MUHAMMAD AYUB Versus THE STATE
Appellant Muhammad Ayub was tried by Miss Yasmin Abbasey, IInd Additional Sessions Judge (West), Karachi, for the offence under section 302, P.P.C. who found him guilty and vide judgment, dated 27-11-1989 sentenced him to imprisonment for life. By this appeal filed under section 410, Cr.P.C. the appellant has challenged his conviction and sentence.
2. On 23-1-1981 at 7-30 a.m. deceased Lai Muhammad who was in precarious condition appeared before Muhammad Usman S.I.P. at Jackson Police Station and reported that today at 7 a.m. when he came out of his house for going to duty, Muhammad Ayub (present appellant), who is his relative and resided near his house fired a pistol shot in order to kill him due to previous enmity. He further stated that the shot hit him on the abdomen near umblicus. The incident was witnessed by Ahmed Gul, Rehmat Gul and other persons of the locality. The Police Officer recorded the F.I.R. (Crime No.16 of 1981), under section 307, P.P.C. Lai Muhammad who had serious injury was referred to Civil Hospital, Karachi, where he died on the same day at 8-20 a.m. It was thereafter that section 302, P.P.C. was substituted in F.I.R. Muhammad Usman S.I.P. repaired to the scene of occurrence and prepared such Mashirnama in presence of Mashirs Rehmat Gul and Gulbar Khan. On receiving information about the death of Lai Muhammad, the Police Officer rushed to Civil Hospital Karachi and held inquest in respect of deceased Lai Muhammad in presence of Mashirs Yar Muhammad and Gulbar Khan. The dead body of Lai Muhammad was then handed over to Medical Officer for post-mortem examination. On the same day at 4 p.m. appellant Muhammad Ayub appeared before Ch. Muhammad Tarique, S.H.O. Jackson Police Station, who arrested him .in presence of Mashirs Rehmat Gul and Gulbar Khan. On interrogation the appellant volunteered to produce the crime weapon and he while in custody led Ch. Muhammad Tarique S.H.O., Mashirs Miskeen Khan and Jamroz Khan to his house and from a box produced one revolver, one empty and three live bullets for which he had no valid licence. A separate case, being Crime No.17 of 1981, under section 13-D of the Arms Ordinance, 1965, was, therefore, registered against the appellant. On 27-1-1981 the appellant was produced before Mr. Munawwar Opel A.C.M. who recorded his judicial confession. After usual investigation the appellant was sent up to stand trial in both the crimes.
3. The appellant pleaded not guilty to the charge framed under section 302, P.P.C. At the trial the prosecution has examined Rehmat Gul (P.W.1), Yar Muhammad (P.W.2), Gulbar Khan (P.W.3), Miskeen Khan (P.W.4), Muhammad Usman S.I.P. (P.W.5), Ch. Muhammad Tarique S.H.O. (P.W.6), Abdul Hafiz City Surveyor (P.W.7), Dr. Muhammad Taqi (P.W.8), Muhammad Afzal Khan (P.W.9), and Mr. Munawwar Opel A.C.M. (P.W.10).
4. The appellant met the charge with a denial professing innocence. He examined himself on oath (D.W.1), but did not examine any other witness.
5. On the assessment of evidence available on record, the learned Additional Sessions Judge found the appellant guilty for the offence under section 302, P.P.C. and sentenced him accordingly, hence the present appeal.
6. I have heard Mr. Arshad Ali Qureshi, learned counsel for appellant, Mr. Sarwar Khan, learned counsel for complainant and Mr. Salman Ansari, learned counsel for State.
7. There is overwhelming evidence on record to prove that the appellant and none else was responsible for causing the death of Lai Muhammad by firing at him by means of a revolver. Besides the dying declaration (Exh.18) made by deceased Lai Muhammad in the form of F.I.R. there is evidence of Rehmat Gul (P.W.1), Yar Muhammad (P.W.2) and Gulbar Khan (P.W.3) who saw the appellant firing at deceased Lai Muhammad. The account of occurrence given by these witnesses is consistent, and the learned counsel for the appellant was not able to pick holes in their testimony. There is also evidence of recovery of revolver and one empty at-the instance of the appellant. The evidence of Ch. Muhammad Tarique S.H.O. (P.W.6) and Miskeen Khan Mashir (P.W.4) clearly established the recoveries. Lastly there is evidence of retracted judicial confession of appellant (Exh.37), which stands proved from the evidence of Mr. Munawwar Opel A.C.M. (P.W.10), who had recorded it after observing all the formalities of law. Faced with this situation the learned counsel for the appellant admitted the killing of deceased Lai Muhammad at the hands of appellant, but pleaded that he did so on account of sudden and grave provocation as deceased Lai Muhammad, who was related to him has disgraced him by committing Zina (adultery) with his wife Mst. Nasreen. It was, therefore, contended that the case against the appellant was covered by Exception I to section 300, P.P.C. punishable under section 304, P.P.C.
8. The burden of proving exceptions is upon the accused and Article 121 of the Qanun-e-Shahadat, 1984, lays down in clear terms that the accused must establish from the evidence the existence of such circumstances which may bring his case under any of the exceptions. It is also well-settled that even if the accused does not plead any of the exceptions, it is open to the Court to consider such a plea if the same arises from the material on record. The appellant had met the charge with a denial. He did not admit the killing of deceased Lai Muhammad in his statement recorded under section 342, Cr.P.C. In his statement recorded on oath, the appellant came out with the following story:--
"On the day of incident I left my house in early morning. When I reached at Post Office Jackson, I found that my identity card of service was not with me. Therefore, I returned back to my house to have the same as I could not enter in my office premises without identity card. I opened the door of my house by putting the hand inside. I saw both my wife Mst. Nasreen and deceased in objectionable condition. I found a cut mark on the neck of my wife. Mst. Nasreen told me that deceased Lal Muhammad had committed the said act forcibly. This all incident had taken place inside my house. Deceased Lal Muhammad told me to do whatever I like. He further admitted the guilt committed by him and further told that he will repeat the same again. At that time many other persons were standing outside the house. I because of this wrongful act of deceased was annoyed but he was murdered by some other person whose name I do not know, with whose daughter Lal Muhammad did the same act. I myself had gone to police station. I had not committed the murder of deceased Lal Muhammad, but I have been named as accused."
9. The above version which the appellant gave on oath is in complete variance to the statement made by him in his judicial confession (Exh.37), in which he claims to have murdered deceased Lal Muhammad after his wife had complained to him that deceased Lal Muhammad had committed rape upon her. The facts leading to this incident in the words of the appellant himself are as follows:--
"My wife informed me about this repeated act of Lal Muhammad. I took two days' leave from office. I remained at my house to catch hold of Lal Muhammad. He never came during these two days. On Friday, as I had left for work, and I had hardly gone a distance, I saw Lal Muhammad knocking at my door. My wife asked Lal Muhammad to go away. In the meantime, I reached there. I asked Lal Muhammad to go away and never to return. Lal Muhammad told me that nobody can dare to stop him. Since I had a revolver on me, I shot him -----"
10. The most important point that the learned counsel for the appellant has been able to bring out is that, on the admissions made by Yar Muhammad (P.W.2), and Gulbar Khan (P.W.3), Mst. Nasreen wife of appellant was found saying that deceased Lal Muhammad was killed as he had committed rape upon her forcibly. On the face of this admission and in the absence of any plausible motive for this murder, it is clear to me that the appellant was provoked gravely, but the provocation was not sudden. In order to be sudden, the provocation must have impelled the accused to act on the spur of the moment. If he takes time he loses the benefit of this exception to section 300, P.P.C. If sufficient interval has elapsed since the provocation to allow a reasonable man to cool, for then the plea of loss of control of action is negatived. In this particular case the appellant was in search of provocation and according to his own confession (Exh.37) he had taken two days' leave to find deceased Lal Muhammad and his wife Mst. Nasreen in flagrante delicto. This could hardly be a case of sudden and grave provocation. I have gone through the cases reported as Poonmoon alias Ponio v. The State 1983 P Cr. L J 1199, Qurban v. The State 1984 P Cr. L J 2216, Bashir Ahmad and others v. The State P L D 1985 Lah. 158, Muhammad Asghar and 2 others v. The State 1987 P Cr. L J 110 and Wazir Khan v. The State 1989 S C M R 446, which are cited on behalf of appellant, but in my view they do not furnish any assistance in resolving the plea of sudden and grave provocation in favour of the appellant. In the last cited authority of the Honourable Supreme Court the provocation was both grave and sudden and the only course left for accused to save his honour and dignity was to finish deceased who wanted to satisfy his unnatural lust with him.
11. Exception I to section 300, P.P.C. does not lay down a rule as to what shall be deemed to be a sufficient provocation. The test to invoke the assistance of this exception is the loss of self-control. However, a person cannot be said to have adequate cause, if consumed by suspicion of illicit intimacy of his wife, he takes the life of another, though he may feel that he was justified in doing so. If any authority is needed for this view the cases reported as Ali Hassan alias Ali Khan v. The State P L D 1964 Kar. 348, Muhammad Shafi v. Aziz Ahmad and another 1977 S C M R 518, and Mohib Ali v. The State 1985 S C M R 2055, may be cited with advantage.
12. No case for interference is made out. The appellant was rightly convicted and sentenced. The benefit of section 382-B, Cr.P.C., while computing the sentence is, however, extended to him. The appeal has got no merits and is accordingly dismissed.
H.B.T./M-1426/K ??????????????????????????????????????????????????????????????????????????????? Appeal dismissed.