1971 PLP 599 (SCMR)

HAMOODUR RAHMAN, C J.‑The petitioner has been convicted for the murder of one Murid and sentenced to death by the Additional Sessions Judge, Larkana. His conviction has been upheld and sentence confirmed by a Division Bench of the High Court of Sind and Baluchistan at Karachi on appeal and reference. Mst. Hawa, the sister of the deceased, was married to Mitho, an uncle of the petitioner five years ago. Mitho was deaf and dumb. Nevertheless, Mst. Hawa lived with him for several years, but eventually she left him and began to live with her brother, Murid, at village Fatehpur against the wishes of the family of her husband. This led to bitterness between the two families, as a result of which the deceased shifted with his sister to another village and took up residence in Gambat. Thereafter, Mst. Hawa obtained divorce from Mitho and married one Gullo Jagirani. This is the motive alleged for the murder which took place during the night of the 15th and the 16th of October 1969, at about 1‑00 a.m. at the `makan' of one Faqir Varial in village Detal Abro where a dance was being held. The deceased had accompa nied his uncle Ilahi Bakhsh and two others of village Fatehpur to watch the dance. At about 1‑00 a.m., the deceased got up and went towards the hedge surrounding the open space of the `makan' where the dance was being held to answer the call of nature. The petitioner who was also present at the dance armed with a hatchet was seen to follow the deceased. He went up to the deceased and asked him as to why he had failed to pay the compensation in connection with Mst. Hawa. Saying this, he inflicted a blow with the sharp side of his hatchet on the left side of the deceased's neck and felled him down to the ground. This was seen by Ilahi Bakhsh and his companions Mujib and Adno who claim to have identified the petitioner in the light of two patromax lamps burning in the place where the dance was being held. The information of this incident was lodged at 8‑30 a.m. on the 16th of October 1969, by Ilahi Bakhsh, the uncle of the deceased. The S. H. O. after visiting the place of incident went to the house of the petitioner. He was not found there, but his house was searched in the presence of mashirs. Nothing incriminating was, however, found. The petitioner was produced before the S. H. O. by his relatives in the same afternoon. He then conducted the S. H. O. to his house and from the hedge enclosing the house he produced a hatchet stained with blood. The blood on this hatchet was found on chemical examination to be of human origin. Relying on the ocular testimony corroborated by the recovery of the hatchet and the medical evidence, the Courts below have convicted the petitioner. It is now contended on his behalf that the implication of the petitioner was based only on suspicion, for he could not have been identified in the light of the patromax lamp which was, even according to the version of the prosecution, 28 feet away from the place of the incident. Reliance is also placed on the fact that only one patromax lamp was seized by the police on the first day to show that the second lamp was a subsequent innovation. The second patromax lamp was seized only on the following day, even though nothing about the identification in the light of the patro max lamp had been mentioned in the first information report. The recovery of the hatchet is also challenged on the ground that the mashir of the recovery was a police tout, in so far as he had appeared as a recovery witness in several other cases. The fact that the police searched the house of the petitioner even before his arrest and found nothing, it is said, disproves the recovery of the hatchet subsequently at the instance of the petitioner. The place of incident, it is contended, could not, in any event, have been lit up by the light of the patromax lamp, for, on such occasions the light would be directed towards the dancers rather than on the audience. We have given due consideration to the arguments advanced in support of this petition, but are unable to agree that any one of them furnishes a valid ground for the re‑examination of the evidence in this case. The appreciation of evidence is not the function of this Court unless some rule relating to the appreciation of the evidence has been disregarded. No such defect has been pointed out to us although the petition has been argued as if it was an appeal on facts. This Court is not an ordinary Court of criminal appeal. It only interferes where a grave miscarriage of justice has taken place. No such miscarriage appears to us to have been committed. This petition along with the jail petition is accordingly dismissed. Leave refused.