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Petition for Special Leave to Appeal No. 115 of 1968, decided on 27th June 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 2nd February 1968, in Criminal Appeal No. 816 of 19,65).
Ss. 302 & 300, Exception 1--- Accused finding deceased having illicit relation with their female relative murdering him while on a visit to her house- Whether accused, in circumstance, not entitled to benefit of grave and sudden provocation‑Special Leave to Appeal granted by Supreme Court.
M. B. Zaman, Senior Advocate Supreme Court (Basher Zafar, Advocate Supreme Court with him) instructed by Fazal‑i‑Hussain, Attorney for Petitioners.
Nemo for the State.
Date of hearing : 27th June 1968.
‑The petitioners stand convicted under section 302 read with section 34 of the Pakistan Penal Code and sentenced to transportation for life each, for the murder of one, Nazar Shah.
The said Nazar Shah had an illicit relation with Mst. Wallan, wife of Abdul Karim, a brother of Muhammad Amin, petitioner, and a cousin of Allah Wasaya, petitioner. On the night of the 28th July 1964, when Nazar Shah went to the house f of Mst. Wallan, these two petitioners caught him there and after tying his hands with rope took him towards a field. Fida Hussain a companion of Nazar Shah, who was waiting in a nearby hut, on seeing the plight of Nazar Shah, went to latter's village and informed his father, Bahawan Shah, of the incident. On the next morning Bahawan Shah went to the petitioners' village and eventually they confessed that they had murdered Nazar Shah. The Police during investigation dug out head of the deceased from a place which was pointed out by petitioner, Allah Wasaya, and also found the trunk lying buried at a nearby place which was pointed out by the petitioner, Muhammad Amin.
Both the Sessions Judge and the learned Judges of the High Court concurred in the conclusion arrived at regarding the guilt of these two petitioners, and the learned counsel found it difficult to challenge the correctness of the findings on question of fact arrived at by the Courts below.
The learned counsel has, however, contended that the petitioners on finding the deceased at the house of Mst. Wallan took him in a nearby field and then killed him. Thus, according to him, all these acts constitute one transaction and, as such, their offence would fall within the ambit of Exception 4 to section 300 of the Pakistan Penal Code. In other words, according to the learned counsel, in the facts of the case, these petitioners would be entitled to the benefit of grave and sudden provocation and that their offence would fall to be punished not under section 302 but under section 304 of the Pakistan Penal Code.
We think this point requires consideration. We, accordingly, grant leave to consider whether the evidence in this case could sustain a plea of grave and sudden provocation, affecting the nature of the offence found against them.
Leave granted.
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