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Petition for Special Leave to Appeal No: 3‑P of 1968, decided on 26th March 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 6th December 1967, in Criminal Appeal No. 42 of 1967).
S. 302 and Criminal Procedure Code (V of 1898), S. 161‑--Conviction for murder‑Special leave to appeal to Supreme Court on ground that earlier statements of eye‑witnesses not referred to In judgment although they had material bearing on question of offence committed and quantum of sentence‑‑Leave granted.
Masoom Shah, Advocate Supreme Court instructed by Muhammad Nazar Khan, Attorney for Petitioners.
Nemo for the State.
Date of hearing: 26th March 1968.
‑Jurabaz and his son Sardari were convicted under sections 302/307/34, P. P. C. for committing the murder of Abdur Rehman and inflicting injuries on Khan Sher, P. W., on 19‑6‑1966 in the area of wand Anjar. On the principal count the first named was on account of old age sentenced to transportation for life and the latter to death. Separate sentences of imprisonment were also awarded under the said count. The High Court on appeal and reference have maintained the respective convictions and sentences of the petitioners and overruled the plea of private defence of property on the view that the petitioners had to the month Baisakh (April) surrendered their tenancy and given possession to Abdur Rehman deceased.
The learned counsel has drawn our attention to the evidence of the three eye‑witnesses in the case two of whom, namely, P. Ws. 5 and 7 had stated before the Committing Magistrate that the deceased had gone with qulba to take possession from the petitioners and was ploughing the field when the occurrence took place. Similarly the third eye‑witnesses (P. W. 6) had, in his statement under section 161, Cr. P. C., deposed: "that few days before the occurrence in the course of talks between the deceased and the. accused, the deceased asked them to surrender the possession to which the accused party did not agree". These earlier statements of the eye‑witnesses from which they tried to resile during the trial are not even referred to in the High Court judgment although they had a material bearing on the question o the nature of the offence committed by the petitioners and the quantum of sentence.
We grant leave to appeal to consider the nature of the offence committed by the petitioners in the light of the plea of private defence of property.
Leave granted.
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