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Criminal Petition for Special Leave to Appeal No. 502 of 1979, decided on 24‑1‑1981.

(On appeal from the order of the Lahore High Court dated 10‑10‑1979 in Crl. A. No. 1091/77 and M.R. No. 32/78).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), 5.302 read with Ss. 300, Exception 1 & 304, Part 1‑‑Murder‑‑High Court considering case one of grave and sudden provocation altering conviction of convict‑respondent under S. 302 to that under S. 304, Part I‑‑Facts on record, however, showing that it could not be said that provocation was so sudden and grave as to fall within Exception 1 to S. 300‑‑Reason given by High Court for arriving at proof of Exception highly conjectural and untenable ‑‑Alteration in sentence from imprisonment to death as sought by petitioner, however, not necessary as even after recording conviction under S. 302, sentence of death might not be imposed in case‑‑Held, grant of leave to appeal to alter conviction only without possibility of interference in sentence would in circumstances of case, amount to exercise in futility.

Sh. Ziaullah, Advocate Supreme Court with Ejaz Ahmad Khan, Advocate‑on‑Record for Petitioner.

Date of hearing: 24th January, 1981.

The petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 10‑10‑1979 whereby the conviction of the respondent under section 302, P.P.C. for the murder of his wife and infant son was set aside and substituted by conviction under section 304, Part 1, P.P.C. (on two counts) and the sentence of life imprisonment was imposed.

The respondent, his wife Mst. Nasim Akhtar and his infant son Muhammad Faisal were sleeping in the same room on the night of 23/24‑7‑1975 in Mohallah Hussain Abad Chah Janiwala, Pakki Thathi, Lahore. At about 3 a.m. other persons sleeping in the house were awakened on the cries coming from that room and saw the respondent giving Toka blows to Mst. Nasim Akhtar and Muhammad Faisal, who died of the injuries. The motive disclosed by the witnesses was that he suspected his wife of immoral character.

3. The trial Court believed the prosecution case held the respondent guilty of the murders of his wife and infant child convicted and sentenced him to death.

4. In setting aside the conviction under section 302, P.P.C. and substituting it by one under section 304, Part I, P.P.C. the learned Judges in the High Court gave the following reasons:

"We find from the F.I.R. that motive for the murder was that the appellant had suspected Mst. Nasim Akhtar of immoral character and similarly from the statement of Mst. Fazal Bibi (P.W.9) it is proved that the appellant suspected Mst. Nasim Akhtar deceased of loose character. Therefore a possibility cannot be ruled out that when the appellant returned from Qatar and while he was in bed with the deceased he might have asked the lady relating to her immorality and it is not known what answer she gave or what talk took place between them. May be, the deceased either admitted the accusation of immorality against her or said something which provoked the appellant at the moment to such an extent that he lost all control and senses and caused injuries with a Toka (P.7) which might be present in the house. In our view, this seems to be a case of grave, and sudden provocation. We, therefore, set aside 'his conviction under section 304, Part I, P.P.C. and instead convict him under section 304, Part I, P.P.C. on both the counts."

5. The learned counsel for the petitioner contended that there were no mitigating factors and that the reasons and the finding of the learned Judges are purely conjectural there being nothing on the record to support it. In any case, according to the learned counsel for the petitioner, there could be no mitigation for the murder of infant.

6. From the facts disclosed in the judgment of the High Court and the reasons given it could reasonably be concluded that the murders were committed suddenly or under provocation but from the facts appearing on the record it could not have been said that the provocation was so sudden and grave as to fall within Exception 1 to section 300. P:P.C. We will not, therefore, hesitate in concluding that the reason given by the learned Judges for arriving at the proof of the exception was highly conjectural and untenable. All the same it cannot be said that it will necessarily mean alteration in the sentence which the petitioner is seeking. Even after recording his conviction under section 302, P.P.C. as was recorded by the learned trial Court the sentence o. death ' may not be imposed in the case. According to the prosecution case itself family honors was involved and immorality was suspected. The murder of the infant could be a part of the act to murder the wife and not independent of it. In the circumstances without rejecting the first part of the contention of the learned counsel for the petitioner, we consider that it will be an exercise in futility to grant leave to alter conviction only without the possibility of interference in the sentence. Leave is, therefore, refused.

S.Q. Leave refused.

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