' RAJA FAYYAZ AHMAD, J.--- Petitioner Zahoor Ahmed was found guilty on the charge under section 302(b), P.P.C. And sentenced to death. He was further held liable to pay Rs,50,000 as compensation to the legal heirs of the deceased Rasool Bakhsh, in default whereof to further undergo S.I. Of six months for committing Qatl-e-Amd of Rasool Bakhsh deceased while sleeping in his own house, in case Crime No,190 of 2001 registered with Police Station Uch Sharif, Tehsil Ahmedpur East, District Bahawalpur on 5-6-2001 on the report of .P.W. Ashiq Hussain son of Rasool Bakhsh vide judgment, dated 28-2-2002 passed by the learned Additional Sessions Judge, Bahawalpur.. The record of the case was forwarded to the learned High Court for confirmation of the death sentence within the meaning of section 374, Cr.P.C.
2. The petitioner challenged his conviction and sentence awarded to him by the learned trial Court by preferring Criminal Appeal No,62 of 2002 which was taken up by the learned High Court along with the Murder Reference No,33 of 2002. The learned High Court vide judgment, dated 15-2-2006 impugned herein dismissed criminal appeal of the petitioner and the murder reference was answered in affirmative by confirming the death sentence awarded to the petitioner by the learned trial Court vide above said judgment.
3. The facts of the case as unfolded in the F.I.R. Lodged by Ashiq Hussain complainant/P.W.8 son of deceased Rasool Bakhsh need not to be narrated against in view of the submissions made before us on behalf of the petitioner which have been given in extenso in paras Nos.2 and 3 of the impugned judgment reproduced hereinbelow:-- "(2) Briefly, the facts of the prosecution case, as per F.I.R. Exh.P.C., lodged at the instance of Ashiq Hussain complainant/ P.W.8, are that on 4-5-2001 at Isha time after taking meals, he and his brother Sadiq Hussain slept in the Verandah of their house, while their father Rasool Bakhsh slept in the courtyard of the house on a cot. A lantern was lit handing along the wall of the Verandah in the courtyard. At about mid-night on report of commotion, he woke up and saw in the moonlight as well as in the light of lantern that Zahoor Ahmed, accused/appellant, while armed with hatchet, was standing near the cot of his father. The complainant awoke his brother Sadiq Hussain, who also identified Zahoor Ahmed. Within their view, Zahoor Ahmed started giving hatchet blows on the neck of their father. The, hue and cry raised by them attracted Abdul Qadir and Bashir Ahmed to the spot, who also witnessed the occurrence. The complainant and the P.Ws. Tried to apprehend the accused but he made good his escape along with the hatchet, while extending threats of dire consequences to them. Rasool Bakhsh succumbed to the injuries at the spot.
(2) The motive, as set up in the F.I.R., was that Noor Ali Olak, grandfather of the complainant from his maternal line of relations, had agreed to marry his daughter with Zahoor Ahmed but subsequently, he married his daughter with Riaz Ahrnad, maternal uncle of the complainant.
Zahoor Ahmed had suspected that Rasool Bakhsh had got conducted that marriage and on account of this grudge, the appellant had committed the murder of deceased."
4. The learned counsel for the petitioner and Ms. Yasmeen Sehgal, Deputy Prosecutor-General for the State have been heard. The impugned judgment and the evidence produced at the trial has been perused carefully and minutely with their assistance.
' At the very outset the learned counsel for the petitioner in the given facts and circumstances of the case categorically submitted that presence of the complainant in his own house at the time of incident along with the other inmates of the house including his deceased father and having witnessed the occurrence as given in the F.I.R. Lodged by him, cannot be disputed. The learned counsel further submitted that the prosecution did not produce the brother of the complainant, namely, Sadiq Hussain who was sleeping at the time of incident in the Veranda Of their house which caused serious doubt on the veracity of the prosecution story and secondly; an other ocular witness of the occurrence namely, Abdul Qadir P.W.9 had not actually witnessed the occurrence, rather, according to the complainant's own showing; had reached to the place of Wardat on the hue and cry of the complainant and his said brother, it cannot be safely concluded that P.W.9 had witnessed the occurrence as alleged by the complainant. To supplement his view-point the learned counsel pointed out that the house of Abdul Qadir P.W. Was situated at a distance of one Bigha from the house of the complainant, which comes to approximately half an acre, therefore, it cannot safely be assumed that he on hearing hue and cry within no time reached to the place of occurrence and had himself witnessed the petitioner giving hatchet blows on the vital parts of the deceased during dark hours of the night. He thus argued, that the version of the said P.W. Cannot safely be relied upon for the purpose of conviction. He while concluding his arguments submitted that imposition of punishment for life imprisonment, as an alternative sentence would meet the ends of justice.
5. Controverting the above noted contentions the learned counsel for the State submitted that the ocular account furnished by the P.Ws. Has further been corroborated from medical evidence, recovery of the blood-stained hatchet at the instance of the petitioner and the motive part of the prosecution story. According to the learned counsel, as per evidence of the prosecution, which goes unimpeached; the deceased was done to death in a most cruel and callous manner by the petitioner, who inflicted repeated hatchet blow on the neck of the deceased, while sleeping in his own house in the courtyard who thus, deserved no leniency nor any mitigating circumstances are borne on the record for the imposition of lesser penalty of life imprisonment, as requested for on behalf of the petitioner, while concluding his arguments. She further submitted that ocular account furnished by the complainant and the promptly lodged F.I.R. Gets substantial corroboration from medical evidence and the testimony of the complainant and P.W. Abdul Qadir, who rushed to the place of incident on hearing hue and cry of the complainant and his brother; also witnessed the petitioner giving hatchet blows on the person of the deceased hence; his presence on the spot was neither unnatural nor could be doubted.
6. The contentions noted above put forth on behalf of the parties learned counsel have been considered in the light of the impugned judgment gone through carefully and minutely in the light of the evidence available on the record. The testimony of the complainant, who admittedly was the natural witness of the occurrence, has not been questioned and disputed before us, which, as concluded in the impugned judgment finds support from the medical evidence and the recovery of the blood-stained hatchet on the pointation of the petitioner even independently is sufficient to bring home the guilt against the petitioner. The petitioner and the complainant party are undisputedly closely related to each other. The petitioner is a maternal-cousin of the deceased, as also the first cousin of the deceased through paternal line of relationship and thus, in the light of the entire evidence it has correctly been concluded by the learned High Court that the blood relation would not spare the real culprit and instead, would involve an innocent person in the case.
Further, it has rightly been observed that it was not essential for the prosecution to produce each of the cited witnesses at the trial. The petitioner if was satisfied that had Sadiq Hussain (the brother of the complainant) been produced at the trial would have spoken the truth in respect of the involvement of the petitioner in the case; the petitioner could have summoned the said cited witness through the process of the Court to be examined as the Court-witness or in defence but no request admittedly had ever been made in such behalf, therefore, non-production of the said cited ocular witness was not fatal to the case of the prosecution nor would it per se result in creating any substantial doubt on the prosecution case. The evidence adduced by the prosecution at the trial has rightly been found worth credence, reliable and truthful for the purpose of recording conviction of the petitioner. P.W. Abdul Qadir has deposed that on the date of occurrence at mid-night on hearing hue and cry of Ashiq Hussain, and Sadiq Hussain, he along with Bashir Ahmed were attracted to the scene of occurrence and had witnessed, the accused giving hatchet blows on the neck of the deceased Rasool Bakhsh lying on the not and they tried to catch hold of the accused but he decamped from the place of occurrence along with hatchet threatening them of dire consequences. The incriminating part of the evidence of this witness could not be impeached or discredited despite searching cross-examination. In the site plan Exh.P.A./1 the house of the P.W.
Abdul Qadir has not been shown, however, his presence at the place of occurrence has been shown at a distance of 5 Karams from the complainant, whose presence in his own house and having witnessed the occurrence has not been disputed before us. The complainant Ashiq Hussain has stated that on the hue and cry P.W. Abdul Qadir and Bashir Ahmed were attracted to the scene of occurrence and witnessed the occurrence. This part of the evidence of the complainant also could not be impeached. Moreover, P.W. Muhammad Ramzan Investigating Officer before the learned trial Court in cross-examination stated that site plan Exh.P.L. Was prepared by him during inspection of the place of occurrence on the pointation of the complainant and the P.Ws., lends further support about their presence at the relevant time at the place of the occurrence.
' The Chemical Examiner report and that of the Serologist duly exhibited at the trial, blood-stained earth secured from the place of the -incident, recovery of blood-stained hatchet at the instance of the petitioner and the medical evidence as above said, furnished necessary corroboration to the ocular account which in our considered opinion has been rightly believed.
' The petitioner in his statement under section 342, Cr.P.C. Pleaded his innocence and false implication in the case but did not opt to record his statement on oath in disproof of the charge nor produced any evidence in defence. The petitioner in answer to question No,9 during his examination by the learned trial Court stated that Noor Ali suspected that his wife Mst. Lal was having illicit relations with Rasool Bakhsh deceased and due to this grudge Noor Ali managed to cause the murder of deceased Rasool Bakhsh and; he has falsely been implicated in the case, and that he had been engaged with the daughter of Allah Dewaya by way of Watta Satta hence; there was no question of his marriage with Mst. Kalsoom, the daughter of Noor Ali. In support of this plea, the petitioner even did not come forward to make statement on oath within the purview of section 340(2), Cr.P.C. Nor as above noted produced any evidence in defence in support of the said plea.
There is nothing on record to suggest that the said plea to be true, reasonable in the circumstances of the case or even probable.
' The motive part of the prosecution case, as set up in the F.I.R. Gets due support from the testimony of P.W. Ashiq Hussain ocular witness/c omplainant.
' No mitigating circumstance is spelt out from the evidence available on record as rightly so observed by the learned High Court to which no exception could be taken, hence; the submissions made before us by the learned counsel for the petitioner for imposition of the lesser punishment of life imprisonment, in the given circumstances of the case cannot be entertained. In our considered opinion, the entire evidence available on record stands correctly scrutinized, assessed and appraised in its true perspective by both the learned Courts, which exclude all reasonable hypothesis of the innocence of the petitioner in the case. No case for leave to appeal has been made out. Resultantly, this jail petition is dismissed. Leave refused.