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Initializing Secure Chambers
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Initializing Secure Chambers
Petitioner: GHULAM SHABBIR VS Respondent: STATE
1988 S C M R 187
1988 S C M R 187
Present: Nasim Hasan Shah, S. A. Nusrat and Ali Hussain Qazilbash, JJ
GHULAM SHABBIR--Petitioner
versus
THE STATE--Respondent
Criminal Petition for Special Leave to Appeal Nos. 256 and 261 of 1983, decided on 10th November, 1987.
(On appeal from the judgment dated 12-6-1983 of the Lahore High Court, Lahore, passed in Criminal Appeals Nos. 580 and 769 of 1982 respectively).
Penal Code (XLV of 1860)--
---S. 302--Qanun-e-Shahadat Order (10 of 1984), Art. 46(1)--Evidence Act (I of 1872), S.32 (1)--Constitution of Pakistan (1973), Art.185 (3)--Evidence--Dying declaration-- Leave to appeal--Contentions of petitioner's counsel (i) that prosecution had not been able to establish its case against petitioner because the two eye-witnesses who appeared in support of prosecution case were inimical towards petitioner and their ocular version had not been corroborated by other independent evidence; (ii) that the dying declaration was recorded in hospital by Police Officer when relatives of deceased were around him and, therefore, it was a tutored statement; (iii) that one of prosecution witnesses had admitted in Court that at time of recording dying declaration there was a dispute as to identity of assailant between the deceased and his relations and since dying declaration was not voluntary and a suspicious document, it should not have been relied upon by the Courts below--Case, held, was a fit one in which leave should be granted to reappraise the entire evidence--Leave to appeal granted.
M.B. Zaman, Senior Advocate Supreme Court instructed by Sh. Ijaz Ali, Advocate-on-Record for Petitioner (in Criminal Petition No. 256 of 1983).
Nemo for the State (in Criminal Petition No. 256 of 1983) .
Ejaz Batalvi, Advocate Supreme Court instructed by Ch. Muhammad Aslam, Advocate-on-Record for Petitioner (in Criminal Petition No. 261 of 1983) .
Nemo for Respondents (in Criminal Petition No. 261 of 1983).
Date of hearing: 10th November, 1987.
ORDER
ALI HUSSAIN QAZILBASH, J.--These are two petitions one by Ghulam Shabbir convict against the State and the other by Muhammad Amir, complainant, against Ghulam Shabbir convict, against the judgment of a Division Bench of the Lahore High Court, dated 12-6-1983.
2. On 8-5-1980 at about 1-00 p. m. Sher Baz was near the 'Bus Stand' Khoshab followed by his companions namely Muhammad Feroze and Muhammad Khan, when Ghulam Shabbir armed with a pistol, suddenly emerged from behind the Trucks standing there. He raised a Lalkara which prompted Sher Baz to turn his face, when he was fired at the back of his chest affectively by Ghulam Shabbir as a result of which he fell on the ground. His companions tried to apprehend the assailant but he managed to escape. Sher Baz was taken to the hospital where Muhammad Salim Khan Niazi S.I. recorded the statement of Sher Baz with the permission of the Medical Officer which is Ex. P.C. /1. Sher Baz remained under treatment in the hospital for five days when on 13-5-1980 he succumbed to his injury and his earlier statement was treated as dying declaration.
3. The case was investigated and Ghulam Shabbir was arrested on 4-7-1980 who led the police to the recovery of pistol Ex.P.6 alongwith a crime empty Ex.P.7 lying in its chamber which was taken into possession. After the completion of the investigation, Ghulam Shabbir, petitioner, was put to trial where the prosecution in support of its case, produced Muhammad Feroze P.W.7, the first cousin of the deceased and Muhammad Khan P.W.8 a relation of the deceased as eye-witnesses. The prosecution also relied on the dying declaration. Ghulam Shabbir, in his statement under section 342, Cr.P.C. had denied the occurrence and disowned the recovery of the pistol. He deposed that he was involved in the murder case on account of enmity. The trial Court, vide its judgment, dated 1-11-1982, after recording the necessary evidence convicted Ghulam Shabbir under section 302, P.P.C. and sentenced him to life imprisonment and a fine of Rs.20,000 or in default to undergo two years' R:I. It was directed that out of the fine Rs.16,000 be paid as compensation to the heirs of the deceased. The appeal filed by Ghulam Shabbir in the High Court was dismissed on 12-6-1983 and so was the Criminal Revision No. 769 of 1982.
4. The above judgment has now been challenged through the present two petitions, which are being disposed of by this order.
5. We have heard the learned counsel for the parties and have gone through the judgments of the Courts below and some of the evidence available on the record. The learned counsel appearing in support of the petition vehemently criticised the findings of the Courts below. He submitted inter alia, that the prosecution has not at all been able to establish its case against Ghulam Shabbir petitioner, because the two eye-witnesses, who appeared in support of the case of the prosecution were admittedly inimical towards Ghulam Shabbir petitioner and the ocular version furnished by them has not at all be corroborated by other independent evidence. He also submitted that it was the prosecution's own case that the dying declaration was recorded in the hospital by the police officer when the relatives of the deceased were around him, therefore, in all probabilities, it was a tutored statement; and further that Muhammad Salim Khan Niazi P. W. 12 has admitted in the Court that at the time of recording the dying declaration there was a dispute as to the identity of the assailant between the deceased and his relations. Since the dying declaration he submitted was not voluntary and a suspicious document it should not have been relied upon at all by the Courts below.
6. After hearing the arguments of the learned counsel for the petitioner in the light of the record, we are of the view that it is a fit case in which leave should be granted to re-appraise the entire evidence. Leave is accordingly granted.
7. Since leave has been granted in Criminal Petition No. 256 of 1983, we also grant leave in Criminal Petition No. 621 of 1983.
S.Q./G-51/S Leave granted.