' IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioner/convict Waseem-ud-Din son of Anwar-ud-Din had instituted instant petition for leave to appeal against the judgment dated 31st May, 1999, whereby Murder Reference No,7 of 1994 and Criminal Appeal No,91 of 1993 filed by him were disposed of by declining to confirm the sentence of death awarded to convict and he was ordered to undergo imprisonment for life under section 302, P.P.C.
2. Succinctly prosecution case as gleaned from F.I.R., dated October, 30, 1992 (Exh.P.A./1) lodged by Amanullah son of Mehmood Khan father of deceased Muhammd Zafar Hayat is that petitioner stabbed to deceased in the shop of Muhammad Hanif (uncle of the accused). Deceased Zafar Hayat subsequently succumbed to injuries in the hospital as such petitioner was booked for the offence under section 302, P.P.C. After registration of case investigation commenced and petitioner was arrested on 18th November, 1992 from Railway Station Dera Nawab Sahib. After his arrest he led the Investigating Officer for the recovery of crime weapon i.e, daggar (article P.3) vide Exh.P.D.
Similarly he got recovered his bloodstained Shalwar article P.4 and Qameez Article P.5 vide recovery memo. Exh.P.E. The incriminating article i.e, daggar (Khanjer) and clothes were sent for report of Chemical Examiner who vide report Exh.P.P. Opined that these articles are stained with human blood.
3. As the petitioner did not plead guilty, to the charge, therefore, prosecution to establish accusations against him led evidence, on completion whereof statement of petitioner under section 342, Cr.P.C. Was recorded. In continuation of his statement he filed a detailed written statement Exh.D.C. Wherein he admitted the happening of the incident in the shop of his maternal uncle Muhammad Hanif. He took the plea that on that day deceased Zafar Hayat persuaded him to accompany him in order to satisfy his unnatural lust. On his refusal the deceased gave a blow with iron rod on his head due to which he received injury on his head and when the deceased was going to repeat the blow with iron rod he picked up a Churri which was lying in the shop and in exercise of his right of self-defence contrary to his intention to commit the murder hit the deceased on the neck. Thereafter he made his escape from there and went to Hyderabad where he got treatment from the hospital. He reiterated that he had no intention to commit the murder.
Petitioner did not opt to make statement on oath as envisaged under section 340(2), Cr.P.C.
However, he produced two witnesses in his defence to substantiate his plea.
4. Learned trial Court vide judgment, dated 19th December, 1993 found the petitioner guilty for offence under section 302, P.P.C., as such he was punished with death with further direction to pay a fine of Rs,30,000 or to suffer two years' R.I., in default of payment .Of fine. It was further directed that if the fine is realized the same shall be paid to the legal heirs of deceased in terms of section 544-A, Cr.P.C.
5. For confirmation of death sentence or otherwise Murder Reference was sent to the High Court and petitioner also filed Criminal Appeal. However, both the matters were disposed of by means of impugned judgment, dated 31st May, 1999.
6. Learned counsel for petitioner contended that as happening of the incident and causing injuries by the petitioner to deceased Zafar Hayat and registration of case against him is not disputed, however, this Court has to examine as to whether the prosecution has independently established accusation against petitioner because according to him both the eye-witnesses namely P.W.
Amanullah and P.W. Khalid Mehmood, father and brother of the deceased respectively were not present at the scene of incident, because the injured was shifted to hospital as per statement of P.W. Dr. Mulazim Hussain, deceased was brought by Manzoor Hussain, A.S.-I., therefore, if the statements of both the witnesses are kept out of consideration the prosecution has to rely upon the statement of petitioner and in absence of any other incriminating evidence his statement is liable to be accepted in toto, as such the petitioner cannot be held guilty for committing intentional murder of deceased because he committed the crime in his self-defence for which lesser punishment shall meet the ends of justice.
7. We heard learned counsel for petitioner at length and have also gone through the statement of Dr. Mulazim Hussain as well as medical certificate Exh.P.F.1 perusal whereof reveals that name of Manzoor Hussain, A.S.-I. Was mentioned in the column meant for name and number of Constable and the doctor in his examination-in-chief deposed that injured was brought to hospital by Manzoor Hussain for examination. The question crops up for consideration as whether on account of this version of the doctor it is possible to hold that P.Ws. Amanullah and Khalid Mehmood have not witnessed the incident as they did not accompany the injured to hospital, otherwise the doctor may have mentioned that the injured was brought by any of them to hospital. To ascertain this fact reference may be made to the statement of P.W. Amanullah, father of deceased who stated that he and his son Khalid Mehmood took the deceased to hospital by boarding him on the cart and the witness rang up the police while they were on their way to hospital. His this version was corroborated by P.W. Khalid Mehmood. In view of their such stand now it is necessary to examine the evidence of Manzoor Hussain, A.S.-I. As per his version on 30th October, 1992 he was posted as A.S.-I. At P.S. City Ahmadpur East. The Moharir of P.S. Informed him that an injured was received at Civil Hospital, Ahmedpur East and he should immediately proceed to hospital. At 7-45 p.m. I reached the hospital and attended Zafar Hayat injured. He submitted an application to the doctor as to whether the injured was in a position to make statement. He produced the application as Exh.P/F. After perusing his statement it is crystal clear that injured/deceased was already shifted to the hospital when A.W. Manzoor Hussain, A.S.-I. Was informed and then he rushed to the hospital.
There is no doubt in believing that his name in the column of certificate was meant for the name and number of the Constable. However, Dr. Mulazim Husssain mentioned his name as he submitted an application to the doctor to inquire as to whether injured was in a position to make statement or not. In view of above the contention of the learned counsel that P.W. Amanullah and P.W. Khalid Mehmood were not present at the time of incident is not correct. Learned High Court had considered the defence plea at length and had rejected the same by giving cogent reasons. We see no reason to differ with such reasons. As it has already been admitted that the happening of the incident and causing injuries by the petitioner is not denied, thus in the circumstances if these two admissions are considered keeping in view the statements of P.Ws. Amanullah and Khalid Mehmood no doubt is left that it was the petitioner who has committed the offence. Thus for these reasons the proposition of law putforth by petitioner's counsel that statement of petitioner be believed in toto is not attracted on the facts of the case. It is worth while to mention here that statement of an accused can only be accepted where the prosecution evidence stands rejected in its totality, as it has been held by this Court in the case of Faiz and another v. The State (1983 SCM R 76), Sultan Khan v. Sher Khan and others (PLD 1991 SC 502) and State v. Muhammad Hand (1992 SCM R 2047). Because in the instant case on the strength of arguments put forth by petitioner's counsel the prosecution evidence has not been rejected, therefore, the stand taken by convict in his statement under section 342, Cr.P.C. Is not worthy of acceptance. Thus the argument advanced by learned counsel fails.
' In view of above discussion we are of the opinion that impugned judgment calls for no interference, consequently petition is dismissed and leave refused.