1987 PLP 776 (SCMR)

Nemat Khan, Advocate Supreme Court instructed by Iqbal Ahmad Qureshi, Advocate‑on‑Record for Petitioners. Nemo for Respondent. Malik Sher Bahadar, Advocate Supreme Court instructed by Tanvir Ahmad, Advocate‑on‑Record for the Complainant Date of hearing: 1st February, 1987. SAAD SAOOD JAN, J.‑‑These are three petitioners for special leave to appeal from the judgment, dated 11‑1‑1981 of Lahore High Court. They arise in the following circumstances.

2. The petitioners in Criminal Petition for Special Leave to Appeal No. 76 are two brothers, namely, Ghaus Muhammad and Sher Muhammad. They together with their brother‑in‑law, Khan Muhammad, were convicted by the Additional Sessions Judge, Sargodha of offences under sections 302 and 323, read with section 34, of the Pakistan Penal Code for causing the death of Muhammad Hayat deceased and simple injuries to his brother Umar Hayat. For the offence under section 302 they were sentenced to suffer life imprisonment and to pay fines. For the offence under section 323 they were directed to receive rigorous imprisonment for a period of six months each. On appeal the High Court maintained the convictions and sentences of the petitioners but acquitted Khan Muhammad of all the charges. Atta Muhammad, paternal‑uncle of the deceased, has filed two petitions for special leave to appeal. In Criminal Petition for Special Leave to Appeal No.91 he seeks enhancement of the sentences of the petitioners. In Criminal Petition for Special Leave to Appeal No.90 he has challenged the acquittal of Khan Muhammad.

3. The occurrence took place on the night between 28/29‑4‑1977 in the fields of Chak No.1, Rakh Dharama. According to the prosecution, on the said night Atta Muhammad together with the deceased, Umar Hayat and Allah Bakhsh was present in his land in order to take his turn of canal water. At about 1‑00 a.m., the deceased went towards the water outlet. Shortly thereafter one Muhammad Iqbal came running to Atta Muhammad and said that he had seen the petitioners together with Khan Muhammad going in the same direction where the deceased had gone. Feeling apprehensive lest the petitioners should harm the deceased who was carrying on an illicit liaison with their sister, Atta Muhammad, Umar Hayat and Allah Bakhsh proceeded in the direction of the outlet. When they had covered a short distance they heard the cries of the deceased. They rushed to the spot and saw the petitioners together with Khan Muhammad giving Dang blows to the deceased who was lying prostrate on the ground. They intervened in order to rescue the deceased. In the process both the petitioners were hurt. Umar Hayat, brother of the deceased, also received injuries at the hands of the petitioners. The deceased died at the spot. 4.The occurrence was reported by Atta Muhammad at Police Station Saddar Sargodha on the following morning at 5‑00 a.m.

5. At the trial the petitioners did not deny that they were responsible for causing the death of the deceased. They alleged that the occurrence took place at their Dera where they were sleeping on the night in question with their sister and mother. They woke up on hearing the alarm raised by their mother. They found that the deceased was standing near the cot of their sister. On this they lost self‑control and under grave and sudden provocation attacked the deceased. On hearing the noise Umar Hayat and some others came and forcibly took away the deceased in an injured condition after inflicting some injuries on them.

6. The trial Court and the High Court rejected the plea of the petitioners that they had killed the deceased under grave and sudden provocation. No doubt, the witnesses for the prosecution did admit that the deceased was carrying on an intrigue with the sister of the petitioners but there is no evidence at all apart from the bald assertion of the petitioners that at the relevant time the petitioners had found the deceased and their sister together. The occurrence took place in the fields far away from their Dera. The assertion of the petitioners that the Investigating Officer had changed the place of occurrence finds no support whatsoever from the record. It was clearly a case of preconcerted attack on the deceased. The petitioners were, therefore, rightly convicted of an offence under section 302, read with section 34, of the Pakistan Penal Code. For the same reason their conviction on the charge under section 323 read with section 34, for causing hurt to Umar Hayat who had tried to save his brother is not open to any exception. For the offence under section 302 they have already been given the lesser sentence provided by the law for the said offence.

7. As far as Khan Muhammad is concerned there were good reasons for giving him the benefit of doubt. As pointed out by the High Court he had no reasons of his own to harm the deceased. It is also to be noticed that whereas both the petitioners were found bearing injuries soon after the occurrence Khan Muhammad had remained entirely unhurt. If he too had taken part in the occurrence it is unlikely that the companions of the deceased would have spared him. He was, therefore, rightly acquitted by the High Court.

8. Since admittedly the deceased was carrying on an intrigue with their sister the petitioners had attacked him for the rehabilitation of their family honour. We are, therefore, not prepared to interfere with the discretion exercised by the Courts below in not imposing the extreme penalty of death on the petitioners. 9.For the reasons stated above we find no merit in these petitions which are hereby dismissed. S.Q/G‑8/S Petition dismissed.