1999 PLP 2489 (SCMR)

SH. IJAZ NISAR, J.

Leave is sought against the judgment, dated 6-10-1997, passed by the Lahore High Court, Lahore in Criminal Appeal No.24 of 1990.

2. The facts, in brief, are that Muhammad Asif alias Assu Billa petitioner and Liaqat Ali were tried for the murder of Allauddin deceased with a dagger. Liaqat Ali was acquitted, while Muhammad Asif alias Assu Billa petitioner was convicted under section 302, P.P.C. and sentenced to imprisonment for life and to pay a fine of Rs.2,000 or in default to undergo R.I. for one year, with further direction to pay compensation under section 544-A, Cr.P.C.

3. The prosecution case is that a day before the occurrence a quarrel had taken place between the petitioner and Allauddin deceased. On the eventful day i.e..2-3-1989 at 5.45 p.m. Allauddin deceased had gone to the Railway ground to witness a volleyball match in the accompany of his brother Siraj Din complainant. As soon as they reached there the petitioner accompanied by his co-accused attacked the deceased. The petitioner inflicted Khunjer blow on the chest of the deceased while his co-accused had held him in Japha. The occurrence was witnessed by Siraj Din P.W.5 and Muhammad Afzal P.W.6. The deceased was removed to the hospital but he succumbed to the injuries. The matter was reported to the police soon after the occurrence by Siraj Din P.W.

4. During investigation blood-stained dagger P.1 was recovered at the instance of the petitioner. It was sent for chemical examination and was found to be stained with human blood. In the post-mortem examination an incised wound measuring 2.5 x 1 c.m. was found on the left side of the chest of the deceased. It had cut the left lung and entered the right vertical of heart. .

5. The petitioner in his statement under section 342, Cr.P.C. denied the prosecution story and attributed the case to enmity. He, however, did not adduce any evidence in defence.

6. Relying on the ocular testimony furnished by Siraj Din P.W.5., Muhammad Afzal P.W.6 and Abdul Hamid P.W.2, the recovery witness of dagger P.1, the learned trial Court convicted and sentenced the petitioner as stated above.

7. Dissatisfied with the judgment of the learned trial Court, the petitioner appealed to the High Court, but his appeal was dismissed vide judgment dated 6 10-1997. Hence, this petition.

8. It is, inter alia, contended that the petitioner had been falsely involved at the instance of local M.P.A. and both the eye-witnesses were interested against the petitioner. The recovery of blood-stained dagger is also assailed as having been effected from graveyard, an accessible place. Towards the close of his arguments, learned counsel for the petitioner prayed for the grant of benefit of section 382, Cr.P.C. to him. According to him, this aspect was not considered by the Courts below. .9. Mr. Muhammad Nawaz Bhatti, the learned Additional Advocate -General, Punjab has no objection to the grant of aforementioned benefit to the petitioner.

10. We have heard the learned counsel for the parties and thoroughly perused the evidence led by the prosecution to prove its case. There is nothing to suggest that there was any serious enmity between the parties prompting the eye-witnesses to falsely involve the petitioner in a case of such a heinous nature. Since it was a daylight occurrence, the eye-witnesses would not have faced any difficulty in the identification of the assailant of the deceased. The role attributed to the petitioner in the occurrence fully fits in with the medical evidence. The recovery of blood-stained dagger at his behest from a deserted place lends corroboration to the ocular testimony. Being a case of solitary injury there appears to be absolutely no reason for substitution of the assailant.

11. There is no misreading of evidence or non-consideration or non-appreciation of any material piece of evidence by the Courts below. No ground is, therefore, made out for interference by us. However, since the judgments of the Courts below are silent with regard to the grant of benefit of section 382-B, Cr.P.C., we grant the same to the petitioner and dispose of the petition in the said terms. H.B.T./M-297/S Order accordingly.