1980 PLP 937 (SCMR)

G. SAFDAR SHAH, J‑On 28‑7‑1977, at 7‑00 a.m., an occurrence tools place in Mohallah Jogianwala, within the area of City Police Station, D. I. Khan, in which occurrence Preetam Masih was done to death by petitioner Inayat Masih, after having attacked him with a dagger. The prosecution case in the trial Court was that the petitioner and the deceased were the residents of the same Mohailah; that the petitioner was a lofar and drunkard and consequently he used to make a nuisance of himself to the annoyance of the residents; that the deceased, in order to impress upon the petitioner to mend his ways, had chastised him on the night previous to the day of occurrence as a result of which they had altercated with each other; that in order to avenge himself of the said insult given to him by the deceased, the petitioner attacked him and caused him injuries in .the chest, as a result of which he later lost his life in the District Headquarter, D. I. Khan. In support of its case, the prosecution relied in the trial Court on the eye‑witness account furnished by Jodh Lal (P. W. 7), Mohan Lal (P. W. 8) and Loam Bakhsh (P. W. 9), as. well as the retracted confession made by the petitioner. In his statement under section 342, Cr. P. C., however, the petitioner substantially ‑ admitted the case of the prosecution but contended, "On the day of occurrence the deceased, Preetam Masih, came to my house and abused me and asked me to come at once for duty. He also abused me. I told him that be should mind his own business and I will do mine. In the lane he threatened me, hurled abuses at me and assaulted me with the dagger Exh. P. 1 and wanted to stab me with the same. I apprehending dagger to my life took out a small knife, which I had with me and in the exercise of the right of my self‑defence, I gave him 2/3 blows. I threw the knife in the nearby gutter. The `Chhuri' Exh. P. 1 has wrongly been shown by the prosecution to be mine. On the previous nights the deceased and I had exchanged hot words but there was no altercation or exchange of abuses." The learned trial Judge, after taking into consideration all the evidence on record, believed the case of the prosecution on the strength of the eye witness account furnished by the said three P. Ws., as well as the retracted confessional statement made by the accused; consequently convicted him and sentenced him to death, as well as a fine of Rs. 1,000 as compensation to the heirs of the deceased failing which he further sentenced him to R. I. for six months. The view taken by the learned trial Judge was that "The motive as alleged by tl4e prosecution has been admitted by the accused half‑heartedly by saying in his statement recorded under section 342; Cr. P. C. that on the previous night he and the deceased had exchanged hot words but there was no altercation or exchange of abuses. The accused had retracted from his confessional statement but it can legally be taken into consideration against the accused as the same has been corroborated by the prosecution evidence. It is true that unless a retracted confession is corroborated in material particulars, it is not prudent to base conviction in a criminal case on its strength alone. But in the present case the retracted confession of the accused ha been corroborated by the prosecution evidence as earlier stated. The con fessional statement was recorded by Mr. Saadullah Khan, Magistrate First Class (P. W. 2) after observing all the legal formalities. Furthermore it will be seen that the` occurrence took place on 28‑7‑1977 at 7‑00 a.m. and the accused was produced before the Magistrate for recording his confessional statement at 10‑00 a.m. on, the same day. The Magistrate after giving two hours time to the accused for pondering over the matter, recorded his confession at 10‑05 p.m." In appeal filed by the petitioner in the High Court, to which the learned trial Judge had also made the usual Reference, the High Court expressed its doubt about the genuineness of the retracted confession made by the petitioner. But even so endorsed the judgment of the trial Court on the basis of the eye‑witness account furnished by P. Ws. Jodh Lai, Mohan Lal and Imam Bakhsh. In this view of the matter, the High Court rejected the appeal of the petitioner and confirmed his death sentence. In seeking leave to appeal, Mr. War Mahmood, the learned counsel for the petitioner has taken as through the evidence, as well as the judgment of the High Court. His first contention was that P. Ws. Jodh Lal and Mohan Lal were not only the blood relatives of the deceased but both of them had improved upon the case of the prosecution in the trial Court. In this behalf he took us through the F.

1. R. lodged by P. W. Jodh Lai, as well as his evidence of the evidence of P. Ws. Mohan Lal and Imam Bakhsh. In the F.I. R., Jodh Lal had claimed to have caught hold of the deceased with the help of Mohan Lal red‑handed while still brandishing the blood‑stained chhuri in his hand, whereas in their evidence in Court both the said P. Ws. deposed that it was Imam .Bakhsh who had done so. On the basis of this discrepancy, the learned counsel argued that the said two P. Ws., who were the blood relatives of the deceased ought not to have been believed by the trial Court, as well as the High Court. We are afraid, there is no force in this contention. By taking into consideration the overall effect of the evi dence of the said two P. Ws., it is clear to us that the said contradiction is wholly trivial, and does not affect the substance of the case of the prosecution. P. W. Imam Bakhsh, who is a completely disinterested witness has confirmed in his evidence the presence of the said two witnesses, therefore no exception could be taken to their evidence. The learned counsel next contended that the plea of self‑defence taken by the petitioner had not received ‑proper treatment at the trial Court, as well as the High Court. He argued that in view of the facts and circumstances of the case the benefit of the said plea should have been given to the petitioner and so the death sentence awarded to him was not the proper legal sentence. There is no force in this contention either. Except for his own ipse dixit is support of the said plea taken by him, there is no direct or circumstantial evidence to support him in that behalf. Not only this, but the said plea taken by the petitioner seems to be wholly untenable because had the decease attacked him with a dagger he should have received at least some scratches during the ensuing grappling, but there is nothing on the record to supp him. We are, therefore, satisfied that the trial Court, as well as the High Court both had rightly rejected the said plea taken by the petitioner. Upon the analysis of the evidence, we are therefore, of the view that the petitioner, owing to the admitted altercation between him and the deceased on the night previous to the day of occurrence, had waylaid him, after having armed himself with a dagger, and no sooner he saw him in the street, than he attacked him with no other intention but to put him to death. The tact that he had caused to the deceased two injuries in the region of his chest as a result of which his heart was punctured would go long way to support this conclusion. In these circumstances, the death sentence awarded to him by the trial Court, as well as the High Court w the only legal and proper sentence, which calls for no interference by this, Court. This petition, therefore, fails and is dismissed. S. Q. Petition dismissed.