—S. 302(b)--Murder in the heat of passion without premeditation-

 PLJ 2004 SC 23

Pakistan Penal Code, 1860 (XLV of 1860)--

—S. 302(b)--Murder in the heat of passion without premeditation-Evidence reveals that appellant came to 'dera' of deceased empty handed in hot temper which indicates that he had- no intention to commit murder and in Jieat of passion picked up a 'thoka' from courtyard and inflicted blows to deceased which resulted into his death-Occurrence apparently was not result of pre-concert and premeditation but was a sudden affair and occurred due to annoyance and heat of passion of appellant-Although prosecution has alleged that appellant before attacking deceased raised 'lalkara' that he would kill deceased and as such tried to establish preplanning of commission of offence but such an allegation is not supported by facts and circumstances of case as, had he come with intention to kill deceased, he would have come duly armed-Appellant admittedly came empty handed to ''dera' of deceased, therefore, allegation of 'lalkara' appear to be customary-There was no previous enmity between parties except for annoyance of appellant due to grazing of deceased's cattle in his fie'ids, which caused present occurrence—Since Occurrence was a sudden affair in heat of passion without premeditation, therefore, sentence of death converted in imprisonment for life.

[P. 25] A & B

Mr. Masoodur Rehman Mirza, ASC and Mr. Attaur Rehman, AOR for Appellant.

Mr. Dil Muhammad Tarar, ASC, for State. Date of hearing : 24.9.2003.

 PLJ 2004 SC 23
[Appellate Jurisdiction]
Present: NAZIM HUSSAIN SIDDIQUI, MIAN MUHAMMAD AJMAL AND
FALAK SHER, JJ.
MUHAMMAD SHARIF-Appellant
versus
STATE--Respondent Criminal Appeal No. 32 of 2002, decided on 24.9.2003.
(On appeal from the judgment of the Lahore High Couit, Lahore dated 24.4.2001 passed in Criminal Appeal No. 125/1996 £ M.R. No. 48/96).

JUDGMENT

Mian Muhammad Ajmal, J.--This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore dated

24.4.2001, whereby Criminal Appeal No. 125/1996 of the appellant was dismissed, his death sentence was confirmed and the sentence of fine imposed upon him being illegal was set aside while order for payment of compensation to the legal heirs of the deceased, was maintained.

2. Brief facts as per F.I.R. are that .on 13.9.1994 at about Jhiki Degarwela, Muhammad Hayat complainant, his brother Shameer and Mst. Noor Bhari his Bhawaja were present at their 'cfera' in Chah Jamalwala Dakhli Hindwan. The complainant was cutting fodder for the cattle, his brother Shameer deceased was making ablution on a hand-pump while Mst. Noor Bhari was busy in household work. In the meantime, Muhammad Sharif appellant came there and shouted that he would not spare Shameer. He picked up a wooden 'Thoka' from the courtyard and inflicted a blow on the head of the deceased, as a result of which he fell on the ground. The appellant inflicted two more blows on his head when he was lying on the ground. The deceased succumbed to the injuries at the spot. The occurrence was witnessed by Haji Ghulam Muhammad and Zafar besides the complainant and Mst. Noor Bhari. The appellant decamped from the spot. Motive as stated was that about 10/12 days prior to the occurrence, the cattle of Shameer deceased went into the fields of the appellant and caused damage to his crop, due to which he was annoyed and threatened Shameer of dire consequences.-A case under Section 302 PPC was registered against the appellant. After investigation challan was put in the trial Court against the appellant. He was charged by the trial Court under Section 302 PPC to which he pleaded not guilty and claimed trial. The prosecution examined ten witnesses while gave up Zafar, Muhammad Amir, Mst. Noor Bhari and Amir Bakhsh. On conclusion of the prosecution evidence, the appellant was examined under Section 342 Cr.P.C. wherein he denied the allegations. The appellant did not opt to be examined under Section 340(2) Cr.P.C. nor produced any witness in his defence. The trial Court, on assessment of the evidence convicted the appellant under Section 302(b) PPC vide its judgment dated 15.2.1996 and sentenced him to death and to pay fine of Rs. 25,000/-. He was also ordered to pay compensation of Rs. 50.000/- to the legal heirs of the deceased under Section 544-A Cr.P.C. In case of default in payment of fine and compensation, he was to undergo three months R.I. on each count. The appellant challenged his conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No. 125/1996 and the trial Court referred Murder Reference for confirmation of his death sentence. A learned Division Bench of the High Court vide its judgment dated 24.4.2001 dismissed the appeal of the appellant, confirmed his death sentence and answered the reference in the affirmative. The sentence of fine imposed upon him was set aside being illegal while order for payment of compensation to the legal heirs of the deceased, was maintained. The appellant challenged his conviction and sentence before this Court through Criminal Petition No. 271-L/20Q1, wherein leave was granted as under:--

"3. The learned counsel for the petitioner restricted his arguments to the quantum of sentence and did not assail either the prosecution evidence or guilt of the petitioner and his conviction under Section 302(b) PPG. The stance is understandable inasmuch as the ocular evidence furnished by the complainant and Haji Ghulam Muhammad is not only confidence inspiring but is also corroborated by the promptly lodged FIR, the medical evidence, recovery of the weapon of crime and positive reports of the Chemical Examiner and the Serologist. The impugned judgment is unexceptionable to that extent.

4.           As to sentence, it was contended by the learned counsel for the

petitioner that a case for lesser sentence was  made out as the

petitioner had come to the spot empty handed and the occurrence

was sudden and unpremeditated,

5.           Leave is granted to consider the question of sentence awarded to

the petitioner".

 

3.           Learned counsel for the appellant contended that the appellant

came to the spot empty handed in high temper and picked up a wooden

'thoka' from the courtyard and inflicted two blows as a result of which the

victim died. He submitted that it was a sudden affair without premeditation,

therefore, lenient view should have been taken in awarding the punishment.

4.           The above contention finds support from the evidence on record

that the appellant came to the 'efera' of the deceased empty handed in hot

temper which indicates that he had no intention to commit the murder and

in heat of passion picked up a 'thoka' from the courtyard and inflicted blows

to Shameer which resulted into his death. The occurrence apparently was

not the result of pre-concert and premeditation but was a sudden affair and

occurred due to annoyance and heat of passion of the appellant. Although

prosecution has alleged that the appellant before attacking the deceased

raised 'lalkara' that he would kill Shameer and as such tried to establish

preplanning of the commission of the offence but such an allegation is not

supported by the facts and circumstances of the case as, had he come with

the intention  to kill Shameer,  he would  have come  duly armed.  The

appellant admittedly came empty handed to the 'dera' of the deceased,

therefore, the allegation of 'lalkara' appear to be customary. There was no

previous enmity between the  parties except for the  annoyance of the

appellant due to the grazing of deceased's cattle in his fields, which caused

the present occurrence. Since the occurrence was a sudden affair in heat of

passion without premeditation, therefore, we are of the view that lesser

punishment of life imprisonment would meet the ends of justice.

5. Consequently we, while maintaining the conviction of the appellant, modify his sentence and alter the same from death to life imprisonment. With this modification in sentence, the appeal is dismissed. The appellant would also be entitled to the benefit of Section 382-B Cr.P.C.

(T.A.F.)                                                                    Appeal party accepted.