MUSHTAQ alias SHAMAN vs THE STATE

1. ' SAEEDUZZAMAN SIDDIQUI, J.--The petitioner was tried for the murder of one Ghulam Shabbir and was convicted and sentenced to death and fine of Rs,15,000 and in default of payment of fine to suffer R.I. For two years under section 302, P.P.C, by the Sessions Judge, Jhang vide judgment dated 27-3-1989. The learned Judges of the Division Bench of Lahore High Court after hearing the appeal of the petitioner and the Murder Reference by the Sessions Judge, Jhang, dismissed the criminal appeal against conviction and confirmed the death sentence of the petitioner. The petitioner now seeks leave to appeal against the judgment of Lahore High Court through this Jail petition.

2. The learned counsel for the petitioner firstly contended that there was contradiction in the ocular testimony in the case which gave rise to the doubt hat the P.Ws. Were not present at the scene of offence. The second contention of the learned counsel for the petitioner is that both the eye- witnesses were related to the deceased and as such their evidence was interested which could not be accepted without independent corroboration. The third and the last contention of the learned counsel is that although the deceased suffered 21 wounds the dress which he wore and produced in Court did not carry the marks corresponding to the wounds suffered by the deceased. The learned Judges of the High Court repelled the first raised contention as follows:- "10. We have heard the learned counsel for the parties at considerable length and have read the record with their assistance. There is no force in the argument of the learned counsel that statements of P.W.6 and P.W.7 cannot be relied upon merely because their evidence is interested on account of their relationship with deceased. It is true that Khadim Hussain P.W.6 is father of the deceased and Faqir Muhammad P.W.7 is his cousin. In our view, their relationship alone is not enough to discard their evidence. The site-plan Exh.PJ shows that the deceased was done to death at point No,1, a place near Mamna Gate of Jhang City. Khadim Hussain P.W.6 and Faqir Muhammad P.W.7 were present at points Nos.2 and 3 which were only at a distance of 15 to 17 feet. The presence of the witnesses on the spot at relevant time was natural because they live in the same locality. It is in the evidence that the P.Ws. And the deceased were employees of the Municipal Committee, Jhang, as sweepers. It is established that on the day of occurrence at about 7-45/8-00 a.m., the complainant Khadim Hussain went to do his duty of cleaning the road. It is common knowledge that the time of occurrence is just the proper time at which sweepers like the witnesses and the deceased would do their job of cleaning the roads. Thus, in our view the presence of P.W.6 and P.W.7 on the spot at the relevant time is nothing but natural. The witnesses were present there in connection with the performance of their duties. Khadim Hussain deposed that in his presence the appellant while armed with a dagger emerged and inflicted injuries upon the deceased. This evidence of Khadim Hussain has been corroborated by Faqir Muhammad in its material terms. He deposed that the appellant while armed with a dagger opened an attack and injured the deceased.

3. ' The evidence of Dr. Jehangir Aslam P.W.8 shows that the deceased received as many as 21 injuries on his person. The medical evidence is wholly in line with the ocular account. There are no reasons to disbelieve their confidence inspiring and honest deposition. There is thus overwhelming evidence on record to show that it was the appellant who committed the murder of Ghulam Shabbir with his dagger in a gruesome manner. He, accordingly, does not deserve any leniency."

4. The learned counsel for the petitioner is unable to point out infirmity in the reasoning of the learned Judges of the High Court.

5. ' The next contention of the learned counsel for the petitioner is that one of the eye-witnesses Faqir Muhammad (P.W.7) in his evidence before the trial Court stated that only 4/5 persons were present at the spot at the time of incident while according to other eye-witness Khadim Hussain (P.W.6), there were about 30/40 persons present at that time. These contradictory accounts given by the eye-witnesses according to learned counsel raised the doubt about their presence on the scene of offence. The variation in the evidence of two prosecution eye-witnesses pointed out by the learned counsel for the petitioner does not relate to the material part of the prosecution case and as such it has no effect on the intrinsic value of the evidence of these witnesses. This Court in the case of Roshan and 4 others v. The State (PLD 1977 SC 557) while taking note of the fact that variation in the evidence of witness may occur due to various reasons which may be natural or artificial observed as follows:- "As to the contradictions in the statements of the eye-witnesses on which the defence has placed so much reliance, I may point out that some counsel devote all their energies to create such contradictions and to this end lengthy cross-examination is conducted for hours and days which is intended to confuse, even an intelligent person, and is not calculated to elicit any useful information. This exercise is undertaken because Courts give undue importance to contradictions found in the statements of the prosecution witnesses. To my mind, the primary consideration in appraising the evidence given by a witness is to determine, firstly, why has he offered to testify?

6. Has he seen the occurrence? If so, has the witness a motive to implicate a person who was not among the culprits or to exaggerate the part played by any of them? If a witness satisfies these two tests, then the Court should watch the general demeanour of the witness in order to judge the quality of his perception and his faculty to recall the past incidents. A witness may make contradictory statements on some of the details of the incident in respect of which he is deposing in Court. The variation may be due to mere lapse of memory or the confusion caused in his mind by a relentless cross-examiner. Very often a witness gives an incorrect statement because he must answer every question regardless of the fact whether he knows the answer to it or not. It is not uncommon that the cross-examiner puts words in the mouth of witnesses and the presiding officer is not vigilant enough to check it. It is also common experience that, without any particular intent, even educated people exaggerate when describing an event. Some witnesses may be prone to it more than others. Mere contradictions, therefore, do not lead to the result that whatever the witness has said on the salient features of the case and which conforms to the other evidence on the record, is to be thrown overboard."

7. From the above-quoted observations, it is quite clear that all variations in the evidence do not destroy the intrinsic value of the evidence of such witness. The variations which do not relate to material part of the prosecution story or the salient and important features of the case may be ignored for reasons given in the above-quoted passage as immaterial. I am, therefore, of the view that the variations pointed out by the learned counsel for the petitioner in the evidence of two eye- witnesses in this case, were not such which could affect the credibility of prosecution case.

8. ' The last contention of the learned counsel for the petitioner is that although the deceased had suffered as many as 21 wounds but the clothes recovered by the police did not have corresponding marks on them. This point was never raised by the petitioner either before the trial Court, or before the High Court in appeal and as such it cannot be allowed to be raised for the first time before this Court. However, notwithstanding the fact that this argument is not available to the petitioner, we have looked into the evidence of Investigating Officer in the case and find that no such suggestion was given either to the Investigating Officer or to the 'Mashie, when they were in the witness-box.

9. Therefore, we find no basis or foundation for the argument raised by the learned counsel for the petitioner for the first time before this Court in the case.

10. ' No case for interference is made out. The petition is, accordingly, dismissed and leave is refused.