1. Order
2. ABDUL KADIR SHAIKH, J.--This is a petition for leave to appeal from the judgment of Baluchistan High Court, dated 21-12-1986 dismissing petitioner's appeal against his conviction under section 302, P.P.C. Recorded by the Additional Sessions Judge Usta Mohammad, for which he was sentenced to death.
3. The report of the crime was lodged by Niaz Mohammad on 10-11-1984 at about 12.00 noon at Usta Mohammad Police Station, the incident having occurred at 9.00 a.m. On the same day near Goth Mohammad Panah Mongal, Tehsil Usta Mohammad District Nazirabad, about 3 miles from the Police Station. The version of incidence given by Niaz Mohammad in the F . I . R . Was that he and Wali Mohammad (injured P.W.3) had gone to Goth Hamidullah Buledi, a day prior to the day of occurrence, to attend the funeral ceremony of Mst. Bakhtiar, and after spending the night there they alongwith Kalu, Mohammad Ayub, Mst. Laala and Alla Bakhsh (deceased) proceeded to Usta Mohammad to make some purchases. Whey they reached near Village Mohammad Pana Mengal at about 9.00 a.m. The petitioner and one Arbab armed with shot guns emerged out of jungle and after "lalkara" by petitioner to deceased, both opened indiscriminate firing on the deceased who fell down and died on the spot. In the incident, Wali Mohammad also sustained injuries. The motive of the crime was stated to be a dispute over matrimonial affairs between the parties.
4. At the trial, the prosecution case was sought to be proved by the ocular testimony of Niaz Mohammad, Wali Mohammad and Ayub and Mst. Laala, and the circumstantial evidence of recovery of crime weapon, namely, the shot gun said to be recovered at the instance of the petitioner on 7-2-1985 with which the crime empties secured from the scene of occurrence matched, according to the report of the Expert.
5. Learned Sessions Judge who tried the case believed the ocular testimony, circumstantial evidence and the motive and held the petitioner guilty under section 302 PPC and convicted him as stated earlier.
6. The case then came up before Baluchistan High Court in confirmation proceedings and on an appeal filed by the convict. Learned Judges of Division Bench who dealt with the case after reappraisal of evidence recorded in the case held the petitioner guilty under section 302/ 34 P . P .
7. C . , instead of 302 P . P . C . , and maintained the conviction and sentence of death passed against the convict. It is in these circumstances that petitioner filed this petition for leave to Appeal from the judgment of the High Court.
8. Mr. Muhammad Aslam Chishti learned counsel for the petitioner submits that since all the eye- witnesses are related inter se, and admittedly there was dispute between the parties over matrimonial affairs, reliance on their testimonies could not be placed without an independent corroboration which is lacking in this case. In this connection, learned counsel pointed out that the circumstantial evidence as to alleged recovery of shot gun is not reliable for the reason that it was made after 14 days of petitioner's arrest and was in derogation of the provisions laid down in section 103 of the Code of Criminal Procedure.
9. Learned counsel further submits that since there is no satisfactory evidence that petitioner had caused the fatal injury, he could not have been convicted under 'section 302 P.P.C. By the learned Sessions Judge, and his conviction could not have been altered to the one under section 302/34 by the High Court, on the mere assumption that the learned trial Court omitted to record such finding.
10. In this behalf learned counsel further submits that the High Court could not treat such absence of a finding as a mere irregularity curable under section 537, Cr.P.C.
11. These submissions and others raised in the petition deserve consideration. We, therefore, grant leave to appeal and allow the petition.
12. Appeal will be heard on the present record but it is open to the parties to file additional documents, if any.