1987 PLP 1555 (SCMR)

ASLAM RIAZ HUSAIN, J.‑‑ Nizam Din and Asghar Ali petitioners seek leave to appeal against the judgment of the Lahore High Court Lahore dated 30th January 1985 dismissing their appeal in a case under section 302/34 PPC wherein they were found guilty of having murdered Wali Muhammad (deceased). The occurrence in this case took place at about sunset time on 17th February 1982. The motive for the occurrence is stated to be that Mst. Raj Bibi PW the wife of Hassan Mohammad PW taunted Mst. Rant the wife of Nizam Din petitioner that her daughter had become pregnant on account of illicit relations with Mohammad Umar (the son of the complainant) and, consequently, she had to get an abortion. This incident is stated to have taken place in front of the house of the complainant party. On hearing the noise Wali Mohammad deceased come out of the house and tried to bring about conciliation between the two women. Mst. Rant started for her house while still abusing, when the accused‑petitioners turned up at the spot armed with Sotas. Nizam Din petitioner shouted that the complainant party will be taught a lesson for insulting his daughter by making such a serious allegation against her. The two petitioners then inflicted Sota blows as a result of which Wall Mohammad died, while Mst. Raj Bibi P.W.8 and one Wassan (not produced), sustained injuries. The accused then ran away. An FIR was lodged at the police station by Hassan Mohammad P.W.7 the brother of the deceased. The two petitioners were arrested and Sotas P5 and P6 were recovered from each of them. At the trial the prosecution relied upon the testimony of Hassan Mohammad PW7 and his wife Raj Bibi PW

8. Since the Sotas recovered from them were not found to be stained with blood they could not be used to corroborate the ocular testimony. The prosecution however sought to corroborate it with the motive and the medical evidence. The petitioners denied their guilt and gave a counter version saying that the complainant party wanted the hand of Kaniz Bibi the daughter of Nizam Din for Mohammad Umar the son of Hassan Mohammad complainant, but he i.e. Nizam Din petitioner refused because of the bad reputation of the family of the complainant party. The complainant party was annoyed by this refusal and on the day of occurrence Mst. Raj Bibi PW taunted his wife that her daughter Kaniz Bibi had been made pregnant by Mohammad Umar and that she had got an abortion of this illicit conception. The ladies of his family were, naturally, provoked and grappled with Mst. Raj Bibi PW. In the meanwhile Wali Mohammad deceased also came there armed with Sots, saying that he will forcibly lift Mst. Kaniz Bibi. Apprehending danger Nizam Din petitioner caught hold of his legs and fell him down while his wife Mst. Rani and other women of his (Nizam Din's) family gave blows on the head of Wali Mohammad with the Dandas. The learned trial Court relied upon the prosecution version and rejected the defence version and convicted the two accused petitioners under section 302/34 PPC, for which it sentenced them imprisonment for life and a fine of Rs.1,000 each. They were however acquitted of the charge under section 307/34 PPC. They filed an appeal before the Lahore High Court which was dismissed vide the impugned judgment. Hence the present petition. Learned counsel for the petitioners submitted that on the facts, as alleged by the prosecution itself, it was clearly a case of grave and sudden provocation, which was covered by Exception 1 to section 300 PPC. He took us through the relevant portions of the impugned judgment to show that the High Court had not adverted to this aspect of the case at all. We feel that the contention raised by the learned counsel for the petitioners has some force and need further consideration. Leave is therefore granted for that purpose. M.I./N‑20/S Leave granted.