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Criminal Petition No. 231 of 1981, decided on 1st February, 1983.
(From the judgment dated 29th March, 1981 of the Lahore High Court passed in Criminal Appeal No. 320 of 1980 and Murder Reference No. 143 of 1980).
‑‑‑ Art. 185(3) read with Penal Code (XLV of 1860), S. 302 Murder‑Occurrence preceded by quarrel between son of deceased and brother of accused‑Leave to appeal‑Granted to examine con tention that in view of earlier incident, acting as provocation, offence did not fall under S. 302, Penal Code.
AIR 1945PC 118andPLD 1967 SC18ref.
Aftab Farrukh, Advocate Supreme Court instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioners.
Nemo for the State.
Date of hearing : 1st February, 1983.
The petitioners are aggrieved by the judg ment of the Lahore High Court dated 29th March, 1981, where their appeal from their conviction under section 302/34, P. P. C. of the murder of Siddiq Ali and his son Ashfaq deceased was dismissed and the death sentences passed against Muhammad Sarwar and Muhammad Anwar, petitioners 1 and 2, were confirmed.
2. The occurrence giving rise to the case against the petitioners took place on 24th September, 1978 at 1.00 p. m. when Muhammad Sarwar armed with a dagger, Muhammad Anwar with a knife and Muhammad Afzal with a chhuri came armed to the dera of the deceased and caused their death. The immediate motive for the occurrence was an incident earlier in the morning, in which in a quarrel between two boys, i.e., Shehzad (a son of deceased Siddiq Ali) and Arsh d (a brother Of the petitioners) Ashfaq deceased had given slaps to Arshad. In the course of the investigation, the petitioners were arrested and at their instance blood‑stained weapons as aforesaid and clothes were recovered. As only one injury had been attributed to Muhammad Afzal petitioner which was on the person of Siddiq Ali deceased and which was not fatal, he was given the lesser penalty.
3. It is contended that in view of the earlier incident which had acted as a provocation, the offence did not fall under section 302, P. P. C. for which reliance was placed on A I R 1945 P C 118 and P L D 1967 S C 18. We feel that the contention requires to be examined. We accord ingly grant the petitioners leave to appeal.
Leave granted.
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