1987 PLP 791 (SCMR)

Nemo for the State. Date of hearing: 2nd March, 1987. SAAD SAOOD JAN, J.‑‑ The petitioner, Muhammad Ashraf, and his brother Muhammad Akbar were convicted by the Sessions Judge at Mianwali of an offence under section 302, read with section 34, of the Pakistan Penal Code for causing the death of Abdul Hameed deceased and were sentenced to suffer imprisonment for life and to pay fines. Alongwith them Jinda and Bashir were also tried on the same charge but they were acquitted by the learned trial Judge. On appeal by the petitioner and his brother, the High Court acquitted Muhammad Akbar but maintained the conviction and sentence of the petitioner. The petitioner now seeks leave to appeal against his conviction and sentence.

2. This appeal is barred by time by 75 days. For the reasons given in the application for condonation of the delay we condone the delay.

3. The occurrence took place on 3‑11‑1979 at 4‑00 p.m., in Darya Khan, District Mianwali. The parties were close neighbours. The petitioner had kept pigeons. He would climb on the roof of his house to look after the pigeons. This was resented by the deceased and his family. On the relevant day, shortly before the occurrence, the deceased told the petitioner that he should not go up on the roof of his house as this interfered with privacy of his home. This protest led to an exchange of abuses between the petitioner and the deceased. Soon thereafter the petitioner and his co‑accused armed themselves with Chhuris and stabbed the deceased who collapsed on the ground. He was taken to the hospital where he later died.

4. At the trial the petitioner did not deny his participation in the occurrence. He alleged that the deceased and his family suspected that he was having an illicit affair with the sister of the deceased. At the relevant time he was sitting in his house when he was assaulted by the deceased and one Aziz. The deceased was armed with a Chhuri while Aziz had a Danda with him. Jinda, co‑accused, intervened to save him but he was given a Danda blow on the head by Aziz. The deceased attacked him with a Chhuri and he, in turn, injured him with a knife in self‑defence.

5. The version of the prosecution at the trial was supported by Waheed Ahmad and Mat. Rashidan. Waheed Ahmad was the brother of the deceased while Mat, Rashidan was his mother. Immediately after his arrest, the petitioner and Jinda were found to be bearing injuries. The eye‑witnesses did not care to explain how the petitioner and Jinda came to suffer the injuries. The High Court was of the view that the injuries of the petitioner and Jinda were possibly self‑suffered. 6.It is contended on behalf of the petitioner that the version oil the prosecution has failed to explain the injuries on the persons of the petitioner and Jinda and the view taken by the High Court that the could be self‑suffered was entirely conjectural. His own plea that he was first attacked by the deceased and that he injured the deceased in self‑defence found support from the medical evidence but it did not receive due consideration in the High Court. In our opinion the contention raised on behalf of the petitioner requires further examination. Leave to appeal is granted to the petitioner against his conviction and sentence. S. Q. /M‑48/S Leave to appeal granted.