2002 PLP 1205 (SCMR)

TANVIR AHMED KHAN, J.‑‑‑Leave to appeal is sought against the judgment dated 11‑1‑2001 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby while dismissing Criminal Appeals Nos.344 of 1996 and 351 of 1996 filed by the petitioners, the sentences of death imposed upon the petitioners by the learned trial Court were maintained. The facts briefly narrated for the disposal of this petition are that F.I.R. No.59 of 1995 was recorded on 15‑2‑1995 at 9‑20 a.m. at the instance of one Talib Hussain (P.W.8) under sections 302/34/148/149, P.P.C. against the present petitioners and their co‑accused for causing the murder of his son, Mukhtar Ali, and causing injuries to his another son Mushtaq Ali and to himself as well at 8‑00 a.m. on the same day. It was the case of the complainant, who is a cultivator and resident of Chak No.63/J.B., that on the fateful day he alongwith his sons was present in his house when both the petitioners armed with Churris alongwith Ghulam Murtaza alias Pappu armed with a Churri; Muhammad Ali and Hidayat Ali respectively carrying a Hockey and a Sota in furtherance of their common object came to the main gate of his house raising Lalkaras and abusing that Mukhtar Ali be sent out the house as they had come there to teach him a lesson for having insulted them on the previous night. The complainant came out of his house to forbid them. Hidayat Ali and Muhammad Ali co -accused caught hold of him and started giving him fist blows whereupon Mukhtar Ali and Mushtaq Ali both sons of the complainant came out of the house through small gate in order to save their father. Thereupon, both the petitioners inflicted Churri blows at Mukhtar Ali. Ghulam Murtaza also gave a Chhuri blow under the clevical bone of Mukhtar Ali. Muhammad Ali also gave a hockey blow to Musthaq Ali P.W. hitting him at his head and left shoulder while Hidayat Ali gave Sota blows to Mushtaq Ali. Mukhtar Ali succumbed to the injuries at the spot. The motive according to the prosecution was that the petitioners Ghulam Ali and Muhammad Ashraf while standing in front of the main gate of the house of the complainant used to tease womenfolk of the village and Mukhtar Ali deceased forbade them. On the day preceding to the fateful occurrence i.e. on 14‑2‑1995, the petitioners urinated in front of the gate of the house of the complainant. Mukhtar Ali deceased had seen them and repriamanded them. After usual investigation the challan was submitted in the Court against all the five accused persons. The prosecution in order to establish its case examined as many as ten witnesses. When the accused were examined under section 342, Cr.P.C., all of them denied their presence at the spot and claimed that it was an unseen murder and they had been falsely roped in. The learned trial Court through its judgment dated 6‑5‑1996 convicted all the accused under section 302/34, P.P.C. for causing Qatl‑i -Amad of Mukhtar Ali. Since the motive, according to the trial Court, was assigned to the present petitioners, as such, they were sentenced to death with a compensation of Rs.30,000 each to be paid to the legal heirs of the deceased under section 544‑A, Cr.P.C. The co‑accused Ghulam Murtaza was sentenced to imprisonment for life and to pay a fine .of Rs.30,000 as compensation to be paid to the legal heirs of the deceased. Hidayat Ali co accused was convicted under section 337‑L(ii), P.P.C. and was sentenced, to two years‑ R.I. with a compensation of Rs.5,000 for causing injuries to Mushtaq Ali P.W. Muhammad Ali co‑accused was given the benefit of doubt and was acquitted of all the charges: Ghulam Ali petitioner challenged his conviction and sentence through Criminal Appeal No.351.of 1996 while Criminal Appeal No.344 of 1996 was filed by the other three convicted accused namely Muhammad Ashraf, Ghulam Murtaza and Hidayat Ali. A murder reference bearing No. 173 of 1996 was sent by the learned trial Court to the High Court under section 374, Cr.P.C. for confirmation or otherwise of the death sentences imposed upon the present petitioners. A learned Division Bench of the Lahore High Court, Lahore, vide impugned judgment dated 11‑1‑2001 quashed the conviction and sentence of Ghulam Murtaza co‑accused by extending him benefit of doubt. Hidayat Ali co‑accused, who was sentenced to two, years" R.I. for causing injuries to Mushtaq Ali under section 337‑L(ii), P.P.C., had already served out his sentence, as such, Criminal Appeal No.344 of 1996 to his extent was held infructuous. The plea of Ghulam Ali and Muhammad Ashraf, i.e. present petitioners, was rejected and their appeals were dismissed and their sentences of death awarded to them were confirmed. Hence this petition. We have considered the contention advanced by the learned counsel for the petitioners and have gone through the material placed on record minutely with his assistance. The prosecution examined ten witnesses to establish its case. The ocular account has been stated in its material particular by Talib Hussain and Mushtaq Ali, both injured, witnesses. The F.I.R. in this case was recorded with promptitude as the occurrence took place at 8‑00 a.m. while the F.I.R. was lodged at 9‑20 a.m. with specific role attributing to the petitioners. As reflected from the ocular account the occurrence had taken place in front of main gate of the house of the complainant. They are natural witnesses and their presence at the place of incident cannot be doubted in any manner. They were subjected to lengthy cross‑examination but the defence failed to shatter their testimony. The medical evidence is totally in line with the ocular version. The argument of the learned counsel for the petitioners that since Dr. Mian Tahir Javed (P.W.5), who conducted the autopsy, on the dead body of the deceased had stated that time between the death and the post‑mortem examination was about 8 to 10, hours, as such, the incident had taken place at dead at night, is devoid of any force. He failed to substantiate this plea and reading of the entire medical evidence demonstrates that the incident had taken place at 8‑00 a.m. as stated by the prosecution. We are fortified in this regard by the testimony of the same witness who had stated that on the same day he medically examined two injured witnesses namely Talib Hussain and Mushtaq Ali respectively at 4‑20 p.m. and 4‑25 p.m. Respecting their injuries he also gave the same duration of infliction i.e. about 8 to 10 hours. This account narrated by Dr. Mian Tahir Javed (P.W.5) completely shatters n by the defence. Apart from this the recovery of blood stained Churns respectively recovered from the petitioners have been established on record. In this view of the matter, keeping stock of unimpeachable ocular supported by medical evidence and recovery of incriminating weapons as well as motive go a long way in establishing the i case of the prosecution. Resultantly, taking stock of all the aforestated facts and features of the case, the present petition being without any merit is dismissed and leave is declined. N. H. Q./G‑110IS