1989 PLP 909 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑This appeal through leave of the Court is directed against the judgment dated 6th May, 1984 of the Lahore High Court; whereby, the appellants' appeal against conviction under section 302 read with section 34, P.P.C., was dismissed and the sentence of death and that of fine, awarded to each one of them was affirmed. The facts noted for grant of leave are as follows:‑ "The appellants in this petition for special leave to appeal, who are brothers, were tried along with their four other brothers, father and one Muhammad Yousuf by the Additional Sessions Judge, Bahawalnagar, for an offence under section 302, read with sections 149, 34 and 148 of the Pakistan Penal Code for causing the death of Ghulam Mustafa deceased. While the co‑accused were acquitted, the appellants were convicted of the offence under section 302, read with section 34, and sentenced to death and directed to pay tines of Rs.5,000 each. They were also directed to pay compensation to the heirs of the deceased. The High Court upheld their convictions for the said offence and affirmed the sentences of death. They now seek leave to appeal against their convictions and sentences. "The occurrence took place on 31‑10‑1971 at 5.00 p.m. and was reported at the Police Station Dharanwala, of District Bahawalnagar at 8‑30 p.m. It was alleged by the prosecution that on the day of occurrence the deceased and his brother Ghulam Faric'., who resided in Chak No.106, had gone to Chak No.] 19 in connection with the election campaign of their nephew." While Ghulam Farid stayed on in Chak No.119, the deceased alone started for his village on a horse back. On the way back while he was still in Chak No.119, he was waylaid by the appellants, their brothers, father and one Muhammad Yousuf, who were all armed with Sotas, near their Dcra. They attacked the deceased with their weapons and dragged him to their Dera where he was beaten to death. The motive for the occurrence was stated to be an incident which occurred two months earlier. It was alleged that the buffaloes of one Khanoo trespassed into the fields of the appellants' father. On this the appellants, brother, Muhammad Asghar, gave a beating to him. On the following day Khanoo assaulted Muhammad Asghar. The appellants and his family were under the impression that Khanoo had assaulted Muhammad Asghar at the instance of the complainant party. "At the trial the prosecution examined four eye‑witnesses and also relic ' upon the recovery of Sotas from the possession of the appellants. The Sotas were not stained with blood. The appellants admitted responsibility for causing the death of the deceased whereas the co‑accused denied that they had anything to de with the occurrence. The version of the appellants was:‑ "My father Muhammad Ismail owned land in square No.32 of Chak No.106/Fateh and we had also one Ahata in that Chak where we were living. Ghulam Muhammad, his brothers, sons and nephews always indulged in high‑handedness. They used to divert water at the time of our turn and forcibly took away our sheep. They had mad; our lives miserable. My father thus sold land in square No.32 mentioned above and settled in Chak No.119/Fateh after purchasing land there. Even previously Ghulam Muhammad and his relatives used to let their mares astray with the result that tese mares would sdamage our crops. The complainant party is highly influential. They had been diverting the water of other landlords as well and firing at them and were involved in so many other cases but due to their riches and being influential they always . escaped punishment having great liaison with the police. My had been submitting applications against them with no r suit. . "On the alleged date of occurrence, the mares of the complainant party entered our loosen crop and caused damage to it whereupon I and my brother Abdul Khaliq captured these mares for taking them to the cattle pond. After some lime Ghulam Must;da deceased came to our Dera and asked us to release the mares but we refused on the plea that they had got damaged our crops even in Chak No.106/Fatch and we had sold that land, Now their mares were again damaging our crops. We insisted upon taking the mares to the cattle pond/whereupon Ghulam Mustafa abused us and became naked before us challenging us to do whatever. we wanted. Ghulam Mustafa then untied the mares and jumped on one of the mares and started moving for his village. This all happened in front of the mares to stop the deceased whereupon I pulled him down from the mare as he was still abusing us and we gave him beating in exercise of the right of private defence of property and under grave and sudden provocation. In fact our father Ismail had gone to the police station and brought the police but subsequently Ghulam Muhammad complainant brought Chistian police which had soft corner for him and after mutual consultations and deliberations, they falsely involved us on concocted facts." Leave to appeal was granted to examine; whether in the circumstances of the case conviction under section 302 could be upheld and benefit could not be given to the appellants due to "the height of audacity and rudeness on the part of the deceased" and; whether, "the same was not sufficient to provoke any one." It was also noted; whether, in case conviction under section 302, P.P.C. is maintained, it was not a case for lesser sentence. Learned counsel for the appellants has contended that both the learned Courts below having rejected the prosecution version, should have believed the defence version in its entirety. When told that in the facts and circumstances of I his case the appellants had also a strong motive to either make a false excuse for it attack on the deceased or to have launched an unprovoked attack on him and further that a reasonable possibility in this behalf could not be excluded, learned counsel argued in the alternative that even in accordance with the facts admitted by both the learned Courts below the sentence of death could not and should not have been awarded. In the end he further stated that the reduction of sentence with benefit of section 382‑B, Cr.P.C. would satisfy the appellants. As has already been observed it was neither a case of complete self defence as canvassed before the learned lower C curt, ‑ nor that grave and sudden provocation, as argued before us. The relationship between the parties for a long t1me was such that the provocation relied upon was neither that grave nor sudden as to give benefit to the appellants of conversion of the offence from 302 to 304, Part I by the application of Exception I to Section 300, P.P.C.; as the conditions thereof obviously are not satisfied in this case. However, it cannot be denied that the deceased was responsible for such amount of provocation which would give benefit to the appellants in matter of sentence. Accordingly, this appeal is partly allowed. The sentence of death, awarded to each one of the appellants is set aside, instead they are awarded life imprisonment each. The sentence of fine and direction for payment of compensation, are ;upheld. The appellants are also allowed the benefit under sction 382-b, CrP.C.