' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,25 of 2002 filed by Looney Khan, appellant who was convicted under section 302-B, P.P.C. And sentenced to death with a fine of Rs,20,000 vide judgment dated 30-1-2002 rendered by learned Additional Sessions Judge, Bahawalpur.
' Murder Reference No,41 of 2002 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case as narrated in the F.I.R. By the complainant are that Khan Muhammad is younger to his two sons, who is aged about 25-26 years. About 5-6 years ago Khan Muhammad married to Mst. Natan daughter of Allah Rakha with her free-will and out of this wedlock there are two daughters. Mst. Natan Bibi was an earlier married to Allah Dad son of Jind Wada and she obtained divorce without consent of her parents and thereafter she was married to his son due to which her parents, sisters and brothers were annoyed and were not on talking terms.
On the night of 10-9-2001 sister-in-law of the complainant and brother Allah Jawaya who came to see the complainant were sleeping in the courtyard of Khan Muhammad. At about 12-00 mid-night there was some noise upon which the complainant, his sister-in-law and Allah Jawaya awakened and saw that Looney Khan armed with hatchet, Muhammad Mukhtar armed with gun, Wali Dad armed with rifle were standing near cot of Khan Muhammad and Wali Dad caught hold of Khan Muhammad who was sleeping, from his arms and Muhammad Mukhtar caught hold from his legs.
Then in their view, Looney Khan inflicted hatchet blow upon the neck of Khan Muhammad. He was severely injured. The complainant made hue and cry upon which Wali Dad fired three fire shots in the air with his rifle and the accused persons ran away after raising Lalkara that they took the revenge of marriage with Mst. Natan. Khan Muhammad died at the spot.
3. Noor Muhammad Inspector/S.H.O. P.W.10 took over the investigation of this case. He after registration of the formal F.I.R. Reached at the spot, prepared inquest report Exh.PA/3 and injury statement Exh.PA/2, took into possession bloodstained earth vide memo. Exh.PF, thereafter the investigation was entrusted to Shafqat Ali S.-I./S.H.O. P.W.8, who on 8-10-2001 arrested Loonay Khan accused and got recovered blood-stained hatchet P.5, which was taken into possession vide recovery memo. Exh.PE. After completion of remaining formal investigation, the accused was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 10 witnesses in all, thereafter, learned D.D.A. Tendered in evidence reports of the Chemical Examiner Exh.PH and Exh.PJ and that of he Serologist Exh.PK and Exh.PL and closed the case of the prosecution, then, the statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded innocence.
5. 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 appellant submits that occurrence in this case had taken place in dark hours of night, that in fact it was Allah Ditta ex-husband of Mst. Natan Bibi, who had committed the murder of Khan Muhammad because he had abducted his wife, that on the same evidence four co-accused of the appellant, namely Ali Sher, Mukhtar Ahmad, Imam Bakhsh and Wali Dad had been acquitted by the learned trial Court, that presence of the eye-witnesses, namely, Allah Ditta P.W.5 (complainant) and Mst. Natan Bibi P.W.6 is not established on record, that Mst. Natan Bibi had given the statement under the pressure of the complainant, who is father of the deceased because Mst. Natan Bibi wife of the deceased was having six months baby in her lap, and it was told to her by the complainant that in case she did not make a statement the said child would be snatched front her. Further submits that it is a case of single blow, that marriage had taken place between Khan Muhammad (deceased) and Mst. Natan Bibi about six years prior to the occurrence and during this period no untoward incident took place between them and that how the Loonay appellant came to know that single injury, which he caused proved fatal and he did not repeat the same. He lastly submits that prosecution had miserably failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that from the evidence of the eye-witnesses, the case is proved against the appellant.
Adds that there is no question of mistaken identity, as Mst. Natan Bibi, who is an eye-witnesses in this case, real sister of the appellant, so there was no question of making false statement of Mst.
Natan Bibi against her real brother and that there is no question of mitigating circumstance in favour of the appellant. He supports the judgment of the learned trial Court.
7. We have heard learned counsel for the parties at a great length and have also gone through the evidence with their able assistance. In the instant case, occurrence had taken place on 10-9-2001 at 12-00 (mid-night) while the matter was reported to the police on the same night at 3-00 a.m., the distance between place of occurrence and Police Station was five K.Ms. Complainant in this case in Allah Ditta P.W.5, who is father of Khan Muhammad deceased and eye-witness while Mst.
Natan Bibi P.W.6 is also an eyewitnesses and real sister of the appellant. Motive behind the occurrence was that Mst. Natan Bibi was earlier married with one Allah Dad and after getting divorce, she married Khan Muhammad deceased. For the sake of arguments, if we disbelieve the statement of Allah Ditta father of the deceased, then, Mst. Natan Bibi is there, who had fully supported the prosecution case, it is not imaginable that she would leave the actual culprits and would involve her own real brother. The contention of learned counsel that it was dark night occurrence and identification could not be established, we may state here that both Mst. Natan Bibi (eye-witness) and appellant are sister and brother inter se and when such a close relative comes on foot even in the night time, from the voice of the foot, the identity can be established and also from the voice. The other contention of learned counsel for the appellant that on the same evidence, four co-accused of the appellant have been acquitted from the charge by the learned trial Court and benefit of the same should also be granted to the present appellant. This contention of learned counsel is also rejected for the reasons that law laid down by the superior Court is to sift the grain from chaff because in this part of the country the trend of false implication is on its peak so while applying this principal we rule out this contention of the appellant. There is an important document, Exh.DB on record, which has been produced by the appellant himself, matter was to be decided on oath in which even the arbitrator had declared the appellant to be guilty and nobody was ready to give an oath on behalf of the appellant, although criminal cases are not decided on oath but this fact also goes against the A appellant. Learned counsel for the appellant has submitted before us that it is a case of single blow and appellant did not know that it would prove fatal and did not repeat the same. We would like to reproduce the injury as under:-- "An incised wound 20 c.m. x 5 c.m. x vertebrae between C-2 and C-3, cut completely almost transversely at the front right side of the neck to the sternocleidomastoid of the other side at the level of 2nd C. Verteberae (between muscles deep to sternocleidomastoid and of left back intact."
' It is on the neck of the deceased, this shows not only the intention of the appellant but his knowledge so there was no need of repeating the same. Learned counsel for the appellant also submitted before us that six years ago marriage had taken place between Khan Muhammad and Mst. Natan Bibi. In this regard we may state here that motive is always in mind of the accused, as to when and where and as to which place, he has to take the revenge. Moreover, the occurrence having taken place in the house of Mst. Natan Bibi, therefore, her presence cannot be doubted by any stretch of imagination. She after getting divorce from Allah Dad married with Khan Muhammad deceased and in this way he did not commit any sin or crime.
' For all what has been discussed above, we are of the considered opinion, that prosecution has proved its case against the appellant through ocular account corroborated by medical evidence and positive reports of Chemical Examiner Ehx.PH and that of Serologist Exh.PK regarding blood- stained hatchet.
' Resultantly, this appeal filed by the appellant is dismissed. The conviction and sentence recorded against the appellant by the learned trial Court is maintained. His death sentence is confirmed and Murder Reference is replied in affirmative.