1987 PLP 1547 (SCMR)

ASLAM RIAZ HUSSAIN, J.‑‑Muhammad Asahar petitioner seeks leave to appeal against the judgment of the Lahore High Court dated 14‑4‑1985 dismissing his appeal in a case under section 302 PPC. He was tried alongwith 3 others for the murder of Karam Elahi (deceased) and making murderous assault on Mst. Zainab Bibi (P.W.12), and Mst. Hamidan Bibi.

2. Motive for the offence is stated to be that a night preceding the occurrence, there was a quarrel between the deceased and Muhammad Asghar petitioner etc. and the matter was patched up. In spite of this the petitioner kept in mind the grudge and so the occurrence. 3: The prosecution case briefly stated is that on 8th of August, 1980 at 9‑30 a.m. the deceased left his house. He found the petitioner and three others (including his father and brother) armed with Chhuris inside the street who then attacked him. On his alarm his mother Mst. Zainab Bibi (P.W.12) and sister as well as Mst. Hamidan Bibi came to the spot and they, too, were injured by the assailants, Abdur Rahim the father of the petitioner is alleged to have grippled the deceased after the first blow. The FIR was based on the statement made by Karam Elahi (deceased) himself, who was then alive. After his death his statement was treated as his dying declaration.

4. In support of its case the prosecution produced only one eye‑witness namely Mst. Zainab Bibi (P.W.12). It sought to support testimony of the solitary eye‑witness by the recovery of knife from Muhammad Asghar petitioner. It also relied on the evidence of motive and the medical evidence, as well as the dying declaration.

5. In his statement under section 342 Cr.P.C. Muhammad Asghar accused‑petitioner denied his guilt. He admitted the occurrence but gave the following version:‑ "Ashraf alias Achu deceased was a desperado and a notorious person. On 8‑8‑80 sometime after the sunrise, I was present in front of his shop. The street was lonely. He forcibly dragged me into the shop, pulled out a knife and tried to commit sodomy on me. In order to save my life and honour, I gave a best solitary blow to the deceased."

6. The learned trial Court did not rely the prosecution evidence against Muhammad Boota and Abdur Rahim, co‑accused and acquitted them. It, however, convicted Muhammad Asghar petitioner and Muhammad Akram (co‑accused) under sections 302/34 PPC and sentenced each of them to imprisonment for life and a fine of Rs.1.5,000 It also convicted both of them under section 307/34 PPC and sentenced each of them to one year's R.I. and a fine of Rs.1,000 each.

7. Muhammad Asghar and Muhammad Akram filed an appeal before the High Court against their conviction and sentences. The High Court accepted the appeal with regard to Muhammad Akram and acquitted him, while it maintained the conviction and sentence of Muhammad Asghar petitioner. Hence the present petition by Muhammad Asghar petitioner, for leave to appeal. ?

8. Learned counsel for the petitioner submitted that a reading of paragraphs 10, 11 and 12 shows that the dying declaration as well as the recovery of the knife from the petitioner were not relied upon by the learned Courts below and the ocular testimony of the solitary eye‑witness was not believed with regard to the three out of four accused. He submitted further that if the petitioner had not himself admitted the incident the same benefit of doubt, as was given to the three acquitted co‑accused, would also have been extended to the present petitioner. He argued that, as a matter of fact, the High Court was influenced by the petitioner's own admission about having caused the death of Karam Elahi (deceased) and has maintained his conviction only on the basis of petitioner's own statement, He went on to the argue that if that be so, the statement of the petitioner should have been accepted in its entirety and the extenuating circumstances mentioned therein by the petitioner should also be taken into consideration.

9. We feel this contention needs further consideration in view of the High Court's observations in paragraphs 10, 11 and 12 of the impugned judgment. Leave is, therefore, granted to consider as to whether the petitioner's conviction has practically been based on his own statement and if so, whether it should not have been considered and relied upon in its entirety? M.I./M‑131/S????????????????????????????????????? ‑‑‑‑‑???????????????????????????????????????????????????? Leave granted.