NASEER HUSSAIN vs NAWAZ and others

1. ' SAEEDUZZAMAN SIDDIQUI, J.---Leave was granted in the above case as follows:-- "Learned counsel has pointed out that the conviction of the petitioner and the sentence imposed on him by the learned trial Court rests only on his own statement where he admitted having caused the death of Ghulam Sarwar deceased and explained the circumstances in which he incident occurred. His plea, in short, was that he had caused the death of Ghulam Sarwar under grave and sudden provocation.

2. ' It is submitted that the High Court in enhancing the sentence has accepted that the part of the statement in which he inclupated himself but rejected the other part thereof which showed that the act was committed under grave and sudden provocation. The contention is that if the conviction of the accused is founded on his own statement it has to be accepted in toto or not at all.

3. ' The contention, prima fade, has force. Leave granted."

4. ' The appellant was tried under section 302, P.P.C. For having committed murder of one Ghulam Sarwar. The trial Court after recording evidence in the case did not accept the prosecution version and sentenced the accused/appellant on the basis of his confessional statement which reads as follows:-- "On 20-8 1976 1 went to Basti Qazian near Pir Mohab Jahanian to purchase a buffalo. I purchased a buffalo at the said place in the evening. After taking evening meals I left for my village with the buffalo on foot. I reached my Dera meant for cattle at Chah Chashmawala at about morning prayer time. I left the buffalo there and went to my house at morning prayer time on the 27-8-1976.

5. My father had gone to Kot Adu during that night. I found Ghulam Sarwar deceased and my mother in compomising position in one of the rooms which had no door. On seeing me Ghulam Sarwar started running. I had a pistol with me. I fired the pistol hitting Ghulam Sarwar. I fired second shot at my mother but she escaped and ran away to another room. A Chhuri was lying nearby. I caught ,hold of the Chhuri and caused blows to Ghulam Sarwar who lay injured through the shot earlier fired by me. I caused the death of Ghulam Sarwar under grave and sudden provocation. I could not tolerate the scene in which I had found my mother and Ghulam Samar in compromising position.

6. After the occurrence I myself went to Police Station Saddar Muzaffargarh and informed Atta Utah P.W. About the occurrence.

7. ' My clothes were removed by the Sub-Inspector. I presented the pistol hand Chhuri before the Sub-Inspector. I had only two bullets with me at the time of occurrence. The revolver shown to me in Court is not the weapon I used during the occurrence."

8. ' The trial Court convicted the accused/appellant under section 304, Part I P.P.C. Although he was sent up for trial under section 302, P.P.C. And sentenced him to 3 years' R.I with fine of Rs,1,000 and in default of payment of fine to undergo 6 months' R.I. The complainant in the case filed Criminal Revision Application No, 506 of 1978 praying for enhancement of the sentence before Lahore High Court, Multan Bench. The learned Judge in Chambers accepted the Revision Application and enhanced the sentence from 3 years to 10 years. The fine of Rs,1,000 awarded by the trial Court was also enhanced to Rs,10,000 and he was further directed to pay a sum of Rs,10.,000 by way of compensation to the heirs of the deceased. He was also allowed benefit of section 382-B, Cr.P.C.

9. Leave was granted against the impugned judgment of High Court as aforesaid.

10. ' Mr. Muhammad Muneer Khan, the learned counsel for the appellant contended before us that the enhancement of sentence by the learned Judge in Chambers holding that it was not a case of sudden and grave provocation is not sustainable in law as either the confessional statement of the accused/appellant could be accepted as a whole or it should have been rejected. It is contended by the learned counsel that it was not open for the Court while convicting the accused/appellant on the basis of his confessional statement to accept one part of it and reject the other part.

11. ' The contention of the learned counsel appears to be well-founded. It is quite clear from the reasoning of the learned Judge in Chambers that the accused/appellant has been convicted solely on the basis of the confessional statement. The prosecution story was rejected by the trial Court and the same was also not adverted to or referred by the learned Judge in Chambers while convicting the accused/appellant in the case. The confessional statement in the case being the only material on which appellant/accused was convicted, had to be either accepted as a whole by the Court or rejected as a whole. It was not open to the learned Judge in Chambers to accept only a part of the confessional statement of the appellant/accused and reject the other part while maintaining his conviction under section 304, Part I, P.P.C. And enhancing his sentence. The confessional statement reproduced above clearly makes out a case of grave and sudden provocation and as such the learned Judge in Chambers was not justified in holding that the case was not one of sudden and grave provocation though it may have involved family honour, and on that basis enhancing the substantive sentence of the appellant under section 304, Part I, P.P.C.

12. From 3 years to 10 years' R.I. We, accordingly, allow this appeal, set aside the judgment of the learned Judge in Chambers and reduce the sentence of the appellant to the period already undergone. The fine of Rs,10,000 imposed by the learned Judge in Chambers is also reduced to Rs,1,000 and in default to suffer R.I. For six months as awarded by the trial Court. The compensation of Rs,10,000 to be paid to the heirs of the deceased by the appellant and in default of payment of this amount to suffer R.I. For six months, awarded by the learned Judge in Chambers is maintained.

13. The appeal is disposed of accordingly.