1988 PLP 451 (SCMR)

SAAD SAOOD JAN, J.--This is a petition for special leave to appeal from the judgment dated 19-10--1983, of the Lahore High Court whereby the conviction of Muhammad Anwar, respondent, on a charge under section 307 of the Pakistan Penal Code, recorded by a Judicial Magistrate at Okara, for making a murderous assault upon Noor Ahmad, was set aside and he was acquitted.

2. The case of the prosecution was that on 3-9-1980, at 5 p. m. Noor Ahmad was returning to his house with a bag of atta on his head. Suddenly, Muhammad Anwar respondent appeared with a hatchet and inflicted a number of blows on him. On hearing his cries, his brother, Jafar, his cousin, Khadim Hussain, and one Muhammad were attracted to the spot. They rescued him and took him to the hospital at Renala Khurd.

3. It was further alleged by the prosecution that soon after the occurrence Noor Ahmad became unconscious. On 5-9-1980 A.S.I. Mazhar Iqbal visited the hospital and recorded his statement. On the basis of this statement, a case was registered against the respondent at Police Station Renala Khurd.

3. As regards the motive, the case of the prosecution was that 14/16 years earlier a cousin of the respondent was murdered. Noor Ahmad was tried for the said murder but he was acquitted. The respondent was alleged to be hostile towards him on account of this incident.

4. The respondent pleaded not guilty to the charge of making a murderous assault upon Noor Ahmad. He did not produce any evidence in his defence.

5. In support of its allegations against the respondent, the prosecution relied entirely upon the ocular testimony furnished by Noor Ahmad, Jafar, Khadim Hussain and Muhammad. The learned Magistrate accepted their statements, convicted the respondent of an offence under section 307 and sentenced him to rigorous imprisonment for a period of five years and a fine of Rs.5,000.

6. From the judgment of the learned Magistrate the respondent preferred an appeal before the High Court. The High Court thought that on account of the enmity between the parties, Noor Ahmad, his brother Jafar and his cousin Khadim Hussain could not be regarded as reliable witnesses. As regards Muhammad who was unrelated to the parties, it observed that he was chance witness. It found that the accounts of the occurrence given by these witnesses were contradictory and not supported by the medical evidence. It also noticed that there was a delay in the lodging of the first information report for which there was no satisfactory explanation. Accordingly, it set aside the conviction and sentence of the respondent.

7. In support of this petition it is contended that the occurrence took place during daylight and there was no reason why Noor Ahmad who was seriously injured should have falsely attributed the attack upon him to the respondent. It was a case of single accused and substitution was a rare phenomenon. The contradictions to which the learned Single Judge referred in his judgment were of a minor nature and did not detract from the credibility of the story of the prosecution. Shortly after the occurrence Jafar had approached the police but it declined to register a case on his statement. Thus, there was a satisfactory explanation for the delay in the lodging of the first information report.

8. The contentions raised on behalf of the petitioner need examina tion. Leave to appeal is granted. Let warrant of arrest, bailable in the sum of Rs.25,000 with two sureties in the like amount, returnable to Assistant Commissioner, Okara, be issued against Muhammad Anwar respondent. S.Q./N-48/S. Leave granted.