1. ASLAM RIAZ HUSSAIN, J.--Ishtiaq Hussain Shah seeks leave to appeal against the order of the Lahore High Court, Lahore dated 26th October, 1985 dismissing his appeal in a case under section 302, P.P.C. He was accused for having committed the murder of Ghulam Akbar Shah at 11-30 a.m.
2. On 14th August 1984.
3. The prosecution case briefly stated is that on the day of occurrence Allah Wasaya complainant and his brother Ghulam Akbar Shah deceased were present in the marriage ceremony of Ghulam Abbas. Mushtaq Hussain and Fida Hussain from village Shahani of Police Station Bhakkar and Ghulam Shabbir of village Marhanwali were also present alongwith other people in front of the village mosque. In the meanwhile, Ishtiaq Hussain Shah accused came there. He gave a slap to Ghulam Akbar Shah deceased by saying that he was a helper of Akhtar Abbas Shah and that why he had come to the marriage. At this, Ghulam Akbar Shah inflicted a blow with his shoe (Juti) to Ishtiaq Hussain Shah accused and also abused him. At this, Ishtiaq Hussain Shah took out a Chhuri from the fold of his Shalwar and gave a blow on his abdomen. Ghulam Akbar Shah fell down and died at the spot as a result of the injury. The occurrence was also witnessed by Mushtaq Hussain, Fida Hussain and Ghulam Shabbir P.Ws. The accused ran away from the place of occurrence with his Chhuri. Leaving the dead body at the spot, Allah Wasaya went to the police station and lodged the report.
4. During the investigation a blood-stained Chhuri was recovered from the accused petitioner. In the course of the medical examination the deceased was found to have suffered an injury in his abdomen. At the trial Court the. Prosecution produced two witnesses namely Mushtaq Hussain and Allah Wasaya (real brother of the deceased) in support of its case. Their testimony was sought to be supported by the recovery of the Chhuri and the medical evidence. In his statement under section 342, Cr.P.C. The accused-petitioner admitted having given a Chhuri blow to the deceased, but gave a different version which may be reproduced here for the facility of reference: "I have been falsely involved in the case. On the day of occurrence, I was entrusted with the arrangement of the meals in connection with marriage of my brother-in-law. The delay took place in the preparation of meals and the deceased started abusing me. I gave a slap to the deceased who gave me a Juta blow. The deceased caught my neck after giving filthy abuses, and I picked up a Chhuri lying nearby and gave a Chhuri blow on the limb of the deceased to free myself. Due to provocation and anger, the Chhuri hit the upper part and I had no intention to kill the deceased."
5. The learned trial Court disbelieved Mushtaq Hussain and relied upon only on one eye-witness, namely Allah Wasaya, the real brother of the deceased. Since the accused had himself admitted giving Chhuri blow to the deceased, the recovery of the said Chhuri as well as the medical evidence did not advance the prosecution case. As such the trial Court was to choose between the version given by the solitary eye-witness and the statement of the accused under section 342, Cr.P.C. It relied on the testimony of Allah Wasaya P.W. And convicted the accused/ petitioner.
6. Learned counsel for the petitioner has submitted that in this case there is the word of one man against the other and that the version given by the accused can be equally true. He urged further that in the circumstances of this particular case, where there was no previous enmity between the parties and the occurrence took place all of a sudden and the fact that the accused /petitioner gave only one Chhuri blow to the deceased, the case was fully covered by Exception 4 to section 300 PPC. In support of this contention the learned counsel has relied upon Muhammad Rafiq v. The State (1986 SCM R 1048).
7. We feel that the above-noted contentions have some force and the case needs further consideration. Leave is, therefore, granted to consider as to whether or not, in the circumstances of this case, the offence committed by the accused/ petitioner falls under section 302 or section 304, P.P.C.