RUSTAM S. SIDHWA, J.--This is a petition by Abdul Malik petitioner seeking leave to appeal against the judgment of a Division Bench of the Lahore High Court, Bahawalpur Bench, dated 31-5-1988 dismissing his appeal.
2. The brief facts of the case are that on 8-8-1987 at about 7.30 a.m., Abdul Rehman deceased, with Nur Muhammad P.W. 4, Ghulam Nabi P.W., 5, Adal P.W.6 and Muhammad Nawaz (given up P.W.), was going in a bus to Khanpur city for doing some shopping for his second marriage. At Thul Lalo Wala Abdul Malik accused also boarded the same bus. At the crossing of Nawan Kot Road, Khanpur, the deceased and the witnesses got down from the bus. Abdul Malik accused also got down and fired on the back of Abdul Rehman. Abdul Malik accused succeeded in running away, along with his pistol, after making threats to the witnesses. Abdul Rehman died at the spot. Nur Muhammad P.W. 4 reached the police station and lodged F.I.R. Exh. PD.
The motive for the occurrence was that Abdul Rehman deceased was going to contract a second marriage with Mst. Qaima, with whom the accused desired to marry. Some 4 to 5 days before the occurrence, the accused had asked the deceased to desist from marrying Mst.Qaima and on account of this the accused nourished grudge against the accused.
3. Dr. Muhammad Mansha Chaudhry, P.W.1, who conducted the autopsy on Abdul Rehman deceased on 8-8-1987 at 12-30 p.m., found a circular wound 2 c.m. x 2 c.m on the left side of the chest and a bruise between the left nipple and lateral margin of the sternum. The firearm injury on the chest was found sufficient to cause death in the ordinary course of nature.
4. On 9-9-1987 Abdul Malik accused was arrested. On 22-9-1987 the accused led to the recovery of a pistol Exh. P.4 and a crime empty Exh. P.5.
5. In his statement under section 342, Cr.P.C. Abdul Malik took up the following plea:--- Due to enmity. Mst.Qaima is my maternal cousin (Khalazad). She was engaged with me by her father about 3 years prior to the occurrence. In those days Mst: Qaima and her parents were residing in Mauza Pahoor near my house. I developed immense love for Mst. Qaima. The father of Mst. Qaima is a greedy person. He had decided to marry Mst. Qaima with Abdul Rehman secretly from his brotherhood. Mst. Qaima also did not like to marry Abdul Rehman who was an old man. On the day of occurrence I was sitting at a tea shop close to Nawan Kot Road Bye-Pass. In the meantime Abdul Rehman deceased came there. He teased me by referring to his marriage with Mst. Qaima. I came out of the tea shop in order to avoid him, but he came after. He told me that my fiancee Mst. Qaima is going to be married and will be sleeping with him shortly. He further said as to what I had done about the same. I could not control myself and lost self control because of the above dialogue and in that state I fired at Abdul Rehman under grave and sudden provocation.
The P.Ws. Were not present there at that time.
He also produced Rais Ghulam Sarwar D.W.1 and Piran Ditta D.W. 2 in support of his defence.
4. The learned trial Judge held that the motive stood established by the prosecution evidence, apart from the statement of Piran Ditta D.W.
2. Placing the case of the prosecution and the defence in juxtaposition, the learned trial Judge found, on the basis of the evidence on the record and the surrounding circumstances, that the prosecution had proved its case to the hilt and that the defence plea was neither reliable nor possible. Accordingly, the trial Judge convicted Abdul Malik accused under section 302, P.P.C. And sentenced him to death with a fine of twenty thousand rupees. The trial Judge did not accept the plea of the accused for the lesser penalty on the basis that he had been provoked by the deceased to fire at him.
5. Before the learned Judges of the appellate Court, the learned counsel for the appellant conceded that there was no material to challenge the conviction of Abdul Malik accused under section 302, P.P.C., but that he prayed for reduction of his sentence. However, after a review of the evidence, the learned Judges found that Nur Muhammad P.W.4, Ghulam Nabi P.W. 5 and Jam Adil P.W. 6 had fully supported the prosecution case and that the defence version which was not put to any of the witnesses was not credible and that the accused's betrothel to Mst. Qaima did not stand proved. The learned Judges refused to interfere with the sentence awarded to the accused as there were no extenuating circumstances for his having killed the deceased.
6. Ch. Muhammad Akram, Advocate, appears on behalf of Abdul Malik convict/petitioner. On behalf of the petitioner it is submitted that the evidence on the record, coupled with the evidence produced by the petitioner in defence shows that the petitioner was provoked by Abdul Rehman deceased by a filthy taunt that he would be marrying his fiancee Mst. Qaima and sleeping with her very shortly and as to what he had to do about the same, whereupon the petitioner under grave and sudden provocation lost self control and fired at and injured the deceased. It is submitted that the case is one of reduction of sentence under section 304-I, P.P.C.
7. Both the lower Courts having placed the case of the prosecution and the defence in juxtaposition, found on the basis of the evidence on the record, the inferences that could be properly and fairly drawn therefrom and from the surrounding circumstances that the case of the prosecution stood proved to the hilt and the defence of Abdul Malik petitioner was neither reasonable nor possible. Nothing has been pointed out from the evidence by the learned counsel for the petitioner as to why the said findings should not be believed. In these circumstances, no case for interference is made out. As regards the plea of the learned counsel for the petitioner regarding reduction of the sentence, it appears that under the Presidential Order passed in December, 1988 the sentence of death awarded to the petitioner has been commuted to life imprisonment. This is not a case falling under Exception I to section 3110, P.P.C. Leave is therefore refused in this case. However, the benefit of the provisions of section 382-B, Cr.P.C., shall be allowed to the petitioner.