TEHMAS KHAN Versus ZOHRA ARSHAD

ORDER

ASLAM RIAZ HUSSAIN, J. --Tehzeeb-ul-Hassan Shah petitioner was tried alongwith two others for the murder of Muhammad Ahmad.

2. The motive for the offence is stated to be that about 10/12 days prior to the occurrence Muhammad Ahmad (deceased) gave kicks and fist blows to the accused-petitioner. In order to avenge that insult the petitioner and his co-accused attacked the deceased.

3. The prosecution version briefly stated is that on 2-9-1984 at about 6.45 p.m. Riaz Ahmad complainant (P.W.5) was present in his house, whereon his son Muhammad Ahmad (deceased) was proceeding from the complainant's house to his own house situated at a distance of two killas. Haider Shah and Zawar Shah co-accused both armed with guns, and the petitioner armed with a pistol emerged all of a sudden and way-laid him near the eastern wall of the house. Haider Shah and Zamir Shah co-accused raised lalkara that he should not be spared. The petitioner fired twice with his pistol hitting the deceased on his chest and belly. The deceased fell down. On his hue and cry, Niaz Ahmad (P.W.5), 4afiq alias Kazi (P.W.6) and Rafiq son of Sardara (given up) reached the spot and witnessed the occurrence. All the three accused decamped from the spot.

4. Relying on the prosecution evidence the learned trial Court convicted the accused-petitioner and sentenced him to death and a fine of Rs.10,000. His appeal before the High Court failed and the sentence of death awarded to the petitioner was confirmed by the High Court.

5. The learned counsel for the petitioner contended that after the occurrence the accused voluntarily appeared before the police officer and gave a counter-version of the occurrence which has been admitted by the investigating officer, Sher Muhammad (P W.7). in cross-examination. It, inter alia, reads:-

"On my first visit to the spot, 50/60 persons appeared before me in relation to the innocence of Zamirul Hassan and Haider Shah. A few of them were of the view that Tahzeebul Hassan was, in fact, attacked by the deceased and his companions. All the three accused took up the same plea before me when I interrogated them. Tahzeebul Hassan further stated that he was coming with milk load when he was attacked and resultantly the milk fell on the ground."

Reliance was placed on Hasil v. Emperor 198 1 C 441, in which it was inter alia, observed:-

"In cases where two versions of the same incident are being put forward, it is often of the greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible opportunity, and, therefore, an accused person should not be deprived of the right to make use of such a statement, merely because to a certain extent it goes against him."

According to the learned counsel this showed that the deceased was the aggressor.

He further pointed out that the incident took place on 2nd of July 1984, and the learned trial Judge recorded the age of the accused as 17 years on 16-9-1985; therefore, at the time of the incident the accused was less than 16 years old and as such it was not a case where death sentence was called for.

6. After hearing the learned counsel we are of the view that it is a fit case for grant of leave to appeal to consider whether the well established principles of appreciation of evidence in criminal cases were observed in the present case.

Leave is, therefore, granted for the said purpose.

S. Q./T-19/S ??????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted.