2000 PLP 1531 (SCMR)

SYED DEEDAR HUSSAIN SHAH, J.

Appellant Khadim Hussain seeks leave to appeal against the judgment of the Lahore High Court, dated 3-6-1999, whereby his appeal was dismissed and the reference made by the learned Additional Sessions Judge, Khanewal, dated 17-9-1995 in Sessions Case No.10-S/1995 for confirmation of death was affirmed. Brief facts of the case are that Muhammad Bakhsh complainant resident of Killa No.22, informed the police that he had married Mst. Kausar Bibi about ten years ago and out of the wedlock one son Shahid lqbal and two daughters, Yasmeen Bibi and Rehana Bibi were born. About three years before the incident, his nephew, Khadim Hussain, the appellant, was married to Mst. Kaneez Bibi, sister-in-law of wife of the complainant which continued for about two years and thereafter differences cropped up between the couple which resulted into divorce. Khadim Hussain had suspicion that Mst. Kausar Bibi was responsible for the above divorce. About one week prior to the incident, Khadim Hussain had threatened Mst. Kausar Bibi that he would destroy her house as he had broken his home. On the night of the incident, Muhammad Ismail, a co-villager of Muhammad Bakhsh complainant and Muhammad Akram had come to the house of the complainant. All the three were sleeping on the cots outside the Haveli. Shahid Iqbal was also sleeping there whereas in the courtyard of the house Mst. Kausar Bibi and Yasmeen Bibi on one cot while Rehana Bibi on the other cot were sleeping when at about mid-night time Muhammad Bakhsh complainant and his two guests got up on hearing of a sound of jumping of person and running inside the Haveli. On the light of lantern which was burning in the coutryard, they witnessed Khadim Hussain petitioner holding a plastic container and standing between the cots of Kausar Bibi and Rehana Bibi and Yasmeen Bibi. The petitioner also sprinkled acid from the said container at Mst. Kausar Bibi, Rehana Bibi and Yasmeen Bibi. Haji Muhammad Bakhsh and his guests tried to apprehend Khadim Hussain who threatened them of dire consequences if they approached him and thereafter :e ran away. Muhammad Bakhsh and his guests attended the children and they found that the face, both hands, chest, right leg, head and left eye of Mst. Kausar Bibi were burnt. Similarly, the whole face and body of Rehana Bibi as well as the whole body, face and both eyes of Yasmeen Bibi were also burnt. The beddings and the cots underneath the bodies of Kausar Bibi and Rehana Bibi and Yasmeen had been burnt. On their cries, many persons from the locality arrived at the place of incident. After giving some local treatment to the injured persons, the complainant took them to Civil Hospital, Khanewal On 9-6-1994, Ashiq Hussain, A.S.-I., who was present at bus-stand, Khanewal recorded the statement of Muhammad Bakhsh and started investigation in the case. Ashiq Hussain prepared injury statement of Kausar Bibi, Yasmeen Bibi and Rehana Bibi. He also sent them to Civil Hospital, Khanewal for medical examination, treatment and certificate and proceeded to the place of occurrence where he recorded the statements of Haji Muhammad Ismail and Muhammad Akram. Ashiq Hussain also prepared site plan and took into possession the cots, Khais, Ghulli, Kameez, Shalwar underwear, and acid container and a lantern from the place of occurrence. The case of the prosecution is that on the light of lantern they had identified Khadim causing acid injuries as mentioned hereinabove. After finalization of the investigation, charge-sheet was filed before the Court. During trial the prosecution produced the evidence of Dr. Ghulam Hussain who examined Mst. Kausar Bibi. According to him he found as many as seven burnt wounds and further that the patient was semi-conscious and dehydrated. Pulse was 100 per minute and irregular. BP was 80/50 mm of Hg. The condition of the patient was not satisfactory i.e. serious. He also examined Rehana Bibi and Yasmeen Bibi and found burnt wounds on the whole face of Rehana Bibi and whole body was burnt by acid and on the person of Yasmeen he found that both eyes were burnt and unable to open, whole face and whole body was burnt. According to the doctor, the patient was dehydrated and semi-conscious and the injury might be dangerous to life. According to the doctor, the injuries were caused by acid burn. The injuries caused to Yasmeen had resulted into permanent disfigurement of the face and chest. Rehana expired due to injuries and his post-mortem was also conducted. According to the doctor, the cause of death of Rehena was renal failure and septicemic shock which were sufficient to cause death in the ordinary course of nature. The ocular evidence was furnished by Haji Muhammad Bakhsh, the complainant, Mst. Kausar Bibi, injured P.W. Ashiq Hussain who lodged the F.I.R., visited the scene of occurrence and secured the lantern on the light of which the petitioner was identified by the prosecution witnesses. At the conclusion of the trial, the learned trial Court convicted the petitioner for an offence punishable under sections 302-B, 452, 324, 337, P.P.C. and sentenced to death and to pay a fine of Rs.20,000 or in default of payment thereof to undergo R.I. for six months, vide judgment, dated 17-2-1995 passed by the learned Additional Sessions Judge, Khanewal. Mr. Muhammad Saleem Shaikh, learned counsel for the petitioner submits that the Courts below have not considered the evidence of Ahmad Bakhsh, D.W.1, who was real brother of the complainant. According to his evidence, Muhammad Bakhsh and P.Ws. were not present in his house and had not witnessed the incident and the case against the appellant is false, that this is a case of improbabilities and the prosecution has improved the case, that the injured witness Kausar Bibi was examined very late by the prosecution and there is no plausible explanation for her delayed examination and this is a case of no evidence and in the interest of justice leave may be granted. We have also heard Mr. Arshad Ali Chaudhry, learned counsel for the State, who submits that this is a case of single accused who is nominated in the F.I.R., that there are concurrent findings of the trial Court as well as the Appellate Court, that best natural available evidence has been produced by the prosecution, that no improvement in the case is borne out from the record, as pointed out by the learned counsel for the petitioner, the incident has taken place in the house of the complainant and the witnesses are natural and they identified the petitioner in the light of the lantern which was secured by Ashiq Hussain, Investigating Officer, when he inspected the scene of offence, and that Ahmad Bakhsh D. W. I, is real brother of the complainant in the case but is also real uncle of Khadim Hussain petitioner. Muhammad Bakhsh complainant and Ahmed Bakhsh were not having good relations with each other because of a litigation in respect of agricultural land, as such he was given up by the prosecution and defence examined him and both the learned Courts below have discussed the evidence of Ahmad Bakhsh which was rightly discarded by them, that the petitioner has committed the offence in a most cruel and brutal manner and therefore, the death sentence has rightly been awarded to him, that in view of the evidence so recorded and concurrent findings of the two Courts below, no exception can be taken to interfere with the above findings. We have minutely considered the arguments of the learned counsel for the parties and have gone through the material placed on record. The prosecution has produced very material and consistent and convincing evidence. The petitioner is real nephew of the complainant. There is no cogent reason that the complainant would falsely implicate his real nephew and spare the real culprit. According to the prosecution evidence, motive has also been rightly proved by the prosecution. There is plausible explanation as to delay in examination of Mst. Kausar Bibi that because of injuries she became unconscious and when she regained her consciousness her statement was recorded by the police. For other P. Ws. also no enmity has been suggested by the defense during cross-examination. The ocular evidence is supported by the recovery of the burnt articles from the place of occurrence by the police as well as the lantern. There is no misreading-or non-reading of the evidence recorded by the Courts below. Both the Courts below have considered the evidence of the prosecution as well as the defense and they have found the petitioner guilty for the offence for which he was charged. So far as the. sentence is concerned, the learned Lahore High Court in its impugned judgment has observed as follows:-- "We have also given our anxious consideration to the question of sentences to be ,passed against the appellant for the offence committed by him. In this context we are mindful of the fact that the appellant is a young man but at the same time it is undeniably true that he acted in a most callous, cruel and brutal manner. In quenching his thirst of vengeance against Mst. Kausar Bibi he did not even spare her minor daughters. According to the medical evidence available in this case the injuries caused to Mst. Kausar) Bibi resulted in her permanent disfigurement and also permanent, impairment of the functioning of her left ear. The acid burns caused by the appellant to Rehana Bibi deceased covered her whole face and entire body: Yasmeen Bibi also received acid burns covering her whole face and entire body. Her both eyes were also burnt. The said injuries had caused permanent disfigurement of her face and chest and had also permanently impaired the functioning of both her arms. Thus, the acid thrown by the appellant at his victims not only killed. an innocent child but also caused permanent disfigurement of his other victims' bodies and, if we may say so, souls. Their disfigured faces and bodies would remain a living testimony to the appellant's criminality for the rest of their lives. We have, therefore, failed to find any mitigating circumstance in this case warranting lesser sentence for the appellant. " We are also in full agreement with the abovementioned reasons. There are concurrent findings arrived at by the learned Courts below. We find no substance and merit in this-petition consequently leave to appeal is refused and the jail. petition is dismissed. M.B.A./K-20/S Petition dismissed.