2004 PLP 2085 (YLR)

The statement of appellant/accused was recorded under section 342, Cr.P.C. wherein he admitted that the deceased Muhammad Latif was killed by him but not as per prosecution story. He further stated in his statement that he had fired at deceased and the deceased had abused him and under sudden provocation he fired upon him. He has further alleged in his statement that he is Hafiz‑ul‑Quran and he has got no enmity whatsoever with the deceased. He further alleged the on the day of incident he had gone to receive his salary. The deceased Muhammad Latif Niazi who was working as Budget Clerk told him that he is not working properly, therefore, he will be transferred on which he replied to the deceased that you are merely a Clerk and it is not his duty to ask or to look after his work and get him transferred. Superintendent and Director are the Competent Authority to look after his work and also competent to transfer him, on which the deceased abused him as `Baigharat'. and `Bhanchod' and such abuses the appellant/accused got provocation and fired upon with his" licensed pistol which he had brought for service purpose from the shop‑keeper after getting salary. The appellant/accused did not examine himself on oath nor he examined any defence witnesses. The learned trial Court thereafter framed the following points for determination and then proceeded to give his finding on the same:‑‑ (1) Whether the deceased Muhammad Latif was killed in incident? (2) Whether the Qatl‑i‑Amd liable to be Qisas punishable under section 302(a), P.P.C. has been made out? (3) What should the punishment be? The learned trial Court after going through the facts of the cases decided the case against the appellant/accused and convicted and sentenced the maximum penalty of death. The appeal has been filed and in the appeal the counsel represents re interest of the appellant/accused has pointed out that the sentence of death could not be awarded due to fact that there were mitigating circumstances which lead to the incident. To that extent the learned counsel has drawn our intention to the evidence of P.W. who is a complainant, Muhammad Saeed son of Raza Muhammad. In this evidence it is stated that the deceased was the younger brother of the complainant and the incident took place on 1‑4‑1998. On the day of incident P.W., Hidayatullah and Latifullah went to the office of the deceased for some work They saw that the deceased was sitting on his chair and other P.Ws. Ahsanullah and Ashraf Rajpoot were also present. The accused/appellant Munawar Ali was present there. The accused was working as Mali in Education Department. In the presence of the complainant, the deceased Muhammad Latif asked the accused that he is not taking proper interest in his official duty on which the accused became annoyed and hot words took place. Then the accused went away. Thereafter the accused came back at 11‑45 a.m. with TT Pistol in his right hand, he fired at Muhammad Latif, which hit him on his chest and head. The accused then went away. The complainant alongwith Ashraf and Muhammad Ahsan brought the injured to Civil Hospital, Sukkur, where he subsequently died. It is claimed by the learned counsel for the appellant that there were mitigating circumstances under which the incident took place. Prior to this incident, the accused and the deceased had an altercation as the deceased had reprimanded him for not doing his work properly. This point has A also been mentioned in the F.I.R. The learned counsel for the State and complainant stated that the judgment is a proper judgment and there is no provocation. In the case of Abbas Ali and others v. The State and others 1987 SCMR 1855. In. this case the Full Bench of the Honourable Supreme Court were seized of a petition where the petitioner was convicted for an offence under section 302, P.P.C. and sentenced to death. The High Court upheld his conviction and sentence of fine but reduced the sentence from death to imprisonment for life. The complainant had filed the petition before the Honourable Supreme Court seeking the restoration of the sentence of death. The Honourable Supreme Court dismissed the matter and has held that the petitioner was rightly given the benefit of mitigating circumstances as the deceased had abused the respondent's father and High Court had converted death sentence into life imprisonment. In the case of Nazeer Ahmed v. The State 1994 SCMR

92. In this case a Full Bench of the Honourable Supreme Court granted leave to appeal and accused was given lesser sentence as he had been provoked earlier by the deceased. The sentence of death was converted to life imprisonment. In the case of Abdul Haque v. The State PLD 1996 SC 1 a Full Bench of the Honourable Supreme Court on the basis of grave and sudden provocation held that mitigating circumstances justified the reduction of sentence and awarding of lesser penalty. In the case of Abid Hussain v. The State SCMR 1994 SC 641 it was held that exchange of harsh words appeared to have taken place between the accused and the deceased before the act of firing the death sentence was reduced to life. In the reported case of Muhammad Nasrullah 2003 SCMR 189 the Supreme Court has held that unless details of abuses given or the filthy language used by the deceased had been given such plea could not be taken as mitigating circumstances. The majority of the cases mentioned above have awarded the lesser sentences by considering the mitigating circumstances. In the case of Abdul Haque v. The State (supra) a five member Bench of the Honourable Supreme Court has reduced the sentence from death to lesser penalty. Exhaustive case‑laws have been relied upon. It is to be seen that the complainant evidence, the F.I.R. and other evidence of the prosecution clearly shows that there was a prior provocation before actual incident. According to the F.I.R. the accused was reprimanded for not working efficiently and properly in front of other people. Harsh language and tone was used. In the 342, Cr.P.C. statement the accused has stated that he was caused on his mother by the deceased and humiliated. In the evidence of the complainant Muhammad Saeed it is confirmed that when the accused was reprimanded then there was a exchange of hot words. The same statements are also correct on record through the evidence of the eye‑witnesses. Therefore, it is obvious that there was a sudden provocation of the accused prior to the incident. Under the circumstances and in view of the judgment mentioned above and looking at the F.I.R. and the evidence of the complainant, we are satisfied that mitigating circumstances existed. Based upon the dicta laid down in the judgments of the Honourable Supreme Court we would convert the death sentence into life. To that extent this appeal is allowed and the original judgment is modified accordingly. Appeal allowed accordingly. H.B.T./M‑59/K