1990 PLP 1095 (SCMR)

Q.M. Saleem, Senior Advocate Supreme Court and Tanveer Ahmad, Advocate‑on‑Record for Petitioner. Nemo for the State. Date of hearing: 20th January, 1990. S. USMAN ALI SHAH, J.‑‑‑Leave to appeal has been sought by the petitioner, against the judgment of the Lahore High Court, Lahore dated 22‑7‑1987, whereby his appeal against his death sentence awarded to him by Additional Sessions Judge, Sialkot, was dismissed and his death sentence was confirmed. Brief facts according to the F.1.R. are that the petitioner was alleged to be a thief by profession and Muhammad Siddique convicted accused was a friend and helper of the petitioner. The police often summoned the petitioner in theft cases, who suspected Javed Iqbal deceased as informer against him. Two three days before the occurrence the petitioner and deceased had a quarrel due to which he threatened the deceased of dire consequences. On 21‑12‑1982 at about 10‑30 p.m. Muhammad Amin and his maternal‑uncle Ashiq Ali were present in the house of Muhammad lqbal deceased. Sanaullah PW‑5 was also with them. They heard knocking at the door. On opening the door they found Arshad Pervez and Muhammad Siddique, armed with daggers in front of the door in the electric bulb light. Arshad Pervez petitioner hit Javid Iqbal deceased with his dagger in his abdomen near the chest on the left side and Muhammad Siddique gave the second blow with his dagger to the deceased on the left side of his abdomen. Javed Iqbal deceased fell down. Muhammad Amin, Ashiq Ali and Sanaullah PWs tried to apprehend the assailants. Arshad Pervez attacked Sanaullah PW with his dagger and hit him on his left hand. In the meantime Nazir Ahmad PW‑3 and others also reached the spot. The accused decamped from the scene of occurrence. Javid Iqbal died at the spot. The F.I.R. was lodged by Muhammad Amin which was recorded by Muhammad Malik ASI (PW‑13), who also visited the spot. Muhammad Anwar Man, SI, SHO, P.S. Saddar Sialkot arrested Muhammad Siddique and on his pointing recovered the dagger P.3 which was taken into possession by the 1.0. Arshad Pervez remained in hiding and the 1.0. obtained warrants of his arrest and a proclamation was also issued. On 28‑10‑1983, ASI Hasan Akhtar (PW‑10) arrested Arshad Pervez petitioner who led the police to the recovery of dagger P. 4 on 4‑11‑1983. After completion of the investigation procedure the petitioner and Muhammad Siddique accused were tried by the Additional Sessions Judge, Sialkot who found both the accused guilty of the offence, convicted them under section 302/34, P.P.C. and sentenced both of them to death. In appeal before the High Court, the death sentence of the petitioner was confirmed whereas that of the Muhammad Siddique was converted to life imprisonment and their appeal was dismissed and fine of Rs.5,000 was imposed on each of the accused which on realization to be paid to the heirs of the deceased. Hence, this petition for leave to appeal by the petitioner only. We have heard the learned counsel for the petitioner and have gone through the evidence on the record. Admittedly the occurrence took place on 21‑12‑1982 while the recovery of the dagger was made after the arrest of the accused petitioner, after 10 months of the occurrence and the recovery thus made on 4‑11‑1983 was declared to have stained with human blood makes the case of a further inquiry. Muhammad Amin the so‑called eye‑witness of the occurrence has not supported the prosecution case. The learned counsel for the petitioner states that Sanaullah the only eye‑witness who was believed because of the injuries on his person is admittedly on inimical terms with the accused. These are the circumstances which make the case liable for further consideration of this Court. Leave to appeal is, therefore, granted. N.H.Q./A‑690/S Leave granted.