2007 PLP 1871 (YLR)

Ss.302(b) & 337-F(i)

Appreciation of evidence

Presence of complainant at the scene of occurrence being doubtful, his statement was not relied upon

Other eye-witness being resident of the house of occurrence was a natural witness and her presence at the spot was further stamped by the injuries received by her during the incident

Said witness had no enmity, grudge or ill-will against the accused to falsely implicate him in the case

Quality of evidence and not its quantity had to be seen by the Courts for recording conviction in criminal cases

Statement of the said solitary witness being of unimpeachable character inspired confidence without being corroborated by any other independent evidence, which had sufficiently explained the time, place and manner of occurrence

Mistaken identity of accused was impossible due to close relationship between the parties

Medical evidence was not in conflict with ocular testimony

Recovery of hatchet from the accused found to be stained with human blood had also served as a corroborative piece of evidence

Accused had caused number of injuries not only to the deceased, but also to the said eye-witness, which had proved him to be a desperate person

No mitigating circumstance was available calling for reduction in sentence of accused

Conviction and sentence of death of accused were affirmed in circumstances.

Ss.302(b) & 337-F(i)

Appreciation of evidence

Principles

Quality of evidence and not the quantity of evidence has to be seen by the Courts for recording conviction in criminal cases. Saleem Shad for the State (in Murder Reference No.449 of 2001). Mrs. Tahseen Irfan for the State (in Criminal Appeal No.337-J of 2001). JUDGMNET IJAZ AHMAD CHAUDHRY, J.--We through this consolidated judgment, intend to dispose of Murder Reference No.449 of 2001 sent by the learned trial Court seeking confirmation of death sentence awarded to Muhammad Shareef convict-accused and Criminal Appeal No.237-J of 2001, filed by Muhammad Shareef appellant together as both these matters have arisen from the same judgment dated 19-7-2001 delivered by the learned Additional Sessions Judge, Kasur whereby Muhammad Sharif accused-appellant has been convicted under section 302(b), P.P.C. and sentenced to death as Tazir for committing Qatal-e-Amd of Mst. Anwar Bibi deceased. Muhammad Shareef accused-appellant was also directed to pay Rs.50,000 to the heirs of the deceased by way of compensation under section 544-A, Cr:P.C. or in default of payment thereof to further undergo six months' S.-I. Muhammad Shareef appellant was further convicted under section 337-F(i), P.P.C. and sentenced to one years' R.I. along with direction to pay "Daman" in the sum of Rs.10,000 to Mst. Gulnaz Bibi alias Baby injured (P.W.1) or in default of payment thereof to undergo one months' S.-I.

2. Concisely the facts of the prosecution case set up in the F.I.R. (Exh.P.A.1) got lodged by Muhammad Shafique complainant (P.W.2) are that'he was resident of Chak No.7 Goher, Police Station Saddar, Pattoki, and cultivator by profession. On 11-11-1997 at 8-00 p.m., he along with Muhammad Saleem son of Hakim Ali proceeded to the house of his sister namely; Mst. Anwar Bibi deceased while boarding over a tractor-trolley and they slept in the 'Baithak' of his sister along with Muhammad Saleem and Jameel Ahmad alias Mithu the maternal nephew of the complainant, while the sister of the complainant slept in the other room along with her children. At about 3-00 a.m. Mst. Gulnaz Bibi alias Baby the maternal niece of the complainant raised hue and cry which attracted the complainant, Muhammad Saleem and Jameel Ahmed P.Ws. to the spot and the witnessed that Muhammad Shareef alias Kuki appellant was inflicting hatchet blows upon his sister Mst. Anwar Bibi deceased which landed on her neck and head and when Mst. Gulnaz Bibi tried to save her mother by catching hold of the hatchet of Shareef appellant, she also sustained injuries on her right arm and left side of her neck at the hands of the appellant, who fled away by hoisting the hatchet. Mst. Anwar Bibi sister of the succumbed to the injuries at the spot. The occurrence was witnessed by the complainant, Saleem and Jameel P.Ws.

3. The motive behind the occurrence was alleged to be that Jameel Ahmad son of the deceased had been married with the daughter of Shareef appellant but she was divorced by Jameel Ahmed and as such the sister of the complainant was murdered by Shareef appellant. Leaving the dead body of Mst. Anwar Bibi deceased under the guard of Muhammad Jameel alias Mithu, the complainant proceeded to report the matter to the police but he met Nazir Ahmad Khan, S.-I. (P.W.10), near the Railway Crossing Landa and made statement (Exh.P.A.) before him in respect of the president incident of 7-50 a.m. on 12-11-1997, on the basis of which formal F.I.R. No.350 (Exh.P.A./1) was subsequently drafted by Muhammad Hussain, H.C. (P.W.8) at Police Station Saddar, Pattoki at 8-20 a.m. on 12-11-1997 in respect of offence under section 302, P.P.C.

4. The investigation of the case was conducted by Nazir Ahmad Khan (P.W.10), and during the investigation, the dead body of the deceased was inspected, injury statement and inquest, reports were prepared, statements of the witnesses under section 161, Cr.P.C. were recorded, the place of occurrence was inspected, blood-stained earth was secured, rough site-plan of the. place of occurrence was prepared, the dead body of the deceased was sent to the mortuary for autopsy, the last-worn clothes of the deceased were received, a formal site-plan of the place of occurrence was got prepared, the appellant was arrested on 21-11-1997, recovery of hatchet (P.1) from the appellants' possession was effected and after completion of the investigation report under section 173, Cr.P.C. was submitted in the Court.

5. The learned trial Court after supplying copies of the documents required under section 265-C, Cr.P.C,, to the appellant framed the charged against him on 7-9-1999, under sections 302/337-A(i)/ 337-F(i), P.P.C. to which he pleaded not guilty and claimed to be tried.

6. The prosecution in order to prove the guilt of the appellant produced as many as ten witnesses. The ocular account of the incident in question was furnished by Muhammad Shafique complainant (P.W.2) and Mst. Gulnaz alias Baby injured (P.W.1) was also deposed about the motive while the medical evidence was provided through the statements of Dr. Afzal Bashir (P.W.6) and Lady Dr. Rukhshinda Ahsan (P.W.9). The investigation of this case was conducted by Nazir Ahmad Khan, S.-I. (P.W.10), who had stated about the various steps taken by him during the investigation of this case. The other witnesses are of ` formal nature. . "The P.Ws. are inter se related with the complainant as well as deceased. The P.Ws. have deposed against me falsely. The real facts of the case are that at the time of occurrence, I was present at Lahore in the house of my real sister. I was involved in this case due to the reason that niece of the complainant namely: Gulnaz and who is real daughter of my late brother and illicit relations with Kheli Arain and I informed the complainant about this fact and asked him to forbid Gulnaz from her illicit relations but the complainant felt it ill and abused me and threatened me of the dire consequences. In fact, some unknown persons had committed the murder of Mst. Anwar Bibi, (deceased) in the darkness of the night. I am innocent." However, he had not opted to make statement under section 340(2), Cr.P.C. nor the produced by evidence in his defence.

8. The learned trial Court, after hearing the arguments of the learned counsel for the parties, had passed the impugned judgment of conviction and-sentence against the appellant as detailed in para. 1 ante. Hence, both these matter before this Court.

9. The learned counsel for the appellant contends that Mst. Gulnaz alias Baby (P.W.1) was not injured and some fictitious woman had been produced before the doctor for her medical examination from which is evident that Dr. Afzal Bashir (P.W.6) did not get affixed her thumb-impressions on the Medico-Legal Report (Exh.P.E.) that it has been admitted by P.W.6. Dr. Afzal Bashir, that Mst. Gulnaz alias Baby was in full senses; that her medical examination had been conducted at 12-45 p.m. on 12-11-1997 while the occurrence in the present case had taken place at 3-00 a.m.; that the complainant of the present case namely Muhammad Shafique (P.W.2) was resident of Chak No.8 while the occurrence had taken place at Chak No.7 and as such he was a chance witness who had not given any reason for his being present at the fateful time at the place of occurrence; that the post-mortem examination in the present case had been conducted by Lady Dr. Rukhshanda Ahsan (P.W.9), on 12-12-1997 at 2-00 p.m. and the probable time which elapsed between the death and post-mortem examination had been described as 6/8 hours; that on the other hand, the case of the prosecution is that the occurrence had taken place at 3-00 a.m. and post-mortem examination had been conducted after about 24 hours; that the medical evidence was in contradiction with the ocular account and there were two bruises as per injuries Nos.5 and 6 found by Lady Dr. Rukhshanda Ahsan (P.W.9) and the said injuries had not been explained by the ocular account that the recovery of hatchet was also effected through the close relatives of the deceased; that the eye-witnesses had not seen the occurrence and they were the chance witnesses; that the eye-witnesses had made false statements, who were not present at the spot and that the ocular account was not worthy of reliance being a concocted story. It has, thus, been canvassed by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond any reasonable doubt entitling him to acquittal by the Court.

10. On the contrary, the learned counsel for the State have vehemently opposed the appeal on the ground that Mst. Gulnaz alias Baby (P.W.1) though was real daughter of the deceased, yet she was also niece of the appellant; that heinous offence had been committed by the appellant; that the F.I.R., was got registered with promptitude; that no doubt both the eye-witnesses were close relative of the deceased but they had no motive to falsely. implicate the appellant in the present case by letting off the real culprit; that both the eye-witnesses and sufficiently explained their presence at the spot at the time of occurrence; that the eye-witnesses remained consistent on material points regarding the time, place of occurrence and the manner in which the occurrence had taken place; that the medical evidence also supported the prosecution version; that recovery of hatchet had also been effected from the appellant and that the prosecution had succeeded in proving the case against the appellant beyond any shadow of doubt, whose appeal may be dismissed.

11. We have heard the learned counsel for the parties and perused the record with due care and caution.

12. The occurrence in the presence case had taken place on 12-11-1997 at 3-00 a.m. in the house of Mst. Anwar Bibi deceased who was widow of Muhammad Hanif, brother of the appellant. She was residing in the house/place of occurrence with the other family members. The matter was reported to the police the same morning at 8-20 a.m. in which Muhammad Shafique complainant (P.W.2) claimed that on 11-11-1997 at 8-00 p.m. he along with Muhammad Saleem injured resident of Street Wakeelanwali opposite Raja Centre, Railway Road, Kasur' had come from Pattoki on a tractor-trolley to the house of his sister Mst. Anwar Bibi deceased and slept there: At about 3-00 a.m. the appellant while armed with hatchet arrived there and caused injuries to the deceased and Mst. Gulnaz alias Baby injured (P.W.1) daughter of the deceased and brother's daughter of the appellant.

13. To prove the ocular account the prosecution had produced Muhammad Shafique complainant (P.W.2) and Mst. Gulnaz alias Baby injured (P.W.1). Muhammad Shafique complainant was not resident of the place of incident and he had not given any special reason for his being present in the house of the deceased at the time of incident. It is also not expected from the appellant that he would choose the time for commission of the offence in the presence of Muhammad Shafique complainant (P.W.2) and one Saleem Gujjar. So after perusal of the statement of Muhammad Shafique complainant (P.W.2) and while finding that there is delay in conducting the post-mortem examination, the presence of Muhammad Shafique complainant (P.W.2) at the spot is found doubtful and his statement cannot be relied upon.

14. As against it, we cannot discard the statement of Mst. Gulnaz alias Baby injured (P.W.1) who was resident of the place of incident and was a natural witness. She had no enmity, grudge or ill-will to falsely implicate the appellant in the present case. The motive of the incident was stated to be that daughter of Muhammad Shareef appellant was married to Muhammad Jameel brother of Mst. Gulnaz alias Baby and son of Mst. Anwar Bibi deceased and she was divorced. This was grudge behind the commission of the crime by the appellant. After perusal of statement of Mst. Gulnaz alias Baby it is found that nothing could be gained by the defence to shatter her statement and also to prove that she was not an independent witness. She was resident of the same house and during night time her presence in the house cannot be doubted. As such her presence at the spot stood established and she was a natural witness. Her presence at the spot is further stamped by the injuries received by her during the incident and Medical Officer on 12-11-1997 at 12-45 p.m. had examined her three injuries were observed by the doctor out of which Injury No.1 was kept under observation while Injuries Nos.2 and 3 were declared as Ghair Jaifah Damiah. Injuries Nos.1 and 2 were caused with blunt-edged weapon while Injury No.3 was caused with sharp-edged weapon.

15. As far as the contention of the learned counsel for the appellant that Mst. Gulnaz alias Baby was not produced before the Doctor, but somebody else was produced and report of the Medical Officer was got procured is concerned, we have noticed that Dr. Afzal Bashir, M.O. appeared in the Court as P.W.6 and he was subjected to lengthy cross-examination but no mala fide or ill-will was brought on his part to issue medical certificate of a fictitious woman. On the other hand, Mst. Gulnaz alias Baby injured (P.W.1) claimed that she had been injured during the incident and receiving of the injuries by her with its locale had already been reported to the police vide F.I.R. which was registered in the morning at 8-20 a.m. about 6 hours before her medical examination and she was brought before the doctor by her maternal uncle Muhammad Shafique complainant (P.W.2). In such circumstances, we find that Mst. Gulnaz alias Baby had received injuries during the incident and this fact has been supported by the medical evidence. Moreover, she had no enmity, grudge or ill-will to falsely implicate the appellant in the present case as if there would have been any motive to falsely implicate the appellant, she could have easily widen the net by involving the other family members of Muhammad Shareef appellant in the present case as she had received three injuries while her mother Mst. Anwar Bibi deceased had received six injuries in total out of which injuries Nos.1 to 4 were caused by sharp-edged weapon and it was very easy for the witnesses to involve the other family members in the present case as well. So it seems that the appellant who was the sole accused in the present case had been involved as he had participated in the occurrence and had caused injuries not only to the deceased but also to Mst. Gulnaz alias Baby injured (P.W.1). No doubt the deceased was the mother of P.W.1, but at the same time the appellant was also close relative of the deceased as well as Mst. Gulnaz alias Baby injured and there were no chances of substitution of the appellant by letting off the culprits if the appellant had not participated in the occurrence in the manner as narrated by the prosecution.

16. We have no hesitation in holding that Mst. Gulnaz alias Baby has made true statement against the appellant, which inspires confidence. It has been repeatedly held by this Court and the august Supreme Court of Pakistan that not' the quantity, but the quality of evidence has to be seen by the Courts for recording conviction in criminal cases. The solitary statement of the Mst. Gulnaz alias Baby injured (P.W.1) whose presence at the spot was not at all doubtful and she had no ill-will against the appellant is sufficient to bring home guilt to the appellant beyond any shadow of doubt even without being corroborated by some independent of evidence. There is nothing on the record to discard the statement of Mst. Gulnaz alias Baby injured (P.W.1) and to declare her as an interested witness. She had faced the test of cross-examination successfully and the defence had failed to gain anything out of it for false implication of the appellant by letting off the real culprit. P.W. had sufficiently explained the time, place and the manner in which the occurrence had taken place and there is nothing on the record to discard her evidence, who was a natural witness being resident of the same house. In the present case the prosecution has stood on its own legs and there was no question of mis identity of the appellant being close relationship between the parties and P.W. had also come across the appellant closely for the rescue of her mother when she (P.W.1) also received the injuries. We do not find the medial evidence in conflict with the ocular account only for the reason the Injury No.1 of Mst. Gulnaz alias Baby (P.W.1) and injuries Nos.5 and 6 sustained by the deceased were with blunt weapon while the rest of the injuries were caused with sharp-edged weapon as the, appellant was the sole accused, who was alleged to have caused all the Injuries with hatchet, which from one side is a sharp-edged and the other edge is blunt. The possibility of causing injuries by the appellant from both the sides of the hatchet cannot be ruled out. So the prosecution' has been able to prove the ocular account by the prosecution of independent and o natural witness, whose evidence- is of unimpeachable character having could not be shattered during the, course of investigation.

17. So far as the recovery of hatchet (P.1). from the appellant's possession is concerned, it is noticed that the prosecution examined P.W.3 besides the Investigating Officer, but the defence failed to show any mala fide on the part of the P.Ws. to depose falsely against the appellant and plant recovery of hatchet, which according to the report of the Serologist was found to be stained with human blood. As such the recovery of hatchet from the appellant's possession is a corroborative piece of evidence.