1. WAHIDUDDIN AHMAD, J.-Petitioner Rustam was tried under section 302, P. P. C. For the murder of Noor Mohammad and. Was sentenced to death by the learned Sessions Judge, Lyallpur. The petitioner filed an appeal and his case for confirmation of death sentence was referred to the High Court of West Pakistan, Lahore. A Division Bench of the High Court agreed so far as the guilt of the petitioner was concerned but differed on the question of sentence. The case, therefore, was referred to a third Judge who, agreeing with Zullah, J., has sentenced the petitioner to transportation for life. The petitioner seeks leave to appeal against the judgment of the High Court dated the 4th December 1969.
2. The petition is barred by six days. The only explanation is that the clerk of the counsel of the petitioner had gone on leave to Sargodha to attend Moharram and, therefore, the copy of tile judgment was not obtained till after Moharram. The explanation is quite satisfactory. We would, therefore, condone the delay.
3. Coming to the facts of the case, the prosecution case is that the murder took place in the afternoon of the 28th December1967, when Noor Mohammad deceased was looking after his crop in Killa No. 12, Square No. 18 in Chak No. 630/DB, Lyallpur District. It is alleged that the petitioner had a grievance against Noor Mohammad for opposing the marriage of his sister with him. He appeared on the scene, challenged Noor Mohammad and fired with 12 shot gun, resulting in the death of the deceased at the spot. The petitioner was apprehended by Muhammad Tufail P. W.
4. Who had given him stick injuries. The report was lodged by Alam, father of the deceased who had also received a head injury with the butt-end of the gun at the hand of the petitioner in his attempt to save his son.
5. The motive of the case is that Mst. Nuran P. W. 8, sister of Noor Mohammad deceased was married to Mian Khan, a brother of the petitioner, who was murdered 5/6 years before the occurrence. After his death, she continued to remain in the house of her deceased husband and was pestered by the petitioner to marry him. She, therefore, shifted to the house of her father Alam P. W. 4 about 8/9 months before the occurrence. The petitioner approached twice Alam P. W. In the company of Taja P. W. 9, Sadiq P. W. 10 and one Sher for his marriage with Mst. Nuran but he and Noor Mohammad deceased did not agree, A couple of days prior to the occurrence, the petitioner once again approached the deceased with Taja P. W. 9, but Alam and the deceased firmly declined. There was exchange of hot words between the petitioner and the deceased and the petitioner left with threat that he would kill him.
6. The prosecution case is based on the evidence of three eye--witnesses, namely, P. W. Alam, P. W.
7. Sakhi Mohammad and P. W. Mohammad Tufail. The evidence of Sakhi Mohammad was excluded from consideration because he resided at a distance of a mile from the spot. The reason given by him for his presence at the spot that he came to borrow ploughs was not believed. The prosecution was thus left with the evidence of Alam who bears an injury and whose presence at the spot at the time of occurrence was not seriously disputed. His evidence is sufficiently corroborated by Tufail P.
8. W., his son-in-law who gave a good number of injuries to the petitioner by means of stick and thereby succeeded in disarming and overpowering him. The mere fact that these two witnesses are related to the deceased is no ground to disbelieve them.
9. The plea of self defence by the petitioner was rejected because he did not take any such plea before the Committing Magistrate. His plea that the deceased and others attacked the petitioner when he objected to the sale and cut of trees, jointly owned by the parties by P. W. Alam is not supported, by any reliable evidence on the record.
10. Dr. Tasaddaque Hussain, learned counsel for the petitioner, has urged that it was a case of self- defence and, therefore, lesser sentence should be given to the petitioner has not impressed us. The fact that the petitioner was fugitive from justice and, therefore, he was armed to safeguard himself cannot be ruled out. It is also admitted that the trees on the khals were jointly owned by the parties and were sold to Jalal Teli by Alam, father of the deceased 4/5 days before the occurrence. The possibility about the petitioner having come to know about it, and visiting the spot armed with shot gun to remonstrate with Alam, cannot be ruled out. It may be that on this occasion the deceased might have intervened or might have said something to the petitioner which provoked him who might have then fired and killed him. In such circumstances, the High Court was perfectly justified in giving transportation for life to the petitioner. There is no force in the petition which is dismissed.