1990 PLP 1128 (SCMR)

Nemo for Respondent. MA. Qureshi, Advocate‑on‑Record (absent) for the Complainant. Date of hearing: 21st February, 1990. RUSTAM S. SIDHWA, J.‑‑‑This is a petition by Khan Muhammad, petitioner, seeking leave to appeal against the judgment of a Division Bench of the Lahore High Court, Lahore, dated 7‑10‑1984 dismissing‑ his appeal and confirming his conviction under section 302 P.P.C., but reducing his sentence from death to life imprisonment, whilst maintaining the fine of Rs.5,000 imposed on him alongwith imprisonment imposed in default thereof.

2. Khan Muhammad, petitioner, alongwith Ghulam Muhammad and Sahib Khan acquitted accused was tried under section 302/34, P.P.C. for the murder of Muhammad Khan, deceased, at Peshiwela on 21‑3‑1980 at Dera Agral Dakhli, Village Nalli, Police Station Katha Sagral, Tehsil Khoshab, District Sargodha.

3. According to the prosecution story, Muhammad Khan, deceased, after offering Jumma prayers, was sitting in the shop of Ali Mochi. Close to the shop lay the house of Muhammad Khan's paternal‑uncle, Lai Khan P.W. 6, who alongwith deceased's mother Mst. Malkani and sister, Mst. Shahran P.W. 7, was present in the courtyard of his house. They saw the three accused persons emerging from the eastern side, entering the street and heading towards the shop of Ali Mochi. All the accused had guns in their hands. The witnesses also rushed towards Ali's shop. They were still in the courtyard of the house of Ali Mochi, when the accused reached the threshold of the shop. Khan Muhammad accused petitioner, fired first at Muhammad Khan, deceased, who was hit and who fell down. Ghulam Muhammad and Sahib Khan accused then fired one shot each at Muhammad Khan in fallen condition. Khan Muhammad, accused‑petitioner, and Ghulam Muhammad re‑loaded their guns and then decamped. Muhammad Khan breathed his last.

4. Khan Muhammad petitioner's conviction by both the lower Courts was sustained on the testimony of Lai Khan PW. 6 and Mst. Shahran PW. 7, who were the eye‑witnesses and who also deposed about the motive and the recovery of the two crime empties and blood‑stained earth from the spot, and the testimony of Ahmad Sher P.W. 8 and Muhammad Anees, A.S.I. P.VV. 12, as regards the recovery of the licensed gun P. 7 at the instance of the petitioner, which acted as corroboration against him. On behalf of Muhammad Khan, petitioner, it is submitted that both the Courts below have held Lal Khan P.W. 6 and Mst. Shahran P.W. 7, the witnesses of the occurrence and of the recovery of the crime empties as interested, being closely related to the deceased and otherwise inimical to the accused party. It is further submitted that the learned Sessions Judge in para. 14 of his judgment also found that Ahmad Sher P.W. 8, Hazir P.W. 9 and Khuda Bakhsh P.W. 10, the witnesses to the recoveries of the fire arms at the instance of Khan Muhammad, petitioner, and Ghulam Muhammad and Sahib Khan, acquitted accused, were related to the complainant party and, therefore, interested witnesses. Considering that Sahib Khan and Ghulam Muhammad acquitted accused have been acquitted on the ground that the recovery of the guns from them cannot be safely accepted, it is submitted that the recovery of the gun from Khan Muhammad, petitioner, also therefore, becomes doubtful and suspicious. Having heard the arguments of the learned counsel for the petitioner and having gone through the record with his assistance, we consider that the case of Khan Muhammad petitioner, requires examination in order to determine whether his conviction is founded on a proper appraisal of the evidence on the record and the legal principles governing such cases. We, therefore, grant leave in the case and direct that the appeal shall be listed for hearing at an early date. N.H.Q./K‑141/S Leave granted.