SADIQ MUHAMMAD Versus HASSAN BAKHSH

ORDER

ZAFFAR HUSSAIN MIRZA, J. --Hassan Bakhsh son of Muhammad Amir, respondent aged 15/16 years was sentenced to death under section 302, PPC by the learned Sessions Judge, Bahawalpur, upon the charge of intentionally causing the death of Muhammad Yar deceased son of Sadiq Muhammad.

2. The prosecution case rests primarily on the ocular testimony of Bashir Ahmad (P.W.8), maternal uncle of the deceased Muhammad Ramzan (P.W.9) paternal uncle of the deceased and Ramzan son of Paire Khan (P.W.10) a close relation of the petitioner. The supporting evidence consists of recovery of .12 bore gun at the instance of the respondent and a crime empty secured from the scene of occurrence. In the F.I.R. the motive for the crime mentioned was that Muhammad Amir, the father of the respondent had originally promised to marry his daughter Mst. Taj Mai with the deceased and therefore the deceased used to live in his house. According to the prosecution, the deceased developed illicit liaison with Mst. Taj Mai, upon learning which fact, the petitioner restrained the deceased from visiting his house but the latter did not relent and continued his visits to his house. Having suspected the illicit relationship between the deceased and Mst. Tej Mai, respondent killed the deceased by firing a shot from his gun while the deceased was carrying a bundle of grass on his head.

3. The respondent admitted having fired and killed the deceased but he gave his own version of the occurrence. According to him on the day of occurrence he came to his house and found Muhammad Yar deceased and his sister Mst.Taj Mai in compromising position. The respondent having surprised the amorous couple, the deceased took to his heels. The respondent who was carrying a gun in his hand, lost control over himself on account of grave and sudden provocation caused to him on surveying the scene, chased the deceased and killed him with gun shot.

4. The trial Court rejected the version of the respondent and accepted the evidence produced by the prosecution, holding that the respondent was guilty of murder. However, in appeal and upon reference for confirmation of death sentence the learned Judges of the Division Bench of the High Court, upon a closer scrutiny of the statements of the three witnesses found their testimony unworthy of credit. On the contrary there were circumstances appearing in the evidence which supported the defence version. The learned Judges held that the offence committed by the respondent was culpable homicide not amounting to murder covered by Exception 1 of section 300, P.P.C. The conviction of the respondent was accordingly altered from one under section 302, P.P.C. to one under section 300-Part I, P.P.C. In consideration of the young age of the respondent and the hurt caused to his sense of honour, he was sentenced to three years' R.I.

5. In support of this petition for leave to appeal learned counsel contended that the learned judges of the High Court had miss-appreciated the evidence in upsetting the conviction of the respondent under section 302, P.P.C. We are, however, not impressed by this contention. We find that in a detailed evaluation of the evidence of the three eye-witnesses, the learned Judges of the High Court on sound principles of appreciation of evidence, have come to the conclusion that the prosecution had failed to substantiate the charge of murder against the respondent. In the first place all the three eye-witnesses are close relations of the deceased and the discrepancies pointed out by the High Court in their testimony and with the earliest version in the F.I.R. rendered their testimony insufficient to sustain the charge without material corroboration which was lacking in this case. On the motive Sadiq Muhammad petitioner deviated from the version given in the F. I. R., according to which the respondent was supposed to have committed the murder on account of suspicion of illicit connection between his sister and the deceased. Whereas in the evidence he made material deviation from this version and stated that Muhammad Amir did not want to give the hand of his daughter to Muhammad Yar deceased and therefore he got the latter murdered. He denied that the respondent had suspected illicit liaison between his sister and the deceased. The other important feature developed subsequently was the recovery of a bundle of grass said to have been carried by the deceased, in order to pre-empt the respondent's defence that he came upon the couple suddenly in his house. No mention was made of the fact that the deceased was carrying a bundle on his head in the F.I.R. According to the version of the eye-witnesses the respondent had fired one shot at the deceased and the distance was not disclosed.

The medical evidence disclosed at least two shots having been fired at the deceased. This was clear from the fact that as to the entrance wounds some of the pellets had charring around the wounds whereas the rest were clean entrance wounds. The wounds which bore charring were obviously the result of a shot fired at close range, while the other from a distance more than 10 feet away. This contradiction between the evidence of the eye-witnesses and the medical evidence reacted adversely upon the truthfulness of their testimony and made their presence doubtful. Bashir Ahmad (P.W.8) in his evidence excluded the presence of Muhammad Ramzan (P.W.9). He has also categorically stated that no article of the deceased was taken into possession from the spot. An important admission made by this witness put the occurrence in its proper perspective and supported the defence plea. He stated that Mst.Taj Mai was also seen running away at the time of occurrence from the back side of the house of Muhammad Amir. The medical evidence also lends support to the defence version as the injuries sustained by the deceased were found mostly located on the back side which indicated that the deceased was fired at when he was attempting to run away. Finally the fact that the deceased was killed in the close proximity of the house of Muhammad Amir the father of the respondent also strongly supports his plea.

6. For the foregoing reasons the view taken by the learned Judges of the High Court is unexceptionable and this petition is accordingly dismissed.

S.Q./S-84/S ???????????????????????????????????????????????????????????????????????????? Petition dismissed.