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Jail Petition No.78 of 1982, decided on 1st April, 1984.

(From judgment of Lahore High Court, 7th July 1982 in Criminal Appeal No. 447 of 1980) .

Art. 185(3)‑‑Penal Code (XLV of 1860), 5.302‑‑Murder‑‑Prosecution' case found to be well‑supported by ocular testimony, story of motive, factum of recovery and medical evidence‑‑No principle of appraisement of evidence relevant to dispensation of justice in a criminal case dis regarded by Courts below‑‑No scope for interference with concurrent finding against petitioner‑‑Leave to appeal refused.

Date of receipt of petition: 21st August, 1982.

The petitioner was convicted of the murder of Abdur Rauf deceased and sentenced under section 302, P.P.C. to imprisonment for life and to pay a fine of Rs.1,000 or in default to undergo R.I for six months The fine, if realized, was to be paid as compensation to the heirs of the deceased. His co‑accused Sarfraz was acquitted. The petitioner's appeal before the Lahore High Court failed though he was allowed the benefit of section 382‑B, Cr.P.C. He is now through this Jail petition seeking leave to appeal.

2. The petition is late by eight days but in view of the ground taken in the application for condonation, the delay is condoned.

3. The petitioner and his co‑accused are said to have attacked the deceased on 6‑7‑1978 at about 5 p.m. at a short distance from the shop of Muhammad Hussain at Shah Abdul Ghani Road, Baghbanpura, Lahore. The deceased who had been seen at that time passing in front of the shop had, on a query from Abdur Rashid, who was sitting at the shop, told that he was going to the petitioner to secure return of some money which he had loaned to him. On going a short distance he met the petitioner and his co‑accused and asked for the return of the money, at which within the seeing of Muhammad Hussain (P.W.4) and Abdur Rashid (P.W.5) the co‑accused held him in his clasp while the petitioner took out a dagger from the folds of his loin‑cloth and stabbed him at the abdomen. The deceased managed to free himself and placing his hand on the abdomen ran back while the assailants defying the efforts of witnesses to apprehend them, made good their escape. The occurrence was reported to the police by Muhammad Hussain. For motive, it was stated that the owner of a factory where the deceased also worked and the petitioner suspected the deceased to have been responsible for the dismissal had turned out the petitioner.

4. The petitioner was arrested the next day and at his pointing a blood‑stained Chhuri was recovered. On 8‑7‑1978 he was produced before a Magistrate where he made a confessional statement. The ocular testimony was furnished by Muhammad Hussain and Abdur Rashid P.Ws. who also supported the story of motive given in the F.I.R. The petitioner denied the allegations and asserted that the deceased who had been a person of bad character had in fact been injured by some other person but that he had been falsely involved on account of enmity with Muhammad Hussain P.W. from the house of whose father‑in‑law he had been previously evicted forcibly. In regard to the judicial confession, he admitted his having been produced before a Magistrate but denied having made any statement there and stated that his thumb‑impression had been obtained on some document. The Courts below accepted the prosecution case and relied on the retracted judicial confession to the extent of the petitioner's admission that he had inflicted the injury on the deceased.

5. In this petition, the petitioner has reiterated that he was innocent and that he had been involved due to enmity though he had never any quarrel with the deceased. I have examined the material on the record but I find that the prosecution case is well‑supported by the ocular testimony, the story of motive, the factum of recovery and the medical evidence. Even if the judicial confession be excluded as a corroboratory circumstance, as the same has not been accepted by the Courts below in toto, the case of prosecution does not suffer thereby. No principle of appraisement of evidence relevant to the dispensation of justice in a criminal case has been disregarded by the Courts below and as such there is no scope for interference with their concurrent finding against the petitioner. I am, therefore, inclined to dismiss the petition.

S. Q, Petition dismissed.

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