SAID MUHAMMAD Versus FALAK SHER

ORDER

SAAD SAOOD JAN, J.- -This is a petition for special leave to appeal from the judgment dated 12-4-83 of the Lahore High Court whereby the conviction and sentences of the respondents, recorded by the Additional Sessions Judge, Sahiwal, on a charge under section 302, read with section 34 of the Pakistan Penal Code, were set aside and they were acquitted. The petitioner is the father of Falak Sher deceased who was alleged to have been killed by ~ the respondents.

2. The occurrence took place on 1-7-79 at about 8 P.M. According to the prosecution, at the relevant time the deceased was on his way back to his village on a tractor after getting it repaired from Baseerpur. Saee Khan (P.W.7) and Bagga (PW.8) were riding with him on the tractor. When he reached near the canal bridge at Chandoor, he saw the respondents through the headlights of the tractor. Munawar, respondent No.3 was carrying a .12 bore double barrel gun while Falak Sher and Asghar, respondents No.1 and 2, were empty handed. Respondents No.1 and 2 raised a Lalkara that they were to take revenge for their humiliation. As the deceased drove past them, Munawar fired at him. He was hit on his back side and left arm. Nevertheless, he was able to drive away tractor. After covering some distance he stopped the tractor. Apparently, he began to feel the effect of the injuries received by him. He was put on a cot by his companions, Saee Khan and Bagga, and taken to the Police Post at Baseerpur where he made a statement before A.S.I. Mulazim Hussain. On the basis of his statement, a case was later registered at Police Station Depalpur. He died on 5-7-79 at a Health Centre.

3. Falak Sher, respondent No.1, was married to Mst. Zubaida. Some years before the occurrence he divorced her. Later, she married the deceased. This was stated to be the motive for the occurrence.

4. The case was investigated by A.S.I. Mulazim Hussain (PWll). He collected two crime empties from the scene of occurrence alongwith some other articles. He arrested Munawar on 13-7-79. At the time of his arrest Munawar produced a gun before him. The gun and the empty cartridges were sent to the Forensic Science Laboratory. According to the report of the laboratory, both the crime empties had been fired from the said gun.

5. The respondents pleaded not guilty to the charge against them. They denied that they were responsible for causing the death of the deceased and alleged that they had been falsely implicated. They did not produce any evidence in their defence.

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6. At the trial the case against the ? respondents rested upon the dying declaration of the ? deceased which he had made before A.S.I. Mulazim Hussin(PW.11) ocular testimony provided by Saeed Khan (PW.8) and Bagga PW9) and the recovery of the gun at the instance of Munawar from which the crime empties recovered from the scene of occurrence were found to have been fired. The trial Court believed the dying declaration and the testimony of the eye-witnesses:. It also accepted the recovery evidence. Accordingly, it convicted all the three respondents of an offence under section 302, read with section 34 of the Pakistan Penal Code. It sentenced Munawat to death and the other two respondents to imprisonment for life. It also imposed fines upon them.

7. On appeal and reference, the High Court doubted the genuineness of the dying declaration and thought that the eye?witnesses had not given a satisfactory explanation for their presence at the scene of occurrence. It also took the view that the ocular testimony was in conflict with the medical evidence. It rejected the recovery evidence also. Accordingly, it found that the ally gation5 against the respondents were not proved and acquitted their;

8. In support of this petition, it is urged that the reasons giver by the High Court for doubting the genuineness of the dying declaration were insubstantial. The deceased had survived the attack by a few days and there was no reason why he should have within few hours of the occurrence falsely named Munawar as the person who had shot at him. The claim of the eye-witnesses that they were present at the scene of occurrence found confirmation from the fact that it was they who had taken the deceased to the Police Post. Further, the mere fact that the crime empties and the gun recover from Munawar were sent on the same day to the laboratory was by itself insufficient to compromise the quality of the recovery evidence particularly when there was nothing to show that the Investigating Officer had been dishonest.

9. The contentions raised on behalf of the petitioner nee examination. Leave to appeal is granted in respect of Munawar who, was alleged to have fired at the deceased and whose implication in the occurrence is further supported by the recovery of a gun from which the crime empties recovered from the spot were found to have been fired. As regards the other respondents, the petition is dismissed. Let bailable warrant of arrest in the sum of Rs.25,000 with two sureties in the like amount returnable to the Assistant Commissioner, Depalpur issue against Munawar respondent.

M.I. /S-91/S ??????????????????????????????????????????????????????????????????????????????????????? Order accordingly.