' SARMAD JALAL OSMANY, J.---This appeal impugns the judgment dated 24-11-2001, whereby the appellant was found guilty of an offence under section 302-B, P.P.C. And consequently sentenced to death by hanging. Additionally, he was burdened to pay an amount of Rs,75,000 as compensation to the L.Rs, of the deceased.
2. Briefly stated the facts of the case per the Prosecution are that the complainant's father deceased Noor Muhammad was the Headmaster of a Primary School in village Allahyar Sial in which appellant was also working as a teacher. About three to four months prior to the incident the appellant was transferred to Government Mosque School in village Muhammad Ramzan Chandio at which he was annoyed with the deceased on the ground that such transfer was occasioned at the hands of the latter, although the same was denied by the deceased. Nevertheless, the appellant used to threaten the deceased with dire consequences and revenge etc. On the day of incident viz. 8-12-1996 the deceased as usual left his house at about 0845 hours for the School while the .Complainant was following him as he had to attend to his personal work. On the way he was joined by his relatives Baradi and Muhammad Yousaf. Suddenly, they heard cries of deceased Noor Muhammad and saw that appellant was stabbing him with a pair of scissors upon which they challenged him who threatened them and thereafter made his escape good. The complainant, then discovered that the deceased had received a number of injuries on his spine and other parts of his body which were bleeding. He had become unconscious. Thereafter, he was removed to the hospital in Moro Town where he expired.
3. The accused was arrested on 9-12-1996 and after usual investigation the charge-sheet was filed before the learned Judicial Magistrate who sent it up to the Court of the learned Sessions Judge, Naushero Feroz for trial in accordance with law, who, in turn, entrusted the same to the learned trial Court viz. Additional Sessions Judge, Moro. The charge was framed against the appellant who pleaded not guilty and claimed his trial.
4. At the trial, the prosecution examined P.W.1 complainant Sikander Bhatti who produced the F.I.R.
P.W.2, Baradi and P.W.3 Yousaf who produced their statements under section 164, Cr.P.C. P.W.4, Ghulam Asghar who produced, inquest report of deceased Noor Muhammad, Mashirnama of examination of the dead body, Mashirnama of the place of Vardat, Mashirnama of the search of house of accused, Mashirnama of arrest, body search of the accused and recovery of the weapon of offence, P.W.5, Dr. Ghulam Murtaza, Mddical Officer, who produced post-mortem report of deceased, P.W.6, Altaf Ali Seehar, Tapedar of Deh Moro, who produced a sketch of the place of incident, and P.W. H.C. Abdul Sattar. Thereafter, the statement of the accused was recorded under section 342, Cr.P.C. Wherein he denied the allegations levelled against him. However, he neither examined himself nor any other witness in order to prove his innocence.. After hearing the learned counsel for the appellant /accused as well as the learned D.D.A. The learned trial Court convicted and sentenced him as stated above.
5. In support of the appeal, learned counsel has firstly submitted that all the eye-witnesses are related and chance ones and hence need independent corroboration which is lacking in the case.
In particular, he has stressed that there is no explanation as to how P.W. Baradi and P.W: Yousaf were present at the place of incident as they were admittedly residing in another village. In support of this proposition, he has relied upon Abdul Raheem v. The State 1991 PCKLJ 2225 and Muhammad Ahmed v. The State 1997 SCM R 89. Secondly, learned counsel has submitted, that the area was a thickly populated one and hence independent witnesses could easily have been procured by the prosecution which has not been done and hence this causes further doubt in the Prosecution case as there was admitted enmity between the appellant and the deceased. In this regard, he has relied upon Haji Rab Nawaz v. Sikandar Zulqarnain 1998 SCM R 25.
6. Next, learned counsel has submitted that P.W. Ghulam Asghar, who is a witness to all. The mashirnamas in question, belongs to the same community as that of the deceased. Hence, -again his evidence needs to be corroborated, which is not available. In support of this proposition learned counsel has relied upon Mehmood Ahmad v. State 1995 SCMR 12. Finally learned counsel has submitted that in the particular facts and circumstances of the case it is difficult to believe that the appellant could be so easily arrested after committing a gruesome murder and then also leading to the recovery of the weapon of offence.
7. In the alternative, learned ,counsel has submitted that there are mitigating circumstances since admittedly the appellant had exchanged hot words with the deceased over his transfer. Hence he has .Prayed that the sentence of death imposed upon the appellant be converted into life. For this proposition, he has cited Muhammad Ikram v. The State 1999 SCM R 406 and Ansar Ahmed Khan Barki v. The State 1993 SCM R 1660.
8. On the other hand, learned A.A.-G. Has supported the impugned judgment since the crime was witnessed by three persons whose testimony is corroborated by the post-mortem report of the deceased. Secondly, per the 164, Cr.P.C., statement of P.W. Yousaf and P.W. Baradi they had come for their personal work to the house of the deceased where the complainant was also available and hence they could not be called chance witnesses.
9. We have heard learned counsel as well as learned A.A.-G. And have gone through the record with their assistance. Our conclusions are as follows.
10. It would be seen that the case of the prosecution is that on the day of incident, the appellant stabbed to death the deceased with a pair of scissors. The crime was witnessed by the complainant and two other witnesses. The weapon of offence was also recovered at the pointation of the appellant whereas the motive is stated to be the resentment/enmity of the appellant towards the deceased who was allegedly instrumental in the transfer of the former. The pieces of evidence available in the matter are:--
(a) Eye-witness account
(b) Medical report.
(c) Recovery of the weapon of offence i.e, scissors.
11. As to the eye-witness account, it would be seen that this consists of the deposition of the complainant according to whom on the day of incident he had accompanied his father deceased Noor Muhammad to the latter's school where he was the Headmaster. On the way they met P.Ws.
Baradi and Muhammad Yousaf who talked with them for a while and where after the deceased proceeded to the school. He had hardly gone ahead 5/10 paces when the appellant attacked him with a pair of scissors resulting in his death. The complainant has steadfastly stood the test of cross-examination, the only admission niade by him being that there was a previous altercation between the deceased and the appellant over the latter's transfer. The complainant's testimony has been corroborated by P.W. Baradi in his deposition. However, in his 164, Cr.P.C. Statement this witness has stated that he and P.W. Yousaf had firstly come to the house of the deceased and talked with him where after the deceased proceeded to the school, when he was attacked by the appellant. Insofar as the third eye-witness viz. P.W. Muhammad Yousaf is concerned, he has deposed that he along with P.W. Baradi, complainant and deceased were all available in the street when the deceased had gone forward where after they had witnessed the incident. His version is corroborated by this 164, Cr.P.C. Statement. The deposition of all three eye-witnesses has been in turn corroborated through the post-mortem report of the deceased which establishes that he had received as many as 12 stab wounds with a sharp-edged weapon. The time of the offence viz. Around 8-30 a.m. In the morning is also confirmed through the post-mortem report as the time between the death - and the post-mortem which was started at 11-00 a.m. The same day is certified to be two hours. Finally, the ocular version receives further corroboration from the recovery of the scissors at the pointation of the appellant. Hence in our opinion, although there may be a slight variation in the ocular account insofar as the meeting between the eye-witnesses and the deceased is concerned, it is not of such a nature as .To disregard the same all together, As regards the presence of P.W. Baradi and P.W. Yousaf at the scene, in our view, they have sufficiently explained their presence as both have steadfastly deposed that they had come to meet the complainant/appellant on the day of incident. So also in their 164, Cr.P.C., statements which were recorded on 11-12-1996 viz. Three days after the incident they have again corroborated the prosecution case per the F.I.R. Hence, in our view, the mere relationship between the complainant, the eye-witnesses and the deceased would not in any manner lead us to disregard their evidence since as observed above this has received corroboration from other independent sources viz. The medical evidence and the recovery. In this regard, reference can be made to the case of Muhammad Ahmed v. The State and Haji Rab Nawaz v. Sikandar Zulqamain (supra). Insofar as the recovery is concerned, it would be seen that the appellant was arrested on 9-12-1996 at 1300 hours i.e, one day after the incident whereafter he volunteered to produce the scissors in question. The memorandum of recovery was witnessed by P.W. Ghulam Asghar and Mir Muhammad, the latter of whom was examined and who produced the said memorandum. During cross-examination nothing has been admitted by him which could in any manner demolish the prosecution case.
Again, the deposition of this witness has been corroborated by the Medico-legal Report etc.
12. For all the foregoing reasons, we are of the view that the prosecution has been able to prove the charge against the appellant beyond reasonable doubt.
13. Regarding learned counsel's prayer that the sentence of death be converted to life imprisonment due to mitigating circumstances as there was enmity between the parties, it would be seen that grave and sudden provocation as a mitigating circumstance is now no more available in section 300, P.P.C. However, in practical terms it has been applied by the Superior Courts of this country in appropriate cases. (See Abdul Haque v. The State 1996 SC 1). In Ali Muhammad v. Ali Muhammad PLD 1996 SC 274 it was held that "--- it is not all provocations that will reduce the crime of murder to manslaughter. Provocation, to have that result, must be such as temporarily deprives the person provoked of the power of self-control, as the result of which he commits the unlawful act which causes, death. In deciding the question whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind. One has to consider the mental state of the wrong-doer, not in relation to mens rea (for the blow he struck was voluntary, and he intended to kill by means of it), but in relation to the criminality of the act itself. It is for this reason that if the wrongdoer had sufficient time "for the blood to cool and the reason to resume its seat", provocation, however, grave was not treated as an excuse". In such case, the Honourable Supreme Court came to the conclusion that where the accused found the deceased and his wife sleeping together, he was provoked in committing the murder of the deceased and hence converted the sentence of death into life imprisonment. In the present case, it would be seen that per the eye-witness account, the appellant/accused suddenly attacked the deceased with a pair of scissors in the open Bazaar. According to P.W.l, complainant Sikandar Ali the motive was the grudge borne by the appellant/accused against the deceased as he held the latter responsible for his transfer from the school. Indeed in the F.I.R., the complainant has also stated as much and that the appellant/accused used to issue threats to the deceased for the purpose of taking revenge etc. In our view therefore, the crime* in question was premeditated and executed most brutally without any mercy as the appellant/accused gave eleven blows with the scissors to the deceased all over his body which ultimately resulted in death. There is no evidence at all of any grave and sudden provocation which the deceased may have caused in order to justify a lesser punishment. If we were to award a lesser punishment based on the grudge borne by the accused towards the deceased, then in that event no capital punishment could ever be awarded because most crimes of such nature are based on grudges and enmity between the parties. Insofar as the case of Ansar Ahmed Barki v. The State (supra) is concerned cited by the learned counsel in support of the lesser sentence, in our opinion, the facts therein are distinguishable as the accused had warned the deceased not to attend a family wedding as he suspected the latter of having an illicit relationship with his daughter which had ruined her married life. However, the accused did not desist and attended such wedding whereupon the accused shot him dead along with one other person who tried to intervene. In these circumstances the Honourable Supreme Court reached the conclusion that there was an element of provocation and hence converted the capital punishment given to the accused into life imprisonment. As regards the case of Muhammad Ikram v. The State (supra) also relied upon by learned counsel, the facts were that the accused had a quarrel with the deceased over money matters one day prior to the incident when the latter had also abused the former. Hence on the day of incident, the accused along with the coaccused stabbed the deceased to death in which circumstances, the Honourable Supreme Court came to the conclusion that there were mitigating circumstances entitling the accused to the lesser punishment of life punishment. In our opinion, the facts in this case are also distinguishable insofar as the manner and the timing of the crime is concerned. In the present case, the appellant/accused had been harbouring a grudge against the deceased on the allegation that he had been instrumental over the appellant/accused's transfer from the school and used to issue threats of dire consequences to the deceased. So also it would be seen, that as observed above, the crime was perpetuated in a most brutal and merciless fashion by infliction of eleven incised ,wounds with a pair of scissors.
14. For all the foregoing reasons, we are of the opinion that this is not a case of any mitigating circumstance whatsoever which would persuade us to convert the sentence of death imposed upon the appellant/accused into one of life imprisonment. Hence this, appeal is dismissed and the sentence of death given to the appellant/accused, confirmed. This appeal and the confirmation case are disposed of accordingly.