IMTIAZ and anothers vs THE STATE
This matter involves two petitions for special leave to appeal against a Lahore High Court judgment regarding a conviction under Section 302 of the Pakistan Penal Code 1860. The petitioner was convicted of murder, though his sentence was reduced from death to life imprisonment by the High Court. The core legal question was whether the prosecution proved the occurrence as alleged—that the deceased was shot in a village square—or if the defence version, claiming the deceased was shot while trespassing inside the petitioner's house, was credible. The Supreme Court noted that the absence of drag marks on the deceased's body, despite the prosecution's claim that the body was dragged over a hundred yards, significantly undermined the prosecution's narrative and supported the defence version. Consequently, the Court granted leave to appeal to the petitioner, finding the conviction potentially unsupportable. Regarding the complainant's petition for the restoration of the death sentence, the Court refused it, holding that the deceased's prior seduction of the petitioner's sister provided a motive that rendered the death penalty inappropriate.
- Does the absence of physical evidence, such as drag marks, contradict a prosecution narrative involving the movement of a body?
- Is the seduction of a family member a relevant factor in mitigating a sentence of death for murder?
- Can a conviction under Section 302 of the Pakistan Penal Code 1860 be sustained if the prosecution's version of the occurrence is contradicted by physical evidence?
- Section 302, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
ORDER
' SAAD SAOOD JAN, J.---These are two petitions for special leave to appeal from the judgment dated 28-7-1991 of the Lahore High Court.
2. Imtiaz, petitoner in Cr. P. 344-L of 1991, was convicted by the Additional Sessions Judge, Faisalabad, on the charge under section 302, Pakistan Penal Code, for causing the death of Muhammad Hussain, deceased, and was sentenced to death and payment of fine as well as compensation. Alongwith him his brother, Muhammad Sher and father, Masoon alias Massu, were also tried on a charge under section 201, Pakistan Penal Code. They were acquitted. On appeal and reference the High Court maintained the conviction of the petitioner but reduced the sentence of death to imprisonment for life. He seeks leave to appeal from his conviction and sentence.
3. The complainant party has also filed a petition seeking restoration of the sentence of death imposed upon him by the trial Court.
4. The occurrence took place on 6-9-1987 at 8-00 a.m. Four or five years earlier the deceased had eloped with the sister of the petitioner. The local Panchayat intervened and restored the girl to her family. The deceased also undertook before the Panchayat to give some land by way of compensation to the aggrieved family. He failed to abide by his undertaking.
5. On the relevant day the deceased was passing through Borhwala Chowk when the petitioner came there with a 7 m.m. Rifle. On seeing the deceased the petitioner fired at him. The deceased was hit in the back. Immediately thereafter the father and brother of the petitioner reached the spot and dragged the deceased from the Chowk to inside their house. The occurrence was reported at the police station by Zulfiqar (P.W.6) who had witnessed the occurrence.
6. The post-mortem examination of the deceased was performed by Dr. Muhamamd Nazir Chatha who found a wound of entrance on the back of the chest and a wound of exit on the front part of the abdomen.
7. At the trial the petitioner did not deny that he had shot at and killed the deceased. He alleged that on the fateful night some trespasser entered his house. He woke up and shot at the trespasser with the rifle of his brother. When he lit the lamp he found that it was the deceased who had trespassed into his house.
8 As will be noticed the accused has not denied that he was responsible for causing the death of the deceased. Thus the main question for consideration m this petition is whether he had killed the deceased in the manner described by him or if, as alleged by the prosecution, he had fired at the deceased when the latter was passing through the village Chowk. Admittedly, the dead body of the deceased was found by the investigating officer inside the house of the petitioner. The post- mortem examination does not reveal that there was any dragging mark on the body of the deceased. This is a significant circusmstance as the distance between the house of the deceased and the village Chowk was more than a hundred yards. The absence of drag marks lends support to the defence version. If the deceased was in fact killed inside the petitioner's house his conviction under section 302 will become unsupportable.
9. So far as the petition filed by the complainant party is concenred it has no merit. It was the case of the prosecution itself that the deceased had seduced the sister of the petitioner. This being the motive for the occurrence, it was not a fit case where the sentence of death should have been imposed.
10. For the reasons stated above we grant leave to appeal to the petitioner and refuse the same to the complainant party.