MUHAMMAD ARSHAD alias ARSHADI vs THE STATE
This matter concerns a petition for leave to appeal against a judgment of the Lahore High Court, which maintained the conviction and death sentence of the petitioner for the murder of five individuals. The petitioner, convicted under Section 302(b) and Section 459 of the Pakistan Penal Code 1860, challenged the verdict on two primary grounds: first, that the incident occurred under grave and sudden provocation due to 'Ghairat' (honor), thereby invoking Section 302(c) of the Pakistan Penal Code 1860 rather than Section 302(b); and second, that the petitioner was a juvenile at the time of the offense, thus entitled to the protection of Section 306 and Section 308 of the Pakistan Penal Code 1860, claiming the courts below ignored his birth certificate. The Supreme Court found that these contentions required a re-appraisal of the evidence and an examination of whether the occurrence transpired as the prosecution alleged or according to the petitioner's version. Consequently, the Court granted leave to appeal in the petitioner's case and the connected petition filed by the complainant regarding the acquittal of co-accused.
- Does the claim of grave and sudden provocation due to 'Ghairat' necessitate the application of Section 302(c) of the Pakistan Penal Code 1860 instead of Section 302(b)?
- Is a petitioner who claims to be a juvenile at the time of the offense entitled to the protections of Section 306 and Section 308 of the Pakistan Penal Code 1860?
- Does the exclusion of documentary evidence regarding a petitioner's age by lower courts warrant a re-appraisal of evidence by the Supreme Court?
- Article 185(3), Constitution of Islamic Republic of Pakistan
- Section 459, Pakistan Penal Code 1860
- Section 302(b), Pakistan Penal Code 1860
- Section 302(c), Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 342, Code of Criminal Procedure 1898
- Section 306, Pakistan Penal Code 1860
- Section 308, Pakistan Penal Code 1860
ORDER
1. ' MUHAMMAD NAWAZ ABBASI, J.----Criminal Petition No,822-L of 2001 for special leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been filed against the judgment dated 14-11-2001 passed by a Division Bench of Lahore High Court, Lahore, in Criminal Appeal No,1279 and Murder Reference No,482-T of 1999, through which the conviction and sentence awarded to the petitioner by the trial Court were maintained.
2. ' The petitioner and his co-accused namely Muhammad Aslam alias Achu and Muhammad Ismail' were tried under section 459, P.P.C. For trespassing and under section 302(b), P.P.C. For committing murder of Ghulam Rasool, Mustafa, Murtaza sons of Muhammad Din, Mst. Sobia Bibi and Mst. Zohra Bibi by the Special Court established under Anti-Terrorism Act, 1997, at. Lahore. The learned trial Judge having found the petitioner and his co-accused guilty of the charges, vide judgment dated 26-11-1999, convicted and sentenced them as under:--
(a) Under section 302(b), P.P.C. Sentenced to death to all the three accused with the direction to pay Rs,1,00,000 each to the legal heirs of the deceased, on each count, under section 544-A, Cr.P.C.
3. And in default to suffer. R.I. For two years each, on each count.
(b) Under section 459, P.P.C. Imprisonment for life with the fine of Rs,20,000 each and in default of payment of fine to undergo R.I. For one year each.
4. ' The High Court in appeal, in the light of plea taken by the present petitioner in his statement under section 342, Cr.P.C. That he alone was responsible for causing murder of the five deceased, acquitted Muhammad Aslam alias Achu and Muhammad Ismail from all the charges giving them the benefit of doubt and while maintaining the conviction and sentence of the petitioner on all counts, dismissed his appeal.
5. ' Learned counsel for the petitioner has sought leave to appeal on the following grounds:-
(a) That the High Court having accepted the version of the petitioner that he, upon seeing Mst.
6. Sobia his sister, lying on a cot with her paramour, Murtaza, was provoked and losing self-control due to the Ghairat killed both of them and in the same state of mind also killed Mustafa. Ghulam Rasool and Mst. Zohran on their interruption has wrongly convicted and sentenced the petitioner under section 302(b), P.P.C. As in the given circumstances, the case would squarely fall within the ambit of section 302(c), P.P.C. For the purpose of sentence.
(b) That the petitioner being less than 18 years of age at the time of occurrence, would be entitled to the benefit of section 306, P.P.C. Read with section 308, P.P.C. And could not be awarded the capital punishment of death but unfortunately, the learned trial Judge as well as the High Court while excluding the documentary evidence i.e, birth certificate (Exh.8-A/1) of the petitioner from consideration deprived him from the statutory benefit available under sections 306 and 308, P.P.C.
7. Learned counsel contended that the alleged occurrence had taken place on 21-8-1995 and according to the date of birth given in the birth certificate, petitioner was of the age of 17 years and 10 months on the said date and that there being no evidence in rebuttal the finding of the trial Court and also of Appellate Court relating to the age of the petitioner, would not be supported by any evidence.
8. The above contentions raised by the learned counsel for the petitioner-convict would need consideration for which the reappraisal of evidence is necessary. The question whether the occurrence took place in the manner as stated by the prosecution or the version given by the petitioner was correct, also needs examination. We, therefore, find it a fit case. For grant of leave in this petition as well as in the connected Petition bearing No,123-L of 2002 filed by the complainant against the acquittal of Muhammad Aslam alias Achu and Muhammad Ismail co-accused of the present petitioner. Order accordingly.