MIAN BURHANUDDIN KHANJ.-- Khadim Hussain and Muhammad Hussain, brother inter se, were tried by the learned Additional Sessions Judge, Sahiwal under section 302/34, P.P.C. For the murder of Shafiq Ahmad and both the accused /petitioners were awarded death sentence and a fine of Rs.5,000 each. On appeal before the Lahore High Court the learned Judges confirmed the death sentence awarded by the learned trial Court to Khadim Hussain; while conviction of Muhammad Hussain under section 302/34, P.P.C. Was maintained, death sentence passed on him was not confirmed but the same was altered to that of life imprisonment, vide the impugned judgment, dated 26-3-1985.
2. Now leave is sought by this petition to appeal against the aforesaid impugned judgment on the grounds that the only evidence produced by the prosecution is that of Muhammad Saeed P.W., brother of the deceased and Abdul Majid P.W.; that later's testimony cannot be taken into consideration in view of the fact that he had filed a sworn affidavit Exh. DD. On 18-2-1979 at Rawalpindi disowning his previous statements recorded under section 161 and 164, Cr.P.C. And that as such the prosecution case is not free from doubt because this affidavit was duly proved by the testimony of DW.1 Ghulam Muhammad, petition writer and Abdul Rehman Farooqi, Advocate and Oath Commissioner, Rawalpindi; that the medical evidence of Dr. Muhammad Athar P.W.6 does not corroborate the ocular testimony of the P. Ws. ; there are said to be 34 injuries on the deceased Shafiq Ahmad, of which at least 5 injuries are of sharp-edged weapon; these injuries could not be caused at such an hour of the day as alleged by the prosecution or else there would have been witnesses from the vicinity of the occurrence to corroborate the prosecution case. The learned counsel further submitted that the recovery of the blood-stained shirt P-7, trouser P-8 and Kulhari P-9, on 29-10-1976 at the instance of Khadim Hussain accused/ petitioner is of no use as the A.S.I.
Ghulam Mustafa P.W. Had admitted that the recovery memos. Do not show whether these articles were stained with blood or not; that placing the prosecution case in juxtaposition with the defence version that the murder was not witnessed by anybody; the dead body was found in a dirty well and P.W. Muhammad Saeed was informed thereafter, the implication of the accused/ petitioner and his brother was done on account of the enmity of the father of Nafees Ahmad, husband of Kishwar Sultana, with the accused /petitioner Khadim Hussain.
3. The prosecution case is that on the day of occurrence i.e 26-10-1976 at about Dupahrvela complainant Muhammad Saeed P.W.8 and his brother Shafiq Ahmad deceased had gone to see their sister Mst. Kishwar Sultana living in 'A' Line quarters in Sutlaj Cotton Textile Mills, Okara. The deceased left the quarter and was proceeding towards the Chowk, followed by Muhammad Saeed complainant. Shortly afterwards the complainant saw Khadim Hussain, armed with a Kulhari and Muhammad Hussain, armed with a knife abusing Shafiq Ahmad deceased and telling him that he would be taught a lesson for refusing the hand of his sister to Khadim Hussain the accused /petitioner; they attacked the deceased with Kulhari and dagger who was wounded and died on the spot. The two accused Khadim Hussain and Muhammad Hussain, then dragged the dead body of the deceased and threw it in the dirty water pool nearby and decamped. According to Muhammad Saeed P.W.8 hand of Mst. Kishwar Sultana was sought in marriage by Khadim Hussain but due to his waywardness the deceased refused and instead, gave her in marriage to Nafees Ahmad. For this reason the accused petitioners murdered the deceased.
4. We have heard the arguments of the learned counsel who reiterated the grounds taken in support of the defence case in the Courts below. We find that the prosecution case is supported by Muhammad Saeed P.W.8 who, though brother of the deceased, has not been shown to have any personal grudge or grievance against the accused petitioners and thus there would be no reason to discard his testimony. Moreover, the case of the prosecution is supported by Abdul Majid P.W.7 who was a watchman at Sutlaj Cotton Textile Mills, Okara and was residing there in Quarter No.511 Old (B) Block within the premises of the said Mills. According to him at about 1 p.m. On the day of occurrence, he went to the quarters Block 'A' Line within the premises of the said Mills to call the driver of the Mills to duty. On his return when he reached near the mosque, he saw Shafiq Ahmad deceased, Khadim Hussain and Muhammad Hussain accused altercating with each other over the question of the marriage of Mst. Kishwar Sultana, whereafter, Khadim Hussain and Muhammad Hussain accused started giving blows to the deceased with hatchet and knife respectively; and the deceased fell down injured. According to him, the occurrence was witnessed by Muhammad Rashid and Muhammad Saeed. There is nothing on record to discredit the witness Abdul Majid except an affidavit, filed by him in Court, disowning the statements made by him to the police and before a Magistrate under sections 161 and 164, Cr.P.C. However, the question remains that he made these statements, gist of which is given above, at the trial. It appears that at some stage of the investigation, he was forced to make an affidavit disowning his aforesaid statements which we do not accept as having been disowned voluntarily. The not result is that we refuse to grant leave.
Petition dismissed.