GHULAM ABBAS vs THE STATE

' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment dated 13-1-2004 passed by a Division Bench of Lahore High Court, Lahore in a criminal appeal filed by the petitioner against his conviction and sentence under section 302(b), P. P. C .

2. The petitioner was tried for the charge of committing murder of Mst. Jatan Bibi, his step-mother, in her house, by the learned Sessions Judge, Bukkar and was awarded sentence of death under section 302(b), P.P.C. With direction to pay Rs,50,000 as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. Vide judgment dated 21-9-1999. The High Court, by maintaining the judgment of the trial Court, dismissed the appeal filed by him and confirmed the death sentence in the murder reference sent by the trial Judge.

3. The prosecution case in short was that Mst. Jannat Bibi deceased and petitioner were living jointly in the house in which the occurrence took place at about 11-30 a.m. On 4-5-1998 in presence of Ghulam Hussain, complainant, real son and Abdul Ghafoor son-in-law of the deceased. The petitioner with the motive to evict Mst. Jannat Bibi from the house, used to tease her and a day prior to occurrence, also had picked up a quarrel with the deceased. The complainant, on coming to know about the quarrel of petitioner with his mother went to her house, along with Abdul Ghafoor to inquiry about the matter and during the talk with the deceased and petitioner forbade the petitioner not to tease his mother whereupon petitioner reached and suddenly picking up an iron Wahola, hit Mst. Janatan Bibi, on neck, on the back of head and by causing further blows to her and extending threats of life to the complainant and Abdul Ghafoor not to interfere, ran away from the place of occurrence with weapon of offence. The above-named two eyewitnesses narrated the above facts in their statements before the trial Court without any material contradiction and discrepancy. Saleem Ullah Khan, S.-I. Investigated the case and Dr. Arusa Khan having conducted medical examination on dead body of deceased traced five injuries on her person, declared two of the injuries on head region, dangerous to life which were the result of death. The petitioner in his statement under section 342, Cr.P.C. Pleaded that he had cordial relations with the deceased whereas Ghulam Hussain, complainant, was interested in the transfer of house owned by her mother in his name, therefore, he in connivance with a local Advocate and police, involved the petitioner in the murder of his mother.

4. Learned counsel for the petitioner has contended that the presence of Ghulam Hussain, real son of deceased and Abdul Ghafoor, her son-in-law, at the spot was highly doubtful because had they been present at the scene of occurrence, they would have not spared the assailant and their conduct of silent spectator would seriously reflect upon their claim of witnessing the occurrence.

The learned counsel argued that recovery of Wahola from the petitioner would be of no consequence as it was not sent to the Chemical Examiner and similarly medical evidence was also in conflict to the ocular account as according to the eye-witnesses 2/3 blows were caused to the deceased but in the post-mortem examination five injuries were found on her person. In nutshell, the contention of the learned counsel was that the occurrence has not taken place in the manner as stated by the witnesses and their presence at the spot was doubtful and that the motive was also shrouded in mystery but even if the eye-witnesses account was considered sufficient to sustain the conviction, it was not the case of capital punishment.

5. We have heard the learned counsel for the petitioner at length and also carefully perused the record with his assistance. It is a day time occurrence which had taken place in the house which was in joint possession of the petitioner and the deceased. The presence of the son and son-in-law of the deceased, who were living in the neighbourhood of deceased in her house at the relevant time, was neither unexpected nor unnatural but still they have sufficiently explained the purpose of their visit to the house of deceased at the relevant time. The defence has not been able to bring anything on record to suggest that the statements made by the witnesses were false or the complainant had any dispute with his deceased mother or he had any enmity with the petitioner.

There was also no evidence, direct or circumstantial, to suggest that it was unseen occurrence or did not take place in the manner as was narrated by the witnesses and the complainant with some ulterior motive, involved the petitioner in the case or substitute him for the unknown culprit. The eyewitnesses were most natural witnesses who having deposed in straightforward manner, corroborated each other on each material point and trial Court as well as the High Court, have found them truthful and confidence-inspiring. The ocular account was supported by the medical evidence in respect of nature and seat of injuries on the person of deceased and minor discrepancy in the statement of eye-witnesses qua the number of injuries, would have no material effect on the truthfulness of their evidence. Similarly, motive being not an essential component of crime, the weakness or absence of motive is not a factor to be essentially considered for the purpose of acquittal or lesser punishment if on the basis of other evidence charge is proved. We having gone through the record, find that the direct evidence of eye-witnesses of unimpeachable character and free from any doubt, coupled with the medical evidence, was sufficient to establish the charge against the petitioner beyond any C doubt and he was rightly convicted and awarded the sentence of death. The alternate sentence of life imprisonment provided under section 302(b), P.P.C. Is not mere question of discretion of the Court rather it can be awarded only in a case of strong mitigating or extenuating circumstances.

6. In the light of foregoing discussion, we do not find any substance in this petition and same is accordingly dismissed. Leave is refused.