1979 PLP 48 (SCMR)

MUHAMMAD HALEEM, J.‑The petitioner seeks special leave to appeal against the judgment of the Lahore High Court dated 1st of February, 1978, by which the first two respondents were given the benefit of Exception I to section 300, P. P. C. and the Revision Petition No. 525 of 1976 seeking enhancement of sentences was dismissed. The deceased Haq Nawaz was the brother‑in‑law of Zulfiqar, a prosecu tion witness in the case. According to the prosecution, he was on terms of illicit intimacy with Mst. Soban, the real sister of Ramzan son of Mahmood, the first respondent. On the night of 30th of April, 1972, the deceased was seen going towards his Bhaini situate in Square No. 34 of Chak No. 118/15‑L, but he failed to reach his destination. The search proved abortive. However, one Haq Nawaz son of Allah Ditta had seen him going towards the Bhaini of the first respondent. Accordingly, a report was lodged by Zulfiqar, the petitioner herein, at 9‑15 a. m. on 2nd of May, 1972, at Police Station, Mian Channu. Both the respondents were produced by the Lambardar Sher Muhammad; P. W. 3, and it was alleged that they had confessed their guilt before him. On being arrested Ramzan son of Amir led to the discovery of the dead body of the deceased which lay buried in Killa No. 7 of Square No.

19. Ramzan son of Amir further led to the recovery of a blood‑stained knife from the cattle shed of his house in Killa No. 3 of Square No.

18. Ramzan son of Mahmood, produced a blood‑stained Ghandala from the watercourse running by the side of his Bhaini ; and further pointed to a place where the deceased was killed and blood‑stained earth was secured from that spot. In the trial Court the respondents did not plead grave and sudden provocation but contended to rest their defence on enmity with Zulfiqar and Shera. The trial Court believed the prosecution evidence and convicted them for the offence under sections 302 and 291 read with section 34, P. P. C. but refrained from imposing the capital punishment. The respondents appealed against their convictions while the petitioner who is the complainant sought enhancement of the sentences through the aforementioned application. In the High Court Sher Muhammad and Nazir Ahmad were re‑examined. It then transpired from the evidence of Sher Muhammad that the respondents had stated to him that they had seen Mst. Soban sitting near the thrashing floor and on seeing them the deceased ran towards the field while Mst. Soban dashed towards the Bhaini of the respondents. They, however, chased the deceased and overtook him at a distance of three Killas and killed him there with a Ghandala and a knife. Thereafter, they amputated his penis from the base and gave it to the dogs to eat. In the light of this statement the respondents were examined ; and their case was that they saw both of them sitting in an objectionable posture and on seeing them they separated ; while the deceased ran towards the field, Mst. Soban hastily ran towards the Bhaini. They overtook the deceased and killed him and amputated his private parts. Accordingly on these facts the High Court gave to them the benefit of Exception I to section 300 and altered their conviction to section 304, Part I but maintained the other conviction under section 201, read with section 34, P. P. C. As for the sentence, they altered it to that already undergone under both the counts. The fine awarded was however maintained. The learned counsel for the petitioner contends that the respondent themselves sought the provocation as they went armed which showed an element of premeditation. Therefore, the High Court erred in giving to them the benefit of Exception I to section

300. But this contention was aptly dealt with in the light of a decision of this Court reported as Muhammad Saleh v. The State (P L D 1965 S C 366) and we see no ground to interfere with the appraisal Of the plea which appeared to be consistent with the evidence of the Lambardar. It was next contended that this benefit could not be extended to Ramzan son of Amir as he was not related to Mst. Soban. The High Court while dealing with this aspect of the case said :‑ "However, the case of Ramzan son of Amir, appellant, has posed some difficulty. The prosecution has not alleged that he had any other motive to kill the deceased. He has been a friend of Ramzan son of Mahmood since his childhood. They lived out of the village abadi in their land and their bhainis were in the same neighbourhood. He has been treating Mst. Soban as his own sister. He was in the company of the other appellant. In the peculiar circumstances of this case, we are, therefore, of the view that even he acted under the impulse of grave and sudden provocation. He is also entitled to the benefit of Exception I to section 300, P. P. C." We see no reason to differ from this conclusion particularly when Ramzan son of Amir treated her as his own sister, and, therefore, he was also equally likely to get provoked seeing her in the company of the deceased 8 at that time of the night. The observations in Muhammad Saleh's case equally apply to him as well. Accordingly, no exception can be taken to his conviction. Lastly, the learned counsel contended that the High Court had dealt with them lenientlyin altering their sentences to one already undergone. This contention also seems to us to be without substance, for they were arrested in May, 1972, and remained in custody at least for two years after their convictions by the trial Court. The period undergone after conviction cannot in the circumstances be regarded as inadequate. The petition has no merit and is dismissed. Petition dismissed.