1994 PLP 1208 (SCMR)

SAAD SAOOD JAN, J.‑‑‑Ghulam Fareed and his father Ghulam Muhammad were tried by the Sessions Judge at Mianwali on the charge under sections 302 read with section 34, Pakistan Penal Code, for causing the death of Muhammad Hasnain Raza, deceased. The learned Trial Court acquitted Ghulam Muhammad but convicted Ghulam Fareed on the charge against him and sentenced him to death and payment of fine. On appeal and reference, the High Court upheld his conviction but reduced the sentence of death to imprisonment for life. It also dismissed the revision petition preferred by the complainant party against the acquittal of Ghulam Muhammad. The complainant party seeks leave to appeal from this Court. Ghulam Fareed has also filed a petition through jail against his conviction and sentence.

2. The parties are closely related. The father of the deceased was a first cousin of Ghulam Muhammad. The sister of the deceased was married to Muhammad Latif, brother of Ghulam Fareed. Muhammad Latif was employed in the army and for that reason used to be away from the village. The sister of the deceased lived with her husband's family although in the same Ihata. About three days prior to the occurrence she left her in‑laws house after a quarrel and moved into her paternal house. On the morning of the day of occurrence, Ghulam Fareed came to the house of the deceased to take her away. The deceased refused to let his sister go with him this led to exchange of hot words between the two.

3. It was alleged by the prosecution that on the same evening, that is, on 9‑6‑1988, at 4‑00 p.m., Ghulam Fareed and his father came to the house of the deceased. Ghulam Fareed was armed with a Chhuri while his father was empty handed. Immediately on arrival at the house of the deceased Ghulam Fareed attacked him with the Chhuri inflicting three blows in the chest and abdomen. The deceased died at the spot. The occurrence was witnessed by his father Muhammad Nawaz, who reported the matter at Police Station Piplan on the same afternoon at 4‑30 p.m.

4. At the trial Ghulam Fareed did not deny that he was responsible for causing the death of the deceased. He, however, took the plea of self‑defence. He did not lead any evidence in his defence.

5. The trial Court as well as the High Court rejected the plea of self defence taken by the petitioner. The trial Court also held that it was a pre planned murder. However, the High Court took a different view in the matter and observed: "In our view, the prosecution version that the appellant had gone alone in the morning to bring back his brother's wife and had quarrelled there and had again gone to the house of the deceased in the latter part of the day, i.e. at 4‑00 p.m. after having made preparation to commit the murder, is not the correct position. What can easily be assumed, is that unfortunate murder of the deceased and the demand made by the appellant for return of his Bhabi had taken place at one and the same time. Our reason for assuming that, is that if the appellant had quarrelled in the morning, he would not have gone to the house of the deceased in the evening armed only with a dagger and accompanied by his old father, aged about 74 years, empty‑handed knowing fully well that the deceased and his father both were keeping unlicensed guns. He could have easily understood the implications of such an adventure." On the finding that it was a case of a sudden flare‑up it declined to confirm the sentence of death.

6. It may at once be stated that the plea of self‑defence taken by Ghulam Fareed has no support from the record. His assertion that the deceased had fired two shots at him before he picked up a chhuri from the kitchen does not impress us for it is unlikely that he would have remained unhurt if the deceased in fact had fired at him twice. As noticed above, the parties resided within the same premises and the occurrence took place right in. front of the room occupied by the deceased party. There is no satisfactory explanation why Ghulam Fareed went to the portion in the occupation of the family of the deceased with a chhuri. He was quite rightly convicted of an offence under section 302, Pakistan, Penal Code. As regards the sentence, it has already been noticed that the parties were closely related and there was no previous enmity between them. The High Court rightly found that it was a case of sudden flare up when the family of the deceased refused to allow the wife of the brother of the respondent to live in Ghulam Fareed's house. In the circumstances, the High Court does not appear to have exercised its discretion wrongly in not confirming the sentence of death.

7. For the reasons stated above both petitions are dismissed. N.H.Q./M‑1953/S Leave refused.