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Criminal Petition No. 141‑R of 1982, decided on 16th April,1986.

(From the judgment of the Lahore High Court, Rawalpindi Bench, dated 5‑7‑1982, passed in Criminal Appeal No. 857 and Murder Reference No.203 of 1980).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Leave to appeal, grant of‑‑Safe administration of criminal justice‑‑Sentence‑‑Conviction under 5.302, P.P.C. and sentence of death, impugned‑‑Time of lodging F.I.R. disbelieve d‑‑Co‑accused given benefit of doubt and acquitted‑ Testimony of witnesses not corroborated by medical evidence‑‑Role attributed to petitioner not proved beyond reasonable doubt‑‑Sudden occurrence‑‑No serious enmity between parties‑‑Leave to appeal granted to ensure safe administration of criminal justice and to consider question of sentence.

Sh. Zamir Hussain, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing: 16th April, 1986.

‑Muhammad Afzal, aged 62 years, and his son Muhammad Khan, aged 26 years, both convicted under section 302 P. P. C. , one of them Muhammad Afzal on one count and Muhammad Khan on two counts, and sentenced to death, seek leave to appeal against the judgment of the Lahore High Court, dated 5‑7‑1982, whereby the sentence of death was confirmed.

2. Muhammad Afzal petitioner had three other brothers, the deceased Shah Nawaz married to Mst. Moondan, the complainant, Mehr Khan, already dead, his widow being Mst. Khatoon P.W.8, and Ahmad Khan, also married to one other Mst. Khatoon. They had privately partitioned their property leaving a path which was left for the joint use by them. According to the prosecution case, Muhammad Afzal and his family objected to the use of this path by Shah Nawaz and his family and used to place thorny bushes on it to deprive them of its use and to keep it exclusively for their own use. Shah Nawaz and other members of his family used to remove the branches and bushes and used the passage. On the 10th of May 1979 one such event had happened in which Shah Nawaz and his son Yaqoob had removed the branches and the bushes. On this Muhammad Khan armed with a shotgun, Muhammad Afzal with a Lathi and his two daughters Mst. Sharif Khatoon and Mst. Hajran Bibi, went to the adjoining house of Shah Nawaz to teach their a lesson. Mst. Moondan P.W.5 tried to pacify but was attacked by Mst. Hajran and Mst. Sharif who pulled her hair and beat her. Shah Nawaz was fired at by Muhammad Khan and killed. Yaqoob ran to the house of Ahmad Khan and bolted himself inside. Mst. Sharif Khatoon and Mst. Hajran Khatoon brought Vohalas and made a hole in the roof of the room in which Yaqoob had taken refuge. They brought kerosene oil which was poured by .Muhammad Afzal and the room was set on fire. Yaqoob died of burns and suffocation due to smoke. Shah Nawaz died of the firearm injury. The report was lodged at the police station at 10.30 p.m.

3. The trial Court did not believe the lodging of the report of the occurrence the same night at 10.30 p.m., but considered it likely that the report was lodged next morning. Nevertheless, on the statements of Mst. Moondan P.W.5, Fateh Khan P.W.6 ‑and Mst. Khatoon Bibi P.W.8 held the prosecution case proved, held Muhammad Afzal alongwith Muhammad Khan and the two ladies guilty of the murder of Yaqoob while Muhammad Khan alone was held guilty of murdering Shah Nawaz. Muhammad Afzal and Muhammad Khan were sentenced to death and the two ladies to life imprisonment besides the fine imposed on all of them.

4. On appeal and while seized of the question of confirmation of the death sentence, the learned Judges held that "we are not satisfied that the F.I.R. in this case was recorded at 10.30 p.m. on the very evening succeeding the occurrence." The learned Judges also did not believe the role attributed to Mst. Hajran and Mst. Sharifan and giving them benefit of doubt acquitted them. On the conclusion that the occurrence had not taken place at the instance of only one accused, the participation of Muhammad Afzal was considered likely. Their appeals were, therefore, dismissed and the sentences awarded to them were confirmed.

5. The learned counsel for the petitioner contended that Muhammad Afzal was attributed a Lathi but no Lathi injury on any one was found. He had not used it. The role attributed to him with regard to pouring down of kersone oil and setting the room on fire was dependent on the role attributed to Mst. Hajran and Mst. Sharifan and if that part was rendered doubtful then the role of Muhammad Afzal could not be held to be proved beyond reasonable doubt. It is further contended that it was a case of sudden occurrence as there was no serious enmity between the parties and was aggravated on account of quarrel between the women folk, In such a background of events, the sentence of death was not called for.

6. We consider that the points raised by the learned counsel for the petitioners do require consideration and further examination in order to ensure safe administration of criminal justice. Hence, leave to appeal is granted.

M. I. ‑‑‑‑‑ Leave granted.

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