' ASLAM RIAZ HUSSAIN. J.-This petition is directed against the judgment of the Lohore High Court dated 24-2-1980 whereby the appeal of Mukhtar respondent was partly accepted by the High Court inasmuch as it altered his conviction from section 302, P. P. C. To one under section 304-1, P. P.
C. And reduced his sentence from imprisonment for life to that already under gone by him i,e, (3 years and 8 months).
2. The facts, briefly, are that Mukhtar respondent was tried, inter alia, for committing the murder of Shabbir deceased at 9 p. m. On 23-6-1976 in the area of Chak No, 5/1-AL Tehsil and District Okara.
' The F. I. R. Was lodged promptly at Police Station Renala Khurd. On his arrest the blood-stained shirt (P. 7), and Chadar (P. 8) were got removed from his body. On examination they were found to be stained with human blood. Churri (P. 3) a revolver (P. 4) and a bandolier (P. 5) were recovered by the police. Chhuri (P. 3) was found to be stained with human blood.
3. The motive for the offence is stated to be that the accused suspected the deceased of having illicit relation with his niece Mst Gudoo. About a week before this occurrence the accused had complained about it to Azam Ali P.W. The uncle of the deceased. The witness assured him after making inquiry from the deceased that it was not correct.
4. The prosecution case, briefly, is that on the fateful night Azam Ali was sitting in front of the Dera along with the deceased, Muhammad Bashir Imam Ali P. Ws. Hanif and Muhammad Siddiq. At about 8-30 p. m., the respondent Mukhar came there and asked the deceased to listen to him. The deceased at that time was wearing his licensed revolver in a bandoliar containing 10 bullets. He got up and went up to the accused where both of them had a short conversation and then went away together. Azam All P. W. The uncle of the deceased (Shabbir) got suspicious on account of the previous complaint made to him by the accused which he mentioned to the witnesses present with him, and asked them to follow the accused and the deceased to see where they had gone.
Accordingly the witnesses left to follow the deceased and the accused. Imam Ali P. W. Had a torch which he carried with him. When they came out of the village they heard a shirek and saw in the light of the torch that the accused respondent was trying to stab the deceased with a Chhuri and the deceased was trying to catch hold of the Chhuri. They saw the accused respondent giving two Chhuri blows on the abdomen of shabbir deceased who fell down. I he respondent then removed the revolver and threatened the witnesses with dire consequences that if they dared to come near they would be dealt with similarly. The respondent ran away along with the blood stained Chhuri, the revolver and the bandoliar. As a result of the injuries the deceased died at the spot.
5. At the trial the prosecution relied on the ocular testimony of Muhammad Bashir (P. W. 10) and Imam Ali (P. W. 11) together with the evidence of the afore-mentioned recoveries ; medical evidence and the motive.
' The trial Court believed the prosecution version, convicted Mukhtar respondent under section 3u2, P. P. C. And sentenced of to imprisonment for life. He was further convicted under section 379, P. P.
C. For the theft of the revolver and bullets and sentenced to 3 years R. I. Both the sentences were ordered to run concurrently.
6. On appeal the High Court acquitted him of the charge under section 302, P. P. C. And altered it to one under section 30 4-1, P. P. C. And reduced his sentence to that already under gone (3 years and 8 months)
State has filed the present petition against his acquittal of the charge of murder.
7. We have heard the petitioner's counsel and gone through the impugned judgment. We notice that the learned High Court has held that ............. There appears to be no reason to disbelieve the ocular evidence. The defence has not brought anything on the record to show that the eye-witnesses were, in any way, hostile to the appellant. In addition to the ocular evidence there is other strong circumstantial evidence as well in the form of recovery of blood-stained clothes of the appellant and Chhuri which was found to be stained with human blood. Blood was also found at the venue."
' He, however, acquitted him of the charge under section 302, P. P. C. And convicted him under section 304-I, P. P. C.
8. The learned counsel for the State drew our attention to the reasons recorded by the learned High Court for acquitting the respondent of the charge under section 302, P. P. C. And altering it to one under section 304-I, P. P. C. The reasons may be reproduced below :- "However, the only thing which goes in favour of the appellant is that none of the witnesses heard as to what transpired between the deceased and the appellant before the former was attacked.
The deceased had five injuries in all, out of which two were found to be grievous and the others were simple. I am, therefore, of the view that the conviction of the appellant should have been under section 304 (1) P. P. C. Rather than under section 302 P. P. C. And I accordingly alter his conviction ... . "
9. He submitted that the above noted reason is not at all sufficient for alteration in the conviction.
We are inclined to agree with this submission and fell that the matter needs further consideration.
10. We, therefore, grant leave to consider what in view of the evidence on the record which was believed by the learned High Court as mentioned in 4 paragraph No, 7 above the High Court was justified in acquitting the respondent of the charge under section 302, P. P. C.
11. Bailable warrants in the sum of Rs, 25,000 shall be issued against Mukhtar respondent, to the satisfaction of District Magistrate, Okara.