2002 PLP 1214 (SCMR)

Ali Ahmed Malik, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 6th February, 2002. KHALIL‑UR‑REHMAN RAMDAY, J.‑‑‑Five persons namely Muhammad Farooq, Muhammad Munir, Abu‑Bakar, Muhammad Rafique and Abdur Rasheed were tjied by a .learned Additional Sessions Judge, at Gujranwala for having formed an unlawful assembly and for having murdered one Mst. Salamat Bibi in prosecution of the common object of the said assembly. Through his judgment dated 12‑4‑1999 the said learned Trial Judge acquitted Muhammad Munir Abu Bakar, Abdur Rasheed and. Muhammad Rafique of the said charges end found that it was only Muhammad Farooq accused who was responsible for the murder of Mst. Salamat Bibi deceased. He was consequently convicted under section 302(b) of the P.P.C. and was punished with imprisonment for life with a direction to him to pay an amount of Rs.10,000 as compensation to the heirs of the deceased under section 544‑A of Cr.P.C. or to suffer six months' simple imprisonment in default of payment of the said amount of money.

2. The said Muhammad Farooq convict questioned above noticed conviction and punishment before the Lahore High Court, Lahore through Criminal Appeal No.450 of 1999. This appeal was, however, dismissed through a judgment dated 2‑10‑2001 of the said learned Court. He is now before us with a petition under Article 185(3) of the Constitution seeking leave to appeal so as to be able to question the above noticed judgment and the consequent punishment awarded to him.

3. Mst. Zarrena P. W. is the complainant of the present case who is a daughter of Salamat Bibi deceased and who had alleged that the father of Muhammad Farooq convict namely Muhammad Rafique used to request her deceased mother for the complainant's hand for his son but the deceased was persistently refusing to accept this offer. She had further claimed that on the day of occurrence she and her deceased mother were returning home at about 7‑00 p.m. after making some purchases and that while they were passing through the School Wala Bazar, the abovementioned five accused persons including Muhammad Farooq convict emerged there while armed with "Churries" except Muhammad Rafique who was empty‑handed and who raised a Lalkara as a result of which Muhammad Farooq petitioner gave a Churri blow which landed on the chest of the deceased who was followed by Munir accused whose Chhuri blow inflicted an injury on the abdomen of the said deceased whereafter all the accused persons inflicted further "Churri" blows on various parts of the body of the deceased which led to her death at the very place of occurrence. It may be mentioned here that Mst. Salamat Bibi had 23 injuries on her person.

4. When confronted with the prosecution case under section 342, Cr.P.C. as also through his statement under section 340(2) of the Cr.P.C., Muhammad Farooq petitioner had pleaded that Mst. Salamat Bibi deceased was his grandmother; that she had illicit relations with one Ashiq Ali son of Dilawar (given up P.W.); that the residents of the area used to taunt him in this connection; that on the day of occurrence he saw the deceased and the said Ashiq Ali returning after committing Zina in a deserted .house; that having seen the deceased with Ashiq P.W., he lost control over himself and after picking up a "Churrf" from a nearby shop of a vegetable seller he inflicted blows on the person of the deceased which resulted in her death. The claim of Muhammad Farooq petitioner is that he had killed Mst. Salamat Bibi under grave and sudden provocation.

5. It has come on record that Mst. Salamat Bibi deceased was not a grandmother of the petitioner but was in fact a widow of a late brother of the father of Muhammad Rafique petitioner. Even if it be presumed that the petitioner had seen Salamat Bibi and Ashiq Ali P.W. together in the Bazar, this could be no cause for any grave and sudden provocation' because he had not seen the two in any compromising position and it could have been, only his impression that the two were returning after A committing Zina with each other. Leniency has already been shown to the petitioner by the learned trial Court as also by the learned High Court in the matter of quantum of punishment. Since no case of grave and sudden provocation is made out therefore, we do not feel persuaded to grant leave to appeal. This petition is therefore, dismissed and leave to appeal is refused. N.H.Q./M‑390/S Leave refused.