ALI ZAMAN Versus STATE
This criminal appeal arose from the conviction of the appellant, Ali Zaman, for the murder of Shah Daraz, for which he was sentenced to life imprisonment under Section 302 of the Pakistan Penal Code 1860. The appellant challenged his conviction, primarily arguing that the eye-witnesses were interested parties being brothers of the deceased and that the incident occurred under grave and sudden provocation, thereby warranting a conviction under Section 304, Part I of the Pakistan Penal Code 1860 instead of murder. The Supreme Court of Pakistan examined the evidence, finding the eye-witnesses to be natural witnesses whose testimony was consistent and corroborated by medical evidence. Regarding the plea of grave and sudden provocation, the Court held that the appellant failed to establish the precise timing of the alleged provocation regarding his mother's injury or the interval between that incident and the firing. Consequently, the Court affirmed the conviction, ruling that the plea of provocation was unsubstantiated and that the sentence imposed was already lenient. The appeal was dismissed, upholding the lower court's judgment.
- Can the testimony of eye-witnesses be rejected solely on the ground that they are brothers of the deceased?
- What is the evidentiary requirement to successfully plead grave and sudden provocation under Section 304, Part I of the Pakistan Penal Code 1860?
- Are eye-witnesses who are related to the deceased considered natural witnesses if they were present at the scene of the crime?
- Section 302, Pakistan Penal Code 1860
- Section 304, Pakistan Penal Code 1860
1. GHULAM MUJADDID MIRZA, J.-- Ali Zaman son of Rub Nawaz Khan resident of Malik Mitha Khel, tehsil and district Bannu, was tried for the murder of Shah Daraz by Sessions Judge, Bannu. He was convicted under section 302 PPC and sentenced to life imprisonment and a fine of Rs.5,000 or in default to undergo one year's R.I., vide judgment dated 21-7-1979. He was also fined Rs.5,000 which was to be paid to the legal heirs of the deceased or in default to undergo 6 months' R.I. He filed appeal against conviction and sentence in the Peshawar High Court, that was dismissed on 26th November. 1980. Thereafter Ali Zaman petitioned to this Court through jail. IA Leave was granted to consider whether the appellant's case fell within the ambit of section 304, Part I, P.P.C. on the plea of grave and) sudden provocation.
2. The incident in which the appellant was involved took place on 29th May, 1978, at morning prayer time in the area of Malik Mitha Khel. Report Exh. P.A. was lodged on the same day by Gul Naib Khan at 6 0'Clock in the morning at police station Mandan. It was recorded by ASI Nek Nawaz Khan (PW 8). The allegation was that the appellant while standing in the Morcha of his house armed with a Topak fired at Shah Daraz. He was hit in the chest and died at the spot. The motive was some dispute between the children and the females of the parties.
3. The appellant denied the allegation and submitted that the two eye-witnesses who are brothers of the deceased were interested witnesses and that he has been falsely involved in this case.
4. Prosecution examined Gul Naib Khan and Mushtar Ali Khan as the eye-witnesses. Both are brothers of the deceased and are also related to the appellant who is their cousin. Gul Naib Khan's version was that he alongwith his brother Shah Daraz had gone to the village mosque for morning prayer. After the prayer they were coming to their house. When they reached near the house of Bahadur Khan they saw Ali Zaman standing in the Morcha of his house. Gul Naib Khan told his brother Shah Daraz to take shelter. Ali Zaman fired at Shah Daraz. He was hit. Shah Daraz fell down. He died at the spot.
5. According to Gul Naib Khan the incident was seen by Mushtar Ali Khan and widow of Shah Daraz.
6. The witness also deposed about the motive which has been referred to above.
7. The aforesaid statement of Gul Naib Khan is fully corroborated by his brother Mushtar Ali Khan. He too blamed the appellant for the murder of their brother by firing with his gun from his house standing in the Morcha.
8. Dr.Khalid Mahmood Khan, Medical Officer, who conducted the post‑mortem examination found three fire‑arm injuries; two were inlet wounds third was an outlet. The doctor was of the view that death was instantaneous.
9. Learned counsel for the appellant submitted that both the eyewitnesses are brothers of the deceased. Their evidence as such was not independent, hence it could not be relied upon.
10. This contrition has no force. Keeping in view the time and the place from where they were coming and were on their way to their house they are the natural witnesses. The mere fact that they are brothers of the deceased is no ground either to believe or reject their testimony specially when their evidence was consistent.
11. The next point urged was that on the same very day at the same time another incident took place and that was that the mother of the appellant, namely, Mst. Hukam Jana was injured with Lor by Gul Naib Khan.
12. According to the learned counsel, this infuriated the appellant as such he was provoked as a result of which he resorted to firing, hence the offence would not be murder. The appellant is, therefore, entitled to the concession in the quantum of sentence on the plea of grave and sudden provocation. In this connection learned counsel drew our attention to the F.I.R. lodged by Mst.Hukam Jana. But we do not think that this contention has any force because the learned counsel has not been able to establish the Drecise time when the incident pertaining to the injury of the mother of the appellant took place as well as the time which intervened between that incident and the firing by the appellant, hence we de not think that the case of the appellant falls within the ambit of section 304 Part‑I, P . P . C . Even otherwise we are of the view that the appellant has already been dealt with leniently in awarding the sentence. There is no merit in this appeal which is hereby dismissed.
13. M.I./A‑245/S Appeal dismissed.