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Criminal Petition for Special Leave to Appeal No. 320/81, decided on 20th March, 1983.
(On appeal from the judgment and order of the Lahore High Court, dated 9‑6‑1981, in Cr. A. 1239/79, M. R. 120/80).
‑‑ Art. 185(3) read with Penal Code (XLV of 1860), S. 302‑Murder Benefit of doubt‑‑Contention that reasons which prevailed with courts below for extending benefit of doubt to one accused could in circumstances of case, be made available to other accused also nothing on record to reach a certain conclusion beyond any reasonable doubt as to which of two accused caused injuries to deceased‑Held, case was fit one for grant of leave to appeal to re‑examine evidence. [Benefit of doubt].
Sh. Masood Akhtar, Advocate‑on‑Record for Petitioners.
Nemo for the State.
Date of hearing : 20th March, 1983.
Muhammad Ayub and Abdullah his father having been tried for the murder of Hakim Ali, deceased, and injuries to Hakim (P. ‑W.) were convicted for murder and hurt. Their co‑accused Muhammad Siddique another son of Abdullah was acquitted. The deceased was earlier also injured by the accused side. He was yet to appear against them as a witness. It is alleged that in order to prevent him from doing so, he was attacked sad killed. Muhammad Ayub and Muhammad Siddique allegedly stabbed the deceased in the abdomen. Abdullah gave a sota blow to Hakim (P. W). There were recoveries of respective weapons from the accused as also the motive evidence‑ in addition to the two eye‑witnesses, namely, Hakim and Hashim (P. Ws.). Has him was not relied upon. .The motive was not accepted as such and the recoveries were also disbelieved by the learned trial Judge. Relying on the testimony of the injured eye witness the two petitioners were convicted for murder and hurt. Muhammad Ayub was awarded death sentence while Abdullah was sentenced to imprisonment for life. This was in addition to the sentence for hurt.
Muhammad Siddique was .acquitted on extension of benefit of doubt because the solitary injury attributed to him was too close to the solitary injury attributed to Muhammad Ayub so as to give arise to supposition that both might have been caused by the same person in quick succession.
A Division Beach in the High Court reduced the sentence of death to imprisonment for life insofaras Muhammad Ayub is concerned. Abdullah was acquitted in the charge of murder and the sentence already undergone was considered enough for the offence of hurt.
In pressing this petition for leave to appeal, learned counsel has contended that the reasons which prevailed with the learned Courts below for extending benefit of doubt to Muhammad Siddique could in the circumstances of the case be made available to Muhammad Ayub accused also. Apart from the ocular account given by Hakim (P. W.), there is nothing else so as to reach a certain conclusion beyond any reasonable doubt, that the person who caused two injuries in quick succession was Muhammad Ayub and not Muhammad Siddique. In other words according to the learned counsel Muhammad Ayub was also entitled to benefit of doubt. He also contended if Muhammad Siddique and Muhammad Ayub were not convicted, it was not possible to maintain the conviction of Abdullah.
After hearing the learned counsel we consider it a fit case for grant of leave to appeal, in order to re‑examine the evidence. Order accordingly.
Leave granted.
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