MUHAMMAD ALI Versus STATE

ORDER

ASLAM RIAZ HUSSAIN, J -Muhammad Ali petitioner filed this petition through jail. Subsequently however, he engaged a counsel for presenting his case in the Court.

2. The petition is directed against the judgment of the High Court dated 5-8-1978 dismissing his appeal in a case under section 302/34, P. P. C.

3. The facts, briefly, are that Muhammad Ali and his nephew Muhammad (co-accused) were accused for the murder of Muhammad Din at sunset time on 4-8-1972.

The motive for the murder is stated to be that 4/5 years prior to the occurrence Muhammad Din (deceased) abducted Mst. Khudeja neice of Muhammad Ali and sister of Muhammad, accused, and taken her to Gujran wala. She was, however, restored after about six months through the intervention of the respectable of the locality. The accused, however, nursed grudge against him and murdered him to avenge the insult.

According to the prosecution version, on the fateful day Muhammad Din accompanied by his sister's son; Muhammad Siddiq (P. W. 8) was re turning from village Lulyani (District Sargodha) after visiting Muhammad Akbar. He was carrying a bundle of fodder on his head. When he just crossed the bridge of Rajbah known as Hujhan in the area of Lulyani, the two petitioners, Muhammad Ali armed with a spear and Muhammad armed with a hatchet, turned up there and attacked him. Muhammad Ali, initiated the attack by giving him spear below in the chest. The deceased ran but fell on the bank of the Rajbah. Muhammad co-accused then gave him hatchet blows on his neck and arms. On the alarm raised by Muhammad Siddiq (P. W. 8) and Amir (P. W. 9) and Azeem (not produced) turned up there and saw the occurrence. The accused ran away alongwith their weapons. The P. Ws. pulled out Muhammad Din from the Rajbah but be had already died. Muhammad Siddiq (P. W. 8) then left for the police station and lodged the F. I. R. at 8.30 p. m. The accused were arrested and during the investigation Muhammad Ali petitioner-accused led to the recovery of the blood-stained spear (P. 4). while Muhammad (co accused) led to his blood-stained hatchet (P. 7). The clothes of the petitioner which were stained with blood were also taken into possession. The two weapons as well as the clothes, on examination were found to be stained with human blood. The post-mortem examination revealed six incised injuries and one stab wound on the chest of the dead body.

4. At the trial the prosecution relied on the testimony of two eye-witnesses, namely, Muhammad Siddiq (P. W. 8) and Ameer (P. W. 9); the evidence of blood-stained weapons of offence, motive and the medical evidence.

The accused pleaded not guilty to the charge. He admitted the abduc tion of Mst. Khudeja by the deceased and her subsequent restoration. Muhammad Ali petitioner stated that he was not present while Muhammad co-accused admitted having killed the deceased, but took up the plea of grave and sudden provocation and stated that two days prior to the occurrence when he slapped one young boy Aslam, nephew of the deceased taunted him saying that instead of avenging the insult he beat up a, minor boy. He further stated that on the day of occurrence he saw the deceased in compromising position with Mst. Khudeja whereupon he lost his self-control and killed him.

5. The learned trial Court believed the prosecution version and convicted the two accused. Each of them was sentenced to imprisonment for life. He (the petitioner) filed an appeal before the High Court through jail which was dismissed in limine vide the impugned order.

Hence the present petition.

6. The learned counsel for the petitioner argued, firstly, that although it was a jail app.-al yet the High Court had erred in not calling the petitioner and given him an opportunity of being heard in his defence before dismissing his appeal and that thus had resulted in miscarriage of justice. The conten tion is misconceived. After examining the original record we find that the appeal was not admitted to regular hearing and consequently notwithstand ing the lengthy judgment it had obviously been dismissed by the High Court in limine. It is well settled that the petitioner in a jail appeal has no right to be heard at the motion stage. The Criminal Procedure Code provides two modes of appeal, one under section 419, Cr. P. C. when the petition is filed by the convict himself or through his pleader and the second under section 420, Cr. P. C. which provides the mode of presentation of the memorandum of appeal through jail. Section 421, Cr. P. C. prescribes the procedure of summary dismissal of appeal at the motion stage. It reads as follows: -

"421-(1) On receiving the petition and copy under section 419, or section 420, the Appellate Court shall peruse the same, and if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily:

Provided that no appeal presented under section 419, shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.

(2) Before dismissing an appeal under this section, the Court may call for the record of the case, but shall not be bound to do so."

It is evident from a reading of the above section that bearing is only required when the petition is presented in the mode prescribed by sec tion 419, Cr. P. C. and it follows that in petition presented under sec tion 420, Cr. P. C. the petitioner cannot be heard at the initial stage. This view was also taken in Jalam Bharatsing v. Emperor (A I R 1938 Bom. 279).

It may be mentioned that the petitioner had not prayed to be called to the Court and given an opportunity of being heard.

7. We have also heard the petitioner's counsel on merits of the case. The only contention raised by him is that the prosecution evidence was not processed properly and due weight was not given to the defence version. Having gone through the record with his assistance and perused the impugned judgment, we are not inclined to agree with this submission The charge has been squarely brought home to the petitioner and the learned Courts below were, therefore, justified in convicting him. (the petitioner) as well as Muhammad his co-accused.

The petition is, therefore, dismissed as being without any merit.

Petition dismissed.