Law: Evidence Act (I of 1872)

Section: 33

Law: Penal Code (XLV of 1860)

Section: 302, 300

(a) Evidence Act (I of 1872) S. 33-Evidence, admissibility of-Deposition of prosecution witness before committing Court transferred to Sessions Court tinder S. 33-Such statement found subjected to cross-examination by accused and all possible steps taken by prosecution to trace whereabouts of witness but without success Evidence, held, admissible at trial in circumstances. Chutto and others v. The State P L D 1958 Kar. 18 distinguished. (b) Witness Evidence-Mere fact that witness described different venue of his signing recovery memo-Cannot make such witness hostile-Statement of such witness albeit requires caution Witness otherwise fully supporting prosecution story-Evidence of witness, held, cannot be discarded altogether. Mansur Ali and others v. The State 1970 P Cr. L J 287 distinguished. (c) Witness Evidence-Witness otherwise truthful and dis interested not mentioned by complainant in F. I. R. because complainant did not belong to locality and did not know him-Mere non-mention of such witness in F. I. R. held, cannot eliminate his evidence. (d) Penal Code (XLV of 1860) S. 302 read with S. 300, Exception 4-Murder-Sentence-Sudden fight-Accused giving only one knife injury to deceased and other prosecution' witness injured while intervening between accused and deceased-Circum stances showing that something more than exchange of abuses took place before accused brisked his knife on deceased but prosecution suppressing overt act on part of deceased to convert incident into heinous crime of premeditated murder-Accused, held, entitled to benefit of Fourth Exception to S. 300, Penal Code, 1860-Conviction of accused altered from S. 302 to S. 304, Part II, Penal Code, in circumstances. (e) Penal Code (XLV of 1860) S. 302 read with S. 300, Exception 4-Murder-Sudden fight-Whether, offence covered by Exception 4 to S. 300-Material considerations: Time between fight and fatal attack and presence or absence of malice. Rex v. Daniel Lynch 172 E R 5 Car & P. 324 rel.        JUDGMENT SHAMEEM HUSSAIN KADRI, J.-This is an appeal by Fazal alias Faja, who was tried along with Ghulam Mohy-ud-Din for the murder of Hashmat Ullah, by the…