1989 SCMR 180 (PLP)

The prosecution case is that at about midnight time, while the deceased Muhammad Zaffar was sleeping in his house the petitioner broke into the house and fired a pistol shot, as a result of which the deceased died a few hours later in the hospital. The motive alleged by the complainant is that petitioner suspected the deceased to be on illicit terms with his wife Mst. Sahib Khatoon. The petitioner's defence was that he was at his fields and on return to his house late at night, he found the deceased in a compromising position with his wife, upon which, out of grave and sudden provocation, picking up the loaded gun of the deceased lying beside the bed fired at him. The case of the prosecution rested mainly on the testimony of complainant Muhammad Arif, brother of the deceased and Mst. Maqbool Bibi, wife of the deceased. So far as Mst. Maqbool Bibi is concerned her version is that she got up on the sound of pistol fire. As the night was dark and no light bulb was secured by the police, the question is whether this witness was able to identify the culprit or at all see him firing at her deceased husband. Other features of the case as revealed in the evidence also leave many questions unanswered. Muhammad Aries presence also appears doubtful. He used to work at Dipalpur and lived in the adjacent house with his father. He admits that his wife and children were sleeping in that house and he had no particular reason to sleep in the house of deceased that night. Another important admission made by this witness in cross‑examination is that he asked the assailant of his brother as to who he was and in reply the latter said that he was Ahmad Din (accused). This statement indicates that the witness was unable to identify the assailant on his own. The other things worthy of note are that in spite of the fact of profuse bleeding from the wounds of the deceased no blood was secured from the ground in his house. The alleged Charpai, the matress and pillow which were blood- stained were not secured by the police. Similarly the clothes of the witnesses, which were said to have been soiled with the blood of the deceased were also not secured. The motive also seems to support the version of the petitioner who is an old man of 70 years, unlikely to scale the 22 feet high wall and fire at the deceased who was sleeping with a loaded gun beside his bed. These features of the prosecution case, to my mind, require to be examined in juxtaposition with the explanation of the petitioner in order to ascertain whether his conviction is sustainable in consonance with the principles for safe administration of criminal justice. In my opinion this is a case for grant of leave and condonation of one day's delay.