' ABDUL HAMEED DOGAR, J.---Through this common judgment, we propose to dispose of the above two petitions which are directed against the judgment dated 20-9-2001 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi. In Criminal Appeal No,351-T of 2000 petitioner Tariq Mahmood had challenged his conviction and sentence whereas in Criminal Revision No,127 of 2000 petitioner Ghulam Mustafa Khokhar had sought the enhancement in compensation. Petitioners seek leave to appeal against the above judgment.
2. On 5-5-1999 complainant Ghulam Mustafa Khokhar lodged F.I.R. No,98 under sections 302, 392, 201, 411, P.P.C. And 10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), at Police Station Kohsar, Islamabad against the petitioner stating therein that he used to reside alongwith his deceased daughter, namely, Saira Mustafa in House No,31, Street No,30, F-6/1, Islamabad belonging to his brother, namely; Ramzan. The upper storey was given on rent whereas complainant and his daughter resided on 1st floor and the basement was occupied by Tariq Mahmood petitioner the servant of Ramzan brother of the complainant. Ramzan lived in U.K.
Whereas his wife keeps on coming from U.K. Occasionally.
3. On 2-5-1999 at about 6-40 p.m. The complainant went to offer Maghrib Prayer in Farooqia Mosque leaving behind his daughter Mst. Saira Mustafa and petitioner. When he returned at about 7-30 p.m. Petitioner informed him that Saira Mustafa had gone alongwith a boy and girl in a black coloured Suzuki and would return at 8-00 p.m. But she did not return and the complainant started tracing her alongwith his son Zafar Mahmood. He did not report the matter to the police due to family honour and kept on searching but could not find any clue. Petitioner usually remained silent and was busy in his kitchen work and did not show any anxiety. On 5-5-1999 complainant felt a foul smell coming out the room of petitioner in the basement, about which petitioner disclosed that perhaps a mouse had died and its 'whose smell which was coming from the basement. Thereafter, the petitioner slipped away which gave rise to a strong suspicion against him. Thus the matter was reported to the police. On the search of the room of petitioner, police found' the dead body of the deceased in a shelf, half naked, Wrapped in a Chadar. The dead body was found tied with the tongue protruding out. The neck had sign of red coloured nylon rope and a wire which resulted in the strangulation. On further search, police recovered blood-stained mat, a piece of skin of the dead body alongwith the nail of the deceased, her golden ring, bloodstained Shalwar and torn shirt of the petitioner. From the iron box of the petitioner, his blood-stained clothes were also recovered.
Some of her hair, and broken bangles were also recovered from the room of deceased Saira Mustafa.
4. Dr. Muhammad Naseer (P.W.6) and Lady Dr. Naila Israr (P.W.7) conducted the autopsy on the dead body of deceased Saira Mustafa and found the following injuries on her person:-- "(i) Ligature mark all around neck which was legated with gray coloured thick wire and brown coloured rope and there were eleven knots all around the neck.
(ii) Contusions mark over the epigastric area measuring 8 x 6 x 6 c.m. Which was in between the umbilicus and xiphoid.
(iii) Contusion marks on the ventral aspect of the right forearm measuring 6 x 3 x 3 c.m.
(iv) Contusion marks on the whole right hand venterally.
(v) Contusion mark on the doroso ventral aspect of the left forearm measuring 8 x 5 x 5 c.m.
(vi) Whole palm and fingers of the left hand were contused.
(vii) Right lower limb on its dorsal aspect was fully contused.
8. Left lower is contused dorsally."
5. The petitioner was arrested on 9-5-1999 in presence of P.W. Zafar Mahmood. He pointed out the place of occurrence and led to the recovery of purse of the deceased and her Chappal concealed near the Air-conditioner of the Drawing Room. P.W. Zafar Mahmood disclosed to the police that complainant had given Rs .50,000 and 23,000 to the deceased at different occasions. On 14-5-1999, petitioner led to the recovery of blood-stained Dopatta from the upper shelf of Almirah in the bed room of the deceased. On 10-5-1999 Rs,7,500 were recovered from the petitioner on his pointation from a box kept in his native, house at Taxila.
6. Abovementioned blood-stained articles were sent to the Chemical Examiner for report which were received as positive. On 15-5-1999, an electric wire alongwith a cutter and nylon rope were got recovered at the pointation of the petitioner from the first floor of the house of the incident. On 6-5-1999, Rs,22,000 were also said to have been produced by the petitioner from the wall of a room of his house. The petitioner also produced torn Shalwar, stained with blood and semen which he had hidden in a shop of one Muhammad Jalil.
7. Prosecution in order to establish its case examined as many as 12 P.Ws.
8. The petitioner in his statement under section 342, Cr.P.C. Denied the case of the prosecution and claimed innocence and pleaded that he had, been made a scapegoat in order to hide actual culprit.
9. We have heard Ch. Muhammad Akram, learned Advocate Supreme Court for petitioner Tariq Mahmood whereas Sardar Muhammad Ishaq Khan, learned Advocate Supreme Court addressed this Court for petitioner Ghulam Mustafa Khokhar. We have also gone through the record and proceedings in minute particulars.
10. The entire case hinches upon the circumstantial evidence which in our view is sufficient enough to base the conviction. Admittedly, the petitioner had grown up in the house of complainant being servant of his brother Ramzan and was residing as family member so much so that a room in the basement was permanently provided to him for residential purpose. The circumstances that at time of occurrence, it was only the petitioner and Saira Mustafa who were present in the house and the petitioner finding such a chance firstly forcibly committed rape with the deceased and thereafter strangulated and killed her. In order to hide the crime, he concealed her dead body while wrapping in a Cheddar under the quilts (Razais) and then kept in a shelf. About bad smell, it was he who himself disclosed that the same was due to the death of a rat. His voluntary disappearance created sufficient suspicion in the mind of the complainant who reported the matter to the police and got recovered the dead body and all the abovementioned articles from the room of the petitioner. The perusal of the post mortem report shows that presence of ligature marks all around the neck caused with gray coloured thick wire and brown coloured rope which were recovered from the petitioner on his pointation and other contusion marks over the entire body of the deceased go to show that the deceased had resisted strongly prior to being subjected to rape. This all above shows that she was not a lady of loose character. It is significant to note that the petitioner in his statement under section 342, Cr.P.C. Admitted that he was serving in the house of the complainant and that Saira Mustafa was also living alongwith her father in the abovesaid house. His denial to a question put to him that on the day of occurrence a black coloured Suzuki had come and the deceased had left with one girl and boy in that car and told the complainant that she would come back at about 8-00 p.m. Further strengthened the case of the prosecution about his involvement in the crime. His non-furnishing any explanation about his involvement in the offence and non-examination on oath under section 340(2), Cr.P.C. Further established his involvement in the case. Learned counsel for Tariq Mahmood petitioner has miserably failed to show any misreading, non-appraisal of evidence or illegality in the impugned judgment, as such the same is maintained and conviction and sentence awarded by the trial Court and upheld by the High Court are maintained.
11. Since the petitioner Tariq Mahmood has been awarded death penalty as such we do not find any justification to enhance the compensation.
12. Accordingly, both the petitions being devoid of force are dismissed and leave to appeal refused.