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Criminal Petition No. Q‑4 of 1985, heard on 2nd September, 1985.

‑‑ Art. 185(3) ‑Penal Code (XLV of 1860), S. 302‑Criminal Pro cedure Code (V of 1898), S. 497/498‑High Court disbelieving testimony of two of eye‑witnesses and relying on solitary statement of prosecution witness who was an interested witness inasmuch as it was he who was cause of whole trouble as he had picked up a quarrel with co‑accused which resulted in incident without any independent corroboratory evidence by way of incriminating recovery from accused‑Trial Court dubbed testimony of third eye‑witness as "obliging and concessional" which rendered same to be unbelievable Dying declaration also disbelieved by trial Court‑Evidence on record needed to be reappraised to ascertain whether Courts below had appreciated evidence in accordance with established principles relating to appreciation of evidence in criminal cases‑Leave to appeal granted but prayer for ad interim bail rejected in circumstances.

‑‑ S. 302‑Appeal before Supreme Court‑Supreme Court consider ing that accused was a young boy and a student in a local College was likely to rot in jail if case was not fixed at an early date, ordered appeal to be fixed as soon as possible.

A. H. Memon, Advocate Supreme Court and M. S. Ghaury, Advocate -on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 2nd September, 1985.

Mahmood Khan Sheerani petitioner seeks leave to appeal against the short order of the High Court dated 22‑7‑1985, and the judgment dated 5‑8‑1985 whereby detailed reasons have been recorded by the High Court for the aforementioned short order.

2. The F. I. R. in this case was lodged by Muhammad Jaffar (deceased) which was, after his death, treated as his dying declaration and formed as part of the prosecution evidence in the case.

3. Briefly stated the facts mentioned in the said statement are that at about 2 p.m. on 30‑9‑1983, Muhammad Jafar (deceased) alongwith his brother Sher Muhammad and another friend Dr. Ghulam Muhammad Kansi (P. W. 3) had gone to attend a marriage ceremony at the house of a friend in Quetta. While returning from there they were met in the way by Mahmood Khan (petitioner) and his friends Munir Ahmad and Muhammad Jan (co‑accused). For some reason, not clearly stated in the F. I. R., there was an exchange of hot words between Muhammad Jan co‑accused and Dr. Ghulam Muhammad (P. W. 3). Mahmood Khan Sheerani (petitioner) took out a knife and attacked Dr. Ghulam Muhammad who stepped aside swiftly and saved himself. Muhammad Jafar (deceased) tried to intervene but Munir Ahmad (co‑accused) caught hold of him (Muhammad Jafar, deceased) from backside, while Mahmood Khan Sheerani petitioner gave him a knife blow on the abdomen. It is alleged further that Mahmood Khan Sheerani (petitioner) and Munir Ahmad (co‑accused) gave fist blows to the companions of the deceased. After the incident the accused ran away.

4. Muhammad Jafar, who was still alive, was taken in a rickshaw to the civil hospital where he made a statement before Muhammad Tariq A. S. 1. who had come to the hospital on receiving a message from the hospital. But Muhammad Jafar died subsequently, whereafter his afore mentioned statement was treated as his dying declaration.

5. At the trial the prosecution relied on the ocular testimony of Sher Muhammad (P. W. 1). Ali Muhammad (P. W. 2) and Dr. Ghulam Muhammad (P. W. 3) as also the aforementioned dying declaration of Muhammad Jafar deceased.

It may be mentioned that no incriminating weapon was recovered from the accused and even blood‑stained earth was not recovered from the spot. As such there was no other corroboratory evidence.

6. The trial Court vide its judgment dated 18‑6‑1985 acquitted Muhammad Jan co‑accused but convicted Munir Ahmad and Mahmood Khan Sheerani (petitioner) under section 302, P. P. C. and sentenced each of them to death and a fine of Rs. 10,000 and one year further R.1. in case of default in payment of fine.

7. The convicts filed an appeal before the High Court, which vide its judgment dated 22‑7‑1985/5‑8‑1985 acquitted Munir altogether and altered the conviction of Mahmood Khan Sheerani petitioner from section 302, P. P. C. to one under section 304‑II, P. P. C. and reduced his sentence to 7 years' R. I.

Not feeling satisfied Mahmood Khan Sheerani has filed the present petition for leave to appeal.

8. We have heard the learned counsel for the petitioner at some length. He also took us through the relevant portions of the impugned judgment.

9. The learned counsel for the petitioner referred to paragraph 55 of the impugned judgment and pointed out that the learned High Court had disbelieved the testimony of two of the eye‑witnesses namely Sher Muhammad (P. W. 1) and Ali Muhammad (P. W. 2). In this connection the learned counsel relied on the following observations of the learned High Court :‑

"These both witnesses throw upon him (Munir Ahmad) the responsibility of catching hold the accused to facilitate appellant Mahmood to cause the fatal injury on vulnerable part of his body, (but) their evidence in that respect has been totally belied by Ghulam Muhammad P. W. Ghulam Muhammad P. W. has not only exonerated him (Munir co‑accused) from the part assigned to him by the abovesaid two witnesses but even has not shown his presence at the Wardat..."

The counsel pointed out further that the learned Sessions Judge had dubbed the testimony of the third eye witness namely Dr. Ghulam Muhammad (P. W. 3) "as obliging and concessional", which renders it unreliable.

10. He then referred to paragraph 35 of the impugned judgment and urged that the learned trial Court had even disbelieved the dying declara tion. In this connection he referred to the following observation regarding the dying declaration :‑

"This fact by itself is sufficient to cast doubt in one's mind regarding its genuineness and truthfulness."

11. The counsel urged that the learned High Court had erred in maintaining the conviction of the petitioner on the state of the evidence.

He also urged that the High Court had erred in relying on the solitary statement of Ghulam Muhammad P. W. without any independent corroboratory evidence by way of incriminating recovery from the accused/ petitioner. He urged further that it was necessary to look for such corroboratory evidence in view of the fact that Ghulam Muhammad P. W. was an interested witness inasmuch as it is he who was the cause of the whole trouble, as he had picked up a quarrel with Muhammad Jan (co‑accused) which resulted in the incident.

12. The above‑noted submissions hive considerable weight and we feel that this is a fit case in which evidence on the record needs to be) reappraised to ascertain whether Courts below had appreciated the evidence in accordance with the established principles relating to appreciation of evidence in criminal cases. Leave is, therefore, granted for this purpose.

13. The learned counsel for the petitioner also prayed for grant of ad interim bail, but considering the facts and circumstances of this case and the sentence awarded to him we do not consider it a fit case for grant of interim bail. The said prayer is, therefore, rejected.

However, considering that the petitioner is a young boy and a student in a local college and is likely to rot in jail if the case is not fixed at aril early date, the appeal may be fixed for hearing as soon as possible.

M. B. A. Leave granted.

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