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Criminal Petition No. 98 of 1981, decided on 30th January, 1983.
(From the judgment and order dated 23rd December, 1980 of the Lahore High Court passed in Criminal Appeal No. 1051 of 1978 and Murder Reference No. 269 of 1978).
‑‑ Art. 185(3) read with Penal Code (XLV of 1860). S. 302‑Murder Evidence‑Contentions on behalf of accused that (i) gun recovered at accused s instance was not connected with crime, (ii) motive was unbelievable and (iii) ocular witnesses were not at place of occurrence at relevant time‑Leave to appeal‑Granted for re‑appraisal of evidence.‑[Evidence].
S. M. Zafar, Senior Advocate Supreme Court and Muhammad Aslam Chaudhary, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 30th January, 1.983.
The petitioner is aggrieved by the dismissal of his appeal by the Lahore High Court from his conviction and sentence of death plus a fine of Rs. 5,000 recorded by the Court of Session, Sargodha, under section 302, P. P. C. for the murder of Mst. Bushra.
2. The murder had taken place on 15‑8‑1976 at 9‑00 a.m. when the petitioner is said to have entered the house of the deceased armed with a double barrel gun and shot her dead at the spot in the presence of her parents Dost Muhammad and Mst. Noor Begum and sisters Mst. Rashida and Mst. Kaniz Fatima. The motive for the crime was that he had four days before the occurrence demanded the hand of the deceased in marriage but the same had been refused by her father, at which the petitioner had gone away holding out threats. The petitioner was arrested the same day and at his instance a double barrel gun licensed in the name of one Lal Khan was secured. . The gun could not be linked with the crime as no empty had been recovered from the spot. The ocular testimony was furnished by Dost Muhammad (P. W. 9) and Mst. Noor Begum (P. W. 10). The two sisters were not produced. The autopsy disclosed the presence of a fire‑arm wounds of entry on the left side of the back of her chest and two fire‑arm wounds so entry on the left wrist and palm besides two abrasions in the lower part of left fore‑arm. The story of motive was supported by Dost Muhammad (P. W. 9) as also by Muhammad Aslam (P. W. 7) and Saroo (P. W. .8). The petitioner had denied the prosecution story and had added that the deceased had been indulging in prostitution and people of shady character used to visit her, some of whom might have killed her. The Courts below, however, found the case established against the petitioner.
3. Learned counsel submits that as the gun recovered at the instance o the petitioner had not been connected with the crime and as its licence‑holder, i.e. Lal Khan, bad also not been produced, the High Court was right in holding that recovery was "not of much help." In regard to the oral' evidence, which was thus the mainstay of the prosecution, he submits that they story of motive was unbelievable because a boy of 16 as the petitioner then was, could not be expected to have asked for the hand of the deceased who was, according to the medical report, of about 24 years of age. It is also submitted that in fact the two ocular witnesses had not been present at the relevant time. In this connection it is pointed out that they had their fodder field some 8‑10 miles away from their house and they used to go there to fetch fodder. In this connection, reference was made to Dost Muhammad's statement in the cross‑examination where he had said: "Normally we go out to cut fodder after breakfast and the said fodder lasts for 24 hours." It is also pointed out that had Dost Muhammad been present at the spot, he would not let the petitioner escape unscathed. It also appears from the evidence of Dost Muhammad that he had been moving from one village to another and shifting his residence, too, accordingly. From this, it has been urged that Dost Muhammad was a person at the mercy of the local Zamindars and that as the evidence showed that the petitioner's father Channa had been challaned for the murder of Ahmad son of Hussain and had also been suspected of the murder of a son of the sister of Hafiz Sardara who both (Hussain and Hafiz Sardara) were big landlords of the village, they could have thus exerted their influence in getting the petitioner falsely implicated in the present case. It is lastly submitted that in any case considering the tender age of the petitioner, the extreme penalty was not deserved.
4. We feel that there is scope for re‑appraisal of the evidence in order to examine the points raised by learned counsel. We accordingly grant leave to appeal.
Leave granted.
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