BASHIR AHMAD Versus STATE

ORDER

Bashir Ahmad, Ghulam Shabbir, Mahboob Hussain and Zulfiqar petitioners, being accused in a case under section 302/337-A/365/148/149, P.P.C. registered against them through F.I.R. 119/93 with Police Station Makhdum Rashid, have moved this petition for grant of bail, after refusal of the same by the learned Sessions Judge, Multan vide order dated 22-7-1993.

2. The facts of the case as contained in the F.I.R. are that on 19-5-1993 at 4-00 a.m., the petitioners armed with deadly weapons alongwith their co- accused, lifted Allah Ditta deceased to their Dera, when he, in the company of the complainant and the P.Ws. was sleeping in his Haveli and was done to death. On the intervention of P.Ws., the accused also caused them injuries. Bashir Ahmad petitioner inflicted Chhuri blows to Mst. Allah Wasai deceased who was sleeping in the courtyard.

3. The background of the occurrence was the suspicion of the accused of illicit relations of Allah Ditta with Mst. Allah Wasai deceased.

4. It has been contended by the learned counsel for the petitioners that they having seen Allah Ditta in an objectionable position with Mst. Allah Wasai in her house, killed both of them under grave and sudden provocation committing an offence punishable with a nominal penalty under section 302(c), P.P.C. He placing reliance on an unreported judgment of this Court in Criminal Appeal No.1089 of 1991 = 1993 P Cr. L J 557 titled Ali Muhammad v. The State, argued that even under amended law, the plea of grave and sudden provocation shall be available to the petitioners, even in absence of an express provision of law on the subject. According to him causing death of a person under grave and sudden pc provocation, does not constitute an offence falling within the definition of Qatl-e-Amd punishable under section 302(a) and (b), P.P.C. and it being a case of section 302(c), P.P.C. not fixing minimum term of sentence, the case shall not fall within the prohibitory clause of section 497, Cr.P.C.

5. The bail has been opposed on the ground that the plea of grave and sudden provocation cannot bring out-the case from the definition of Qatl-e- Amd, which, if proved at the trial, may only help an accused in the matter of sentence.

6. Having given due consideration to the facts of the case and arguments advanced by the learned counsels for both sides, I do not see any force in the ground raised and point agitated for the grant of bail. In the absence of express provision of law, the plea of grave and sudden provocation cannot be pressed into service as an exception to section 302, P.P.C. to change the, nature of offence. Undoubtedly the offence, whether committed under grave and sudden provocation or otherwise shall be Qatl-e-Amd as defined under section 300, P.P.C. punishable under section 302, P.P.C. However, if a case under section 302, P.P.C. is not proved in either of the terms specified in section 304, P.P.C. for the purpose of section 302(a), P.P.C. it can be punished with death or imprisonment for life as Ta'azir under section 302(b), P.P.C. and if the punishment of Qisas is not applicable, it shall be punishable under section 302(c), P.P.C. The provision of section 302(c), P.P.C. for the purpose of punishment, shall be attracted in a case, in which according to the Injunctions of Islam, the punishment of Qisas is not applicable. The question whether punishment of Oisas is applicable or not is a matter to be determined in each case on the basis of proved facts, therefore, plea of grave and sudden provocation, is not entertainable to be given effect at bail stage for the purpose of section 302(c), P.P.C. on the basis of motive of suspicion of illicit intimacy of the two deceased inter se given in the F.I.R. The offence falling within the definition of Qatl-e-Amd as provided under section 300, P.P.C. with no exception may attract provisions of section 302(c) for the purpose of lesser sentence in a particular case but it cannot be a convincing ground for grant of bail. The proposition advanced by the learned counsel for the petitioners apparently in view of old section 302, P.P.C. has some attraction, but it is not adjustable in the existing provisions of law on the subject.

The accused including the petitioners, twelve in number, forming an unlawful assembly armed with deadly weapons caused death of two persons. The petitioners are attributed specific role of causing injuries to the two deceased and there being sufficient material available on record and reasonable grounds to connect them with the commission of offence, they are not entitled to the concession of bail. This bail application is accordingly dismissed.

N.H.Q./B-100/L Bail refused.