2006 SCMR 1221 (PLP)

ABDUL HAMEED DOGAR, J.

This petition is directed against judgment, dated 23-12-2004 passed by a learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No.149-J of 2000 filed by petitioners Muhammad Sarwar and Muhammad Tufail was dismissed and their conviction under section 302(b), P.P.C. and sentence of death for committing murder of Shah Muhammad and Muhammad Aslam with compensation of Rs.50,000 each to be paid to the legal heirs of deceased or in default to undergo 6 months S.I. awarded by the trial Court was maintained. Murder Reference No.373 of 2000 was answered in affirmative.

2. Precisely the case of prosecution as narrated by complainant Muhammad Yasin is that on 16-8-1998 at about 9-30 a.m. he, Khadim Hussain (P.W.4), deceased Muhammad Aslam his nephew and deceased Shah Muhammad went to the house of Wali Muhammad their cousin located in Basti Sohan. At about 9-45 a.m. deceased Muhammad Aslam and Shah Muhammad went out of the house of Wali Muhammad in order to go to their home while complainant and Khadim Hussain were present in the courtyard of the house of Wali Muhammad, they heard noise outside and saw petitioner Muhammad Sarwar armed with double-barrel gun raised Lalkara to teach a lesson to Muhammad Aslam for insult and fired at him hitting his chest, left arm, left thigh, right leg and right ribs who fell down. Deceased Shah Muhammad tried to rescue him whereupon petitioner Muhammad Tufail fired at him hitting on different parts of body who also fell down. Both of them succumbed to the injuries at the spot.

3. The motive behind the incident was stated to be that petitioner Muhammad Tufail was married to Mst. Haleema Bibi (laughter of Talib Hussain about 12/13 years ago. Petitioner Muhammad Tufail did not like his wife. Deceased Muhammad Aslam has refrained petitioner Muhammad Tufail from divorcing his wife and hot words were exchanged between them in front of the house of Wali Muhammad two days prior to the occurrence but the matter was settled by the respectable.

4. Investigation was taken over by Muhammad Hayat S.-I./S.H.O. (P.W.9) who inspected the place of occurrence, took dead bodies of deceased and prepared inquest report and sent the bodies for post-mortem. He also took into possession blood-stained earth from beneath the deceased bodies of Muhammad Aslam and Shah Muhammad. He also recovered 6 crime-empties from the place of occurrence. Nazir Ahmad Draftsman also prepared the sketch of the incident. .12 bore double-barrel gun along with 5 live cartridges was recovered from possession of petitioner Muhammad Sarwar whereas .12 bore single barrel gun along 5 live cartridges was recovered from petitioner Muhammad Tufail during investigation. 4-A. At trial prosecution examined 10 witnesses in all. Learned prosecutor tendered in evidence report of Chemical Examiner, Serologist and Forensic Science Laboratory.

5. Petitioners in their statements recorded under section 342, Cr.P.C. pleaded false implication. Muhammad Sarwar admitted the incident and while answering to question as to "why this case against you and why the P.Ws. deposed against you" replied as under:-- "I m innocent. Mst. Haleema Bibi is the wife of my brother Tufail. Aslam deceased had used to visit our house and developed illicit relations with Mst. Haleema wife of my brother Tufail. My brother Tufail had forbidden many times Aslam deceased but he did not stop from visiting her house. On the day of occurrence, my brother Tufail was not present in the house as he had gone outside for labour purposes when Shah Muhammad and Aslam deceased along with four/five Gundas came at our house in the absence of my brother Tufail and tried to abduct Mst. Haleeman Bibi and in order to save the prestige of our family as well as the abduction of Mst. Haleeman Bibi, I fired with my gun P.2 which hit Aslam and Shah Muhammad. I had not committed this act intentionally, but to save the honour of my family and abduction of Mst. Haleeman Bibi. The P. Ws. arc inter se related and are not residents of the same locality and they only deposed against me due to relationship with the deceased and grudge with us." They did not opt to record statement on oath as required under section 340(2), Cr.P.C., however, produced Jalal Din (D.W.1) in their defence. 6. conclusion of trial petitioners were convicted and sentenced as stated above. 7. have heard Syed Ali Hasan Gilani, learned counsel for the petitioner and Ch. Munir Sadiq, Advocate Supreme Court on behalf of State at length and have gone through the record and proceedings of the case in minute particulars.

8. Learned counsel appearing on behalf of petitioners contended that eye-witnesses are not residents of the locality and have been planted in this case. They in their statements have not disclosed any reason for their presence in the early hours of day as such their presence is doubtful. He next contended that Wali Muhammad who was cited as witness and his statement under section 161, Cr.P.C. was recorded was not examined which fact also shows that the incident has not taken place in the manner as has been stated in the case by prosecution. He further contended that eye-witness account does to confirm injuries over persons of the deceased. According to him, although petitioners took a defence plea yet the initial burden to prove the case lies upon the prosecution.

9. On the other side learned counsel appearing on behalf of State supported the impugned judgment and contended that question of mistaken identity does not arise in this case as the incident has taken place in a broad-daylight. The defence taken by petitioners is misconceived as the blood-stained earth was recovered from outside the house of Wali Muhammad and not from inside the house of petitioners, even Mst. Haleema Bibi was not examined by the petitioners in their defence in order to substantiate their stance.

10. We have given our anxious thought but do not agree with the learned counsel appearing on behalf of the petitioner mainly for the reasons that incident in this case has taken place outside the house of Wali Muhammad, therefore, the stance taken by petitioners is falsified and non-examination of Mst. Haleema Bibi in their defence is also vital. Therefore, theory put forth by petitioners that deceased had come to abduct Mst. Haleema Bibi has no force at all. Irrespective of above, ocular version given by eye-witnesses complainant Muhammad Yaseen and Khadim Hussain is fully corroborated by medical evidence. The empties recovered from the place of occurrence matched with the guns recovered from the petitioners and the positive report of Forensic Science Laboratory is sufficient to believe that fires have been made from said guns. Learned counsel has failed to point out any misreading, non-reading or non-appreciation of evidence in the impugned judgment. We also do not find any reason to interfere with the concurrent findings of the two Courts below, which are maintained.

11. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused. M.B.A./M-79/SC??????????????????????????????????????????????????????????????????????????????? Petition dismissed.