1980 PLP 163 (SCMR)

KARAM ELAHEE CHAUHAN, J.‑The petitioner Gul Rehman was tried by the learned Sessions Judge, D.

1. Khan, for the murder of Gul Janan and having been found guilty was convicted under section 302, P. P. C. and was sentenced to death and a fine of Rs. 3,000 payable to the heirs of the deceased or in default thereof to a rigorous imprisonment for six months. The order of the learned Sessions Judge, is dated 24‑2‑1978.

2. The petitioner filed an appeal being Criminal Appeal ' No. 50 of 1978 but without any success as the same was dismissed by a learned Division Bench of the Peshawar High Court on 30‑10‑1978.

3. The petitioner has come up in a petition for special leave to appeal against the same to this Court. .

4. The facts of the prosecution case are that Gul Janan (deceased), Hamid Khan, Gut Hassan and Bashir, and petitioner Gul Rehman used to have common sittings where they used to chat and have general talks. In one of such sittings when the petitioner was not present, it is alleged, that Gul Janan (deceased) who was a "Mirasi" by caste cut a joke and called the Pathans (Qalandar Khels), which was the caste of the petitioner as thalichats (i.e. lickers). This was reported to the petitioner who took ill of it and therefore to avenge the insult, it is alleged that on 8‑8‑1976, he attacked and gave injuries to Gul Janan, slightly before 7‑00 p.m. in Paniala Bazar near the shop of one Abdul Malak with a knife. The F. I. R. of this occurrence was lodged by the victim himself in the nearby Police Station, Paninala, which was at a distance of 2/3 furlongs from the place of occurrence. As Gul Janan died shortly thereafter this F. I. R. Exh. P. A./1 has been treated as a dying declaration of the deceased.

5. The evidence against the petitioner consists of‑ (a) the dying declaration ; (b) the ocular evidence of Laiq Shah (P. W. 9) and Abdus Salim (P. W. 10) ; (c) the recovery of blood‑stained knife Exh. P/2 vide memo. Exh. P. G from the house of the petitioner on his pointing out on the very day of occurrence, namely 8‑8‑1976 when he was arrested ; and (d) the recovery of two rolls of thread stained with blood which were found from the scene of occurrence in the bazar Paniala vide Exh. P/F. These rolls had been purchased by the deceased for knitting of "Aazar Bunds". A knitting machine (Rachh Exh. P/5) was also found in the house of the deceased and was taken into custody by Muhammad. Sikandar Khan (P. W. 8) who partly investigated this case vide memo Exh. P/1.

6. Taking up the dying declaration it was duly proved by Inayatullah Khan, A. S. 1. (P. W. 11) who recorded it in the form of an F.I. R. Exh. P‑A/1 which was thumb‑marked by its marker. There is nothing to suggest as to why the A. S. 1. would fabricate a false document again the petitioner. The dying declaration clearly states that it was the accused petitioner who attacked Gul Janan (deceased).

7. As regards the eye‑witnesses Laiq Shah (P. W. 9) and Abdus Salam (P. W. 10) they have no enmity against the petitioner. Similarly the recovery of knife suffers from no infirmity. The dying declaration stands corroborated from the medical evidence inasmuch the victim had stated that Gul Rehma petitioner had given him multiple blows with knife on the right side o his chest. According to the evidence of Dr. Jehanzaib Khan (P. W: 10) who conducted the post‑mortem examination, the deceased had all the injuries on the right side of his chest. The two rolls of thread (blood stained) also show that the deceased was attacked at that place. On the basis of all the evidence the Courts below held that the offence had properly been brought home to the accused. 7-A Learned counsel argued that the only witness of the dying declaration is Inayatullah Khan, A. S. I. (P. W. 11) who should not be believed but he gave no reasons in support of his plea. Rather he is an independent witness and had no motive to‑ falsely implicate the petitioner. Similar was the argument of the learned counsel regarding other ‑pieces of evidence mentioned above but there again he could not tell us any reason to reject the same. We have gone through the record with the help of the learned counsel and read the statements of the witnesses. The case is concluded by appreciation of evidence and no argument was raised to show that the conviction of the petitioner was based on a violation of any principle of law or of natural justice in the appreciation of evidence or otherwise applicable in criminal cases of this type.

8. The result is that this petition has no merit and is dismissed. Petition dismissed.