1989SCMR256 (PLP)

ABDUL KADIR SHAIKH, J.‑‑This is a petition for leave to appeal from the judgment of a learned Judge of Sind High Court dated 25‑3‑1986 by which an appeal filed by the petitioner was dismissed with the modification, however, that the conviction recorded against him by the Sessions Judge, Hyderabad, under section 302, P.P.C. was altered to one under section 304(11), P.P.C. and sentence of life imprisonment imposed upon him was reduced to 8 years' R.I. However, the sentence of fine of Rs. 1,000 passed against him was maintained. The incident in the case occurred on 9‑2‑1976 at about 11.45 p.m., and F.I.R. was lodged at 00.30 hours during the same night by Wali Muhammad, father of Muhammad Saleh (deceased). According to F.I.R. Muhammad Saleh (deceased) and P.Ws. Ghulam Muhammad and Inamul Haq had gone for a stroll in brothel area at about 10.00 p.m., and while they were sitting on a cot, petitioner passed by, and remarked taunting that the persons who sit on that cot are pimps. Muhammad Saleh objected to these remarks, and there was an altercation between the two, but nothing further happened as persons present there intervened and separated the parties. Muhammad Saleh alongwith his aforesaid companions then left the place, and on the way Inamul Haq separated and left for his house. Muhammad Saleh and Ghulam Muhammad however went to Bismillah Hotel where they found petitioner and P.W. Maulana Zakaria sitting at a table taking tea. On their arrival, petitioner started abusing Muhammad Saleh whereupon the owner of the Hotel asked the parties to leave the premises. Accordingly Muhammad Saleh as well as the petitioner came out of the Hotel premises but immediately thereafter, petitioner is said to have whipped out a knife from the folds of his Shalwar and gave blows to Muhanimad Saleh on his chest with the result that he fell down and started bleeding profusely. The assailant then ran away while Ghulam Muhammad went to inform Wali Muhammad, father of the injured, of the incident. Wali Muhammad rushed to the spot and took his son to the hospital, but he died before any medical assistance could be rendered to him. At the trial, prosecution case was sought to be supported by ocular testimony of three eye‑witnesses, namely,. Ghulam Muhammad, Maqsood and Maulana Zakaria, corroboratory version of Wali Muhammad, father of the deceased, and also the circumstantial evidence of recovery of the blood‑stained shirt secured from the person of the accused at the time of his arrest and the recovery of the weapon of the crime, namely Chhuri, which according to the report of the Chemical Analyser was stained with human blood. It may be mentioned, that petitioner made a judicial confession in which he while admitting that he had given knife blow to deceased gave the following explanation:‑‑ "Muhammad Saleh rushed towards a cabin and took scissors and assaulted upon me. Having no way out, I stabbed a Churri (knife) which was with me, on his chest and made good my escape. Thereafter, 1 went at Ghari Khata and sat in Bukhara Hotel where one boy of my neighbour told me that Muhammad Saleh had succumbed to his injuries. Thereafter police came and arrested me. I surrendered `Churri' to police." Learned trial Judge believed the ocular testimony and the other pieces of prosecution evidence. He disbelieved the plea of defence raised by petitioner in the judicial confession on the ground that it was not only a false plea but was also contrary to the facts and circumstances proved in evidence. On this view of the case, learned trial Judge held the petitioner guilty under section 302, P.P.C. and sentenced him to suffer life imprisonment and fine of Rs. 1,

000. On appeal by the petitioner, learned Judge in the High Court reviewed the entire case and believed the prosecution case. He however took the view that since there was no pre‑meditation, and incident had occurred as there was an exchange of abuses between the deceased and the accused, the offence committed by him falls under section 304 Part‑11, P.P.C., and not one under section

302. P.P.C. On this view of the case, he, while dismissing petitioner's appeal, modified the conviction and the sentence as stated above. We have gone through the record of the case in the light of the submissions made by the learned counsel in support of the petitioner. All the pleas raised by the learned counsel are in fact pleas for reappraisal of evidence. Since we find that the conclusions of the learned Judge in the High Court are based on proper appreciation of the prosecution case vis‑a‑vis the defence plea, there is hardly any justification for interference by this Court. The petition is, therefore, dismissed. M.Y.H./W‑38/S ???????????????????????????????????????????????????????????????????????????????? Petition dismissed.