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Criminal Petition for Special for Leave to Appeal No. 448 of 1981, decided on 18th November, 1985.
(From the judgment of the Lahore High Court, Lahore, dated 27th October, 1981 in Criminal Appeal No. 931 and Murder Reference No. 229 of 1979).
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Conviction and death sentence challenged‑‑Eye‑witnesses account and medical evidence not corroborating ocular account given by complainant‑‑Leave to appeal granted to consider question of motive and manner in which murder was committed, together with other connected features of case.
Nemat Khan, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing: lath November, 1985.
‑.This is a petition for leave to appeal from the judgment of the Lahore High Court, dated 27‑10‑1981; whereby death sentence awarded by the Sessions Judge, Sargodha, to the petitioner under section 302, P.P. C. for causing the murder of Sohrab, was confirmed and his appeal dismissed.
2. The presecution case briefly stated is that the petitioner and the deceased had fallen out on account pf the petitioner's cattle having trespassed into the field of the deceased who had abused him. This being the motive, on the night of occurrence, it is stated, when a lantern was alight the petitioner came and fired at the deceased as a result of which the death took place. The prosecution has relied on the recovery of gun which is inconsequential because no empty was recovered from the spot. In addition reliance has been placed on the eye‑witness account given by complainant Mutalli and two Wajtakkar witnesses. The petitioner's plea was of denial which having been rejected, he was convicted for the offence of murder and sentenced as noted above. The High Court having dismissed the appeal, petitioner has now sought leave to appeal.
3. Learned counsel has contended that the Wajtakkar evidence is of no value in the circumstances of this case as it does not in reality corroborate the ocular account given by the complainant Mutalli. He has also contended that it is a weak type of evidence. Learned counsel drew our attention to the so‑called contradiction between the medical evidence and the ocular account given by the complainant: while the doctor stated that the shot was fired from the front‑‑according to the learned counsel's readings of the testimony of the complainant, it was fired from the back.
4. Although it is not possible readily to accept the interpretation of the testimony of the complainant by the learned counsel, in this behalf, it will be of advantage to look into the Urdu record to clarify the position. The argument which, inter alia, however, needs more serious consideration, advanced by learned counsel in the end was that according to the Inquest Report the body of Sohrab (deceased) was found in naked position and that his shoes were also not available. That being so, the motive and the entire prosecution story about the manner in which the murder was committed would undergo change and be covered by shadow of doubt. It was also suggested that the complainant did not see the occurrence otherwise these circumstances would not have crept in the case.
5. After hearing the learned counsel, we consider it a fit case for examination of the question of motive and the manner in which the murder was committed together with other connected features of the case. Leave to appeal is accordingly granted.
M.I Leave to appeal granted.
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