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Jail Petition No. 20‑R of 1983, decided on 20th June, 1984.

(Against the judgment of the Lahore High Court, Lahore, dated 31st March, 1980, passed in Crl. Appeal 33 of 1980 and M.R. No. 14 of 1981) .

‑‑‑Art.185 (3)‑‑Penal Code (XLV of 1860), S.302‑‑Murder‑‑Prosecution version supported by prosecution witnesses‑‑Testimony of such witnesses corroborated by dying declaration of deceased and recovery of blood stained hatchet from accused petitioner‑‑Forgiveness by deceased's father‑‑Held, cannot constitute a mitigating circumstance entitling petitioner to lesser penalty‑‑Leave to appeal refused.

Muhammad Bilal, Advocate Supreme Court for Petitioner.

Nemo for the State.

Date of hearing: 20th June, 1984

Muhammad Bakhsh petitioner has filed this petition for leave to appeal through jail against the dismissal of his appeal by the High Court in a murder case vide the impugned judgment dated 27th February, 1983.

2. Muhammad Bakhsh petitioner is accused of having murdered his real niece Mst. Nooran, (daughter of his brother Shara P.W.9).

3. The motive of the offence is stated to be that the father of Mst. Nooran had given her hand to his nephew Niaz, the son of his other brother Muhammad Nawaz, and the petitioner wanted that he should give her hand in exchange to some one where he could get married. Muhammad Bakhsh petitioner had resented this. As such he brutally murdered Mst. Nooran with a hatchet, between 8 and 9 a.m on 23rd March, 1979, when she was out in the fields, causing as many as 5 injuries. The FIR was based the statement of Mst. Nooran (deceased) herself which was recorded in the hospital where she was brought when she was still alive.

The accused‑petitioner was arrested and a blood‑stained hatchet (P.8) was recovered from him which was subsequently found to be stained with human blood.

4. At the trial as many as 5 witnesses appeared against the petitioner in support of the prosecution case. Amongst these was her own brother Shara (P.W.9), the father of the deceased, as also Mst. Manzooran (P.W.12) and Mst. Azizan (P.W.13) the two real sisters of the deceased (who are real nieces of the accused‑petitioner). Apart from these two other independent persons, namely Sodager (P.W.10) and Jan Mhammad (P.W.11) also appeared and supported the prosecution version. Their testimony was corroborated by the dying declaration of Mst. Nooran herself. It was further corroborated by the recovery of the blood‑stained hatchet (P.8) from the accused‑petitioner.

5. The learned trial Court believed the evidence and convicted the petitioner, and sentenced him under section 302, P.P.C. to death and also imposed a fine of Rs. 5000 under section 544‑A, Cr.P.C. The High Court dismissed his appeal and confirmed the death sentence.

Hence the present petition.

6. The petitioner's counsel felt rather embarrassed as he could hardly urged anything in support of the petition. All that he stated was that petitioner's brother Shehra (P.W.9) (the father of the deceased) had filed an affidavit to the effect that he had forgiven the petitioner. The petitioner s counsel, therefore, urged that his sentence may be reduced. We are afraid forgiveness by petitioner's brother, in the circumstances of this case, can hardly constitute a mitigating circum stance entitling the petitioner to be lesser penalty.

The petition is, therefore, dismissed as having no merit.

S. Q. Petition dismissed

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