2019 M L D 746
[Balochistan]
Before Jamal Khan Mandokhail and Zaheer -ud-Din Kakar, JJ
NASEEBULLAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.317 of 2016, decided on 31st July, 2018.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Sentence, reduction of ---
Mitigating circumstances ---Accused was charged for the murder of his wife and her
paramour, on seeing them in compromising position---Record showed that dead bodies of
both the deceased were found in the baithak of the accused and as per his confessional statement that he found the deceased in compromising position in his baithak, due to which he had committed their murder ---Accused had not taken the plea of grave and sudden
provocation, during the trial, but the confessional statement of the accused and
circumstantial evidence suggested that accused had acted under grave and sudden provocation---Accused had taken specific plea that on the day of occurrence, he found his wife wi th a person in a compromising position in his baithak and committed their murder -
--Said plea of the accused was strengthened by the statement of Medical Officer, who
conducted post -mortem examination of the deceased and found gunshot injuries on their
bodies---Chemical Examiner Report and recovery of .30- bore pistol and Report of Firearm
Examiner also supported the plea of accused ---Confessional statement of accused and
circumstantial evidence transpired that the present case appeared to be where the accused lost his self -control after seeing the deceased in a compromising position in his baithak,
which constituted mitigating circumstance ---Offence was apparently committed in the
manner as stated by the accused ---Circumstances established that the accused ha d acted
under grave and sudden provocation and the result was that the two deceased lost their lives from his hand--- Conviction under S.302(b), P.P.C. awarded to the accused was converted
from clause (b) to clause (c) of the S.302, P.P.C. in circumstances and he was sentenced to suffer fourteen years R.I. ---Appeal was dismissed with the said modification in quantum of
sentence.
Malik Muhammad Mumtaz Qadri's case PLD 2016 SC 17 rel.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Grave and sudden provocation, plea of ---General principles in
order to examine such plea.
Following principles can be generalized in order to examine the plea of human
killing on account of provocation:
(i) An act of one pers on towards another;
(ii) Such act may ignite rage, resentment or fury in the mind of another;
(iii) In order to reduce the charge of murder to manslaughter, the act must be such, which
may in the ordinary course of nature stir resentment in the mind of the others, forcing him
to resort to violence;
(iv) The person resorting to violence must not have a cool down period;
(v) The retaliation should be in proportionate to provocation. [p. 752] C
Chairman Pakistan Railway, Government of Pakistan v. Shah Jehan S hah PLD 2016
SC 534 and Ali Muhammad v. Ali Muhammad and others PLD 1996 SC 274 rel.
Muhammad Aslam Chishti for Appellant.
Muhammad Ali Rakhshani for the Complainant.
Ameer Hamza Mengal, Deputy Prosecutor -General for the State.
Date of hearing: 18th July, 2018.
JUDGMENT
ZAHEER -UD-DIN KAKAR, J. ---This Criminal Appeal is directed against the
judgment dated 29.7.2016 ("the impugned judgment"), passed by the learned Sessions
Judge, Killa Saifu1lah ("the trial Court"), whereby the appellant (accused) Mullah Naseebullah son of Haji Muhammad Azam was convicted and sentenced as under:
Under Section 302(b), P.P.C. and sentenced to imprisonment for life. Benefit of Section 382 -B, Cr.P.C. is extended in favour of the appellant.
2. Precisely stated facts of the case as per murasila of Risaldar Noor Shah Khan (Ex -
P/1-A) on the basis of which FIR (Exh.P/9- A) was registered are that:
3. After conclusion of the investigation, report under section 173, Cr.P.C. was
submitted before the trial Court, where on 13.3.2012, the appellant was charged under section 302, P.P.C. to which he pleaded not guilty and claimed trial. In order to prove its
case, the prosecution examined the following nine witnesses:
PW-1 Noor Shah Khan Risaldar Levies is complainant of the case, reiterated the
contents of his application (Ex- P/1-A) and produced the same as Ex -P/1-A.
PW-2 Amanullah levies sepoy is witness to preparation of site inspection memo.
(Ex-P/2-A), inspection of dead bodies of deceased Ain- ud-Din a nd Bibi Ruqaya
(Ex-P/2-B and Ex -P/2-C) respectively, recovery memo. of seven empties and two
led (Ex -P/2-D, recovery memo. of 15 number of colourful broken bangles (Ex -P/2-
E), recovery memo. of one blood stained piece of mattress (Ex- P/2-F), recovery
memo. of one piece of carpet ( ), (Ex -P/2-G) and recovery memo. of blood stained
clothes of deceased Ain -ud-din and Ruqaya (Ex- P/2-H and J) respectively.
PW-3 Allah Muhammad, Judicial Magistrate, recorded confessional statement of
the appellant and produced th e same as (Ex -P/3-B) and certificate (ExP/3 -C).
PW-4 Sardar Khan Levies Sepoy, is witness to the recovery memo of one pistol .30
bore along with magazine (Ex -P/4-A).
PW-5 Dr. Ghulam Haider Samejo, Police Surgeon, Sandeman (Prov) Hospital,
Quetta conducte d Postmortem examination of the dead bodies of deceased Ain- ud-
din and Ruqaya and issued report (Ex- P/5-A and Ex -P/5-B) respectively.
PW-6 Abdul Salam Hawaldar Levies, arrested the appellant and during his personal
search recovered one pistol.
PW-7 Ghula m Nabi Levies Sepoy, is witness to the recovery memos. of shalwar of
deceased Ain -ud-din and Bibi Ruqaya (Ex -P/7-A and Ex -P/7-B) respectively.
PW-8 Mulla Abdul Latif, is a circumstantial witness.
PW-9 Naik Muhammad Investigating Officer, conducted invest igation, produced
the FIR (Ex -P/9-A), prepared site plan (Ex -D/9-B), prepared inquest reports of
deceased Ain -ud-din and Bibi Ruqaya (Ex -P/9-C and Ex- P/9-D), produced copies
of different letters (Ex -P/9-E to Ex -P/9-H), prepared challans Ex -P/9-J and K),
received FSL report (Ex -P/9-L), prepared supplementary challan (Ex -D/9-M),
received FSL report (Ex -P/9-N), prepared challan (Ex -P/9-O), received Fire- arm
Expert report (Ex -P/9-P) and prepared challan (Ex -P/9-Q).
4. After completion of the prosecution side, the accused was examined under sections
342, Cr.P.C., wherein he once again denied the prosecution case. He also got recorded his statement on oath as envisaged under section 340(2), Cr.P.C, however, did not produce any witness in his def ence. After conclusion of trial and hearing both the sides, the trial Court
convicted and sentenced the appellant, hence this appeal.
5. Learned counsel for the appellant contended that it was the case of grave and sudden
provocation; that the occurrence had taken place in the Baithak of the appellant; that the
dead bodies of both the deceased namely Ain -ud-Din and Bibi Ruqaya (wife of the
appellant) were found in the house of the appellant and the blood stained articles were taken
into possession from ther e. Learned counsel submitted that though the appellant had not
taken the plea of grave and sudden provocation, but his confessional statement clearly shows that on 21.1.2012, he found his wife along with deceased Ain -ud-din in
compromising position in his house, therefore, he committed their murder. Thus, looking
to grave provocation and loss of control no case under Section 302(b), P.P.C. is made out. Lastly, it has been argued that even on stated facts, the case of the appellant was covered by clause (c) of Section 302, P.P.C.
6. On the other hand, the learned DPG vehemently opposed the appeal, supported the
impugned judgment and stated that the prosecution had proved its case beyond reasonable doubt and the appellant admitted his guilt, therefore, the ins tant appeal is liable to be
dismissed.
7. We have heard the learned counsel for the parties and perused the record, which
reveals that the dead bodies of both the deceased were found the Baithak of the appellant and as per his statement under Section 164, Cr.P.C. recorded by the PW -3 Judicial
Magistrate, Quetta, he confessed his guilt and stated that he found the deceased in compromising position in his Baithak, due to which he had committed their murder. At this stage it is necessary to reproduce the statement of the appellant recorded under Section 164, Cr.P.C. (Ex.P/3 -B) as under:
8. Although during the trial, the appellant had not taken the plea of grave and sudden
provocation but the settled law is that if it is spelt out from the record that can be taken into
consideration. After going through the confessional statement of the appellant coupled with circumstantial evidence, we are of the view that the appellant had acted under grave and sudden provocation and the result was that these two deceased lost their lives from the hand
of the appellant.
9. The expression "provocation" has not been defined anywhere in the Pakistan Penal
Code. It is a settled proposition that if an expression is not defined in any law, then recourse has to be made to its dictionary meaning. Such an approach is in accordance with the
principles of interpretation, laid down by the Hon'ble Apex Court in the case Chairman Pakistan Railway, Government of Pakistan v. Shah Jehan Shah (PLD 2016 SC 534) wherein the Hon'ble Apex Court held as under:
"When a word has not been defined in the statute, its ordinary dictionary meaning was to be looked at"
While following the rule of interpretation laid down by the Hon'ble Apex Court in
the above case, the dictionary meaning of "provocat ion" is looked into by this Court. In
Black's Law Dictionary, Fifth Edition, word "provocation" is defined as under:
"The act of inciting another to do a particular deed. That which arouses, moves, call forth, causes, or occasions. Such conduct or actions on the part of one person
towards another as tends to arouse rage, resentment, or fury in the latter against the former, and thereby cause him to do some illegal act against or in relation to the person offering the provocation."
Provocation in reference to killing of a person is further defined in the same
dictionary as under:
"Provocation which will reduce killing to manslaughter must be of such character as will, in mind of average reasonable man, stir resentment likely to cause violence, obscure the reason, and lead to action from passion rather than judgment. There must be a state of passion without time to cool placing defendant beyond control of his reason. Provocation carries with it the idea of some physical aggression or some assault which sudde nly arouses heat and passion in the person assaulted."
The plea of provocation came up for consideration before the Hon'ble Supreme
Court and was expounded in the case of Ali Muhammad v. Ali Muhammad and others (PLD 1996 SC 274) as under:
"Provocation in law consists mainly of three elements ---the act of provocation, the
loss of self -control, both actual and reasonable and the retaliation proportionate to
the provocation... ...Their relationship to each other, particularly in point of time, whether there was time for passion to cool ---is of first importance."
10. In the above backdrop, following principles can be generalized in order to examine
the plea of human killing account of provocation:
(i) An act of one person towards another;
(ii) Such act may ign ite rage, resentment or fury in the mind of another;
(iii) In order to reduce the charge of murder to manslaughter, the act must be such, which
may in the ordinary course of nature stir resentment in the mind of the others, forcing him to resort to violenc e;
(iv) The person resorting to violence must not have a cool down period;
(v) The retaliation should. be in proportionate to provocation.
11. In the case in hand, the appellant has taken specific plea that on the fateful day he
found his wife with a person namely Ain -ud-din in compromising position in the Baithak
of his house, therefore, he made firing and committed their murder. The plea of the appellant is further strengthen by the statement of PW -5 Dr. Ghulam Haider Samejo, Police
Surgeon, Civil Ho spital Quetta, who conducted post -mortem examination of the deceased
and found gunshot injuries on their bodies. The plea of the appellant was also strengthen by the Chemical Examiner Report (Ex -P/9-L) and recovery of .30 bore pistol coupled with
Firearms Examiner (Report Ex -P/9-P).
12. The in -depth analysis of the confessional statement of the appellant coupled with
circumstantial evidence is that the instant case appears to be of human frailty where the appellant lost his self -control after seeing the deceased in a compromising position in his
Baithak. The occurrence is apparently committed in the manner stated by the appellant. The Hon'ble Apex Court in the case of Ali Muhammad (mentioned supra) after taking into
consideration the plea of the accused that he killed the deceased after seeing him in
compromising position with his wife, considered it as a mitigating circumstances and convicted him under Section 302(c), P.P.C. The relevant portion is advantageously reproduced herein below:
"Section 302 of the P.P.C. therefore, itself contemplates plainly clearly a category
of cases which are within the definition of Qatl -i-amd but for which the punishment
can, under the Islamic Law, be one other than death or life imprisonment. As to what are the cases falling under clause (c) of section 302, the law maker has left it to be
Courts to decide on a case to case basis. But keeping in mind the majority view in Gul Hassan case (PLD 1989 SC 633) there should be no doubt that the cases covered by the Exceptions to the old section 300, P.P.C. read with old section 304 thereof, are cases which were intended to be dealt with under clause (c) of the new section 302 of the P.P.C."
This view has been followed in the case of Malik Muhammad Mumtaz Qadri (PLD
2016 SC 17); relevant portion whereof is as follows:
"Grave and sudden provocation offered by a victim to the assailant is surely one of the exceptions within the contemplation of the above mentioned Article 121 which exception was previously recognized by Exception No.1 t o the erstwhile section
300, P.P.C. and is now covered by the provisions of section 302(c), P.P.C."
13. In view of the above discussion, it is established that the appellant had acted under
grave and sudden provocation and the result was that these two dec eased lost their lives
from the hand of the appellant. Under the circumstances, the conviction under Section 302(b), P.P.C. awarded to the appellant is converted from clause (b) to clause (c) of the Section 302, P.P.C. and he is sentenced to suffer fourtee n (14) years' RI with benefit of
Section 382 -B, Cr.P.C.
With she above modification in quantum of sentence, the appeal is dismissed.
JK/67/Bal. Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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