1982 PLP 624 (SCMR)

Nemo for the State. Date of hearing : 20th January, 1982. M. S. H. QURESHI, J.‑Aziz Ahmad and his brother Ghulam Muhammad petitioners, seek leave to appeal from the judgment dated 13‑5‑1980 of the Lahore High Court, whereby their appeal from conviction under section 302/34, P. P. C. on account of the murder of Jan Muhammad deceased was dismissed and the sentence of death passed against Aziz Ahmad petitioner was confirmed though a similar sentence passed against Ghulam Muhammad petitioner was reduced to imprisonment for life.

2. The occurrence had taken place on the night between the 28th and 29th July, 1.977 near the house of Shah Muhammad P. W. in the area of Chak No. 109/N‑P within P. S. Sadar Khanpur, District Rahimyarkhan. Jan Muhammad deceased and Shah Muhammad and Allah Jiwaya P. Ws. were sleeping near each other when at about 1‑00 a.m. (29‑7‑1977) the deceased woke up on receipt of injury at his neck and raised alarm. 1n the moonlight he saw Aziz Ahmad petitioner pulling up the hatchet from the neck and as he (the deceased) tried to get up, he was given another hatchet blow by Ghulam Muhammad. The assailants who then managed to escape were identified by the deceased and the two witnesses in the moonlight . The deceased in injured condition was taken to the Police Station where the F. I. R. in the quo was recorded at his dictation at 3‑00 a.m. He was then taken to Civil Hospital, Khanpur where he died at 5 am. The petitioners were arrested the same day and blood‑stained hatchets Exhs. P. 3 and P. 4 were recovered: At their pointing respectively from Aziz and Ghulam Muhammad.

3. The motive for the crime was. Mst. Hanifan, daughter of Hazoor Bakhsh P. W., had been engaged ‑to be married to Allah Bakhsh, brother of the petitioners, but six months before the occurrence the engagement had been cancelled and the Nikah of the had been performed with the deceased.

4. Ocular testimony fully supporting the case was furnished by Shah Muhammad (P. W. 10) and Allah Jiwaya (P. W. 11). The story of motive was given by Hazoor Bakhsh (P. W. 6) while the recovery of the blood stained hatchets was supported by Nathu Khan (P. W. 12) and Khadi Hussain, S. H. O. (P. W. 13). The medical evidence did show the present of two injuries, both caused by sharp‑edged weapon, one on the right side of the neck extending from below the ear to the front of the neck and the cutting the muscles, big blood vessels and the trachea, and the other on the right side of the chest, extending from the front of the shoulder to the media 1/3rd of the clavicle. The Medical Wit, however, opined that the deceased could not speak after receiving the first injury. The petitioner's case was of denial of the allegations, including the recovery of the hatchets. They produced Mir Munir Hussain (D. W. 1), a Notary Public, and Mr. Muhammad Anwer Chughtai (D. W.2), their Advocate, to prove an affidavit (Exh. D. A), purported to have been made by Allah Jiwaya: The trial Court came to the view that as the vocal cords of the deceased were intact, the ocular evidence that the first report had been dictated by the deceased could be believed. The trial Court thought that the affidavit Exh. D. A. was a glaring example of tampering with the prosecution evidence by the accused". However, it held that even if the evidence of Allah Jiwaya were to be excluded on that account, the evidence of Shah Muhammad, who was a neutral and independent witness, was sufficient, to bring home the guilt of the petitioners. On this basis and relying on the evidence of the recovery and the motive, the trial. Court, awarded the sentence of death to both the petitioners.

5. The learned Judges in the High Court also took exception to the affidavit Exh. D. A. and agreed with the trial Court that the same had been prepared in order to tamper with the prosecution evidence. As Allah Jiwaya P. W. the purported deponent of the affidavit, had not been confronted with this document, they decided to ignore the same. The learned Judges also rejected the contention that the F. I. R. had, in view of the medical evidence, been fabricated. Nevertheless they held that even if the F. I. R. were to be excluded, that would not improve the defence case because other evidence had come from neutral and independent witnesses. They, therefore, maintained the petitioner's conviction of the murder. In regard to the sentence, they had considered Ghulam Muhammad deserving of the lesser penalty on account of the fact that the injury attributed to him was not fatal.

6. We have heard learned counsel for the, petitioners and have go through the evidence. He has referred to the conflict between the medical and the oral evidence to press that the F. I. R. was a fabrication. From this he has argued that this conflict not only belied the ocular Witnesses on that point but also seriously undermined their credibility otherwise and as such they should not be believed. We feel that the point is being unduly stretched. The matter has been considered by both the Courts below. The Medical Officer had not stated that the trachea bad been cut through and through.' All that he stated was :"It is correct that the blood vessels of the neck of the deceased and the trachea of the deceased had been cut across". There was nothing to show that the vocal cords had also been cut. The Courts below could, therefore, rely on the oral testimony as to the ability of the deceased to speak, in preference to the opinion given by the Medical Officer. In any case, we are unable to see how this conflict would go to undermine altogether the credibility of the ocular witnesses, particularly Shah Muhammad who is both a neutral and an independent witness. We are satisfied that the case calls for no interference. The petition is, therefore, dismissed. Petition dismissed.