NAWAZ KHAN and another vs GHULAM SHABBIR and another

' MUHAMMAD MUNIR KHAN, J.---Ghulam Shabbir (petitioner in Jail Petition No, 122/94--hereinafter referred to as the accused/petitioner) was convicted by the learned Additional Sessions Judge, Attock under section 302, P.P.C. Vide judgment dated 3-12-1990 for the murder of Muhammad Riaz and sentenced to death and a fine of Rs,5,000 or in default thereof one year R.I. He was also directed to pay Rs,10,000 as compensation to the legal heirs of the deceased or in default to undergo further rigorous imprisonment for six months. On appeal, the Lahore High Court, Rawalpindi Bench, Rawalpindi vide judgment dated 3-4-1994 upheld the conviction under section 302, P.P.C. But altered the sentence of death to imprisonment for life. The accused/petitioner has filed a petition for leave to appeal from jail (J.P. No,122/94) against his conviction and sentence.

Nawaz Khan, the father of the deceased has filed a petition for leave to appeal (Cr.P.LA. No, 57/1994) seeking enhancement of the sentence of the accused from imprisonment for life to death.

We propose to dispose of both these petitions through single judgment.

2. According to the prosecution, the facts of the case are that on account of an incident of quarrel which took place between Muhammad Riaz deceased and Ghulam Shabbir (accused/petitioner) three/four days before the occurrence over the conduct of Gulab Khan (brother of the accused/petitioner) of not supplying drinking water to the deceased, the accused/petitioner, at Rotiwela time, in veranda of Hotel of Muhammad Hayat in village Sikhwal, Tehsil Fatehjang, District Attock, give hatchet blow on the head of Muhammad Riaz who fell down on the ground. Thereafter, the accused/petitioner took knife from his pocket and cut the nose and left ear of Muhammad Riaz who subsequently died due to the injuries on 23-2-1990 at about 1-00 p.m. Ghulam Shabbir (accused/petitioner) was arrested on 26-2-1990. On the same day, he got recovered blood- stained hatchet (P.4) and knife (P.5) in the presence of Mawaz Khan and Muhammad Akram P.Ws.

On 2-3-1990, he got recovered the chopped piece of the nose (P.6) and left ear (P.7). The knife and the hatchet were stained with human blood.

3. To prove its case, the prosecution examined eleven witnesses in all. Abdullah Khan (P.W. 9) and Muhammad Akhtar (P.W.10) have given the ocular account of the occurrence. They have supported the story of the prosecution. Muhammad Akram (P.W.8) and Riaz Hussain (P.W. 11) have supported the above-stated recoveries at the instance of the accused/petitioner. Dr. Muhammad Azam (P.W.

1) had examined Muhammad Riaz in injured condition. Dr. Shamus Din (P.W. 2) conducted the post- mortem examination on the dead body of Muhammad. In his opinion, the head injury was sufficient to cause death in the ordinary course of nature. The remaining evidence is more or less of formal nature.

4. When examined under section 342, Cr.P.C. Ghulam Shabbir accused/petitioner denied all incriminating circumstances. He did not produce any witness in defence and also did not make statement under section 340 (2), Cr.P.C.

5. On 1-8-1994, Mr. Muhammad Munir Peracha, Advocate, learned counsel for the Mowaz Khan, petitioner in Cr.P. 57 of 1994 stated that Mowaz Khan/petitioner is father of the deceased but was neither complainant nor witness and is aggrieved by the fact that the accused/Ghulam Shabbir was sentenced to death by the trial Court which is reduced to life imprisonment by the High Court.

When asked by the Court about the locus standi of Mowaz Khan to file this petition, the learned counsel requested for adjournment to come prepared to satisfy the Court and cite the case-law on the point that the petitioner/Mowaz Khan can be aggrieved party although not party to the proceedings. The case was adjourned for today.

6. Learned counsel has not been able to cite case-law on the point that the father of the deceased who is neither complainant nor a witness can file a petition for leave to appeal against the order of the High Court However, we find that Mowaz Khan/father of the deceased was cited as a prosecution witness in this case but was given up by the prosecution at the stage of trial. So, he can file petition for leave to appeal against the judgment of the High Court. Even otherwise, we are of the view that the father of the deceased although not complainant or prosecution witness is yet an aggrieved person and can challenge the judgment wherefrom he is dissatisfied.

7. On merits, the learned counsel for Mowaz Khan/petitioner contended that the circumstances relied on by the learned High Court for converting the sentence of death into imprisonment for life "do not constitute mitigating circumstances for lesser penalty.

8. Since no one has appeared for Ghulam Shabbir/accused, petitioner in jail petition, so we have reviewed the entire case carefully. We do not feel inclined to grant leave to appeal in both the petitions for the reasons that the eye-witnesses namely, Abdullah Khan (P.W.9) and Muhammad Akhtar (P.W.10) have been believed by the learned trial Court as well as by the learned High Court.

There is no legal infirmity in their statements. They have successfully faced the test of cross- examination. They had no serious enmity against the accused/petitioner to involve him falsely in the case. It is a case of single accused and daylight occurrence. Question of mistake in identity of the culprit does not arise in this case. The accused has not been able to lay down any foundation for his substitution in place of real culprit. The two eyewitnesses are wholly dependable and implicit reliance can be placed on their statement without corroboration.

9. Adverting to the question of sentence raised by the learned counsel for Mowaz Khan, we find that Abdullah Khan (P.W. 9) and Muhammad Akhtar (P.W. 10) have deposed about the motive but they were not present when the incident of motive took place. The circumstance of chopping of nose and cutting the ear of the deceased will show that the act of the accused of killing the deceased was somewhat provoked. So, the real motive for the crime remains shrouded in mystery. The question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused person but also while considering the question of sentence, particularly in a murder case because there is a wide difference between the two alternative sentences--death or imprisonment for life. Benefit of reasonable doubt in respect of the real cause of the occurrence was thus available to the accused. Needless to add that whenever the real cause of murder is shrouded in mystery, is unknown or is concealed, the Courts have normally awarded the lesser punishments under section 302, P.P.C. As a matter of abundant caution.

10. Accordingly, leave to appeal is refused in both the petitions.

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