1994 PLP 1173 (SCMR)

SAAD SAOOD JAN, J.‑‑‑The petitioner, Mushtaq Hussain, and his father, Ganmun Shah, were convicted by the Sessions Judge at Muzaffargarh, of offences under sections 455 and 302, read with section 34, Pakistan Penal Code, for causing the death of Abbas Ali, deceased, and trespassing into his house. On the charge under section 302 the petitioner was sentenced to death while his father was sentenced to suffer imprisonment for life. They were also directed to pay fines and compensations. On appeal and reference, the High Court acquitted Ganmun Shah; it maintained the convictions of the petitioner on the charges under sections 302 and 455 but reduced his substantive sentence of death to imprisonment for life. The petitioner seeks leave to appeal from the judgment of the High Court. The complainant party too seeks leave to appeal to challenge the acquittal of Ganmun Shah and to pray for restoration of the sentence of death on the petitioner.

2. The parties are close neighbours in village Mehar Shah of Tehsil Muzaffargarh and only a wall intervenes between their houses. According to the prosecution, the petitioner suspected that the deceased was carrying on an affair with his sister, Mst Haseena Mai. On 17‑12‑1989, at 2‑00 p.m., the deceased was present in his Haveli alongwith Allah Ditta (P.W.5). Gul Muhammad (P.W.4) and Alam Shah (P.W.6). Suddenly, the petitioner and his father scaled over the intervening wall and jumped into the Haveli of the deceased. The petitioner was armed with a Chhuri. Ganmun Shah held the deceased from behind while the petitioner struck two blows on his body with the Chhuri. The deceased died at the spot. Gul Muhammad (P.W.4) went to Police Station Qureshi and lodged the first information report at 3‑10 p.m.

3. The petitioner was arrested by the police on 22‑12‑1989. Two days later the petitioner took the Investigating Officer to his house and from there produced his blood‑stained clothes and Chhuri. The blood on these articles was later found to be of human origin. Similarly after his arrest Ganmun Shah too produced a blood‑stained Chaddar and turban. The blood on these articles was also found by the Serologist to be of human origin.

4. At the trial, the petitioner and his father pleaded not guilty to the charges against them. While Ganmun Shah stated that he was not present at the spot at the relevant time the petitioner admitted that he was responsible for causing the death of the deceased. He took the plea of grave. and sudden provocation, alleging that at the relevant time he had seen his sister and the deceased in a compromising position.

5. The case of the prosecution against petitioner and his father was based mainly upon the ocular testimony provided by three eye‑witnesses, namely, Gul Muhammad (P.W.4), Allah Ditta (P.W.5) and Alam Shah (P.W.6). Even though all these witnesses were related inter se but then the parties had no history of enmity. They were also natural witnesses. The testimony of these witnesses further found support from the recovery of blood‑stained clothes and Chhuri from the possession of the petitioner. The plea taken by the petitioner that at the relevant time he had seen his sister in a compromising position with the deceased does not find any support from the record at all. His conviction therefore under section 302, ibid, is not open to any doubt.

6. The role attributed to Ganmun Shah in the occurrence was of holding the deceased in a Jhapa. Considering th4t his son, that is, the petitioner was a youngman, it is unlikely that he would not be getting on in age. The learned Sessions Judge committed a lapse when he did not care to record their ages. However, that may be, it seems unlikely that Ganmun Shah would be accompanying his son when the latter jumped into the house of his next‑door neighbour to attack the paramour of his sister. The High Court therefore did not seem to have erred in having a lurking doubt with regard to the participation of Ganmun Shah in the occurrence. We are therefore not prepared to interfere with his acquittal.

7. Considering the motive which prompted the petitioner to attack the deceased we think that this is a fit case where he should have been given the benefit of the provisions of section 382‑B, Criminal Procedure Code, in the computation of his sentence in addition to that of the lesser sentence. Accordingly, we convert his petition into appeal and make a direction to that effect. Leave is refused in the petition filed by the complainant party. N.H.Q./G‑431/S Order accordingly.