1968 P Cr (PLP)

S. A. RAHMAN, J.‑The petitioner, Khan Bahadur, was sentenced to death under section 302 and to five years rigorous imprisonment under section 307 of the Pakistan Penal Code on two counts, by the trial Judge. A further sentence of 6 months rigorous imprisonment, under section 13 of the West Pakistan Arms Ordinance, 1965, was also imposed on him. It was directed that .the sentences of imprisonment would run concurrently, in case the death sentence was not confirmed by the High Court. On appeal and reference, the High Court of West Pakistan confirmed the death sentence for the offence of murder and upheld the other convictions and sentences of the petitioner. He now seeks special leave to appeal. We have beard Mr. Mahmud Ali, in support of the petition. The only point he has urged for our consideration is that the petitioner was acting under grave and sudden provocation when he stabbed the deceased. Learned counsel, however, concedes that this plea rests on the statement of the petitioner himself, made in the trial Court and that there is no other evidence on the record on which it could be founded. He refers to the circumstances of the case as lending support to this plea. The deceased was being led, under police custody, to the Court of E. A. C. Swabi when, at the threshold of the Court, the petitioner who was standing there, started stabbing him with a dagger. The deceased died of the injuries thus inflicted. The deceased, along with the three sons, was being prosecuted for the alleged murders of Wali Dad and Ali Bahadur, brothers of Khan Bahadur, petitioner. The petitioner and his brother Nazeer Dad who was also tried jointly with the petitioner in this case, but acquitted, were being prosecuted in a cross case under section 307/34, P. P. C. but had been enlarged on bail. Learned counsel argued that in these circumstances, it was quite likely that the deceased may have uttered taunts and insulted the petitioner as he was going into the Court‑room and that this must have provoked the petitioner into stabbing him. In this connection learned counsel also pointed out that the three police officials who were incharge of the deceased and his co‑accused at the time were not examined as witnesses for the prosecution. In our opinion the argument raised has no substance. As has been observed by the High Court, the defence plea was raised for the first time in the trial Court and nothing was said about it by the petitioner in the committing Magistrate's Court. It was therefore, obviously a belated plea. Secondly, there was nothing in the evidence of the prosecution witnesses to lend support to this plea. The burden of proving, that he acted under grave and sudden provocation, rested squarely on the petitioner himself. It appears to us unlikely that the deceased who was an old man of 80 and was being led into the Court‑room by police officials, would have turned round to make the fairly longish utterance ascribed to him by the petitioner. It would be highly doubtful whether the deceased had the opportunity of expressing himself at such length at the moment of his entry into the Court‑room. If the petitioner was on strong ground in this respect, he could have even called the police officials in defence to depose to this alleged provocation. The mere fact that the prosecution had not examined these police officials, cannot lead to the inference that the petitioner had told the truth in his own belated statement before the vial Court. The circumstance again, that the brother of the petitioner was acquitted in this case, does not affect the case against Khan Bahadur who was arrested at the spot red‑banded and disarmed The conviction on the murder charge was there fore, appropriate and the sentence imposed on him also calls for no interference. The appraisal of the evidence, on which the convictions of the petitioner by the Courts below rest, does not appear to us to be open to any exception. We, therefore, dismiss the petition. Petition dismissed.