1990 PLP 1105 (SCMR)

Nemo for the State. Date of hearing: 18th February, 1990. RUSTAM S. SIDHWA, J.‑‑‑This is a petition by Muhammad Nawaz petitioner seeking leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, dated 14th November, 1989, dismissing his appeal and maintaining his conviction and sentence under section 304‑1, P.P.C., as recorded by the learned Sessions Judge, Chakwal. The prosecution case against the petitioner was that during the night between 14th/15th August, 1989, at about mid‑night the petitioner returned to his house from a hunting excursion, when he found Anwar Baig committing adultery with his wife and, on seeing them in this position, he lost his self‑control and picking up a hatchet which was lying nearby he inflicted injuries on them, as a result of which both the paramour and his wife expired. The said version was accepted by the trial Judge. After referring to the investigating officer's statement and the submission of the Assistant District Attorney, the trial Judge held that the prosecution could not place any material from which it could be legally inferred that the petitioner committed the murder without sudden and grave provocation. He, therefore, held the case as coming under Exception I to section 300, P.P.C. and held the petitioner guilty under Part I of section 304, P.P.C. and sentenced him to 10 years' R.I. with fine. On appeal the learned Single Judge of the High Court felt that there was an element of premeditation in the act of the petitioner, that from the number of injuries on the person of the two deceased and the kind of weapons used, it appeared that the petitioner was not all alone, but was rather helped by some person or persons, and the case was not, therefore, one of grave and sudden provocation, though perhaps grave provocation could not be excluded. However, being reluctant to order retrial, on the revision petition filed by the complainant, the learned Judge dismissed both the petitioner's appeal and the complainant's revision petition, seeking retrial of the petitioner under section 302, P.P.C., On behalf of the petitioner it is submitted that the case being one of grave and sudden provocation, as held by the learned trial Judge, the petitioner is entitled to a lenient sentence, as compared to that awarded. It is further submitted that the inferences drawn by learned Single Judge in arriving at certain conclusions, including the one that the case was not one of grave and sudden provocation, but merely of grave provocation, are not based on a proper appraisal of the evidence on record and the circumstances of the case. The submissions raised by the learned counsel require examination. We would, therefore, grant leave in the case. The appeal shall be listed for hearing within six months. The appeal shall be heard on the present record. Parties shall be at liberty to file such further documents as they consider fit and proper for the full and final disposal of the appeal. N.H.Q./M‑1256/S Petition accepted.