1990 PLP 427 (SCMR)

Nemo for Respondents. Date of hearing: 12th May, 1988. ZAFFAR HUSSAIN MIRZA, J.‑‑This petition for leave to appeal arises out of order, dated 9th September, 1987, whereby a learned Single Judge of the Sind High Court, Hyderabad Circuit, dismissed the revision petition of the petitioner under section 439, Cr. P.C. Respondent No.l Sachal was tried by the III Additional Sessions Judge, Nawabshah, on the charge of intentionally committing the murder of deceased Abdul Hamid. The defence of the petitioner was that he had killed the deceased in the bazar of Mehrab Pur on account of grave and sudden provocation due to derogatory language used by the deceased in respect of the Holy Prophet (peace be upon him) of Islam as he was a Quadiani. Learned Additional Sessions Judge accepted the plea of respondent No.l and convicted him under section 304‑1, P.P.C., sentencing him to R.I. for three years. Being aggrieved the petitioner who is the real brother of the deceased and was the complainant in the case preferred a criminal revision before the Sind High Court urging that on the evidence led at the trial the charge under section 302, P.P.C. was proved to the hilt and his conviction under section 304‑1, P.P.C. was illegal. A learned Single Judge of the High Court, however, found no substance in the petition of the petitioner and dismissed the same by the impugned order in this petition. This petition came up for hearing on 26th January, 1988, and this Court announced the grant of leave to consider if the Courts below had not erred in accepting the plea of the defence raised by the accused/respondent. However, while recording the order subsequently it was felt that Lal Bux (PW,3) and Syed Mazhar Hussain (PW.7) had made certain statements supporting the defence version. As these statements were not brought to the notice of the Court during the hearing of the petition, a rehearing was ordered. We have heard the learned counsel particularly in the light of the aforesaid point. He has taken us through the evidence of the two witnesses, particularly the statements noticed at the time of recording the order earlier. Lal Bux (PW.3) was not an eye‑witness of the occurrence but was called as a mashir of the injuries of deceased as well as of the arrest of the accused and some other mashirnama. In his cross‑examination he stated as follows: "Accused had told us that he has murdered a Kafir as he has used (deceased) insultive words for Prophet (peace be upon him). It is a fact that the accused was in the state of provocative condition." Syed Mazhar Hussain (PW.7) was the Investigating Officer. He in his cross -examination made the following statement: "In my enquiry I came to know that deceased had used abusive language in honour of Rasool‑Allah Muhammad (peace be upon him) and therefore accused lost his control and murdered the deceased." It has been urged by the learned counsel for the petitioner that the aforesaid two witnesses had no personal knowledge of the facts deposed and at best their testimony, with regard to the plea of respondent No.l was hearsay evidence. It is further submitted that there were independent witnesses of the occurrence who were not Quadiani who fully supported the prosecution case that respondent No.] committed the murder of the deceased in cold blood merely by declaring him as a Kafir. We find that the prosecution had produced two eye witnesses, namely, Muhammad Ramzan and Abdul Latif. They had denied the ` suggestion of the defence and had stated that there was no talk between the, deceased and respondent No.l prior to the attack launched against the deceased. However, the trial Court relied upon the aforesaid statements of (PW.3) and (PW.7) and held that the plea of the accused was fully supported. We find prima facie force in the contention that the evidence relied upon in support of the defence plea was hearsay evidence which could not he preferred to the direct evidence of Muhammad Ramzan (P\.2) and Abdul Latif (PW.5) who appeared to be disinterested witnesses. We accordingly grant leave to consider the question whether the Courts below had accepted the plea of the; defence on sound principles for the safe administration of justice laid down by' this Court in criminal cases. The petition is allowed. M.A.K./F‑137/S Leave granted.