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Criminal Petition No. 132‑R of 1982, decided on 3rd April, 1983,

(From the judgment dated 6‑E‑1982 of the Peshawar High Court passed in Criminal Appeal No, A/188 of 1981).

‑ Art. 185(3) read with Penal Code (XLV of 1860), S. 302 Murder‑‑Conviction for‑.Leave to appeal‑Granted to appraise evidence in order to see if accused/petitioner had been rightly held guilty of murder and if so whether capital punishment was deserved.

A. K Brohi, Senior Advocate Supreme Court with M. Bilal, Advocate Supreme Court instructed by S: M. Abbas (absent) for Petitioner.

Nemo for the State.

Date of hearing: 3rd April, 1983.

The petitioner is under a sentenced of death, having been found by the Additional Sessions Judge, Peshawar, guilty of the murder of Abdul Qayyum deceased and his appeal having failed before the High Court.

2. The relevant occurrence took place on 22‑11‑1980 at 9.05 a. m. In Shabqadar Bazar, Peshawar, about 1 furlongs from Shabqadar Police Station. Complainant Sabz Ali, brother‑in‑law of Abdul Qayyum deceased and the latter's brothel ‑Mujahid were at that time going through the bazar towards their shop. When they were passing by the shop of Sher Gul. Petitioner Gui Harder appeared with a pistol and fired three or four shots at the deceased causing injuries to him, to which he later succumbed in hospital. The motive for the crime was that the deceased had refused to give the hand of his sister in marriage to him. One 32 bore empty was recovered from the spot. The petitioner, who had fled from the scene at the time of the occurrence, was declared absconder and was arrested four months later on 22‑3‑1981. A pistol with a holster containing ‑32 cartridges was recovered from him. The prosecution case rested on the ocular testimony furnished by Sher Ali complainant and Mujahid, the recoveries, the factum of the empty having matched with the pistol, the medical evidence the abacondence of the petitioner and the story, of motive.

3. Learned counsel for the petitioner drew our attention to some features of the case, for which he urged that the case was not free front doubt. He pointed out that the story of motive given by Sabz Ali in his evidence that the deceased has refused to give the hand of his sister to the petitioner some six years and again 2/3 months before the occurrence was not believable inasmuch as the period of six years was very remote and as the petitioner, according to his statement under section 342, Cr. P. C. was already a married man. He also pointed out that although the occurrence had taken place in a bazar, which was a busy place, yet n independent witness has come forward to support the ocular witness who were both closely related to the deceased. Another aspect of the matter was that even the recovery effected either from the spot or the petitioner is not supported by a witness of the locality and that only the police officials had attested the relevant memos. on both occasions. In the circumstance, we grant leave to re‑appraise the evidence in order to see if the petitioner has been rightly held guilty of the murder and if so whether the capital punishment was deserved.

S. Q.

Leave granted.

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