' HAMID ALI MIRZA, J.--- This criminal jail petition is directed against the judgment of conviction dated 31-10-2002 in Criminal Appeal No,147 of 1998 and Murder Reference No,161 of 1998 passed by learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, whereby the said appeal was dismissed maintaining the judgment, dated 28-5-1998 passed by learned Additional Sessions Judge, Jhelum who as per said judgment convicted the petitioner under section 302, P.P.C.
And sentenced him to death and directed to pay compensation amount of Rs,one lac to the legal heirs of deceased Mst. Zarina Begum and also convicted under section 324/337-D, P.P.C. And sentenced to ten years as Ta'zir and to pay Arsh amounting to Rs,70,000 to Mst. Nosheen Akhtar for causing injuries to her person respectively.
2. Brief facts of the case are that the petitioner was charged for having committed Qatl-i-Amd and having attempted to commit Qatl-iAmd of Mst. Nosheen Akhtar P.W. By causing her injuries with Chhuri on 20-4-1994 at about 9-45 a.m. In the residential house of village Maloot Tehsil and District Jhelum. The incident was reported to the .Police in consequence of which P.W.12 Sikandar Khan, A.S.-I. Reached at the place of occurrence and recorded statement Exh.P.C. Of P.W.8 Mst. Nosheen Akhtar which was subsequently incorporated word by word in the F.I.R. Book and registered as F.I.R.
No,34 of 1994 at Police Station Chotala. Thereafter P.W.12 Sikandar Khan, A.S.-I. Took up the investigation and completed all the usual formalities. He searched the accused but was not traceable therefore on 15-5-1994 he got warrants of arrest Exh.P.A. Issued by the Ilaqa Magistrate and entrusted the same to P.W.1 Basharat Hussain, Constable No,664 for arrest of the accused Barkaat Ahmad but returned the same unexecuted and thereafter P.W.11 Nisar Ahmad got issued proclamation Exh.P.B. From the Court of Ilaqa Magistrate and entrusted the same to the same police constable who returned the same after doing the needful. Thereafter P.W.11 Nisar Ahmad submitted challan mentioning the petitioner/accused as absconder before the competent Court.
Learned Sessions Judge after receipt of challan issued non-bailable warrants for arrest of accused which returned unexecuted thereafter proclamation under section 87 and attachment order under section 88 of Cr.P.C. Were issued but the petitioner/accused did not put his appearance hence he was declared proclaimed offender. Learned Sessions Judge, Jhelum after recording the evidence of twelve material P.Ws. Kept the case on dormant file with the direction to put up the same after arrest of the petitioner/accused. P.W.13 Nisar Ahmad, S.H.O. On receipt of spy information on 6-6- 1997 arrested the petitioner/ accused Barkaat Ahmad from near village Maloot. The petitioner/ accused while being in custody led the police party to his house and from the courtyard after digging some earth produced Chhuri Exh.P.4 before police which was taken into possession as per memo. Exh.P.J. In presence of Mashirs/marginal witnesses and P. W.13 also prepared site plan Exh.P.J./1 of the place from where Chhuri was recovered. Thereafter petitioner/accused was charged on 30-4-1998 to which he pleaded not guilty and claimed to be tried hence prosecution examined as many as fifteen P.Ws. The petitioner/accused was also examined under section 342, Cr.P.C. Wherein he denied the commission of charged offence, he also examined Tahir Ali D. W.1 in his defence. After conclusion of the trial and hearing the counsel for the parties, the learned Additional Sessions Judge, Jhelum vide judgment dated 28-5-1998 convicted and sentenced the petitioner/accused as said above. The petitioner preferred appeal before the Lahore High Court, Rawalpindi Bench, Rawalpindi and trial Court also sent Murder Reference No,161 of 1998 for confirmation of death sentence passed which appeal was dismissed so also murder reference was answered in the affirmative as per impugned judgment, hence this petition for leave to appeal.
3. We have heard learned counsel for the petitioner and perused the entire record minutely.
4. Contention of learned counsel for the petitioner is that this is a clear case of substitution of the petitioner in place of real assailant in view of the evidence on record, therefore, the observation of the superior Courts in number of cases that in case of single accused, substitution was a rare phenomenon would not be attracted in the instant case. Learned counsel has taken us through the ocular testimony of P.Ws. 8, 9 and 10 and submitted that there were improvements and material contradictions in their evidence therefore, no reliance could be placed on the testimony of said P.Ws. He also submitted that it was admitted by the prosecution that the petitioner/accused had illicit terms with the deceased, therefore, her husband P.W.9 Muhammad Walayat had previously on two occasions divorced the deceased but subsequently, the said divorce was revoked by him hence the deceased continued to live with P.W.9 Muhammad Walayat who had in the circumstances in fact murdered his wife, the deceased. He further contended that in view of the medical evidence the deceased was killed by her husband P.W.9 in the early hours as the stomach of deceased was found empty and in case she had taken her breakfast in the morning semi- digested food would have been found in the stomach of the deceased. He further submitted that the petitioner/accused had not gone underground and was not absconder and was available in the village but the police did not arrest him. In the said respect he has referred to the deposition of P.W.13 Mushtaq Ahmad who arrested the petitioner/ accused on 6-64997.
5. We do not find merit and substance in the said contentions.
6. Admittedly P.W.8 Mst. Nosheen Akhtar the daughter of deceased was in the house and was injured with Chhuri, therefore, her testimony cannot be disbelieved considering also that she being inmate of the house her presence cannot be doubted and further her testimony could not be discredited in detailed cross-examination by the defence. She in her testimony before the Court has reiterated what she had stated in the F.I.R. She has fully implicated the petitioner with causing of injuries to the deceased and to her with Chhuri. Ocular testimony of P.W.8 Nosheen is also fully corroborated by her brother P. W.10 Allah Ditta who also stated that the petitioner/accused murdered his mother by inflicting Chhuri blows upon her person so also to Mst. Nosheen Akhtar. P.
W.10 was cross-examined at length but his testimony also could not be discredited and no material contradiction or inconsistency could be brought on record. Confidence inspiring and unimpeachable ocular testimony of P. Ws. Mst. Nosheen and Allah Ditta is also corroborated by medical evidence so also corroborated circumstance of absconsion for three years of the petitioner/accused which could not be explained satisfactorily by the petitioner. The prosecution evidence brought on record was sufficient to prove the guilt of the petitioner beyond reasonable doubt for committing crime of murder of deceased Mst. Zarin and causing of injuries to P.W. Mst.
Nosheen Akhtar. The contention of learned counsel for the petitioner that the deceased's husband P.W.9 Muhammad Walayat due to his suspicion, that deceased was hating illicit relations with the petitioner/accused, committed murder of his wife in the early hours of the morning, did not appeal to our mind considering that P.W.9 Muhammad Walayat who already knew, even according to the defence, of alleged illicit relations did not commit such act of murder of his wife, the deceased, on the said account but he opted twice to divorce her, therefore, he would commit such offence of murder of his own wife when she was residing with him after settling previous differences. The said P.W.9 Muhammad Walayat if he wanted, could have got rid of deceased because of her alleged misdeed by divorcing her as he did previously, therefore, it could not be P.W.9 Muhammad Walayat, the husband of deceased to kill her. The motive assigned by the prosecution that on refusal of the deceased to accompany the petitioner, the latter caused murder of her by inflicting Chhuri blows A upon her person so also caused injuries to P.W.8 Mst. Nosheen Akhtar, appeared to be sound and convincing which stood proved as per evidence on record. The next contention of learned counsel for the petitioner that medical evidence contradicted the ocular testimony of the prosecution has no merit considering that the deceased had taken meals at about 6 or 6-30 a.m.
Whereas medical evidence mentioned that large intestine contained faecal matter which opinion of the doctor corroborated the ocular version that the deceased was killed at about 9-30 a.m. And during a period of more than three hours, the breakfast had digested and passed on to large intestine in the shape of faeces, naturally the stomach had become empty by that time. Reference may be made to (i) Ibrahim v. The State 1969 SCMR 773 at p.776, (ii) Said Shah v. The State NLR 1988 Criminal 381(F), para.14, p.384, (iii) Shivaji Sahebrao Bobade and another v. State of Maharashtra AIR 1973 SC 2622, para.11 at p.2629, (iv) Ibrahim and another v. The State 1968 PCr.LJ 1784 at p.1792.
Reference may also be made to Medical Jurisprudence and Toxicology, First Edition by Dr. K.S. Narayan Reddy, at p.167 column 1, under the heading "Gastrointestinal and urinary Tract", whereunder the author has opined:-- "The amount of stomach contents and the extent of their digestion may be helpful to estimate the time of death, if the. Hour at which the deceased took his last meal is known. There is considerable variation in the emptying of stomach. The stomach empties gradually. The stomach usually starts to empty within ten minutes after the first mouthful has entered. A light meal usually leaves the stomach within two hours after being eaten, a medium sized meal requires 3 to 4 hours and a heavy meal 4 to 6 hours."
' In the instant case ocular evidence to the effect that deceased had taken breakfast at about 6 or 6-30 a.m. While the deceased was done to death at about 9-30 a.m., thereby death occurred after 3 to 4 hours which period in the rustic life was sufficient to digest the food taken at about 6 or 6-30 a.m. Which was changed into faeces and then entered into large intestine. In the circumstances there is no inconsistency between the ocular testimony of P. Ws. To that of medical evidence in respect of time of the occurrence when the deceased was murdered.
7 No animus has been assigned to P.Ws. Including injured P.W.8 Mst. Nosheen Akhtar and P. W.10 Allah Ditta son of the deceased and their testimony is unimpeachable and confidence-inspiring, corroborated by medical evidence with circumstantial evidence and the fact of absconsion of the petitioner/accused who could not satisfactorily explain his long absence for more than three years after the occurrence. Learned counsel for the petitioner has placed reliance upon (i) Ghulam Qadir v. The State PLD 1967 Pesh. 269, (ii) Nawaz Ali and another v. The State 1981 SCM R 132, (iii) Javed Iqbal v. The State 1994 PCr.LJ 1069, (iv) Ata Muhammad and another v. The State 1995 SCM R 599 and (v)Basharat and another v. The State 1995 SCM R 1735 in support of his contentions but the facts of the instant case are quite different and distinguishable to the facts of the cases cited considering also that decisions cited are based on peculiar facts and circumstances of those cited cases, hence same cannot be made rule of application in every case.
8. We do not find misreading/non-reading of evidence on record or any legal or factual infirmity with the impugned judgment so also no merit in the contentions of learned counsel for the petitioner, therefore, leave to appeal is declined and the petition is dismissed.