KHALID JAVED vs ANSAR KHAN and others
This matter arises from petitions for leave to appeal filed respectively by the convict against the High Court judgment reducing his sentence from death to imprisonment for life, and by the brother of the deceased seeking restoration of the death sentence. The petitioner was tried and convicted under Section 302 read with Section 34 of the Pakistan Penal Code for murder. The core legal questions involved the determination of whether the plea of grave and sudden provocation under Exception 1 to Section 300 of the Pakistan Penal Code was established, and whether the withholding of the true motive by the prosecution justified withholding the death penalty. The Supreme Court held that where an accused admits killing, the burden is upon him to prove diminished liability, which he failed to discharge as no evidence or surrounding circumstances supported his belated plea of provocation. Furthermore, the Court held that where the prosecution withholds the true motive for the crime, reduction of the death sentence to imprisonment for life is justified. Both petitions for leave to appeal were accordingly refused.
- Does the burden of proof shift to the accused when he admits to killing another person?
- Can a plea of grave and sudden provocation be accepted without supporting evidence or circumstances appearing from the prosecution evidence?
- Does the withholding of the true motive by the prosecution justify not imposing the extreme penalty of death?
- Section 302, Pakistan Penal Code
- Section 34, Pakistan Penal Code
- Section 300, Pakistan Penal Code
ORDER
' SAAD SAOOD JAN, J.---Ansar Khan, petitioner, alongwith two others, was tried by the Additional Sessions Judge, Gujranwala, on the charge under section 302 read with section 34, Pakistan Penal Code, for causing the death of Muhammad Arif, deceased. The learned Additional Sessions Judge acquitted the co-accused but found the petitioner guilty on the charge against him and sentenced him to death, in addition to payment of fine. On appeal and reference, the High Court upheld his conviction but reduced his substantive sentence to imprisonment for life. He now seeks leave to appeal from this Court.
2. Khalid Javed, a brother of the deceased, has also filed a petition to seek restoration of the sentence of death awarded to the petitioner by the trial Court.
3. The occurrence took place on 9-3-1989, at 9-30 p.m. According to the prosecution, the petitioner fired with a revolver at the head of the deceased consequent upon a quarrel which had taken place a fortnight earlier. At the relevant time, the deceased was on his way from the house of his paternal aunt where he lived, to the house of his father. On his part, the petitioner did not dispute that he had killed the deceased but took the plea of right of private defence of person. This plea was rejected by the Courts below and was not persisted with before us. On the other hand, learned counsel for the petitioner contended that it was a case of grave and sudden provocation and the petitioner's case was covered by Exception 1 to section 300, Pakistan Penal Code.
4. Where an accused person admits that he has killed another the burden of proving that he had committed no offence under the law or that his case was one of diminished liability shifts to him.
His burden is indeed a lighter one for he has only to show that there is a reasonable probability of his version being true; to discharge his burden he need not lead any evidence of his own for he can rely entirely upon circumstances appearing from the evidence of the prosecution itself. In this case it was stated on behalf of the petitioner before us that at the relevant time the deceased was abusing the petitioner's father. He did not lead any evidence in this regard and there is nothing in the evidence of the prosecution which may lend support to his assertion. In the circumstances the plea of grave and sudden provocation now being advanced on his behalf has to be rejected.
Therefore his conviction under section 302, ibid, is not open to any objection.
5. As regards the question of sentence the High Court seems to be justified in holding that the motive for the occurrence could not possibly be the incident which allegedly took place a fortnight prior to the occurrence. This is thus a case where the prosecution has not come up with the true reason for the attack on the deceased. As a part of the truth has been withheld from the Court the High Court did not act illegally in not imposing the extreme penalty provided by the law for culpable homicide amounting to murder.
6. For the reasons stated above, leave is refused in both petitions.
Cited by 3 cases
- Mian MUHAMMAD NAWAZ SHARIF vs THE STATE 2009 PLD Supreme Court 814
- GUL MUHAMMAD and others vs THE STATE and others 2005 MLD 1603
- JAHANGIR Versus THE STATE 2003 MLD 1910