2006 SCM R 1567 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has been directed against the judgment, dated 14-1-2000 passed by learned Judge in Chamber of the Lahore High Court, Lahore whereby the appeal filed by the present appellant against the conviction and sentence of life imprisonment awarded to him under section 302(b), P.P.C. with direction to pay compensation of Rs.10,000 under section 544-A, Cr.P.C. to the legal heirs of the deceased by the learned Sessions Judge, Sheikhupura was dismissed. Leave was granted in this appeal vide order, dated 1-11-2000 as under:-- "This petition for leave to appeal has been filed from jail by one Muhammad Akram. It has arisen from the judgment dated whereby the petitioners appeal against his conviction and sentence in the murder case of his sister-in-law (brother's wife Mst. Shamim Akhtar was dismissed). The occurrence had taken place on 7-7-1997 at about 8-00 p.m. and the F.I.R. was lodged at Police Station Saddar Muridke it was charged for committing murder of the deceased with a Bugda. The petitioner was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with benefit of section 382-B, Cr.P.C. and directed to pay a sum of Rs.10,000 as compensation to the legal heirs of the deceased. The complainant had resiled from his statement at the trial, the conviction of the petitioner rests on the ocular evidence furnished by Muhammad Bashir, father of the deceased, and recovery of the weapon of crime from his residential room which was stained with human blood according to the reports of the Chemical Examiner and the Serologist. In my opinion this is a case for condonation of delay and grant of leave to examine whether Muhammad Bashir was present on the spot and had witnessed the occurrence because, according to the F.I.R., he was attracted to the spot on hearing, alarm raised by the complainant. Besides, he had not taken any step either to rescue the deceased from the clutches of the petitioner or to apprehend the petitioner. The incriminating recovery also needs scrutiny inasmuch as the complainant and the petitioner had allegedly run away from the spot along with Bugda, he was arrested on 11-7-1997 and the weapon of crime was recovered on 16-7-1997 from an unlocked trunk lying in his room. "

2. The sole question requiring determination in the present case would be as to whether Muhammad Bashir, a single eye-witness had actually seen the occurrence or he being not resident of place of occurrence, subsequently on receiving the information of the murder of his daughter reached at the spot.

3. The occurrence in the present case, in which Mst. Shamim Bibi, wife of complainant, was murdered, had taken place at 8-00 a. m. on 7-7-1997 in the house of her husband situated in Mouza Tapialia Dost Muhammad and report was lodged by Muhammad Asghar, complainant (P.W.6) on the same day at 10-15 a.m. at Police Station Muridkay District Sheikhupura. The facts in the background as narrated in the F.I.R. are that appellant, real brother of Muhammad Asghar (complainant) was not happy with the marriage of complainant with Mst. Shamim and used to quarrel with her even on petty matters. On the fateful day, the appellant having picked up a quarrel with the deceased, inflicted successive blows with an iron Bugda on her, head and on her hue and cry, Muhammad Bashir, father of the deceased, who was already present in the house of her daughter, made an attempt to intervene but could not save the life of his daughter. The appellant after causing injuries to the deceased escaped from the place of occurrence with the weapon of offence and deceased in injured condition, was taken to the hospital but she succumbed to the injuries in the hospital. Ghulam Nabi, S.-I. during the spot inspection took into possession blood-stained earth from the place of occurrence and on arrest of the appellant recovered iron Bugda at his instance from his residential house. The post-mortem examination of Mst. Shamim Akhtar conducted by Dr. Muhammad Maqsood revealed eight injuries of following description, caused on different parts of her body with sharp-edged weapon. "(1) An oblique cut lacerated wound 8 x 3 c.m. x going deep with sharp angles present on left side of facet involving left ear pinna 3 c.m. from left eyebrow and c.m. from left ear lobule. (2) An oblique cut lacerated wound 4.5 x 1 c.m. x going deep with acute angles and contused edges present on top of head 16 c.m. above left ear 16 c.m. above the roots of nose. (3) A cut lacerated wound 305 x 1 c.m. x going deep with acute angles and contused edges present on right side of head 5 c.m. above right ear. (4) A cut lacerated wound 6 x 4 c.m. x going deep with acute angle and contused edges present on the back of right side of neck 4.5 c.m. above the root of neck. (5) A wound complex of 04 spindle shape incised wound in an area of 25 c.m. x 6 c.m. x going deep present on upper part of back of chest minimum size is 1.5 x I c.m. and maximum size is 2.5 x 2 c.m. There were multiple abrasions in this area, (6) A spindle shape incised wound 2 x 1 c.m. x going deep present on back of right forearm 5 c.m. below right elbow joint (defence wound). (7) An incised wound 3 x 112 c.m. on the palm of left hand 2 c.m. below left wrist joint. It was a defence wound. (8) A spindle shape incised wound 3 x l c.m. x going deep present on inner side of left knee joint. The cause of death was the result of cutting of second survical vertebra in the spinal cord. The prosecution in support of the charge, produced Asghar Ali, complainant (P.W.6), Muhammad Bashir (P. W.9) and also placed reliance on the medical evidence as well as recovery of weapon of offence. The complainant (P.W.6), however, resiled at the trial and did not support the prosecution but in the cross-examination by the prosecutor, he admitted to have thumb-marked the statement (Exh.P.B.) on the basis of which case was registered and that he took the deceased (Mst. Shamim) in injured condition to Mayo Hospital, Lahore but denied to have seen the occurrence as stated in the First Information Report and also denied the presence of Muhammad Bashir, father of deceased, at his house at the relevant time. The learned trial Judge having made detailed scrutiny of the evidence, observed that complainant has suppressed the truth to save the life of his real brother whereas the presence of Muhammad Bashir, (P.W.9), father of deceased at her house was quite natural and he was a truthful witness. The learned trial Judge having held the petitioner guilty of charge, convicted and sentenced him to imprisonment for life under section 302(b), P.P.C. with observation that occurrence was the result of sudden quarrel. The appeal filed by the petitioner was dismissed by the learned Judge in Chamber in the High Court with the finding that although Muhammad Asghar, (complainant), has not supported the prosecution but the charge against the appellant stood proved on the basis of evidence of Muhammad Bashir (P.W.9) duly supported by medical evidence and recovery of blood-stained Bugda.

4. The learned counsel for the appellant has challenged the presence of Muhammad Bashir, sole eye-witness of occurrence on the ground that his residence was not at a short distance from the house of his deceased daughter, therefore, his claim of having seen the occurrence was not correct which was also negated by the fact that in the F.I.R. it was mentioned that father of deceased reached at the scene of occurrence on the hue and cry raised by complainant and thus it stood established on record that assailant escaped from the place of occurrence before he reached at the spot. The learned counsel added that the recovery of weapon of offence (Bugda) after 5 days of the arrest of appellant from his residential house in presence of Muhammad Bashir (P.W.9), being doubtful was not reliable and motive was also shrouded in mystery. In nutshell the learned counsel argued that Muhammad Asghar, lodger of F.I.R. and the sole eye-witness of the occurrence having disowned the story of F.I.R., has not supported the prosecution -and in these circumstances uncorroborated statement of Muhammad Bashir who has not seen the actual occurrence, would be of no use and help to the prosecution to sustain the conviction.

5. Learned counsel for the State on the other hand, has argued that the occurrence took place in the broad-daylight in the house in which the appellant and the complainant with his deceased wife were living together in separate rooms. The presence of Muhammad Bashir, father of deceased in the house of her daughter being not unexpected, could not be doubted and further in the report lodged by the complainant immediately after the occurrence, he was shown as an eye-witness. Therefore, he was quite natural witness of the occurrence. The testimony of Muhammad Bashir being supported by the medical evidence, recovery of Bugda (weapon of offence) and the attending circumstances would alone be sufficient to sustain the conviction.

6. The appellant and complainant being real brothers were living in the same house in separate rooms with common courtyard. The complainant has admitted his signatures on the statement made by him before Ghulam Nabi, S.-I. which was converted into F.I.R. and according to Ghulam Nabi S.-I., he recorded the statement of, complainant, at Ada Monoabad, shortly after the occurrence, wherein the name of Muhammad Bashir as eye-witness of the occurrence was mentioned. In view thereof, the presence of Muhammad Bashir at the spot was established beyond doubt and mere fact that he was father of deceased or that was also witness of recovery of Bugda, would not be sufficient to call him a partisan or an interested witness to discard his evidence. Ghulam Nabi, S.-I. who recovered Bugda at the instance of appellant was as good a witness as any other person and even if the evidence of Muhammad Bashir to the extent of recovery of weapon of offence would have been excluded from consideration, the statement of S.-I. Ghulam Nabi would be sufficient to prove the recovery of blood-stained Bugda at the instance of appellant from his house. There is no cavil to the proposition that F.I.R. is not a substantive piece of evidence but in the present case the complaint lodged by Muhammad Asghar (P.W.6) under his thumb-impression was converted into F.I.R. wherein Muhammad Bashir was shown as an eye-witness of the occurrence taken place in the house of complainant and Muhammad Bashir deposed quite consistent with the facts mentioned therein therefore, the F.I.R. could be safely used as a source of independent corroboration. This is mentioned in the judgment of the High Court that Muhammad Asghar, prior to the making of statement before the trial Court also made a statement on oath under section 164, Cr.P.C. before the Additional Sessions Judge in which he nominated Muhammad Akram as an assailant but this statement under section 164, Cr.P.C. was neither tendered in evidence nor was recorded in presence of the appellant, therefore, could not be considered. The perusal of record and analysis of evidence would suggest that presence of Muhammad Bashir (P.W.9) at the place of occurrence as mentioned in the complaint lodged by Muhammad Asghar, real brother of petitioner, on the basis of which case was registered stood proved beyond doubt, therefore, there was no reason to disbelieve this most natural and truthful witness. In the light of unimpeachable character of testimony of Muhammad Bashir, duly supported by the medical evidence and recovery of weapon of offence (iron Bugda) and the circumstances of the case in totality the conclusion of evidence drawn by the trial Court and the High Court was unexceptional. The learned counsel for the appellant has not been able to convince us that the concurrent finding of the two Courts regarding the guilt of appellant was suffering from any misreading or non-reading of evidence or there was any other legal defect in the judgment of High Court calling for interference of this Court.

7. In the light of foregoing discussion, this appeal fails and same is accordingly dismissed. M.H./M-112/SC Appeal dismissed.