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Criminal Appeal No. 62 of 1954, decided on 3rd February 1955.

(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 5th October 1954, in Criminal Appeal No. 537 of 1954).

S. 302‑Conviction on basis of evidence of a sole eye‑witness‑Medical witness stating death to be "instantaneous" whereas eye‑witness deposing that deceased after receiving heart injury shouted out name of her assailant Whether deceased, in circumstance, could have shouted out name of her assailant, doubtful‑Evidence held too scanty‑Conviction set aside.

M. Anwar, Advocate Federal Court for Appellant.

A. R. Changez, Advocate. General Punjab (S. A. Mahmud, Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 3rd February 1955.

The appellant Muhammad Aslam was convicted and sentenced to death for the murder of Mst. Sardar Begum, who was married to him about six or seven years ago, but had obtained a decree for the dissolution of marriage in July 1951, and about a month before the occurrence had taken to another husband named Faiz Ali.

From this conviction and sentence by the Sessions Judge of Jhelum, the appellant preferred an appeal to the High Court of Judicature at Lahore, but it was dismissed and his sentence of death was confirmed. The appellant thereupon obtained our special leave and preferred the present appeal.

The case for the prosecution was that the appellant infuriated by the conduct of his wife in getting her marriage cancelled and in taking another husband, shot her dead on the midnight of the 3rd October 1953, after she had retired to sleep along with Mst. Ghulam Bi (P. W. 11), Mst. Zainab (P. W. 12) and Khurshid‑ul -Hassan (P. W. 13) in the courtyard of Mst. Ghulam Bi's house.

The principal question raised in the case relates to the identification of the appellant. Both the Courts below disbelieved the evidence of P. W. 11, Mst. Ghulam Bi, a woman of about 70 years of age, blind of one eye and of exceedingly weak vision in the other. P. W. 13, Khurshid‑ul‑Hassan did not claim to have recognised the appellant. The only other eye‑witness in the case, P. W. 12, Mst. Zainab, however, testified to have recognised the appellant as the murderer and her evidence was accepted by both the Courts below for the reason that she had stated that there was a lantern (Exh. P. 1) burning in the courtyard in the light of which she could identify the appellant and that the deceased Sardar Begum, when shot, had cried out that Aslam appellant was her‑assailant. But the evidence discloses that the glass chimney of the lantern was found to have been extensively broken, with no oil in it, at the time of its recovery; and also that the night of the occurrence was dark and windy. As regards the shouting out of the name of the appellant by the deceased, the evidence of the Doctor' Sh. Anwar‑ul‑Haq, is to the effect that "death was due to shock and haemorrhage as a result of the bullet wound in the heart and the right lung . . . . that in the present case death must be instantaneous". Though the High Court seems to have been much impressed by the evidence of Mst. Zainab, P. W. 12, and has remarked in the course of the judgment that "the statement of Mst. Zainab, P. W. 12, corroborated as it is by the dying declaration of the victim, which we see no reason not to accept, brings home the guilt of the appellant", in Court opinion, the evidence of the Doctor, quoted above, makes it1 very doubtful that after the injury to the heart, the victim could be in a position to shout out, as stated by P. W. 12. Mst. Zainab. The prosecution evidence in the circumstances seems to us to be scanty and not such as can sustain the conviction of the appellant. We accordingly allow the appeal, set aside the conviction and the sentence of the appellant and direct his] release forthwith.

Appeal accepted.

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