2017 PLP 185 (YLRN)

AFTAB AHMED GORAR, J.

The appellant has been convicted and sentenced as under :- (a) To undergo R.I. for five (5) years under Section 324, P.P.C. and to pay a fine of Rs.10,000/-, failing which six months' S.I. (b) To suffer R.I, for five (5) years under Section 337-D, P.P.C. and to pay "arsh", which shall be one third of the "diyat". In default of payment of cash and "diyat", to suffer six (6) months' S.I. (c) If fine, arsh and diyat are recovered, the same shall be paid to the lady injured as compensation. (d) All the sentences to run concurrently with benefit of section 382-B, Cr.P.C. 2 He has filed this appeal under section 410, Cr.P.C. to challenge the above-mentioned sentences passed by the learned Vth Additional Sessions Judge, District West Karachi vide judgment, dated 25.02.2016, convicting the appellant.

3. The case against the appellant was that on 21.06.2014, at about 9.00 a.m. he came at the house of his father-in-law/complainant Mehrab Gul and due to annoyance over matrimonial dispute stabbed his mother-in-law Mst. Abida Bibi wife of complainant in her stomach, who was shifted to Civil Hospital, where she undergone the surgery. Subsequently, on 24.6.2014 complainant reported the matter to police of Police Station Ittehad Town, Karachi West, which was record as Crime No.291/2014, under section 324, P.P.C. After that, the appellant was arrested and sent up for trial.

4. At trial, the prosecution examined PW-1 complainant Mehrab Gul, PW-2 injured Mst. Abida, PW-3 Mst. Rabia, PW-4 Munir Ahmed, PW-5 Dr. Qarar Ahmed Abbasi and PW-6 ASI Nazir Ahmed. Investigating Officer of the case. They produced the documents relevant to them. 5 The appellant in his statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence. He also did not opt to examine himself under section 340(2), Cr.P.C. or any witness in his defence.

6. The learned Counsel for the appellant contended that the FIR of this case was lodged by complainant after 3 days of the incident without offering any cogent explanation, so also statements under section 161, Cr.P.C. that the ocular account is based on the evidence of witnesses closely related to each other viz. husband, wife and daughter, hence the same being interest is not worthy of reliance; that per medical evidence only one stab injury was caused to injured Mst. Abida, which indicate that the accused was not intending to kill her, therefore, appellant was wrongly convicted under section 324, P.P.C.; that the crime weapon shown to be recovered from the appellant was sent to the Forensic Expert after considerable delay; that PWs Muhammad Iqbal, Bilal Khan and Syed Rehman, who were independent witnesses, were not examined by the prosecution during trial, therefore, the ocular account based on the evidence of related and interested witnesses was liable to be discarded. Lastly, the learned Counsel contended that there are material contradictions in the evidence of prosecution witnesses examined during trial which created reasonable doubt in the prosecution case, therefore, conviction awarded to the appellant is not sustainable and is liable to be set aside. In support of his contentions, the learned Counsel relied upon the cases reported as Muhammad Khan v. Moula Bakhsh (1998 SCMR 570), Sahib Gul v. Ziarat Gul (1976 SCMR 236), Faridullah Shah v. Syed Nawaz Shah @ Gul Khan (2010 PCr.LJ 1027 (Peshawar) Rahtas Khan v. The State (2010 SCMR 566), Khushdil and another v. The State (1971 SCMR 357) and Ali Sher and others v. The State (2008 SCMR 707).

7. Conversely, the learned APG contended that the prosecution witnesses, particularly the eye-witnesses, who are otherwise natural witnesses, examined during trial have fully supported the prosecution case; that medical evidence was also fully consistent with the ocular testimony and the learned trial Court has convicted the appellant after considering all material aspects of the case, therefore, the judgment of the trial Court does not call for interference.

8. I have gone through the judgment of the trial Court and carefully considered the above arguments of learned Counsel for the parties in the light of record.

9. The incident from the evidence on record appears to be result of a family dispute between the appellant and his in-laws, therefore, the eye-witness account based on the testimony of inmates of the house cannot be said to be interested for the simple reason that in an incident happening inside the house, which is outcome of a family dispute, the law does not insist for corroboration from independent and unimpeachable character. The contention of learned Counsel for the appellant that the ocular account is based on the evidence of interested and related witnesses, therefore, carries no weight. So far the delay in recording FIR and 161, Cr.P.C. statement of the P.Ws. is concerned suffice to say that in the event of an injury sustained by a family member putting his life in danger, the other inmates of the house would prefer to save her/him instead of first approaching the police, therefore, delay, if any, in reporting the matter to police does not appear to be fatal. Moreover, since the appellant/accused was named in the FIR delay in recording statement under section 161, Cr.P.C., which is not a substantive piece of evidence was also not of much importance. The ocular version which consists upon the evidence of victim/injured Mst. Abida and her daughter Mst. Rabia, the eye-witness of the incident, apart from being consistent also appears to be confidence-inspiring. It will not be out of context to reproduce hereunder the evidence of injured/victim Mst. Abida and her daughter Mst. Rabia, eye-witnesses of the incident. Mst. Abida: "This incident took place on 21st of the year 2014. It was around 10 to 12 days prior to the month of Ramazan. It was around 09.00 a.m. in the morning. At that time my husband, after offering Fajar prayers came home and found our daughter Anila Sick. As such, he took her to Civil Hospital for treatment. At around 9.00 a.m. someone knocked at our door. My younger daughter went to open it. My son-in-law Muhammad Israr came inside and asked for my husband. I informed him that he was not at home and had gone to Civil Hospital. I further told him that if he wanted to wait for my husband, he could do so. Whereupon he told me that he would not leave, unless and until he would kill any of us. Then he took out single-edged dagger (Chakoo) from his Chappals. Again says he took out Chakoo from his foot. Then he attacked me with single edged dagger on my stomach. Mst. Rabia: "The accused is my husband. I have two sons from the said wedlock. At present I am residing along with my parents since May, 2014. This incident took place on 21st day. I do not remember the exact month but it was the year 2014 about 10 days prior to the month of Ramzan. The accused Israr came at the house of my parents at around 9.00 a.m. He asked for my father. Whereupon, he was told that my father was not at home and had gone to Civil Hospital. My mother asked him to wait for my father till he returns. But he did not wait. He took out Chaku/Churri from his chappal and had hit to my mother. My mother fell down. Then the mohalla people came and caught hold of Israr. I took my mother to a private hospital, near my residence. I took her in rickshaw. There was advised to take her to Civil Hospital, as she needed to be operated upon." The witnesses despite lengthy cross-examination by the defence stood firm to their stance and nothing favourable to the appellant/accused seems to have been extracted from them. The medical evidence also appears to be fully corroborating the account, as Dr. Qarar Ahmed Abbasi, who examined injured Mst. Abida deposed that "injured had one injury stab wound 03 cm x 0.5 cm into cavity deep with query near umbilicus on abdomen. Moreover, the recovery of crime weapon viz blood-stained "Chhuri" which was recovered from the house of injured/victim on his pointation, was also fully proved at trial through the evidence of Investigating Officer, recovery mashir and positive chemical report brought on record.

10. The most important point in the instant case is, what was the animosity and/or motive for the in-laws of the appellant to implicate him falsely. The appellant in his statement under section 342, Cr.P.C. has not offered any explanation in this regard. The learned trial Court appears to have dealt all aspects of the case by recording reasonable findings.

11. The upshot of the above discussion is that the appellant has not been able to point out any illegality in the impugned judgment which otherwise appears to be based on correct and proper appraisal of evidence and other material on record. The facts and circumstances of the citations relied upon by learned Counsel for the appellant are distinguishable, therefore, the same are not helpful to the appellant.

12. In view of above facts and circumstances, the appeal in hand was found to be without substance/merit and was accordingly dismissed by short order dated 16.2.2017. Above are the reasons in support thereof. JK/M-39/Sindh Appeal dismissed.