1978 PLP 136 (SCMR)

DORAB PATEL, J.‑‑Kabulsy and the petitioner were both tonga drivers In village Yar Hussain in Mardan District. Kabulay was having tea at a hotel in the village with his relations at about 5‑00 p.m, on 2nd July, 1971 when, according to the prosecution, the petitioner came and shot him dead on account of some minor quarrel in the morning. The petitioner, according to the prosecution, then managed to run away and absconded for about a year and a half. However, he surrendered to the police in February, 1973 and was tried by the Sessions Judge Mardan for Kabulay's murder and convicted and sentenced to death. The petitioner challenged his conviction in an appeal in the Peshawar High Court which was heard with the reference from the Sessions Court under section 374, Cr. P. C. By their judgment dated 28‑4‑1977, the learned Judges of the High Court dismissed the petitioner's appeal and confirmed the sentence of death passed against him. Hence this petition for leave. In support of its case the prosecution examined two relations of the deceased, P. Ws. Akbar and Roidad as eye‑witnesses of the occurrence. Both these witnesses lived in village Yar Hussain and said that they were having tea in the hotel of one Ghulam Muhammad at about 5‑00 p.m. Kabulay came and joined them. Shortly thereafter, the petitioner‑came and shot Kabulay dead. The witnesses tried to apprehend the petitioner but 3re'ran away. These witnesses also gave evidence about motive for the crime which was that at about 9‑t30 a.m. on the same day, the petitioner and the deceased had a quarrel about a passenger for their respective tongue and this evidence of motive was supported by that of P. W. Rehmat. The prosecution also proved the petitioner's abecondence for about one and a half year and the medical evidence supported the description of the eye‑witnesses about the manner in which the petitioner had fired at the deceased. Therefore, both the Courts held that the petitioner's guilt had been proved beyond reasonable doubt. Mr. Enayat Elahl admitted that the petitioner had absconded for a very long period namely a year and a half but his contention was that this abecondance was not sufficient to corroborate the ocular evidence because it was interested tainted by enmity and riddled by material discrepancies, Therefore, as the submission was that the evidence had been misread we have examined it again with learned counsel's assistance. Both the eye‑witnesses admitted that they were relations of the deceased and as submitted by learned counsel, they were very close relations of the deceased. But this would only mean that their evidence had to be scrutinized carefully. It would be no ground whatever for rejecting it because interested in witnesses would not normally allow the real murderer of their relation to escape by implicating an innocent person. Finally as to the question oil discrepancies in the evidence of the eye-witnesses learned counsel pointed out that for example, P. W. Roidad had said in his examination‑in‑chief that be, P W. Akbar and one Muhamma4 Sher had gone froth their Hujra for shopping sad had then gone to the hotel of one Ghulam Muhammad for tea. He, however, In his lower Coast's statement had said that they had sow for shopping from their Adda. Again the witness had said in the lower Court that Kabulay had come to Ghulam Muhammad's hotel about fifteen minutes after their arrival. But he said in his evidence in, the Sessions Court 400 they were sitting and having tea and "in the meantime Kabulay came". We regret to say that these discrepancies are of a minor nature, and the objections relate to the appreciation of evidence. Both the Courts have accepted the ocular evidence and it cannot be argued that the view taken by both the Courts is an unreasonable view much leas a perverse view. Mr. Enayat Elahi then pointed out that there was delay in lodging the F. I. R. As the Police Out Post was only three furlong from the place of the occurrence, there was perhaps delay. But delay is relevant only in cases of enmity. As in the instant case, there is no evidence whatever of enmity, nothing turns on the delay in lodging the F. I. R. We are also aware, and learned counsel placed great stress on it that according to the two eye‑witnesses, Mohammad Sher was with them and that the other persons in the hotel including its proprietor bad seen the murder. Mr. Enayat Elahi therefore submitted that the Courts had erred in law in not drawing an adverse inference against the prosecution for not examining these other witnesses. The submission is not correct because the prosecution is not required to examine every eyewitness of a crime. The only question if whether the evidence of the witnesses is sufficient to prove the prosecution version of the crime and both the Courts have held that the evidence of P. Ws. Akbar and Roidad were sufficient to prove the petitioner's guilt As we indicated this finding is supported by evidence therefore, nothing turns on the fact that the prosecution did not examine every possible eye witness of the murder. Additionally, as pointed out by the Courts, the ocular evidence receives support from the evidence for the motive of the crime and from the petitioner's abscondance because the abscondance was for a long period. Learned counsel's next submission was that the prosecution had proved the petitioner's guilt under section 304 and not under section 302, P. P. C. because the petitioner had fired at the deceased under ‑grave and sudden provocation. This plea of grave and sudden provocation had reference to the fact that even according to the prosecution the fatal shot had been fired because of the earlier quarrel between the petitioner and the deceased. Now even if it is assumed for the sake of argument that the petty quarrel between the deceased and the petitioner amounted to a provocation, it could not possibly amount to a sudden and grave provocation because the quarrel had taken place about eight hours earlier. But as learned counsel claimed that his submission was supported by authorities, we would briefly examine the cases cited. In Kaicha Sarkar alias Kanchoo and another v. The State (P L D 1956 Dacca 508), the East Pakistan High Court toot the view that the case of the petitioner fell under section 304 and not under section 302, P. P. C. because the fatal blow had been inflicted as a result of an earlier quarrel between the parties. The judgment is distinguishable on the facts because the quarrel in the case cited was of a much more serious nature than in the instant case. As learned counsel also relied on this Court's judgment in Jarrar Hussain and another v. The State (1976 S C M R 101), we would point out here that the appellants in this case bad been acquitted by the Sessions Court for murder, and appeal filed against this acquittal was allowed by. the High Court which convicted the appellants under section 304, P. P. C. and not for murder The appellants had challenged their conviction in this Court but as no appeal had been filed for enhancement of the conviction of the appellants, this Court did not have occasion to consider whether the facts or the case fell under section 302, P. P. C. or under section 304, P. P. C., therefore, the judgment is totally irrelevant to the instant case because the petitioner has been convicted by the High Court for murder. Learned counsel's only other plea eves that the maximum penalty was not justified because of the youth of the petitioner. This plea was advanced for the first time in the High Court and reliance was placed on the fact that the petitioner had given his age in the Sessions Court as 20 years. As the petitioner's statement was recorded five years after the murder, the submission advanced in the High Court was that the petitioner was of 15 years at the time of the occurrence, therefore, he should have been sentenced to transportation for life and not death. The High Court repelled this submission with the observations : "there in no evidence on the record to show that the appellant at the time of the commission of the offence was fifteen years of age because no birth certificate has been produced by the defence to establish this plea." Mr. Enayat Elahi admitted that the petitioner had not produced any evidence in the High Court to prove that he was a minor at the date of the offence, therefore, it cannot be said that the High Court had acted illegally in confirming the sentence of death. However, if the petitioner was really a minor at the date of the murder, it would still be open to him to file a mercy petition with a request to the Government to examine the question of his age. With these observations the petition is dismissed. Petition dismissed.