1998 PLP 1225 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The petitioner was tried under section 302, P.P.C. for causing murder of one Tajamal Hussain and was sentenced to death with fine of Rs.20,000 which on realization was to be paid to the legal heirs of the deceased and in default thereof the petitioner was ordered to undergo further R.I. for four years.' The unfortunate incident in which deceased Tajamal Hussain lost his life took place on 24-10-1989 at about 11-30 a.m. in a Karyana shop belonging to the complainant Yousaf Khan who is also brother-in-law of the deceased. The F.I.R. was lodged at about 12-35 hours on the same day and accused petitioner was also arrested on the same day. The crime weapon namely; Kalashnikov, with which the petitioner fired at Tajamal Hussain was snatched by Yousaf Khan (P.W.5) and was produced before the Investigating Officer the same day which was taken into custody and the same was found matched with the empties recovered on the spot according to the report of ballistic expert. The motive in the case was stated to be an altercation which took place between the petitioner and the deceased Tajamal Hussain a few days earlier to the incident. The two Courts below have found the presence of the witnesses natural and their evidence was also found confidence inspiring and consistent. The incident took place in broad daylight and the petitioner was cited as the only accused in the case and therefore, question of substitution in the case does not arise. The evidence of eye-witnesses was fully corroborated in the case by the recovery of crime weapon and the positive report of ballistic expert. The learned counsel for the petitioner in seeking leave to appeal contended that the plea of the defence was not taken into consideration by the trial Court which has resulted in the misreading of justice, has no substance. According to defence plea, the petitioner had taken over the Kalashnikov belonging to the complainant Yousaf Khan for the purpose of inspecting it which went off accidentally killing the deceased Tajamal Hussain. It was also stated by the petitioner in his statement under section 342, Cr.P.C. that he became scared as a result of this accidgntal firing and in order to save himself from the P.Ws. he ran towards his house. We have gone through the prosecution evidence recorded in the case and have noticed that no such cross-examination or suggestion was given to the prosecution witnesses while they were in the witness box. There is no foundation in the case for the defence plea which is being attempted to be argued by the learned counsel for the petitioner. The two Courts below have considered the defence plea in juxtaposition with the prosecution case and rejected it rightly as the defence theory did not find support from the evidence on record or from the circumstances of the case. There is no misreading of evidence by the two Courts below. The petition is without any merit which is accordingly dismissed. N.H.Q./M-3068/S Leave refused.