' MUNAWAR AHMED MIRZA, J.---This appeal, by leave of the Court is directed against judgment dated 20-4-1993 passed by Lahore High Court in Criminal Appeal No,618 of 1990 and Murder Reference No,210 of 1990.
2. Relevant facts culminating in filing of present appeal briefly mentioned are that Muhammad Nawaz who was married to Mst. Biban had died in an accident about seven (7) years prior to the occurrence, which had taken place on 19-3-1989. Mst. Biban wanted to marry her elder daughter Mst. Irshad Bibi with son of complainant, Hakim Khan, but the appellant, who is brother of her deceased husband, objected and wanted that said Mst. Irshad Bibi should be married to his son.
On the night preceding the unfortunate incident, there was discussion between appellant, deceased Mst. Bibam, Hakim Khan and others about marriage of Mst. Irshad Bibi. During negotiations deceased Mst. Biban had insisted for her marriage with son of the complainant, but appellant continued the same. It is the case of prosecution that complainant Hakim Khan alongwith Allah Ditto and Fateh Khan stayed back for the night, in a Kotha located towards western side within the house of Mst. Biban. On the morning of 19-3-1989 at Fajar prayers time they woke up on commotion and hearing cries of Mst. Biban and Mst. Irshad. They rushed out of house and saw that Mst. Biban alongwith her daughter Mst. Irshad were running away while appellant Amir was causing injuries to Mst. Biban with Tokka. On account of injuries Mst. Biban fell down when further blows were given by the appellant on her head and back side of neck. Mst Irshad Bibi to save her mother went forward but appellant inflicted injuries with Toka on her right shoulder and neck.
Complainant Hakim Khan, Allah Ditta and Fateh Muhammad reached on the spot and caught hold of appellant. They also took into possession bloodstained Tokka. Mst. Biban succumbed to injuries instantaneously. Other people from vicinity also collected on the site. Complainant Hakim Khan leaving other witnesses with dead body and injured Mst. Irshad Bibi went to Police Station Qadirpur and lodged F.I.R. No, 52 at about 8.00 a.m. Under section 302/307/109, P.P.C. After completion of investigation appellant alongwith his son Allah Ditta and brother Haq Nawaz were sent up for trial before Additional Sessions Judge, Jhang.
3. On the commencement of trial on 1st September, 1990 appellant was indicted for wilfully causing murder of Mst. Biban and launching murderous attack on Mst. Lrshad Bibi by inflicting injuries with Tokka whereas co-accused Allah Ditta and Haq Nawaz were charged for abetment of said offence.
The appellant and co-accused refuted the charges and pleaded 'Not Guilty'.
4. Prosecution examined thirteen (13) witnesses to substantiate accusations against the above three accused. On the close of prosecution side statements of appellant and co-accused were recorded on 2-9-1990 within the purview of section 342, Cr.P.C. The accusations were expressly denied by the co-accused. However, the appellant explaining question No,10 stated that he had attacked deceased Mst. Biban under provocation in finding her in compromising position with complainant Hakim Khan. The answer given by him is reproduced below:- "I am innocent. In fact Hakam Khan P.W. Had illicit relations with Mst. Biban deceased. At the time of occurrence I was going to nearby sugarcane field to cut the fodder for the cattle. I had a Tokka P.5 with me. I Witnessed Hakam P.W. In a compromising position with Mst. Biban deceased. I lost self- control due to grave and sudden provocation. I caused injuries on the person of Mst. Biban deceased. Mst. Irshad Bibi injured P.W. Tried to save her mother and she was also inflicted injuries on her person out of grave and sudden provocation. In the meanwhile Hakam P.W. Had escaped. I was not apprehended by the P.Ws. At the spot. I voluntarily appeared before police, produced Toka P.5 and blood-stained clothes P.6 to P.B. The prosecution has deliberately suppressed the material facts."
5 All the three accused, however, declined to give statements on oath as envisaged under section 340(2), Cr.P.C. No defence was led by either of the accused. Learned Additional Sessions Judge, Jhang, on appraisement of evidence observed that prosecution had failed to prove charges of instigation or abetment against accused Allah Ditta and Haq Nawaz, therefore, they were directed to be acquitted. However, by means of judgment dated 3-9-1990, appellant was found guilty for committing murder of Mst. Biban and on conviction under section 302, P.P.C. Sentenced to death besides fine of Rs,10,000 or in default further R.I. 'for four years. Appellant was also burdened with compensation of Rs,10,000 which on recovery was payable to heirs of deceased. Appellant was also held guilty under section 307, P.P.C. For murderous assault on Mst. Irshad Bibi and sentenced to R.I. For ten years besides fine of Rs,5,000. Additionally, a compensation of Rs,5,000 was also awarded which on recovery was payable to injured Mst. Irshad Bibi.
6. Appellant aggrieved from above convictions and sentences had filed Criminal Appeal No,618 of 1990 before Lahore High Court. Murder Reference No,210 of 1990 seeking confirmation of death sentence awarded to appellant by the trial Court also came up for hearing alongwith above appeal. Both these matters were eventually decided by Division Bench of Lahore High Court and appeal was dismissed confirming death sentence vide judgment dated 20-4-1993 Operative portion is reproduced below:-- "10. It is in evidence that ever since the death of the husband of Mst. Biban deceased which was about 6/7 years prior to the occurrence, Amir appellant who was his brother had started residing with the family of the deceased. Mst. Biban deceased was, thus, living in her house alongwith her children, some of whom were grown up including a son who was older to Mst. Irshad Bibi P.W., besides Amir appellant who was also residing there. The appellant wants us to believe that Hakam complainant had developed illicit liaison with the deceased and was seen in a compromising position with Mst. Biban deceased at the time of occurrence at a place which was only a few yards outside the residential Kothas of these inhabitants of the house. This in our opinion, is not a reasonably plausible explanation of the occurrence. It may be added that the people in the rural areas do not go to the fields for cutting fodder before the sun rise and in any case, the fodder for the cattle is not cut with Tokas. Mst. Irshad Bibi P.W. Is no doubt a daughter of the deceased but she is also a daughter of the brother of the appellant and the said brother was so concerned and closely connected with them, that he had taken up his residence with the family of his late brother after his death. In the circumstances, it is not readily digestible that Mst. Irsand Bibi P.W. Would twist the facts to ensure the hanging of such a paternal-uncle. It may also be mentioned here that none from amongst the children of the deceased who were so closely connected with the appellant had come forward, even at the investigation stage in defence of their paternal-uncle.
(11) Thus, the defence version of the present occurrence appears to be implausible and is accordingly rejected.
( 2) Hakam Khan complainant and Allah Ditta P.W. Are being strongly corroborated by Mst. Irshad Bibi P.W. Who was an injured witness of the occurrence in question and whose presence or receipt of whose injuries are admitted even by the appellant. As has been noticed above, she is rather closely connected even with the appellant. The convict had been apprehended at the spot with blood-stained clothes and with a blood-stained Toka which he had admittedly used in the present occurrence. It is also noticeable that the claim of Hakam Khan complainant about the motive had not been challenged by the appellant in the sense that no question was put to him that he had no marriageable son for whom the hand of Mst. Lrshad Bibi P.W. Was being sought.
(13) In this view of the matter, no exceptic can be taken to the finding of guilt recorded against Amir appellant on both the charges. He had killed his brother's wife and had murderously assaulted his brother's daughter without any justifiable reason. He does not deserve any leniency.
(14) Consequently, Criminal Appeal No, 618 of 1990 filed by Amir appellant is dismissed and the death sentence awarded to him is confirmed. It is, however, directed that the entire amount of fine imposed on the appellant under section 302, P.P.C. Shall be paid to the heirs of the deceased, in addition to the compensation directed by the learned trial Court, to be paid to them."
7. Appellant aggrieved from above conviction and sentence had filed Jail Petition No,135 of 1993 before this Court. Leave was, however, granted on 7-4-1996 to reappraise the evidence for safe administration of criminal justice.
8. Malik Ainul Haq, Advocate Supreme Court, appearing for the appellant strenuously contended that Mst. Biban was killed under grave and sudden provocation when appellant found her in shameful and compromising condition with complainant Hakim Khan. He further contended that punishment awarded to the appellant was unjustified and in view of above extenuating circumstance the sentence is liable to be reduced. It was also 'halfheartedly urged that P.W. Hakim Khan and P.W.11 Allah Ditta were not present on the scene. Therefore, their version was not believable.
9. Ch. Muhammad Akram, Advocate Supreme Court, learned counsel appearing for the State vehemently controverted the above contentions and defended the impugned judgment.
10. It may be seen that P.W.10 lrshad Bibi (laughter of deceased Mst. Biban according to medical certificate (Exh.PF) manifestly received three incised wounds on her person, which had been caused by sharp-edged weapon. Her presence at the scene, therefore, cannot be disputed. This witness in her testimony before the Court has narrated entire incident wherein appellant had attacked deceased Mst. Biban by causing multiple injuries with Tokka on different parts of body which resulted in her instantaneous death. Mst. Irshad Bibi had also given background of grievance expressing that appellant was adamant for her marriage with his sons and affirmed negotiation on that subject which had taken place on the night preceding the incident. It may be seen that presence of Hakim Khan on the spot is halfheartedly disputed but surprisingly it is alleged that appellant had seen him in compromising position with deceased Mst. Biban, therefore, stand about absence of complainant from the scene and basis of provocation raised by him are self- conflicting. Anyhow Hakim Khan had lodged complaint (Exh.PG) with promptitude and reiterated entire incident besides the background of motive for commission of the offence. Ocular version of above two witnesses has been fully corroborated by P.W.11 Allah Ditta. Their testimony was not shaken despite searching cross-examination. Recovery of crime weapon from the possession of appellant and his blood-stained clothes coupled with positive Report of Serologist (Exh.PM) provides strong independent corroboration to the ocular version. Besides the Report of Chemical Examiner (Exh,PN) showing absence of semen from the deceased also negates the defence theory about cause of sudden provocation. It may be seen that P. W.10 Mst. Irshad Bibi is real niece of appellant Amir. She was about fifteen years of age at the time of occurrence. It is not conceivable that said witness having no direct enmity and despite close relationship would unjustifiably involve the appellant.
11. On thorough re-evaluation of entire record we are satisfied that ocular version and other circumstantial factors fully supported by the medical evidence establish the guilt of appellant without and shadow of doubt. Both the Courts have concurrently relied upon the material and rightly held appellant guilty for the offences committed by him.
12. We my observe that there does not exist even an iota of evidence which may justify defence theory or could demolish prosecution case against the appellant. Apparently no extenuation circumstance indicating provocation or cause for reduction of sentence are made out.
13. Accordingly, for the foregoing reasons we do not find any merit in this' appeal, which is dismissed.
14. While parting we record our approval of the efficient disposal of the criminal trial by the Presiding Officer within 3 days without sacrificing any of the principles relating to safe administration of justice. This was in keeping with the spirit of law and requirement of High Court Rules and Orders which normally should be adhered by the trial Courts.