1985 PLP 1349 (SCMR)

Malik Hameed, Advocate Supreme Court instructed by Sh. Ijaz Ahmed, Advocate‑on‑Record for Respondent No.

2. Date of hearing: 28th February, 1981. ABDUL KADIR SHAIKH, J.‑‑This appeal by leave is directed against the judgment of the Lahore High Court dated 7‑2‑1974 by which an appeal of Muhammad Anwar respondent was allowed, and in result his conviction under section 302 of the Pakistan Penal Code for which he was sentenced to death by the Additional Sessions Judge, Lyallpur was set aside, and he was acquitted. The incident occurred on 6‑7‑1971 at about 8‑00 p.m. in Raja Chowk, Lyallpur. It is said that about half an hour earlier while Abdur Rahman was in the Chowk, Muhammad Anwar respondent came and demanded return of loan of Rs.5 from him. Adbur Rahman denied having taken the loan, and this led to exchange of abuses between the two, but owning to the intervention of Murtaza Hussain and Abdur Rahman (P.Ws.) nothing untoward happened. However, half an hour later, while Abdur Rahman was sitting near the Khokha of Taj in the Chowk, Muhammad Anwar came again, and this time he attacked Abdur Rahman with knife inflicting three blows in succession. Abdul Haq, Muhammad Yasin and Inayat who were said to be present there intervened and rescued the injured from further injuries. The injured was then taken to the hospital in unconscious condition and his brother Muhammad Hussain thereafter went and lodged the report of the crime. During the investigation injured Abdul Rahman's statement was recorded by a Magistrate in which he named Muhammad Anwar respondent as his assailant, and this statement was subsequently produced at the trial as the dying declaration of the deceased. The respondent was arrested on 10‑7‑1971 and a blood‑stained knife was secured at his instance.

2. At the trial, prosecution case rested on the ocular testimony of three witnesses Abdul Haq, Muhammad Hussain and Inayat and also the dying declaration of the deceased, and the circumstantial evidence of recovery of knife at his instance. The respondent admitted having caused the injuries to the deceased but he explained as follows:‑ "My mother was having water from the water‑tap near the Khokha of Sardar and Taj. Abdul Rahman deceased was slapping her there and even gave a knife blows to her and abused her as well. I asked him not to do so but he also abused me and gave me a knife blow. I could not restrain myself. Picked up a knife from the Khokha of Sardar and Taj and gave injuries therewith to the deceased in self‑defence and due to provocation of insult to my mother." The Additional Sessions Judge did not place reliance on the ocular testimony of Abdul Haq but he believed the other two witnesses Muhammad Hussain and Inayat and also the dying declaration, and accordingly held the respondent guilty under section 302, of the Pakistan Penal Code and awarded death sentence to him. On appeal learned Judges in the High Court held that both the prosecution witnesses Muhammad Hussain and Inayat were chance witnesses, and even otherwise, the evidence given by them was contradictory in many respects. Learned Judges also did not place reliance upon the dying declaration and the circumstantial evidence, and on this view of the case they gave benefit of doubt to the accused and acquitted them.

3. Leave to appeal was granted by this Court in order to examine whether the acquittal of the accused in the light of the quality and the weight of the prosecution evidence led against them was in conformity with the well‑settled principles governing criminal justice.

4. Mr. Ijaz Hussain Batalvi, learned counsel for the appellant submits that the learned Judges in the High Court have entirely overlooked the fact that the respondent had himself admitted the participation in the incident, though he pleaded provocation and the right of private defence in respect of his mother which is clearly false. According to the learned counsel, on his own admission the onus shifted to the respondent to bring his case under one of the exceptions to the capital charge and this aspect has been totally ignored by the High Court. Learned counsel also submitted that the High Court has erred in discarding the evidence of the eye‑witnesses who by all standards are natural witnesses of the scene of the crime.

5. We have gone through the record of the case in the light of the arguments addressed by the learned counsel in support of the appeal but find that the view that has prevailed in the High Court is based on the conclusions and inferences which legitimately arise from the evidence produced by the prosecution itself. None of the alleged eye‑witnesses was from near the scene of the crime and the claim made by them as to the participation in the incident has been doubted by the High Court for very cogent reasons. The appreciation of the prosecution evidence made by the High Court, is in accord with well‑settled principles in cases such as this, and we, therefore, find no compelling reasons to persuade us to interfere with the acquittal of the, accused recorded by the High Court. In view of the failure of the prosecution to prove the charge levelled against the accused, the statement made by him in defence was to be accepted in its entirety, and in view of this well‑settled principle, full benefit of the plea of self‑defence accrued to him. It was for this reason that the High Court allowed the appeal filed by him and in result directed his acquittal. For these reasons, this appeal is dismissed. M. I. Appeal dismissed.