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Criminal Petition for Special Leave to Appeal No. 310 of 1981, decided on 5th February, 1983.
(Against the order dated 23rd May, 1981 of the Lahore High Court in Criminal Appeal No. 960/78 and Murder Reference No. 226 of 1978).
‑‑ Art. 185 (3) read with Penal Code (XLV of 1860), S. 302‑. . Murder‑Evidence‑Brother of deceased repudiating his own first information report lodged by him on basis of statement of eye witnesses‑Motive not consistently brought out in evidence‑Leave to appeal‑Granted to appraise ocular evidence as well as evidence of recovery and motive in order to ensure safe administration of cri minal justice and with a view to ensure that prosecution case was established beyond any reasonable shadow of doubt.‑[Evidence].
S. M. Zafar, Senior Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioner.
Mian Badiuzzaman, Senior Advocate Supreme Court and Sh. Ejaz Ali, Advocate‑on‑Record for the State.
Date of hearing : 5th February, 1983.
‑Mujahid Hussain convicted under section 302, P. P. C. and sentenced to death and fine for the murder of one Abbas seeks leave to appeal against the judgment of the Lahore High Court dated 23rd May, 1981 whereby his appeal was dismissed and the death sentence confirmed.
On the evening of 18th October, 1975 Abbas was murdered near Gulistan Cinema in Sheikhupura for which his brother Muhammad Ishaq (P. W. 9) charged the petitioner alongwith three others. However, Mujahid, the petitioner, and one Muhammad Yunus were tried for this murder. Mujahid was convicted and sentenced while Muhammad Yunus was acquitted.
The learned counsel for the petitioner has contended that there is controverted evidence with regard to motive for the occurrence. The first information report has been repudiated by the maker thereof. The eye‑witnesses of the occurrence‑Ibrahim (P. W. 7) and Ismail (P.W. 6) do not appear to be natural witnesses of the occurrence. The recoveries of the incriminating articles should not be believed and the very fact that no effort was made to arrest the petitioner till 22nd of October, 1975 casts serious doubt on the credibility of the prosecution case.
We find that this is a fit case for grant of leave to appeal because Muhammad Ishaq who happened to be the brother of the deceased an lodged the report on what was stated to him by the two eye‑witnesses has repudiated his own first information report. The motive has not been consistently brought out in the evidence. In ‑order to ensure safe administration of criminal justice it is necessary to re‑appraise the ocular evidence as well as the evidence of recovery and motive with a view to l ensure that the prosecution case has been established beyond any reasonable shadow of doubt. Leave to appeal is, therefore, granted.
Leave granted.
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