Find a Lawyer

Criminal Petition for Special Leave to Appeal No. 72 of 1982, decided on 1st July, 1986.

(From the judgment of the Lahore High Court, Lahore, dated 9‑2‑1982 in Criminal Appeal No. 215 of 1979 and Murder Reference No. 53 of 1979).

‑‑S 302‑‑No serious enmity existing between accused and deceased‑ Eye‑witnesses having no motive to falsely implicate accused‑‑Contention of counsel for accused that eye‑witness account was disbelieved by High Court due to conflict with medical evidence not substantiated‑ Conflict existing between medical evidence and ocular account on question of distance between assailant and deceased and number of shots fired at deceased but High Court dealt with both points elaborately and there was no reason to hold otherwise‑‑None of arguments of defence succeeding‑‑Conviction of accused under section 302, Penal Code, maintained.

Manzoor Ahmad v. The State P L D 1983 S C 197 ref.

‑‑‑S. 302‑‑Conflict between medical evidence and ocular account on question of distances between assailant and deceased Possibility of genuine mistake by witnesses in estimating distance could not be excluded.

Muhammad Rafiq v. The State P L D 1974 S C 65 rel.

‑‑‑S. 302‑‑Co‑accused., acquittal of‑‑Co‑accused not attributed any active part except 'Lalkara'‑‑Acquittal of co‑accused by High Court giving him benefit of doubt upheld‑‑Contention that co‑accused had been acquitted on appreciation of same evidence by which accused was convicted repelled in circumstances.

‑‑‑Art. 187(3)‑‑Penal Code (XLV of 1860), S.302‑‑Question arising whether in view of failure of motive, accused could be awarded capital sentence or given benefit thereof so far as question of sentence was concerned, required examination‑‑Leave to appeal granted to consider question.

A. K. Brohi, Senior Advocate Supreme Court, Raja Muhammad Anwar, Senior Advocate Supreme Court, M. Bilal, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑‑on‑Record (absent) for Petitioner.

Nemo for the State.

Date of hearing: 1st July, 1986.

Leave to appeal has been sought from judgment, dated 9‑2‑1982 of the Lahore High Court; whereby in a case of murder the appeal of Muhammad Banaras petitioner against sentence of death and fine, was dismissed and the Murder Reference accordingly was answered in affirmative. Earlier, the learned trial Judge had while convicting the petitioner for the murder of his co‑villager Mat. Anwar Jan, acquitted his brother Shadi Khan on extension of benefit of doubt.

The prosecution case as contained in the deposition of Maula Bakhsh P.W. who is real brother of the deceased as also complainant in the case is as follows:‑‑

"Mst. Anwar Jan deceased was my sister. On 30‑8‑1975 at 7‑00 a.m. I and the deceased went to the land of one Atta Muhammad for cutting grass. Gul Muhammad and Khan Muhammad P.Ws. were already cutting grass from there. Banaras accused came there and he addressing the deceased shouted that yesterday she had abused his mother and now he would teach her lesson. Banaras accused came at about 7‑30 a.m. On hearing the shout of Banaras accused, I, Gul Muhammad and Khan Muhammad P.Ws. stood up. We saw Banaras accused armed with gun and Shadi accused with revolver. Shadi Khan accused addressing Banaras accused said that he should stop talking and kill Mst. Anwar Jan as she would run away. The deceased tried to run away but Banaras accused fired a shot which hit on the back of the deceased and she fell down. The accused fled away after their departure we went where the deceased had fallen, and she died after taking 2/3 breaths. On 29‑8‑1975 at degarwela the baffalow of Mst. Akbar Jan the mother of the accused damaged the maize crop of the deceased upon which the deceased abused the mother of the accused. Anwar Jan was allotted land in District Multan and Banaras accused was keen to purchase but the deceased refused to sell her land to Banaras. In June or July, 1974 Banaras accused had asked me to press the deceased to sell her land to him. I refused to press the deceased. Mst. Anwar Jan had sold her land to one Naseer resident of District Campbellpur. This offended Banaras accused. In April or May, 1975 Banaras accused had protested to me that the deceased had not sold her land to him. The land of village Ropar has been acquired by the C . D . A . but the possession is with the owners with the permission of Government and we are still cultivating that."

At the trial ocular testimony was further furnished by Gul Muhammad and Khan Muhammad P.Ws. One of them is the brother‑in‑law of the deceased and the other is also related but not very closely. A crime empty recovered from the spot was sent to the Ballistic Expert along with a gun recovered from Banaras petitioner. The opinion expressed was that it had not matched with the gun. Thus the recovery of the gun is not connected with the crime. No independent evidence of twin motive was produced. An argument in this behalf raised during the arguments in the High Court was not repelled. The defence plea was that Mst. Anwar Jan had some differences With her husband Atta Muhammad whom she had also appointed as a general attorney few years before the occurrence but some months before that cancelled the same on the ground of lack of confidence in the attorney. This, according to the defence was a pointer towards relationship between the husband and the wife and thus the suggestion was that she was either murdered by him or he got her killed through someone else. And because the witnesses are all relations of the deceased, therefore, the petitioner was substituted for the real culprit.

The learned trial Court relying on the prosecution evidence convicted and sentenced the petitioner as noted above. His brother who had not been alleged any active part except a Lalkara was, however, acquitted through extension of benefit of doubt.

Learned counsel for the petitioner has taken us through the relevant material on record. He has made three main points for seeking leave to appeal. Firstly, that the conviction rests on ocular evidence which was disbelieved by the High Court on account of contradiction with medical evidence, it should not have been again made the basis of conviction; Secondly, that the medical evidence directly contradicts the ocular account of the occurrence; Thirdly, that Shadi Khan having been acquitted on the appreciation of the same eye‑witness's account they should not have been relied upon regarding Banaras petitioner, and Lastly, in alternative, learned counsel contended that the High Court not having affirmed the motive part of the prosecution evidence despite a point having been raised in that behalf, acting on the ratio in Manzoor Ahmed v. The State P I. D 1983 S C 197, should not have affirmed the capital sentence.

It is an admitted position that there was no serious enmity between the parties before the occurrence other than the alleged desire of the petitioner to purchase the land of the deceased which the latter had not sold to him and instead sold to another person. There is no direct independent evidence to support this assertion of Maula Bakhsh. He is directly contradicted by the fact that the petitioner had witnessed three of the deeds which the deceased had executed in connection with execution and cancellation of power of attorneys. This goes to show that the petitioner was trusted person in so far as the deceased is concerned. This motive, it seems, is not proved and that is why the High Court did not make any comment on the contentions raised in this behalf. We, therefore, hold that there was no enmity between the petitioner and the deceased. That being so, we are unable to hold that the eye‑witnesses had any motive to falsely implicate the petitioner. Their relationship with the deceased in the context of the aforementioned circumstances regarding motive is of no avail to the petitioner in so far as the general question of credibility of the witnesses is concerned. The contention of the learned counsel that the eye‑witness account was disbelieved by the High Court due to conflict with medical evidence could not be substantiated by reading the impugned judgment which with respect, it appears was misread by the learned counsel.

Seemingly there is conflict of medical evidence with the ocular account on question of distance between the assailant and the deceased and the number of shots fired at the deceased. The learned Judges in the High Court have dealt with both the points elaborately. They saw the diagram of the injury which was 14" x 10" (and was composed of several wounds) and differed with the doctor in so far as the number of shots is concerned. We have no reason to hold otherwise. On the question of distance they were of the view that genuine mistake by the witnesses in estimating the distance could not be excluded and in this behalf relied upon a judgment of this Court Muhammad Rafiq v. The State P L D 1974 S C 65. We accordingly uphold the judgment of the High Court on this point.

The acquittal by the trial Court of Shadi Khan which is the basis of the next point urged by the learned counsel is also of no avail to the petitioner. The acquittal was on account of benefit of doubt. There is no finding of false implication by either of the too Courts below. Therefore, on account of this reason alone there was no justification for seeking corroboration of the eye‑witnesses.

None of the argument of the learned counsel having succeeded, we are of the view that the conviction of the petitioner under section 302, P.P.C. has rightly been upheld by the High Court.

However, on the question of sentence we feel that the failure of the motive would re‑act in this case on the question whether the petitioner should have been awarded capital sentence. We have already commented that the old motive with regard to the alleged refusal of the deceased to sell the land to the petitioner does not seem to have been established nor the High Court has adopted it in its own judgment. Same is the position with regard to the second immediate motive regarding utterances of abuses by the deceased to the mother of the petitioner a day before the occurrence. Even if the second motive is believed there is nothing in the evidence to show that the incident did not take place immediately before the occurrence. And even if it had taken place on the previous evening the gap of night between this incident and the occurrence is such that the benefit of failure of motive or in any case that of abuses (if the second motive is believed) can benefit the petitioner in so far as the quantum of sentence is concerned. We, therefore, while upholding the conviction of the petitioner under section 302, P. P. C . grant leave to appeal to examine the question of sentence, only.

M. Y. H. Leave granted.

Find a Lawyer Near You

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