1975 PLP 340 (SCMR)

MUHAMMAD GUL, J.‑The petitioner herein was convicted and sentenced to death by an Additional Sessions Judge, under section 302, P. P. C. for causing the death of his wife's sister Mst. Zohra and to R. 1. for 7 years and a fine of Rs. 1,000 under section 307, P. P. C. for the attempted murder of the deceased's husband Manzoor Ahmad (P. W. 1). On appeal and reference to the High Court, the petitioner's con victions as aforesaid were maintained, but sentence of death on the capital charge was reduced to imprisonment for life vide judgment dated 8‑3‑1974, against which the petitioner now seeks leave to appeal. The deceased and her husband used to live with the petitioner and his wife in the same house. Muhammad Azam Khan (P. W. 2) has a house in the neighborhood. On 26‑8‑1969 at 11 a.m. Yousaf (P. W. 4) told Muhammad Azam Khan that the former had hear report of gun shots in the house of the petitioner. Both Azam Khan and Muhammad Yousaf alongwith Fazal‑ur‑Rehman went to the house of the petitioner, where they saw the petitioner with a revolver to his hand with which he pointed out that he had killed his sister‑in‑law and her husband. Azam Khan went to Baldia Police Post, and informed the police about the Incident. He returned to the petitioner s house with two constables, who found the Mst.Zohra lay dead inside the room, while her husband Manzoor Ahmad lay injured in the veranda. The police constables caught hold of the petitioner with the revolver and 10 live cartridges and took him to the police post. Later, on the basis of the report made at the police post, F. I. R. was registered at P. S. Chakwara. Un the following day, the petitioner, appeared before the Additional City Magistrate, Karachi, before whom he made a confession, which for the material purpose read;

In my view Manzoor and his wife deceased were of doubtful character. I, therefore, admonished them 3‑4 times to desist from such infamous ways before this incident. The deceased and her husband used to return home late at night. In spite of my admonisation no result was noticed. I also informed the father of Manzoor but without result. Yesterday at about 6‑30 a. m. I went to Saddar to purchase 20 bullets of my revolver of which 1 hold licence. After buying twenty bullets I returned home at about 10‑30 a. m. When I had left my house in the morning Manzoor and his wife were absent since the whole night. But when I returned home at 10‑301 found that Manzoor and his wife had returned home. I enquired from them about their absence for the night. I was told that I had no right to interfere in their affairs. Manzoor's wife told me on my giving her oath that she had been subjected to prostitution by her husband as a taxi girl and when I tried to confirm this from Manzoor, who was relaxing on the cot, he told me that Zohiran Bibi was his wife and he could do anything he liked. This reply irritated me and I went out of control and shot two times Zahiran Bibi who died on tare spot. Thereafter I s3ot Manzoor 7 bullets and six bullets hit him. Thereafter I informed a man of the Mohallah to inform police." During the investigation, 9 empties were recovered from the spot, which according to the Ballistic Expert matched the revolver earlier secured from the petitioner alongwith l0 live cartridges. The medical evidence also showed that Mst. Zolira died of two bullet wounds, of which No. 1 was sufficient in the ordinary course of nature to cause death. Manzoor Aumad on the other hand had as many as six bullet injuries on different parts of the body. The petitioner in his statement at the trial again admitted having caused the death of Mst. Zohra and the bullet injuries to her husband Manzoor Ahmad, but raised the following plea in mitigation of his offence;

‑ "When I entered the house. I found that Manzoor had caught hold of my wife and was dragging her, asking her to go with him. I asked from my wife, who told me that Manzoor was forcing her to go with him for prostitution. Pistol was lying there. Under sudden and grave provocation, I picked the revolver and shot at Manzoor. I bucket out. I fired all the six shots and I do not know what happened further." He further admitted that he was caught at the spot alongwith the revolver and on being questioned as to whether he would like to say any thing else, the answer ha g.4ve was, "I have done what any person with ghairat would have done." The petitioner's wife Mst. Azhra, who admittedly was present in the house at the time of incident, vas also examined in the case. She also supported the petitioner's plea of grave and sudden provocation. She stated in her evidence that the deceased and Manzour Ahmad tried to seduce her for prostitution which she not only refused, but also tried to disuade them from the infamous life they were leading. On the day of tile incident, as the deceased and her husband were again trying to seduce her, the petitioner also came and on his enquiry, she told him that they were asking her to accompany them on their errand of infamy. This provoked the petitioner, who lost self‑control and took out his revolver with which he fired at the deceased and her husband. Learned counsel for the petitioner did not dispute the findings of the trial Court and the High Court that Mst. Zohra died of the fire‑arm injuries caused to the deceased by the petitioner. He, however, submitted that on the statements of the petitioner at his trial and his wife (P. W. 11), who admittedly was present at tae time of incident, the petitioner's case fell squarely under the first exception to section 30U, P. V. C. It was stressed that even the judicial confession recorded by the Additional City Magistrate also supported the plea of sudden and grave provocation. The point urged by learned counsel needs consideration. Accordingly, leave is granted to consider whether on the facts on record, the offence proved against the petitioner would fall under section 304, P. P. C. ? Lease granted.