2006 PLP 292 (PLD)

MUHAMMAD NAWAZ ABBASI, J.

The petitioner, through the instant jail petition, has sought leave to appeal against the judgment, dated 8-4-2004 passed by the Lahore High Court whereby the appeal filed by the petitioner against the conviction and sentence of life imprisonment awarded to him by the trial Court under section 302(b), P.P.C. with a fine of Rs.20,000 to be paid to the legal heirs of deceased as compensation under section 544-A, Cr.P.C. and sentence of R.I. for 5 years with a fine of Rs.10,000 under section 452, P.P.C. or in default of payment of fine to suffer R.I. for six months, was dismissed with direction that both the sentences would run concurrently with benefit of section 382-B, Cr.P.C.

2. The brief facts in the background giving rise to this petition are that Muhammad Feroz, husband of Bashiran Bibi, deceased, lodged a report at the concerned police station stating therein that on 4-4-1999 Mst. Bashiran Bibi, restrained Sajid (petitioner) and Muhammad Sabir, his co-accused from visiting her house as they did not enjoy good reputation whereupon the accused felt insulted and exchanged abuses with the deceased. The complainant, on the next day of, the incident, visited the father of petitioner at his house and lodged protest to him regarding the incident. Later on the same day when the complainant along with Alam Ali and Allah Yar, P.Ws., was sitting in the courtyard of his house when Mst. Bashiran Bibi on the knock at the door, opened the door, Sajid, armed with pistol and Sabin Ali, empty-handed, entered into the house. Sabir Ali raised Lalkara of teaching lesson to Mst. Bashiran Bibi for abusing them whereupon Sajid fired two successive shots at her and she sustaining the injuries on her right flank and left elbow fell on the ground. The complainant with the help of P.Ws., took her to the hospital for medical aid but she succumbed to the injuries.

3. Talib Hussain S,-I./S.H.O. after recording the statement of complainant in the hospital and preparing the injury statement (Exh.P.A.) as well as the inquest report (Exh.P.B.) of the deceased, dispatched the dead body for post-mortem examination and thereafter during the spot inspection, took into possession blood-stained earth and one crime-empty from the courtyard of the house of complainant. The Investigating Officer on the arrest of petitioner, recovered pistol .30 bore along with two live bullets at his instance and after completion of the investigation, submitted the challan. The prosecution mainly placed reliance on the ocular account furnished by Muhammad Feroz (P.W.5) and Allah Yar (P.W.6) in addition to the motive and the medical evidence. The post-mortem examination of the deceased, conducted by lady doctor Shamim Akhtar (P.W.1), revealed the following injury on her body:-- "A fire-arm lacerated entrance wound 1 x 1 c.m. in the right posterior axillary line 29 c.m. below the shoulder bridge, directed leftward and forward, passed through and through from the chest cavity after damaging the lungs, heart and exited on the left outer part of breast causing exit wound of 1.5 x 1.5 c.m. after exit then touching the inner side of left arm at 2 places."

4. The petitioner in his statement under section 342, Cr.P.C. having denied the allegations pleaded false implication and in reply to the question that why the P.Ws. deposed against him he stated as under:-- "I have been falsely involved in this case due to enmity. The P.Ws. are related inter se as well as with the deceased. They have falsely deposed against me and my co-accused. I was declared innocent by the police. Mst. Bashiran deceased was a lady of easy virtues."

5. Learned counsel for the petitioner has contended that it was a blind murder which took place before the day-break in the dark and petitioner and his co-accused were substituted by changing the time of occurrence in the F.I.R. to make it a daylight occurrence which fact would be supported by the contents of digested food in the stomach of deceased. Learned counsel next contended that according to the prosecution version, the deceased was fired at from close distance but there was no blackening around the wound which would suggest that shot was fired from a reasonable distance and assailant was not identifiable. In nutshell the argument of the learned counsel was that the ocular account was in conflict to the medical evidence and in absence of any other independent corroborative evidence, it was not safe to place reliance on the ocular account of related and interested witnesses for conviction on the capital charge.

6. Learned counsel for State on the other hand, has vehemently contended that the occurrence having taken place in the courtyard of the house of deceased in the broad-daylight, was witnessed by the inmates of the house who are most natural witnesses and their deposition being free from any material contradiction or discrepancy was confidence-inspiring and alone would be sufficient to prove the charge.

7. The occurrence in the present case had taken place 7-30 a.m. on 5th of April, 1999 in the broad-daylight in the courtyard of the house of deceased and within one and a half hour, Talib Hussain, S.-I. recorded the statement of Muhammad Feroz (P.W.5) in District Headquarter Hospital, Pakpattan on the basis of which case was registered. The eye-witnesses being the inmates of the house, were most natural witnesses of the occurrence and notwithstanding their relationship with the deceased, they having no enmity or malice against the petitioner, were quite independent and their deposition has been found quite natural and truthful, therefore, notwithstanding the minor discrepancies and contradictions in the prosecution evidence, the credibility of the testimony of the eye-witnesses duly corroborated by the medical evidence, motive and attending circumstances would be of unimpeachable character, therefore, the contention of learned counsel that digested food in the stomach of deceased would suggest the time of occurrence much before the day break has no substance as the people in the village normally take their breakfast early in the morning and process of digestion is immediately started, therefore, digested food in the stomach of deceased would not be suggestive of the happening of the incident before the deceased had taken her breakfast. The contention of the learned counsel that the absence of blackening around the injuries would indicate that shot was fired from a reasonable distance and the assailant would not be identifiable, also has no substance. The eye-witnesses were not expected to measure the exact distance and in that any discrepancy in describing the distance, would be of no significant to doubt their credibility. We having heard the learned counsel for the parties and perused the record with their assistance have not been able to find out any misreading or non-reading of evidence or material defect in the concurrent finding of the two Courts, qua the guilt of the petitioner to interfere in the matter.

8. In the light of foregoing discussion we find no substance in this petition and the same is accordingly, dismissed. Leave is refused. N.H.Q./S-6/S Leave to appeal refused.