Law:

Section:

Penal Code (XLV of 1860)--- S. 302 read with S. 300, Exception I-Grave and sudden provocation-Fighters separated and each going his own way-Accused petitioner arriving later and at bidding of his uncle firing two deadly shots at each one of two deceased-Case, held, not one of grave and sudden-provocation and accused petitioner rightly convicted under S. 302. JUDGMENT HAMOODUR RAHMAN, C. J.-The petitioner was put up for trial along with his uncle Fazal Elahi under section 302/34, P. P. C. for the murder of two persons in the fields of Maira Nowshera. The trial Court acquitted Fazal Elahi but convicted the petitioner on two counts under section 302, P. P. C. and sentenced him to death. On appeal and reference, a Division Bench of the Peshawar High Court has dismissed the appeal and confirmed the sentence of death. The petitioner now seeks special leave to appeal. Learned counsel appearing in support of the petition has contended that the High Court has erred in law in holding that the plea of self-defence could not be raised as an alternative plea after a plea of alibi had failed. This is not the ground on which the learned Judges of the High Court rejected She plea of self-defence. The plea has been rejected, because it was felt that there was in this case no provocation of such a grave nature as to cause any apprehension of death or grievous hurt to the petitioner from persons who were empty-handed. Besides the petitioner never raised any plea of alibi in his examination under section 342, Cr. P. C. In fact, the evidence is that the petitioner was not there originally when the quarrel took place between Taza Gut and Fazal Ehahi, the uncle of the petitioner, during which fist blows were also exchanged. They were separated by Subhanuddin (P. W. 8), Fazal Elahi went towards his own field while the others towards their kotha. After the separation, the petitioner arrived there with a shot-gun from Risalpur side and then at the bidding of his uncle Fazal Elahi first fired at Wali Gut and then at Quresh Gut when the latter came there to protest. On these facts, the prosecution version given by two witnesses and in the two dying declarations of Quresh Gut, one recorded…

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