' NAZIM HUSSAIN SIDDIQUI, J---Petitioner, Muhammad Hafeez, has impugned the judgment dated 31-8-2000 of a learned Division Bench, Lahore High Court, Lahore, passed in Criminal Appeal No,17-J of 1995 and Murder Reference No,15 of 1995, whereby said appeal preferred by him was dismissed and death sentence awarded to him by Additional Sessions Judge, Faisalabad, was confirmed.
2. The occurrence took place on 23-8-1993 at about 4-30 p.m. In the area of Chak No,128/RB of Police Station Chak Jhumra, District Faislabad. F.I.R. Was lodged by Mehnda, who is a brother of Manzoor deceased. It was registered at about 6-45 p.m. At said police station.
3. The petitioner vide judgment dated 5-12-1994 of Additional Sessions Judge, Faisalabad was convicted under section 302, P.P.C. For Qatl-e-Amd of Manzoor deceased and was sentenced to death and also to pay compensation amounting to Rs,10,000 to the legal heirs of deceased under section 50-A, Cr.P.C. Or in default thereof to undergo R.I. For six months. He was also convicted under section 324, P.P.C. For causing injuries to Muhammad Azam and Khadim Hussain P.Ws. And was sentenced to suffer R.I. For seven years on each count and to pay a fine of Rs,5,000 each or in default thereof to undergo R.I. For further period of one year. Benefit of section 382-B, Cr.P.C. Was also extended to him.
4. Being dissatisfied with above convictions and sentences, the petitioner preferred appeal before High Court, which was dismissed by the judgment, which has been impugned in this petition.
5. The prosecution case, in brief, is that Manzoor deceased was a brother of the complainant and private servant of Ghulam Murtaza alias Haji Mutal son of Sultan, resident of aforesaid Chak. Both the petitioner and deceased used to reside in the Dera of said Haji Mutal. On the day of occurrence, a dispute arose between them and they abused each other. Haji Mutal intervened. It is alleged that after some time the petitioner again came there duly armed with a hatchet and inflicted two blows upon the deceased, who succumbed to his injuries on the spot. Muhammad Azam and Khadim Hussain P.Ws. Were attracted on cries and they attempted to safe the deceased and in the process they were also caused hatchet injuries by the petitioner. On completion of investigation, the charge-sheet was submitted against him before the Court having jurisdcition in the matter.
6. At trial, the prosecution examined as many as 13 witnesses namely, Sadiq Ali P.W.1, Ghulam Murtaza alias Haji Mutal P.W 2, Sultan P.W.3, Dr. Anjum Javaid Sindhu P.W.4, Pervaiz Iqbal P.W.5, Mohsin Ali Patwari P.W. 6, Dr. Abdul Shakoor Gil P.W.7, Dr. Muhammad Zaman Bhatti P.W.8, Riaz Ahmed C. P.W.9, Mehnda P.W. 10, Azam P.W.11, Khadim Hussain P.W. 12 and Maqsood Ahmed S.-I.
P.W.13.
7. The petitioner in his statement recorded under section 342, Cr.P.C. Denied the prosecution's allegations and claimed to be innocent. According to him, the deceased was a person of a bad character and had illicit terms with a sister of abovenamed injured P.Ws. And that they killed the deceased and involved him in this case. Neither he appeared as his own witness nor examined any witness in defence.
8. Following injuries were found on the persons of the deceased:-- ' "An incised wound 9 c.m. x 3 c.m. x DNP on right side of neck 4 c.m. Below right ear lobule, 5 c.m.
Above mid of right clavical and 8 c.m. Away from sternal notch. Skin, soft tissues, muscles of neck were cut through and through. External and internal carotid arteries of right side were found cut.
Ascending and descending vessels and nerves were found cut. Third cervical vertebra and fourth cervical vertebra were fractured and cut of right side."
' According to doctor, the cause of death was shock and haemorrhage as a result of above injuries, which were caused by sharp-edged weapon. Factum of death is not disputed.
9. The following injuries were found on the persons of Khadim Hussain and Muhammad Azam P.Ws.:- Injury of Khadim Hussain ' An incised wound stitched with black silk of six stitches 6 c.m. x 1/2 c.m. x DNP on the outer aspect of left wrist joint alongwith severe bleeding and plain."
' The injury was caused by sharp-edged weapon. Injury of Muhammad Azam "1. An incised wound stitched with five black stitches 6 c.m. x 1/2 c.m. x DNP on left side of neck."
' The injury was caused by sharp-edged weapon.
10. It was argued before High Court that it was an unwintessed crime. Also it was contended that injured P.Ws. Had, in fact, murdered the deceased and involved the petitioner as he was a poor person. Further, it was urged that the injured witnesses, in order to strengthen the case of the prosecution, had themselves got these injuries inflicted on, their persons by the medical officer with friendly hand.
11. Above contentions were considered and repelled both by trial Court and High Court with cogent reasons. High Court held that those injuries on the persons of P.Ws. Could not be caused by a friendly hand. It reached the conclusion that presence of the complainant and injured witnesses on the spot could not be doubted. It also, observed that it is a case of single accused and substitution is a rare phenomenon and that it could not be believed that real brother of the deceased would have permitted to go the actual culprit unpunished and involved an innocent person.
12. Both trial Court and High Court believed the complainant and the P.Ws. It appears that the evidence was sifted by both trial Court and High Court in accordance with the established judicial norms and no miscarriage of justice resulted. To believe or to disbelieve a witness is primarily the function of trial Court and the First Appellate Court and this Court invariably does not interfere with the discretion exercised by High Court. No interference is warranted in the impugned judgment.
13.
13. It is noted that trial Court convicted the petitioner under section 302, P.P.C. Without specifying that whether it was under clauses (a), (b) or (c). Under clause (a) of section 302, P.P.C. Punishment is death as Qisas, while punishment under clause (b) is death or imprisonment for life as Ta'zir. High Court maintained the conviction recorded by trial Court, but did not specify that whether it was covered by clause (a) or (b). Scrutiny of evidence reveals that death penalty was not awarded as Qisas, but as Ta'zir. Accordingly, we specify that punishment of the petitioner was under section 302(b), P.P.C.
14. It was a pre-planned and brutal murder. No extenuating circumstances are available for lesser punishment. Under the circumstances, death penalty was rightly awarded to the petitioner.
15. In consequence, leave to appeal is refused and the petition is dismissed.