1993 P Cr (PLP)

(9)??????? A stab wound 4 c.m. x 1-1/2 c.m. posteriolateral surface of left lower abdomen 4 c.m. below the injury No.8. (10)????? An incised wound 1-1/2 c.m. x 1 c.m. on the front of upper left arm lower part. (11)????? An incised wound 3 cm. x 1-1/2 c.m. muscle deep over lateral surface of right leg. (12)????? An incised wound 1 cm. x 1/4 cm. skin deep over back of left chest 1/2 c.m. from mid line towards the left. (13)????? An incised wound 2 cm. x 1/2 cm. skin deep 5 cm. from injury No.12 towards right. Death was opined to have occurred due to excessive haemorrhage and shock resulting from collective effects of all the injuries. All the injuries were opined to have been caused by a sharp-edged weapon. Three of the injuries were individually as well as collectively sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was opined to be immediate-while the time between death and post-mortem was opined to be about 20 to 24 hours.

6. Umar Farooq (P.W.9) and Mst. Sakina Bibi (P.W.10) were examined at the trial for ocular account. Umar Farooq did not support the prosecution case, by saying that he had not witnessed the occurrence. He was allowed to be cross-examined by the State during which also, he insisted that he had not witnessed the murder of the deceased by the appellant. Actually, during cross-examination on behalf of the accused, he stated that even Mst. Sakina Bibi had not witnessed the occurrence as both of them had learnt about the murder while being in Chak No.76/J.B.

7. Mst. Sakina Bibi, mother of the deceased, who had lodged the F.I.R. while furnishing ocular account, repeated the facts given by her in the F.I.R. She also added that the appellant used to snatch the amount from the deceased which she used to receive from her husband. She also added that she had received visa to join her husband abroad, but the appellant was creating hurdles in her proceeding abroad. The statement made by her about snatching of the money and hurdles having been created by appellant in proceeding abroad of the deceased was confronted with her previous statement i.e. F.I.R., but she was not found to have given those facts therein. During cross?examination on behalf of the accused, she stated that on the day of occurrence her husband had gone to Bahawalpur and that now he was present outside the Court. According to her, the marriage of the deceased with the brother of the appellant was arranged by Subedar Khushi Muhammad, who was husband of her mother's sister and real maternal-uncle of her husband.

8. Abdul Ghaffar (P.W.5) and Saif Khan (P.W.6), who had attested the recovery. memo. pertaining to the blood-stained earth and pieces of door collected from the spot, turned hostile and denied to have witnessed the collection of blood-stained earth and wooden pieces. However, they did not deny that they had attested the recovery memos.

9. Abdul Karim (P.W.7) and Rashid Ahmad (P.W.9), who were examined to prove the recoveries of incriminating articles (blood-stained Chhuri, Drant, and blood-stained clothes of the appellant) at the instance of the appellant, did not support the prosecution case, by stating that no recoveries had been effected at the instance of the appellant in their presence. However, they did not deny that they had attested the recovery memos.

10. Muhammad Yusuf S.I., who had registered the case, had taken into possession blood-stained earth and pieces of broken door from the spot, had sent the dead body for post-mortem examination and had arrested the appellant on 9-10-1989, while appearing as P.W.11, deposed those facts. He also claimed that the appellant had got recovered the blood-stained clothes (shirt P.9, Shalwar P.10 and Bunian P.11) alongwith blood-stained Chhuri P.7 and blood-stained Drant P.9 on 11-10-1989, which were taken into possession by him vide memo. Exh.P.H. During cross-examination, he stated that the distance between the place where the murder was committed in the room and the place where the dead body was lying in the street was nine Karams. He denied the suggestion that none had witnessed the occurrence and that he had sent for Mst. Sakina Bibi from her house and thereafter registered the case, after recording her statement Exh.P.D. He denied the suggestion that it had come to his notice during investigation that the deceased was a lady of easy virtue and that she was done to death by the father of the accused on that account as her husband was abroad since 2/3 years. Statements of the remaining witnesses are more or less of a formal nature.

11. Reports Exhs.P.J., P.K. and P.L. from the office of the Chemical Examiner and reports Exhs.P.M. and P.N. from the office of the Serologist were also tendered in evidence. Exh.P.L. is the report from the Chemical Examiner about the swabs taken from the vagina of the deceased. According to the report, the swabs were not found stained with semen.????????

12. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. He took up the stance that he had been joined in the case `due to malice'. He did not adduce any evidence in defence and declined to make statement on oath.

13. I have gone through the record with the assistance of the learned counsel for the appellant and considered the contentions raised by learned counsel for the parties.

14. Ocular account has been deposed to in this case, by mother of the deceased, only. The other witness named in the F.I.R. to have witnessed the occurrence, in spite of being related to the deceased, resiled from his previous statement during the trial. Even the witnesses from the public examined at the trial to prove the recoveries of incriminating articles from the appellant, as well as blood-stained earth from the spot, refused to support the prosecution case. They were declared hostile and allowed to be cross-examined. Although they admitted their signatures and thumb-impressions on the memos of recoveries, yet they denied to have witnessed the recoveries, saying that their thumb ?impressions and signatures were obtained on blank papers. Nonetheless, the Investigating Officer during whose custody the appellant had got recovered incriminating articles, which included the weapon of offence and his own blood-stained clothes, stuck to the gun, and categorically stated that the appellant had got recovered incriminating articles from the kitchen of his house.

15. No doubt, the only eye-witness is closely related to the deceased and was not even a resident of the vicinity, but her statement cannot be struck down merely on that account as the attending circumstances lend sound support to her testimony. In that, the first aspect, is, that the appellant is real brother of husband of the deceased. The mother of the deceased would not have named him as the murderer of her daughter unless she has seen him doing so with her own eyes. The second and the most important aspect, is, that the occurrence had taken place in the house where both, i.e. the appellant and the deceased resided. The husband of the deceased was away. Even if the appellant had not been named in the F.I.R. and the occurrence had been reported as an un witnessed one, it would have been incumbent upon the appellant to have explained as to who had brutally done her sister-in-law to death. He did not furnish any explanation as to who had done that. The suggestion put on his behalf to the Investigating Officer, that actually the deceased was a lady of easy virtue and she was done to death on that account, by the father of her husband, was categorically denied by him. Nonetheless, if that was the position, the father could have at least appeared before the Investigating Officer and taken up that stance. There is no evidence that he did so. Any other member of the family, residing in the house could also have been examined to furnish explanation, as to in what manner the deceased was done to death. The lady was done to death with cruelty and in a brutal manner. The collection of piece of the door, which according to the complainant, was broken by the appellant to enter the room where the unfortunate lady had taken shelter, lends a speaking support to the testimony of the eye-witness account. Had Mst. Sakina not witnessed the appellant attacking the deceased, after breaking open the door and had she been called from her village to the place of occurrence, she would not have known that the door of the house was also broken in order to reach the deceased for inflicting injuries. The occurrence was reported by her mother within one hour, which could not have been done if she was not at the spot and had been called from her village. In the circumstances, I do not feel any cogent reason or justification to disbelieve the testimony of the complainant merely for being mother of the deceased.

16. The ocular account which finds support from the attending circumstances, and the medical evidence, also finds full support from the the instance of the appellant. The duty of Investigating Officer, only was to join some persons in the recovery proceedings. He could not have taken guarantees from the witnesses who had witnessed the recoveries of incriminating articles, to support the prosecution case at the trial. The said witnesses had duly attested the recovery memos. and thus had subscribed to the documentary evidence, pertaining to the recoveries of incriminating articles. In the circumstances, even the sole statement of the Investigating Officer who was not at all biased with the appellant, in any manner, possesses sufficient force to lend support to the ocular account. For all the reasons enumerated above, I do not find any merit in the appeal. The same is, therefore, dismissed. However, the sentence of fine of Rs.10,000 is reduced to Rs.5,000 (Rs. five thousand), while the direction to pay a sum of Rs.25,000 as compensation to the heirs of the deceased, is also reduced to Rs.5,000 (Rs. five thousand) as there is no evidence that the appellant had sufficient means. According to the record, he was a welder by profession. He would, thus not be rich enough to pay the amount of fine and the amount of compensation, with which he has been burdened. Apart from that, his brother is also to receive his share from the compensation, being heir of the deceased and he may not like to receive that. In default of payment of fine, he shall undergo R.I. for one year while in default of payment of compensation he will undergo R.I. for six months. The amount of fine, on recovery, shall also be paid as compensation to the heirs of the deceased. Benefit of the provisions of section 382-B, Cr.P.C. shall be extended to the appellant. N.H.Q./S-230/L????????????????????????????????????????????????????????????????????????????????? Order accordingly.