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Petition for Special Leave to Appeal No. 254 of 1968, decided on 16th October 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 10th July 1968, in Criminal Appeal No. 667 of 1967).
S. 302/149-Conviction-State ments of witnesses at variance with one another-Features of case requiring re-examination of evidence-Special Leave to Appeal granted by Supreme Court.
A. R. Changez, Senior Advocate Supreme Court (Syed Fazle Azim Hamadi, Advocate with him) instructed by S. Abid Nawaz, Attorney for Petitioners.
Nemo for the State.
Date of hearing : 16th October 1968.
The six petitioners were convicted under section 302/149, P. P. C. and sentenced to death for the murder of Allah Dia on the 5th of June 1966. They were also convicted under section 148, P. P. C. but no separate sentence was imposed.
The immediate motive for the offence, it is said, was that at the instance of Allah Dia a case under sections 324/307, P. P. C. was registered on the 10th August 1965, against Qaim Din and his two sons Bashir Ahmad and Nazir Ahmad who were also accused in the present case. The father died during the pendency of the case and the sons were acquitted. The appellants and the co-accused were pressing Allah Dia not to prosecute the case but he did not agree so he was threatened.
The prosecution case is that on the day of occurrence Allah Dia at about 1-30 p.m. was taking his meals at his house when he was called by Atta Muhammad and Abdul Aziz, petitioners. He went with them followed by his son, Arif P. W. 1 (aged 11 years) and his daughter, Mst. Hedayat Bibi (aged 9 or 10 years). When they reached in front of the house of one Ali Ahmad be was belaboured by the petitioners with blunt weapons such as dang, danda and thapis and a kandhali (a sharp-edged instru ment). Fifty-one injuries were found on the body of the deceased.
Ocular evidence was furnished by Mst. Resham Bibi, the widow of the deceased, her brother Muhammad Sadiq P. W. 10, Arif P. W. 9 and Hedayat Bibi P. W. 8. The first two went to the place of occurrence hearing the alarms raised by the son and the daughter.
The learned Judges in the High Court doubted the presence of Muhammad Sadiq at the time of the occurrence. Recovery of some weapons of offence was made. The evidence in this regard has been furnished by the Investigating Officer and Muhammad Sadiq. The evidence of Muhammad Sadiq in this connection has been believed.
The learned counsel for the petitioners argues that the learned Judges have come to inconsistent findings. There is force in this argument. The evidence of the eye-witnesses is that the deceased was taking his meals when he was taken away.
The doctor who held post-mortem examination said that the stomach contained semi-digested food which might have been taken two or three hours before death. The prosecution case is that the deceased died at the spot after being beaten. This inconsistency was not noticed.
It was observed that the shalwar of Mst. Hedayat Bibi had been smeared with blood when she had tried to intervene but her positive evidence is "my shawar was stained with blood when we placed Allah Dia on the cot".
These and other features in the case to which our attention was drawn require a re-examination of the evidence.
Leave, therefore, is granted.
Leave granted.
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