1987 PLP 838 (SCMR)

2. Facts giving rise to this case briefly are that Muhammad Ashraf and Shaukat Anwar were tried and convicted for offences under section 302/307/34, P.P.C. Under section 302/34, P;P.C. Muhammad Ashraf was sentenced to death and a fine of Rs.2,000 and Shaukat Anwar co‑accused was sentenced to imprisonment for life and a fine of Rs.2,

000. Under section 307, P.P.C. both of them were sentenced to 3 years' R.I. each and a fine of Rs.1,000 each. Both of them filed an appeal before the High Court which by its impugned judgment dated 23‑2‑1981, acquitted Shaukat Anwar of both the charges and while maintaining the conviction of Muhammad Ashraf under section 302, P.P.C. reduced his sentence of death to that of imprisonment for life but enhanced the sentence of fine from Rs.2,000 to Rs.5.,

000. His conviction and sentence under section 307, P.P.C. were, however, maintained by the High Court. It may be mentioned that the revision for the enhancement of the sentence and compensation filed by Muhammad Nawaz (complainant) with regard to Shaukat Anwar accused was dismissed. As such Muhammad Ashraf the convict i.e. the petitioner in Cr. P. S. L. A. No.179 of 1981 has filed the present petition for leave to appeal against his conviction and sentence, while the State has filed a petition (No.222/81) for the enhancement of the sentences of Shaukat Anwar (acquitted co‑accused) and Muhammad Ashraf Petitioner in Cr. P. S. L. A. No. 179/81. Revision filed against them was, however, dismissed

3. The occurrence in this case took place on 1‑4‑1978 at 10 p.m. near Fawara Chowk Faisalabad City. The F. I. R. was lodged by Muhammad Nawaz complainant at the Police Station Peoples Colony, Faisalabad, wherein the two accused were named as assailants. In support of its case the prosecution relied on the testimony of four eye‑witnesses. namely, (1) Muhammad Nawaz (P.W.9), (2) Mumtaz Ali (P. W.10) ; (3) Manzoor Hussain (P. W.11) and (4) Nazir Ahmad (P.W.12). The ocular testimony was sought to be corroborated by the recovery of the shot‑gun from Muhammad Ashraf which was found to match with the empty‑cartridges recovered from the spot. It also relied on the evidence of motive and the medical evidence.

4. The trial Court believed the prosecution evidence and convicted both the accused, but the High Court acquitted Shaukat Anwar.

5. Learned counsel for the accused‑petitioner submitted that the learned High Court, however, disbelieved all the four eye‑witnesses for the reasons given in paragraph 19 of the impugned judgment. With regard to Muhammad Nawaz (P. W.9) who was injured during the incident it observed that although his presence at the spot could not be doubted yet he had made considerable improvements over his earlier statements and "that otherwise too this witness is a person of the type good for nothing". It also held that P. Ws. 10, 11 and 12 were probably not present at the spot and had not seen the occurrence in question. Regarding the recoveries the counsel submitted that two of the eye‑witnesses have been made the witnesses of recovery of the incriminating weapon from Muhammad Ashraf petitioner. As such their testimony cannot be used to corroborate their own testimony against Muhammad Ashraf.

6. Learned counsel then adverted our attention to the portion of the judgment in paragraph 19 (Page 39 of the Paper Book) wherein reasons have been recorded for maintaining the conviction of Muhammad Ashraf. If would be useful to reproduce the same which reads as follows: ‑-- "The earlier incident in which Paan was offered to Shaukat Anwar appellant is not much in dispute. What is disputed is the manner in which the Paan was offered. We have already seen that explanation given by Shaukat Anwar in his statement is quite plausible. We are also of the view that appellant Muhammad Ashraf was with him. When the deceased and his companions tried to maltreat them, they ran away and were chased by the deceased in the car. From the site plan, the distance between Fowara Chowk and the place of occurrence is 200 feet‑ Therefore by the time the deceased and his companions occupied the car, appellants had covered the distance. Appellant Muhammad Ashraf being younger in age, succeeded in getting the gun and seeing his brother still in danger ‑fired at the car to scare away the occurrence. They were undettered. They stopped the car, came out and proceeded towards the appellants. This gave further apprehension in the mind of the appellant Muhammad Ashraf. He fired straight and repeatedly, therefore, his conviction under section 302, P.P.C. is maintained but in the circumstances, this is not a case of capital punishment and life imprisonment will be the just sentence which we order accordingly. "

7. Petitioner's counsel submitted that these hardly could be sufficient reasons for maintaining Muhammad Ashraf s conviction under section 302,, P.P.C. and according to the view taken by the High Court itself his case is covered by the exercise of right of private defence of person.

8. We feel that there is weight in the aforementioned contentions raised by petitioner's counsel. Leave is, therefore, granted in this case to consider whether the well‑established principles of appreciation of evidence in criminal cases have been observed. 9.We now take up Crl. P. S. L. A. No.222 of 1987 filed by the State. Since Leave has already been granted in the connected petition (Crl. P.S.L.A. No. 179/81), leave is granted in this Petition against the acquittal of Shaukat Anwar and to consider the quantum of sentence, Muhammad Ashraf in case his (Petition No. 179 of 1981) fails.

10. Let bailable warrants be issued against Shaukat Anwar (respondent in Cr.P. No. 222/81) in the sum of Rs. 20,000 with two sureties each in the like amount to the satisfaction of District Magistrate, Faisalabad, M.I/M‑58/S. Leave granted.