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Criminal Appeal No. 41 of 1973, decided on 18th April 1974.

(On appeal from the judgment and order of the Lahore High Court, dated the 19th July 1972, in Criminal Appeal No. 657 of 1970/Murder Reference No. 178 of 1970).

--‑‑ S. 302/34‑[Murder case]‑Sentence‑Appellant source of all mischief, asking for divorce of his sister but deceased refusing Estrangement between parties and appellant turning out his own wife in retaliation, marriages being watta marriages‑Appellant giving two knife blows to deceased and acting brutally‑Appellant's case in circumstances distinguishable from that of other accused awarded life imprisonment‑‑Death sentence, held, rightly awarded to appellant in circumstances.‑[Sentence].

Major Mufti Nazar Muhammad, Advocate Supreme Court for Appellant.

Miari Nusratullah, Advocate Supreme Court instructed by Sh. Ejaz Ali, Advocate‑ on‑Record for the State.

Date of hearing : 18th April 1974.

This appeal by special leave is directed against the judgment of the Lahore High Court dated the 19th July, 1972, in Criminal Appeal No. 657 of 1970 (Murder Reference No. 178 of 1970), by which dismissed appellant's sentence of death was confirmed and his appeal was missed.

Muhammad appellant, his brother Ghulam Qasim, his uncle Ghmam Muhammad Hassain and his friend Ghulam Raider, were tried under section 302 34, P. P. C. by the Sessions Judge, Mianwali, for the murder of Muhammad Ramzan. The above‑mentioned persons were convicted under judgment dated the 31st July, 1970. The appeal section 302/34, P. P. C. by judgment was sentenced to death and the other co‑accused persons were sentenced to transportation for life. The convicts filed separate appeals in the Lahore High Court. The case for the confirmation of death sentence of the appellant along with other appeals were disposed of by the Lahore High Court by judgment dated the 19th July, 1972. The appeals were dismissed and the death sentence of the appellant was confirmed. The appellant filed Jail Petition No. 59 of 1972 and leave was granted to the appellant to examine the question of sentence only by order dated the 13th December, 1972.

The prosecution case is that the motive for the murder of the deceased is watta marriage. About 5/6 months before the occurrence, Mst. Muridan, sister of Muhammad Ramzan had been married to appellant Ghulam Muhammad and in exchange the latter's sister Mst. Bakhat Bibi had been married to Muhammad Ramzan deceased. It is alleged that about 5/6 days before the occurrence, the appellant Ghulam Muhammad asked for divorce of his sister Mst. Bakhat Bibi but Muhammad Ramzan refused. At this, appellant Ghulam Muhammad turned Mst. Muridan out of the house. On the 15th June, 1969, at about past noon time, Muhammad Ramzan and his maternal uncle Ghulam Nabi went out of the house to urinate. When they passed near the flour‑mills of Muhammad Hussain co‑accused, the appellant and the other accused appeared on the scene. Muhammad Hussain was armed with an iron bar and the other accused persons were armed with knives. It is alleged that Muhammad Hussain felled Muhammad Ramzan on the ground with a blow of iron bar on the neck. Thereafter, the appellant and the other accused persons gave a knife blow each to Muhammad Ramzan. The appellant Ghulam Muhammad gave a second knife blow to the deceased. The appellant then escaped along with the weapon. The occurrence was witnessed by Ghulam Muhammad alias Gama, a resident of the same village who was returning from the Liaquat Abad Mills. Ghulam Nabi, the uncle of the deceased also saw the occurrence. He ran to the father of Muhammad Ramzan deceased and narrated the story to him. Both of them came to the spot and on enquiry by Ahmad, Ramzan who was still in his senses, informed in the presence of Ghulam Nabi and Gama that he had been given injuries by Ghulam Muhammad, Ghulam Qasim, Muhammad Hussain and Ghulam Haider. The deceased was put on the cot and taken to the police station which was at a distance of 5 miles. The deceased, however, died on the way.

The F. I. R. was lodged by Ahmad at about 1‑30 p.m. Sardar Khan A. S. I. recorded the F. I. R. and prepared the injury sheet and inquest report and despatched the dead body of the deceased for post‑mortem examination.

On the 17th June, 1969, the appellant and the other persons were arrest ed from a plot close to a Cinema at Piplan. After the arrest, Ghulam Muhammad appellant, Ghulam Qasim and Ghulam Haider produced blood stained knives which were secured and sealed into a parcel. Muhammad Hussain produced iron bar from his house. Muhammad Hussain had injuries on his person and he was referred by the Police Officer for medical examination.

The three knives recovered from Ghulam Muhammad appellant, Ghulam Qasim and Ghulam Haider were sent for chemical examination and the Chemical Examiner found them stained with blood. The report of the Serologist was, however, not produced. The appellant Ghulam Muhammad denied the recovery of the knife and made the following statement at the trial under section 342, Cr. P. C. :‑

"Mst. Muridan had deserted my house of her own. Similarly, my sister Mst. Bakhat Bibi had left the house of Ramzan. Ramzan and Saifullah are friends. I owed Rs. 400 to Saifullah, which I could not pay back, being poor. Ramzan and Saifullah came to the house of Muhammad Hussain to forcibly take away Mst. Bakhat Bibi in my absence. Muhammad Hussain accused and his brother Khan Muhammad tried to rescue her, in which Ramzan was injured. Muhammad Hussain was also injured at that time. This case has been fabricated against us. I am innocent. I, Ghulam Qasim and Ghulam, Haider accused were not present at the spot, at the time of the alleged occurrence."

This explanation is not supported by any independent evidence on the record. The statement of Ghulam Muhammad alias Gama P. W. 13 and Ghulam Nabi appears to be the statements of true witnesses. Both of them saw the occurrence as narrated above and their statements have been believed both by the trial Court and the High Court. In the leave granting order, it was also found that the prosecution case stands proved' beyond reasonable doubt by reliable evidence including that of Ghulam Muhammad alias Gama who by independent witness. The Courts below have also relied on the dying declaration of the deceased. We have gone through the evidence of the prosecution witnesses and are satisfied that the appellant is responsible for the murder of deceased Muhammad Ramzan.

In view of the above, the only question is whether there was any legal basis of discriminating the petitioner's case from that of co‑accused on the point of sentence. It will be noticed that the learned trial Judge has give death penalty to the appellant on the ground that he was the source of all mischief. We have examined this question with the aid of the learned counsel for the parties and it appears to us that the observation of the learned trial Court mentioned above is not without foundation. The evidence of the prosecution witnesses proved beyond reasonable doubt that the appellant asked for divorce of his sister Mst. Bakhat Bibi but Muhammad Ramzan refused to do so. This led to estrangement between the parties and appellant Ghulam Muhammad turned out his wife Mst. Muridan. This was the source of trouble between the parties. The evidence further shows that the appellant gave knife blow to deceased Muhammad Ramzan. He also gave a second knife blow to the deceased. Thus he acted brutally. In these circumstances, we are satisfied that the appellant has been rightly sentenced to death and there is no ground to interfere.

In the result, the appeal is dismissed.

Appeal dismissed.

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