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Criminal Petition for Special Leave to Appeal No. 36‑P and Criminal Petition No. 43‑P of 1981, decided on 23rd November, 1983.

(Against the judgment of Peshawar High Court dated 10th June, 1981 in Criminal Appeal No. 177 of 1980 and Criminal Revision No. 140 of 1980).

‑‑ Art. 185(3)‑Penal Code (XLV of 1860), S. 302‑Murder‑‑Evidence‑‑Analysis of evidence by High Court found to be proper and unexceptionable‑No question of law or principle of law raised which would require further examination by Supreme Court‑Leave to appeal refused.‑‑[Evidence].

Khawaja Muhammad Khan, Advocate Supreme Court and Nur Ahmad Khan, Advocate‑or‑Record for Petitioners.

S. Safdar Hussain, Advocate‑on‑Record for Respondent.

M. Ajmal, Advocate Supreme Court for the State.

Mian Ziauddin, Advocate Supreme Court and Qasim Imam, Advocate‑on-Record for Petitioner.

Nemo for the State.

Date of hearing : 23rd November, 1983.

Mukhtiar the convict and Shah Kishwar the complainant both by separate petitions seek leave to appeal against the judgment of the Peshawar High Court dated 10‑6‑1981 whereby on an appeal and while seized of the murder reference the learned Judges of the High Court set aside the conviction of 1kramullah, a brother of Mukhtiar convict and altering the sentence of death awarded to Mukhtiar into one of fife imprison went.

Mukhtiar and Ikramullah the two accused tried for the murder of Muhammad Israr, a brother of Shah Kishwar, are related to the deceased. The accused were the paternal aunt's son of the deceased and Shah Kishwar. They had no previous enmity. A dispute had, however, arisen between them over the demolition and reconstruction of a mosque. The complainant party had undertaken its reconstruction. The accused were objecting to it claiming exclusive rights of its use.

The prosecution case against the accused was that on 29‑7‑1979 Shah Kishwar and Muhammad Israr deceased were returning to their house from the Hujra of one Malik Rafiullah in village Mushtarzai Police Station Badaber when they found Mukhtiar and Ikramullah having taken cover behind a wall who started suddenly firing at them. The shot fired by Mukhtiar petitioner bit and injured Muhammad Israr on the thigh. Shah Kishwar escaped unhurt. Muhammad Israr, was carried to the Lady Reading Hospital where Muhammad Ali A. S. I. '(P. W. 8) was present who recorded his statement which served as the first information report registered at the Police Station Badaber subsequently. The same night Muhammad Israr died the hospital at 9‑35 p.m. due to profuse bleeding from the injury. In support of its case the prosecution produced the statement of Muhammad Israr which served as a dying declaration, examined Shah Kishwar as prosecution witness No. 9 and one Mazhar who happened to be present, at the time of occurrence and appeared as P. W. 10. There was only one injury found on the person of the deceased. It was a bullet wound and the lead of the bullet was recovered from the injury. Mukhtiar the convict had, it appears, lodged the same day I.e. 29‑7‑1979 at 5‑45 p.m. at the Police Station Badaber a report under section 307/148/149, P. P. C. against the deceased, Shah Kishwar the complainant and them other brothers and father about over subscription for the Mukhtiar and his co‑accused brother Ikramullah both denied having fired at and attempted at the lives of Muhammad Israr and Shah Kishwar. They stated that they had been falsely implicated in the case Mukhtiar admitted having lodged a counter‑case against the deceased, his brothers and father. They produced in defence two witnesses and certain documents to demonstrate that in fact the record of the police station had been tampered with in order to make out a case for the recording of the dying declaration of the deceased as the first information report.

The trial Court found that in fact Mukhtiar and Ikramullah both were present at the time of occurrence, that both had fired at the deceased and Shah Kishwar, that they shared the common Intention to cause their deaths and that the motive for this occurrence was the dispute over the demolition and reconstruction of the mosque by the complainant side, An effective shot was attributed to Mukhtiar and only one shot had been fired he was on conviction under section 302, P. P. C. sentenced to death and a fine of Rs. 5,000 or in default six months' R. I. while Ikramullah on conviction under section 302, P. P. C. was sentenced to life imprisonment and a fine of Rs. 5,000 or in default, six months R.I. The fine, its recovered, was to be paid as compensation to the heirs of the deceased.

While seized of the appeal of the convicts, a revision by Shah Kishwar for the enhancement of the sentence of 1kramullah and the murder reference the High a Court on an analysis of the evidence and the site plan of the spot where the occurrence had taken place came to the conclusion that Mukhtiar alone was responsible for firing effectively at Muhammad Israr, that Shah Kishwar was not ‑fired at and Ikramullah did not share the intention of Mukhtiar appellant. On these findings the High Court accepted the appeal of Ikramullah and acquitted him of the charge. The death sentence of Mukhtiar was not confirmed and instead it was converted into life imprisonment. The fine was kept intact and so was the order of payment of compensation.

In the convict's appeal the contention of the learned counsel for petitioner Mukhtiar is that the dying declaration was a suspect document and alongwith oral evidence it was disbelieved in so far as Ikramullah was con cerned and also with regard to the genesis of the occurrence and in such a situation the same evidence could not be utilized for convicting him. As against this the complainant petitioner contended that the evidence fully made out a case against both Mukhtiar and Ikramullah and the acquittal of one and a reduced sentence of the other was uncalled for.

We have been taken through the evidence and find that the analysis of the evidence by the High Court is proper and unexceptionable. The maximum benefit that could reasonably be extended to the accused on the facts of the case was made available to him ensuring thereby safe administration of criminal justice and at the same time the exaggerations and the embellishments were identified and excluded and the case against Mukhtiar was found established. In this case as there was a counter‑report, the location of both the parties and the place of occurrence made all the difference and on its basis the High Court has come to a conclusion. There was only one injury on the thigh which happened to be serious enough to cause the death of Muhammad Israr soon after the occurrence. In the absence of any previous enmity or planning the High Court was right in taking it to be a sudden affair. In the circumstances we find that the evidence has been correctly appraised and that except for raising a. question of its reappraisement the two petitioners did not raise any question of law or principle of law which required further examination by this Court. Leave to appeal is refused in both these cases.

S.Q Leave refused.

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