1999SCMR2312 (PLP)

ABDUR REHMAN KHAN, J.

The petitioner Muhammad Basharat was charged for the murder of Mulazam Hussain, in F.I.R. No. 157 registered in Police Station Pindi Gheb, on 3-10-1993. He was tried under section 302 P.P.C. by the learned Sessions Judge, Attock and after having found him guilty under section 302(b) P.P.C., sentenced him to death and was also directed to pay compensation of Rs.25,000 to the legal heirs of the deceased in term of section 544-A, Cr.P.C., or in default to suffer six months R.I petitioner preferred appeal against the judgment of the trial Court, but a learned Division Bench of the High Court through the impugned judgment dated 29-4-1997 dismissed his appeal and affirmed the death sentence awarded to the petitioner.

2. Altaf Hussain (P.W.10) reported the incident of murder to the police at 5-40 p.m. which had occurred on the same day at 4-00 p.m. He was present near the flour machine of Malik Sher Muhammad when he saw Mulazam Hussain (deceased), going towards his house after purchasing vegetable from the shop of Muhammad Amin. He also noticed Muhammad Basharat (petitioner), standing at short distance from the said flour machine. The moment Muhammad Basharat saw Mulazam Hussain, he asked him to be ready for consequences involving himself in litigation with Mst. Tanvir Begum over a Haveli. He then took out Churi from the fold of his trousers and attacked Mulazam Hussain and inflicted 4 blows on him at various parts of his body. Mulazam Hussain fell down while Muhammad Basharat decamped towards the house of his uncle. It was alleged that the occurrence was also witnessed by Muhammad Khan (P.W.11). Motive for the crime was stated to be grievance of the petitioner over the litigation between Mt. Tanvir Begum, his maternal aunt's daughter and the deceased in respect of a Haveli, in the Court of Civil Judge, Pindi Gheb.

3. The learned trial Court found the petitioner guilty on the basis of the following evidence:- (i) Ocular account furnished by P.W.10 and P.W.11, who were declared as entirely independent and truthful witnesses. (ii) Medical evidence which supported the eye-witnesses. (iii) Recovery of blood-stained 'Chhuri' at the instance of the petitioner from the house of his uncle. The plea of the petitioner in his statement under section 342, Cr.P.C. is to the following effect:

"Altaf Hussain P.W. is inimical towards me as his house is situated in front of my maternal uncle, we had an exchange of hot words about 1-1/2 years prior to the present occurrence in which I had disgraced him and that enmity was growing with the passage of time till the present occurrence. Altaf Hussain, being ex-councillor and Sarbrah Lambardar excluding whole of the family of Mulazam Hussain deceased falsely involved me in this case and associated Muhammad Khan as witness who is closely related to him."

4. The appeal filed by the petitioner was dismissed by the High Court and his death sentence was confirmed through the impugned order. The relevant portion of the High Court judgment wherein it discussed the evidence and endorsed the finding of guilt arrived at by the trial Court, is as under:

"We have heard the learned counsel for the parties and perused the record with their assistance. Altaf Hussain complainant proving the prosecution story categorically deposed that the appellant while standing in the street near flour machine caused successive injuries to the deceased with Chhuri, on the left upper shoulder, left flank, belly and chest. In the cross-examination, he also deposed on motive and the defence has not been able to discredit the evidence of this witness. Muhammad Khan P.W.11 making a similar statement fully supported the story narrated by the complainant. The eye-witnesses being resident of the same place are the natural witnesses and they having no animus with the appellant or special interest with the deceased being hesitant from withholding truth or to tell a lie, are independent witnesses and their evidence being free of any material contradiction is confidence inspiring. The Doctor having found sharp edged injuries on the person of the deceased, the evidence of ocular account regarding the use of weapon of offence and seat of injuries is confirmed by the medical evidence. The recovery of blood-stained Chhuri has been questioned on the ground that the same was not effected in compliance of the mandatory provision of section 103, Cr.P.C. without discussing the issue much, the recovery of Chhuri even if is excluded from consideration, for want of association of an independent person of the locality, the fate of case is not changed. The dispute between the appellant and Mst. Tanvir Begum daughter of Jaffar Khan was of common nature but the demand of the appellant for settlement of the same having not accepted, he felt insulted and consequently being revengeful took extreme step of taking the life of the deceased. The independent and natural witnesses unmistakenly in the broad daylight occurrence disclosing the use of Chhuri, on all force fix the liability of the appellant under section 302, P.P.C. We, therefore, upholding the conviction of the appellant under section 302, P.P.C. dismiss this appeal. The appellant causing four successive blows on most sensitive part of the body acted with cruelty and cowardly as instead of getting verdict from Civil Court chose the settlement of the matter through violence."

5. The learned counsel at the outset argued that the deceased did not die of the injuries inflicted on him, but his death occurred because of the negligence of his relatives as he was not properly looked after his operation. In this context he referred to the cross-examination of P.W.9, which reads:- "It is correct that on 5-10-1993 the patient was discharged on the request of his relatives." It is to be noted that the post-mortem of the deceased was conducted on 6-10-1993 at 9-00 a.m. and the time that elapsed between death and post-mortem was given about 14 hours by the Doctor (P.W.12) who performed the post?mortem and the time of death, thus, come to 7/8 p.m. on 5-10-1993. It, thus, appears that the relation of the deceased had become hopeless about his recovery and had, therefore, taken him to his house on 5-10-1993, the day on which he died. Therefore, no question arises of the death being the result of negligence of his relatives. It appears that the learned counsel was not mindful, when he advanced the said argument, of the following portion of the statement, of P.W.5:

. "In my opinion death had occurred due to injuries Nos.2 and 32, which caused infection, septicemia and death. These injuries were grievous and were dangerous to life and caused death in the ordinary course of nature." The learned counsel then referred to that portion of statement of the appellant under section 342, Cr. P.C. which has been reproduced above to submit that P.W. Altaf Hussain was inimical towards him. He also referred to the following portion of the cross-examination of said P.W.:

"It is also incorrect to suggest that about 1-1/2 years prior to the occurrence I and Basharat accused exchanged hot words and in that episode Basharat accused had disgraced me and that it was still going on till the date of occurrence. It is also incorrect to suggest that on account of the said enmity of my dishonour and disgrace I, without consulting the parents and brothers of the deceased, named Basharat accused as the culprit of Mulazam Hussain deceased." It is not understandable how the learned counsel was of the view that the enmity between the petitioner and Altaf Hussain was proved from the above material on record. The bald statement of the petitioner and at random suggestion to the witness about enmity, which he denied, hardly established the factum of enmity between the witness and the petitioner. Moreover, even if the bad feeling between them was admitted, even then insignificant oral allegation would hardly be sufficient to prompt the witness to involve the petitioner in a crime which is punishable with death, The testimony of P.W.11 was criticised as interested because of his relation with P.W.10. It is not believable that P.W.11 would involve the petitioner in a case of murder merely because he was related to P.W.10 who had allegedly exchanged some hot words with the petitioner more than a year back.

6. We are of the view that the learned trial Court and the learned Division Bench of the High Court have rightly found the evidence of the eye-witnesses as independent and confidence inspiring, because it could not be proved that they had involved the petitioner in offence on account of enmity or other ulterior motive of their own. Moreover, motive for the crime also stands established by the documents brought on record in respect of the civil suit which was stated to be the motive for the offence. Learned counsel argued that the petitioner is not liable to be punished with death as motive in the case could not be proved. This argument has no substance as motive alleged by the prosecution stands substantiated from the documents brought on record from the civil suit file. Moreover, absence of motive would not justify imposition of lesser penalty if otherwise there exists no mitigating circumstance. We have not been able to find any justification for interference in the conclusion of the trial Court and affirmed by the appellate Court. Consequently, this petition is dismissed. N.H.Q./M-344/S???????????????????????????????????????????????????????? ??????????? Leave to appeal refused.