M.S.H. QURAISHI. J.-- This jail petition is late by four days, but in view of the reasons given in the application for condonation of the delay I am inclined to condone the delay.
2. The four petitioners, namely, Muhammad Javed, Muhammad Saleem, Ejaz and Mushtaq, alongwith Abdul Karim, father of Mushtaq, were tried under sections 302/149 and 148, P.P.C. For the murder of Shabbir Ahmad deceased. Abdul Karim was acquitted by the trial Court but the petitioners were convicted under section 302/149 and sentenced to imprisonment for life and to a fine of Rs.3,000 each or in default in payment thereof to R.I for to years each. Half the amount of the fine if realized was to be paid to the heirs of the deceased. Their appeal before the High Court failed except that their offence was modified to be under section 302/34, P.P.C.
3. The murder took place on 15-7-1975 at about Ishswela in the vicinity of Chak No.313/E.B., four miles from P.S. Sahuka, District Vehari. The deceased, his father Muhammad Ashraf and grandfather Barkat Ali P.Ws. Were going to their fields where their cattle had been kept, when they were confronted by the accused. At the Lalkara of Abdul Karim, Mushtaq petitioner gave a stick blow at the neck of the deceased at which the latter fell down, whereafter Muhammad Javed petitioner inflicted a number of hatchet blows followed by stick blows by Mushtaq, Ejaz and Muhammad Saleem petitioners. The occurrence was also seen by Hidayatullah (P.W.3) and Muhammad Said (not produced) who had been attracted by the alarm. The deceased died at the spot. The report was lodged by Muhammad Ashraf.
4. The motive for the crime was the suspicion that the deceased had illicit relations with Mst. Sajida, sister of Mushtaq petitioner and daughter of Abdul Karim co-accused, about which the latter had complained to Muhammad Ashraf P.W. Some 20 days before the occurrence.
5. A blood-stained hatchet (Exh. P.3) was recovered at the instance of Muhammad Javed petitioner. A Dang each was also recovered at the instance of the other petitioners but the same were not blood-stained. The medical evidence showed the presence of four incised and four bruise injuries on the person of the deceased. The prosecution was supported by the ocular testimony of Hidayatullah (P.W.3), Muhammad Ashraf (P.W.6) and Barkat Ali (P.W.7), the medical evidence, the recovery of the blood-stained hatchet and motive. During the trial a suggestion was put, on behalf of the petitioners, to the prosecution witnesses that Mushtaq petitioner while returning from his field with a hatchet in hand had seen the deceased in a compromising position with Mot. Sajida in a grove of trees at which he alone had, under grave and sudden provocation, caused the injuries with the right as well as the wrong side of the hatchet but they changed the position when making their statements under section 342, Cr.P.C. And instead stated that they had been falsely involved in the case as Muhammad Nawaz and Mahmood Ahmad, brothers-in-law of Muhammad Ashraf complainant, wanted to dispossess the petitioners-who were cultivating their land as tenants since 1972. They led no defence. They were, however, held guilty, while Abdul Karim who was only attributed Lalkara was given the benefit of doubt by the trial Court.
6. The main contention raised before the High Court was about conflict between the medical and the ocular testimony in regard to the cause of death and the stomach contents. According to the medical officer, death had been the result of strangulation besides the injuries and the stomach contained digested food whereas the ocular witnesses had not alleged strangulation and had stated that they had taken meals only about to minutes before their departure The High Court by reference to the relevant injury (injury No.5) found on the neck of the deceased which was a "bruise 6" x. 1 -- " on the front of neck on right side at mid area" which had resulted in broken hyoid bone, the absence of any ligature mark or finger mark on the neck and on account of the fact of profuse bleeding from facial injuries into the throat and by reference to Modi, Taylor and Mason held that asphyxia could have resulted causing the death. The High Court was not satisfied that the evidence showed that the deceased had himself taken food just before departure and as such held that there was no conflict between the medical and the ocular testimony in regard to the stomach content. The High Court also ruled out the objection raised by the petitioners in regard to their identification by the ocular witnesses at night the as it found that it was the night of 5th of the lunar month and the accused were known to the witnesses.
7 The petitioners in their present petition have more or less raised the same points as had been urged before but rejected by the High Court, i.e., the medical evidence that the death was due to strangulation and the presence of digested food in the stomach. After going through the record I am satisfied that the points have been properly dealt with by the High Court. The number and nature of injuries go to show that the assailants were more than one. The petitioners have already been given the benefit of the motive by the award of the lesser penalty. No case is, therefore, made out for grant of leave to appeal. The petition is liable to dismissal.
NASIM HASAN SHAH.-- I agree.