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Petition for Special Leave to Appeal No. 500 of 1978, decided on 7th January, 1981.

(On appeal from the judgment of the Lahore High Court dated 5‑11‑1978 in Criminal Appeal No. 1244/76).

‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 302, 326 & 299.Explanation 2‑‑Death attributed directly to injuries caused‑‑On basis of doctor's remarks that blood needed for transfusion was not forthwith provided, plea raised that it could be taken to be a case under section 326, P.P.C. not accepted‑‑Non‑availability of blood for transfusion not to take out case from purview of offence under S. 302, P.P.C., in view of Explanation 2 to S. 299, P.P.C.‑‑Leave to appeal refused.

Muhammad Rahim v. Kadeerullah and another 1969 PCr.LJ 18.

Jarri Ullah Khan, Advocate Supreme Court with Sh. Abdul Karim, Advocate‑on‑Record for Petitioner.

Date of hearing: 7th January, 1981.

‑The petitioner, who has been convicted under section 302, P.P.C. and sentenced to suffer life imprisonment, seeks leave to appeal against the judgment of the Lahore High Court dated 5‑11‑1978 whereby his conviction was maintained.

2. The prosecution case against the petitioner was that on 12‑8‑1974 at 10 a.m. near Mission Chowk, Sahiwal he had attacked and stabbed the deceased Fayyaz Ahmad who was removed to the Hospital by Muhammad Siddiq (P.W.9) and others where a Magistrate recorded by the police officer and his dying declaration then. He expired 12 days later. The petitioner was arrested seven days after the occurrence and led to the recovery of blood‑stained dagger P.3 which was taken into possession. The report of the Serologist was that it was stained with human blood.

3. The plea of the petitioner throughout has been that it was a case of mistaken identity that though Yousaf was named as the assailant but he was not the same Yousaf and there were four persons in the locality having the name Yousaf. He denied the recovery of the blood stained knife.

4.The trial Judge believed the eye‑witness account provided by Muhammad Siddiq (P.W.9), the recovery of the blood‑stained knife the dying declaration made by the deceased and considered the case,., against 'the petitioner fully made out. Convicting him he was sentenced to death and fine of Rs. 1,000 payable as compensation to the heirs of the deceased.

5. On appeal and while seize & of the matter of confirmation of the death sentence the learned Judges of the High Court held that Muhammad Siddiq and Munir Ahmad P.Ws. were truthful witnesses. The dying declaration recorded by the Magistrate provided the necessary corrobora tion and the recovery of the weapon of offence was held fully established. It was also noted that the petitioner was 15/16 years of age at the time of occurrence while the deceased was 18 years of age. The sentence of death was not confirmed and instead sentence of life imprisonment was imposed.

6. The learned counsel for the petitioner has contended that in this case the maker did not prove the first information report thereof as he was not produced at the trial on the ground that he had been won over. Muhammad Siddiq (P.W.9) is not the eye‑witness mentioned in the dying declaration. Besides as urged by the petitioner, it .was a case of mistaken identity and the dying declaration showed signs of having been procured by prompting. Finally, it was urged that it was not a case of intentional murder.

7. So far as the identity of the petitioner is concerned it is not disputed by the learned counsel for the petitioner that none of the Yousaf except the petitioner had the alias of Kaka. This identifies him and distinguishes him from all others. Alias of the petitioner finds mention in the dying declaration made by the deceased. It is not one of those cases where either on account of the situation the time or the injuries caused on the victim, the identity of the assailant may have remained shrouded in mystery. The deceased had named only one person. There was no question of prompting or substitution for admittedly the petitioner had no enmity whatsoever with the deceased. As regards the evidence on motive the two Courts have believed these witnesses and it does not appear that in doing so they have violated any principle applicable to the appreciation of evidence.

8. In order to establish that it could be taken to be a case under section 326, P.P.C. the learned counsel for the petitioner referred to the decision in Muhammad Rahim v. Kadeerullah and another 1969 PCr. LJ 18. The doctor had been extensively examined in this case and he attributed the death directly to the injuries caused and the only factor brought out in his statement is that the blood needed for transfusion was not forthwith provided. The non‑availability of blood for transfusion would not take out the case of the petitioner from the purview of the offence under section 302, P.P.C. in view of the explanation 2 of section 299, P.P.C.

9. We find that all the relevant factors have been taken into consideration by the learned Judges in the High Court and the conclusions drawn by them with regard to the credibility of the witnesses and the quality of the evidence is unexceptionable. Leave to appeal is, therefore, refused.

M.I Leave refused.

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