SAEEDUZZAMAM SIDDIQUI, J-Appellant, Ali Bahadur Shah, was tried under section 302/34, P.P.C, alongwith Mazhar Hussain for committing murder of Ibrar Hussain Shah during the night between 3/4 October 1987 in the house of deceased. The trial Court convicted the appellant under section 302, P.P.C, and sentenced him to death in addition to fine of Rs. 10,000 and in default thereof to suffer R.I. For one year. The fine, on recovery, was directed to be paid as compensation to the heirs of the deceased. Co-accused Mazhar Hussain was acquitted in the case by the trial Court.
2. The High Court while disposing of the appeal of the appellant and the murder reference of the trial Court maintained the conviction of appellant under section 302, P.P.C, but altered the death sentence of the appellant to imprisonment for life. However, sentence of fine awarded by the trial Court was maintained. Leave was granted on the jail petition of the appellant for reappraisal of the evidence in the case.
3. Learned counsel for the appellant contended before us that the incident, according to F.I.R, had taken place at 2 a.m. In the night and, therefore, the possibility that the prosecution witnesses were not able to identify the accused, could not be ruled out. It is also contended by the learned counsel that all the eyewitnesses in the case were related to the deceased and as such the High Court should have refused to uphold the conviction of appellant on the uncorroborated testimony of interested witnesses in the case. It is further contended by the learned counsel that the prosecution failed to prove any motive on the part of the appellant to kill the deceased and if the motive alleged against the appellant was correct, the appellant should have killed the father of the .Girl who had refused to give the hand of the girl to the appellant mid in any case if he wanted to kill the deceased he would not have woke up the P.Ws, before firing at the deceased. It is lastly contended by the learned counsel that the prosecution story otherwise is unbelievable as the appellant is a married man having grown up children and the difference between his age and the age of the girl Amiran, who was allegedly promised to be given in marriage to the appellant, is about 40 years. All these contentions were duly considered by the High Court and repelled.
4. Dealing with the contention of appellant that the incident had taken place at the dead of the night and as such the possibility of mistaken identity of the accused could not be ruled out, the learned Judges of the High Court observed as follows:- "12. Argument of the learned counsel for the appellant that the motive and the manner in which the occurrence is alleged to have happened as well as the contention that the eye-witnesses might have genuinely made a mistake in identifying the real assailant had not impressed us at all.
13. As noted above, the appellant was related to all the eye-witnesses. They could thus have made no mistake in identifying him even though they had seen him at mid-night. A person is not always identified by looking at his face only. The persons known to each other due to relationship or friendship or due to coming across often, are identified even by their manner of standing, walking and talking. The movements of a person by themselves are factors which help in identification. The appellant before firing not only set with the witnesses but had talked t: them as well. They, therefore, could not have made a mistake in identifying him."
5. With regard to the contention of appellant that all the P.Ws, are related to the deceased the High Court rightly observed that the P.Ws, are also related to the appellant and there being no animosity between the appellant and the P.Ws, prior to the incident, there was no reason to disbelieve the eyewitnesses.
6. Dealing with contention of the appellant that it was highly impossible that the appellant would have killed the deceased in the manner alleged by the prosecution, the learned Judges of the High Court observed as follows:- "14. The contention that if the appellant had clearly intended to commit the murder of Ibrar Hussain, he would not have woke up the P.Ws, just to tell them that he was not prepared to surrender his claim of marriage with Mst. Amiran even at the cost of his life, in our view, does not advance the case of the appellant for the reason, that, all, that the appellant said before firing at the deceased was just in line with what had happened.
During a previous meeting he had told the witnesses that he would let them know about the proposal, that he should abandon the idea of marrying Mst. Amiran and that instead Mst. Fatima would give the hand of her daughter Mst. Shahna2, aged 7 years, to his nephew Mushtaq, he might, well have, in the circumstances, thought it proper to give a chance to the P.Ws, to concede Mst.
Amiran in his favour, but when he did not get the positive reply, he fired at Ibrar Hussain to achieve his object which he had declared he would achieve by removing every obstacle that came in his way."
7. The last contention of the appellant was disposed of by the learned Judges of the High Court, as follows:- "12. The argument that a girl of five years old could not have been promised to be given in marriage to a man aged 40 years, may apparently look attractive, but keeping in view the practice that the relatives of the appellant, while committing, about the marriages of their girls, never bothered about their ages, we lind no force in the argument that no commitment could have been made about Mst. Amiran's marriage with the appellant because of disparity of age. It is worth noticing that Mst. Shahnaz, whose hand had been offered by Mst. Fatima for the nephew of the appellant, was also only seven years old at that time. If the mother of the deceased could have offered the hand of her seven years old daughter, why could there have not been a commitment about the marriage of a girl of five years. The marriages, of course, had to take place when they were major.
I.T No doubt, the appellant claimed while making statement under section 342, Cr.P.C, that he was a married person and his elder son was 20 years old, but there is no evidence that what he stated, in that regard was, a truth, the appellant did not put this fact to any of the eye-witnesses when they appeared at the trial. They being relatives could have authentically refuted or accepted the position. In fact, he came out with such a claim only towards the fag-end of the trial."
The learned counsel for the appellant is unable to point out any infirmity in the above findings of the High Court. He is also not in a position to point out any misreading of evidence in the case by the two Courts below. We, therefore, find no merit in the appeal which is, accordingly, dismissed.