' SYED DEEDAR HUSSAIN SHAH, J.-- Petitioner seeks leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 17-4-2002, passed in Criminal Appeal No,162-T of 1997 and Murder Reference No,242-T of 1997.
2. Fact of the case in nutshell appear to be-that FIR. No,82 dated 6-5-1995 was .Registered at Police Station Pindi Gheb, District Attock under sections 302/324, P.P.C. At the instance of complainant- Fazal Hussain, an employee of P.O.L. Company alleging therein that on the day of occurrence, in the morning time, the complainant was carrying Ghulam Muhammad, Muhammad Feroze and Muhammad Ayyub Drivers, in the Company's vehicle towards P.O.L. Company from City Khur, when at about 5-45 a.m. The vehicle reached in front of Bethak of Haji Muhammad Ishaq, petitioner- Iftikhar Ahmad armed with hatchet appeared there. On seeing Fazal Khan, petitioner-Iftikhar Ahmed inflicted a hatchet blow on the head of Fazal Khan, who fell down, the accused-petitioner inflicted a second blow on the right side of head of the victim. The injured Fazal Khan was removed to Civil Hospital Pindigheb for treatment but he succumbed to the injuries on the way. Petitioner also caused grievous injuries to Muhammad Nawaz, who was going for labour. Muhammad Nawaz was removed to the hospital for treatment but he succumbed to the injuries on 10-6-1995. After that, accused-Iftikhar Ahmad ran away towards East of the hill and when he reached near Old Ice Factory, he inflicted hatchet blow to Fateh Muhammad son of Ali Muhammad who was also going towards the Company, which landed on the back side of his head and after falling on the ground Fateh Muhammad died at the spot. This incident was witnessed by Imtiaz Hussain (P. W.14) son of Shahbaz Khan, who was going to sell the milk. Thereafter, petitioner-Iftikhar Ahmad caused injuries to Muhammad Miskeen his father, Mian Ahmad, Mirza Khan and Sher Khan. Muhammad Nawaz, who was near to Mirza Khan, also received hatchet blow on his head by the petitioner and thereafter petitioner-Iftikhar Ahmad ran towards Kassi where he assaulted Sher Muhammad Mashki with the hatchet, and thereafter Iftikhar Ahmad disappeared in the Kassi. Ghulam Muhammad (P.W.13), Muhammad Feroze, Ayyub and Malik Amir Muhammad Khan witnessed this incident besides Fazal Hussain complainant.
3. The motive behind the occurrence was that about two months prior to the occurrence Muhammad Maskeen, father of Iftikhar Ahmad, sold his Haveli, on which wife of the petitioner after being infuriated went away, which nourished in the heart of petitioner-Iftikhar Ahmad, who assaulted on his father Muhammad Miskeen, maternal-uncle Sher Khan and Mirza Khan and committed the Qatal-e-Amd of Fazal Khan, Muhammad Nawaz and Fateh Muhammad.
4. At the trial Iftikhar Ahmad-accused pleaded not guilty to the charges. The prosecution produced its evidence based upon motive, ocular account, medical evidence, recovery of crime weapon and other recoveries in order to establish its case.
5. The learned trial Court convicted the petitioner under section 302(b), P.P.C. And sentenced to death plus fine of Rs,50,000 and in default of payment of fine to undergo R.I. For two years each, on three counts.
6. On appeal, a learned Division Bench of the Lahore High Court maintained conviction and sentence of the petitioner vide judgment impugned herein.
7. This petition is barred by 83 days. We have gone through the application for condonation of delay. Since the petitioner has been awarded death sentence, we allow the application and condone the delay.
8. We have heard Mr. Arshad Ali Ch. Learned Advocate Supreme Court for the petitioner, who, inter alia, contended that the judgments of the Courts below are vitiated for the reason that the defense plea and the evidence adduced in support thereof was not adverted to and was completely omitted from consideration, which has resulted in serious miscarriage of justice. It may be observed here that in his statement, petitioner simply denied the accusation and pleaded false implication due to enmity. Learned counsel for the petitioner further submitted that the matter may be remanded to the trial Court as the plea of insanity has not been properly dealt with.
9. We have minutely considered the contentions of learned counsel for the petitioner and perused the material available on the file. The allegation against the petitioner is proved through trustworthy and reliable evidence of the injured P.Ws., which has rightly been believed by the trial Court as well as the High Court. The plea of the learned counsel that the petitioner was of unsound mind at the time of commission of the crime, therefore, in the light of the provisions of section 84, P.P.C. He had not committed any offence, is not borne out from the record. Had the accused petitioner taken this ground before the learned trial Court, it could have passed appropriate order by sending B him to the hospital for proper mental treatment, and after recovery the petitioner could have been summoned by the trial Court to face the trial. Even in his statement recorded under section 342, Cr.P.C. No plea of petitioner's insanity was raised, and if there was any such defence version, it would have been brought on the record through the statements of the defence witnesses. Before the trial Court it was stated by Muhammad Miskeen (D.W.4), father of the accused-petitioner, who was also injured by the petitioner, that in the year 1995 his son Iftikhar Ahmad became lunatic and got the treatment of Brigadier Fazl-i-Haq, and when the medicine was given to him, he after chewing it .Threw the same out from his mouth. It is very strange to note as to why Brigadier Fazl-i-Haq was not produced in defence to substantiate this plea to the effect that he had given treatment to the petitioner. The three innocent persons have been done to death.
Apart from ocular evidence there is an evidence of recovery of the hatchet and the positive reports of the Serologist and the Chemical Examiner to show that the hatchet was used for commission of the crime, which also fully supports the version of the prosecution. The learned trial Court as well as the learned High Court, after careful examination of the prosecution evidence, awarded normal penalty of death to the petitioner. The impugned judgment is entirely in accordance with law laid down by this Court. We do not find any misreading, or non-reading of the evidence or misconstruction of law in the impugned judgment. It would be useful to refer here the relevant paragraph of the impugned judgment, which reads as under:-- "16. The point for examination is as to what was the defence advanced by Iftikhar Ahmad appellant at the stage of statement under section 342, Cr.P.C. He stated that he is Bhatti by caste while all the deceased and the prosecution witnesses are Awan by caste who involved him in this case falsely and that the prosecution witnesses have also deposed against him because of brotherhood with the deceased, meaning thereby until the recording of his statement under section 342, Cr.P.C. No plea of insanity was advanced and if there was any such defence version, it would have been brought on the record through the statements of the defence witnesses, even the best evidence on the question of insanity was withheld for example Muhammad Miskeen D.W.3 father of Iftikhar Ahmad appellant who was also injured by Iftikhar Ahmad appellant in the incident taken place on 6-5-1995 stated that in the year 1995 Iftikhar Ahmad became mad and he got the treatment of Brig. Fazl-i-Haq and when the medicine was given to Iftikhar Ahmad he after chewing the medicine threw the same out from his mouth. He provided details in this regard. The question worth is as to why Brig. Fazl-i-Haq was not produced by the defence despite knowing that the burden to prove insanity was on the accused and not on the prosecution meaning thereby the defence by withholding the best evidence on the question of insanity lost force in the defence version and so far the other witnesses as disclosed above were concerned had no authority to establish the question of insanity in absence of the Expert meaning thereby the defence version advanced by the appellant was not confidence inspiring. It is quite astonishing that Iftikhar Ahmad made no assault on a child or on a dog in the way but had been choosing those who were friends or close relatives of his father or connected with the sale of the Haveli by his father. The arguments advanced by the learned counsel for the appellant carry no force and the judgment passed by the leaned trial Court calls for no interference."
10. It would not be out of place to mention here that the callous and brutal manner in which the petitioner acted in this case and caused injuries to the deceased persons, in our view, does not justify mitigation of sentence. In the event of proof of charge of Qatl-e-Amd normal penalty under the law is death and exceptional circumstances must be shown to exist for taking a lenient view and for the award of lesser penalty, which do not appear to exist on the face of the record.
11. For the aforesaid facts, circumstances and reasons, there is no merit in this petition, which is devoid of any substance. It is accordingly ismissed and leave to appeal declined.##TE#