect to Dr. Rab Nawaz, P.W.2 either to conducted post mortem examination of Mst. Hafizan Bibi and Abid Hussain. In Riaz Ahmad v. State 1998 SCMR 1729 the august, Supreme Court did not give any credence to the plea of grave and sudden provocation as the appellant in the case neither appeared to make statement on oath in proof of his plea nor he led any evidence' in support thereof. His conviction under section 302, P.P.C. and sentence of death was maintained.

11. The reliance of the learned counsel for the respondent Abdul Hamid on a judgment of the august Supreme Court in Ali Muhammad v.Ali Muhammad PLD 1996 SC 274 is of no avail to him as the facts in the said case are distinguishable. In the said case the deceased had entered house of the accused and was found sleeping with his wife at the dead of night. In that case even the dead body of the deceased was recovered from the house of accused. It was in those circumstances that the plea of grave and sudden provocation was accepted and the C cart at page 846 held as under;‑‑

"According to that story the deceased had intruded into the accused's home his castle at the unearthly midnight hour; that was invasion of his property and privacy and was criminal trespass. As if that was not enough, the deceased was found by the accused sleeping with his wife. In these facts, the accused was, in my opinion, entitled to invoke the defence of grave and sudden provocation; he was also entitled to invoke the defence of self‑defence based on verse 34 of Sura Al‑Nisa as interpreted by Justice Shaft‑ur‑Rehman in Muhammad Hanif's case. In such cases, there is no duty to retreat."

12. The proposition that if an accused sets up a defence plea to bring his case within any of the general exception in the Pakistan Penal Code, he has to prove these circumstances is not only a mandate of law but is also desirable to rein in the chauvinistic element in a man who at times is driven by prejudices of caste tradition/compulsions of a conceited and hurtego or some other ulterior motive to murder a man or woman. The so‑called evangelistic spirit demonstrated in such cases is merely a facade and Courts cannot act as gullible arbiters to sanctify these acts in the name of "Ghairat" or religion. The Holy Qur'an in several "Surah" has condemned the cruel and unjust practices prevalent in pre‑Islamic era including those relating to women. Surah Al‑Takveer portrays the Day of Judgement when all shall have to account for their deeds and misdeeds. A special reference is made to those innocent girls. who were buried or killed. Pir Karam Ali Shah in his translation of this Surah traces the origin (Zia‑ul‑Qur'an volume 5 pages 500) of man's prejudice against women in pre‑Islamic era and writes as under:‑‑

"Many cruel and heart rending customs were prevalent. One of these inhuman customs was that they used to burry their daughters alive. And instead of feeling sorry, they use to bring about it. The background of this custom was that once 'Rabia' Tribe was invaded by the rival Tribe and the daughter of the Tribal Chief was taken away by the said Tribe. When war ended and they brokered peace, the girl was restored to the `Rabia' Tribe, but in terms of the peace she was given a choice to return to her Tribe or to join the rival Tribe. The girl decided to live with the latter Tribe. The Tribal Chief was so unhappy about it that he commanded that henceforth all baby girls born in the Tribe should be buried alive, so that they do not bring such an ignonimy in future."

13. The advent of Islam brought a new message for a society steeped in ignorance, and an unjust social order. Surah Al Noor is yet another Surah in which women have been granted protection and security against false charges of adultery. In Abdul Zahir and another v. The State 2000 SCMR 406 at page 416 the august Supreme Court extensively quoted from an. Article of Professor Rafi Ullah Shehab who commented upon the background and import of the afore-referred Qur'anic verse qua the rights of women in the face of an allegation of adultery. The relevant part reads as under:‑‑

"A companion, Owamer Ijlani; suspected his wife, and presented this case before the Holy Prophet (p.b.u.h.). The Holy Prophet (p.b.u.h.) instead of allowing him to punish his wife or divorce her; asked him to produce four witnesses to support his accusation, otherwise, he might be subjected to the punishment prescribed in the Holy Qur'an. He said that he had no witness, but swore by Allah that he was truthful. At this the Holy Prophet (p.b.u.h.) became silent. In the meantime the following injunction was revealed in the Holy Qur'an.

`And those who accuse their wives and have no witnesses except themselves, let one of them, testify four times, bearing Allah to witness that he is of those who speak the truth. And the fifth time that the curse of Allah be on him if he is of those who lie. And it shall avert the chastisement from her if she testifies four times bearing Allah to witness that he is of those who lie. And the fifth time, that the wrath of Allah be on her if he is of these speak the truth' (Surah Al Noor 6‑9).

`The Holy Prophet (p.b.u.h.), soon after this revelation, called Hazart Owamer and asked him to prove his accusation by the procedure prescribed in the Holy Qur'an. He at once took the oath. His wife was also called to establish her innocence. She too took' the prescribed oaths and claimed that her husband had falsely accused her. However, while taking the oaths, she flatered which convinced the Holy Prophet (p.b.u.h.) that she was at fault. But as she had established her innocence by taking the oath, the Holy . Prophet (p.b.u.h.) did not inflict Hadd punishment on her. He only asked her husband to divorce her. This Qur'anic procedure shows that if the husband had an unrestricted right of divorce, then the said companion would have divorced his wife forthwith, But he knew that Islam had placed restrictions on his right of divorce.' Thus, while killing accused women is not Islamic by any standard, the believers are not even allowed to divorce them without establishing their accusation. "

Notwithstanding the Qur'anic message and the sayings of Holy Prophet (p.b.u.h.) this is a matter of dismay that some of the Pre‑Islamic prejudices still persist in one form or the other. The murders in the name of honour is one manifestation of this prejudice which has taken the lives of many innocent souls. In Pakistan according to the report of the Human Rights Commission over 1,000 women were killed is the year 1999 and 888 women in the Province of the Punjab alone in the year 1988. In Sindh Province the number of such murders from 65 in 1980 to 141 in 1999 and 121 in the year of 2000 (Report of the Crimes Branch, Sindh). In a recent Editorial, the English Daily Dawn (3rd of October. 2001) has lamented upon the bane of honour killing and has highlighted the need for suitable legislation. It makes a painful but relevant study, and therefore, is being quoted as under:‑‑

"Karo,Kari Killings"

"Judging by the frequence with which cases of Karo Kari continue to happen in Sindh, it seems that the Government is not serious about curbing this most heinous and reprehensible crimes. According to figures complied by a non‑governmental organization, at least 129 people were reported killed iii the name of so‑called honour killing in the first six months of this year‑‑‑‑no significant change from the figure for previous years, In at least three cases, children as young as three were the victims. During this time we have had a string of Government functionaries, from Ministers and Judges to senior police and law enforcement officials, saying publicly that legislation against 'honour' killing needed to be toughened up. In fact, it was around 18 months ago that President Pervez Musharraf himself had told a human rights conference that honour killing was no different from pre‑meditated murder and should be treated as such.

Following his remarks, one would have expected certain changes in the law. Unfortunately, none came. This is not to say that legislation alone will eliminate Karo Kari. Society too has to play its part. Certain social attitudes, especially those that relate to the role and place of women in a community, prevail in large parts of society. This means that police officials, especially those from rural backgrounds, or even members of the judiciary, might think that those who commit such murders do no wrong because such actions are allowed by certain tribal or other customs and traditions. Having said this, it would be a significant step forward if at least the Government makes up its mind and introduces legislation that makes Karo Kari pre meditated murder. As for social attitudes changing, this is where the enlightened sections of society have to play a more active role."

14. No Court can and no civilized human being can sanctify murders in the name of tradition; family honour or religion. Both the deceased were teens and passing through their passionate period of adolescene. Little did the appellant realize that he too passed through such a period and that the murders that he committed had neither the sanction of law nor religion. The superior Courts in the face of similar facts did not find any mitigating circumstance to bring the case within the ambit of section 302(c), P.P.C. Reference can be made to the following case‑law (1) Abdul Majid v. The State 1991 PCr.LJ 1497, (2) Muhammad Khan‑ and others v. The State and others 2001 PCr.LJ 1766 and (3) Qutab‑ud‑Din v. The State PLD 2001 SC 101.

15. For what has been discussed above, the Criminal Revision No.197 of 1999 is allowed, the conviction of respondent Abdul Hamid under section 302(c), P.P.C. is set aside and instead he is convicted under section 302(b), P.P.C. and sentenced to death as a Tazeer on two. counts i.e. for causing death of Mst. Hafizan Bibi and Abid Hussain. He is also burdened with a compensation amounting to Rs.1,00,000 on each count default of which he shall undergo S.I. for six months on each count. Fine if realize shall give to the legal heirs of the deceased.

H.B.T./A‑349/L

Revision allowed/Order accordingly.