' SAAD SAOOD JAN, ACTG. C.J.---The petitioner Muhammad Mansha, and one Abdul Rashid were convicted by the Additional Sessions Judge at Gujranwala of the offence under section 302 read with section 34, Pakistan Penal Code, for causing the death of Abdul Sattar, deceased, and were sentenced to imprisonment for life and payment of fines and compensation. The convicts preferred an appeal before the High Court. A learned Single Judge acquitted Abdul Rashid but maintained the conviction and the sentence of the petitioner. From the judgment of the High Court the petitioner seeks leave to appeal from this Court.
2. The occurrence took place on 18-9-1986 after Isha prayer in the fields of village Kot Shera. It was the case of the prosecution that the petitioner and Abdul Rashid attacked the deceased with daggers. The deceased received as many as four incised wounds and he died at the spot. The occurrence was reported by the father of the deceased, Allah Ditta, to Sub-Inspector Muhammad Hussain of Police Station Qila Didar Singh on the same evening.
3. At the trial, the petitioners pleaded not guilty to the charge of causing the death of the deceased.
He did not deny that he was not responsible for causing the death of the deceased but came out with his own version: "Factual position is that on the night of occurrence, I alongwith my sister and brother's wife were coming from our Dera which is situated at a distance of 50 Karams from the place of occurrence.
My sister and sister-in-law both sit in the field nearby to answer the call of nature. Abdul Sattar deceased was playing drum on Tegari and was singing obscene songs whom I tried to check as ladies were in the vicinity of that place. Deceased refused to do so, and pounced upon me and started giving me fist blows. Deceased was a well-built and stout person and a boxer, He was also an army deserter, A grappling ensued and we came in the middle of metalled road where a Chhuri dropped from the fold of Abdul Sattar deceased which I picked up while I was under attack and being enraged and under severe blows, I gave Chhuri blows to the deceased and after the occurrence brought it at the spot. Police under the influence of complainant party had not put up faithful version of occurrence. Abdur Rashid co-accused was not present at the spot."
4, To prove its version the prosecution examined two witnesses, namely, Abdul Ghafoor (P.W. 9) and Allah Ditta (FN. 10). As already stated Allah Ditta (P.W. 10) was the father of the deceased. Abdul Ghafoor (P.W. 9) was related to the deceased,
5. The High Court was not satisfied with the account of the eye-witnesses and in this context it observed that the defence version to the extent of the happening of the occurrence was more 'plausible and befitting in the circumstances of the case'. In view of this finding it needs to be considered if it was a fit case where the petitioner should at all have been convicted or if his case fell under Exception 4 to section 300, Pakistan Penal Code. To consider these questions leave to appeal is granted to the petitioner.