1987 PLP 2017 (SCMR)

JAVID IQBAL, J.‑‑ Leave to appeal is being sought against the judgment, dated 12th June, 1982 passed by a Division Bench of the Lahore High Court, Lahore in Criminal Appeal No. 761 of 1980, The facts are that the present petitioner alongwith two others namely, Abdul Ghaffar and Mohammad Ayub was tried for the murder of Zulfiqar alias Manna deceased, but vide judgment of the trial Court, dated 10th June, 1980 only the present petitioner was convicted under section 302, P.P.C. and sentenced to death plus fine. The two others were acquitted. In appeal a learned Division Bench of the Lahore High Court, Lahore maintained the conviction of the petitioner but altered the death sentence to life imprisonment, Erhancing the amount of fine which was ordered to be paid to the legal heirs of the deceased. Two persons on the complainant side had been injured it the course of the occurrence namely Abdur Rashid (rot produced) and Ijaz Ahmad P.W.11 brother of the deceased. From the accused side was injured Abdul Ghaffar acquitted co‑accused, father of the present petitioner. The occurrence took place at 6‑30, p.m. on 5th August, 1977 in Shabnam Cinema, Nankana Saheb, District Sheikhupura. F.I.R. was lodged on the same day at 9 p.m. by Ijaz Ahmad P.W. The accused party were arrested on 8th August, 1977. Human blood‑stained Khanjar had been recovered from the petitioner on 10th August, 1977. The prosecution produced three eye‑witnesses, namely, Ijaz Ahmad P.W., Talib Hussain P.W.12 and Abbas P.W.13. The motive for the crime is that 7/8 days before the occurrence a quarrel had taken place between the petitioner and the deceased. The prosecution story is that the deceased with Ijaz Ahmad P.W. went to see film in Shabnam Cinema when the petitioner armed with Khanjar, his father Abdul Ghaffar acquitted co‑accused also armed with Khanjar and Mohammad Ayub acquitted co‑accused armed with Dang attacked the deceased and murdered him. According to the police investigation as given in the report under section 173, Cr.P.C. the occurrence took place in the following circumstances: That on the fateful day at about 7‑45 p. m. electricity of Shabnam Cinema failed and the audience started breaking the furniture. The accused party who were managing the cinema started the film afresh by operation of their personal generator. In the meantime the deceased alongwith his friends reached the cinema armed with Sota and had attacked Abdul Ghaffar acquitted co‑accused, father of the present petitioner. He felled him down and put his foot on his head and kept on beating him. Thereupon while the father was being beaten up at the hands of the deceased the petitioner picked up a Khanjar and caused injuries to the deceased. The deceased died on the way to the hospital. The main argument of the learned counsel for the petitioner is that the learned Division Bench of the Lahore High Court, Lahore should have put the prosecution version in juxtaposition with the result of the police investigation and the defence version. It was submitted that the petitioner had caused injuries to the deceased on seeing him that he had felled his father down on the ground, put his foot on his head and was beating him with his Sota. This would have certainly provided him with grave and sudden provocation. It was also submitted that Abdur Rashid an injured eye‑witness was not produced by the prosecution as he had been stated to have been won over. We grant leave in this case to examine as to whether the case of the petitioner falls under section 304, Part I, P.P.C. and not under section 3o2, P.P.C. in the light of the evidence on record. S.Q./Z‑15/S ‑‑‑‑‑ Leave granted.