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Jail Petition for Leave to Appeal No. 57‑R of 1984, decided on 27th October, 1985.

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Petition for leave to appeal‑‑Statement of eye‑witnesses consistent, uniform and worthy of reliance‑‑Presence 3f such witnesses at spot considered not only justified but truthful and their testimony stood corroborated by medical evidence and further supported by recovery of blood‑stained shirt and blood‑stained Chhuri‑‑High Court while maintaining conviction of accused commuting penalty of death to imprisonment for life as according to them immediate cause of occurrence remained shrouded ‑in mystery‑ Appraisal of evidence on which conviction of accused by Courts below rested not open to any exception‑‑Leave to appeal refused.

This petition for leave to appeal, 'through Jail, is out of limitation by 65 days but the delay is condoned to enable examination of the case on merits, in view of the sentence of imprisonment for life recorded against the petitioner, Wahid Bux, for having committed the murder of his maternal‑uncle, Isa. This murder was committed on the bank of a Khala at Chah Dhingana, Mauza Thatha Chabolan, Tehsil and District Dera Ghazi Khan on 21‑2‑1980 at about 8‑00 a.m., when the petitioner was also accompanied by his younger brother Sadiq, who was his co‑accused but was acquitted by extending the benefit of doubt to him by the learned trial Judge.

The petitioner, Wahid Bux, has questioned his conviction under section 302, P.P.C. for which he was awarded a maximum penalty of death by the learned Additional Sessions Judge, Dera Ghazi Khan vide judgment, dated 30‑5‑1981, but which, on appeal and reference, was commuted to imprisonment for life by the learned Judges of the Lahore High Court, Multan Bench, Multan vide judgment, dated 2‑6‑1984, whereby the petitioner in addition to the fine of Rs.2,000 was also directed to pay a sum of Rs.5,000 as compensation under section 544‑A', Cr.P.C. while the benefit under section 382‑B of Cr.P.C. was also allowed to him.

The first information report in this case was lodged by Mitha, who is brother of the deceased and maternal‑uncle as well as father‑in‑law of the convict‑petitioner.

The details of the occurrence as narrated by Mitha in his statement (Exh. P.B.) are that he (Mitha) and his brother, Isa (deceased) used to reside at Chah Dhingana. His nephews, Wahid Bux (convict‑petitioner) and Sadiq (acquitted co‑accused) were also residents of that place. On the day of occurrence at about 8‑00 a.m. while he was present in his house, Isa, his brother, was washing his hands and face at the Khala towards the south of his Dera. He heard an alarm raised by Isa, Wahid Bux and Sadiq, whereupon he ran out of his house and saw Sadiq having grappled Isa and Wahid Bux inflicting dagger (Kati) blows to him. He and Shah Ali intervened whereupon the accused fled away. In the meantime, Qasim came there. Isa died at the spot.

The motive ascribed for the murder but refuted by the petitioner, was that Wahid Bux and Isa had been working jointly as labourers at Karachi and had a dispute over some amount between them.

The accused were arrested on 22‑2‑1981. The convict‑petitioner was wearing a blood‑stained shirt which was taken into possession vide memo. Exh. P.E. A blood‑stained Chhuri was also recovered at his instance and taken into possession vide memo. Exh. P.F. According to the Serologist's report (Exh. P.L.), the results about stains of blood on both these items of recovery were found to be positive.

Autopsy conducted by Dr. Iftikhar Hussain Khosa (P.W. 4) on 21‑2‑1980 at 4‑00 p.m., disclosed as many as six ante‑mortem injuries on the dead body of Isa. Injury No. 6 had been caused by a blunt weapon and the remaining by a sharp‑edged one. Injuries Nos. 1, 3 and 4 were declared to be grievous in nature and fatal while the remaining were simple.

Both the convict‑petitioner, Wahid Bux, and the acquitted- accused, Sadiq, were examined under section 342, Cr. P.C. Sadiq' (acquitted‑accused) stated that he had not taken part in the occurrence. The convict‑petitioner, Wahid Bux, confessed that he had killed the deceased but unsuccessfully pleaded grave and sudden provocation by giving his own version of the occurrence. He stated that at the morning time of the day of occurrence, he happened to pass near the spot and found the deceased, Isa, in compromising position with his wife. Therefore, under grave and sudden provocation, he lost his self‑control and killed him there while his wife escaped. He also stated that the occurrence was witnessed by his mother, Mst. Amiran (not examined) and Hussain Bux (D.W. 2), who. supported the defence version. The convict‑petitioner further stated that after the occurrence, he himself appeared and reported the matter at Police Station Choti, where he also produced his blood‑stained shirt and the blood‑stained Chhuri. He examined Rang Ali (D.W 1), Naib‑Moharrir of Police Station Choti to prove his report No. 5, dated 21‑2‑1980 (Exh. D.A.).

The occular account in this case was furnished by the first informant, Mitha (P.W. 6) and Shah Ali (P.W. 7). The statements of both these eye‑witnesses, being consistent and uniform were found to be worthy of reliance. Their presence at the spot was considered not only to be justified but they were also held to be the truthful witnesses of the occurrence. Their testimony moreover stood corroborated by the medical evidence which found further support from the recovery of blood‑stained shirt (Exh. P.E.) and blood‑stained Chhuri (Exh. P.F.). The learned Judges of the High Court accordingly maintained the conviction of the petitioner under section 302, P. P. C . but as according to them the immediate cause of the occurrence remained shrouded in mystery, the sentence of maximum penalty awarded to him by the learned trial Judge was commuted to that imprisonment for life as already stated above.

I have carefully gone through the judgments of both the Courts below, the grounds of the petition for leave to appeal submitted by the petitioner and also the evidence on the record and I find that the appraisal of the evidence on which the conviction of the petitioner by the Courts below rests is not open to any exception. I would accordingly dismiss this petition.

‑I agree.

This petition is dismissed.

M. Y. H. Leave refused.

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