1987 PLP 131 (SCMR)

Nemo for the State. Date of hearing: 29th October, 1986. NASIM HASAN SHAH, J.‑‑The petitioner along with Muhammad Sharif co‑accused was tried under section 302/452/34, P.P.C. by the Additional Sessions Judge, Kasur, who on 21‑1‑1980 convicted and sentenced Muhammad Ramzan to death and Muhammad Sharif to life imprisonment under section 302/34, P.P.C. and also to a fine of Rs.5,000 or in default to undergo two years' R.I. Both of them were also sentenced to four years' R.I. under section 452, P.P.C. with a fine of Rs.2,000 or in default to six months' R.I. Out of the fine, Rs.10,000 were ordered to be paid to the heirs of the deceased. On appeal and reference to the Lahore High Court the appeal of Muhammad Sharif was accepted and he was acquitted vide order and judgment dated 1‑2‑1983. However, the appeal of the petitioner Muhammad Ramzan was dismissed and the sentence of death passed against him was confirmed. Hence this petition for leave to appeal. The prosecution case was that Mst. Ghulab Bibi widow of Karam Din, P.W.7, was sleeping on the night of the occurrence in the courtyard of the house alongwith her child who was ailing and her husband Karam Din. At about mid‑night her ailing child wept. This woke her up as also her husband, who asked her to take the child inside the room. She, accordingly, took the child inside the room but the door of the room remained open. After a sometime, while she was still awake she saw that the door of the courtyard was opened and two persons, namely Jan Muhammad and Muhammad Sharif entered the house whom she identified in the moonlight. Muhammad Sharif kept standing near the outer door while Jan Muhammad, who was armed with pistol, stepped forward and fired at her husband. She raised an alarm. Meanwhile, Sardar All and Umar Din reached her house on hearing the report of fire and identified Sharif and Jan Muhammad and tried to overpower them, but they escaped. Karam Din died at the spot. Both the trial Court and the High Court have found Jan Muhammad to be guilty by relying on the evidence of Mst. Ghulab Bibi P.W.7 and convicted him under section 302, P.P.C. and sentenced him to death. Before us, Mr. M . B . Zaman, learned counsel for the petitioner has submitted that proper attention has not been given to the circumstance that the testimony of Mst. Ghulab Bibi could not have been relied upon because she was not in a position to witness the occurrence. In this connection, he drew our attention to the evidence of Khuda Bakhsh, Patwari, P.W.11 who is the draftsman of the site plan and especially the following portion of his statement in cross‑examination: ‑ "The Dharek tree standing in the courtyard of the deceased is quite sh4kdy and its branches and leaves are at a distance of one yard high from the earth level. It is correct that if a person is standing at point 'C' he is not visible on an other man sitting at point 'B' because due to the intervention of the leaves and branches of Dharek tree." We have also seen the site plan and if the above statement of Khuda Bakhsh is correct the submission that Mst. Ghulab Bibi could not witness the occurrence, as she was lying with her ailing child on a cot at point 'B', would have considerable force. The case, therefore, requires further consideration. M. I.??????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.