1983 PLP 877 (SCMR)

MUHAMMAD AFZAL ZULLAHJ.‑Leave to appeal has been sought from judgment dated 31‑1‑1983, of the Peshawar High Court ; whereby the peti tioner's conviction under section 302, P. P. C. and sentence of death for causing the death of one Haji Sarwar, the husband of paternal‑aunt of the petitioner, and conviction and sentence of three years' R. I., under section 307, P. P. C. for firing at Aziz Nawaz Khan and Haji Sher Nawaz (P.. Ws.), whose sister was married to Haji Sarwar, were affirmed and his appeal was dismissed. The prosecution case, as disclosed in the statement of Aziz Nawaz Khan the injured (P. W,), who is also the first informant, is as follows :‑ "Haji Sarwar was my brother‑in‑law. The accused is my nephew ......... On the‑day of occurrence at about 11.30 or 11.45 a. M (on 26-10-1980). I was sitting in my shop. Sher Nawaz my brother (P. W.) was also present in his shop. Gul Nawaz my other brother was also sitting on a chair in the shop of my brother Sher Nawaz. Haji Sarwar deceased also ran a similar shop in front of our shops in this Bazar. Umar Hayat accused armed with '32 bore revolver came to the chowk and fired two shots on the deceased Haji Sarwar. Then he fired two shots on the P. W. Deceased Haji Sarwar was hit . Sher Nawaz luckily was not hurt. The accused also fired at me two shots. I was hit on my left shoulder and back. The accused then went away .........Mir Nawab (P. W.) a servant of the deceased Haji Sarwar chased the accused rushed to the police station to lodge the report Motive for this occurrence was that accused had demanded Rs. 2,000 from the deceased which be refused. The accused was also annoyed with me on a dispute over two houses in Bannu city. The accused wanted the ownership of these houses, which were sold by his father to Haji Noor Elahi but the deceased claimed that we had sold these houses and he wanted that the house should be transferred to him " The case against the petitioner at the trial was supported by the occular account of the occurrence given by the Aziz Nawaz Khan, Sher Nawaz and Mir Nawab (P. Ws.) In his deposition the last mentioned P. W. added that the accused had fled away towards the Parade Gate. This witness chased him. A Thanedar and a Foot Constable were coming from the opposite side. Seeing the chase, they went forward and overpowered the petitioner, on the asking of this (P. W.) At that time, the petitioner was found in possession of the crime weapon i. e. the revolver and six empties. He had also live cartridges in his pocket. The said Police Officer, namely, Gul Wali appeared as pro secution witness and confirmed what had been stated by Mir Nawab. He also confirmed the recovery of the crime weapon and the empties. As against the aforementioned direct evidence, coming as it is from three such eye‑witnesses who are very closely related to the petitioner (though there was a dying declaration, also in which the petitioner was involved) his plea was of simple denial and false implication due to enmity. He further gave the following explanation :‑ "Aziz Nawaz and Sher Nawaz P. Ws. were my uncles. They bad a dispute with my deceased father who was living during the days of occurrence over their ancestral property and in that connection my uncles were bound down under section 107, Cr. P. C. against my father. I produce the attested copy of the entries of the criminal register Exh. P. A. fin support of my above contention. The said P. Ws. are inimical towards me and are interested to wrongly implicate me in this case." Both the learned courts below relying on the prosecution evidence convicted and sentenced the petitioner as noted earlier. We have gone through the relevant record with the help of the learned counsel for the petitioner. He was unable to urge anything substantial in so far as the finding of guilty is concerned. We also were unable to discover any material point which could be of any help to the petitioner in this behalf. Learned counsel for the petitioner, however, argued only on the question of sentence. He stressed two points in this behalf one. that the motive disclosed in the F. I. R. was of property while an attempt was made to .make an improvement in this behalf during the trial, and two, that there is a discrepancy as to whether Haji Sarwar was hit in the first instance or the injured P. W. From these circumstances, the learned counsel further tried to argue that the commencement of the firing by the petitioner, vis‑a‑vis, its immediate cause, remained shrouded in mystery, therefore, the sentence merited reduction. No doubt there is a noticeable discrepancy regarding motive between the F. I. R. and the deposition at the trial. The demand of the accused of Rs. 2,000 from the deceased as a part of the motive is not mentioned in the F. I. R. Haji Sher Nawaz (P. W ) when questioned in this behalf explained as follows :‑ "The accused had not demanded the above amount of Rs. 2,000 in my presence. He (in the demand) had told us so in the hospital after two days of the occurrence. The police had brought me back from the hospital to the spot on the day of occurrence and examined me there. 1 did not know about the demand of Rs. 2,000 at that time." In view of the afore quoted explanation, it is not necessary to pursue, any further, the question of so‑called improvement regarding motive parti cularly when the same is corroborated by the dying declaration. The discrepancy sought to be highlighted regarding the sequence of the shots, is also not real. If at all so, the witnesses, who were being examined nearly a year after the occurrence, might have made an honest mistake in restating the sequence. That again would not be of any advantage to the petitioner's in so far as the question of sentence is concerned. The origin of the attack by the petitioner on the deceased and the witnesses, who are closely related to him, is not shrouded in mystery. It has come on record that there was a tangible immediate motive on account of which, the petitioner started firing at the deceased and the witnesses. It is, therefore, not a fit case for reduction of sentence. It needs to be observed that the learned counsel for the petitioner informed during the hearing that parties being closely related to each other a compromise and settlement had, for all practical purposes, been reached between them. According to him only the maternal aunt (PHUPPI) of the petitioner, who is the widow of deceased Haji Ghulam Sarwar had not, by then, formally agreed and further that she was also likely to agree. We having reserved the judgment had told him that if before the announcement any development B takes place, regarding compromise/settlement as is referred in Muhammad Bashir v. The State (P L D 1982 S C 139), the Court may be informed accordingly. Learned Advocate‑on‑record for the petitioner has sent in writing that neither he nor the learned counsel, received any further information in this behalf from his client "although he was specifically asked to inform immediately". With the afore‑recorded observation, we find no merit in this petition and the same is dismissed. M.Z.M. Petition dismissed.