1987 PLP 876 (SCMR)

Date of hearing: 28th February, 1987. ASLAM RIAZ HUSSAIN, J.‑‑Rashid alias Shida seeks leave to appeal against the judgment of the Lahore High Court, dated 4‑11‑1986 dismissing his appeal in a murder case. The petitioner was accused of the murder of Farooq Azam. The prosecution case against him is briefly that on 10‑3‑1981 at 6‑30 p. m. the deceased had gone to cut fodder from the field of Nazar Lambardar. Muhammad Younas P.W. alongwith Inayat P.W. and Muhammad Ashraf returned from graveyard after funeral prayer of a deceased lady. When they reached the said Shatala field, they saw Rashid inflicting Chhuri blows to deceased Farooq Azam on his abdomen and chest. Farooq Azam ran to save his life but fell in a Khal and died on the spot. The motive for the offence is stated to be that one year prior to occurrence the four pet pigeons of deceased Farooq Azam strayed in the house of accused Rashid who refused to return even on demand. There was exchange of hot words and beating. Rashid accused nourished grudge. A week before occurrence again there was altercation between the accused and the deceased. The accused was arrested and blood‑stained Chhuri (P.5), which was found to be stained with human blood, was recovered from him. In support of its case the prosecution produced only one eye‑witness namely Muhammad Younas (father of the deceased). His testimony was corroborated by the recovery of the blood‑stained Chhuri. This evidence was further corroborated by the medical evidence and the evidence of motive.

2. The accused admitted having killed Farooq Azam (deceased) with Chhuri (P. 5) but stated that he had done so because he and the deceased were easing themselves in the field and the latter tried to make a sexual assault on him and that it was in the right of exercise of defence of person that he had attacked the deceased. The trial Court convicted the accused‑petitioner and sentenced him to death. The High Court dismissed the appeal vide the impugned judgment. Hence, the present petition for leave to appeal.

4. Before us the learned counsel for the petitioner did not deny the murder. Nor did he press the plea of "sexual assault" taken by the petitioner in his statement under section 342, Cr.P.C. but submitted that according to the prosecution case itself no one had seen as to what had preceded the attack and as such the genesis of the incident was not known. Relying on the judgment of this Court in Ahmad Khan v. The State 1985 S C M R 975 he submitted that in such a case the petitioner should have been awarded lesser sentence under section 302, P. P. C. Leave is granted to the petitioner to consider this question. S.S.G./R‑12/S????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted