WALAYAT Versus STATE

ORDER

M.S.H.QURAISHI, J.- -In this case Zaman, the deceased, had died of fire-arm injuries. Three of the accused are said to have fired, namely, Walayat petitioner, Sadiq and Nazir. Nazir later died during the trial. The trial Court held that "the eye-witness had stated that the shot fired by accused Walayat had hit the deceased but it is not clear that the fire made by Sadiq accused had also actually hit the deceased." The trial Court, therefore, while holding both Walayat and Sadiq guilty of the murder came to the view that the award of capital punishment to Sadiq was not called for. Accordingly while awarding death penalty plus fine to Walayat, it awarded the] lesser penalty of life imprisonment plus fine to Sadiq.

2. On appeal the High Court came to the view that the participation in the occurrence of Sadiq appellant is not free from doubt. Even if he had fired at the deceased about which we are not certain, his shot might have not hit the deceased." The High Court, therefore, gave Sadiq the benefit of doubt and acquitted him while maintaining the conviction and sentence of the petitioner upon the view that "he had fired the first shot through his gun which hit the deceased on his chest. This is the shot which proved fatal."

3. In the F.I.R., Hakim Ali, complainant, had attributed the first shot to the petitioner which, according to him, had been aimed straight and had hit at the chest, while Nazir and Sadiq had fired subsequently. He had, however, stated before the committing Court that all the three had fired at the deceased "simultaneously" whereafter the deceased had fallen. Akbar Ali, another eye-witness, had similarly stated before the committing Court, that the three accused had fired simultaneously. Rajay Khan the third eye-witness staled that "Walayat had fired at the deceased and that Sadiq also fired at once which hit Zaman who fell down. After the fall of Zaman, Nazir also fired at him which, however, did not hit Zaman". It is, therefore, contended by learned counsel that on the basis of the evidence on record, there was room for doubt as to who had fired first and whose shot had first hit the deceased. He also submits that if the first shot, as was attributed to the petitioner, had hit the deceased at the chest, the latter would not have been in a position to remain standing for any length of time to be able to receive the subsequent shots. The point raised requires consideration. We accordingly allow the petition and grant leave to appeal.

S.Q./W-14/S Leave granted.