2007 PLP 91 (MLD)

MUHAMMAD FARRUKH MAHMUD, J.

This judgment will dispose of Criminal Appeal No.323-J of 2001 filed by Muhammad Anwar, who was convicted and sentenced by the learned Additional Sessions Judge, Narowal, in case F.I.R. No.183, registered at Police Station Shah Gharib, on 10-9-1998, for offence under section 302, P.P.C., vide his judgment, dated 8-10-2001 as under:-- Death with compensation of Rs.50,000 or in default six months imprisonment under section 302(a), P.P.C. Murder Reference No. 708 of 2001 for confirmation or otherwise of death sentence of appellant shall also be disposed of through this single judgment.

2. Brief facts of the case as narrated in complaint Exh.PE by Muhammad Qasim/complainant (P.W.5) are that complainant's daughter Mst. Jamila Bibi was married with Muhammad Anwar (accused) and two sons were born out of the wedlock. Muhammad Anwar was serving in Army. He left the service and came back to his house. The relations between the spouses became strained and Mst. Jamila Bibi went to the house of his father/complainant. Muhammad Anwar extended threats that he would kill Mst. Jamila Bibi and other family members. Mst. Jamila Bibi filed a suit for dissolution of marriage, which annoyed Muhammad Anwar, who nursed grudge. On 10-9-1998 at about 12:10 Noon, while the complainant along with Khadim Hussain and Muhammad Ibrahim was sitting at Koulian Bus-stop, his wife Mst. Zubaida Bibi passed nearby them to Basic Health Centre, Dudho Chak to get medicine. Meanwhile, the complainant saw that Muhammad Anwar accused was also going towards Basic Health Centre on a cycle. On suspicion, the complainant along with Khadim Hussain and Muhammad Ibrahim pursued Muhammad Anwar and at a short distance they saw Mst. Zubaida Bibi lying on the ground and Muhammad Anwar was inflicting Chhurri blows on her body and Mst. Zubaida Bibi was raising hue and cry. The complainant and P.Ws. rushed towards Mst. Zubaida Bibi, Muhammad Anwar fled away by waving Chhurri. Mst. Zubaida Bibi succumbed to the injuries at the spot.

3. After registration of formal FIR., the investigation of the case was taken over by Abdul Qayyum, Inspector/S.H.O. He proceeded to the place of occurrence, took over the dead-body, prepared injury statement Exh.PG and inquest report Exh.PH. He took into possession bloodstained earth from the spot vide memo Exh.PA. On 28-9-1998 he arrested Muhammad Anwar-accused. While in custody, Muhammad Anwar led to the recovery of bloodstained Chhurri P-1 from his house, which was taken into possession vide memo Exh.PC. After completion of investigation, the accused was sent up to face trial.

4. At the trial, the prosecution in order to prove its case produced 12 witnesses in all. The prosecution after tendering in evidence the reports of Chemical Examiner Exh.PL & Exh.PM and that of Serologist Exh.PN & Exh.PO closed its case. The accused in his statement recorded under section 342, Cr.P.C. pleaded his innocence. He did not appear as witness under section 340(2), Cr.P.C. After conclusion of trial the appellant was convicted and sentenced as stated above.

5. After having read the entire prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and other relevant material available on record, the learned counsel for the appellant in support of this appeal submits that both the witnesses were related to the deceased and were chance witnesses; that the relations of the appellant were strained with Mst. Jamila Bibi and there was no occasion to take life of Mst. Zubaida Bibi; that both the witnesses were hostile towards the appellant because his behaviour with Mst. Jamila Bibi and for that reason they involved the appellant in an un-witnessed occurrence; that in case the witnesses would have been present at the spot then they would certainly try to save the life of Mst. Zubaida Bibi, especially when they were three in number and the appellant was alone; that the belated recovery of Chhurri would not enhance the case of the prosecution; and that the prosecution case is not free from doubts.

6. Conversely, the learned counsel appearing on behalf of the State submit that it is a day light occurrence; that both the witnesses have given consistent account of the occurrence; that no reason existed to substitute the real culprit; that the ocular account is fully supported by the medical evidence and corroborated by recovery of bloodstained Chhurri, which according to the report of Serologist was stained with human blood; and that the ocular account is further supported by the motive, which stood established. They support the judgment passed by the learned trial Court.

7. We have heard the learned counsel for the parties at length and gone through the record. During trial Muhammad Qasim-complainant, husband of the deceased, and Khadim Hussain, who is cousin of Muhammad Qasim, furnished the ocular account. Their testimony cannot be discarded merely on the basis of their relationship with the deceased. Both of them have given consistent account of the occurrence and despite very lengthy cross-examination they corroborated each other on almost all material points. Both the P.Ws. have stuck to the version narrated in the F.I.R. They stated during cross-examination that when Mst. Zubaida Bibi was seen by the P.Ws., the complainant asked his wife as to where she was going. In response thereto she replied that she was going to Basic Health Centre, Dudho to get medicine. The Health Centre was at a distance of 2-1/2/3 Acres from the Bus-stop. It was quite natural that when the P.Ws. saw Muhammad Anwar following Mst. Zubaida Bibi on a bicycle they got anxious and rushed towards the Health Centre. The presence of the P.Ws. at the Bus-stop also stands established. During cross-examination the complainant explained that he was a `Pherriwala' and used to sell his goods within the area of 1 to 1-1/2 Km and he had arrived at Koulian Bus-stop while doing his job. Similarly Khadim Hussain/P.W.2 during cross-examination stated that his agricultural land was situated near Koulian Bus-stop; therefore, he was present at the said Bus-stop. The learned counsel for the appellant could not point out any discrepancy of consequences between the statements of these P. Ws. (It may be noted here that the statement of Khadim Hussain P.W.2 was earlier recorded on 8-11-2000 but due to inadvertence or incompetency of the Prosecutor his statement was recorded only about the collection of bloodstained earth and medical Chit. Thereafter an application was moved on 8-11-2000 for recalling of Khadim Hussain and recording his statement about the occurrence. Said application was allowed vide order, dated 22-11-2000 and thus on 9-4-2001 Khadim Hussain was recalled and his statement about the occurrence was recorded. He was extensively cross-examined by the learned Defence Counsel). It was a broad day-light occurrence and there was no question of non-identification of the appellant as he was son-in-law of the complainant and was also known to Khadim Hussain, who was cousin of the complainant. No reason, whatsoever, existed to substitute the appellant for the real killer.

8. The statement of both the eyewitnesses are fully supported by the medical evidence, as according to Dr. Shabana Pervin (P.W.11), Mst. Zubaida Bibi received 11 injuries caused by sharp-edged weapon on her person. The Doctor also observed 10/11 corresponding holes on the shirt worn by the deceased. It is also noteworthy that the post-mortem was conducted on the date of occurrence within 4/5 hours of death.

9. The motive as set down in the F.I.R. was fully proved during trial and was not challenged. According to the learned counsel for the appellant, the appellant was annoyed with his wife Mst. Jamila Bibi and therefore, motive was against Mst. Jamila Bibi and not against the deceased. This argument has no force, as the annoyance of the appellant could not be confined to Mst. Jamila Bibi alone.

10. As far as the recovery of bloodstained Chhurri is concerned, statement of Faiz Hussain P.W.3 in this respect cannot be relied upon, as during cross-examination he stated that the police told him along with Muhammad Azam P.W. that they had effected recovery of Chhurri from the accused and they were recovery witnesses.

11. After going through the entire evidence we have concluded that the prosecution has proved its case against the appellant beyond doubt through ocular account, which is supported by the medical evidence and corroborated by the circumstantial evidence like post-mortem without delay and the motive.

12. Having come to this conclusion we have given our anxious thought whether any mitigating circumstance existed in favour of the appellant. We have noticed that the appellant caused 11 injuries on the person of the deceased, who was his mother-in-law and an old lady. In his defence plea he could not say a word rather levelled allegation of bad character on the deceased while no such question was asked from P.Ws. We are afraid that no mitigating circumstance exists in favour of the accused. Hence we dismiss this appeal and maintain the conviction of the appellant. The learned trial Court has wrongly convicted the appellant for offence under section 302(a), P.P.C. The learned trial Court failed to notice the provisions of section 304, P.P.C. The instant case was that of Tazir, attracting the provisions of section 302(b), P.P.C. Hence, we alter the conviction for offence under section 302(b), P.P.C. However, death sentence passed by the learned trial Court is maintained.

13. Murder Reference is answered in the affirmative. Death sentence is confirmed. H.B.T./M-511/L Appeal dismissed.