SAIDUZZAMAN SIDDIQUI J.--The petitioner alongwith Muhammad Ramzan son of Mahmud was tried for murders of Mst. Farzana, Mst. Kaneez and Mst. Zohran under section 302/34, P.P.C.. The trial Court acquitted co-accused Muhammad Ramzan giving him the benefit of doubt but convicted the petitioner for the offence alleged against him. He was awarded sentence of death on three counts with fine of Rs. 5,000 on each count and in default of payment of fine, he was directed to suffer R.I. For to years. The petitioner was also directed to pay a sum of Rs.10,000 as compensation in each case of murder to the legal heirs of the deceased or to suffer six months' S.I. On each count.
The death sentence has been confirmed by a learned Division Bench of the Lahore High Court while disposing of the Criminal Appeal No.286-J of 1991 filed by the petitioner alongwith Murder Reference No.391 of 1991.
2. The F.I.R. In the case was lodged by Qadir Bakhsh a resident of Sidiqabad, D.G.Khan. He stated in the F.I.R. That his son Ghulam Shabbir was married to one of the deceased Mst. Farzana one year before the occurrence. The said Mst. Farzana after 15/20 days of marriage left the house of Ghulam Shabbir. Ghulam Shabbir accordingly instituted a suit for restitution of conjugal rights against Mst.
Farzana which resulted in a compromise on 3-9-1989 and Mst. Farzana came back to the house of Ghulam Shabbir. It was alleged that on 6-9-1989 the wife of the complainant Mst. Zohran, his daughter-in-law Mst. Farzana went to Taunsa Sharif to enquire about the health of Mst. Shahnaz wife of the petitioner. The complainant and his son Ghulam Shabbir and another person Abdul Aziz son of Hafiz Ahmad also proceeded in the evening of 8-9-1989 to enquire about the ailment of Mst.
Shahnaz wife of petitioner and to attend the Mrs. Of Saint Khawaja Ghulam Suleman. The complainant stayed at the shrine of Khawaja Ghulam Suleman up to 9/10 p.m. In the night and about 11-00 p.m. He reached the house of his daughter-in-law and slept outside the boundary wall of the house in a open place which was owned by Ghulam Muhammad son of Noor Muhammad on a cot. There was an electric bulb which was on in the open compound of the house. At about 2- 00 a.m. In the night the complainant was awaken by the alarm raised by Mst. Zohran whereupon he alongwith his son Ghulam Shabbir and Abdul Aziz ran towards the house. While they were entering the house they found Muhammad Ramzan son of Mahmud standing on the door of the house with a dagger in his hand. He ran away on seeing the complainant and the witnesses. When the complainant entered the compound of the house he saw the petitioner holding a hatchet in his hand giving blows to the daughter-in-law of the complainant Mst. Farzana and to Mst. Kaneez widow of Ata Muhammad Qureshi. The complainant also saw the petitioner giving blows to Mst.
Zohran wife of the complainant who also died as a result of the injuries caused by the hatchet. The wife of the petitioner Mst. Shahnaz beseeched the petitioner and tried to grab him and the complainant also attempted to itch hold of the petitioner but the petitioner warned them that if they came near him they will also meet the same fate. The- petitioner succeeded in making good his escape thereafter. The motive for the offence was stated to be that Mst. Farzana was having an illicit liaison with the petitioner and against his wish Mst. Farzana through a settlement of '
Panchayat' had gone over to live with Ghulam Shabbir and this compromise was brought about through the good offices of Mst. Kaneez and Mst. Zohran. The petitioner, therefore, bore grudge against Mst. Kaneez, Mst. Zohran and Mst. Farzana and for this reason he killed all the three ladies.
3. After usual investigation the case was challenged before the trial Court and the learned trial Court having found the petitioner guilty of committing the murders of three ladies convicted him and sentenced him as aforesaid. The sentence and conviction of the petitioner was upheld by the Lahore High Court.
4. In seeking leave to appeal learned counsel for the petitioner very vehemently contended that the occurrence had taken place at 2-00 O Clock in the night and as such the possibility of mistaken identity of the accused could not be ruled out. It is also contended by the learned counsel that the alleged electric bulb which was stated to be on at the the of commission of the offence by the prosecution witnesses, was neither seized nor produced in evidence before the trial Court by the prosecution, to substantiate the case against the petitioner and as such no reliance could be placed on this part of the prosecution story. The learned counsel contended that in view of the law laid down by this Court in the case of Muhammad Arshad v. The State (PLD 1995 SC 475), the trial Court was not justified in convicting the petitioner in the state of the above-referred evidence. It is also contended by the learned counsel that the trial Court having acquitted co-accused Muhammad Ramzan after disbelieving the prosecution evidence, it was not safe to rely on the same evidence to convict the petitioner on a capital charge. It is further contended by the learned counsel that the recovery of hatchet in the case should have been disbelieved as the recovery was not witnessed by any respectable resident of the locality from where the hatchet was recovered.
The last contention of the learned counsel is that the motive alleged in the case remained unsubstantiated and, therefore, the petitioner should have been awarded the lesser punishment of life imprisonment instead of awarding the death penalty, following the rule of safe administration of justice in such cases.
5. We have heard learned counsel for the petitioner at length and gone through the evidence on the record with his assistance and are of the view that no case of interference with the judgment of the High Court is made out.
6. The ocular testimony in the case was furnished by the complainant Qadir Bakhsh (P.W.6), his son Ghulam Shabbir (P.W.7) and Mst. Shahnaz (P.W.5). The presence of these P.Ws., on the scene of offence at the the of commission of crime was believed by the to Courts below for very valid, reason. The incident took place at the house of Mst. Kaneez Bibi the mother of Mst. Shahnaz (P.W.5) and Mst. Farzana (deceased) where Mst. Shahnaz was residing at the relevant the. Therefore, presence of Mst. Shahnaz (P.W.5) at the the of commission of offence could not be doubted. The explanation offered by Qadir Bukhsh (P.W.6) and Ghulam Shabbir (P.W.7) for their presence at the house of Mst. Shahnaz, that they had gone to attend the Urs at Taunsa Sharif and to enquire about the health of Mst. Shahnaz (P.W.5) is more than convincing on account of presence of Mst. Farzana (wife of P.W.7 and daughter-in-law of P.W.6) and Mst. Zohran (wife of P.W.6 and mother of P.W.7), at the house of Mst. Shahnaz. The presence of Ghulam Shabbir (P.W.7) at the house of Mst. Shahnaz, her sister-in-law where his wife Mst. Farzana (deceased) had gone, to enquire about the health of Mst. Shahnaz was quite natural in view of the compromise between Ghulam Shabbir and Mst.
Farzana in the suit for restitution of conjugal rights. Had Ghulam Qadir not been present at the the of commission of offence, he could not possibly report the matter to the police within an hour of its occurrence, keeping in view the distance between the place of his residence and the scene of offence.
7. The next contention of the learned counsel for the petitioner is that the offence was committed at 2-00 a.m. In the night and as the prosecution failed to produce the electric bulb which was said to be on at the the of commission of offence, there existed serious doubt as to the correct identity of the accused. Mst. Shahnaz (P.W.5) and Qadir Bukhsh (P.W.6) categorically stated before the trial Court that at the the of commission of offence one electric bulb was on in the compound of the house and they had seen both the accused persons in the light of the electric bulb. This part of the testimony of the witnesses was not challenged by the defence in the cross-examination. The learned counsel, however, contended that in the case of Muhammad Arshad v. The State (supra) this Court had refused to place reliance on prosecution story in the absence of the production of the electric bulb which the prosecution in that case claimed was on at the the of commission of offence. The learned counsel contended that the observations of this Court in the case of Muhammad Arshad v. The State were statement of a legal proposition which is binding on all Courts. The contention of the learned counsel is based on a mis-conception. The observations of this Court in Muhammad Arshad's case, relied by the learned counsel, relate to the merits of case.
These observations are confined to the facts and circumstances of that case and cannot be treated as an enunciation of law or any legal principle. The legal proposition laid down by this Court in Muhammad Arshad's case is contained in paragraph 15 of the judgment which is as follows:-- "15. The principle to be extracted from the decided case thus is that the evidence of visual identification is one of the categories of 'suspect evidence' and that ordinarily it is not safe to convict on the basis of such evidence without corroboration. Indeed, in exceptional circumstances, that is, where the evidence of visual identification is of exceptionally good quality, such as, where the offender was known to the witness, there - was sufficient light, the witness had an unobstructed view of the offender and there was a dialogue between the witness and the offender, the evidence may be acted upon."
8. The legal principles quoted above nowhere laid down that where it is alleged by the prosecution that the witnesses identified the accused in a case in the light of a electric bulb or a lantern and the source of light is not produced in evidence by the prosecution the prosecution case cannot be accepted. On the contrary these principles merely laid down the tests for judging the probative force of the evidence of a witness who claims to have seen an accused committing an offence in a dark night in the light of a electric bulb or lantern. As pointed out in Muhammad Arshad's case the relevant considerations are, the availability of sufficient light, the opportunity available to the witness, the availability of an unobstructed view of the accused to the witness at the the of commission of offence, which will determine the quality of evidence in each case.
9. In the case before us, the accused is not only related to the prosecution witnesses, but he is the husband of one of the prosecution witnesses Mst. Shahnaz (P.W.5). It has come in the evidence that at the the the petitioner was giving blows to the three ladies, Mst. Shahnaz beseeched the petitioner and even tried to grab him. The complainant Qadir Bakhsh and Ghulam Shabbir stated in their evidence that they also attempted to grab the petitioner on the spot but he managed to escape. Mst. Shahnaz and Qadir Bakhsh categorically stated in their evidence that at the the of commission of offence, the electric bulb was on and they saw the accused in the light of the bulb but their evidence was not challenged. The P.Ws., had an absolutely unobstructed view of the accused who was standing in the open compound at the the of commission of offence. Therefore, even on the touchstone of the principles laid down in Muhammad Arshad's case the visual identification of the petitioner in the light of the electric bulb, by the P.Ws., could not be disregarded.
The learned counsel for the petitioner is unable to point out any misreading on the part of the Courts below in appreciation of the evidence of the three prosecution witnesses referred to above.
10. The learned counsel for the petitioner next contended that the recovery of crime weapon was not satisfactorily proved and the medical evidence was in conflict with the ocular testimony, therefore, no reliance could be placed on the ocular testimony in the case. The learned counsel contends that the doctor in his evidence before the Court stated that semi-solid food material were found in the stomach of the three deceased which proved that the deceased had taken their meals between 1/2 hour before the incident, whereas according to the prosecution evidence the incident had taken place at about 2-00 a.m. In the night. According to learned counsel the above inference from the evidence belied the prosecution story with regard to the the of the occurrence of the incident. The contention of the learned counsel has no merit. Firstly, there is no evidence on record either by way of cross-examination or by leading any positive evidence as to the the when the three deceased in the case took their meals. In the absence of any evidence to prove the the at which the three deceased had taken their meals, the argument of learned counsel proceeds on mere conjecture. We, therefore, find no merit in the contention of the learned counsel.
11. The next contention of the learned counsel for the petitioner is that the recovery of the blood- stained hatchet in this case should not have been accepted, as at the the of recovery of the hatchet no respectable resident of the locality from where the hatchet was recovered, was made '
Musheer' of the recovery. This contention to is devoid of any merit. It has come in the evidence of the 1.0. In the case, that the hatchet was recovered from a deserted place which was 3 to 4 miles away from the scene of occurrence. In these circumstances making of Musheer' to the witnesses who accompanied the police officer was not open
12. The learned counsel also contended that the motive alleged against the petitioner in this case could not be satisfactorily proved, therefore, the petitioner should have been awarded lesser penalty of life imprisonment instead of death sentence. The to Courts below after analysing the evidence on record came to the conclusion that the motive alleged against the petitioner was fully established. In the absence of any misreading or non-reading of evidence on record by the to Courts below it is not open to his Court to substitute its ownconclusions in place of those recorded by the Courts below.
13. The learned counsel for the petitioner also contended that as the evidence of the prosecution witnesses was not believed by the Courts below qua the acquitted accused Muhammad Ramzan the conviction of the petitioner on the basis of the same evidence is against the principle of safe administration of criminal justice. The contention of the learned counsel has not impressed us at all. The to Courts below have distinguished the case of Muhammad Ramzan from the case of the present petitioner, on the ground that the P.Ws. Did not say a word regarding motive against Muhammad Ramzan. The recovery of crime weapon was also found doubtful at the instance of Muhammad Ramzan. It was also found that Muhammad Ramzan neither caused any injury to the deceased nor the P.Ws., although he was armed. On the totality of these circumstances, the Courts below extended the benefit of doubt to Muhammad Ramzan and distinguish his case from that of the petitioner. After going through the judgment of the trial Court which was upheld by the High Court we are convinced that the evidence of three prosecution witnesses in the case was neither found to be false nor they were disbelieved qua the acquitted accused Muhammad Ramzan in the case and that the acquittal of Muhammad Ramzan was based on the principle of safe administration of criminal justice as none of the witnesses has seen Muhammad Ramzan giving blows to any of the three
14. For the aforesaid reasons we do not find any ground to interfere with the judgment of the High Court. The petition is accordingly dismissed and leave to appeal is refused.