NASIM HASAN SHAH, J.-This petition for special leave to appeal b directed against the judgment and order of the Lahore High Court dated 10-2-1977.
2. The case of the prosecution, In brief, is that on the day of occurrence at about 6-00 p. m. The petitioner along with his co-accused Akbar and Zulfiqur wore passing thereon at soma steps in the street where the house of the deceased, Hamayun Farooq, is situate. The deceased and his friend Akhtar Beg P. W. Were standing in front of the former's house. On the deceased's admonishing the accused, Zulfiqar accused abused him and then gave a fist blow on the temple of the latter. Akhtar Beg P. W. Tried to intervene, but Zulfiqar abused him too, and asked his companions to teach them a lesson; be then took out a knife from his dub and stabbed Hamayun deceased on his chest.
When Akhtar Beg P. W. Tried to rescue the deceased, he was prevented by Akbar, who caught hold of him while Zulfiqar also stabbed him on his cheat. The deceased tried to run away, but Akram (petitioner herein) held him in his Jepha and Zulfiqar again stabbed him. Thereafter all the accused decamped from the spot. This occurrence wag stated also to have been witnessed by Mohammad Tariq and Anwar Beg.
3. Both the injured were removed to the hospital wherein the d declaration of Humayun was recorded by Sabir Mahmood, A. S. L (P. W. 14)at about 6-30 p m. The mama day, who had been informed on the telephone about the arrival oaf the two injured persons in the hospital. On the bask pf the above dying declaration a formal F. I. R. Was recorded at 8-05 p.m on 19-4.1977, under section 307/34, P. P. C. At 9-45 P.m. On 19-4-1974 Sabir Mahmood A. S. I. Received information that Hamayan Farooq had expired and after usual investigation the police challaned the petitioner and his two co-accused, namely. Zulfiqar Ali. Who was arrested on the same evening, was got medically examined shortly thereafter and was found to have suffered ten injuries on his person, tare.: of which were caused by a sharp-edged weapon while the rest by blunt weapon.
4. The Earned Additional Sessions Judge; Sialkot, convicted all the three accused under section 302/34 P. P. C. Sentencing Zulfiqar Ali to deeds and Mohammad Akbar awl Mohammed Akram, petitioner herein, to life imprisonment. In addition, Zulfiqar Ali and Mohammad Akbar were also convicted under section 307/34 P. P. C. And sentenced to ten years' R. I.
5. On appeal and reference, the learned Judges on the High Court set aside the conviction of the accused under section 302/34, P. P. C. And instead convicted them under section 304. Part I, read with section 34, P. P. C. And sentenced them to ten years' R. I. Each. Only Mohammad Akram petitioner has challenged the order of the High Court by this petition.
6. The High Court held that the dying declaration could not be relied upon because although the details of the occurrence were otherwise mentioned in great details, it omitted firstly, to mention the injury on the person of Zulfiqar altogether, which was a material circumstance, and secondly, the place of occurrence was wrongly stated in it. It also held that the statements of the eye- witnesses under section 161, Cr. P. C. Suffered from the same defect and therefore, the dying declaration and the statements of the eye-witnesses stood at par and did not inspire confidence. It was held that since certain material facts were suppressed by the prosecution, therefore, its version could not be relied upon to base the conviction of the petitioner and his two co-accused.
The High Court found that the defence version was more probable. Zulfiqlr Ali, the main accused, in his statement under section 342, Cr. P. C. Stated that Hamayun deceased was a bad character and together with his friend Akhtar Beg used to pass dirty remarks on passing by girls in their street. On the day of occurrence some of his relative girls were passing through the said street and the deceased and Akhtar Beg cut indecent jokes upon then. Zulfiqar accused, who also happened to be passing nearby caw this and resented their acts. Whereupon they attacked and injured him with churri and soft. The people in the Mohallah rescued him with the help of the police and took him to the hospital, where he was medically examined. According to Muhammad Akram petitioner, on rte day of occurrence, he happened to paw by the place of occurrence and found his co- accused under attack by Hamayun Farooq with deadly weapons like chhuri, iron fist end sticks. He attempted to save Zulfiqar Ali from the said attack by intervening, but was scared off by the said assailants.
7. The learned Judge observed that the counsel for the defence had ad--mitted before them that both the parties had not come out with the truth and then was exaggeration on the part of the accused and suppression of material fact, by the P. Ws and than the Court was obliged to sift the or tire evidence in order to separate the truth from the falsehood. On examining the entire evidence the High Court reached the conclusion that the accused in the circumstances had the right of private defence but they had exceeded is because they were not legally justified in going to the extent of killing the deceased as Zulfiqar Ali inflicted, the first churri blow on the chest of the deceased which was a grievous one and was sufficient to disable the deceased from inflicting any farther injury to the accused. Zuifiqar Ali was, therefore, not justified in inflicting the second churri blow to the deceased which too was on the vital part of the body.
8. So for as the contention of the defence counsel disputing the vicarious liability of Mohammad Akbar and Mohammad Akram petitioner under section 34. P. P. C. Was concerned, it was observed that although generally the particular accused who actually exceeds the right in causing injuries can be responsible but each case has to be decided on its own merit. In the instant case so far as the se: and iv jury to the deceased was concerned, although it was inflicted by Zulfiqar Ali alone, still the co-accused had played same part in it, in that Muhammad Akram prevented the deceased from running by clasping him from behind and facilitating the infliction of second knife blow.
9. The contention of the learned counsel for the petitioner is that the common intention has been attributed to the petitioner by relying upon the circumstance that he had, prevented the deceased from running away by clasping him from behind and thereby facilitating the infliction of the second injury. It is argued that this version was given by the eye--witnesses whose evidence hoe not been found to be reliable. Therefore, according to the learned counsel, unless there was some strong corroborative circumstance to indicate that the petitions had indeed held the deceased, in a japha so facilitate the infliction of the second blow, the learned Judge were in error in accepting the said allegation as correct and applying section 34, P. P. C. To the case of the petitioner.
10. In view of the foregoing Submission, we am of the opinion that the petitioner's case requires further examination in order to determine whether he can at all be held guilty of any offence. Leave to appeal is accordingly granted.
11. Learned counsel for the petitioner has prayed for suspension of his sentence in the meanwhile.
We ant not inclined to do so but direct that the hearing of the appeal he expedited.