1987 PLP 588 (SCMR)

Nemo for the State. Date of hearing: 10th January 1987. JAVID IQBAL, J.‑‑ hays petition for leave to appeal filed by Saeed Muhammad petitioner directed against the judgment of the Lahore High Court, Lahore whereby the conviction of the petitioner under section 302, P.P.C. as well as hence of death plus fine were maintained. The facts are that the petitioner alongwith Mst. Rabia Bibi his wife and Fateh Muhammad collateral were tried by the Additional Sessions Judge, Gujrat for offences under section 302/109/201/34, P.P.C. and vide his judgment, dated 31st May 1981 he acquitted Mst. Rabia Bibi and Fateh Muhammad but convicted Saee Muhammad petitioner under section 302, P.P.C. for the double murder of Mst. Sughra Bibi aged 28/30 years his deceased brother' wife and Mst. Khurshid Bibi aged 6 years his deceased brother's daughter, sentencing him to death on each count plus fine. In appeal his conviction under section 302, P.P.C. was maintained by a Division Bench of the Lahore High Court, Lahore vide its judgment, dated 18th February, 1985 and the death sentence awarded to him was confirmed. Tie fats are that on 4th September, 1979 at Mari Deegarwela at the pint era of the petitioner and his deceased brother Nazar Muhammad situate in village Kot Sattar Police Station Parianwali, District Gujrat the petitioner is stated to have committed the murders of Mst. Sighra Bibi and Mst. Khurshid Bibi with Toka while the occurrence was witnessed by Ahmad Sher P.W.7 brother of Mst. Sughra Bibi deceased, Salehoon P.W.8 cousin of Mst. Sughra Bibi deceased and Sultan Ali P.W.9 Behnoi of Mst. Sughra Bibi deceased. The F.I.R. was lodged by Ahmad Sher P.W. at 7 p.m. on the same day. The petitioner Saee Muhammad disappeared after the murder and could not be arrested until 10 days thereafter i.e. 14th September, 1979. At his instance was recovered human blood‑stained Toka which was taken into possession by the Police. The prosecution has produced three eye‑witnesses of the occurrence whose names have already been mentioned above. The motive for crime is that Nazar Muhammad deceased, brother of the present petitioner, who was husband of Mst. Sughra Bibi deceased and father of Mst. Khurshid Bibi deceased, had died about 10 days prior to the present occurrence. He left behind landed property to the extent of 16 Kanals which was to be inherited by his deceased wife and deceased daughter. The petitioner wanted to obtain the entire land left behind by his late brother to which Mst. Sughra Bibi deceased did not agree. It is in this background that the petitioner is stated to have committed the murders of his deceased brother's wife and his own niece in order to wipe out the entire family of his brother. According to the eye‑witnesses account, on the fateful day the three eye‑witnesses had gone to the Dera of the petitioner and his deceased brother for the condolence of the death of Nazar Muhammad deceased who had only died 10/12 days before. In the meantime Mst. Sughra Bibi deceased arrived there with a Gadwa to milk the buffalo. The petitioner is stated to have gone towards her and asked her to come into a room of the Dera. She followed him and shortly thereafter the eye‑witnesses heard the alarm. They rushed to the said room and found the petitioner inflicting Toka blows on the neck of Mst. Sughra Bibi deceased as he had felled her down on the ground. The petitioner warned the eye‑witnesses not to come near or otherwise they would meet the same fate. The petitioner chopped off the head of Mst. Sughra Bibi deceased within their view. He is said to have made the eye‑witnesses to run helter skelter out of fear and then ran out to the village with the Toka. After some time they saw the petitioner again arriving at the Dera while dragging Mst. Khurshid Bibi. He pressed her neck and throttled her to death and thereafter threw her dead body alongwith the dead body of Mst. Sughra Bibi. Then the petitioner ran away from the spot. The eye‑witnesses did not have the courage to approach the petitioner. The petitioner escaped and thereafter Ahmad Sher P.W. went to the police station to lodge the report. It may be pointed out that according to the medical evidence, of the dead body of Mst. Sughra Bibi the head had been chopped off and there was another incised wound on the back of left fore‑arm. The dead body was wearing black Chadar around loin and Phooldar shirt of lawn. So far as Mat. Khurshid Bibi deceased was concerned the dead body was wearing a Shalwar of deep santory colour and on her person were present a dark read contusion mark on the neck and a contusion in front of left side of neck. In his opinion she had died of throttling. At that time the doctor took two vaginal swabs each from both the dead bodies and sent them for chemical examination. The report of the chemical examiner is to the effect that both the swabs of the two females were found to be stained with semen. It may further be pointed out that the two dead bodies were found in a sewn gunny bags from Qadirabad link canal. Both the Courts below relied upon the ocular testimony corroborated by the recovery evidence and supported by the motive version as well as the medical evidence and had arrived at the conclusion that it was the petitioner who had committed the double murder in the instant case of his brother's wife and daughter in order to grab their land. Both the Courts below have also examined the aspect of the case as to why there was presence of semen on the vaginal swabs of both the deceased females in the instant case particularly when there was no evidence of rape having been committed on either of the two females. According to the trial Court a queer phenomenon with regard to the vaginal swabs had been introduced in this case which seemed to be the result of some bungling or error in the office of the Chemical Examiner Lahore, the reports of which were, dated 23rd October, 1979 and 17th November, 1979. The Additional Sessions Judge, therefore, attached no importance to the result pertaining to the vaginal swabs of the deceased persons. The learned Division Bench of the Lahore High Court, Lahore also examined this aspect of the case at the appellate stage and did not consider it to have any bearing on the facts of the present case. Before us it was argued by the learned counsel for the petitioner that the presence of semen on the vaginal swabs of both the deceased females fitted in with the defence version. We have likewise carefully examined this aspect. The defence version is based on the statement of the petitioner under section 342, Cr.P.C. which is to the effect that Mst: Sughra Bibi deceased used to go to the Dera to milk the buffalo but on the alleged day of occurrence she did not return to the village till late in the morning. Therefore, the petitioner went to the Dera from the village and found that both of them were lying dead there. The trunk of Mst. Sughra Bibi deceased was found lying headless and a blood‑stained Toka was also lying there. Thereafter the petitioner had stated that he did not go to the police station because the village of Ahmad Sher P.W. complainant was adjacent to the police station and he had apprehended danger from him. He, therefore, sent a message through a Moeen to the police station informing that the murders had taken place. We fail to see how the presence of semen on the swabs fits in with the aforesaid defence version. According to the petitioner he found the two women lying dead in his Dera on 4th September, 1979, but he did not go to lodge the report when his own kith and kin had been found murdered. He completely disappeared and was only arrested on 14th September, 1979. According to the prosecution the two dead bodies of the deceased were recovered from two gunny bags sewn together from Qadirabad link canal. The two dead bodies were wearing clothes according to the medical evidence and yet no semen stains had been found on their clothes. We are, therefore, of the view that the finding of semen on the swabs may have been due to the result of some kind of bungling or error in the office of the Chemical Examiner as the doctor might have sent the said swabs in the routine manner at the time when he had performed the post‑mortem examination, as it has been pointed out earlier, the reports of the Chemical Examiner bear dates as 23rd October, 1979 and 17th November, 1979. It was next argued that the petitioner had been acquitted of the charge under section 201, P.P.C. as the recovery of the dead bodies from the Qadirabad link canal was not made at his pointing out. Secondly recovery in the circumstances could not be considered as a corroborative piece of evidence. These arguments of the learned counsel are also without any substance because according to the version of Ahmad Sher P. W. the eye‑witnesses had run helter skelter at the time the petitioner had murdered the two deceased. Therefore, it is reasonably probable that when Ahmad Sher P.W. had gone to report the matter to the police there was no one to guard the dead bodies and that there was no other person than the petitioner who might have removed the dead bodies from the Dera for he certainly did not bother to inform the police about the murders of his sister‑in‑law and niece when he according to his own statement found them lying murdered at his Dera. It was next contended that if the petitioner had stated before the trial Court that he had found the dead bodies of the two females lying at his Dera he could not be burdened with the liability of having murdered the two deceased particularly when the eye‑witnesses who implicated him were closely related to the deceased and were interested and that furthermore they were merely chance witnesses who might have not been present on the spot. So far as this argument of the learned counsel is concerned it is also without any force. There is nothing on the record to show that the eye‑witnesses had any animosity as against the petitioner so as to falsely implicate him in the commission of the crime. Their mere relationship with the two deceased would not make them interested witnesses. According to them they had gone to the Dera in order to condole the death of Nazar Muhammad deceased i.e. brother of the present petitioner. Besides that two Courts below have examined the ocular testimony in the instant case and both had arrived at the conclusion that the ocular testimony was reliable and was further corroborated by the recovery evidence etc. In the light of the above discussion no case for re‑appraisal of evidence is made out. The result is that we do not find any substance in this petition which is accordingly dismissed. M.I. /S‑5/S Petition dismissed.