PLJ 2026 Cr.C. 1 (DB)
[Lahore High Court Lahore]
Present: Miss Aalia Neelum, CJ and Abher Gul Khan, J.
versus
STATE etc.--Respondents
Crl. A. Nos. 39518-J, 35023 & M.R. No. 170 of 2022,
heard on 15.9.2025.
Pakistan Penal Code, 1860 (XLV of 1860)--
----- S. 300--
قطر-احمد - - قابل سزا قتل - - قتل کا ارتکاب کرنے کے جرم سے یو/ایس کے تحت نمٹا جاتا ہے ۔ 300 ، پی پی سی-سیکشن 300 ، پی پی سی میں کہا گیا ہے کہ جو بھی موت کا باعث بننے کے ارادے سے ، یا اس طرح کی جسمانی چوٹ پہنچانے کے ارادے سے موت کا سبب بنتا ہے جس سے موت کا امکان ہوتا ہے ، یا اس علم کے ساتھ کہ اس طرح کے عمل سے موت کا سبب بننے کا امکان ہے ، مجرمانہ جرم کا ارتکاب کرتا ہے ۔ قتل - - اس طرح ، پاکستان پینل کوڈ ، 1860 کی دفعہ 300 جو فراہم کرتی ہے وہ یہ ہے کہ اگرچہ تمام قتل مجرمانہ قتل ہیں ، لیکن تمام مجرمانہ قتل قتل نہیں ہیں - - صرف اس طرح کے مجرمانہ قتل تب قتل ہوں گے جب وہ سیکشن 300 کے تحت مذکور شرائط کو پورا کریں گے ۔ پی پی سی-ایک سنگین اور اچانک اشتعال انگیزی کے طور پر اہل ہونے کے لیے ، یہ ظاہر کرنا کافی نہیں ہے کہ اپیل کنندہ کو کنٹرول کھونے پر اکسایا گیا تھا ۔ یہ ظاہر کرنا ضروری ہے کہ اشتعال انگیزی ایسی تھی کہ اسی حالات میں ایک معقول شخص خود پر قابو کھو چکا ہوتا ۔ اشتعال انگیزی سے فائدہ اٹھانے کا دعوی کرنے والے شخص کو یہ ثابت کرنا چاہیے کہ اشتعال انگیزی شدید اور اچانک تھی ، کہ اس نے انہیں خود پر قابو پانے کی صلاحیت سے محروم کر دیا ، اور یہ کہ وہ اس اثر و رسوخ میں رہتے ہوئے کسی شخص کی موت کا سبب بنے ۔
----S. 300--Qatl-e-amd--Culpable homicide--The offence of committing homicide is dealt with u/S. 300, PPC--Section 300, PPC states that whoever causes death by doing an act with intention of causing death, or with intention of causing such bodily injury as is likely to cause death, or with knowledge that he is likely by such act to cause death, commits offence of culpable homicide--Thus, what Section 300 of Pakistan Penal Code, 1860 provides is that while all murders are culpable homicides, not all culpable homicides are murders--Only such culpable homicides will be murder when they fulfill conditions as mentioned under Section 300 PPC--To qualify as a grave and sudden provocation, it is not enough to show that appellant was provoked into losing control; it must be demonstrated that provocation was such that a reasonable person in same circumstances would have lost self-control--A person claiming benefit of provocation must establish that provocation was severe and sudden, that it deprived them of capacity for self-control, and that they caused death of a person while still under that influence. [P. 13] A
Pakistan Penal Code, 1860 (XLV of 1860)--
ایس ایس ۔ 302 (ب) اور 300... - سزا اور سزا - - چیلنج کریں - - قتل کا حوالہ-طبی ثبوت-دونوں فریقوں نے اعتراف کیا ہے کہ اپیل کنندہ نے اپنے بیٹوں کو بلایا ، بشمول اپیل کنندہ ، اور جس طرح سے اپیل کنندہ غفوران بی بی نے اپنے بیٹوں کو بلایا ، بشمول اپیل کنندہ ، اسے بھڑکانے کے لیے کافی تھا - - یہ حقیقت کہ متوفی اور اپیل کنندہ کے درمیان جھگڑا ہوا تھا ، واضح طور پر بیان کی گئی ہے - - یہ تجویز کرنے کے لئے بھی کچھ نہیں ہے کہ اپیل کنندہ نے پی ڈبلیو-2 کو قتل کرنے اور چوٹ پہنچانے کا منصوبہ بنایا تھا-اپیل کنندہ کے ذریعہ حملہ کرنے کا واقعہ ، ایسا لگتا ہے کہ چند لمحوں میں ہوا ہے ، اور اپیل کنندہ ، متوفی کو مارنے اور پی ڈبلیو-2 کو چوٹ پہنچانے کے بعد جائے وقوعہ سے فرار ہوگیا ہے ۔ حالات کے تحت ، ہم اپیل کنندہ کی سزا کو سیکشن 302 (سی) پی پی سی میں تبدیل کرنے کی طرف مائل ہیں اور اس کے مطابق ، ہم اپیل کنندہ کو سیکشن 302 (بی) پی پی سی کے بجائے سیکشن 302 (سی) پی پی سی کے تحت سزا سناتے ہیں جیسا کہ سیشنز نے کیا تھا ۔ جج بنائیں اور اسے 14 سال کی سخت قید اور باقی سزاؤں اور ٹرائل کے ذریعے سنائی گئی سزاؤں سے گزرنے کی ہدایت کریں عدالت برقرار رہے گی - - مرنے والے کی موت کی وجہ چوٹ تھی نمبر-1-جہاں تک متوفی کے شخص پر دھندلی چوٹوں کا تعلق ہے ، استغاثہ کی طرف سے یہ اعلان نہیں کیا گیا تھا کہ قانون کی کون سی دفعات کے تحت ، متوفی کے گرنے سے ہونے والی دھندلی چوٹیں-اس کے علاوہ ، زخمیوں کے خلاف کوئی واضح کارروائی اپیل کنندہ سے منسوب نہیں کی گئی ہے ۔
----Ss. 302(b) & 300--Qatl-e-amd--Conviction and sentence--Challenge to--Murder reference--Medical evidence--Both sides have admitted that appellant called her sons, including the appellant, and way appellant-Ghafooran Bibi called her sons, including the appellant, was enough to provoke him--The fact that there was an altercation between deceased and appellant, is clearly made out--There is also nothing to suggest that appellant, had planned to murder and cause injury to PW-2--The incident of assault by appellant, appears to have happened in a few moments, and appellant, fled away from scene after hitting deceased and causing injury to PW-2--Under circumstances, we are inclined to convert conviction of appellant to Section 302 (c), PPC and, accordingly, we convict appellant under Section 302 (c), PPC instead of Section 302 (b), PPC as done by Sessions Judge and direct him to undergo rigorous imprisonment for 14 years and rest of convictions and sentences awarded by trial Court shall remain intact--Cause of death of the deceased was injury No--1--So far as blunt injuries on person of deceased are concerned, same were not got declared by prosecution that under which provisions of law, blunt injuries sustained by deceased fall--In addition, no overt act towards injured is attributed to appellant.
[Pp. 13 & 14] B, C & D
M/s. Naveed Ahmad Kh., Barrister M. Afzal Sraa, Shahid Asghar Bisriya, and Asifa Manzoor, Advocates with Appellant No. 2.
Mr. Muhammad Akhlaq, Deputy Prosecutor General for State.
Ch. Muhammad Shahbaz Kung, Advocate for Complainant.
Date of hearing: 15.9.2025.
Judgment
Miss Aalia Neelum, C.J.--The appellants, Muhammad Nauman Shakir, son of Niaz Ahmad Shakir, caste Rajpoot Bhatti, resident of House No. 1 GOR-I, Patyala House Race Course Road, Lahore (presently residing at Gulistan Colony, Gali No. 4, Bhulay Shah Road, Lahore), and Mst. Ghafooran Bibi, wife of Niaz Ahmad Shakir, caste Rajpoot Bhatti, resident of House No. 1, GOR-I, Patyala House Race Course Road, Lahore (presently residing at Gulistan Colony, Gali No. 4, Bhulay Shah Road, Lahore), have assailed their conviction and sentence recorded by the learned Additional Sessions Judge, District Lahore vide judgment dated 31.05.2022 in case F.I.R No. 2505 of 2017, dated 22.12.2017, offences under sections 302, 324, 338-A, 337-D, 34, PPC, registered at police station Factory Area, District Lahore, titled “The State vs. Muhammad Nauman Shakir, etc.”, whereby the trial Court convicted the appellant No. 1-Muhammad Nouman Shakir under Section 302(b), PPC as Tazir and sentenced to Death for committing Qatl-e-Amd of Nabeela Tabassum (the deceased). The appellant No. 1 was also convicted under Section 324, PPC and sentenced to undergo 10 years R.I. The appellant No. 1 was further convicted under Section 337-D, PPC and sentenced to undergo 05-years R.I and also to pay Arsh Rs. 6,45,198/- to Waseem Raza-injured. The appellant No. 1 was also convicted under Section 338-A(b) of the PPC and sentenced to undergo 5 years’ R.I. He was also ordered to pay Rs. 300,000 as compensation to the legal heirs of the deceased, and in default of payment thereof, would further undergo 6 months imprisonment. The appellant No. 2-Ghafooran Bibi was convicted under Section 302(b), PPC and sentenced to undergo life imprisonment. The appellant No. 2 was also convicted under Section 324 PPC and sentenced to undergo 10 years R.I. The appellant No. 2 was also convicted under Section 337-D, PPC and sentenced to pay Arsh Rs. 6,45,198/-to Waseem Raza-injured as well as to undergo 05-years R.I. She was further convicted under Section 338-A(b), PPC and sentenced to undergo 05-years R.I. She was also ordered to pay Rs. 300,000/-as compensation to the legal heirs of deceased, and in default in payment thereof, would further undergo 06-months imprisonment. All the sentences awarded to appellant No. 2 would run concurrently. The benefit of Section 382-B, Cr.P.C. was also extended in favor of the appellants.
2. Feeling aggrieved by the judgment of the trial Court, the appellants have assailed their conviction by filing the instant jail appeal bearing Criminal Appeal No. 39518-J of 2022. The complainant also filed Crl. Appeal No. 35023 of 2022, against the acquittal of Adil Rehman Shakir, Respondent No. 2 in that appeal. The trial Court also referred M.R. No. 170 of 2022 (The State vs. Muhammad Nauman Shakir) for confirmation of the death sentence awarded to the appellant No. 1-Muhammad Nauman Shakir. All the matters arising out of the same judgment of the trial Court are being disposed of through a single judgment.
3. Briefly, the prosecution story as alleged in the F.I.R (Ex. PN) of Bilal Zulfiqar (PW-1)-the complainant is that sister of complainant (PW-1), namely Nabeela Tabassum was married with Muhammad Irfan Shakir about 3 ½ years ago, a son was born aged 2 ½ years, Nabeela Tabassum was pregnant, the mother-in-law of sister of complainant (PW-1) often used to quarrel with sister of the complainant (PW-1). That day, i.e. 22.12.2017, at about 12:00 p.m., sister of complainant (PW-1) Nabeela and her husband Nauman Shakir came at the house of complainant (PW-1) after Friday Prayer, sister of complainant (PW-1) asked the complainant (PW-1) to accompany her at her house as there was some work at her house, upon which, complainant (PW-1) along with his sister and brother-in-law went at her sister’s house. As soon as they entered into the house then mother-in-law of Nabeela, namely, Ghafooran Bibi started abusing the complainant (PW-1), the brother-in-law of complainant (PW-1) separated upon which they i.e. (complainant (PW-1) and his sister) went in the upper portion in the room of brother-in-law of complainant (PW-1), but Ghafooran Bibi kept on abusing and phoned her sons that Nabeela and her brother had beaten her (Ghafooran Bibi) and she (Ghafooran) came into the upper portion in the room and started to beat the complainant (PW-1) and his sister with club and also slapped, the brother-in-law of the complainant (PW-1) separated, the complainant (PW-1) phoned his brother Waseem Raza and told him that these people were beating them (complainant and sister), they (complainant) became busy to make in order the luggage, at about 7:45 p.m., Nauman Shakir who is brother of brother-in-law of complainant (PW-1) armed with pistol 30 bore, Adil Rehman Shakir and an unknown accused persons came and started to beat the complainant (PW-1) and his sister dragged and brought them in the Courtyard, in the meanwhile Waseem Raza the brother of the complainant (PW-1) and Muhammad Aslam son of Sardar Muhammad came and tried to rescue the complainant’s party from accused persons Nauman etc. Ghafooran Bibi raised lalkara that Nabeela and her brothers should not be spared that day. Lesson be taught for misbehaving with her (Ghafooran) upon which Nauman with the intention to murder, started firing with his pistol 30-bore, two bullets (fires) landed at the right and left side on the belly of Waseem Raza, one bullet (fire) landed at the left side of breast of Nabeela Tabassum, both became injured and fell on the ground. The complainant (PW-1) rescued himself, accused Nauman Shakir, while firing along with his brother Adil, and the unknown accused fled away. The complainant (PW-1) and Muhammad Aslam took Waseem Raza in an injured condition to General Hospital, where Irfan Shakir, brother-in-law of the complainant (PW-1), took Nabeela to General Hospital, Lahore, but she died on the way.
4. After registration of FIR, Sabir Ali-S.I (PW-13) conducted the investigation, prepared a report under Section 173 of Cr.P.C., and sent the same to the Court of competent jurisdiction. On 25.09.2018, the trial Court formally charge-sheeted the appellants, to which they pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as thirteen (13) witnesses.
5. After the closure of prosecution evidence, the appellants were examined under Section 342 of, Cr.P.C., wherein neither they opted to appear as their own witnesses in terms of Section 340 (2), Cr.P.C., nor to produce evidence in their defence. In response to a particular question of why this case was against them and why the PWs deposed against them, the appellants made the following depositions separately:--
Appellant No. 1-Muhammad Nauman Shakir
Irfan witness husband of the deceased has been withheld by the prosecution. Had been he produced before the Court the trial was under the apprehension that he would not support its false version and he could speak the truth before the Court, therefore, adverse inference can safely be drawn against the prosecution.
The private PWs did not tell the whole truth while deposing before this Hon’ble court and they have suppressed the facts in order to save their own skin. Occurrence has not taken place in the manner and style as stated by the prosecution. It was Waseem who while armed with weapon attacked upon us while trespassing into my house where I already got separated my mother and Bhabhi/Nabeela (both the ladies of my family). I and my co-accused have no motive to kill my loving Bhabhi. We both (deceased and myself) used to treat each other as sister and brother, and were living amicably together in the same house. However, it was Muhammad Waseem who while armed with weapon attacked upon us in our house and both the parties entered into grappling/scuffling and during the said grappling the stray-bullet hit deceased due to the conduct of above Waseem when he tried to drag out the pistol from my NEFA but the complainant party has falsely involved my mother, brother and me in this false case after cocking up a false and fabricated story. Prosecution has farfetched the motive which is a double edge weapon. I.O recorded my first version during investigation on 15.01.2018 wherein I myself has stated as under:”infact, on the day of occurrence my mother phoned me and called me that Nabeela the daughter in law and her brother Bilal had misbehaved with my mother, Ghafooran Bibi and when he reached at his house then in the lower portion of the house my mother and brother Adil were present and in the upper portion. Nabeela/BHABHI, her brother Bilal and Irfan husband of Nabeela were present, NABEELA was giving words of abuses, I inquired from my mother to which she replied that Nabeela had quarrelled with her due to a chair of plastic, her brother (Nabeela’s brother) misbehaved with my mother, Adil forbade him upon which he scuffled with Adil then I went to upper portion to desist Nabeela/Bhabhi and my mother and brother of accused Adil came in upper portion, at that time my mother and Nabeela/Bhabhi started to abuse each other, I myself got separated both of them and took my mother and brother Adil from the upper portion to the lower portion in the Courtyard and bolted from inside, Nabeela/Bhabhi phoned her brother, after 5/10 minutes Waseem alias Chand while armed with fire arm weapon and Manahil came there who started abusing my mother and us and Waseem also started to give kick blows to Lattice (JALI WALA) door of my house, in the meanwhile brother Irfan, Nabeela/Bhabhi and her brother Bilal also came into lower portion, I opened the door and Waseem alias Chand and my brother Bilal grappled with me whereas Bilal and my brother slapped each other. Waseem while abusing my mother with bad words that he would commit BURA BHULLA/rape with my mother and entered into scuffle with me, pistol 30 bore was under the fold of my NEFA to which Waseem tried to drag out and during grappling and dragging the pistol from my NEFA by Waseem the fire went and stray-bullet hit the Nabeela/Bhabhi, then Waseem aimed his pistol at me and started indiscriminate firing by repeating the above abuses and as a result where of I myself lost my control over my senses and while exercising right of self defence in order to save ourselves I made aerial firing. During the reciprocation of firing Waseem received minor injury which was not cognizable and later on he managed fake MLC at a belated stage by joining hand with the doctor in order to save their own skin as complainant party was aggressor in this occurrence and occurrence was not taken place in the manner and style as stated in the FIR. The PWs have deposed against me in order to digest their aggression made by them and due to this reason I alongwith my mother and brother have been falsely booked in this false case.
Appellant No. 2-Mst. Ghafooran Bibi
The occurrence is result of grave and sudden provocation offered by Waseem, who was armed with weapon entered into our house and abused me while saying that he would commit BURA BHALA/Rape with me.
Irfan witness husband of the deceased has been withheld by the prosecution. Had been he produced before the Court the prosecution was under the apprehension that he would not support its false version and he could speak the truth before the Court, therefore, adverse inference can safely be drawn against the prosecution.
The private PWs did not tell the whole truth while eposing before this Hon’ble court and they have suppressed the true facts in order to save their own skin. Occurrence has not taken place in the manner and style as stated by the prosecution.
It was Waseem who while armed with weapon attacked upon us while trespassing into my house where my son already got separated me and daughter in law/Nabeela. I and my co-accused have no motive to kill my loving daughter in law.
We both (deceased and myself) used to treat each other as daughter and mother, and were living amicably together in the same house. However, it was Muhammad Waseem who while armed with weapon attacked upon us in our house and both the parties entered into grappling/scuffling and during the said grappling the stray-bullet hit deceased due to the conduct of above Waseem when he tried to drag out the pistol from his NEFA of accused Nouman Shakir but the complainant party has falsely involved me and my sons in this false case after cocking up a false and fabricated story. Prosecution has farfetched the motive which is a double edge weapon. Infact, on the day of occurrence I phoned Nouman Shakir and called him that Nabeela the daughter in law and her brother Bilal had misbehaved with me and when accused Nouman Shakir reached at his house then he took us in the lower portion of the house me and son Adil were present and in the upper portion. Nabeela/daughter in law, her brother Bilal and Irfan husband of Nabeela were present, NABEELA was giving words of abuse, accused Nouman Shakir inquired from me and I stated that Nabeela had quarrelled with me due to a chair of plastic, her brother (Nabeela’s brother) misbehaved with me. Adil forbade him upon which he scuffled with him. My son Nouman Shakir got separated both ladies of us and took me and Adil from the upper portion to the lower portion in the Courtyard and bolted from inside, Nabeela/Bhabhi phoned her brother, after 5/10 minutes Waseem alias Chand while armed with fire arm weapon and Manahil came there who started abusing me and us and Waseem also started to give kick blows to Lattice (JALI WALA) door of my house, in the meanwhile son Irfan, Nabeela and her brother Bilal also came into lower portion, door was opened and Waseem alias Chand and Bilal grappled my son Nouman. Waseem while abusing me with bad words that he would commit BURA BHULLA/rape with me and entered into scuffle with my son, pistol 30 bore was under the fold of NEFA of Nouman Shakir to which Waseem tried to drag out and during grappling and dragging the pistol from his NEFA by Waseem the fire went and stray-bullet hit the Nabeela/Bhabhi, then Waseem aimed his pistol at him and started indiscriminate firing by repeating the above abuses and as a result where of Nouman Shakir lost his control over his senses and while exercising right of self defence in order to save us he made aerial firing. During the reciprocation of firing Waseem received minor injury which was not cognizable and later on he managed fake MLC at a belated stage by joining hand with the doctor in order to save their own skin as complainant party was aggressor in this occurrence and occurrence was not taken place in the manner and style as stated in the FIR. The PWs have deposed against me in order to digest their aggression made by them and due to this reason I alongwith my son’s have been falsely booked in this false case.
6. After recording evidence and evaluating the evidence available on record in the light of the arguments advanced by both sides, the trial Court found the prosecution’s version proved beyond any shadow of reasonable doubt, which resulted in the appellants’ conviction in the afore-stated terms.
7. We have heard the arguments advanced by the learned counsel for the parties, as well as the learned Law Officer, and have minutely perused the record on the file.
8. Before us, the learned counsel for the appellant, Nouman Shakir, has taken a specific plea that the death of Nabeela Tabassum was caused due to grave and sudden provocation caused to the appellant, Nouman Shakir, and the appellant, Nouman Shakir, had struck the deceased without an intention to cause death and caused injuries to Waseem Raza (PW-2). However, such an act on the part of the appellant, Nouman Shakir, might have caused the death of the deceased, and, as such, the conviction of the appellant under Section 302 (b), PPC should be converted to Section 302 (c), PPC. The learned counsel for the appellant, Ghafooran Bibi, stated that neither she caused injury to Nabeela Tabassum, deceased, nor to any prosecution witness. She deserved to be acquitted. In view of the submission above, there is a tacit admission that the appellant, Nouman Shakir, had caused the death, but without any intention; it may not be necessary to critically analyze all the evidence, which has been led by the prosecution as well as by the defence. However, to appreciate the plea raised, it may be necessary to briefly refer to the relevant evidence on record to examine whether intention was absent and whether the ingredients to make the offence under Section 302 (c), PPC can be said to have been made out. Keeping in mind the aforesaid limited purpose, let us now examine the relevant evidence on record. Bilal Zulfiqar (PW-1) is the brother of the deceased, Nabeela Tabassum. He testified during examination-in-chief that:
“My brother-in-law rescued me and we went to the room of my sister on first floor but Mst. Ghafooran Bibi continued abusing us and also called her sons and told them that my sister Nabeel and I have beaten her and asked them to come home. My sister and I became busy in work but Ghafooran Bibi came to first floor and started beating us. My brother-in-law again came to our rescue. I called my brother Waseem Raza and told him that Ghafooran is beating me and our sister so he should come. We again engaged in work. At 07:45 p.m, brothers of my brother-in-law named Adil Rehman, Nauman Shakir along with an unknown person came and started beating me and my sister. They dragged us down the stairs and brought us in the Courtyard where Ghafooran Bibi was also present…..Ghafooran Bibi raised a lalkara that Nabeela and her brothers should not be spared and teach them a lesson for being rude with me on which, Nauman Shjakir started shooting straight with intention to kill and the bullets hit my brother Wasweem Raza and my sister Nabeela.”
In the cross-examination, Bilal Zulfiqar (PW-1) deposed that:
“Ghafooran Bibi continued beating us on first floor for about 10 minutes. I suffered injuries on my nose, back and back side of my head. My nose was fractured due to above said injury ……I do no t know how many injuries were caused to my sister as IO did not remove her clothes to see her. My sister was hit on her abdomen and should. Ghafooran Bibi also pulled her hair. The injuries to my sister caused on the first floor did not cause any blood flow. We did not come down of our own accord, but were dragged down stairs after half an hour of the first episode of torture by Ghafooran Bibi. I was dragged with my elbows and legs on the surface but I cannot say which parts of body of my sister were being dragged on the surface…..My medical examination was not conducted to determine the nature of my injuries.”
9. The medical evidence revealed that the deceased, Nabeela Tabassum, sustained five injuries from a firearm and a blunt object. Injury No. 1 was a result of a firearm, and injuries Nos. 2 to 5 were a result of blunt objects. Dr. Sania Iqbal (PW-11) deposed during cross-examination that:
“As per Exh.PP injuries number No .02 to 05 were abrasions. Abrasions are caused by blunt means.”
Dr. Sania Iqbal (PW-11), who conducted post-mortem examination upon the dead body of the deceased, Nabeela Tabassum, also deposed during examination-in-chief that:
“It was dead body of a female of above stated age of average physique having body length of 160 cm clad in black abaya blue colour Shalwar, blue, green and white printed Qameez and skin bra which is signed removed and handed over to the police as case property .”
From the above deposition of Dr. Sania Iqbal (PW-11), it reveals that the deceased, Nabeela Tabassum, was wearing a “black abaya”. According to the written complaint (Ex. PA), FIR (Ex.PN), and deposed by Bilal Zulfiqar (PW-1)-the complainant, when he (PW-1) entered the house with his sister Nabeela Tabassum, the appellant Ghafooran Bibi started abusing them and slapped Bilal Zulfiqar (PW-1)-the complainant on the face, upon which his (PW-1) brother-in-law rescued him. According to Bilal Zulfiqar (PW-1), the complainant, both of them, i.e., the complainant and the deceased, went to the brother-in-law’s room upstairs, but the appellant, Ghafooran Bibi, kept abusing him and calling her sons that Nabeela Tabassum and her brother had beaten her, and they themselves went upstairs. After that, Bilal Zulfiqar (PW-1), the complainant, called his brother Waseem Raza (PW-2) by stating that these people were beating us, and after that, they became busy fixing their belongings. It is certain that the “abaya” would be taken off before fixing the belongings, and work would not be done wearing the “abaya”. This indicates that the mode and manner of the incident differ from the description provided. He (PW-1) also stated in his cross-examination that:
“As soon as there was resistance from entering into house where occurrence took place we did not make our mind to go back our home.”
Waseem Raza (PW-2) was the injured witness and the brother of the deceased, Nabeela Tabassum. He admitted that, upon the call of Bilal Zulfiqar (PW-1), the complainant, he went to his sister Nabeela Tabassum’s house. Waseem Raza (PW-2) testified during examination-in-chief that:--
“On the same day, at about 07:30 p.m, I received a telephonic call from the complainant/Bilal Zulfiqar who informed me that Nouman Shakir and others are quarrelling with them and asked me to come there and took them from-there. I reached at the place of occurrence, residence of my sister on my motorbike. When I reached there, I listen hue and cry from inside the house. Accused Nouman Shakir, Adil Shakir, Ghafooran Bibi and one unknown accused persons were beating to my younger brother Bilal/complainant and my sister. I reached there at about 07:45 p.m. I opened the door and entered into the house. I saw accused Ghafooran Bibi, accused Adil Shakir and accused Nouman Shakir and one unknown accused in the Courtyard were beating my sister Nabeela and my brother Muhammad Bilal …..I again requested them that if they had any grievance they should discuss the same in our house. Accused Ghafooran Bibi raised Lalkara that while directing Nabeela and her brother that all should be murdered. On this accused Nouman Shakir present in the Court brought out a loaded pistol and started straight firing upon us. The said fire were inflicted me and my sister Nabeela. I sustained two fire arm injury at my abdomen on front side and Nouman Shakir accused inflicted a fire arm injury which landed at the chest of my sister Nabeela on left side.”
In view of the specific submission that Nouman Shakir (the appellant) had fired under the grave and sudden provocation on a sudden quarrel in the heat of passion, struck the deceased on his head due to grave and sudden provocation we will now examine whether there is any such evidence, which will form the basis of such submission made. From the above-mentioned deposition of Bilal Zulfiqar (PW-1) and Waseem Raza (PW-2), it is revealed that the prosecution admitted that during the first part of the incident, the appellant, Ghafooran Bibi, called his son Nouman Shakir (the appellant) and after that in the second part incident took place wherein Nabeela Tabassum and Waseem Raza (PW-2) received injuries. Subsequently, Nabeela Tabassum succumbed to the injuries. In our social values, if one sees someone disrespecting their mother, they will not tolerate it. The prosecution itself has admitted that Nouman Shakir (the appellant) and Waseem Raza (PW-2) were both police officials. Both Bilal Zulfiqar (PW-1) and Ghafooran Bibi (the appellant) called Waseem Raza (PW-2) and Nouman Shakir (the appellant), stating that a fight was in progress, they were being beaten up, and Noman Shakir and Waseem Raza went to the place of the incident, which was the house of Ghafooran Bibi (the appellant) and Tabassum Bibi, the deceased. Bilal Zulfiqar (PW-1) testified during cross-examination that:--
“My brother Waseem PW is a police official. He was posted at Qurbanline during the days of occurrence. Nouman accused present in the Court is also a police official. I do not remember whether Nouman accused was on duty or not on the fateful day …..It is incorrect to suggest that Irfan husband of the deceased was intending to get arrest of his mother. Ghafooran Bibi through PW Muhammad Iqbal to teach a lesson to his mother and Nabeela/deceased also abused the mother of Salman. It is incorrect to suggest that Irfan husband of the deceased was having pistol in his “Nefa” and he aimed at his brother but Salman caught hold the barrel of pistol whereas the finger of the Irfan was on the trigger of the pistol and during the said scuffle the trigger of the pistol was pressed which mistakenly hit the deceased.”
Similarly, Waseem Raza (PW-2) deposed during cross-examination. The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, would be so provoked as to lose his self-control and, under the influence arising from that provocation, commit the incident. The post-mortem report also indicates the presence of only one firearm injury; the rest of the injuries were the result of the blunt weapon. The offence of committing homicide is dealt with under Section 300, PPC. Section 300, PPC states that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Thus, what Section 300 of the Pakistan Penal Code, 1860 provides is that while all murders are culpable homicides, not all culpable homicides are murders. Only such culpable homicides will be murder when they fulfill the conditions as mentioned under Section 300 PPC. To qualify as a grave and sudden provocation, it is not enough to show that the appellant was provoked into losing control; it must be demonstrated that the provocation was such that a reasonable person in the same circumstances would have lost self-control. A person claiming the benefit of provocation must establish that the provocation was severe and sudden, that it deprived them of the capacity for self-control, and that they caused the death of a person while still under that influence. Bilal Zulfiqar (PW-1), the complainant himself, has admitted that during the occurrence, the appellant, Ghafooran Bibi, called her sons, including Nouman Shakir (the appellant), and said that he (PW-1) and Nabeela Tabassum had beaten her and were using filthy language. The accused himself admitted that he received a call from his mother, who said that the victim and her brother were beating and abusing her. Both sides have admitted that the appellant-Ghafooran Bibi called her sons, including Nouman Shakir (the appellant), and the way the appellant-Ghafooran Bibi called her sons, including Nouman Shakir (the appellant), was enough to provoke him. The fact that there was an altercation between the deceased and the appellant, Ghafooran Bibi, is clearly made out.
10. Under the circumstances, the appellant-Nouman Shakir indeed had no business to interfere in the quarrel, that too, armed with a pistol. Yet, both the complainant and the appellant, Ghafooran Bibi, called Waseem Raza (PW-2) and Nouman Shakir (the appellant), stated that a fight was in progress; they were being beaten up. The generation of heat of passion cannot be ruled out. It cannot be said to be unusual. Both were employees in the police department. It cannot be said that an attempt was made to resolve the matter with patience. The learned counsel for Bilal Zulfiqar (PW-1), the complainant, is unable to rebut this fact, and after which the incident escalated, in which Nabeela Tabassum and Wasim Raza (PW-2) were injured, and ultimately Nabeela Tabassum died due to the same injury. Therefore, the plea of the learned counsel for the appellant-Nouman Shakir, that the appellant-Nouman Shakir lost his cool in the heat of passion upon seeing his mother being assaulted or threatened by the complainant side and that the appellant-Nouman Shakir fired causing injury to Nabeela Tabassum, deceased and Wasim Raza (PW-2) without any premeditation, cannot be said to be an unreasonable explanation. There is also nothing to suggest that the appellant, Nouman Shakir, had planned to murder Nabeela Tabassum and cause injury to Wasim Raza (PW-2). The incident of assault by the appellant, Nouman Shakir, appears to have happened in a few moments, and the appellant, Nouman Shakir, fled away from the scene after hitting the deceased and causing injury to Wasim Raza (PW-2). Under the circumstances, we are inclined to convert the conviction of the appellant to Section 302 (c), PPC and, accordingly, we convict the appellant-Nouman Shakir under Section 302 (c), PPC instead of Section 302 (b), PPC as done by the learned Sessions Judge and direct him to undergo rigorous imprisonment for 14 years and rest of the convictions and sentences awarded by the trial Court shall remain intact. Murder Reference No. 170 of 2022, forwarded by the trial Court for confirmation of the death sentence inflicted upon the convict-Muhammad Nouman Shakir is answered in NEGNATIVE and death sentence awarded to the appellant namely Muhammad Nouman Shakir is not confirmed.
11. So far as the appellant No. 2-Mst. Ghafooran Bibi is concerned, admittedly, cause of death of Nabeela Tabassum (the deceased) was injury No. 1. So far as blunt injuries on the person of deceased are concerned, same were not got declared by the prosecution that under which provisions of law, blunt injuries sustained by the deceased fall. In addition, no overt act towards Waseem (injured) is attributed to the appellant-Mst. Ghafooran Bibi. In these circumstances, Crl. Appeal No. 39518-J of 2022 is accepted to the extent of the appellant No. 2-Mst. Ghafooran Bibi, as a result, whereof conviction and sentence recorded by the trial Court vide judgment dated 31.05.2022 is set aside to the extent of appellant No. 2-Mst. Ghafooran Bibi and she (the appellant No. 2) is acquitted of the charge in case F.I.R. No. 2505 of 2017, dated 22.12.2017, registered under Sections 302, 324, 338-A, 337-D, 34, P.P.C., at P.S. Factory Area, District Lahore. The appellant No. 2-Mst. Ghafooran Bibi, is present on bail. Her sureties stand discharged from the liability.
12. With the above observations, Crl. Appeal No. 39518-J of 2022 stands disposed of.
13. As far as Crl. Appeal No. 35023 of 2023 against the acquittal of Respondent No. 2-Adil Rehman Shakir is concerned. For
what has been discussed above in the light of prosecution evidence, medical evidence, and documentary evidence, the acquittal of Respondent No. 2 does not suffer from any illegality to call for the interference of this Court with the impugned judgment. This Court has also taken note of the settled principle of criminal jurisprudence that unless it can be shown that the lower Court’s judgment is perverse or that it is entirely illegal. No other conclusion can be drawn except the guilt of the accused, or misreading or non-reading of evidence, resulting in a miscarriage of justice. Even otherwise, when a Court of competent jurisdiction acquits the accused, the double presumption of innocence attaches to their case. The acquittal order cannot be interfered with, whereby an accused earns double presumption of innocence as held in Muhammad Mansha Kausar v. Muhammad Ashgar and others (2003 SCMR 477). In this case, the prosecution has not been able to present on record adequate incriminating evidence against Respondent No. 2, which connects him to the alleged crime. The learned trial Judge has advanced valid and plausible reasons for recording an acquittal in favor of Respondent No. 2. The judgment of acquittal does not call for any interference. Consequently, we find no merit in Crl. Appeal No. 35023 of 2022 is hereby dismissed as being without merit.
(A.A.K.) Appeal accepted
0 Comments