BARKAT ALI Versus KARAM ELAHI ZIA
This matter arises from petitions seeking leave to appeal against the judgment of the High Court, which had set aside the conviction and death sentence of the respondent for the murder of his wife under Section 302 of the Pakistan Penal Code and acquitted him. The core legal question involves determining whether the circumstantial evidence presented by the prosecution—including the falsity of the respondent's explanation, his absence from the crime scene, physical evidence relating to footprints and car brakes, and the implausibility of the dacoity plea—was sufficient to sustain a conviction. The Supreme Court held that the contentions raised regarding material circumstances overlooked by the High Court required detailed examination. Consequently, the court granted leave to appeal in both petitions and directed the issuance of a warrant of arrest against the respondent. The key principle laid down is that where a case rests on circumstantial evidence, appellate review must carefully assess all material links and explanations offered by the accused to determine guilt.
- Whether circumstantial evidence is sufficient to sustain a conviction for murder under Section 302 of the Pakistan Penal Code?
- Can leave to appeal be granted against the acquittal of an accused by the High Court?
- Does the failure of dacoits to remove valuables from the scene negate the plea of innocence based on a dacoity attack?
- Section 302, Pakistan Penal Code 1860
ORDER
SAAD SAOOD JAN, J. --Major Karam Elahi Zia, respondent was convicted by an Additional Sessions Judge at Lahore of an offence under section 302 of the Pakistan Penal Code for causing the death of his wife, Mst. Sameena Balqees. He was sentenced to death and directed to pay a fine of Rs.20,000. On appeal and reference, the High Court set aside his conviction and sentence and acquitted him of the charge against him. The State as well as the father of Mst.Sameena Balqees, by separate petitions, seek leave to appeal from the judgment of the High Court.
2. The respondent was serving as an officer in the Army. He was a resident of Kasur. He married the deceased in 1969 and there were three issues of the marriage, According to the prosecution the respondent became involved with a girl from Kasur and for that reason hatched a plan to get rid of the deceased.
3. The occurrence took place on the night between 30 and 31-12-1976 on the Lahore-Kasur Road, near village Jhulkey, at a distance of about four miles from Police Station Kahna. According to the prosecution, the respondent was driving in his car from Lahore to Kasur together with the deceased and his brother, Amjad Yousaf, after collecting his service card which he had inadvertently dropped in the house of Mst. Hameeda (P.W.9) on the previous day. At 10-15 p.m. while he was passing by the village Jhulkey he stopped the car on the pretext that the brakes of the car were not working properly. He sent his brother to Lahore by a passing bus to fetch some brake-oil. While his brother was away, he shot the deceased with a revolver and then went away to dispose of the weapon. When Amjad Yousaf returned with the brake-oil he found his brother missing and the deceased lying unconscious in an injured condition in the car. Struck with panic Amjad Yousaf went to the Police Station Kahna and there lodged a report at 1-15 a.m. During the absence of Amjad Yousaf the respondent returned to the scene and lied down nearing the car after inflicting some injuries on his person. The deceased died a few hours later without regaining her senses.
4. The respondent pleaded not guilty to the charge against him. He denied that he had killed his wife and alleged that while he was sitting in the car some dacoits came, shot his wife and assaulted him; as a result he became unconscious. He further alleged that he had been falsely implicated on account of dishonest conduct of the investigating officer and the suspicion of the relatives of his wife. He did not produce any evidence in his defence.
5. The case against the respondent rested entirely upon circumstantial evidence. The learned trial Court found that the circumstances surrounding the death of the deceased satisfactorily established that it was he who had killed the accused; accordingly, it convicted him of the offence under section 302 of the Pakistan Penal Code. However, on appeal, the High Court took a contrary view and acquitted him.
6. In support of these petitions, it is urged that the High Court has not noticed some material circumstances which clearly show that it was the respondent who was responsible for killing the deceased. It is stated that the explanation given by the respondent for visiting Lahore on the evening immediately preceding the occurrence has been proved to be false. Reference has also been made inter alia to the absence of the respondent from the spot when his brother returned with the brake-oil from Lahore. It is pointed out that footprints of the respondent alone were found at the spot from where the deceased was shot at. It is alleged that the fact that no valuables including the gold ornaments of the deceased were removed from the scene of occurrence negatived the plea of the respondent that the dacoits were responsible for the occurrence. It is also pointed out that the brakes of the car when examined on the next morning were found to be in working order. It is further contended that the High Court was not right in holding that the investigating officer had been dishonest in inquiring into the facts of the case.
7. The contentions raised in support of these petitions require examination. Leave to appeal is granted in both the petitions. The District Magistrate is directed to issue warrant of arrest against the respondent.
S.Q./B-32/5 Leave granted.