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Jail Petition for Leave to Appeal No.83‑R of 1978, decided on 12th March, 1984.

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art.185(3)‑‑Penal Code (XLV 1860), Ss. 302 & 379‑‑Petition for leave to appeal‑‑Limitation‑‑Petition barred by 680 days‑‑Delay condoned to enable examination of case on merits in view of long sentence. ‑‑[Sentence‑‑Condonation of delay‑‑Limitation].

(b) Constitution of Pakistan (1973)‑‑

‑‑‑Art.185(3)‑‑Penal Code (XLV of 1860), Ss.302 & 379‑‑Murder‑‑Theft ‑‑Evidence‑‑Solitary eye‑witness in case‑‑Finding of Courts below that testimony of solitary eye‑witness could safely be relied upon particularly in absence of his enmity with accused‑‑Conviction of petitioner on basis of such evidence‑‑Held, un-exceptionable‑‑Petitioner, however, allowed benefit of S. 382‑B, Criminal Procedure Code (V of 1898)‑‑Leave to appeal refused.

‑ The petitioner, herein, Muhammad Bakhsh alias Muhammadi (accused) was tried by the learned Sessions Judge, Muzaffargarh under sections 302 and 379, P.P.C. for committing the murder of Ahmad Bakhsh (deceased) by firing with a revolver at his face from the front side on 6‑11‑1972 at about 10.00 a.m., in the area of Village Khiara Karor Nashaib, Police Station Karor, Tehsil Leiah, District Muzaffargarh and also for committing the theft of the mare on which the deceased was riding at the time of occurrence. He was found guilty on both counts and was accordingly convicted under section 302, P.P.C. and section 379, P.P.C. but was awarded a sentence for imprisonment for life under section 302, P.P.C. and one year's R.I. under section 379, P.P.C. vide the judgment dated 29‑1‑1975 whereby the said two sentences were ordered to run concurrently.

On appeal (Criminal Appeal No.200 of 1975) filed through the Jail authorities, Mr. Justice Aslam Riaz Hussain, then a Judge of the Lahore High Court, Lahore vide the judgment dated 25‑6‑1976 maintained the convictions and sentences of the petitioner with the observation that the learned Sessions Judge in awarding the sentence of life imprisonment to the petitioner had dealt with him very leniently although it was a clear case for awarding the capital punishment and as such the learned Sessions Judge by not doing so in this case had evaded his responsibility as observed by the Supreme Court in the reported case Muhammad Sharif etc. v. The State P L D 1976 S C 452.

The petitioner still not feeling satisfied has moved this petition for leave, to appeal through Jail. The petition is barred by 680 days but the limitation is hereby condoned to enable examination of the case on the merits, in view of the long sentence.

The convictions and sentences passed against the petitioner were based on the testimony of a solitary eye‑witness Murid Hussain (P.W.9) supported by wajtakkar witness of Naza (P.W.10) and further corroborated by the medical evidence and the motive. The motive ascribed for this murder was dispute over the possession of some land between Khadim Hussain, Rabnawaz and Ramzan on the one side and Ahmad Bakhsh (deceased) on the other and the petitioner being a relation of Khadim Hussain etc., had killed Ahmad Bakhsh (deceased) due to his (deceased) enmity with Khadim Hussain etc.

After having perused the judgments of the Courts below, the grounds taken by the petitioner in his petition for leave to appeal and also the evidence led at the trial, I feel satisfied with the finding of the Courts below that the testimony of the solitary eye‑witness could safely be relied upon particularly when there was no suggestion by the defence side that the said eye‑witness was in any way inimical towards the petitioner or that he had any direct motive to implicate the petitioner falsely in this case. No exception can, therefore, be taken against the convictions of the petitioner. He has already been given the lesser sentence. However, in all the circumstances the petitioner may be given the benefit under section 382‑B of the Cr.P.C., in computing the period of sentence which he has yet to serve

In my opinion this petition, with the above modification, should be dismissed.

The petition is dismissed subject to grant of the benefit of section 382‑B, Cr.P.C. in the computation of sentence.

S Q Petition dismissed.

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