' HAMID ALI MIRZA, J.--- This Jail petition for leave to appeal is directed against judgment, dated 30- 4-2002 in Criminal Appeal No,133 of 1998 and Criminal Revision No,59 of 1998 passed by learned Division Bench of the Lahore High Court, Rawalpindi 'Bench, Rawalpindi, whereby, both appeal and revision were dismissed maintaining the conviction and sentence passed by learned trial Court vide judgment, dated 16-5-1998.
2. Brief facts of the case are that the complainant Mst. Ismat Rana lodged report vide F.I.R. No,576, dated 26-9-1996 registered under sections 302/324, P.P.C. At Police Station, Civil Line, Rawalpindi, stating therein that her daughter Mst. Raheela contracted marriage with Mazhar Ali, and about two years prior to the date of incident their relations became strained, therefore, Mst. Raheela (deceased), filed suit for dissolution of her marriage against the petitioner in the Family Court/Civil Judge, Rawalpindi when on 26-9-1996, complainant Mst. Ismat Rana went to the Court as it was the date of hearing in the above said suit, when complainant along with her son was present outside the chamber of their counsel Mr. Zamurad Khan and in the meantime at about 9-30 Mazhar Ali, the petitioner/accused came there and after taking out pistol from his Dab fired a shot straight at Mst. Raheela hitting her in front of abdomen who became injured and fell down. The petitioner/accused also fired second shot hitting Imran Munawar, her son, on his mouth. Several persons gathered on hearing fire reports. One Imran Mahmood, P.W.13, step forwarded to carry the injured when the petitioner-accused also fired upon him which hit him on his upper arm who also sustained injury and fell down. The complainant along with some other respectable persons carried all the three injured to Civil Hospital but Mst. Raheela succumbed to the injuries while going to the Hospital. Imran Munawar and Imran Mahmood' were taken to the Civil Hospital and in the meantime Muhammad Aslam, S.-I./Investigating Officer on receipt of information about the occurrence reached there and recorded the statement of complainant. The complainant stated that Mst. Raheela, her daughter, had filed a suit for dissolution of marriage against the petitioner/accused hence the latter committed her murder and injured Imran Munawar and Imran Mahmood. Subsequently on the same day Imran Munawar also succumbed to the injuries in the Hospital.
3. After completion of usual investigation, the petitioner-accused was challaned before the competent Court which case was tried by learned Additional Sessions Judge/Judge (Special Court) Suppression of Terrorist Activities Act, 1975, Rawalpindi, where charge was framed against the petitioner/accused who pleaded not guilty to the charged offence and pleaded to be 'tried, consequently the prosecution examined as many as fifteen witnesses and then the petitioner- accused was examined under section 342, Cr.P.C. Who stated that he was innocent and has been falsely implicated in the case. He denied the recovery of Pistol (P.8) and Licence (P.9) but stated that he himself produced the, pistol and licence to the police. He denied that the police had recovered empties from the spot. He in the end stated that P.W Imran Mahmood was instrumental in creating trouble in his family relations who asked for the hand of Mst. Raheela after getting her divorced from him. He further stated that on the date or occurrence he went to see his minor daughter when he saw Imran Mahmood P.W.13 and Mst. Raheela in embracing position in the Chamber of Mrs. Riffat Ali, Advocate to which he abused them on which P.W. Imran Mahmood told the petitioner-accused that he has already solemnized marriage with Mst. Raheela and was only waiting for formal decree to which the latter lost his self-control and under heat of passion and emotion, in order to vindicate his family's honour, fired shot at Imran Mahmood who ran out of the Chamber on which Mst. Raheela cried as to why he has injured Imran Mahmood on which the petitioner-accused fired a shot upon her. In the meantime Imran Munawar took out his pistol and aimed at him on which he fired at him to save himself otherwise he would have killed him The petitioner-accused did not examine himself on oath under section 340(2), Cr.P.C. And also did not examine any witness in defence. After hearing learned counsel for the parties, learned Judge (Special Court) Suppression of Terrorist Activities Act, 1975. Rawalpindi, convicted the petitioner- accused under section 302. P.P.C. On two counts of the murders of Mst. Raheela and Imran Munawar and sentenced the petitioner-accused to death on two counts subject to confirmation by the High Court and also directed the petitioner-accused to pay compensation to the heirs of the deceased a sum of Rs, One lac as provided under section 544-A, Cr.P.C. And in default to undergo R.I. For six months. He was also convicted under section 324, P.P.C. For attempting to commit Qatl-i-Amd of Imran Mahmood and sentenced him to undergo R.I. For seven years and to pay Rs, Fifteen thousand as Arsh to the .Injured Imran Mahmood and in default to undergo R.I. For six months. The petitioner-accused was awarded benefit of section 382-B, Cr.P.C. The petitioner- accused preferred an appeal before the Lahore High Court, Rawalpindi Bench, Rawalpindi vide Criminal Appeal No,133 of 1998 which appeal was also dismissed maintaining the conviction and sentence passed by the trial Court.
4. We have heard learned counsel for the petitioner-accused and perused the record minutely with the assistance of the learned counsel.
5. Contentions of the learned counsel for the petitioner are that the trial Court has not addressed to the evidence on record in proper perspective. In accordance with law considering that investigation of the case was not properly conducted which resulted grave injustice to the petitioner, so also petitioner's plea of grave and sudden provocation was not properly taken into consideration keeping in view the other material on record either by the trial Court or by learned Division Bench of the High Court. He in the end submitted that under all circumstances there was sufficient material to award lesser punishment than that of capital sentence awarded by the trial Court and maintained by the High Court. Learned counsel for the petitioner has placed reliance upon Muhammad Yaqoob v. The State PLD 1969 Lah. 548 contending that the counter version of the petitioner -accused before the police was not considered and addressed to by the learned Judge in Chambers and the Court below and Courts thereby deprived the petitioner's right to the use of said statement which he made before the police.
6. We do not find any merit and substance in the contentions of the learned counsel for the petitioner.
7. P.W.10 Mst. Ismat Rana is the eye-witness of the incident who has accompanied her daughter Mst. Raheela along with her son Imran Munawar (deceased) to attend the Family Court and was sitting outside the Chamber of their counsel Mr. Zamurad Khan. She has fully corroborated the contents of the F.I.R. She deposed that accused fired first shot at Mst. Raheela and second shot was fired at Imran Munawar and the third shot was fired at Imran Mahmood when the latter arrived all of sudden to save them. P.W.13 Imran Mahmood is an injured eyewitness who has also fully corroborated the testimony of P.W.10 Mst. Ismat Rana by deposing that the petitioner-accused fired a shot upon Mst. Raheela on her abdomen and second shot was fired at Imran Munawar hitting on his mouth and both of them fell down when he, in sympathy, went forward to lift the injured persons, the petitioner fired a shot upon him as well, on his upper arm and he fell down. Both witnesses are natural eye-witnesses of incident considering that P.W.13 Imran Mahmood is an injured witness whose presence cannot be doubted at the place of incident and further his presence at the place of occurrence has also not been challenged by the petitioner's counsel in the cross-examination. So far complainant Mst. Ismat Rana she being mother of both deceased had accompanied them to the Court to attend date of hearing in a case filed by her daughter (deceased) for dissolution of marriage against the petitioner to give her moral boost. There is also no suggestion to the contrary in the cross-examination with regard to her presence at the place of incident. The testimony of both ocular witnesses is confidence-inspiring and unimpeachable. There could not be any reason on their part to falsely implicate the only petitioner-accused in the commission of such heinous crime of murders. The confidence-inspiring ocular testimony of above P.Ws. Is also corroborated by the fact that the petitioner was caught hold of at the spot along with pistol and its licence and empties having been recovered from the place of occurrence.
Unimpeachable confidence-inspiring testimony is also corroborated by the medical evidence as well as by motive which stood proved as per evidence on record.
8. So far the contention of the learned counsel for the petitioner that both Courts did not consider that the investigation of the case was not properly conducted for which he contended that in the first instance, the petitioner has made a statement before the Investigating Officer that he saw P.W.13 Imran Mahmood embracing his wife, the deceased Mst. Raheela, in the Chamber of an Advocate therefore he lost his control and due to that grave and sudden provocation he fired at Mst. Raheela (deceased) and at P.W.13 Imran Mahmood who ran out of the Chambers, therefore, the petitioner had fired upon the said P.W. And when Imran Munawar (deceased) came in to fire upon him with his pistol, the petitioner in order to save himself fired upon Imran Munawar (deceased) as such the said plea was not in juxta-position considered to that of prosecution case.
We do not find any merit in the said submission. The said plea of the petitioner has been duly considered by the learned Division Bench of the High Court as well as the trial Court and has been disbelieved considering the evidence on record when the place of firing in view of site-plan was outside the chamber of the said counsel and not inside the Chamber of the learned counsel where embracing was alleged between Imran Mahmood and the Mst. Raheela (deceased). It is also unbelievable that said P.W.13 Imran Mahmood in presence of Imran Munawar (deceased) brother of Mst. Raheela (deceased) would embrace Mst. Raheela that also in the day time at about 10-30 a.m. Outside the Chamber where as per evidence on record number of persons were present here and there. The evidence also belies the said plea of the petitioner that P.W.13 Imran Mahmood was shot dead in the first instance and then deceased Imran Munawar and finally Mst. Raheela. In fact prosecution evidence would show that the petitioner fired first shot at Mst. Raheela his wife and second shot at Imran Munawar and the third shot was fired at .P.W.13 Imran Mahmood who came forward to save the deceased persons who fell down on receiving fire-arm injury. Learned counsel next contended that act of filing of suit for dissolution of marriage and thereafter her alleged intention to marry P.W.13 Imran Mahmood would amount to grave and sudden provocation but in our view, even if it be assumed that the Mst. Raheela (deceased) after filing of suit for dissolution of marriage and getting decree of dissolution would have contracted second marriage with P.W.13, the said act could not be said to be an act of grave and sudden provocation thereby giving licence to the petitioner to kill Mst. Raheela and Imran Munawar. We also do not find any substance in the plea of the learned counsel that the deceased Mst. Raheela was a girl of easy virtue because she has contracted love marriage with the petitioner as it could not be held that a girl who would contract love marriage with a person be treated as a girl of easy virtue, considering the fact that Islam has permitted that a girl would have right to contract marriage according to her choice and the parents should also marry their daughters with their consent. This act cannot be termed to be against .The principles of Islam, therefore no right could be given to a husband to kill or have a suspicion in such girls who would contract marriage with her will and liking with a person or persons. The next plea of the learned counsel for the petitioner that other Advocates whose offices/chambers were adjacent to the office of Mr. Zamurad Khan, Advocate, were not examined as prosecution witness and if they would have been examined they would have not supported the prosecution case. We do not find merit in the said plea as well considering it is the prerogative of the prosecution to examine their witnesses who are considered necessary for its case considering also that onlookers are not prepared to depose in Court about what they saw so as not to risk the animosity of assassins or his partisans and in case the petitioner wanted to examine the Advocates whose offices are said to be adjacent to the place of occurrence, he could have examined them in defence but having failed to avail that option/right he cannot be permitted to raise the said plea.
9. The next contention of learned counsel for the petitioner is that the material on record warranted lesser punishment than that of capital sentence. We do not find any mitigating circumstance from the evidence on record. The petitioner has committed two brutal murders one of his wife and the other of his brother-in-law. Even if we assume that there was some justification with the petitioner for causing the murder of deceased Mst. Raheela on account of petitioner having some suspicion in her character then at least there could not be any justification at all under all circumstances with the petitioner to kill Imran Munawar considering that no weapon as alleged was secured from the place of incident nor any empty was so secured nor any fire-arm injury on the person of the petitioner was found. Two innocent persons have been killed without any cause or mitigating circumstance, therefore, no case of lesser punishment is made out for the Courts to award lesser punishment other than normal capital sentence. We find that 'learned Division Bench of the High Court and the trial Court were justified in convicting the petitioner under section 302, P.P.C. And awarding sentence of death to the petitioner on two counts.
10. No other plea was raised by the petitioner. The case-law relied upon is of no assistance to the facts and circumstances of the present case considering that plea put forward by the petitioner was duly considered by both Courts and the same was found having no merit and substance.
11. In view of aforesaid reasons this petition has no merit, therefore leave to appeal is declined and the petition is dismissed.