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Criminal Petition for Leave to Appeal No. 116‑R of 1985, decided on 30th June, 1986.

(On appeal. from the judgment and order of Lahore High Court, Rawalpindi Bench, dated 27‑10‑1985 passed in Criminal Appeal No. 34 of 1983/Murder Reference 41 of 1983).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 203 & 307/34‑‑Sentence‑ Death‑‑Motive for crime being to avenge outrage of modesty committed by deceased on the sister of accused and question of family honour thus being involved‑‑Leave to appeal granted to consider question of sentence.‑‑[Sentence].

Kh. M. Yusuf Saraf, Advocate Supreme Court and Kowkab Iqbal, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 30th June, 1986.

‑‑Petitioner Abdul Rashid, alongwith his two brothers Mushtaq Ahmad and Sarwar acquitted accused were tried under sections 302, 307/34, P.P.C. by the learned Sessions Judge, Attock for committing the murder of Muhammad Siddique. The accused/ petitioner was condemned to death and a fine of Rs.20,000 in default, two years' R.I. under section 302, P.P.C.; and under section 307, P . P . C . he was sentenced to 10 years' R.I. and a fine of Rs .10, 000 in default, to undergo further R.I. for one year for causing injuries to Muhammad Aslam P.W. 10 vide judgment, dated the 15th January, 1983. Mushtaq Ahmad and Sarwar his co‑accused were, however, acquitted. Appeal filed by the accused/ petitioner and Murder Reference for confirmation of death sentence awarded to him, were placed before the learned Judges of the High Court who dismissed the appeal and confirmed the death sentence vide the impugned judgment, dated the 27th October, 1985.

2. According to the prosecution on the report (Exh. P.M./I) of Muhammad Aslam P.W., a case was registered with the Police Station, Pindigheb, District Attock against the accused /petitioner and his two acquitted‑accused prosecution story, given in the report, is that Muhammad Aslam and Muhammad Siddique were scalping stones in front of their Baithak on 16‑11‑1981 at about 10 p.m. when the accused/ petitioner and his two‑co‑accused named above came armed with pistols and Abdul Rashid the accused /petitioner fired at the deceased Muhammad Siddique who was hit on the right side of his head; while Mushtaq fired at him (the reporter) and hit him on right side of his back and thereafter Sarwar fired at him which hit him on his thigh. On this hue and cry Abdur Rahman, Mehar Muhammad and Mat. Saran Bano reached the spot and witnessed the occurrence.

3. Motive for the crime was stated to be that Mst. Irshad Begum wife of Muhammad Aslam P.W. 11 was criminally assaulted by Mushtaq the acquitted accused for which he was tried, convicted and sentenced to five years' R.I. In retaliation Mst. Mukhtiar Begum sister of Mushtaq acquitted accused brought a charge against Muhammad Siddique deceased and Muhammad Aslam deponent under section 354, P.P.C. Both were challaned, tried and convicted to one year R.I. each. Due to this background of family dishonour Abdul Rashid the accused /petitioner, Mushtaq and Sarwar, who are brothers inter se, killed Muhammad Siddique and injured Muhammad Aslam P.W. 11.

4. The learned counsel for the petitioner Khawaja M. Yusuf Saraf submitted that in view of the prosecution case that the occurrence was the result of involvement of family honour i.e. the modesty of the sister of the petitioner was outraged by the deceased and the injured P.W. Muhammad Aslam, therefore, it was a case where the question of sentence should have been the consideration at the first instance. He further contended that the prosecution evidence is highly interested and partial, therefore, no reliance can be placed on such quality of evidence.

We have gone through the evidence and the motive for the crime and would agree to this extent that the question of sentence needs consideration in this case. Therefore, the leave prayed for is granted.

M. Y. H. Leave granted.

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