NOOR MUHAMMAD Versus STATE

ORDER

1. USMAN ALI SHAH, J .‑‑This petition for special leave to appeal Has arisen in the following circumstances:‑---

2. Mst. Sughra Bibi was married to deceased Muhammad Nazir. She was the daughter of accused Noor Muhammad and sister of accused Manzoor Ahmad alias Nazir alias Jeera. Unfortunately, the relations between deceased Muhammad Nazir and Mst. Sughra became strained. As a result, Mst. Sughra filed a suit for dissolution of marriage with the deceased Muhammad Nazir and the latter filed suit for the restitution of conjugal rights against her in the Court of Family Judge. Deceased Muhammad Nazir and his father Muhammad Hussain deceased were not reconciled to divorce Mst. Sughra.

3. On the day of occurrence, P. W. Faiz Rasool was grazing goat garden. P.W. Bashir also came there. Meanwhile they heard noise and saw that Muhammad Hussain and Muhammad Nazir deceased were being chased by accused Noor Muhammad, Manzoor Ahmad alias Nazir and Mian Abdul Ghani. Accused Mst. Sardaran, mother of Mst. Sughra, was shouting them to do away with the deceased, as they were not willing to divorce her daughter. The three male accused were armed with hatchets. Noor Muhammad accused inflicted hatchet blow upon the shoulder of deceased Muhammad Hussain who fell down on the ground. Accused Manzoor Ahmad alias Nazir gave a hatchet blow to Muhammad Nazir deceased who fell down in the wheat crop at a distance of 10 karams from Muhammad Hussain deceased. Thereafter, the accused decamped from the spot. The two deceased in injured condition were taken to the hospital. The condition of Muhammad Nazir deceased was very serious and he died in the hospital in unconscious condition. Deceased Muhammad Hussain was, however, still conscious, therefore, P.W. Nazir Hussain A.S.I. applied to the Magistrate, P. W. Muhammad Farooq, for recording his dying declaration. The Magistrate came to the hospital and before he was to record the statement of the deceased, he confirmed it from P.W. Dr. Ghaisuddin Medical Officer that the deceased was in a fit condition to make the statement. He accordingly recorded the dying declaration of Muhammad Hussain deceased (Exh. P.K.) duly thumb‑impressed by the deceased. Later, Muhammad Hussain deceased succumbed to his injuries. Autopsies were conducted on the dead bodies of the two deceased and the result was that they suffered deaths o6 account of the hatchet injuries.

4. The four accused namely, Noor Muhammad, Manzoor Ahmad alias Nazir, Mian Abdul Ghani and Mst. Sardaran were tried by the learned Sessions Judge on the charge of twin murder in this case. In view of the evidence, he found accused Noor Muhammad, Manzoor Ahmad alias Nazir and Mian Abdul Ghani guilty of the offence and by his order dated 29‑4‑1979‑ sentenced each one of them to death on two counts. Fine was also imposed upon them. Mst. Sardaran was however, acquitted.

5. The three accused then filed appeal in the Lahore High Court, Lahore. The learned Division Bench by order dated 15‑2‑1983 dismissed the appeal of Noor Muhammad and Manzoor Ahmad alias Nazir. The death sentence of Noor Muhammad was maintained while that of Manzoor Ahmad alias Nazir was converted into life imprisonment on the ground that at the time of occurrence, he was 14 years of age and further that he acted under the influence of his father Noor Muhammad. The appeal of Mian Abdul Ghani was, however, accepted on the ground that he was not related to the accused party, that he was an aged man using glasses and that he was facing trial in the Court of Magistrate for assaulting P.W. Faiz Rasool and his wife.

6. This petition is barred by 38 days. It is, however, submitted that the petitioner could not afford to engage a counsel, therefore, he filed this petition through jail and so, according to him, 'he delay occurred. In the circumstances, we condone the 'delay and proceed to dispose of the petition on merit.

7. In support of this petition, the learned counsel contended that P.W. Faiz Rasool was an interested witness, in that he was the real brother of deceased Muhammad Hussain. He also contended that legally, the alleged dying declaration of Muhammad Hussain deceased (Exh.PK) is not fit to be relied upon. His submission is that the deceased has allegedly made a statement in Punjabi but there is no note of the Magistrate that the deceased has given the statement in Punjabi. This omission, according to the learned counsel, has rendered the prosecution case doubtful.

8. We do not find any force in what the learned counsel has contended. Dr. Ghaisuddin confirmed that deceased Muhammad Hussain was in a fit condition to make the statement. Muhammad Farooq Magistrate recorded the dying declaration, duly thumb‑impressed by the deceased. Nothing could be imputed to them to doubt their testimony. Correct that the Magistrate failed to record that the decease had made the statement in Punjabi but as this was a procedural omission, it would not be fatal to the case of prosecution. In our opinion, therefore, the dying declaration alone is sufficient to convince the Court about the guilt of both the petitioners. It is a matter of record that the relations between the parties were strained. Mst. Sughra Bibi wanted divorce from deceased Muhammad Nazir. He and his father were not willing to divorce her, The parties instituted proceedings against each other in the Court of Family Judge. This corroboratory piece of evidence throws sufficient light on the fact that it were petitioners Muhammad Hussain and his son Nazir Ahmad who enacted the tragedy. Correct that P.W. Faiz Rasool was interested person. But even if it is assumed that he was not a witness of the occurrence, yet it would not render the prosecution case doubtful. In the facts and circumstances of the case, the dying declaration of the deceased Muhammad Hussain inspires confidence. He charged the petitioners in unequivocal terms for the hatchets blows suffered by him and the other deceased. The dying declaration is corroborated by the medical evidence. The result is that this petition has no force. It is accordingly dismissed and leave to appeal is refused.

9. M.I. /N‑81/S Petition dismissed.