1977 PLP 44 (SCMR)

MUHAMMAD YAQUB ALI, J.‑Leave to appeal was granted in this case to consider whether the offence committed by Allah Wasaya and Muhammad Amin alias Meema of village Wahim Sarmami, Tehsil Lodhran, District Multan for killing one Nazar Hussain Shah amounted to murder within section 300, P. P. C. or was covered by Exception I to section 300 viz , culpable homicide not amounting to murder. The allegations proved against the appellants are that on the night of 28‑7‑1964 Nazar Hussain Shah deceased went to the house of Abdul Karim brother of the first named appellant for taking out his wife Mst. Wallan who had illicit liaison with him to a nearby Sahle deserted kotha for committing sexual intercourse with her. As the deceased reached near the house of Abdul Karim he was caught there by the appellants who were apparently on the look out for him. Though armed with hatchets the appellant did not kill him at once but first tied his hands with a rope and took him to a field about two squares away and did him' to death there with hatchet blows. They then chopped off his bead and buried it at one place further away and the trunk at another place. Fida Hussain Shah P. W. 8, a companion of Nazar Hussain Shah who was waiting for him in the Sahle saw the deceased being taken away by the appellants with his hands tied with a rope. He gave information to the father of the deceased whereupon a case was registered at Police Station, Kahror Pacca and the investigation was conducted by the Station House Officer. In the course of investigation the appellants led to a number of incriminating recoveries including the head and the trunk of the deceased dug out from two different places. The weapons of offence recovered at their instance and the clothes worn by the appellants were also found stained with human blood. These recoveries were proved at the trial by trustworthy evidence. In defence the appellants examined Mst. Wallan as D. W.

1. She tried to make out that on the fateful night the deceased took her out of her husband's house to a field at a distance of about two or three killas and was committing sexual intercourse with her when Abdul Karim arrived there armed with a kulhari and gave blows with it to the deceased. She herself ran away to her house and shut herself inside the kotha chaining the door from inside. After a short while Abdul Karim came back and shouted to her that he had done away with Nazar Shah and buried his dead body and that he was going to kill her too. She thereupon raised alarm which awakened her uncles and cousins. They soon came to her rescue and drove Abdul Karim away. Abdul Karim returned to the ‑village a fortnight later but in his place the police had taken into custody the two appellants. The statement of Mst. Wallan was not believed by the trial Judge and the learned Judges in the High Court. The Bench which granted leave to appeal was also not impressed by the statement of Mst. Wallan and that why leave to appeal was confined only to consider the nature of the offence committed by the appellants in killing Nazar Hussain Shah. Exception I to section 300, P. P. C. provides that culpable homicide is not murder if the offender while deprived of the power of self‑control by grave and sudden provocation causes the death of the person who gave the pro vocation or causes the death of any other person by mistake or accident. The appellants themselves did not give any explanation of their conduct, In fact they tried to exculpate themselves by attributing the act of killing to Abdul Karim, husband of Mst. Wallop. However as prosecution itself alleged that the deceased had gone to the house of Abdul Karim to meet Mst. Wallan for committing adultery with her it requires consideration whether the first exception to section 300, P. P. C. was attracted to the case. The main ingredient of Exception I is the deprivation of power of self- control as a result of grave and sudden provocation. Loss of self‑control and premeditation are not compatible phenomena, The facts proved by the pro secution reveal that the appellants caught hold of Nazar Hussain Shah at night in or near the house of Abdul Karim husband of Mst. Wallan. They suspected that the deceased had formed an illicit liaison with Mst. Wallan and was on an amorous visit. If they had killed Nazar Hussain Shah there and then it could be at best argued that his very presence at night gave sudden and grave provocation. As seen they caught the deceased and tied his hands with a rope and took him away to a distance of nearly 600 yards and killed him in a field. Thereafter they severed the head from the trunk and carried the two parts of dead body further away and buried them at two different places. Having disposed of the dead body they concealed their weapons of offence and did not mention to any third person that they had seen the deceased in a compromising position with Mst. Wallan and upon grave and sudden provocation killed him. The conduct of the appellants thus showed full meditation rather than deprivation of self‑control. In the circumstances the offence committed by the appellants does no fall within the scope of Exception I to section 300, P. P. C. Their conviction for the offence of murder and the sentences of death awarded to them by the trial Judge have therefore been rightly confirmed by the High Court. The appeal is dismissed. Appeal dismissed.