1974 PLP 261 (SCMR)

SALAHUDDIN AHMED, J.‑This appeal, by special leave, is from the order of the Peshawar High Court dismissing the appeal of the appellant and confirming the sentence of death under section 302 of the Pakistan Penal Code. The occurrence took place on the 23rd of July 1970, at 3 a.m. in the house of P. W. 8 Hafiz Nur llahi, father of Muhammad Ijaz deceased aged 15/16 years. According to the prosecution case Muhammad Ijaz deceased was friendly with one Shah Nawaz, and the appellant, a cousin of the deceased, resented the companionship and asked the deceased not to mix with Shah Nawaz. Only a day before the occurrence, over the same matter, there was an incident in which appellant had grappled with the deceased. but P. W. 6 Sher Ahmad Khan had effected a separation between them. On the day of occurrence the appellant proceeded to the house of P. W. Hafiz Nur Ilahi, and having got upon the roof of the kitchen fired first at Muhammad Ijaz killing him on the spot, and then firing at the mother of the deceased, P. W. 9 Mst. Fazal Jan, injuring her on her legs. The appellant then jumped down into the lane adjacent to the house, and escaped. P. W. Hafiz Nur Ilahi, father of Muhammad Ijaz deceased, who was also sleeping in the courtyard along with his wife P. W. Mst. Fazal Jan and son Muhammad Ijaz deceased on different cots, tried to chase the appellant but failed. A first information report was promptly lodged by the father of the deceased, P. W. Hafiz Nur Ilahi at 5‑45 a.m. the same day at Police Station Kot Najibullah situated at a distance of about five miles from the place of occurrence in which the appellant was alone mentioned as the assailant of his son Muhammad Ijaz deceased and his wife P. W. Mst. Fazal Jan. Although the Investigating Officer looked for the appellant in his house and in the village, he was not found. The appellant surrendered at the police station on the following day at 6 p.m., and was arrested. He was produced before the Ilaqa Magistrate for recording a confessional statement and the Ilaqa Magistrate asked P. W. 2 Mir Muhammad Ibrahim Alizai, Additional Forest Magistrate (Magistrate 1st Class), Haripur, to record the statement. P. W. Mir Muhammad Ibrahim Alizai, accordingly, recorded the confessional statement of the appellant after having duly observed the formalities of law. After the usual investigations and the preliminary inquiry under Chapter XVIII of the Code of Criminal Procedure the appellant was tried on charges under sections 302 and 307 of the Pakistan Penal Code for committing the murder of Muhammad Ijaz and making a murderous assault upon P. W. Mst. Fazal Jan, respectively, and he was convicted on both the charges and sentenced to death and ten years' rigorous imprisonment, respectively. On appeal from his convictions by the appel lant and reference under section 374 of the Code of Criminal Procedure a Division Bench of the Peshawar High Court dismissed the appeal and confirmed the sentence of death. Leave to appeal was granted to consider the question of identity of the assailant only. Mr. Zafar Mahmood, learned Advocate appearing on behalf of the appellant has contended that as the occurrence took place during the night and the two witnesses, namely, P. Ws. Hafiz Nur Ilahi and Mst. Fazal Jan were then asleep, it was not possible for them to recognise the assailant. Both the witnesses P. Ws. 8 and 9 are related to the appellant and nothing as transpired in their evidence to show that they had any reason to falsely implicate the appellant. Furthermore, their evidence of recognition has not been challenged at all. According to the evidence of at least one of the witnesses, namely, P. W. Mst. Fazal Jan, she said that she was awake at about sehrwela and was preparing to say her prayers when she saw the appellant standing on the roof of the kitchen of their house. She shouted out to the appellant by name and asked him not to commit mischief, but the appellant fired at the deceased while ha lay asleep on the cot and again p shot at her when she was about to get up from her cot. The witnesses were at the time in the courtyard, and the distance between them and the appel lant would be presumably 12/14 feet inasmuch as it has transpired in the evidence that the roof of the kitchen was ti/10 feet high. In these circum stances we do not think there was any difficulty on the part of the witnesses to recognise the appellant. The confessional statement of the appellant, though retracted, has been relied on by both the Courts as it has been corroborated by other evidence. It may be mentioned here that in his confession the appellant said that it was a moonlit night. The ocular evidence as well as the confessional statement appear to have been further corroborated by the evidence of motive proved among others by P. W. Sher Ahmad Khan, who had no reason to falsely depose against the appellant. In the aforesaid circumstances we see no reason to differ with the assessment of evidence by the two Courts below. We also see no reason to interfere with the sentence of death, for, there is absolutely no extenuating circumstance in favour of the appellant. It was clearly a premeditated murder for which there was no justification at all. The appeal is, accordingly, dismissed. Appeal dismissed.