2008 PLP 1397 (YLR)

RUSTAM ALI MALIK, J.--Through this judgment we intend to dispose of Criminal Appeal No. 984 of 1999 as well as Murder Reference No. 419 of 1999, both arising out of the judgment dated 21-9-1999, passed by the learned sessions Judge, Bhakkar, whereby he had convicted Ghulam Abbas appellant under section 302(b), P.P.C. and had sentenced him to death. The accused/appellant was also directed to pay an amount of Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. and in case of default in payment of fine, to undergo R.I. for one year.

2. The case .against the accused/ appellant is based on F.I.R. No. 28/98 registered in Police Station Haiderabad District Bhakkar. The formal F.I.R. Exh.PC/1 was registered on the basis of statement Exh.PC of Ghulam Hussain, complainant, a resident to Basti Islamabad, wherein he had stated that he is a cultivator and that his father namely Khuda Bakhsh had died a' year ago. In the haveli of the house his mother Mst. Janatan Bibi and his step-brother Ghulam Abbas were residing. His mother was having two rooms in the haveli towards the north side while step-brother Ghulam Abbas was having two rooms, one shop and a baithak towards western side. Ghulam Abbas wanted to evict his mother Mst. Jantan Bibi from the haveli and as such used to quarrel with her frequently. A day before the occurrence there was a quarrel between his mother and Ghulam Abbas. On the day of occurrence i.e. on 4-5-1998 around 11-30 a.m., the complainant along with Abdul Ghafoor came to Ghulam Abbas in the haveli and asked him as to why he was teasing his mother and forbade him strictly from doing so. As soon as they stopped talking to him, Ghulam Abbas picked up an iron wahola from the haveli and gave a blow with the same on the head of Mst. Jantan Bibi towards the backside on the neck and Mst. Jantan Bibi fell down with her face upwards. Then Ghulam Abbas gave 2/3 other blows with the wahola on her person. The complainant with the help of Abdul Ghafoor tried to catch hold of Ghulam Abbas and whereupon Ghulam Abbas raised Lalkara that if they will come near he will kill them while waiving the wahola he then ran away towards the north. Before they i.e. the eye-witnesses reached near Mst. Jantan Bibi, she had expired. The occurrence was witnessed by the complainant as well as by Abdul Ghafoor P.W.

3. In his statement before the Investigating Officer, the complainant also stated that Ghulam Abbas accused wanted to evict Mst. Jantan Bibi from the haveli in order to occupy the same. On account of the said reason, he had killed her.

4. After the investigation, the challan was submitted against the accused and the case was sent up to the Court of Session for trial.

5. The accused was formally charged by the learned Sessions Judge, Bhakkar on 16-9-1998 under section 302, P.P.C. and to which he pleaded not guilty and the prosecution was thus asked to produce its evidence.

6. In this case the prosecution has examined as many as 8 P. Ws including P.W.7 Saleem Ullah Khan, S.-I, who on 4-5-1998 had recorded the statement Exh.PC of the complainant and had subsequently sent the same to the police station for registration of the case. After recording the statement of the complainant he had proceeded to the spot and had prepared the injury statement as well as inquest report. He despatched the dead body of the deceased lady for post-mortem examination and got prepared the site plan of the place of occurrence from the Draftsman. He also took other formal steps in connection with the investigation of the case such as collection of blood-stained earth from the spot and taking into possession the last-worn clothes of the deceased produced before him by the constable after the post-mortem examination. On 11-5-1998 he arrested Ghulam Abbas accused. On 15-5-1998 the accused while in custody made a disclosure and then got recovered wahola (P.10) which was taken into possession by the Investigating Officer vide memo. Exh.PE.

7. P.W.8 Dr. Arusa Khan, who on 4-5-1998 had conducted the post-mortem examination on the dead body of the deceased and had found 5 injuries on her person. In her opinion, injuries Nos. 1 and 2 had caused devastating brain damage and death had occurred due to brain damage and haemorrhage. According to her, both the said injuries were ante-mortem and were sufficient to cause death in ordinary course of nature. The probable time which had elapsed between injuries and death was instantaneous (after the injuries to the brain were caused) while time between death and' post-mortem examination was within 12 hours. Exh. PI is the post-mortem report while Exh. PI/1 and Exh. PI/2 care the diagrams of injuries.

8. The eye-witness account in the case is furnished by P.W.-5 Ghulam Hussain, complainant, who is the real son of the deceased as well as by P.W. Abdul Ghafoor and both of whom deposed on the same lines as indicated in the F.I.R. Both of them also deposed about the motive.

9. P.W. 6 is also a witness of recovery of wahola (P.10) which was effected at the instance of the accused on 15-5-1998 and which was taken into possession by the Investigating Officer vide Memo. Exh.PG. The Learned Prosecutor closed the prosecution evidence on 11-6-1999, after tendering in evidence the report of Chemical Examiner Exh.PJ and that of the 'Serologist Exh. PK.

10. The statement of the accused/appellant was recorded on 23-6-1999 under section 342, Cr.P.C. and wherein he denied all the incriminating circumstances. In his statement under section 342, Cr.P.C, he claimed that it was he who was looking after his step-mother Mst. Jantan Bibi while Ghulam Hussain complainant was having strained relations with his mother and .that she was not willing to give her land to him i.e. the complainant. He also stated that Ghulam Abbas tried his best to persuade the deceased for transferring her property to him but she was reluctant and due to the said reason Ghulam Hussain P.W. had a grudge towards her. He took the plea that on the day of alleged occurrence he was present at his khahlwara, to look after his crop and that early in the morning on the said day, he was-arrested by the police and was taken to the dera of one Akhtar Qasim, Advocate, who is closely related to Ghulam Hussain P.W. and from there he was taken to Police Station Haiderabad. He further took the plea that the complainant party with the help of the said Akhtar Qasim, Advocate, and having connived with the police, had involved him in this false case. He too the plea that Akhtar Qasim, Advocate, was inimical towards him because there was criminal litigation between him and Akhtar Qasim, Advocate, and in order to grab the property of Mst. Jantan Bibi deceased as well as the haveli, Ghulam Hussain P.W. with the help of Akhtar Qasim, Advocate, had involved him in this false case and that actually Ghulam Hussain P.W. was responsible for the murder of his mother Mst. Jantan Bibi. The accused did not make statement on Oath under section 340 (2) Cr.P.C. However on 3-7-1999 he tendered in his defence evidence the documents Exh. DE to Exh. PK and closed the defence evidence.

10. On the conclusion of trial, the learned trial Court convicted and sentenced the accused/appellant as aforesaid. Aggrieved of the impugned judgment the accused/appellant has come up in appeal while the learned trial Court has sent a reference for confirmation of the sentence of death awarded by it to the accused appellant.

11. The learned counsel for the appellant has argued that both the eye-witnesses of occurrence are the chance witnesses and that they have not been able to establish their presence at the time of occurrence; that the complainant lived at Basti Islamabad and not in the haveli in which the deceased and the accused were living and that neither P.W.5 nor P.W.6 have been able to give any plausible reason or justification for their presence at the time of occurrence; that the medical evidence is in conflict with the ocular account and that only one injury is specifically, attributed to the accused/ appellant but the other injuries indicated in the post-mortem report remained unexplained. He has argued that the weapon of offence i.e. wahola was not sent to the Chemical Examiner nor there was any claim that it was blood-stained and hence the recovery of wahola (P.10) becomes inconsequential and cannot be considered as a corroborative piece of evidence; that the defence version of the accused is more probable than the prosecution version and the accused has produced sufficient documentary evidence in the form of the documents Exh.DC to Exh.DK and which clearly indicate that Malik Akhtar Qasim, Advocate, was inimical towards him i.e. the accused/appellant and which lends support to the version of the accused; that the complainant in connivance with the said Malik Akhtar Qasim, Advocate, had falsely implicated the accused in this case; that the prosecution has been unable to establish the existence of motive as it was actually the accused who was looking after the deceased while the complainant had never bothered about her and was living away in Basti Islamabad; that if the accused/appellant wanted to evict the deceased lady from the haveli in question and to get the possession of the said property, it was improbable that he will kill her and that too in the presence of P.W.5 and P.W. 6; that the prosecution has miserably failed to prove the charge against the accused/appellant beyond reasonable doubt and that the learned trial Court had wrongly convicted and sentenced the accused in this case; that the accused is entitled to benefit of doubt and hence to acquittal.

12. On the other hand the learned counsel for complainant has supported the judgment of the learned trial Court and has argued that there is sufficient evidence on record to warrant conviction and also the sentence awarded to the appellant in this case by the learned trial Court and that there are no mitigating circumstances as the accused who is the step-son of the deceased lady, had killed her brutally. Hence the appeal is liable to be dismissed and the 'sentence awarded to the accused/appellant by the learned trial Court be upheld.

13. We have carefully considered the arguments advanced from both sides. It is a case of prompt F.I.R. The occurrence had taken place on 4-5-1998 at 11-30 a.m. while the F.I.R. was lodged on the same day at 1-35 p.m. whereas the place of occurrence was situated at a distance of 15 kilometers from the police station. There is no force in the argument that there is inconsistency in the ocular account and the post-mortem report. According to the statement of P.W. 5 Ghulam Hussain, complainant, and P.W. 6 Abdul Ghafoor, the accused had given a blow with the wahola (P.10) to Mst. Jantan Bibi deceased on the backside of her neck and she had fallen down and thereafter Ghulam Abbas accused had given 2/3 more blows with the wahola (P.10). According to P.W.-8 Dr. Arusa Khan those were injuries Nos.1 and 2 which had caused devastating brain damage and haemorrhage and the said injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. The ocular account in this case is fully corroborated by the post-mortem report. It does not make any difference if the weapon of offence i.e. wahola (P.10) was not blood-stained or was not sent to the Chemical Examiner, because the recovery evidence is merely a corroborative piece of evidence. So far as the presence of P.W.-5 and P.W.-6 at the time of occurrence is concerned, it was a daylight occurrence and P.W.5 being real son of the deceased, his presence in the haveli (where his mother was living) could not be improbable. Even otherwise P.W.5 Ghulam Hussain and P.W. have given full justification for their presence at the time of occurrence by saying that the accused used to quarrel with Mst. Jantan Bibi frequently and they had gone there to ask him as to why he was teasing her.

14. It is a case of single accused and substitution is a rare phenomenon: It cannot be believed that the complainant would falsely involve the accused in this case and would let off the actual culprit only in order to grab the haveli.

15. After carefully considering the arguments from both sides and having perused the evidence on record, we are of the view that there is sufficient evidence on record to warrant conviction of the accused/appellant and that the defence version of the accused does not inspire confidence at all. Hence we are of the firm view that the learned trial Court has rightly convicted the accused/appellant under section 302(b), P.P.C: and has correctly sentenced him to death. Hence we uphold the conviction and sentence of death awarded to the accused/appellant by the learned trial Court. We also uphold the direction of the learned trial Court for payment by the accused the compensation amounting to Rs.50,000 to the legal heirs of the deceased under section 544-A., Cr.P.C. In case of default in payment of compensation, the accused/appellant will undergo S.I. for six months. In consequence the appeal filed by the accused/appellant is dismissed.

16. The sentence of death awarded to the accused/appellant by the learned trial Court is Confirmed.

17. Murder Reference (No.419 of 1999) is answered in the Affirmative. N.H.Q./G-55/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.