Grave and Sudden Provocation and Admission Statement

Grave and Sudden Provocation and Admission Statement Admission Sec 342 Cr.PC Benefit of doubt Case Laws Chance Witness Criminal Appeal Criminal Law Delay in FIR Knowledge - Criminal Law Lahore High Court Litigation & Arbitration Murder Non-Production of Important Witness Provocation Sec 342 Cr.PC Solutions - Criminal Law Mr. Justice Syed Shahbaz Ali Rizvi in his judgment has decided the issue involving two murders due to grave and sudden provocation and admission statement in Criminal Appeal No. 1068 of 2011.

1. This judgment shall dispose of Criminal Appeal No.1068 of 2011 titled as Ghulam Mustafa v. The State filed by the appellant against his conviction and sentence and Murder Reference No.281 of 2011 titled as The State v. Ghulam Mustafa sent by the learned trial court for confirmation or otherwise of sentence of death awarded to Ghulam Mustafa (convict), under Section 374 of the Code of Criminal Procedure, 1898, being originated from the same judgment dated 09.06.2011 passed by the learned Additional Sessions Judge, Khushab in case FIR No.525 dated 26.09.2010, offences under Sections 302, 148 & 149 of Pakistan Penal Code, 1860 registered at Police Station Jauharabad, District Khushab whereby the appellant was convicted under Section 302 (b) of the Code ibid and sentenced to death for committing the murder of Muhammad Asad and Farhat Sultana on two counts with direction to pay Rs.1,00,000/- as compensation to the legal heirs of each deceased as provided under Section 544-A of the Code of Criminal Procedure, 1898 and in default thereof, to be recovered as arrear of land revenue or to undergo simple imprisonment for six months. However, through the same judgment, learned trial court acquitted the co-accused Muhammad Feroz, Najeeb Ullah, Muhammad Farooq, Muhammad Nasrullah, Khalid Farooq, Muhammad Altaf and Muhammad Umer while extending them the benefit of doubt.

2. Shortly, the facts of the case as uncovered by the complainant Tariq Aziz (PW.8) in the crime report (Exh.PL) are that on 25.09.2010 at about 11:30 p.m. he along with his brother Muhammad Asad (deceased), Ahmad Hakeem (given up PW) and Qasim Umer (PW.9) was returning to home from the house of his paternal cousin Muhammad Chiragh. When they reached in the street in front of the house of Javed where an electric bulb was lit, suddenly Ghulam Mustafa (appellant) armed with .30 bore pistol, Muhammad Feroz, Najeeb Ullah, Farooq, Nasrullah, Muhammad Altaf, Khalid and Umar co-accused (since acquitted) armed with clubs (سوٹے ) came there. Ghulam Mustafa (appellant) raised ‘lalkara’ that Asad (deceased) had not refrained from passing through the street despite warning. Meanwhile, co-accused Muhammad Feroz, Najeeb Ullah, Farooq and Nasrullah co-accused inflicted ‘sota’ blows on the head of Asad. Khalid, Muhammad Altaf and Umar co-accused dragged Asad holding his legs to the house of Javed Akhtar Bhatti. When complainant along with witnesses tried to rescue his brother, Ghulam Mustafa with his .30-bore pistol made three fire shots which hit Muhammad Asad on left side of front of chest, right side of neck and chin who fell down. Meanwhile the women folk of the family of Muhammad Javed Bhatti also came there. Ghulam Mustafa (appellant) also made fire shots upon Mst. Farhat Sultana which hit on different parts of her body and she fell down. Both Muhammad Asad and Mst. Farhat Sultana succumbed to the injuries at the spot whereas the assailants fled away.Motive is that Ghulam Mustafa (appellant) had suspicion of illicit relations between his cousin Farhat Sultana and Muhammad Asad (deceased) and due to this reason, the accused persons committed murder of Asad and Farhat Sultana.

3. After his arrest on 02.11.2010, the appellant got recovered .30 bore pistol (P.5) and three live bullets (P.6/1-3) at his instance which were taken into possession vide recovery memo (Exh.PA) on 08.11.2010. The investigation culminated into submission of report under Section 173 of the Code of Criminal Procedure, 1898 before the learned trial court. Charge was framed against the appellant and his co-accused persons (since acquitted) to which they pleaded not guilty and claimed trial.

4. The prosecution examined in all, eleven witnesses during the trial. Tariq Aziz, complainant (PW.8) and Muhammad Qasim Umer (PW.9) are the eyewitnesses of the incident. Medical evidence was furnished by Dr. Lubna Sadaf (PW.6) and Dr. Muhammad Saleem (PW.7). The former on 26.09.2010 at 04:00 p.m. conducted post mortem examination of Mst. Farhat Sultana and observed three entry and three exit firearm wounds besides a bruise on her dead body. According to her opinion, all the injuries were ante mortem and cause of death was damage to heart, left lung and various parts of the body leading to massive bleeding and shock due to the mentioned injuries which were sufficient to cause death in ordinary course of nature. The probable duration as declared between injury and death was immediate while between death and post mortem examination about fifteen hours. On the same day at 12:30 p.m, Dr. Muhammad Saleem (PW.7) conducted post mortem examination of Muhammad Asad alias Nanha and observed eleven wounds including six firearm (three entry & three exit) injuries. According to his opinion all the injuries were ante mortem and cause of death was damage to heart and lungs leading to bleeding and shock due to injury No.9 which was sufficient to cause death in ordinary course of nature. The probable duration between injury and death was 5 to 15 minutes while between death and post mortem examination 12 to 14 hours. Agha Hussain, Constable No.175 (PW.3) and Khizar Hayat Constable No.378 (PW.5) are the witnesses of recovery of .30 bore pistol (P.5) and three live bullets (P.6/1-3) at the instance of the appellant. Atta Ullah Khan, ASI (PW.11) is the Investigation Officer of this case. Haji Mirza Muhamad Saeed, Draftsman (PW.4) prepared scaled site plan of the place of occurrence (Exh.PE), whereas rest of the witnesses are formal in nature.

5. In his statement recorded under Section 342 of the Code of Criminal Procedure, 1898, though the appellant negated the prosecution evidence/story yet admitted the commission of murder of the deceased persons under sudden and grave provocation on seeing them in compromising (naked) position. His reply to the question “Have you anything else to say?” reads as under:

“My Khala and Chachies mother of Farhat Sultana deceased is an old lady of 70 years. Javed Akhtar brother of Farhat is sick person. I slep in the house of my Khala on the night between 25/26.09.2010. At about 11:30 p.m. I heard whispering in the adjoining room where Farhat was sleeping. I went to said room and saw Assad and Farhat in compromising naked position and pistol of Assad was lying beside him. After some scuffle I fired at Assad and Farhat under grave and sudden provocation.”

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