Muhammad Akhtar Shabbir, J.--This jail petition seeking leave to appeal is directed against judgment dated 01.02.2007 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby appeal filed by the petitioner against his conviction and sentence of death awarded to him for the murder of Mst. Shakila by the learned Additional Sessions Judge, Lahore, vide judgment dated 31.01.2001 was dismissed and murder reference sent by the trial Court was disposed of accordingly.
2. Briefly stated the facts of the case as narrated by Mirza Abbas Ali PW-1 brother-in-law of the deceased lady) are that on the fateful day and time (17.05.2000 at 12.00 noon), he was going towards his house when on the way he reached near the house of his father-in-law Ghulam Muhammad, he heard some noise. In order to satisfy his curiosity, he entered the house and saw Khalid Saif Ullah petitioner-convict giving churri blows to his wife Mst. Shakila which hit her on the left side of her mouth, on the right side of her neck and on the left side of her chest. Another blow given by him hit on the right hand of the deceased. On hearing the alarm Riaz Ahmad and Abdur Rehman (PW-2) also reached there. On seeing the PWs Khalid Saif Ullah tried to run away from the place of occurrence. In the street one Muhammad Ashfaq armed with a rifle raised a lalkara that he would kill if someone tried to apprehend Khalid Saif Ullah. Thereafter, both the accused ran away on a motorcycle alongwith another unknown person. Mst. Shakila was taken to hospital where she succumbed to injuries.
3. The motive behind the occurrence was stated to be the strained relations between Mst. Shakila (deceased) and her husband Khalid Saif Ullah convict-petitioner as a result of which she left him and started living with her parents in their house about 7/8 days ago.
4. The, prosecution to establish its case against the petitioner-accused produced 12 witnesses including the doctor and the Investigating Officer. The ocular account of the occurrence was furnished by Mirza Abbas Ali (PW-1) and Abdul Rehrnan (PW-2). The medical evidence was furnished by Dr. Muhammad Shahid Akhtar (PW7) who conducted the postmortem examination of the deceased. The petitioner/accused when examined under Section 342 Cr.P.C. denied the prosecution story and deposed as under:-- "My residential Phone No, is 5412292 before my marriage with Mst. Shakila deceased. PW Rashid Ahmad asked for the hand of Mst. Shakila for his son Chhaba, and Abdur Rehman PW asked for the hand of Mst. Shakila for his brother Tariq PW. While Munir Ahmad maternal uncle of Mst. Shakila deceased asked for her hand for his son Maqsood Ahmad. Mst. Hanifan and her all daughters married and unmarried refused them and Mst. Shakila was married with me. This marriage was love marriage. We were living happily. Muhammad Saleem elder brother of Mst. Shakila deceased who is residing in Dubai with his family come to my house and asked for the company of Mst.
Shakila at her parents home. Because his departure was due after 3/4 days. It was also told by Muhammad Saleem PW that his mother Mst. Hanifan Bibi was not feeling well and after his departure his mother would fee loneliness and in presence of Mst. Shakila her feeling would not be hurted. Accordingly I allowed her happily to go with her brother Muhammad Saleem PW to her parents house. On 17th May 2000 I was informed telephonically at my house by Riaz PW that Mst.
Shakila Bibi was murdered. On my inquiry it was informed, that on the fateful day at about 10.00 a.m. Mst. Usba wife of Muhammad Naeem PW called her brother Chhaba who committed zina with Mst. Shakila in retaliation of not marrying with him. After committing zina by Chhaba, Mst. Shakila deceased told her sister-in-law (Mst. Usba) that now she will not spare her and she will ask her brother Muhammad Naeem PW to divorce her. At that time Mst. Usba provided a Chhuri to her brother Chhaba who injured Mst. Shakila who succumbed to the injuries. Mirza Abbas Ali complainant, Abdul Rehman and Riaz PWs along with Rashid Ahmad PW in retaliation of their revenge and after due deliberation, conspired with Rashid Ahmad PW who is police tout and got registered a fictitious case against me. They made me a scapegoat only to safe the life of Chhaba son of Rashid Ahmad PW. All the PWs are inter related, interested and inimical to me and due to the enmity stated above they have deposed against me falsely".
5. Learned counsel for the accused-petitioner vehemently argued that the presence of eye- witnesses at the place of occurrence is not free from doubt; that they are the planted witnesses because they were expected to be present at their business places at the time of occurrence which were at a distance of about 1 km; that no specific convincing reason of their presence at the spot at the time of incident has been advanced by the prosecution; that the petitioner has been malafidely involved in the present case while he had been contacted on telephone after the incident which is established from the detail of telephone calls made from the telephone installed at the place of occurrence i,e, the house of father of the deceased. These calls were made from the said telephone to the telephone number installed at the factory of the convict-petitioner. Further contended that on the day of recovery of the weapon of offence (Churri) which was lying in the bushes, the city was effected by rains and the said Churri could not be stained with blood; that the medical evidence contradicts the ocular account furnished by the eye-witnesses who are interested being related inter se and that the prosecution has failed to establish the guilt of the accused petitioner beyond any shadow of doubt.
6. We have heard the arguments of the learned counsel for the petitioner appointed at State expense and also examined the record with his assistance.
7. The occurrence took place in the broad day light at 12.00 noon which was reported by complainant Mirza Abbas Ali (PW-1) at 5.00 p.m. whose statement was recorded (Ex.P.A.) on the basis of which formal FIR (Ex.P.A./I) was registered. To establish the story, the prosecution produced complainant Mirza Abbas Ali, PW-1 (husband of sister of deceased who was resident of Raiwind in the same street-where the place of occurrence, the house of his father-in-law Ghulam Muhammad, is located) and Abdur Rehman PW-2 who was also residing in the same vicinity and his house was in front of the house of Ghulam Muhammad, father of the deceased. PW-1 Mirza Abbas Ali had explained his presence at the place of occurrence categorically stating that he used to take lunch from his house at that time. PW-2 Abdur Rehman has also justified his presence at the place of occurrence. As per the site-plan, the house of Ghulam Muhammad (the place of occurrence) is not situated in the bazaar, rather it is situated at the dead end of the street and the hue and cry, if raised, from that house could be heard in the street. The complainant/PW-1, being a close relative of Ghulam Muhammad, had the right to enter into the house in such circumstances and it was not unnatural or improbable. The house of Abdur Rehman PW-2 was in front of the door of Ghulam Muhammad (father of deceased). Both the eye-witnesses have fairly succeeded in proving their presence at the spot and witnessing the occurrence. They were subjected to lengthy cross-examination but the defence had failed to make cracks in their deposition and veracity of their statements.
8. The complainant being close relative (Humzulf of the petitioner) had no reason to falsely implicate the petitioner in the commission of the offence substituting him, letting off the real culprits. There is no such material available on record which would indicate substitution of the petitioner in the case with the real culprit. Substitution is a phenomenon of a rare occurrence because even the interested witnesses would not normally allow real culprits for the murder of their relations let off by involving innocent persons. In this context, reference can usefully be made to the case of Irshad Ahmad and others v. the State & others (PLJ 1996 SC 758). The petitioner has not been able to establish any animosity of the complainant or the police for his false involvement in the case.
9. The medical evidence produced by the prosecution in the case proved that the deceased had received injuries with short edged weapon on the vital parts of her body and was taken to hospital where she was operated but she succumbed to the injuries. The medical evidence fully supports the ocular account.
10. The recovery of weapon of offence (Churri) has been taken into possession on the pointation of the accused-petitioner while under custody from the bushes which was witnessed by PW-1 and the I.O. The said weapon (Churri) as per the report of the chemical examiner and the serologist was found stained with human blood. The stance taken by the petitioner that, the city was effected with heavy rainfall and the Churri could not remain stained with blood, is not proved on the face of record. There is evidence on record that the Churri has been recovered from the bottom of bushes and it cannot be believed that due to rain, the blood on the Churri had been washed out No independent evidence has been produced by the defence from the locality to prove that there was rainfall at the place of recovery. The certificate of the Meteorological Department, Lahore (Ex.P.L.) is not sufficient proof to establish the defence plea.
11. The ocular account corroborated by the medical evidence supported by the recovery of weapon of offence, blood stained earth and the last worn clothes of the deceased are sufficient to infer that the prosecution has been successful to bring home the guilt of the petitioner to the hilt.
12.As to the objection of the learned counsel for the petitioner that there is delay of five hours in registration of the case, suffice it to observe that the deceased had received serious injuries and was first taken to the hospital where after operation she expired and this delay is not fatal to the prosecution version. The learned counsel for the petitioner has not been able to point out any material contradiction and discrepancy which could benefit the defence version.
13.The motive of the incident set up by the prosecution that the deceased Mst. Shakila had left the house of her husband and went to the house of her parents due to strained relations between the two has not been rebutted by the petitioner rather the defence plea taken by him that one Chhaba who wanted the hand of the deceased for marriage firstly committed zina on her with the assistance of his sister Mst. Usba (wife of Muhammad Naeem) and thereafter murdered her in the house of her parents, does not appeal to a prudent mind.
14. The defence version when put to juxtaposition with the prosecution version and put to test on the touchstone of the principles laid down by the Superior Courts, the edifice erected on the same will dash to the ground like house of cards. It is further strengthened from the fact that petitioner who has taken defence plea has not opted to appear as his own witness under Section 340(2)
Cr.P.C. except that he produced detail of the Telephone Calls No, 390054 (Ex.DD), details of telephone calls from Telephone No, 393300, admission slip of the deceased in the hospital and the record of rainfall. This defence evidence is not tenable in law to support the stand taken by the petitioner. The learned counsel for the petitioner has not pointed out any error of law, misreading or non-reading of evidence in the impugned judgment calling for interference by this Court. The impugned judgment of the Lahore High Court, Lahore, is unexceptionable to which no exception can be taken.
15.For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal refused.