' JAVED IQBAL, J.--- This petition for leave to appeal is directed against judgment, dated 12-2-2002 passed by learned Lahore High Court, Lahore, whereby Criminal Appeal bearing No,1667 of 2000 preferred on behalf of petitioner has been dismissed and judgment dated 31-10-2000 passed by learned Additional Sessions Judge, Kasur, whereby the petitioner was convicted under section 302, P.P.C. And sentenced to imprisonment for life with further direction to pay Rs,50,000 as compensation to the legal heirs of the deceased and in default to undergo six months' S.I. With benefit of section 382-B, Cr.P.C. Has , been kept intact. The co-accused namely Abdul was, however, acquitted.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are that Mst.
Hashmat Bibi widow of Ghulam Mohyud-Din filed a complaint under sections 302/148/149, P.P.C. In which she alleged that her husband as well as sons are Zamindars by profession, they also keep cattle and they have made cattle-house near their residence. In this cattle-house i,e, Haveli, there is a sitting room and other room for cutting the fodder for cattle where there is electric fodder cutter. In between sitting room (Baithak) and room for cattle there is a door which remains open and without plank. The husband of the complainant Ghulam Mohy-ud-Din used to sleep in the "Baithak" for guarding the cattle. In Baithak and room for cattle along with courtyard electric bulbs were on at the time of incident. The complainant alleged that four months ago from the date of filing of this complaint, the complainant went along with his brother Muhammad Yaqoob and complainant Muhammad Aslam in -the cattle house to milk the animals. When all the three entered in the. Baithak where her husband was sleeping, they saw that her husband Ghulam Mohy-ud-Din was lying on the cot. Hadayat and Inayat had caught him from his legs, Muhammad Ali had caught her husband from arms and Yahya accused had caught hold the testies of her husband and were squeezing. Abdul accused had put his hands on the mouth of her husband. In spite of this her husband was raising hue and cry. The moment the complainant along with his brother and son entered, the accused ran away from the spot. They tried to catch hold the accused when Abdul accused pointed pistol at them and threatened them with dire consequences. The complainant along with others due to fear had not stepped forward and accused managed to escape. Thereafter, she went to her husband. Her husband had died due to squeezing of the testies. The learned Additional Sessions Judge after completion of necessary formalities and holding inquiry under section 202, Cr.P.C. Summoned the petitioner along with co- accused by means of order, dated 3-3-1996 and after conclusion of trial the petitioner was convicted and sentenced as mentioned above, hence, this petition.
3. It is, inter alia, contended by Mr. Akhtar Masood Khan, learned Advocate Supreme Court on behalf of petitioner that the evidence which has come on record has not been appreciated in its true perspective which resulted in serious miscarriage of justice and the petitioner has been convicted by awarding imprisonment for life by ignoring the fact that no specific role whatsoever was assigned to him and moreso, the co-accused has been acquitted on the same evidence on the basis whereof petitioner was found guilty. It is urged with vehemence that the variation between the contents of private complaint and that of F.I.R. Could not be noticed by the learned trial and Appellate Court which resulted in grave prejudice against the petitioner. It is also contended that the grave contradictions in the statements of eye-witnesses namely Mst. Hashmat Bibi (P.W.4) and Muhammad Yaqoob (P.W.5) have been ignored without any rhyme or reason. It is also contended that medical evidence is in conflict with eye-account furnished by Mst. Hashmat Bibi (P.W.4) and Muhammad Yaqoob (P.W.5) and therefore, their version being doubtful should have been discarded. It is urged emphatically that learned trial and Appellate Courts have ignored the material fact that in all the investigations conducted by different Investigating Officers the petitioner was declared innocent as no incriminating material could be collected against him.
4. Conversely Mr. A.H. Masood, learned Advocate Supreme Court on behalf of respondent has vehemently controverted the contentions as agitated on behalf of petitioner and supported the judgment impugned for the reasons enumerated therein by arguing that prosecution has established the guilt to the hilt by producing cogent and concrete eye-account furnished by Mst.
Hashmat Bibi (P.W.4) and Muhammad Yagoob (P.W.5) duly supported by medical evidence.
5. After having gone through the entire record we are of the view that the contentions as raised on behalf of the petitioner are not without substance. We are, therefore, inclined to grant leave for reappraisal of entire evidence so that the contentions as mentioned herein above could be dilated upon and decided. The appeal may be fixed at some early date.