1987 PLP 511 (SCMR)

M. BURHANUDDIN KHAN, J.‑‑By this petition leave is sought to appeal against the judgment and order of the Lahore High Court, Lahore dated 6‑4‑1985 passed in Criminal Appeal No 32 of 1982 whereby death sentence awarded to Muhammad Aslam accused/ petitioner by the learned Additional Sessions Judge, Faisalabad under section 302, P.P.C. was confirmed. He was also convicted under section 324, P.P.C. for injuring Zakir Hussain P.W.11 and was sentenced to one year R.I. Muhammad Nawaz co‑accused was acquitted by the learned trial Court per judgment dated 21‑12‑1981.

2. Prosecution case against the accused /petitioner is that on 28‑3‑1978 Amir Ali P.W.10 alongwith his son Zakir Hussain P.W.11 and Allah Yar deceased had gone to condole the death of the wife of Shahadat. On 29‑3‑1978 while they were returning home, the accused /petitioner. alongwith co‑accused Muhammad Nawaz attacked the deceased with daggers and caused him two fatal wounds. Zakir Hussain P.W.11 was also wounded by the accused as he had tried to save the deceased from their assault. The injured were taken to the hospital where Allah Yar deceased succumbed to his injuries. The motive for the crime is stated to be that two years prior to the occurrence the deceased had given the hand of his daughter Mst. Maqboolan to the accused/ petitioner Muhammad Aslam, who, in turn, married his sister Mst. Fatima to Allah Yar deceased. The deceased wanted that his daughter Mst. Maqboolan be divorced by the accused /petitioner as they were not pulling on well but the accused/ petitioner refused to do so.

3. Learned counsel contended that the prosecution witnesses namely Amir Ali P.W.10, Zakir Hussain P.W.11, and Mst. Fatima P.W.12 had not disclosed during the investigation that Mst. Maqboolan, daughter of Allah Yar deceased was with him at the time of occurrence nor Mst. Maqboolan was produced during the course of the investigation nor she was cited by the prosecution as a witness at the trial. Apart from this, in cross‑examination the witnesses had admitted the presence of Mst. Maqboolan with her father Allah Yar deceased at the time of occurrence. It is contended that Mst. Maqboolan was an important witness of the occurrence and the complainant party, by withholding her, had tried to conceal the correct facts of the case and gave a different version of the occurrence: that if Mst. Maqboolan had been produced, the version of the accused petitioner would have been vouched because according to the accused/petitioner Mst. Maqboolan had been taken away by her father Allah Yar deceased from her husband's house against his wishes and obviously he had the right of protesting and getting back his wife who was being taken away without his consent. The learned counsel also referred to the statement of the accused /petitioner recorded under section 342, Cr.P.C. wherein he stated:‑ "On the day of occurrence in my absence the deceased Allah Yar was taking away Mst. Maqboolan againt her wishes. I was coming to my house from the factory, where I worked, and in the way I met Mst. Maqboolan and the deceased. I asked the deceased Allah Yar as to why he was taking away my wife in my absence and without my consent. I said that I will not allow the deceased‑t0 take away Mst. Maqboolan. Thereupon a quarrel took place and we exchanged fist blows and injured each other with fists. Thereupon, deceased Allah Yar took out a knife and attacked me, In self‑defence I gave injuries to the deceased Allah Yar. Had I not done so, I would have been killed by the deceased." We also find that the presence of Mst. Maqboolan had been admitted by Amir Ali P.W.10 and Zakir Hussain P.W.11. In the cross‑examination, the first mentioned witness stated: "It is correct that accused Aslam was not agreeable to divorce and he was insisting that Mst. Maqboolan should be sent to his house and Mst. Fatima should live with her husband deceased Allah Yar." At another place the witness stated in cross‑examination: "Mst. Maqboolan had come with us for Fateha Khani. Mst. Maqboolan was going with us at the time of occurrence." In cross‑examination Zakir Hussain P.W.11 stated as follows:‑ "Mst. Maqboolan had come with us from Piddipur and she was also accompanied us when we were going back. We did not tell the police about presence of Mst. Maqboolan as she was minor. It is correct that Mst. Maqboolan has filed a suit for dissolution of marriage against accused Aslam." This being the crux of the matter, we grant leave on the question of sentence only. As the evidence had been believed by the two Courts below, therefore, it calls for re‑appraisement on the question of sentence alone. M. I./M‑1/S Leave granted.