1987 PLP 1852 (SCMR)

SAAD SAOOD JAN, J.‑‑Zamin Shah, petitioner in this petition for special leave to appeal, was convicted by the Additional Sessions Judge, Dera Ghazi Khan of offences falling under sections 302 and 307 of the Pakistan Penal Code for causing the death of Altaf Hussain Shah and making murderous assault upon Ijaz Hussain Shah and Ghulam Rasool. For the offence under section 302 he was sentenced to death and for the offences under section 307 he was sentenced to suffer rigorous imprisonment for a period of three years on two counts. In addition he was also directed to pay fines. On appeal and reference his convictions and sentences were upheld by the High Court and the sentence of death was confirmed. Together with him his brother Ashiq Hussain Shah was also tried on the same charges but he was acquitted by the trial Court. He seeks leave to appeal against his convictions and sentences.

2. The petitioner was married to Mst. Naseem Bibi, a sister of the deceased. By way of exchange his sister Mst. Bano was married to the deceased. The deceased lived with his parents in Dera Ghazi Khan whereas the petitioner resided 12 miles away in Kot Chhutta. A few days prior to the occurrence Mst. Bano was taken away from the house of the deceased by her father. As it usually happens, Mst. Naseem also left the petitioner's house and came to the house of the deceased. On the eve of the day of occurrence the petitioner came to the house of the deceased in order to seek return of his wife. The father of the deceased, Sultan Shah did not accede to his request in this regard and told him that he could take his wife only if he would bring back Mst. Bano. The petitioner spent the night in the house of the deceased and left early in the morning. According to the prosecution, he returned a short-while later with a gun. He was accompanied by his brother. He stood outside the house of the deceased and started hurling abuses. The deceased, his brother Ijaz Hussain Shah and their father Sultan Shah came out of the house. The petitioner fired at the deceased who was hit in the lower part of his abdomen. The petitioner then fired at Ijaz Hussain Shah and his father Sultan Shah. Ijaz Hussain Shah was hit in the head and neck while Sultan Shah escaped injury. Instead Ghulam Rasool, a neighbour, who arrived at the spot on hearing the noise was hurt. Some of those who were attracted to the scene of occurrence on hearing reports of gun fire chased the petitioner and apprehended him with the gun. The deceased later died as a result of the injuries received by him. The incident was reported at Police Station Dera Ghazi Khan on the same day at noon time.

3. The petitioner pleaded not guilty to the charges against him. He denied that he was responsible for causing the death of the deceased or firing at Ijaz Hussain Shah or Sultan Shah or hurting Ghulam Rasool. He stated that his wife was living with him happily but her parents wanted that she should divorce him. Sultan Shah, father of the deceased, had a number of enemies. On the night of occurrence some of his enemies attacked him. Sultan Shah remained unhurt while his sons, deceased and Ijaz Hussain Shah were hit. Sultan Shah suspected that he was responsible for the incident. He summoned him and his brother from his village and asked him to bring his licensed gun alongwith him. Later, he and his brother were falsely involved in this case.

4. At the trial the prosecution examined three witnesses of the occurrence, namely, Ijaz Hussain Shah (PW‑8), Ghulam Rasool (PW‑9) and Sultan Shah (PW‑10). Ijaz Hussain Shah and Ghulam Rasool were both hurt during the course of the occurrence and as such their presence at the spot at the relevant time could not be seriously disputed. The occurrence took place right in front of the house of Sultan Shah at a time when he would normally be present there. He was therefore, a natural witness. They all accused the petitioner of firing at the deceased and causing hurt to Ijaz Hussain Shah and Ghulam Rasool. There was no rift between the parties. In fact the petitioner had spent the night preceding the occurrence at the house of the deceased. It is most unlikely that Sultan Shah would falsely implicate his own son‑in‑law in the case. Apart from that the petitioner was apprehended at the spot with the gun immediately after the firing. There is, thus, sufficient material on the record to hold that the petitioner was responsible for causing the death of the deceased and causing fire‑arm injuries to Ijaz Hussain Shah and Ghulam Rasool. He was therefore, rightly convicted of offences under sections 302 and 307 of the Pakistan Penal Code. In fact the learned counsel for the petitioner only half‑heartedly challenged his convictions for these offences.

5. The learned counsel for the petitioner addressed us mainly to the question of sentence. He stated that the fact that the petitioner spent the night in the house of the deceased and shared the cot with his wife showed that his wife did not want to leave him but that it were her parents who were preventing her from returning with him. This, according to him, was a mitigating circumstance and for that reason, it was not a fit case where the penalty of death should have been imposed upon the petitioner. After going through all the material on the record we are unable to agree with him. All that parents of his wife were telling the petitioner was that he should first persuade his sister to return to the house of the deceased and then he would be free to take his own wife back. It was not the case of the petitioner that his sister was being maltreated by the deceased or his parents. It was a reasonable offer. The petitioner's wife had left his house only a day earlier and there is nothing on the record which may indicate that on the night preceding the day of occurrence there had been any loss of temper or exchange of hot words on either side. In the circumstances we do not think that the petitioner had any justification whatsoever for feeling so outraged as to kill the deceased or fire at Ijaz Hussain Shah or Sultan Shah. That being so, the sentence of death was well deserved by the petitioner. This petition is without any merit and is hereby dismissed. M.I./Z‑12/S Petition dismissed.