1987 PLP 662 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑This petition by Abdur Rehman Shah is directed against the acquittal of Khurshid Ahmad Shah, Zahoor Ahmad Shah, Riaz Hussain Shah, Sadar Din Shah and Ghulam Sarwar, respondents, of the charge of murder.

2. Mubarik Ali Shah, the deceased in this case, was an Advocate. He was pursuing a previous case under section 307, P.P.C. which had been got registered by Rashid Ahmad the brother of Abdur Rehman Shah complainant against some members of the accused party involving Mubarik Ali Shah (deceased). The accused‑party had, therefore, a grudge against him. He was murdered by the respondents on the 25th of August, 1975, by inflicting numerous Lathi blows on him. During the autopsy he was found to have been given as many as 24 injuries, many of which were contusions. Before succumbing to these injuries he made a dying declaration about the incident naming the respondents as his assailants.

3. In support of its case the prosecution relied on the testimony of the four eye‑witnesses, i.e. Abdur Rehman P.W.7, Hakim P.W.8, Ghulam Qadir P.W.11 and Lai P.W.11.

4. The learned trial Court convicted all the accused‑respondents and sentenced each of them under section 302/149, P.P.C. and sentenced them to imprisonment for life each and a fine of Rs.5,000 each or in default of payment of fine to undergo further R.I. for one year. It also sentenced each one of them to one year R.I. under section 148, P.P.C. On appeal, however, the High Court acquitted all the five accused‑respondents by its judgment, dated 28‑4‑1980. Feeling aggrieved the petitioner has filed the present petition for leave to appeal,

5. We have heard the petitioner's (counsel and have also gone through the impugned judgment. We notice that the learned High Court came to the conclusion that since relations between the parties were strained, the testimony of the eye‑witnesses, who are related to the deceased, could not be believed. He held further that although, Mubarik Ali Shah did make a dying declaration but the same was not reliable because he had probably been influenced by other persons to give an incorrect version.

6. It was urged by the petitioner's counsel that the learned High Court has accepted the fact that Mubarik Ali Shah (deceased) had, in fact, made a dying declaration and that the doctor had certified that at that time he was in his senses. He submitted further that considering his (deceased's) status he is not expected to have been influenced by other persons to give a false story; that he was given numerous injuries by the assailants with Lathis during which he must have had enough time to recognize and identify his assailants and that he had no reason to name persons other than those who had inflicted injuries on him. He submitted that in the circumstances of this case respondents' conviction could be based solely on the dying declaration and in any case it could be used as an independent corroborating testimony of the eye‑witnesses. These contentions appear to have weight. Leave is, therefore, granted for reappraisal of the evidence on the record to ensure that the High Court has followed the well‑settled principles of appreciation. of evidence in criminal cases. Bailable warrants should be issued against respondents Nos. 1 to 5, in the sum of Rs.20,000 with two sureties each in the like amount, returnable to the District Magistrate, Vehari. S.Q./A‑7/S Leave granted.