1981 PLP 372 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 11-3-1980 o: the Lahore High Court, whereby a criminal appeal arising out of a murder case was dismissed and the sentence of death awarded to the petitioner was confirmed. The prosecution case, as narrated in the impugned judgment, was as follows:- "The present occurrence took place on the night between 29/30-6-1978. Two days prior to the occurrence Mst. Zahooran deceased complained to her father Muhammad Azam complainant (P. W. 6) that her husband's brother named Muhammad Anwar appellant (petitioner before us) was compelling her for sexual intercourse and also to keep illicit relations with him. She further told her father that the appellant should be asked to behave. A day prior to the occurrence, the complainant reprimanded the appellant and made it clear to him that Mst. Zahooran was his brother's wife. The appellant (petitioner) bore grudge on that account against the deceased as to why she had defamed him. Muhammad Anwar appellant, his father Ghulam and brothers ''Khadim Hussain and Sultan resided in Chak No. 185/EB, in the same Ehata, in separate Kothas. Mst. Zahooran deceased and her sister Mst. Bakhan P. W. 7 (wife of Sultan) lived in the same Ehata along with their husbands. Khadim Hussain husband of the deceased and Sultan (husband of Mst. Bakhan P. W.) had gone out of the Chak in connec tion with their business. Both the sisters went to their father with a request that he should spend the night in their house as a guard. Muhammad Azam complainant obliged his daughters and slept in the house of his daughters. It was moonlit night. After mid-night, Muhammad Azam woke up on hearing the shriek of his daughter Mst. Zahooran. He noticed Anwar appellant (petitioner before us) inflicting hatchet blows to Mst. Zahooran deceased on her face. She was lying straight on her cot. Muhammad Azam raised noise. Mst. Bakhan P. W. who was sleeping near by also wok up. Falak Slier (son of the complainant) who was sleeping in the adjoining Haveli rushed to the spot. The occurrence was also witnessed by Mst. Bakhan and Falak Sher. They threw challenge to the appellant who fled away along with the hatchet. Mst. Zahooran expired at the spot immediately. Leaving Mst. Bakhan and Falak Sher with the dead body, Muhammad Azam left to lodge the report. Consequently he lodged the F. I. R. Exh. P. G. on 30-6-1978 at 6-00 a. m. at Police Station Sadar Burewala, which was recorded by Mukhtar Ahmad, Moharrir Head Constable (P. W. 2). At the trial the ocular account of the occurrence and motive evidence were furnished by Muhammad Azam and Mst. Bakhan P. Ws. Zahoor Hussain and Muhammad Akram P. Ws. deposed about the recovery of the blood-stained hatchet from the petitioner. The defence plea was that of denial. The petitioner explained that Muhammad Azam and Mst. Bakhan P. Ws. involved him falsely as he wanted to have the share in the land of his mother. No evidence was led in defence. The learned trial Court, relying on the -ye-witnesses and the evidence relating to motive and recovery of the hatchet convicted the petitioner for murder and sentenced him to death as also fine. On appeal, a learned Division Bench in the High Court placed implicit reliance on the depositions of Muhammad Azam and Mst. Bakhan, and while ignoring the recovery of hatchet, upheld the conviction of the petitioner and confirmed the sentence of death awarded to him. Learned counsel has contended that the petitioner was falsely implicated by the eye-witnesses so as to save Falak Sher son of Muhammad Azam P. W., who after having seen Mst. Zahooran in a compromising position with her paramour had killed her; that the medical evidence instead of corroborating, the ocular account had contradicted it because the time given by the doctor with regard to the semi-digested food in the stomach of the deceased did not coincide with the time of occurrence given by the eye-witnesses; and lastly that the complainant having accepted compensation has entered into a compromise with the convict, therefore, it is a fit case for reduction of sentence on the basis of, if no other, at least the Islamic principle relating, to compensation and compromise. We, after having carefully considered (with reference to the relevant pieces of evidence) the first two arguments raised by the learned counsel have come to the conclusion that they have no force. The petitioner is very closely related to Muhammad Azam and Mst. Bakhan, the eye-witnesses. He is not only a brother-in-law of a daughter and a grand daughter but also the real paternal nephew of Muhammad Azam P. W. Mst. Bakhan P. W. is the daughter of Muhammad Azam and thus is also closely related to f` Muhammad Anwar petitioner. It is inconceivable that in the circumstances of the case they would have falsely implicated the petitioner. If Falak Sher, the son of Muhammad Azam P. W. had killed his own sister Mst. Zahooran, as suggested by the learned counsel, because she was found by him with her paramour, the eye-witnesses, (if they wanted to falsely implicate any body) would have named the paramour as the culprit. After going through the4 statements of Muhammad Azam and Mst. Bakhan, we feel that they do not suffer from any infirmity which might require interference by this Court. The discrepancy on the question of time which elapsed between the injuries and the death discoverable from the medical evidence and the ocular account is not of such type that this Court should reappraise the evidence. Moreover, it is based on a hypothesis, which does not discredit the eye-witnesses. There is no force in any of the arguments of the learned counsel regarding merits. This petition, therefore, has no force in so far as the conviction of the petitioner for the offence of murder is concerned. On the question of sentence, the argument is that the complainant having compromised with the petitioner and having accepted compensation, this might be treated as a mitigating circumstance for reduction of sentence to life imprisonment, because it is in accord with the principles of criminal justice under the Islamic law and jurisprudence. In other words, the argument is that although the petitioner would not be entitled to acquittal or conversion of offence of murder into any other offence, this aspect might be considered for reduction of capital sentence to that of life imprisonment. It would require consideration whether this circumstance can be' considered as a mitigating circumstance in so far as tire offence of murder is concerned, in addition to the well-known principles which have, in absence of any statutory guideline, been accepted by the superior Courts as providing extenuation. If the plea of the learned counsel on the general principles argument is accepted a further question: would arise whether in the circumstances of this case the petitioner should be deuce; the relief because the compromise/payment of compensation: was effectuated after then pronouncement of judgment by the High Court. Leave is &anted to consider the afore noted two questions. Although the learned counsel has produced Photostat of an affidavit in proof of the assertion with regard to compromise and compensation, it would be necessary at the time of hearing to examine the original affidavit. It would also be necessary that the complainant should be present at the time of hearing of the appeal so that it need be, he might be questioned with regard to tie compensation and compromise. Order accordingly.