1. WAHIDUDDIN AHMAD, J.-Petitioner Mughal Khan was tried under sections 302 and 449, P. P. C. For committing the murder of Umar Din deceased on the 19th February 1968, in the area of village Botaloni. The learned Sessions Judge, Hazara, conviction him under section 302, P. P. C. And sentenced him to death. No conviction was recorded under section 449, P. P. C. Because of the conviction under the major offence. The petitioner challenged this order in Criminal Appeal No. 22 of 1969, in the High Court of West Pakistan, Peshawar Bench but his conviction was upheld by judgment dated the 19th January 1970. The petitioner seeks special leave to file an appeal against the said order.
2. The prosecution case is that there was dispute between the petitioner and Phajja on certain money matters. Mughal Khan told Phajja not to visit Dhaka Rakh but the latter persisted petitioner that they were servants of the entire village. This happened 15 or 20 days before the occurrence in question.
3. It is alleged that on the 19th February 1968, the petitioner visited the house of the deceased in the morning and insulted the women-folk. The deceased and his son Faqir Muhammad, on their return, were informed of the incident by the women-folk. The deceased took his meal and was resting after a smoke when the petitioner again came to his house and asked him why he continued to serve his opponent in spite of his having been directed not to do so. The deceased replied that he would continue to serve everybody in the village. Thereupon, the petitioner took out a knife and gave blows to the deceased. The occurrence was witnessed by Faqir Muhammad. Lai Khan also witnessed the occurrence from the roof of the house of Kala. After inflicting the injuries, the petitioner ran to his house. Lai Khan chased the petitioner. He locked him in his house and handed over the key to Channan Khan, Chairman. The deceased was placed on a cot and was taken towards the police station but he died on the way. The First Information Report was lodged at about 3-45 p.m. At Havelian police station at a distance of five miles from the scene of occurrence and the police arrested the petitioner from inside the Kotha.
4. The conviction of the petitioner is based on the testimony of Faqir Muhammad P. W. 3 and Lai Khan P. W.
4. Faqir Muhammad is the son of the deceased and narrated the above story. He stated that the petitioner called out the deceased and asked him why he was serving his opponent in spite of having been forbidden from doing so. The deceased replied that he would continue as he was village menial. He and his step-mother stood in the door and within their sight the petitioner took out a knife and gave 2 or 3 blows to the deceased. Lai Khan also stated that when he was on his way to see his nephew he saw the petitioner causing injuries to Umar Din deceased by means of a knife. After causing injuries to the deceased, the petitioner went towards his house and shut himself in a room. Lai Khan also went there. He narrated the occurrence to Channan Khan, a brother of the petitioner. Lai Khan took a lock from Channan Khan and placed it on the outer door of the petitioner to prevent his escape and gave the key to Channan Khan. The learned Judges of the High Court have accepted this evidence.
5. The petitioner has denied the prosecution allegation against him. He gave a counter version according to which about four days prior to the occurrence, the marriage of his nephew Khan Dad was taking place. On that occasion he asked Umar Din and his were Mst. Sakoolan Jan to wash the utensils. Mst. Sakoolan Jan refused to do so. On the day of occurrence Mst. Sakoolan Jan was passing through the path which runs in front of his house for fetching water. The petitioner told her that she had not done proper thing by not washing the utensils and that, therefore, she should not pass through that path., Thereupon, Mst. Sakoolan Jan went back. After a little, he went towards his another house which is abandoned and from which his Dhaka Rakh was also visible. While he was sitting there, deceased Umar Din abused him and ran after him with Sota. He ran for his life but Umar Din followed him and came inside his house and gave him Sota blows. He bled from the injuries and his shirt was soaked in blood. He went out of senses and did not remember what happened thereafter.
6. It will be noticed that the petitioner has also alleged that there was a fight between him and the deceased but his version was not supported by any reliable evidence. It was, therefore, not accepted by the Courts below.
7. Sh. Muhammad Shafi, learned counsel for the petitioner, has contended that the occurrence took place in the morning and that the story of the prosecution is false and should not have been accepted by the Courts below. In this connection he referred us to the medical evidence which shows that the stomach of the deceased was found empty on post-mortem examination. The learned counsel contended that the prosecution case is belied by this evidence as it was alleged that the occurrence took place after rotiwela. This contention has not impressed us. In the face of reliable direct evidence no importance can be attached to the medical evidence. The presence of Faqir Muhammad on the scene of occurrence was natural. His statement clearly shows that the petitioner was responsible for causing injuries to the deceased. Lal Khan's statement also corroborated him.
8. It was next urged by the learned counsel for the petitioner that petitioner also received injuries and this supports the case set up by him that the deceased gave sota blows to the petitioner. He, therefore, received injuries in this scuffle.
9. After going through the evidence produced on the record we are satisfied that the learned Courts below have appreciated the evidence properly. It was a broad daylight crime. It is difficult for us to believe that a menial would attack the petitioner who belongs to a better class of society. There is no ground to interfere in this matter. The petition is dismissed.