1987 PLP 1159 (SCMR)

Rana M.A. Kadri, Advocate‑on‑Record with Abdullah Bajwa, Advocate Supreme Court and Abid Nawaz, Advocate‑on‑Record for Respondents Nos. 1 to

3. Date of hearing: 19th April, 1987. SAAD SAOOD JAN, J.‑‑These are two petitions for special leave to appeal from the judgment of the Lahore High Court maintaining the conviction and sentence of Muhammad Tufail on a charge under section 302 of the Pakistan Penal Code.

2. According to the prosecution on 22‑7‑1975, at about 1 p.m., Faiz Muhammad deceased and his brother Mithu were returning to their house from the fields. On the way they were surprised by Muhammad Tufail and his brothers Khurshid and Muhammad Amin. Muhammad Tufail was armed with a hatchet, Khurshid was carrying a Dang and Muhammad Amin had a knife with him. They set upon Faiz Muhammad deceased and inflicted a number of injuries upon him. After the occurrence Faiz Muhammad was taken to a hospital but he died before any medical assistance could be rendered to him. Mithu went to Police Station Makhdoom Rashid and lodged the F.I.R at 4‑30 p.m. The motive for the occurrence was stated to be incident which had taken place about 13/4 years earlier; during the course of this incident father of Muhammad Tufail was murdered by the father and brothers of Faiz Muhammad.

3. At the trial Muhammad Tufail and his brothers pleaded not guilty. They did not produce any evidence in their defence.

4. The post‑mortem examination of the deceased was performed by Dr. Altaf Hussain Gardezi. He found 21 incised wounds on his body in addition to a swelling on the right leg.

5. In support of its case against Muhammad Tufail and his brothers the prosecution relied upon the eye‑witness account provided by Mithu, Farid and Fazal Din, dying declaration made by Faiz Muhammad before Mehboob Ahmad and the recovery of blood‑stained weapons and clothes from Muhammad Tufail and his brothers. The testimony of Farid was rejected for the reason that in an affidavit sworn by him before the trial he had disowned all knowledge about the occurrence. The genuineness of the dying declaration was also not accepted by the trial Court. However, upon the basis of the remaining evidence the trial Court convicted Muhammad Tuiail and his brothers of an offence under section 302, read with section 34, of the Pakistan Penal Code and sentenced them to imprisonment for life and fine.

6. From the judgment of the learned Sessions Judge, Muhammad Tufail and his brothers filed appeals in the High Court. Mithu, who had lodged the F.I.R. filed a revision petition for the enhancement of their sentences. A learned Single Judge in the High Court re‑examined the evidence and held that the ocular testimony furnished by Mithu (P.W.5) and Fazal Din (P.W.7) was reliable, that the recovery of blood stained clothes and weapons from Muhammad Tufail and his brothers was established and that they had a motive to kill the deceased. He also found that the F.I.R had been lodged promptly without any prior deliberations. However, he felt some doubt with regard to the actual role of the brothers of Muhammad Tufail in the occurrence for the reason that the weapons attributed to them and the parts played by them in the course of occurrence were not supported by the medical evidence; accordingly, he maintained the conviction and sentence of Muhammad Tufail but acquitted his brothers by giving them the benefit of doubt. He dismissed the revision petition on the ground that the motive for the attack on the deceased furnished a mitigating circumstance.

7. The judgment of the High Court has given rise to these two petitioners for special leave to appeal. One has been filed by Muhammad Tufail to challenge his conviction and sentence. The other has been preferred by Mithu who has called in question the acquittal of the brothers of Muhammad Tufail and the refusal of the High Court to impose the capital sentence on him. We find no merit in either of these two petitions. There is sufficient evidence on the record to support the conviction of Muhammad Tufail on the charge under section 302 for causing the death of the deceased. This evidence as already indicated includes the deposition of two eye‑witnesses as well as testimony of persons who were present at the time of recovery of his blood‑stained clothes and hatchet. The learned trial Court as well as the High Court found the said evidence reliable and we find no reason at all to take a different view in the matter. The learned Sessions Judge as well as the High Court have given the reason for not awarding the death sentence to him. We find no justification for interfering with their discretion in this regard.

8. The acquittal of Muhammad Khurshid and Muhammad Amin is based on the conflict between the medical evidence and the eye‑witness account. According to the eye‑witnesses, the deceased was given knife blows by Muhammad Amin and Dang blows on the left knee. A perusal of the post‑mortem report indicates that except for one blunt weapon injury on the right leg of the deceased his all other injuries were incised wounds in nature. Even the doctor was unable to exclude the possibility that the incised injuries found on the person of the deceased could be caused by one weapon, that is, a hatchet. In the circumstances, we do not think it .is a fit case where we should interfere with the acquittal of Muhammad Khurshid and Muhammad Amin. For the reasons stated, we dismiss both petitions. M.I. /M‑89/S Petitions dismissed.