1. JAVID IQBAL, J.--This appeal by special leave of this Court challenges the order dated 1st April 1986 passed by a learned Single Judge of the High Court of Sind Karachi whereby three criminal miscellaneous petitions of respondents Nos.1 to 3 relating to the grant of bail in a case under section 302/307/34 PPC registered against them were disposed of.
2. The background is that Hanif Shah accused armed with revolver, alongwith Sakhi Sultan respondent No.1 armed with gun, Altaf head-constable respondent No. 2 armed with pistol and Mohammad Aslam respondent No.3 armed with gun had been implicated in a case under section 302/307/34 PPC for having committed the murder of Abdul Sattar deceased and for having caused fire-arm injuries to eight other persons, namely, Abdul Ghaffar complainant-appellant brother of the deceased, Mst. Feroza sister of the deceased, Mst. Rajab Khatun sister-in-law of the deceased, Tariq, Abdur Rashid, Ayaz, Jumman and Mohammad Saeed all not related but residents of the area, on 5th February 1985 at 8-30 p.m. In Shah Bag Lane near Liari Hospital, Police Station Baghdadi, Karachi. All the four were specifically named in the FIR lodged on the same day at 9-15 p.m. By Abdul Ghaffar appellant. Apart from the eight injured persons the occurrence was also witnessed by Mohammad Nazir, Mohammad Yaqub and Nisar Ahmad. The motive for the crime is that the father of the deceased alongwith his nephew and his mother Mst. Rajab Khatun (injured) had property near Liari Hospital which consisted of houses. This property was being looked after by Mohammad Nawaz another brother of the deceased. 3/4 months before the present occurrence Mohammad Nawaz gave one of the houses on rent to Mst. Bashiran. On the day of occurrence at about 10 a.m. Hanif Shah accused alongwith respondents Nos.1 to 3 came to this house and threw away the household articles of Mst. Bashiran tenant. Thereafter they locked the door of the said house from outside, whereupon Mst. Bashiran went to the police station and lodged report against their highhandedness (page 70A of the printed paper book). The occurrence is reported to have followed thus: On the same evening at about 8-30 p.m. The accused party armed as described above again came to from them were not found to be stained with blood they could not be used to corroborate the ocular testimony. The prosecution however sought to corroborate it with the motive and the medical evidence. The petitioners denied their guilt and gave a counter version saying that the complainant party wanted the hand of Kaniz Bibi the daughter of Nizam Din for Mohammad Umar the son of Hassan Mohammad complainant, but he i.e. Nizam Din petitioner refused because of the bad reputation of the family of the complainant party. The complainant party was annoyed by this refusal and on the day of occurrence Mst. Raj Bibi PW taunted his wife that her daughter Kaniz Bibi had been made pregnant by Mohammad Umar and that she had got an abortion of this illicit conception. The ladies of his family were, naturally, provoked and grappled with Mst. Raj Bibi PW. In the meanwhile Wali Mohammad deceased also came there armed with Sots, saying that he will forcibly lift Mst. Kaniz Bibi. Apprehending danger Nizam Din petitioner caught hold of his legs and fell him down while his wife Mst. Rani and other women of his (Nizam Din's) family gave blows on the head of Wali Mohammad with the Dandas.
3. The learned trial Court relied upon the prosecution version and rejected the defence version and convicted the two accused petitioners under section 302/34 PPC, for which it sentenced them imprisonment for life and a fine of Rs.1,000 each. They were however acquitted of the charge under section 307/34 PPC. They filed an appeal before the Lahore High Court which was dismissed vide the impugned judgment.
4. Hence the present petition.
5. Learned counsel for the petitioners submitted that on the facts, as alleged by the prosecution itself, it was clearly a case of grave and sudden provocation, which was covered by Exception 1 to section 300 PPC. He took us through the relevant portions of the impugned judgment to show that the High Court had not adverted to this aspect of the case at all.
6. We feel that the contention raised by the learned counsel for the petitioners has some force and need further consideration. Leave is therefore granted for that purpose.