1985 PLP 60 (SCMR)

G. SAFDAR SHAH, J.-- This leave petition from jail is meant to impugned the judgment of the Peshawar High Court, dated 12-5-1977, by which the appeal of petitioner herein against the judgment of trial Judge, convicting him under section 302, P.P.C. for the murder of Taj Malook, and sentencing him to death, was dismissed and the reference of trial Judge under section 374, Cr.P.C. confirmed. Fourteen days' delay in filing the petition is condoned. The occurrence in this case is said to have taken place on 18-10-1974 soon after Eid-ul-Fitr prayers, in village Pabbi, District Peshawar. The prosecution case is that the deceased, after offering the Eid-ul-Fitr prayers, went to the house of his mother to pay his respects; that after having greeted his mother, he was returning to his house when he saw the petitioner and his acquitted brother Bashir standing in front of their shop--the former armed with a shot gun and the latter with a rifle; that no sooner he passed near them that the petitioner herein fired at him as a result of which he was injured on the upper part of his left thigh and consequently felled to the ground; the accused having accomplished their mission thus ran away from the scene of occurrence. Where after the deceased was taken to Pabbi Hospital on a cot but since the Hospital was closed, he was taken from there to the local Police Station in a truck. On arrival at the Police Station he was met by Syed Tajammal Hussain Shah, S.H.O., with whom he lodged the report of occurrence in the presence of P.Ws. Amin Shah and Kabal Shah who in token thereof signed the said statement. After completing these formalities the deceased was taken to the Lady Reading Hospital, Peshawar, but on arrival there he died on the same day. The motive for the offence mentioned in the dying declaration of the deceased was that sometime prior to the occurrence in this case, the accused and his brother Bashir on the one side and one Mahboob on the other had a fight in which the petitioner had asked him to appear as his witness but he refused. And so he had felt annoyed and continued to nourish a grudge against him as a result of which he injured him with a shot gun. In the trial Court, the prosecution relied on the dying declaration of deceased, on medical evidence, on the eye-witness account of Ghulam Sharif (P.W.8) on the evidence of Amin Shah (P.W.7) who had attested the dying declaration of the deceased as a witness, and on the abscondence of the petitioner. In his statement under section 342, Cr.P.C., however, he denied the occurrence and contended that he had been involved in this case by P.W. Ghulam Sharif with whom he had enmity. In answer to a question as to why he had remained absent between 18-10-1974 and 3-10-1975, his reply was that he had gone to Punjab and on coming to know of the occurrence, he returned and on his, own surrendered to the Police. However, he produced no defence. The learned trial Judge, in view of all this evidence, felt satisfied about the guilt of the petitioner, accordingly convicted him and sentenced him to death. As already stated, his death sentence has been confirmed by the High Court. And hence this petition in which the petitioner has questioned his conviction on the following grounds:- (1) that the High Court had erred to accept the evidence of interested witnesses without any corroboration; (2) that the prosecution had failed to produce P.W. Muhammad Ali, whose name was mentioned by the deceased in his dying declara tion, but for this omission no benefit of doubt had been given to him by the High Court; (3) that the site plan as well as the medical evidence do not support the story of prosecution; and (4) that at the relevant time, he was residing in Punjab but when he came to know of the occurrence, he returned to his village Pabbi and on his own surrendered to the Police. The judgment of High Court would show that all these contentions had received proper consideration and were rejected. It is true that the prosecution did not produce P.W. Muhammad Ali. But then the prosecution is not bound to produce every witness. In any case Amin Shah (P.W.7) was produced by the prosecution to. prove the dying declaration of the deceased, anal hence the non-production of P.W. Muhammad Ali, who had also attested the dying declaration would be of no consequence. The site plan and the medical evidence would rather seem to be consistent with the rest of the evidence produced by the prosecution. Therefore, the objection of the petitioner on this account is untenable. As regards his contention that he had not absconded, as during the relevant time he was residing in Punjab, all that can be said is that this contention too was considered by the learned trial Judge as well as the High Court and was rejected. Therefore, it is not the function of this Court to review the evidence simply to reach a possible different conclusion. I also find no force in his contention that the prosecution had failed to prove against him any motive for the crime. But in the High Court this aspect of the case had received no consideration. Assuming for the sake of arguments that this was so, this would not help the petitioner for in view of the ocular evidence of Ghulam Sharif (P.W.8), and his abscondence, the absence of motive would be immaterial. P.W. Ghulam Sharif has in a forthright manner supported the case o prosecution and despite in probing cross-examination nothing was brought out from him so as to render his evidence doubtful. He is n doubt the brother-in-law of the deceased. But since there was n enmity between the petitioner and the deceased, obviously the Court had no option but to accept his evidence. Furthermore, in his statement under section 342, Cr.P.C., the petitioner had alleged enmity with P.W. Ghulam Sharif. But except for his bare word, there is nothing on the record of this case to corroboration him. I am, therefore, satisfied that the petitioner was rightly convicted for the murder of Taj Malook. Even the sentence of death awarded t him would seem to be adequate, for on the day of Eidul-Fitr, he ha shot the deceased in broad. daylight, entirely in cold blood. This petition, therefore, fails and I would dismiss it. NASIM HASAN SHAH, J.-- I agree. The petition is dismissed. M . Z . M . Petition dismissed.