1987 PLP 955 (SCMR)

‑‑‑S. 302‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Appeal against acquittal‑‑ Reappraisal of evidence‑‑Leave to appeal having been granted for re‑appraisal of evidence in interest of safe dispensation of justice in appeal against conviction of co‑accused, leave granted in case of appeal against acquittal as well‑‑Bailable warrants directed to be issued against acquitted respondent. Mehr Ghularr. Ali Mobashar, Advocate Supreme Court with Ch. Mehdi Khan, Advocate on‑Record for Petitioner (in Criminal Petition No. 497 of 1981). Rao M Yousaf Khan, Advocate‑on‑Record for the State. Mr. Ijaz Hussain Batalvi, Senior Advocate Supreme Court with Sh. Izharul Haq, Advocate Supreme Court and Mr. M.A. Qureshi, Advocate‑on‑Record (absent) for Petitioner (in Cr: P. No. 500/81). Nemo for the State. MUHAMMAD HALEEM, .J.‑‑In Criminal Petition No. 479 of 1981, the acquittal of Muhammad Aslam is challenged while Criminal Petition No.500 of 1981 is directed against the conviction and sentence of Zia‑ud‑Din, the brother of Muhammad Aslam. Both of them were charged for the murder of Munawar Hayat The role of firing the shots at Munawar Hayat and Muhammad Nawaz, who though injured was not examined, as having been won over, was attributed to Zia‑ud‑Din. Both of them at the relevant time were in the tractor driven by the deceased Munawar Hayat. The eye‑witnesses were also allegedly sitting in the tractor. Muhammad Nawaz on being shol fell from the tractor while Munawar, in an injured condition, drove the tractor to the house where he gave the narration to his father Muhammad Shabbir, who lodged the F.I.R. at 9.15 P.M. The evidence against the two consisted of the oral dying declaration incorporated in the F.I.R. and the statement of the deceased recorded under section 161, Cr.P.C. on 18th of April, 1977, the ocular testimony of P.W. (9), Muhammad Aslam and P.W. (10). Ibne All Shah, the motive and the matching of the gun secured at the pointation of Zia‑ud‑Din with the crime‑empty found at the spot. There was also another F.I.R. recorded earlier in which it was alleged that Zia‑ud‑Din had come armed at the Dera of the deceased, but not finding him there he could not pursue his purpose of killing the deceased, and, accordingly, a case under the Arms Act was registered. The Courts below disbelieved the motive which, in substance, was that Zia‑ud‑Din had suspected the deceased to have had a hand in the murder of his brother committed by some other persons. The Courts below did not accept the dying declaration as a statement under section 161 Cr.P.C. but placed reliance on the narration recorded in the F.I.R as having been given by the deceased orally. The ocular testimony was also believed and so also the recovery of the gun and its matching with the crime‑empty. The learned counsel for Zia‑ud‑Din vehemently argued that in the absence of the exact words spoken by the deceased, it was difficult to say whether it was a true reproduction of what he stated to his father, the moreso in the light of the finding of the High Court that there could be possibilty of an addition nonetheless the High Court did not think that this was a case where another person had been substituted for the real culprit. The learned counsel also contended that the High Court not having believed the presence of Muhammad Aslam at the spot and for other discrepancies in the ocular evidence it should not have maintained the conviction as these features reacted against the veracity of the dying declaration and the ocular testimony in the context of the motive not having been established and the false implication of Muhammad Aslam. We are of the view that the evidence requires appraisal in the interest of safe dispensation of justice. Accordingly, we would grant leave to appeal in both the petitions. Bailable warrants to issue against Muhammad Aslam in the sum of Rs.20,000 with one surety in the like amount to the satisfaction of Assistant Commissioner, Sargodha. M.I./M‑73/S Leave granted.