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Criminal Appeal No.98 of 1978, decided on 25th March, 1984.

(On appeal from the judgment of the Lahore High Court, Lahore, dated 27‑4‑1977, passed in Criminal Appeal No.814 of 1975 and Murder Reference No. 89 of 1976).

‑‑‑Art.185 (3)‑‑ Penal Code (XLV of 1860), S.302‑‑Murder‑‑Leave to appeal granted for reappraisal of evidence relating to motive, medical evidence, recovery of crime weapon and veracity of eye‑witnesses to have seen occurrence because of darkness.‑‑[Evidence].

‑‑‑S.302‑‑Murder‑‑Evidence‑‑ Re‑appraisal of evidence showing nothing to cast doubt on prosecution version as put forward by prosecution witnesses‑‑Conduct of deceased in lodging F.I.R. against accused and endeavouring to secure his arrest furnishing a motive for accused to get rid of deceased‑‑Number of simple injuries on person of accused not attributed to complainant party‑‑Recovery of hatchet proved through independent witnesses‑‑Identification of assailant by eye‑witnesses not open to doubt‑‑Judgment of High Court maintaining conviction and confirming death sentence of accused‑‑Held, does not merit interference in circumstances of case.

Ch. Ghulam Dastgir, Advocate Supreme Court for Appellant.

Rao Muhammad Yusuf, Advocate Supreme Court with Ijaz Ali Shaikh, Advocate‑on‑Record for the State.

Date of hearing: 25th March, 1984.

.‑‑ This is an appeal by Altaf Hussain, through Jail, by the leave of this Court against his conviction and sentence in a case under section 302, P.P.C.

He was tried by Additional Sessions Judge, Lahore for the murder of Sabir Ali and convicted under section 302, P.P.C, for which he was sentenced to death and a fine of Rs.2,000 or in default he was ordered to undergo further R.I for one year. He filed appeal before the High Court which dismissed the same and confirmed the death sentence. He then filed a petition for leave to appeal before this Court and leave was granted to him on 17th May, 1978 only for reappraisal of the evidence A relating to motive; medical evidence; recovery of the crime weapon and the possibility that the eye‑witnesses may not have seen the occurrence because of darkness.

2. The motive is stated to be that on 18th November, 1972 Altaf Hussain appellant stabbed Abdul Shakoor brother of Sabir Ali (deceased) on which the latter had got a case under section 324, P.P.C. registered against him (i.e. the appellant). It is alleged that Altaf Hussain absconded and Sabir Ali (deceased) was making efforts to get him arrested.

3. The facts of the case are, briefly, that at about 6 p.m. on 11th January, 1973 Sabir Ali alongwith the eye‑witnesses was going on the Ravi Road. Nizam Din P.W.5 and Ghulam Ali (not produced) were riding one bicycle and Muhammad Sadiq P.W.6 and Sabir Ali (deceased) were riding another bicycle. When they reached near the shop of Hanif Altaf Hussain appellant armed with an axe turned up there‑, challenged Sabir Ali saying how had he dared to get a case registered against him and gave a hatchet blow on his head. Sabir Ali fell down from the bicycle and Altaf Hussain ran away. The P.Ws. immediately rushed Sabir Ali to Mayo Hospital where he expired about half an hour later. The police was informed on the telephone which reached the hospital. Nizam Din (P.W.5) reported the matter to the police on the basis of which formal F. I . R . was later registered.

The appellant was arrested and lead to the recovery of a blood stained hatchet which was subsequently found to be stained with human blood. .

4. At the trial the prosecution relied on the ocular testimony of Nizam Din (P.W.5); Muhammad Sadiq (P.W.6) and Habibullah (P.W.9); recovery of the blood‑stained hatchet; medical evidence and the motive.

5. The learned Judges granting leave expressed the view that the motive alleged in the case was not sufficient to connect the appellant with the offence. The learned Judges were also pleased to point out that there were 11 injuries on the person of the appellant which were not explained by the prosecution, which go to show that this was a case of self‑defence; that the recovery of the hatchet at the instance .f the appellant was doubtful; and that it must have been pitch dark at the time of occurrence, at 6 p.m, and as such the eye‑witnesses could not have possibly identified the assailant. It was felt that the evidence on these points needed reappraisal.

6. We have heard the learned counsel, reappraised the evidence on the record and have given our anxious consideration to the above noted points. On a thorough consideration of the matter we feel that none of these points appears to be such as would cast doubt on the prosecution version as put forward by the P.Ws.

7. The conduct of the deceased in lodging an F.I.R against the appellant and endeavoring to secure his arrest could easily have furnished a motive for the appellant to get rid of Sabir Ali. What may be a trivial matter for one person, may furnish a strong motive for another.

8. As for the eleven simple injuries on the person of the appellant, Mujahid Abbas S.H.O., P.W.12, has explained that these were sustained when he (the S.H.O.) arrested the appellant. Even the appellant was not attributed these injuries to the complainant party, during his statement under section 342, Cr.P.C.

9. The recovery of hatchet P.1 has been proved through independent witnesses and cannot be discarded merely because the appellant did take the precaution of washing off the blood from it.

10. The identification of the assailant by the eye‑witnesses, cannot be doubted on the assumption that it was "pitch dark" at 6 p.m. the occurrence took place. The assumption, we are afraid, is miscon ceived. 6 p.m. is not so late in the evening that it could become pitch dark. Moreover, Ravi Road is one of the main roads of Lahore which is very well lit and the eye‑witnesses could have had no difficulty in seeing and identifying the assailant. The impugned judgment of the High Court, does not, therefore, merit interference.

The appeal is consequently dismissed.

S . Q . Appeal dismissed.

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