ALI GOHAR vs THE STATE

ORDER

' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed seeking leave to appeal against the judgment dated 10-7- 2002 passed by a learned Division Bench of the Lahore High Court, Rawalpindi Bench in Criminal Appeal No,48 of 1996 and Murder Reference No,65 of 1996. The petitioner was tried for the charge under section 302, P.P.C. For committing the murder of Rab Nawaz son of Elahi Bukhsh in the area of village Ghazi Kohli, Police Station Wah Cantt. By learned Additional Sessions Jude, Rawalpindi who, vide judgment dated 5-3-1996, having found the petitioner guilty, convicted and sentenced him to death and also burdened him with payment of Rs,20,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and in default of payment of compensation, he was directed to undergo S.I. For six months. In appeal, the High Court while maintaining the conviction of the petitioner under section 302, P.P.C., reduced his sentence from death to life imprisonment and answered the murder reference in the negative.

2. The occurrence in the present case took place in village Ghazi Kohli at about 2-00 p.m. On 2-2- 1995 and on the report lodged by Abdul Jabbar (P.W.4), the real brother of deceased, a case under section 302, P.P.C. Was registered against the petitioner at 3-45 p.m. On the same day at Police Station Wah Cantt., Rawalpindi. The facts briefly as contained in the F.I.R. Are that the petitioner after exchange of abuses with Rab Nawaz deceased in the street outside his house, took out the pistol and fired at Rab Nawaz which hit on his right side of the neck and succumbed to the injury while being taken to the hospital. The motive behind the occurrence as stated in the F.I.R. Was the quarrel between the children and exchange of hot words by the deceased with accused. Dr. Syed Imtiaz Hyder (P.W.11) conducted the post-mortem examination of the dead body at 3-00 p.m. On the same day and having traced two firearm injuries on the right side of neck of the deceased declared the same sufficient to cause death in the ordinary course of nature.

3. The accused in his statement under section 342, Cr.P.C. Denied the charge and while raising the plea of alibi pleaded that he being employed in Wah Ordnance Factories, was on duty at the relevant time. The deceased who was his next door neighbour, in his absence teased his wife and daughter as a result of which there was exchange of abuses and the deceased having felt insulted and while armed with hatchet trespassed into the house of the petitioner and physically disgraced his wife whereupon Asif Ali, his son, picked up the licensed pistol of petitioner and fired at the deceased. The petitioner in support of the plea of alibi and substitution in addition to his son Asif Ali (D.W.4) also produced Ghulam Nabi Attiq (D.W.1), Muhammad Aslant (D.W.2), Muhammad Imtiaz (D.W.3) in his defence. Asif Ali (P.W.4) deposed on oath that he was responsible for firing at the deceased whereas Ghulam Nabi Attiq (D.W.1) an officer in the organization in which petitioner was employed stated that the petitioner remained present on duty from '7-20 a.m. Till 1-15 p.m. On 2-2- 1995.

4. Learned counsel for the petitioner has contended that the most natural and reliable defence evidence was not even discussed to consider the possibility of truth in the defence version which by putting in juxtaposition to the prosecution story, would give rise to a reasonable doubt to the correctness of the prosecution version. Learned counsel submitted that the doctor who conducted post-mortem examination on the dead body at 3-00 p.m. On the same day, categorically stated that the deceased sustained injuries within a period of two hours which would indicate that the incident happened some time between 12-00 noon and I-00 p.m. Whereas the petitioner remained present at the place of his duty till 1-15 p.m. And in any case his presence in the village at the time of occurrence was not possible. He added that the Investigating Officer has admitted in his statement that petitioner at the time of arrest while raising plea of alibi stated before him that deceased was fired at by his son Asif Ali and this was another circumstance in support of the defence version.

5. The material facts relating to the occurrence are not in dispute and the only question requiring determination in the given circumstance would be regarding the manner of taking place of the occurrence and the truthfulness of the prosecution case or defence version. We having heard the learned counsel and making tentative assessment of the record, find that the High Court has not properly considered The special defence plea and appreciate the evidence available on record to judge the question of guilt or innocence of the petitioner in the light thereof. We, therefore, consider it a fit case for reappraisal of evidence. Leave is accordingly granted.