ASLAM RIAZ HUSSAIN, ACTG. C. J.-Muhammad Ali appellant was tried by the Additional Sessions Judge, Multan for an offence under &. Lion 302, P. P. C. He was convicted him for the said offence and sentenced him to death vide judgment dated 14-10-1978, and a fine of Rs. 1,000. The appellant filed an appeal before the High Court which was dismissed and the sentence of death confirmed.
He then came up before this Court through Civil Petition No. 512/80 for grant of leave. Leave was granted only to consider whether there was any mitigating circumstance entitling the appellant to reduction of sentence.
2. The occurrence in this case took place on 7th November, 1977 at 6-30 p. m. In Mohallah Gharibabad, Khanewal City.
The facts of the prosecution case, briefly, are that at about 6 p. m. On the day of occurrence Muhammad Aslam (deceased) and his uncle Abdul Ghaffar were present at the flour mill of the latter in Mohallah Gharib--abad, Khanewal, when Muhammad Ali appellant passed that way. On seeing him Muhammad Aslam (deceased) protested that he (the appellant) had stolen his pigeon. The appellant denied this and an altercation took place between the two. Muhammad Ali (appellant), however, left the place threaten--ing the deceased to take revenge. After about half an hour the appel--lant came back armed with a knife. At that time Muhammad Aslam (deceased) was standing on the thara of the adjacent hotel (a tea stall) belong--ing to one Abdul Ghafar (not produced). Muhammad Ali (appellant) went up to Muhammad Aslam and inflicted a knife blow on the left side of his the t. Besides Abdul Ghaffar (P. W. 5) the occurrence was also seen by Muhammad Sharif (P. W. 6) and Muhammad Hanif (P. W. 7) who were taking tea at the tea stall.
They raised an alarm and went towards the accused in order to apprehend him but he threatened them not to come near and ran away with the knife. Muhammad Aslam (deceased) was taken to the Civil Hospital, Khanewal in injured condition where he was medically examined. Abdul Ghaffar (P. W. 5) then went to the Police Station, Khanewal and lodged an F. J. R. At 8-40 p. m., which was recorded by Muhammad Ismail, A. S. I. (P. W. 4). On coming to know of the commission of this offence Abdul Karim, S. I. (P. W. 9) proceeded to the hospital. On reaching there he inquired from the doctor if Muhammad Aslam who was still alive, was in a fit condition to make a statement. He was informed that Muhammad Aslam was conscious and was fit enough to make a statement.
The S. I. Therefore recorded his statement under section 161, Cf. P. C., wherein the latter gave substantially the same version as given by Abdul Ghaffar P. W. In the F. I. R. After his death this statement was used as a dying declaration of the deceased.
During the investigation the blood-stained chhuri (P. 4) was recovered from the appellant who led to its recovery after his arrest which was taken into possession by the Investigating Officer. This was subsequently found to be stained with human blood.
3. At the trial the prosecution produced three eye-witnesses, namely Abdul Ghaffar (P. W. 5), Muhammad Sharif (P. W. 6) and Muhammad Hanif (P. W. 7). It also relied on the blood-stained chhuri (P. 4) as well as the evidence of motive and the medical evidence.
In his statement under section 342, Cr. P. C., the appellant admitted having stabbed the deceased but stated that Muhammad Aslam (deceased) and his uncle Abdul Ghaffar (P. W. 5) had caught hold of him for having stolen Aslam's (deceased's) pigeon and dragged him inside the flour mill and after dragging him they threatened him to be killed. He stated further that apprehending danger to his life he inflicted a chhuri blow to the deceased and got himself released and ran away. As already mentioned the trial Court as well as the High Court believed the prosecution version and rejected the plea of defence put forward by the appellant.
4. The learned counsel for the petitioner has canvassed before us that in view of the fact that the appellant had given only one chhuri blow to the deceased he was, therefore, entitled to the lesser sentence.
We have gone through the entire evidence with his help and have also read the portions of the judgments of the two Courts below relating to the question of sentence. We notice that although Abdul Ghaffar, P. W. Is related to the deceased yet the other two eye-witnesses, namely Muhammad Sharif (P. W. 6) and Muhammad Hanif (P. W. 7) are absolutely independent and disinterested persons. Muhammad Sharif is a peon in the Irrigation Depart--ment while Muhammad Hanif P. W. Is an employee in the Telephone Department at Khanewal. No suggestion of any enmity or hostility has been made against them during the cross-examination. Even Abdul Ghaffar, though related to the deceased had no motive to falsely involve the appellant. There was no previous enmity between the parties which could be said to have induced the complainant to falsely substitute the appellant for the real assailant, if in fact, another person had caused the injury. Muhammad Aslam (deceased) has himself named the appellant as his assailant in his dying declaration. The altercation in this case took over a very petty matter and the appellant went away and came back after half an hour armed with a chhuri (P. 4), which indicates premeditation on his part. The fact that aimed the blow on the chest of Muhammad Aslam (deceased) clearly shows his intention to kill him. We have tried to look if there is any extenuating circumstances in the evidence but we find that no such circumstance exists in this case. We, therefore, feel that the learned Courts below were justified in sentencing him to death and we do not consider this to be a fit case for interference.
The appeal is, therefore, dismissed.