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Jail Petition No. 58‑R of 1984, decided on 28th October, 1985.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S.302/34‑‑Presence of prosecution witness at scene of occurrence requiring to be carefully examined as he had given no reason for his presence there Accused boldly sticking to their confession and maintaining that they killed deceased/intruder on account of grave and sudden provocation Question whether conviction of accused under S. 302/34, P.P.C. was sustainable in circumstances of case deserving consideration on principles enunciated by Supreme Court for safe administration of justice and further question whether accused's plea of grave and sudden provocation was rightly rejected by High Court on evidence on record also requiring examination‑‑Leave granted to examine questions.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S.302/34‑‑Petition for leave to appeal‑‑Limitation‑‑Petition barred by time‑‑Accused taking plea that copy of judgment was furnished to them late‑‑Delay condoned.

The petitioners seek to challenge their convictions under section 302/34, P.P.C, for the murder of one Muhammad Rafiq on 9th October, 1981. They were found guilty by the trial Court, convicted and sentenced to life imprisonment alongwith fine. Their appeal has been dismissed and their convictions maintained by a division bench of the Peshawar High Court.

2. The occurrence is said to have taken place in the house of the petitioner at about 1‑45 a.m. The motive for the murder, according to the prosecution, was suspected illicit relations between the deceased and Mst. Mahfooz Bibi the wife of petitioner Said Khan, who was also tried as a co‑accused but was acquitted by the trial Court. There was only one eye‑witness Zarin (P.W. 10). Another important piece of evidence on which reliance was placed was the judicial confession of petitioner Said Khan, dated 14th October, 1981, made after four days of his arrest. Support was also sought from the evidence of recoveries. A blood‑stained axe, clothes of the accused and a shirt of Mst. Mahfooz Bibi. A .12 S.B. shot gun was recovered from the house of petitioner Aurangzeb but no empties were secured from the spot. On post‑mortem examination deceased was found to have suffered two fire arm injuries and five injuries within a sharp cutting weapon. The dead body of the deceased was secured from the kitchen of the house of the petitioner. The acquitted co‑accused Mst. Mahfooz Bibi also made a judicial confession.

3. According to the High Court there were two versions of the incident on record, one disclosed in the confessions which remained unretracted at the trial, and the other furnished by the sole eye‑witness Zarin. Petitioner Aurangzeb is the brother of Mst. Mahfooz Bibi and according to the confessional statement of petitioner Said Khan, he had come home to take his wife as it was Eid‑ul‑Azha. At night time while the two petitioners were sleeping in the courtyard of the house and Mst. Mahfooz Bibi was sleeping inside the room alone, in the middle of the night they heard the cries of the latter saying that some one was trying to untie her trousers. On this alarm raised by Mst. Mahfooz Bibi the petitioners woke up and saw a person running out of the room. Thereupon petitioner Aurangzeb fired with the gun and petitioner Said Khan gave him axe blows. The intruder was subsequently recognized to be deceased Muhammad Rafiq. In the confession the accused person raised the plea of grave and sudden provocation.

4. On the other hand the version given by the sole eye‑witness Zarin P. W., who is a close relation of the deceased, was that he went to his cattle shed alongwith the deceased at Khuftan Qazawella. Petitioner Said Khan came over and requested the deceased to accompany him for slaughtering his goat which was dying. On this the deceased went alongwith him to his house, but after sometime he heard some noise and upon entering the house saw petitioner Said Khan and Mst. Mahfooz Bibi dragging the deceased while petitioner Aurangzeb fired a shot at him which hit the deceased. Subsequently this witness was threatened to go outside the house and when he came out he heard the report of the second shot. The learned Judges accepted the testimony of this sole witness, and rejected the plea of the petitioner that they had killed the deceased on account of grave and sudden provocation. In the final analysis the learned Judges placed reliance on the testimony of this witness and sought corroboration from the confession.

5. On perusing the record, it appears that Zarin P.W. did not witness the deceased being inflicted any injury with a sharp cutting weapon. His presence at the scene of occurrence and indeed his own cattle shed, requires to be examined carefully, as he has assigned no reason for being present in his cattle shed at that unearthly hour. The question, therefore, is whether his testimony is that of a chance witness. On the other hand petitioner Said Khan has boldly stuck to his confession and has maintained that they had killed the intruder on account of grave and sudden provocation. It seems to me that the question whether the conviction of the petitioners under section 302/34, P.P.C. is sustainable, in the circumstances of this case deserves consideration on the principles enunciated by this Court for safe administration of justice. The further question is whether the petitioners' plea of grave and sudden provocation was rightly rejected by the High Court on the evidence on record.

6. The petition is barred by 32 days but as the plea of the petitioners is that the copy of the judgment was furnished to them late I would condone the delay. In my opinion this is a fit case for grant of leave to appeal.

‑I agree.

Leave to appeal is granted condoning the delay.

M.Y.H. ‑‑‑‑‑ Leave granted.

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