HAJI MUHAMMAD vs THE STATE

' Haji Muhammad has filed the instant appeal against the judgment dated 5-7-2000 passed by Mr. Nasim Akhtar Khan, learned Additional Sessions Judge, Gujrat, whereby the appellant was convicted under section 302(c), P.P.C. And sentenced to undergo imprisonment for ten years' R.I.

However, two co-accused of the appellant namely Muhammad Iqbal and Shahbaz (real brothers of appellant) were acquitted of the charges on against them by extending them the benefit of doubt.

2. Briefly the facts of the prosecution case as have been recorded by the, learned trial Judge in the impugned judgment are as under:- "As per complaint Exh.P.E recorded by Safwat Ullah, S.I. Police Station, Saddar Jalalpur Jattan on the dictation of Aurangzeb complainant in Aziz Bhatti Shaheed Hospital at about 4-30 p.m. The prosecution case is that the complainant is resident of village Bhoorch and is maintaining a grocery shop adjacent to his residential house; that at about 6-30 p.m. On 23-2-1998, he along with his brothers Muhammad Azam alias Javed and Muhammad Aslam was sitting in his shop when suddenly Haji Muhammad armed with rifle double barrel .12 bore, Iqbal armed with .30 bore pistol and Shahbaz armed with rifle 7 MM sons of Jamaldin, Caste Arain resident of Kot Amir Hussain came that and soon after reaching Shahbaz fired straight with his rifle at his brother Muhammad Azam which hit him on right shoulder, second fire was made by Iqbal with pistol which hit Azam on left flank upon which his brother Azam fell down on the ground that upon his hue and cry all the accused persons ran away towards their Dera situated in village Kot Amir Hussain that the motive for'the occurrence is that yesterday on 22-2-1998 there was an exchange of abuses between Muhammad Azam (deceased) and Iqbal (accused) regarding the dispute of give and take and that time Iqbal accused had said that he will see deceased and due to this reason / grievance the accused persons, in a pre-planned manner, had injured Azam; that the complainant had reached ABS Hospital along with deceased in injured condition where the F.I.R. Was recorded."

3. Against the prosecution version, the fence came forward with the following Muhammad Azam deceased was a dare devil who was in the habit of molesting the girls of the village. He had developed illicit relations with the sister Zeb-un-Nisa under the garb of my friendship. He (accused) found both of them in a compromising position in the early morning in his house and then under grave and sudden provocation and due to Ghairat firstly he killed his sister Zeb-un-Nisa by firing at her and then Azam ran away towards his house who was also chased by him and done to death by him by firing in his shop in his house. His plea has been verified by the Investigating Officers during investigation of this case and also by the report of Chemical Examiner regarding swa bs. The P.Ws. Have deposed against him due to close relations with the deceased. The prosecution story, is concocted, motive is false and distorted by suppressing the real facts."

4. The learned trial Judge after appraising and assessing the entire evidence and other relevant record came to the conclusion that murder of deceased Azam alias Javed had been committed by Haji Muhammad appellant, as a result of Ghairat i,e, grave and sudden provocation and as such the same constituted an offence under section 302(c), P.P.C. He, therefore, proceeded to convict him accordingly and sentenced him to ten years' R.I.

5. The learned counsel for the appellant does not dispute the correctness of findings and also the conviction as recorded under section 302(c), P.P.C. He, however, argues the, appeal by laying emphasis on the point that provocation was so grave and immense that the appellant appears to have lost his self-control and could not desist from causing injuries to the deceased on seeing him (deceased) in compromising position with his real younger sister. The detection of semen on the private parts of the victims prove beyond doubt that the attack was made when both were in compromising position. Supplements that in fact two F.I.Rs, were recorded which according to the learned counsel was not only improper but also illegal, as there was one incident, one accused, therefore, both should have been covered by one F.I.R. The complainant in order to get the offence aggravated managed to get two F.I.Rs, recorded and accordingly two challans were submitted.

The appellant after his trial for the murder of his sister was acquitted of that charge by holding the same as under grave and sudden provocation. However, in the present case which has exactly similar features and of identical nature, he was sentenced to suffer ten years' R.I. It is, therefore, argued that sentence of ten years' R.I. In the circumstances of the case is rather excessive. The appellant has already suffered a good deal by killing his own younger sister. In support of his contention, the learned counsel has placed reliance on the case of Ali Muhammad v. Ali Muhammad etc. PLD 1996 SC 274 wherein, the Honourable Supreme Court, in a case of similar.

Nature, after convicting the accused under section 302(c), P.P.C. Awarded the sentence of imprisonment already undergone by him. Another case of "Munawar alias Shabboo v. The State"

(1999 M LD 76), the prosecution case was rejected and it was held that the statement of accused should be accepted in totality. Yet another case of "Qutab-ud-Din v. State" 1999 YLR 1395 has been referred, where in the similar circumstance, after altering the sentence from section 308, P.P.C. To section 302(c), P.P.C., the sentence of imprisonment already undergone was deemed to be sufficient.

6. There is no specified or fixed formula to determine with exactitude as to what amount of punishment should be imposed, the same has been left to the discretion of the Court which has to be exercised by taking into consideration the facts and circumstances of the case. In a case of Ghairat i,e, of provocation, gravity and intensity of the provocation and its suddenness would be relevant factors to be taken into account.

7. After weighing and assessing the aforesaid factors relevant qua the instant case, I am of the view that five years' R.I. Will meet the ends of justice. As the victim was not Masoom-ud-Dam, therefore, no compensation can be granted either. As a result of the above discussion, the appeal is dismissed, conviction of the appellant under section 302(c), P.P.C. Is maintained, however, the sentence of ten years' R.I.Is reduced to that of five years' R.I. Benefit under section 382-B, Cr.P.C.

Shall be extended.

Sentence reduced.