Find a Lawyer

Criminal Petition for Special Leave to Appeal No. 226 of 1980, decided on 21st December, 1980.

(Against the judgment and order, dated 15‑1‑1980 of the Lahore High Court in Criminal Appeal No. 144 of 1978).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Sentence‑‑Conviction and death sentence‑‑Prosecution relying on testimony of natural eye witnesses, evidence of motive and medical evidence‑‑No mitigating circumstance for reduction of sentence shown‑‑Sentence awarded and confirmed by High Court, held, justified in circumstances of case‑‑Leave to appeal refused.

‑‑‑S. 302‑‑Conviction on charge of murder‑‑Non‑production of eye‑ witnesses mentioned in F.I.R. who were closely related to deceased. Whether reflected adversely to prosecution case‑‑Real brother and father of deceased though mentioned in F.I.R. as eye‑witnesses, not produced at trial because it was considered unnecessary to do so‑‑Plea that it reflects adversely on prosecution case, repelled, because it was evidently of no use multiplying testimony of one real brother of deceased with that of other eye‑witnesses closely related to deceased.

‑‑‑S. 302 Appeal against conviction" Evidence‑‑‑Medical evidence contradicting eye‑witnesses‑‑Occurrence at 10‑30 a.m. Doctor conducting post‑mortem examination being of view that deceased died immediately after being struck with a dagger‑‑Eye‑witnesses stating that he had not died at spot and was taken to hospital‑‑Doctor in Casualty Ward certifying that he died at 12‑20 p.m.‑‑Held: In presence of certificate by Doctor of Casualty Ward, view expressed by doctor who subsequently conducted post‑mortem examination acquired secondary position.

K.M. Pasha, Advocate Supreme Court and Salim A. Malik, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 21st December, 1980.

Riaz, petitioner, was tried for the murder of Siraj Din by the Additional Sessions Judge, Lahore, who sentenced him, inter alia, death. The High Court dismissed his appeal and confirmed his sentence of death vide the impugned judgment. Hence, the present petition.

2. The occurrence took place on 18th December, 1975 at 10‑30 a.m. in Bazar Guru Nanak, Pir Maki, Road, Lahore, at a distance of five furlongs from P.S. Anarkali.

3. The motive for the occurrence is stated to be a dispute between Riaz, petitioner, and the deceased over the possession of a room. On the day of occurrence the two again had a quarrel over that room, and on the refusal of Siraj Din, deceased, to compel with the petitioner's demand, the latter brought out a dagger and gave blows with it on the left side of the chest of the deceased, who fell down. The accused then ran away. Siraj Din was taken to the hospital. On being informed about the incident Masud Ahmad, A.S.I. rushed to the Police Station where the matter was reported to him by Muhammad Salim, P.W. 7 the brother of the deceased. Subsequently, the formal F.I.R. was registered on the basis of the statement.

4. During the investigation, a dagger P. 5 was recovered at the instance of the accused but since it was not found stained with blood, it was not relied upon. Some blood‑stained earth was taken into possession from the spot which was found to be stained with the blood.

5. The prosecution case was supported at the trial by three eye witnesses namely, Muhammad Shafi, P.W. '6 a shopkeeper, whose shop was situated opposite to the deceased's shop in the same Bazar, Muhammad Salim, P.W. 7, a real brother of the deceased and Abdul Majeed, a cousin of the deceased. Abdul Majeed was not believed by the Courts below while Muhammad Ilyas, another brother of the deceased and Muhammad Hussain, the father of the deceased, though mentioned in the F.I.R., were not produced at the trial because it was considered unnecessary to do so. The prosecution also relied on the evidence ox; motive and the medical evidence.

6. The learned counsel for the petitioner submitted that firstly the dead body of Siraj Din was not identified by anyone at the time of post‑mortem and as such it could not be said that Siraj Din had met with a violent death. This contention is negatived by the statement of doctor who said at the outset of his statement "that the dead body was identified by Muhammad Ishaq and Bashir Ahmed".

7. The learned counsel submitted next that the non‑production of Muhammad Ilyas and Muhammad Hussain, brother and father of the deceased reflects adversely on the prosecution case. We are not inclined 6 to agree with this submission because it was evidently no use multiplying the testimony of Salim, P.W. 7 with that of other eye‑witnesses closely related to the deceased.

8. The counsel then urged that the medical evidence contradicts, the eye‑witnesses because while the doctor, who conducted the post-mortem examination, opined that Siraj Din had died immediately after being struck with a dagger, but according to the eye‑witnesses he had not died at the spot. This contention has no forte. There is evidence that Siraj Din had been taken to the hospital where the Doctor in the Casualty Ward certified that he died at 12‑20 p.m. on the day of occurrence. In the presence of the certificate by the Doctor of Casualty Ward view expressed by the doctor who subsequently conducted the post‑mortem examination acquires secondary position. Had Siraj Din died immediately at the spot, the P.Ws. would never have taken the trouble of carrying him to the hospital.

9. Muhammad Shaft, P.W. 6 is admittedly an independent witness. He is not related to either party. His shop is located in the same Bazar where the occurrence took place. He is, therefore, also a natural witness. He has supported the prosecution version, and implicated the petitioner. The learned Courts below have rightly relied on his statement which corroborates the testimony of the other eye‑witnesses. The High Court was, therefore, justified in maintaining his conviction.

10. The learned counsel submitted next that the learned High Court while confirming the sentence of death, had relied on some facts which have not been brought on the record through any evidence. In this 'connection, he referred to paragraph No. 44 of the impugned judgment (page 45 of the printed paper‑book) which are as follows:‑

"From the suggestion of the defence counsel himself that the accused had 'served a term of life imprisonment in previous murder case and was again convicted in another case under section 307, P.P.C. I have come to the conclusion that accused Riaz is a desperado and has scant regard for human life, and he can kill a man on slightest provocation."

11. We asked the learned counsel that even if these two circumstance (which had been suggested by the defence counsel himself) were not to be taken into account, could he point out any mitigating circumstance which would be taken into account for reducing the sentence of the petitioner. The learned, counsel was not able to point out any such circumstance. We are of the view that the sentence awarded and confirmed was justified in the circumstances of this case. The petition is therefore, dismissed as being without merit.

M .I. Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.