1980 PLP 513 (SCMR)

The machinery of prosecution in this case was brought into motion by the F. I. R. (Exh. P A) lodged by P. W. Ghulam Sarwar at the Sadar Police Station, D. I. Khan at 11‑00 a. m. on 27‑5‑1975. The allegations made by Ghulam Sarwar in the F. I. R. were that the father of the appellant, named, Qadir Bakhsh used to cultivate his agricultural land as his tenant. However, since Qadir Bakhsh failed to pay him his share of the crops, he instituted against him a revenue suit in the Court of the Tehsildar, D. I. Khan, which was decreed in his favour. In order to execute the decree in question against him, the Tehsildar issued a warrant of attachment of the movable property of Qadir Bakhsh, and in that behalf Muhammad Nawaz, Plaintiff of the Court of the Senior Civil Judge was detailed to do the needful. On 26‑5‑1975, therefore, he and Muhammad Nawaz, Bailiff, went to the village of Qadir Bakhsh and stayed for the night with Abdul Aziz, Lambardar. On the following morning, Abdul Aziz, Lambardar, detailed P. W. Faiz Muhammad Kotwal of the village to accompany them to the house of Qadir Bakhsh. But when they went to his house, they were told that Qadir Bakhsh had gone to the fields. On receiving this information, the three of them proceeded towards the said fields when in the meanwhile the appellant reached them from the direc tion of the village armed with a Kahi, and questioned Muhammad Nawaz, Bailiff, as to how he was going to attach the property of his father. Having said this, however, the appellant immediately attacked Muhammad Nawaz with a Kahi as a result of which he suffered an injury on his head and fell down on the ground. Thereafter, while the deceased was lying on the ground in injured condition, the appellant showered more blows on him as a result of which he suffered more injuries in the region of his head, neck and chest and he lost his life. In support of its case, the prosecution relied in the trial Court on the ocular testimony furnished by P. W. Faiz Muhammad and Ghulam Sarwar; on the blood‑stained Kahi, which was recovered by S. H. O. Ataullah Khan (P. W. 14) from inside a Khola belonging to the appellant and on the abscondence of the appellant. In his own statement recorded under section 342, Cr. P. C., however, the appellant denied his culpability and alleged that "I was present in my village, I was arrested by the Police on the very day of the occurrence and taken to Police Poat, Kiri Khaisor where I was confined and beaten by them. I was ultimately brought to D. I. Khan on 10‑6‑75 on which date my arrest was shown to have been effected". The learned trial Judge, after analysing the evidence tendered by the prosecution with care disbelieved the recovery of the blood stained Kahl from within the Kohla belonging to the appellant but nonetheless believed the evidence of P. Ws. Ghulam Sarwar and Faiz Muhammad which according to him found satisfactory corroboration, if any corroboration was indeed in that behalf, from the fact that the appellant had absconded and was only arrested on 10‑6‑1975 when he was produced before S. I. P. Ataullah Khan by his paternal uncle, named, Ali Muhammad and one Ghulam Haider Malik. The learned trial Judge accordingly convicted the appellant under section 302, P. P. C. But sentenced him to imprison ment for life as in his view the occurrence had taken place suddenly and without any premeditation. The High Court, however, disagreed with the said finding recorded by the learned trial judge, and consequently enhanced the sentence of the appellant to death and in that behalf recorded the following finding: ‑ "That the accused had gone after the complainant party armed with Kahi in order to make a murderous assault to them, as be could not countenance the attachment of movable property of his father and when informed by the deceased Bailiff that he had brought the attachment order along with him for compliance, the accused inflicted a blow with Kahi on his head as a result of which he dropped to the ground. Yet his passion was not assuaged and while the deceased was lying on the ground, he gave four more blows on his head and neck, which are vital parts of the body. All this is sympathetic of his obduracy. His intention was there fore, no less than to see that the deceased was put to death on the spot." Feeling aggrieved of the judgment of the High Court, the appellant filed this appeal as of right under Article 185 of the Constitution. Mr. War Mahmood, the learned Senior Advocate, who argued the appeal on his behalf, however, did not seriously question the conviction of the appellant. And quite rightly because both the trial Court, as well as the High Court have believed the evidence of the prosecution and the learned counsel was unable to assail the concurrent findings recorded in that behalf on the basis of any recognized legal principle. In the matter of sentence, however, he pressed his case with some emphasis and argued that the learned trial Judge had rightly held that the occurrence had taken place suddenly and without premeditation, therefore, the High Court ought not to have set aside the said finding in the exercise of its suo motu jurisdiction. He argued that the appellant had met the party of the deceased entirely by chance, as evidently he was also proceeding to his fields, but no sooner the deceased Bailiff informed him that he had a warrant to execute against his father than he lost his self‑control and consequently attacked him with a Kahi, which he was carrying in his band to be used only in the performance of agricultural chores. We are afraid, there is no force in this contention. There is no evidence on record to show that except for the said informa tion conveyed to him, the deceased Bailiff had used any derogatory language against the appellant or his father, therefore, it is idle to contend that the appellant was in any way provoked so as to have lost self control and attacked the deceased with the Kahi on his head. Furthermore, it is the evidence of the two eye‑witnesses that after having felled him to the ground, the appellant gave to the deceased more blows on his head, as well as chest, and in that behalf Doctor Jehanzeb Khan (P. W. 1), who had conducted autopsy on the dead body of the deceased supports them as he had found the following injuries on the dead body: ‑ (1) One oblique incised wound on the left mid skull 1 x " x scalp deep. (2) One transverse incised wound on top of skull behind injury No. 1, 3" x 1 /3" x scalp and bone deep. (3) One incised wound on left anterio lateral aspect of neck 2" x ". Neck vessels were cut. Trachea cut. (4) One incised wound on front of upper part of left chest, 1" x " x cavity deep. (5) Three small abrasions on left top of shoulder 2/3 "x " each. We are, therefore, of the view that the appellant was guilty of the murder of the deceased within the meaning of section 3C0 P. P. C., and since his case did not fall under any of the exceptions mentioned thereunder nor there exist any mitigating circumstances in his favour there was no option left to the High Court but to award him the death sentence. This appeal, therefore, fails and is dismissed. Appeal dismissed.