' HAMID ALI MIRZA, J.---This criminal appeal with leave of this Court is directed against the judgment dated 9-1-2001 passed in Murder Reference No,67 of 1998 and in Criminal Appeal No,64 of 1998 (Muhammad Nasrullah v. The State) passed by learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby conviction and sentence under sections 302/324/353. P.P.C.
Passed by learned Sessions Judge, Muzaffargarh in Sessions Case No,24/7 of 1995 were maintained by dismissing the criminal appeal and affirming the murder reference.
2. Brief facts of the case are that Muhammad Ashfaq P.W.3 got registered F.I.R. Stating therein that his brother Muhammad Altaf was facing trial under section 302/34, P.P.C. As per F.I.R. No,145 of 1993 of Police Station Jatoi for the murder of one Saleemullah when on 13-9-1994 the case was fixed before the trial Court at Muzaffargarh his brother Muhammad Altaf accused in the said case was brought in handcuff by Abdul Bashir, Head Constable No,170, Hafiz Mushtaq Ahmad, F.C. No 947, and Muhammad Amin, Constable No,970 and the chain of the handcuff was in the belt of Hafiz Mushtaq Ahmad Constable and after attending the Court they came out, the present appellant Muhammad Nasrullah who was armed with carbine .12 bore fired at Muhammad Altaf which hit him his abdomen, right arm and left shoulder on account of which he fell on the ground. The appellant re-loaded the carbine and fired at complainant. Police Constable Mushtaq Ahmad tried to catch hold of the accused but the fire hit him on the right hand, however, appellant/accused Was overpowered and apprehended with the help of other police officials. After usual investigation, police submitted charge-sheet against the appellant which case was tried after framing of charge against the appellant by learned Sessions Judge, Muzaffargarh. After recording of evidence and hearing the counsel for the parties the appellant was convicted under sections 302, 324, 337-A(iii) and 353, P.P.C. And sentenced to death, (ii) 10 years' R.I. And fine of Rs,2,000 in default to suffer R.I.
For one year' (iii) to pay Diayat amount of Rs,18,991 and also to suffer 5 years' R.I. As Ta'zir and (iv) two years' R.I. And fine of Rs,2,000 and in default to suffer two months' R.I. Respectively when all sentences were to run concurrently and also awarded benefit of section 382-B, Cr.P.C. The appellant appealed against the said conviction and sentence before the Lahore High Court, Multan Bench which appeal and murder reference were heard by learned Division Bench of the High Court which appeal was dismissed and murder reference was confirmed.
3. The Court while hearing criminal petition granted leave to appeal as per order, dated 19th April, 2001. The relevant part of the order granting leave reads:- "2. Learned counsel for the petitioner at the very outset submits that he would not challenge the conviction of the petitioner but would press for reduction in sentence from death to imprisonment for life on the ground that the petitioner acted under provocation. According to him all the eye- witnesses had suggested that after the date of hearing in which the deceased was facing trial for the murder of elder brother of the petitioner when both the parties came out of the Court, the deceased used filthy language which provoked the petitioner and he fired at him resulting into his death.
3. Leave to appeal is granted to consider the question of sentence alone. It will be seen, whether in the circumstances narrated by the petitioner in his statement under section 342, Cr.P.C. As well as suggested to the eye-witnesses, would it become a case for imprisonment for life?"
4. We have heard learned counsel for the appellant and perused the record.
5. The only contention of learned counsel for the appellant is that deceased Muhammad Altaf after attending the Court on the day of occurrence when came out of the Court in the custody of police, abused the appellant who on that account under grave and sudden provocation, lost his self- control and fired at Muhammad Altaf as a result of which he died, therefore, he was not to be awarded capital sentence, considering that the said plea of grave and sudden provocation was taken by the appellant even before the trial Court.
6. We do not find merit and substance in the said contention.
7. It is true that plea of grave and sudden provocation in causing the death of deceased was taken by the appellant in his 342, Cr.P.C. Statement and the trial Court in para.27 of judgment observed:-- "27. Although Muhammad Nasrullah accused denied the prosecution case against him in his statement under section 342, Cr.P.C. Yet he has not denied the commission of murder of the deceased but he has taken up the plea that he acted under grave and sudden provocation in causing the death of the deceased. The accused, however, did not make any statement on oath nor produced any defence evidence in support of his above mentioned plea. The said plea of the accused is, therefore, rejected to be an afterthought."
' P.W.3 in the cross-examination denied the suggestion put to him that deceased used filthy language on which accused lost self-control and under grave and sudden provocation fired at the deceased. The appellant in 342, Cr.P.C. Statement stated that the deceased used filthy language and gave abuses to him on which he lost self-control and under grave and sudden provocation he fired at deceased resulting his death. It would not be out of place to state here that before the learned Division Bench of the High Court the plea of learned counsel for the appellant was that the appellant avenged the murder of his brother Saleemullah which was contended to be the mitigating circumstance, and therefore, prayed for reduction in sentence. It be stated that before the High Court it was not the plea of filthy language or abuses on the part of the deceased which provoked the appellant to commit the murder of deceased Muhammad Altaf, however, before this Court a plea which was raised before the trial Court has been agitated by the learned counsel consequently it would be examined by us as to whether the said plea in view of the evidence on record could be mitigating circumstances entitling the appellant to lesser penalty than the normal penalty of death. It be observed that the appellant failed to persuade the High Court with regard to his plea viz. Avenge the murder of his brother Saleemulah, therefore, the plea of filthy language and abuses as mitigating circumstances has been raised before us. The learned Division Bench after considering the case-law cited before the Court, in para.16 of the judgment observed:-- ' "In the instant case the deceased Muhammad Altaf and his brother complainant were already facing trial were in handcuff on the day of occurrence and had been brought to the District Court to appear before the trial Court. The appellant without waiting for the process of law to take its logical course took the law into his hands came armed in Court premises fired at Muhammad Altaf and obstructed the police official on duty and committed murderous assault on him. He acted in a desperate manner and does not deserve any concession. A private revenge cannot be regarded as a mitigating circumstance without reference to the facts and circumstances of a particular case..Any indulgence on question of sentence would tantamount to putting a premium on the baser human instinct of vengeance and retaliation which needs to be tamed through law."
' Perusal of the evidence would show that there has been no suggestion on the part of the appellant as to the specific nature of abuses or filthy language used by the deceased which provoked him to take away the life of Muhammad Altaf deceased. Only general and vague term has been used that the appellant was abused or filthy language was used by the deceased.
Reliance is placed on a reported case Abdul Haq v. The State (PLD 1996 SC 1) but the facts of the cited case were quite different and distinguishable to . The facts of the instant case as in the said case there was evidence on record that the deceased when passed in front of appellant had sworn that, if acquitted, he would commit Zina (fuck) the wife of the appellant and the wives of the whole of his trible. And that was the defence taken by the appellant by making specific suggestion of abuses and also stated same in his statements under sections 342 and 340(2), Cr.P.C. Which plea was considered to be a mitigating circumstance for awarding lesser punishment of life imprisonment. However, in the instant case there is no specific details in respect of filthy language having been spoken by the deceased so also no other material in defence to support the said plea raised for the reduction in the sentence was brought on record considering that the appellant also did not examine himself on oath under section 340(2), Cr.P.C. We are also of the considered view that even if we assume that filthy language or abuses were spoken against the appellant by the deceased, the same would not be a mitigating circumstance for award of lesser sentence than the normal sentence. My learned Brother Dr. Nasim Hasan Shah, J. (as the then was), while recording his view in Tufail Masih v. State (1985 SCM R 838), has observed:-- ' "The question is that even if it is accepted that the deceased had used abusive language towards the appellant could this circumstance be considered a sufficient provocation to entitle him a servant of the house, to throw down a helpless lady on the ground, sit on her chest, take out the trouser-string out of her Shalwar and put it around her neck and strangulate her? I do not think so.
The display of bad temper and hurling of abuses cannot in my opinion, entitle a murderer to the lesser penalty because the provocation which can entitle a killer to the concession of the lesser penalty must be of such a kind which should deprive an ordinary normal man of his self-control. In this case the details of the filthy language allegedly used by the deceased are not known. On the other hand, the manner in which the appellant murdered the mistress of the house and a helpless woman, even if she had hurled abuses at him, cannot be considered to be such a provocation which can deprive an ordinary normal man of his self-control and commit murder in the manner that the appellant has done in this case. The hurling of abuses by the deceased did not amount, in my opinion, to such a mitigating circumstance as could entitle the appellant to leniency in the matter of sentence in the circumstances of this case."
' In case of Sodagar v. The State (1972 SCM R 161) this Court granted leave to consider whether on account of abuses allegedly given by the deceased, which had infuriated and provoked the accused, he was entitled to any reduction in sentence of death awarded to him? The said proposition was answered in the negative:- ' "We have heard the learned counsel for the appellant on this matter. He has argued that the appellant would not have committed the murder of his own father unless he was gravely provoked, and it must be assumed in his favour that he was so provoked, by the abuses hurled at him by his father, which made him lose his balance to kill his father. The argument is wholly devoid of any substance. In the first place, it is not shown that the deceased had acted in any reprehensible manner to invite the dastardly assault on him by his own son. Even if the deceased had administered some rebuke to the appellant, because he was not dealing fairly with his brother, this was hardly a ground for him to be incensed and kill his father. Nor can it be said that the killing by the appellant was done in a fit of rage and provocation, because, according to the prosecution case, the appellant had left the shop and had returned to it a short where later after having armed himself with a pistol, which he fired at the deceased. In our view there is no extenuating circumstance in this case to merit interference in the legal sentence of death awarded to the appellant."
7. It is settled principle that the question of sentence in each case is to be determined on the facts and circumstances of each case, therefore, we have to consider as to what were the circumstances of the instant case which could whether entitle the appellant to lesser sentence than the normal sentence. It is also true proposition of law that in murder cases death sentence is ordinarily to be imposed unless the trying Judge for the reasons to be recorded by him considers it proper to award lesser penalty. There is also no cavil with the proposition that if the Court is satisfied that there are mitigating circumstances then it would be justified in imposing the lesser penalty of two sentences provided by law. It may be observed that before the benefit of exception with regard to grave and sudden provocation could be given to the accused, the provocation so alleged should be grave and sudden and that by its gravity and suddenness the offender should be deprived to the power of self-control which in the instant case would not find place. The offender cannot be permitted or allowed to make the said plea as an excuse for killing the victim on the said fake plea for seeking lesser punishment or sentence. This Court has time and again observed that law does not take into account abnormal creatures reacting abnormally in the given situation. In the instant case the plea of abuses or use of filthy language of which no details have been given could not be said to be a mitigating circumstance being afterthought and figment of imagination and when even the appellant had not taken the said plea during investigation and no such suggestion was made to the effect to P.W.8 Fida Hussain Investigating Officer and further there being no satisfactory and reliable material on record to support the said plea entitling the appellant to lesser sentence.
8. In the circumstances we see no reason to differ with the finding of learned Sessions Judge and learned Division Bench of the High Court other point of quantum of sentence of death to the appellant in view of reasons given and discussion made above. We find no merit in the said contention of the learned counsel for the appellant, therefore, no merit in this appeal, hence the appeal is dismissed maintaining the conviction and sentence upheld by the High Court passed by the trial Court.