Tariq Parvez, J.--Through this jail petition, the petitioner-Muhammad Hanif seeks leave to appeal of this Court against the judgment of Lahore High Court, Multan Bench, Multan, dated 09.06.2010, whereby Criminal. Appeal No, 649 of 2005 filed by him was dismissed and Murder Reference No, 752 of 2005 was answered in affirmative.
2. The petitioner was tried in case FIR No, 231 of 2004 registered at Police Station Kot Chutta, District Dera Ghazi Khan. The report was made by Muhammad Bukhsh (PW-6) on 29.07.2004 at 3:35 p.m. in respect of the occurrence which took place at 2:30 pm on the same day.
3. The petitioner is charged for causing death of his two daughters namely Jamila Bibi (aged about four years) and Sughran Bibi (aged about one year). According to the complaint/statement of Muhammad Bakhsh (PW-6), his daughter Mst. Sakina Bibi was married to Muhammad Hanif (petitioner) some six years ago and out of their wedlock two daughters named above were born; however, one day preceding the occurrence i,e, 28.07.2004, one Atta Muhammad informed the complainant that Muhammad Hanif (petitioner) husband of Mst. Sakina has accused his own wife for having illicit relations with one Ghulam Akbar and has given her beating; the complainant stated that on the fateful day, he along with his brother Ghulam Yasin (PW-7) and son Wahid Bukhsh, left their house for Muhammad Hanif s house to enquire about the incident, of yesterday; when they reached the house of Muhammad Hanif-petitioner (son-in-law of the complainant) they saw him armed with Kassi and within their sight and hearing, Muhammad Hanif announced that these two daughters are not out of his wedlock and he would not leave them alive; he gave Kassi blow on the neck of Jamila Bibi which landed on her neck and shoulder, followed by taking out Sughran Bibi from her cradle (Jhola) and caused Kassi blow on her neck both the girls died. It was further stated in the complaint that when the complainant party wanted to catch hold of the petitioner, he drew out a revolver from his trouser-fold, threatened them of dire consequences and left the spot. It was also stated in the complaint that hue and cries raised by them attracted Mst.
Sakina (wife of the petitioner and mother of the two girls) and Mst. Ghulam Fatima (mother of the petitioner) to the house. They both confirmed the motive part of the story and that they were both sent out of the house by the petitioner on the pretext that they shall cut fodder/grass.
4. The trial was held in the Court of learned Additional Sessions Judge, Dera Ghazi Khan, who vide judgment dated 18.10.2005 found the petitioner guilty as such convicted him under it Section 302, PPC and sentenced him to death on two counts, with direction to pay Rs, 50,000/-as compensation to the legal heirs of the deceased or in default whereof to suffer three years R.I.
5. Learned counsel appearing for the petitioner has argued that it is a case of two versions because when the accused-petitioner was examined under Section 342, Cr.P.C., he has stated that he has been falsely charged and that two children have been killed by Mst. Sakina his wife and Ghulam Akbar her paramour, who wanted to marry with each other, therefore, wanted to get rid of their liability and have concocted a false story against him.
According to the learned counsel PWs Muhammad Bakhsh and Ghulam Yasin are both chance witnesses because as per their own admission, they reside at a distance of 2(2/1) miles away from the house of the petitioner where two children were done to death. His submission was that these two witnesses have made false statements by coinciding their arrival to the scene of crime and the occurrence in their presence. He has further argued that if the petitioner was armed with a Kassi, he could have been easily overpowered by the three persons i,e, the complainant, his son Wahid Bukhsh and his brother Ghulam Yasin (PW).
Learned counsel has finally argued that suspicions of the petitioner that his wife have illicit relations and that the two children killed were illegitimate, were sufficient factors to cause annoyance to a husband and father of two deceased to act in the manner, wherein he has inflicted only a single blow on each child; therefore, death sentence awarded in this case is harsh.
6. Learned counsel appearing for the complainant has argued that a very prompt FIR has been lodged in this case i.e, within 45 minutes of the occurrence wherein the petitioner has been charged solely by none else but his father-in-law, who would not like to get widowed his daughter Mst. Sakina Bibi, if his son-in-law is executed. She has also argued that in view of promptly lodged FIR and when a single accused is charged with no background of serious enmity between the parties, the evidence of two eye-witnesses namely Muhammad Bukhsh (PW-6) and Ghulam Yasin (PW-7) is itself sufficient to maintained conviction/sentence of the petitioner.
7. Learned Additional Prosecutor General has adopted the arguments of the learned counsel for the complainant while adding that the two Courts below after having minutely discussed the evidence reached at the conclusion that the petitioner is not innocent but guilty of double murder.
8. We have heard the learned counsel for the parties and have also gone through the impugned judgment as well as available record carefully. We have also scrutinized the evidence of two eye- witnesses namely Muhammad Bukhsh (PW-6) and Ghulam Yasin (PW-7). Muhammad Bukhsh (PW-6) is father of Mst. Sakina Bibi wife of petitioner-Muhammad Hanif and therefore, maternal grandfather of the two killed children. He has got no personal animosity to make a false charge against his own son-in-law.
Similarly Ghulam Yasin (PW-6) is although related to the complainant party but is not inimical towards the petitioner.
9. Mst. Sakina Bibi wife of the petitioner has appeared as PW-8 and she has not only admitted the occurrence but more importantly has admitted the presence of her father/the complainant, her uncle Ghulam Yasin and her brother Wahid Bukhsh, when she was attracted to the spot on hearing alarm coming from her house. She could have easily claimed herself to be an eye-witness of the occurrence but she did not; instead she deposed honestly and truthfully that she was not present at the time of commission of offence but was attracted after the occurrence on hearing the alarm.
She has confirmed the accusation made against her husband a day prior to the occurrence and has also admitted the presence of two eye-witnesses at the scene of crime on her arrival.
10. No doubt the two eye-witnesses i,e, PW-6 & PW-7 reside 2(2/1) miles away from the scene of crime but it was natural on their part to have left their house for the house of Mst. Sakina and for that matter Muhammad Hanif-petitioner, on having learnt that one day prior to the occurrence, petitioner-husband has charged his wife for immoral relations and has given her beating. It is but- traditional that father and uncles and brothers do take steps for reconciliation between husband and wife and therefore, the complainant along with his brother Ghulam Yasin (PW-7) and his son went to the house of the petitioner. It is not a case that no sooner the complainant party reached the house of the petitioner, he started killing his two children but after seeing the complainant party the petitioner is said to have stated that these two girls are not out of his wedlock, therefore, he will not leave them alive and that it was thereafter that he started giving Kassi blows to the two infant daughters.
These two witnesses i,e, PW-6 & PW-7 cannot be termed to be a chance witnesses but they had reasons to go to the house of the petitioner in view of the occurrence of preceding day.
11. After arrest of the petitioner, on his pointation blood-stained Kassi was recovered, which was sent for Chemical Analysis and report of Serologist, which reports were positive i,e, Kassi stained with human blood. The recovery of Kassi was made from the place, which was in exclusive knowledge of the petitioner. This recovery further lends support to the prosecution case. Similarly, the medical evidence also confirms that death of the two children had occurred due to sharp- edge weapon.
12. We have also considered the quantum of sentence awarded to the petitioner. He is charged for double murder, which charge is proved as held hereinabove. He has killed two girls who were his own daughters, suspecting them to be illegitimate; the question is even if it is true, what was the fault of those two girls, who were aged about 4 years and one year; fault if any would be on the part of Mst. Sakina Bibi, the wife of the petitioner, who was just given beating. The plea of the petitioner/accused that his wife and her paramour have killed the two girls, as they intended to marry each other, is baseless because this object could best be achieved by killing the husband i,e, petitioner and not the two innocent girls. The petitioner has acted in a brutal manner by taking lives of two young girls without any fault on their part. Therefore, there exists no extenuating/mitigating circumstance in favour of petitioner.
Hereinabove are the reasons of our short order of even date, which is reproduced herein below for convenience:-- "For the reasons to be recorded later, this petition is dismissed and leave to appeal is declined".