1983 PLP 285 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑Leave to appeal has been sought from judgment dated 25‑5‑1982 of the Lahore High Court, whereby in a murder case the conviction and sentence of death under section 302, P. P. C., awarded to the petitioner was upheld and his appeal was dismissed. According to the prosecution, there was a land dispute between Fazal Hussain deceased on the one side and the petitioner ‑as also his co‑accused Muhammad Yasin and Mirza Khan (petitioner's brother and father respec tively) who have since been acquitted. Nazra Khan (P. W. 6) father‑in‑law of deceased had arranged a Panchayat through Karam Khan and Muhammad Sadiq (given up P. Ws.) to settle the dispute. They visited the disputed spot on 26‑6‑1975 at about degarwela and returned to village so as to settle the, matter with the accused persons. There was exchange of hot words between Nazra Khan and the accused party whereupon Manzoor Hussain picked up his licensed gun from his house, which is adjacent to the house of the deceased and having crossed over the intervening wall, fired at Fazal Hussain deceased who according to the prosecution had by then not participated either in the Panchayat exercise or in the hot exchange of words. A single shot proved fatal. The learned trial Judge giving benefit of doubt to Muhammad Yasin and Mirza Khan the co‑accused, father and brother of the petitioner, acquitted them but convicted the petitioner under sections 302 and 449, P. P. C. The sentences awarded to him included that of death. Learned counsel tried to show that the prosecution case with regard to time and place of occurrence is false. According to him, the deceased was shot at some where away from the village in the field during the night time and that it was an un-witnessed occurrence. He further argued that the accused in this case were involved merely on suspicion. The argument, in support of these contentions are based on insignificant points. In so far as the facts and circumstances of this case are concerned, the mere fact that no wards or pellet marks were found on the ground or on the adjoining wall does not show that the place of occurrence is not the one shown in the site plan from where the[ blood‑stained earth was taken into possession. If, there is any margin it can be with regard to whether the deceased suffered the shot at one place in the courtyard and fell down at another place but in the same courtyard. The other argument of the learned counsel, that no time of occurrence is men tioned in the F. I. R. and the fact that Mst. Naseeban Bibi the widow of the deceased deposed that she was making preparation for cooking the meal, therefore it was doubtful whether the occurrence took place during day light time, is also without any solid basis. On the contrary, there is indica tion in the evidence as to when the occurrence took place. This is not inconsistent with what Nazra Khan and Mst. Naseeban Bibi deposed at the trial. The opinion of the doctor that stomach of the deceased was empty support Mg. Naseeban Bibi that evening meal had not yet been taker. by the deceased when the occurrence took place. This fully corroborated the prosecution version. If it is held that the occurrence took place at the time or around the place alleged by the prosecution, the next question is as to why disbelieve Mst: Naseeban Bibi who is a natural witness and also for that matter Nazra Khan complainant who had no motive to falsely substitute the petitioner for someone else. Indeed there is nothing to discredit them even on so‑called suspicion as there was no reason then to entertain any suspicion. The learned courts took enough care in the appreciation of evidence and excluded certain pieces of evidence even by way of abundant caution. The remaining evidence, in our view, was enough for render a finding of guilt against the petitioner. Therefore, we do not consider it a fit case for re‑examination of the evidence for purpose of determining the guilt or otherwise of the petitioner: However, the question of sentence needs examination because there a certain features in the prosecution evidence as also the observations in the judgment of the High Court which indicate that the petitioner might have shot at the deceased in the heat of the moment after hot exchange of abuse in which the deceased also had participated. That being so, leave is granted in this case to examine the question of sentence. Leave granted.