Mst. FAZAL BIBI vs MUHAMMAD RAF1Q and another
This petition for leave to appeal arises from a judgment of the Lahore High Court setting aside the respondent's conviction under Section 302 of the Pakistan Penal Code 1860 for the murder of his wife and infant son, substituting it with a conviction under Section 304, Part I of the same Code, and reducing the sentence to life imprisonment on the ground of grave and sudden provocation. The core legal question was whether the High Court was justified in applying Exception 1 to Section 300 of the Pakistan Penal Code 1860 based on conjecture regarding sudden provocation arising from suspected immorality. The Supreme Court held that the High Court's reasoning regarding grave and sudden provocation was indeed conjectural and untenable on the record. However, the Supreme Court declined to grant leave, reasoning that even if the conviction under Section 302 of the Pakistan Penal Code 1860 were restored, the death sentence might not be warranted given the circumstances involving family honour and suspected immorality, rendering an alteration of conviction without sentence interference an exercise in futility. Leave to appeal was consequently refused.
- Whether the High Court can rely on conjecture to find grave and sudden provocation under Exception 1 to Section 300 of the Pakistan Penal Code 1860?
- Will the Supreme Court grant leave to appeal solely to alter a conviction back to Section 302 of the Pakistan Penal Code 1860 when the sentence of death is still unlikely to be imposed?
- Does the murder of an infant during an act directed at the spouse form part of the same transaction influenced by family honour?
- Section 302, Pakistan Penal Code 1860
- Section 304, Part I, Pakistan Penal Code 1860
- Section 300, Exception 1, Pakistan Penal Code 1860
ORDER
' SHAFIUR RAHMAN, J.-- 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 I, 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 or 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, A P.P.C. As was recorded by the learned trial Court the sentence of death may not be imposed in the case. According to the prosecution case itself family honour 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.