1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment, dated 19-7-2001 through which Criminal Appeal No,81 of 1998 and Murder Reference No 21 of 1999 was disposed of by a Division Bench of Lahore High Court, Bahawalpur Bench, Bahawalpur.
2. ' The petitioner namely Muhammad Asim and his co-accused Mushtaq Ahmed were tried for the charge under section 302/34, P.P.C. For committing murder of Muhammad Irshad by a learned Additional Sessions Judge, Bahawalpur who having found them guilty of the charge convicted and sentenced both of them under section 302, P.P.C. Vide judgment, dated 8-6-1998. The petitioner was given death penalty and Mushtaq Ahmed, his co-accused, was sentenced to imprisonment for life. The appeal preferred by the convicts in the High Court against their conviction and sentence was dismissed through impugned judgment and the petitioner has sought leave to appeal in the matter through this petition.
3. ' The fateful occurrence had taken place during the night between 28th and 29th June, 1995 in Chak No,50/DB, Tehsil Yazman, District Bahawalpur and case was registered at 10-20 a.m. On 29-6- 1995 at Police Station Yazman situated at a distance of 6 kilometres from the place of occurrence on the complaint lodged by Muhammad Sharif, father of the deceased. The brief facts as narrated in the F.I.R. Are that Muhammad Irshad, son of the first informant, was married with one Mst.
4. Majeedan daughter of Muhammad Latif, resident of Chak No,102/DB. Muhammad Irshad being a qualified dispenser was running a dispensary in Basti Sokara Minor within the area of Chak No,51/DB with his residence in Chak No,50/DB. The in-laws of deceased were demanding him to shift to their Chak but he was not agreeable and for the said reason, they were annoyed with the deceased. It is stated that a few days prior to the occurrence, Abdul Majid and Munir Ahmed sons of Muhammad Latif and their sister. Mst. Majeedan, wife of deceased, picked up a quarrel with the deceased and extended threats of life to him in presence of Muhammad Hanif, brother of the complainant and on 29-6-1995 at 8 a.m. The first informant on receipt of information in presence of Muhammad Hanif and Mushtaq Ahmed regarding the murder of Muhammad Irshad during the preceding night reached at the house of his son at Chak No,50/DB in company of Muhammad Hanif and Mushtaq Ahmed and found that Muhammad Irshad was lying dead in the house and Mst. Majeedan, wife of deceased, was not available at home. The deceased was caused injures with sharp-edged weapon on his neck, head and arms. Muhammad Sharif, father of the deceased, suspected that Mst. Majeedan with the help of Munir Ahmed and Abdul Majid, her brother and Muhammad Asim petitioners committed the murder.
5. ' Atta Ullah (P.W.13) Additional S.H.O., Police Station Yazman, having prepared the injury statement (Exh.PL) and inquest report of the deceased (Exh.PJ), dispatched the dead body to the mortuary for postmortem and during the spot inspection, took into possession bloodstained earth, blood- stained pillow (P-3), Chaddar (P.4) and Gadda (P-5) and sent these articles to the Chemical Examiner for opinion regarding the origin of blood. The Investigating Officer on inspection of the Baithak of Manzoor Ahmed having found blood spots on the wall of Baithak scratched these spots, sent the same to the Chemical Examiner for opinion and later also took into possession the last- worn clothes of the deceased on production before him by a constable who escorted the dead body to the mortuary. Dr. Muhammad Ramzan Bhatti (P.W.11) conducted post-mortem examination on the dead body of Muhammad Irshad and found the following injuries on his person:- "(1) There was an incised wound 12 x 2 cm x bone deep on middle part of the head. The bone was cut and menegies was visible.
(2) There were three incised wounds on front and base of the neck each wound over lapse one and other from left to right side of the neck and each wound was 12 x 5 cm deep. The skin muscles, carted artery carted vein of both side and trachesoeso phages and cervical vertebras, all the above structures were cut only skin of back of the neck was attached with the body. Right and left vague nerves were cut.
(3) There was an incised wound on upper part and front of left arm 10 x 5 c.m. x bone deep.
(4) There were two incised wounds on lower part of left forearm, each wound was 10 x 3 c.m. x both bones were cut as the lower end of radius and ulna was completely cut and separated from the forearm. Only skin was attached.
(5) There was incised wound on upper part of the back of the chest on left side 10 x 3 c.m. x bones were cut, 3rd and 4th thoracic ribs were cut 4 c.m. Away from spinal card.
(6) There was an incised wound on back of chest on right side on middle part of wound was 10 x 3 c.m. x bone deep.
(7) There was an incised wound on back of chest of middle part of wound was 10 x 3 c.m. x muscle deep."
6. ' Muhammad Asim, petitioner, was arrested on 4-7-1995 and on 17-7-1995 he got recovered hatchet (P-1) which was used by him as weapon of offence. The prosecution in addition to the Investigating Officer (P.W.13) and doctor (P.W.11) produced Muhammad Shard, the first informant (P.W.1), Abdul Khaliq (P.W.2) and Mst. Zulekha (P.W.3) the neighbourers of Muhammad Irshad deceased, who have witnessed the occurrence, Muhammad Ashraf (P.W.4) who witnessed the recovery of hatchet from the petitioner and Sardar Ahmed (P.W.6) who was witness of recovery of dead body. Muhammad Bashir (P.W.7) before whom the petitioner confessed his guilt, at the Dera of Manzoor, his father in proof of the charge. The petitioners in his statement under section 342, Cr.P.C. In reply to a question that "why this case against you and why P.Ws. Have deposed against you?" stated as under:- ' "Complainant Muhammad Sharif nominated Muhammad Latif son of Mehr Din, Munir Ahmad and Abdul Majeed sons of Abdul Latif and Mst. Majeedan, widow of deceased, in the F.I.R. On the basis of suspicion but after five days he tendered affidavits before police exonerating the above said persons and to save their skin he implicated me in this case and deposed falsely before this Court.
7. Because Latif was father-in-law of deceased, Munir Ahmad and Majeed were brother-in-laws of deceased and Mst. Majeedan was the wife of deceased.
8. ' Therefore, the complainant made me and my co-accused to be the scapegoat only to save the real culprits due to relationship.
9. ' P.Ws. Abdul Khaliq Dad and his wife Mst. Zalikha deposed against me in order to save their skin from this murder. In fact they remained in police custody in this case for some time. Other P.Ws deposed falsely due to friendly terms/relationship with the complainant."
10. ' Learned counsel for the petitioner has raised the following contentions in support of this petition:--
(a) That as per prosecution story contained in the F.I.R. Mst. Majeedan, widow of the deceased and her brother were held responsible for the murder of deceased, and that present petitioner had no motive to commit the crime.
(b) That the occurrence allegedly had taken place during the night in the courtyard of the house of deceased was unseen and the petitioner alongwith his co-accused was involved in the case to save the skin of Mst. Majeedan and her brothers.
(c) That the eye-witnesses namely Abdul Khaliq (P.W.2) and Mst. Zulekha (P.W.3) were taken into custody as suspects but later petitioner and his co-accused were made scapegoat 'of the blind murder.
(d) That it is in the evidence of first informant that dead body was recovered from a Nalla at some distance from the house of deceased and the circumstances under which after murder, the dead body was taken to that Nalla has not been explained which would seriously reflect upon the claim of Abdul Khaliq (P.W.2) and Mst. Zulekha (P.W.3) to have witnessed the occurrence and thus it can safely be inferred that it had taken place at the deserted Nalla.
(e) That in the light of motive set up by the prosecution that petitioner due to suspicion.Of development the illicit relations by the deceased with his sister, committed the murder of deceased with the help of his brother-in-law (Mushtaq) it was not a case of capital punishment.
11. ' We have heard the learned counsel at length and perused the record with his assistance.
12. Muhammad Sharif, the first informant was not an eye-witness of the occurrence as the deceased was done to death during the night in between 28th and 29th June, 1995 in his house in Chak No,50/DB, therefore, Mst Majidan, the wife of deceased and her brothers who compelling the deceased to shift his clinic to their Chak, were suspected by Muhammad Sharif father of deceased at the initial stage but during the investigation it transpired that the wife of the deceased and her brothers had no hand in the occurrence and murder was committed by the petitioner and Mushtaq, his brother-in-law. Attaullah, S.-I. (P.W.13) recorded the statement of Abdul Khaliq (P.W.2) and Mst. Zulekha (P.W.3) on 29-6-1995 at the spot who deposed that they while sleeping in the courtyard of their house adjacent to the house of the deceased, on hearing noise from the house of deceased woke up and saw from the wall of their house which was of the height of 2/3 feet that .Deceased was being caught hold of by Mushtaq Ahmed and Asim petitioner was inflicting blows to him with hatchet but they kept silent as they were extended threats of life by the accused. The deceased was then dragged by the accused to the Baithak of Manzoor Hussain situated at a short distance and later they threw the dead body in the watercourse. Muhammad Sharif (P.W.1) deposed that the dead body with chapped off throat, arm and head of the deceased was found lying in the watercourse and that Abdul Khaliq (P.W.2) and Mst. Zulekha (P.W.3) being residents of the house adjacent to the house of Irshad deceased in Chak No,520/DB were also interrogated as suspect. Muhammad Sharif further stated that since he nominated Abdul Majid and Munir Ahmed sons of Muhammad Latif and Mst. Majeedan, wife of deceased, alongwith Muhammad Asim petitioner in the F.I.R., therefore, they were also taken into custody by the police but later they were released. This witness stated that petitioner and his co-accused were arrested 5/6 days after the occurrence and that the information about the occurrence was not given to him by Abdul Khaliq (P.W.2) and Mst. Zulekha (P.W.3). Attaullah, Investigating Officer (P.W.13) stated that the dead body was found lying in a watercourse which was situated at a distance of about 21/2 acres from the place of occurrence and that the left arm of deceased was found chopped off and was tied with a Chaddar whereas his throat was cut but was intact with the body.
13. ' It was forcefully contended by the learned counsel that recovery of dead body from the watercourse would suggest that murder was committed at that place during the night and no one has seen the occurrence. This is correct that Abdul Khaliq (P.W.2) and Mst. Zulekha (P.W.3) despite having knowledge of the occurrence have not brought it to the notice of any person before registration of the case but they disclosed the occurrence before the Investigating Officer in presence of complainant immediately on his arrival at the spot after registration of case and the direct evidence furnished by them was found reliable. The above named two witnesses have stated that the reason of non-disclosure about the involvement of the petitioner and his co- accused before arrival of police was due to the threats extended to them, therefore, the mere fact that the witnesses did not pass on information to any person till arrival of police at the spot, would not be a sufficient circumstance to suggest that occurrence was unseen and the eye-witnesses were planted. The first informant being resident of another village, on receipt of information in the morning of 29-6-1995 reached at the house of his son and then immediately proceeded to the police station for lodging report, therefore, he being not aware of the detail of occurrence, was not supposed to supply the names of eye-witnesses in the F.I.R. And for the same reason he on the basis of suspicion named in-laws of the deceased with petitioner in the first information report. It is a matter of common sense that Abdul Khaliq (P.W.2) and Mst. Zulekha (P.W.3) being residents of the house adjacent to the house of deceased, must be attracted to the house of deceased on hearing the noise. Their presence at their home during the night of occurrence was not denied, therefore, they would be the most natural witnesses of occurrence. It was also not challenged that either it was a dark night or that no light was available in the house of deceased. The boundary wall between the house of deceased and P.Ws. Was hardly of the height of 2/3 feet and the witnesses while taking notice of abnormal situation in the house of deceased could easily identify the accused who being resident of the same place were not stranger to them. The witnesses were not only natural, but also independent as they had no enmity or grudge against the accused to make a false statement against them, therefore, the contention of the learned counsel that the witnesses with a view to save their own skin and the skin of wife of deceased and her brothers involved the petitioner and his co-accused has no substance. The evidence on record does not suggest that the witnesses were under any compulsion at the time of making statement before the Court, therefore, it does not appeal to mind that they would depose falsely and involve innocent person in an unseen occurrence. The nature of injuries would indicate the gravity of grudge of accused against the deceased which would be strong source in support of correctness of motive regarding suspicion of the petitioner of the illicit liaison of the deceased with his sister for committing his murder in a gruesome and brutal manner. Learned counsel for the petitioner has contended that as per report of. Chemical Examiner, the hatchet allegedly recovered from the petitioner was stained with human blood but Muhammad Ashraf (P.W..4) who witnessed the recovery of hatchet, has not stated that at the time of recovery, the hatchet was stained with blood therefore, the report of the Chemical Examiner would be of no consequence. The perusal of recovery memo. (Exh.PB) prepared by the Investigating Officer at the time of recovery of hatchet, would show that it was stained with blood and this fact stood established through the statement of Muhammad Iqbal Noon, I.O. (P.W.12), therefore, the omission of word "blood-stained" in the Statement of P.W.4 would have no adverse effect. The bloodstained earth was collected by Attaullah (P.W. 13) from the house of the deceased and also from the Baithak of Manzoor Hussain which was sent to the Chemical Examiner and was found stained with human blood, therefore, it was a strong proof of sustaining the injuries by the deceased at two places as stated by the eye- witnesses. The next contention of the learned counsel that since witnesses were not in a position to see the second part of the occurrence relating to the causing of injuries to the deceased in the Baithak of Manzoor Hussain and throwing the dead body in the Nalla, their evidence to the extent of first part of occurrence would also be not reliable and should be discarded, is also without any force. The house of the deceased as shown in the site plan was located at a short distance from the Baithak of Manzoor Hussain and further the place of recovery of dead body was close to the Baithak, therefore, the eye-witnesses being watchful, could conveniently see the occurrence from beginning to end. The detailed scrutiny of evidence would not lead to a describable lacuna in the prosecution evidence to suggest that either it was an unseen occurrence or it did not take place in the manner as stated by the eye-witnesses. The evidence of recovery of blood-stained earth from the house of deceased and the Baithak of Manzoor Hussain, the recovery of blood-stained hatchet from the petitioner, the motive relating to the illicit connection of the deceased with the sister of petitioner and the medical evidence, according to which the deceased was caused injuries on his neck, head and arms with sharp-edged weapons would provide sufficient corroboration to the petitioner arrived at by the trial Court and maintained by the High Court, would not be suffering from any defect of misappreciation of the evidence to be questioned before this Court. The learned counsel for the petitioner has not been able to satisfy us that either the charge was not successfully established or the conviction and sentence awarded to the petitioner by the trial Court and upheld by the High Court was not proper and legal. The contention of learned counsel for the petitioner that in view the motive set up by the prosecution, the petitioner committed the offence due to the family honour which would be a strong mitigation in his favour for lesser penalty, is also without any force. The petitioner instead of taking the life of the deceased on the pretext of saving the honour of his family, could restrain him from involving in such activities in a civilized manner and in any case mere raising suspicion by the petitioner of illicit relations of deceased with his sister, would not be a matter of family honour. The petitioner with pre-planning while trespassing into the house of deceased during the night, committed his murder in a brutal manner to satisfy his ego, therefore, it was not a case of lesser punishment.
14. ' For the foregoing reasons, we while maintaining the conviction and sentence of the petitioner, dismiss this petition and refuse the leave.