HAMID ALI MIRZA, J.--This criminal petition for leave to appeal is directed against the judgment dated 6-6-2001 in Criminal Appeal No,282 of 1996, Murder Reference No,141 of 1996 and Criminal Revision No,117 of 1996 passed by learned Division Bench of the Lahore High Court, Lahore, dismissing the.Appeal of the petitioner so also revision petition of the complainant and confirming the murder reference maintaining death sentence.
2. Brief facts of the case are that on 19-6-1996 Muhammad Mansha lodged first information report at Police Station Saddar, Sialkot for an offence under section 302, P.P.C. Stating therein that his sister Mst.Sarwat Rani was married to petitioner/accused Muhammad Safdar alias Ayub about 15 months prior to the occurrence and both of them, used to quarrel frequently with each other. On 19-6-1996. Muhammad Mansha, complainant received message from his sister that he should visit her Village Charind, whereupon he along with Abdul Majeed went to the house of deceased Sarwat Rani and reached there at about 9-00 a.m. Where Mst. Sarwat Rani and the petitioner Muhammad Safdar were present. On inquiry, the deceased Mst.Sarwat Rani informed him that accused quarrelled with her previous night. The complainant intended to take his sister with him on which the petitioner/accused flared up and took out his pistol and fired five successive shots upon Mst.
Sarwat Rani causing injuries on various parts of her body and she died on the spot. The complainant could not interfere on account of fear and the petitioner/accused managed to escape from the scene. Motive for the incident was said to be quarrel between the spouses and also the fact that complainant wanted to take his sister with him. After usual investigation the petitioner/accused was challaned before the learned Sessions Judge, Sialkot who framed the charge under section 302(a), P.P.C. To which the petitioner/accused pleaded not guilty, consequently prosecution examined nine witnesses at the trial. The petitioner/accused was examined under section 342, Cr.P.C. Wherein he denied the charge and further stated as under:-- "All the eye-witnesses are not only related inter se but also related to deceased. They were neither present at the spot nor had seen the occurrence. The complainant with the help of related eye- witnesses has wrongly prepared this fictitious tale of occurrence and got the, case registered in absolutely false premises. Kashaf son of Latif, who was not relative of my wife Sarwat Rani, used to visit my house in my absence. When I came to know of this fact I complained against the behaviour of my wife to her parents and brothers. They admonished her and asked her to mend her ways. She did not give up her bad activities and continued meeting Kashaf. I kept surveillance on her activities. On the day of occurrence, I found Kashaf with my wife in her room. I lost my temper and out of sense of Ghairat fired at her. Kashaf was in a position to make good his escape. I took the same plea before the Investigating Officer, but it was deliberately kept away. My brother Ihsan Elahi also brought these facts to the notice of the Investigating Officer. His statement was recorded. To meet this situation the complainant side involved my brother as well in this case by getting the statements of Noor Hussain son of Siraj Din, Inamullah son of Lal Din, Muhammad Saeed son of Muhammad Yousaf and Muhammad Nawaz son of Muhammad Sarwar, recorded. My brother Ihsan Elahi, as an accused in this case narrated the actual manner and mode of occurrence and all facts relating to Kashaf before the Investigating Officer, like me." The petitioner also examined in defence his brother D.W.1 Ihsan Elahi. The learned trial Court after hearing the learned counsel for the parties, on perusal and assessment of evidence as per judgment dated 14-4-1996 in .Para.21 observed:-- "21. In view of above discussed medical evidence, evidence on the point of motive, evidence of recovery, circumstantial evidence and ocular evidence, I hold accused Muhammad Safdar alias Ayyub guilty of offence of Qatl-i-Amd, punishable under section 302(b), P.P.C. He is convicted accordingly. There is no mitigating circumstance whatsoever, in favour of the accused. On the contrary, I have already held that he acted in a cruel and merciless manner. I therefore, sentence him to be punished with death, for the said offence. He shall be hanged by neck till he is dead. He is also ordered to pay compensation of Rs,2,00,000 to the heirs of deceased Mst.Sarwat Rani, other than the accused, under section 544-A, Cr.P.C. Accused shall undergo rigorous imprisonment for six months, in default of payment of compensation The petitioner preferred an Appeal No,282 of 1996 and complainant filed revision petition, which were disposed of along with Murder Reference No,141 of 1996, maintaining the conviction and affirming death sentence as per impugned judgment.
2. We have heard learned counsel for the petitioner and perused the record.
3. Contentions of the learned counsel for the petitioner are that learned Division Bench of the High Court and the trial Court have ignored the fact that the incident took place due to grave and sudden provocation as the deceased was seen with Kashaf in indecent manner and secondly that as per prosecution version complainant wanted to take the deceased away to her house which resulted in the unfortunate murder of the deceased, consequently in the said circumstances capital sentence was not warranted, considering also contradiction in medical and ocular testimony.
4. We do not find merit and substance in the contentions of the learned counsel for the petitioner.
5. Learned Sessions Judge, after scanning the testimony of P.W.5 Muhammad Mansha, complainant, P.W.6 Abdul Majeed and P.W.8 Khalid Javed, came to the conclusion that prosecution has successfully proved the motive for the commission of offence so also in view of the evidence of P.W.3 Nadeem Yousuf and P.W.9 Muhammad Manzoor, recovery of pistol and empties was proved.
The report of Forensic Science Laboratory proved empties recovered from the place of incident were fired from the said pistol which fact also stood confirmed by petitioner/accused in his statement under section 342, Cr.P.C. He further held that the testimony of P.W.5 Muhammad Mansha, P.W.6 Abdul Majeed, eye-witnesses of incident is confidence-inspiring with regard to commission of offence of murder by the petitioner/accused. The learned trial Court also nullified the defence plea of petitioner that the deceased was seen with Kashaf in his room when Kashaf was said to be kissing the deceased and fondling with her breast, therefore he took out the pistol and killed his wife the deceased after scanning the evidence on record and held the said plea to be afterthought and unbelievable having not been taken during investigation of case, being also inconsistent with the suggestions made to the P.Ws. And the statement made by him and D.W.1 Ihsan Elahi, also keeping in view the sketch of the scene of occurrence Exh.PA and Exh.PA/1 where the stranger could not enter the house without being noticed by the persons present in other portions of the house considering that room in which Mst.Sarwat Rani was killed had only one outer door. The learned trial Court however observed:-- "As regards provocation, I have already held that version of the accused is not believable and that element of Ghairat was an afterthought, introduced by the accused at the stage of trial. Mere fact that the complainant wanted to take his sister with him was no ground of provocation and such provocation, if any, could be no defence for the accused. It is also important to mention here that after the amendment of relevant provisions of Pakistan Penal Code, the ground of sudden and grave provocation can no more help an offender. Nevertheless, in the instant case the provocation was not grave. It is also noteworthy that the accused acted in a cruel and merciless manner by firing nearly 10 shots at the deceased and hence even under the repealed law he could not get benefit of any such provocation."
6. Learned Division Bench of the High Court maintained the conviction and sentence holding that the plea of defence with regard to the grave and sudden provocation was created and invented subsequently and Kashaf was fictitious person and further it was not possible for the so-called Kashaf to enter into the room of deceased in view of its location and surrounding houses of other inmates and further as to why the petitioner/accused did not catch hold of Kashaf and why he was not fired upon and was permitted him to escape. It was also further observed that as per medical evidence Mst.Sarwat Rani was fully clad and was wearing undergarments viz. Bra and panty, considering that it also revealed that all shots were hit on the face or frontal part of the body of the victim which indicated that Mst.Sarwat Rani was standing right in front of the petitioner/accused when she was fired at and in case she was found to be in the company of a paramour, Mst.Sarwat Rani would have tried to flee from the spot or would have tried to take shelter elsewhere.
7. The ocular version of P.Ws. Muhammad Mansha and Abdul Majeed being consistent has been believed by learned Division Bench of the High Court to be confidence-inspiring and trustworthy which version is corroborated by medical evidence and the evidence of recovery of pistol, empties and report of Forensic Science Laboratory which proved the guilt of petitioner/convict beyond reasonable doubt. We find no misreading or non-reading of evidence warranting our interference with the finding of guilt of the petitioner which has been correctly and rightly arrived at by both Courts in accordance with law. The plea of grave and sudden provocation has been disbelieved by the both Courts on proper appreciation of evidence considering that said plea being not Convincing and did not appeal to reason having also not been substantiated by any direct or substantial evidence. Mere fact that P. Ws are related to the deceased would not per se make their testimony untrue liable to be discarded. It is settled law by now that mere relationship would not make a witness as interested witness and testimony of such witness which otherwise seemed to be truthful cannot be rejected on such ground. No mitigating circumstances warranting in modification or reduction in sentence exist in view of the brutal murder by the petitioner/accused of his wife deceased. So far the facts of the case The State v. Muhammad Hand and others (1992 SCM R 2047) relied upon by the learned counsel for the petitioner are quite different and distinguishable to the facts of the instant case considering that in the cited case ocular testimony was rejected in totality therefore this Court held that statement of the accused was to be accepted in totality wherein he has raised the plea of grave and sudden provocation when the deceased had disgraced and dragged his wife on the day of incident. It was also observed that the statement of accused in such circumstances should be taken into consideration in entirety and not merely inculpatory part of it to the exclusion of the exculpatory part unless there was other reliable evidence which supplements the prosecution case. In the instant case the ocular testimony is confidence-inspiring, reliable and trustworthy which is also corroborated by the medical evidence, recovery evidence of pistol, empties which matched as per report of Forensic Science Laboratory having been fired from the said pistol considering that there was no reliable direct or substantial material on record from the side of petitioner/accused in respect of his plea of grave and sudden provocation, which plea was rightly disbelieved by two Courts below in view of evidence on record.
7. Resultantly we find no merit and substance in this petition, therefore leave to appeal is declined and the petition is dismissed.