1985 PLP 507 (SCMR)

MIAN BURHANUDDIN KHAN, J.‑‑ This jail petition is barred by time by 12 days but as it involves sentence of death awarded to the petitioner, we condone the delay and examine the case on merits.

2. Muhammad Nazir petitioner was tried under section 302, P. P. C . by the learned Additional Sessions Judge, Sheikhupura for committing the murder of Falak Sher, Assistant Lineman WAPDA by giving him blows with a knife. He was found guilty, convicted and sentenced to death and a fine of Rs.1,

000. Half of the amount of fine, if recovered, was ordered to be paid to the legal heirs of the deceased. In default, to suffer imprisonment for one year, vide judgment dated 1‑4‑1979.

3. The petitioner filed appeal No.453 of 1979 against his conviction and sentence in the Lahore High Court and Murder Reference was also placed before the learned Judges for confirmation of death sentence awarded to the petitioner. The learned High Court dismissed the appeal of the petitioner and confirmed the death sentence awarded to him vide judgment dated 9‑2‑82.

4. The case against the petitioner is that on 1‑10‑1976 at about 8.30 a.m. complainant Muhammad Aslam P.W.6 Lineman in the Electricity Office, Muridke, alongwith Muhammad Akram, driver and Muhammad Siddiq, Lineman, was sitting inside the gate of the Office. Falak Sher deceased, Assistant Lineman came to the complainant and complained that on the preceding night he was on duty and at about mid‑night he wanted to go inside the office in order to urinate but Muhammad Nazir, Chowkidar the accused /petitioner did not allow him to enter the Office premises where the laterine was located. In the meantime the accused/ petitioner also came and heard the deceased making a complaint against him. He threw a brick at the deceased hitting him on his back. Muhammad Aslam tried to intervene and settle the dispute between the accused/ petitioner and the deceased saying that they should not fight being the employees of the same Department. The accused/ petitioner left the spot while the witnesses alongwith the deceased were still standing there. Soon thereafter the accused /petitioner returned with a knife and attacked the deceased Falak Sher causing him injuries on his chest and upper part of his arm. Muhammad Aslam sent the injured Falak Sher to the hospital for treatment and himself proceeded to the police station. On the way he met Tufail Ahmad A.S.I. to whom he lodged the F.I.R. Exh. P.C

5. Falak Sher was examined by Dr.M.Nasrultah Khan, East Medical Ward, Mayo Hospital, Lahore then working as C,M.O. examined him and found the following injuries on the person of Falak Sher:‑‑ (i) Incised wound 4 x on the lateral aspect of left chest at the level of left nipple. (ii) Incised wound 4" x 1 " on front of upper part of left arm. It was muscle deep. (iii) Incised wound 1" x " on the back of upper part of left arm. (iv) Incised wound 1 x on outer aspect of back of left chest at about the level of nipple. Injury (i) was found to be grievous. Injuries (ii) and (iii) were simple while injury (iv) was kept under observation; and the injuries were found to have been caused by a sharp‑edged weapon.

6. The same day i.e. on 1‑10‑1976 Falak Sher died and Dr. Tahir Ania P.W.7 performed the post‑mortem examination on his dead body, He confirmed the injuries as were found earlier by Dr. Nasrullah Khan. In the opinion of Dr. Tahir Ants injury No.(i) was individually sufficient to cause the death of the deceased in ordinary course of nature through bleeding and shock.

7. Ocular witness in the case Muhammad Aslam P.W.6 was examined. He stated that he was present on the day of occurrence near the main gate of the Office alongwith Muhammad Akram, driver and Muhammad Siddique, Lineman when the deceased who was Assistant Lineman came and complained that on the preceding night he was not allowed to use the lavatory of the Office by the accused /petitioner. He told the accused/ petitioner that the deceased being also a public servant, had the right to use the lavatory and it was not proper for the accused/ petitioner to refuse the deceased admission. The deceased further informed him that the accused petitioner threw a brickbat at him which hit him on the back. He (witness) called Muhammad Nazir the accused/ petitioner and tried to settle the dispute. The accused /petitioner left the spot but, returned soon with a knife and suddenly attacked the deceased and then decamped. The occurrence was also witnessed by Muhammad Akram driver P.W.9 and Muhammad Siddique Lineman P.W.8 who supported the ocular account of the occurrence as given by Muhammad Aslam, P.W.6 and stated that the accused /petitioner had stabbed the deceased with a knife.

8. Tufail Ahmad, A.S.I. P.W.11 recorded the report (Exh.P.C.) of Mlahammad Aslam P.W.6, then proceeded to the spot where he arrested the accused and took his blood‑stained shirt into possession vide Memo. Exh. P.G. At the instance of the accused /petitioner he also took into possession knife Exh. P.4 which was recovered from the almirah in the room of the accused in the presence of witnesses. The same was sealed into a parcel vide Memo. Exh. P.F, He also prepared the site plan. Later on he learnt about the death of the deceased and prepared his inquest report Exh. P.K.

9. The accused /petitioner, when examined, denied the charge and stated that about 15 days before the occurrence there was election of the Employees' Union in which Falak Sher deceased opposed Muhammad Aslam P.W. and on that account there were differences between them. On the day of occurrence, after having finished his duty he left for his house where, later on, Muhammad Aslam brought the police and got him arrested.

10. The main question for determination before us is whether there it any reason for the ocular witnesses to depose against the accused/ petitioner. We find none from the record. Muhammad Aslam, P.W.6 is admittedly a disinterested person and so the other two eye‑witnesses namely Muhammad Siddique P.W.8 and Muhammad Akram P.W.9. In the cross‑examination nothing has been brought to cast any doubt on the veracity of the statements of the aforesaid witnesses.

11. Petitioner's contention is that a case has been concocted against him by the influential person who really caused the death of the deceased; and that there was no reason for him to take the life of the deceased; that there was a conspiracy against him as the deceased used to contest election against the complainant Muhammad Aslam. These submissions of the accused/ petitioner do not find any support from the record. The deceased has been brutally murdered. The cruel act of the accused/ petitioner does not merit any leniency as he caused four injuries with a knife in an unprovoked attack on Falak Sher deceased. We thus find no mitigating circumstance. This petition is, therefore, dismissed. M . Z . M . Petition dismissed.