Khawaja Muhammad Sharif, J.--This judgment will dispose of Criminal Appeal No, 176 of 2000 filed by Kizhar Hayat, who was convicted and sentenced by the learned Additional Sessions Judge, Khanewal, vide his judgment dated 7.3.2000 as under:-- Death on two counts for committing murders of Ghulam Baqir and Tasawar Abbas-deceased and a compensation of Rs, 25,000/- each, to both the legal heirs of the deceased or in default six months S.I. under Section 302(b) PPC.
Murder Reference No, 321 of 2000 for confirmation' or otherwise of death sentence of Khizar Hayat shall also be replied through this single judgment.
2. Brief facts of the case, as narrated by Allah Wasaya (PW-7), on the fateful day i,e, on 3.8.1998 vide his statement/Ex. PQ recorded by Muhammad Raiz SI narrating the incident concisely in the terms that about six years prior, his brother Ghulam Baqir deceased got married his daughter, Mst. Razia Bibi with Khizar Hayat accused and in exchange Mst. Shamim Bibi, sister of Khizar Hayat accused, was given in wedlock to Ghulam Baqir deceased and matrimonial tie of Ghulam Baqir and Mst.
Shamim continued happily for about four years but culminated in to strained relations about two years prior, resulting to death of Mst. Shamim by having a poison spray, creating suspicion in the mind of Khizar Hayat accused and his father Hamid All of murder of Mst. Shamim Bibi at the hands of Ghulam Baqir deceased and this suspicion also resulted to the desertion of Mst. Razia Bibi.
However, about six months prior, on the intervention of "Baradari" Ghulam Baqir-deceased and Khizar Hayat compromised resulting to happy settlement of Mst. Razia Bibi at the house of her husband Khizar Hayat. About eight days prior to the occurrence, Tasawar Abbas deceased son of Ghulam Baqir deceased visited the house of Khizar Hayat accused for taking Mst. Razia Bibi but he was refused in this context, whereupon, Ghulam Baqir deceased also visited Abdul Hakim for having the infortnation regarding the result of visit of Tasawar Abbas deceased but Khizar Hayat accused refused to send his wife Mst. Razia Bibi, and this refusal motivated father Ghulam Baqir and brother Tasawar Abbas to visit complainant-Allah Wasaya in Chak No, 14/9-R for seeking his indulgence for agreeing Khizar Hayat accused for sending Mst. Razia Bibi and on a visit by Ghulam Baqir deceased, Tasawar Abbas deceased and Allah Wasaya complainant, conversation took place with Khizar Hayat and Hamid Ali accused, resulting to a consent by both the accused for sending Mst. Razia Bibi on the following day, so complainant, Ghulam Baqir (deceased) and Tasawar Abbas (deceased) stayed for a night at the house of Khizar Hayat by putting the cots in the open space of the house but it was 3:00 a.m. when on the cry of Ghulam Baqir-deceased, complainant Allah Wasaya awoke up and witnessed that Khizar Hayat accused was inflicting "Toka" injury on the neck of Ghulam Baqir deceased while Hamid Ali accused had caught hold of Ghulam Baqir deceased from his legs. Khizar-Hayat accused, after inflicting injury on the neck of Ghulam Baqir deceased, immediately attacked Tasawar Abbas-deceased but in an effort by Tasawar Abbas-deceased to catch hold of Khizar Hayat-accused, he was also given "Toka" blow by Khizar Hayat accused, resulting to his fall on the ground, whereupon, Hamid Ali accused caught hold legs of Tasawar Abbas-deceased facilitating Khizar Hayat accused to inflict injury on the neck of Tasawar Abbas deceased. In the meanwhile, Mst. Razia Bibi daughter of Ghulam Baqir had also come out of the house who witnessed the occurrence but both the accused succeeded to flee away from the spot.
3. The motive behind the occurrence as narrated by the complainant was that both the accused had the suspicion that Ghulani Baqir deceased had committed murder of Mst. Shamim Bibi but had wrongly declared it a suicide, as such, instant case was registered against both the accused.
4. After registration of the formal FIR, investigation of the case was taken over by Muhammad Riaz, SI/PW-10. He proceeded to the place of occurrence, took over the dead body of the deceased, prepared injury statements of Ghulam Baqir and Tasawar Abbas Ex. PB and Ex. PE and their inquest reports Ex.PC and Ex. PF respectively, The Investigating Officer took into 'possession blood-stained earth vide memo. Ex. PJ from the place of murder of Ghulam Baqir-deceased. He also took into possession blood-stained earth from the place of murder of Tasawar Abbas vide memo Ex. PK. The I.O. also took into possession Jogger P-6/1-2, one cot P-7, one "Khais" P-8 and one Pillow P-9 (all the three articles P-7, 8 and 9 were bloodstained) from the cot of Tasawar Abbas vide memo Ex. PL.
From the cot of Ghulam Baqir the I.O. collected shoes "Mokashan" P-10/1-2, Cot P-11 (blood-stained), Pillow P-12 (blood-stained) and a "Khais" P-13 vide memo Ex. PM. He also prepared site-plan Ex. PR.
He arrested Khizar Hayatappellant and Hamid Ali on 16.8.1998. While in police custody, on 22.8.1998, Khizar Hayat led to the recovery of blood-stained Toka P-14 and his clothes (blood- stained) Shalwar P-15 and Shirt P-16 from the room of his residential house, which were taken into possession vide memo Ex. PN and Ex. PO respectively. On the same day Hamid Ali led to the recovery of his bloodstained clothes Shirt P-17 and Chadar P-18. The said articles were taken into possession vide memo Ex. PP. After completion of the investigation, both the accused Khizar Hayat and Hamid Ali were sent up to face trial.
5. At the trial, the prosecution in order to prove the case produced ten witnesses in all, thereafter the learned A.D.A. tendered in evidence reports of Chemical Examiner Ex. PU and that of Serologist Ex. PV and closed the prosecution case, then, the accused in his statement recorded under Section 342 Cr.P.C. pleaded false implication. After conclusion of trial Hamid Ali-accused was acquitted, while Khizar Hayat was convicted and sentenced as stated above.
6. After having read the entire prosecution evidence, statement of the appellant recorded under Section 342 Cr.P.C. and other relevant material available on record, learned counsel for the appellants submits that no source of identification was mentioned in the First Information Report; that the FIR was not registered at the Police Station but outside the Police Station; that the Investigating Officer had stated during cross-examination that he had not shown house where the occurrence took place in the site-plan and that the Investigating Officer had admitted that he had taken into probe the motive mentioned in the FIR. On the above said points the learned counsel has relied upon the case reported as 2003 P.Cr.L.J.
54. The learned counsel further submits that in view of the said judgment death sentence was not confirmed, so the case of the appellant was not of death sentence. The learned counsel further relied upon the case reported as 2005 YLR 1289. The learned counsel also contended that the police reached the spot, took into possession two cots on which the deceased were lying and the other two cots on which the eye-witnesses were lying, were not taken into possession. Thus, the inference could be drawn that other two cots were not there and no body was present. Further contends that the prosecution has failed to prove its case against the appellant as the matter was compromised between the parties a year prior to the occurrence and there was no reason on the part of Khizar Hayat to keep mum when Tasawar Abbas and Ghulam Baqirdeceased were residing in his house for the last six days prior to the occurrence and Allah Wasaya was not there; that post-mortem of two deceased was conducted at about 4:00 p.m. on the date of occurrence, which, according to the Doctor, was belated one; and that eyes and mouth of both the deceased were semi-open. The learned counsel further submits that during cross-examination the Doctor has stated that he had mentioned duration between injury and death, and death and post-mortem and has not given his independent opinion. The learned counsel submits that except for not sending Mst. Razia Bibi PW to the house of her in laws there is no other bitterness between the parties; that the motive set up by the prosecution has been concocted; that there is no independent evidence on record that Mst. Shamim Bibi, sister of Khizar Hayat, has taken Spray and so she died. The learned counsel on this point has relied upon the cases reported as 1993 SCM R 155, 1995 SCM R 168, 257 & 1668, 1995 P.Crl.L.J. 1611, 2000 SCM R 1818, 2003 SCM R 581' & 1565 and 2005 YLR 1011. The learned counsel submits that according to the above cited judgments the death was converted into life imprisonment.
7. The learned counsel for the State submits that it is a case of promptly lodged FIR; that the occurrence took place at 3:00 a.m. and the matter was reported to the police at 4:00 a.m.; that it is a double murder occurrence; that the motive has also been proved by the prosecution; that in the first version of the appellant he admitted the murder of two deceased; that the ocular account furnished by the two eye-witnesses i,e, Mst. Razia Bibi wife of the appellant and Allah Wasaya uncle of Mst. Razia Bibi with regard to their presence at the spot is apparent.
8. We have heard the learned counsel for the parties at length and gone through the record. The occurrence had taken place at 3:00 a.m. and the matter was reported to the police on the same date at 4:00 a.m. There are two deceased persons Ghulam Baqir and his son Tasawar Abbas.
Ghulam Baqar is father in law of the appellant and Tawasar Abbas is brother-in-law of the appellant. Hamid Ali has been acquitted by the learned trial Court. The two eye-witnesses, who appeared before the trial Court, are Allah Wasaya-complainant, uncle of Tawasar Abbas and brother of Ghulam Baqir, and Mst. Razia Bibi wife of Khizar Hayat-appellant.. She is most B natural witness of this case. Murders have taken place in the house of the appellant. He has failed to offer any explanation whatsoever about these murders. Motive behind the prosecution case was that Ghulam Baqir deceased married his daughter Mst. Razia Bibi with Khizar Hayat-appellant, while in Watta Mst. Shamim Bibi, sister of Khizar Hayat, married with Ghulam Baqir-deceased. Unfortunately she died two years prior to the occurrence. The explanation given by the deceased was that she took Spray and committed suicide but the suspicion of the appellant was that she was unfortunately murdered by the two deceased persons. The motive remains in the mind of the accused person, when and where he has to react. Mst. Razia wife of the appellant, star witness of the prosecution case, was not being sent to the house of her in laws. She has a baby of two months, prior to the occurrence. Many a time Khizar Hayat appellant was asked to send Mst. Razia to the house of her parents but the appellant did not send, on which Taswar Abbas, Ghulam Baqir came to house of Mst. Razia and Allah Wasaya also came there to get her. Khizar Hayat was not agreeing to the proposal of the complainant party for sending her. Unfortunately on the date of occurrence when these deceased were present and were sleeping, according to prosecution case, Hamid Ali father of the appellant caught hold of the legs of both- the deceased one after the other, while the appellant gave Toka blow first on the neck of Ghulam Baqir having injury of 18 cm x 9 cm.
Thereafter he caused similar injury on the neck of Tasawar Abbas-deceased and also on his wrist.
The further stress of the learned counsel for the appellant was that the identification of the accused was doubtful in nature. We are unable to understand this argument of the learned counsel for the appellant. Mst. Razia PW was wife of Khizar Hayat-appellant. In site-plan prepared by the Investigating Officer and Patwari, Point No, 7 has been shown where electric bulb was on at the time of occurrence. The ocular account is fully corroborated by the medical evidence. Even cots of both the deceased, beds and their blood-stained clothes taken into possession were sent to the Chemical Examiner. The reports of the Chemical Examiner and Serologist are positive in nature. Above all the appellant also led to the recovery of Toka and his blood-stained clothes stained with human blood. According to the statement of the appellant under Section 342 Cr.P.C. in reply why this case against you, he only submitted that due to enmity, but there was no enmity. It is a case of single accused. Substitution is a rare phenomenon. Why Mst. Razia Bibi would involve her husband in this case falsely? Above all Allah Wasaya, real uncle of Ghulam Baqir and Mst. Razia Bibi wife of Khizar Hayat would falsely involve the appellant by leaving the actual culprits. After going through the record we are fully satisfied in our minds that the prosecution has proved its case against the appellant beyond any shadow of doubt. The arguments set by the learned counsel for the appellant are not in line with the circumstances of this case. In view of the above discussion, this appeal is dismissed. Death sentence is confirmed and the Murder Reference is answered in the affirmative on two counts.