1982 PLP 1221 (SCMR)

ASLAM RIAZ HUSSAIN, J‑Kala petitioner seeks Leave to Appeal against the judgment of the Lahore High Court, dated 28‑10‑1980, dismissing his appeal in a case under section 302, P. P. C.

2. The occurrence which has given rise to the petition, took place on 17‑7‑1978 at about 5 P. M. in the area of Mangrotha Gharibi. The F. I. R. was lodged by Ghulam Muhammad P. W. 8 (the father of the deceased) at 7 P. M. on the same day. It was recorded by Salim Ahmad, A. S. I. (P. W. 10). According to the prosecution, about one month prior to the occurrence Isa (deceased) the son of the complainant, was married to Mst. Aiyasha, the sister of Kala petitioner. In exchange of this marriage the complainant's daughter Mst. Bakhtawar Mai was married to Manzoor, brother of the aforesaid Kala, Kala petitioner, however, was not happy with this marriage. Two days prior to the occurrence Mst. Aiyasha had gone to the house of her parents and when her husband (Isa deceased) went to bring her back Kala petitioner refused to send her back and there was bitter exchange of abused amongst them. Isa (deceased), however, took back his wife at 5 P. M. and on the fateful day when Isa went to the bazar to make some purchases the petitioner came there armed with a hatchet and started abusing him. Ghulam Muhammad and Mst. Fatima (father and mother of the deceased respectively), Hanif and Mst. Jaunat Bibi (brother and sister of the deceased respectively) reached the spot. In their presence Kala petitioner gave a hatchet blow on the head of Isa (deceased) whereupon he fell down. Kala then ran away with the hatchet. The P. Ws. carried Isa on a cot to the Civil Hospital in an injured condition but died soon after reaching there. As the trial the prosecution relied, on the testimony of Ghulam Muhammad P. W. 8 (father of the deceased) and Muhammad Hanif P. W. 9 (brother of the deceased); the blood‑stained hatchet recovered from Kala petitioner the medical evidence and the evidence of motive. In his statement under section 342, Cr. P. C. the petitioner‑accused admitt ed the occurrence but gave a counter version which reads as follows; "On the day of occurrence the deceased waylaid me near the "Talab" when I was coming with my herd and put branches of bushes over my head as fodder for the hard. The deceased who was armed with dang gave me injuries and while acting in self defence I have hatchet blow which I was carrying at that time and with which I had cut the branches of the bushes. The deceased had grudge against me as in his view, it was on my instigation that my brother Manzoor had misappropriated the ornaments of Mst. Bakhtawar the sister of the deceased and that I was not allowing his wife to go back to her in‑laws." He also produced two witnesses in defence, namely Dr. Ijaz, Medical Officer Incharge of the Civil Hospital, Taunsa, who examined him on 18‑7‑1978, and found two injuries on his person which are described as under :‑

'(1) Swelling with lacerated wound 3/4" X 1/2 X" muscle deep on the left fore arm. 1 3/4" distal to left wrist. (2) A lacerated wound on the left side of head which is 1/6' x 1/8 x skin deep." Injury No. I was found to be grievous as it caused a fracture on the ulna bone. The second defence witness was Dr. Muhammad Ashraf Radiologist who had given report on the X‑ray (Exh. DC) to the effect that ulna bone of left arm of Kala had been fractured at the lower part,

3. We have heard the learned counsel for the petitioner and gone through the evidence on the record. The counsel submitted that it was unbelievable that the incident, which took place at 5 p.m. in a local bazar should have been seen only by the closest members of the deceased's family and no one else. He also submitted that the defence version put forward and the evidence of Dr. Ijaz D. W. relating to the injuries suffered by the accused/petitioner have not been given due weight. We feel that there is weight in these contentions. Having gone through the relevant portions of the impugned judgment as well as the judgment of the Trial Judge we are not satisfied with the‑ reason recorded by them for rejecting the defence version. We are, therefore, of the view that reappraisal is required in this case. Leave is granted for the said purpose. Leave granted.