1987 PLP 540 (SCMR)

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 10‑‑Leave to Appeal, grant of‑‑Appreciation of evidence in criminal cases‑‑Petitioner convicted and sentenced to death on solitary evidence of chance witness who had seen petitioner, standing near deceased on morning of occurrence‑‑Plea raised that it was not by itself sufficient to hold that he had been proved to be murderer beyond any shadow of doubt, without any further corroboration of recovery of articles belonging to deceased or extra‑judicial confession which was disbelieved by Courts below‑‑Leave to appeal granted to consider whether well‑established principles of appreciation of evidence in criminal cases had been followed in instant case. Mehar Ghulam Ali Mubashar, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 13th January, 1987. ASLAM RIAZ HUSSAIN, J.‑‑ Ghulam Murtaza petitioner seeks leave to appeal against the judgment of the High Court dated 30‑4‑1985 dismissing his appeal in a murder case.

2. This appeal arises out of a gruesome affair wherein the petitioner is accused of having raped and killed Mst. Iqbal Bibi aged about 7/8 years. It is alleged that she (Mat. Iqbal Bibi) had gone out to ease herself in the field of the village Matila District Sargodha on 22‑10‑1981, at about 8/9 a.m. in the morning, but did not return till noon. A search was, therefore, made for her and at about 3 p.m. same day her dead body was found in a sugarcane field adjacent to her Dera. Her Shalwar had been removed and was lying nearby. Blood was oozing out of her private part which, according to the post‑mortem examination had been torn and ruptured. She was also found to have been strangled to death and her ear‑rings had been removed forcibly, causing cutting of the lobe of the left ear. A report was lodged about the matter by her maternal‑uncle Umar Hayat with the police at 5 p.m. Next day Manzoor Ahmad (P.W. 7) who lives in another village but had come to the village of the occurrence as he had to borrow a tractor from Muhammad Anwar (P.W.8), informed the complainant that he had seen Ghulam Murtaza petitioner standing with Mst. Iqbal Bibi (deceased) near the sugarcane field of one Mirza. This was regarded to be "last seen" evidence. It was sought to be corroborated by the prosecution with the "extra‑judicial confession" made by Ghulam Murtaza petitioner before Muhammad Anwar (P.W.8) and Ghulam Ali (P.W.9). 3.The learned Courts below disbelieved the evidence of extra‑judicial confession but convicted the petitioner only on the evidence of Manzoor Ahmad (P.W. 7) that the deceased was last seen alive in the company of the petitioner and sentenced him to death and a fine of Rs.10,000 (2 years' further R.I. in case of default). On appeal the High Court dismissed the appeal and confirmed the death sentence. Hence, the present petition for leave to appeal.

4. The learned counsel for the petitioner pointed out that the mere fact that the accused‑petitioner was seen standing near the deceased at about 9 a.m. on the morning of the occurrence is not by itself sufficient to hold that he had been proved to be the murderer beyond any shadow of doubt, without any further corroboration by recovery of articles belonging to the deceased or the extra‑judicial confession (which has already been disbelieved by the Courts below).

5. The question needs consideration. Leave is, therefore, granted to consider whether the well‑established principles of appreciation of evidence in criminal cases, have been followed in this case. M.I./G‑2/S. Leave granted.