1985 PLP 745 (MLD)

Saeed Ahmad appellant was convicted under section 302, P.P.C. by the learned Additional Sessions Judge, Lahore, vide Judgment, dated 16-7-1980 and sentenced to suffer imprisonment for life plus a fine of Rs.5,000 or in default three years' R.1. He has come up in appeal against his conviction and sentence.

2. The prosecution case in brief is that on 6-2-1980, Muhammad Adam complainant P.W. 7 was present in front of his house in the street in Ward No. 7, Kahna Town. Muhammad Shafi P.W. 8 and Sultan Ahmad P.W. 9 were also present with him. At about 9-30 a.m. they heard noise coming out of the house of Saeed Ahmad alias Saeed Akbar accused-appellant. They rushed to that place and saw Saeed Ahmad accused inflicting Chhuri blows in hi, house on the person of his wife Mst. Balqees alias Sardaran. T-he accused inflicted numerous blows on the person of his wife. The witnesses tried to intervene but the accused ran away threatening them with Chhuri. Muhammad Aslam P.W. and his companions went near Mst. Balqees and found her dead, It was further stated in the F.I.R. that Saeed Ahmad appellant owed Rs.22,000 to Muhammad Afzal, a brother of Muhammad Aslam P.W. He was not able to pay back the said loan to Muhammad Afzal and used to ask and press his wife Mst. Balqees, to bring money from her parents so that he is able to pay back the loan to Muhammad Afzal. Leaving the dead body in the care of Sultan Ahmad and Muhammad Shafi P.Ws., the complainant Muhammad Afzal went towards the Police Station to lodge the F.I. R. However, he met Ali Muhammad S.I. in the way who 'recorded his statement Exh. P.A. and sent the same for registration of the case. Muhammad Yaseen Moharrir A.S.I. P.W. 1 on receipt of statement Exh. P. A., recorded the formal F. I. R. Exh. P.A/1. The police, after registration of the case, undertook investigation. The dead body of Mst. Balqees was found lying in the house of Saeed Ahmad Accused. The Investigating Officer prepared inquest report Exh. P.J. and injury statement Exh. P.H. with respect to the said dead body and sent the same for post-mortem examination which was conducted by Dr. Tahir Anees P.W. 10 on 7-2-1980, at 11-30 a.m. The said Medical Officer found sixteen incised and stab wounds on the lower front left chest, left upper abdomen left flank of abdomen, right front chest, right side of abdomen with intestines protruding out, on the left umbilicus region, on the right side of abdomen, right iliac region, left pubic region, left upper front thigh, left upper outer side of the thigh, left shin, left knee, and right lower back of chest. He also found an abrasion on the front of left knee. Injuries Nos. 1 to 16 had been caused by sharp-edged weapon while injury No. 17 was by blunt weapon. In the opinion of the Medical Officer, injuries Nos. 5 to 9 were sufficient to cause death in the ordinary course of nature. The accused was arrested on 6-2-1980. At that time he was found wearing blood-stained Jarsi P.1 and blood-stained Dhoti P.2. These were got removed by Ali Mohammed S.I. P.W. 11 from the person of Saeed Ahmad accused and taken in possession vide memo. Exh. P.B. in the presence of Rana Wali Muhammad P.W. 3 and Rehmat Ali (given up P.W.). On 10-2-1980, the accused led to the recovery of blood-stained Chhuri P. 3 which was taken in possession .vide memo. Exh. P.D. by Ali Muhammad S.I. P.W. 11 in the presence of Haji Bashir Ahmed P.W. 5 and Sher Muhammad (given up P.W.). The above articles were made in separate sealed parcels. Jarsi P. 1, Dhoti P. 2 and Chhuri P. 3 were found to be stained with human blood vide reports of Chemical Examiner Exh. P.L. and that of Serologist Exh. P.M. After completion of the investigation, the accused was challaned and sent up for trial.

3. The prosecution during the trial, examined 11 witnesses in all. Muhammad Aslam P.W. 7, Muhammad Shafi P.W. 8 and Sultan Ahmad P.W. 9 were examined as the eye-witnesses. 'they, however, did not support the prosecution and were. therefore, declared hostile. They were cross-examined by the Public Prosecutor. Muhammad Aslam P.W. 7 who had lodged the F.I.R. was duly confronted with his statement Exh. P.A. Dr. Tahir Anees P.W. 10 conducted post-mortem examination as given in detail above. Rana Wali Muhammad P.W. 3 witnessed the recovery of blood-stained clothes from the person of the accused and Haji. Bashir Ahmad P.W. 5 witnessed the recovery of blood-stained Chhuri P. 3 at the instance of the accused. Ali Muhammad S.I. P.W. 11 investigated the case. The evidence of rest of the witnesses was of formal nature. The accused when examined under section 342, Cr. P.C., denied the charge of murder. He denied the recoveries of blood-stained clothes and Chhuri and pleaded innocence. He further stated that he did not see the dead body of the deceased in his house. He attributed this case against him due to misunderstanding. The appellant did not produce any evidence in defence. The learned Additional Sessions Judge did not place any reliance on the eye-witnesses. He recorded conviction of the appellant placing reliance on the recovery of dead body from his house, recovery of his clothes and the recovery of Chhuri P. 3 at his instance. 4.1 have gone through the record of this case with the assistance of the learned counsel for the appellant. It is contended by the learned counsel chat the eye-witnesses did not support the prosecution case and as such, it could not be said that the guilt has been brought home to the accused. It is further contended that the motive has not been proved by the prosecution; that there is no evidence that the two blood-stained clothes belonged to the accused; and finally that Chhuri P. 3 was recovered from an open place accessible to all. It is therefore, argued that the appellant be acquitted of the charge. The learned counsel for the State has controverted these contentions.

5. I have considered the above arguments of the learned counsel for the appellant. It is correct that the three eye-witnesses were declared hostile because they did not support the prosecution during trial but it will be noted that Muhammad Aslam P.W. 7 was the complainant in this case which was registered on his statement Exh. P.A. vide formal F.I.R. Exh. P.A/1. Muhammad Aslam was duly confronted with his statement Exh. P.A. He admitted that this statement was signed by him though it was added by him that he signed the same at the instance of the police. I am not prepared to accept this part of his statement. Muhammad Aslam P.W. had absolutely no enmity with the accused. The occurrence took place at 9-20 a.m. and the statement Exh. P.A. was made by him at 10-15 a.m. The formal F.I.R. was recorded at 10-20 a.m. on the day of occurrence. The present appellant Saeed Ahmad is named as the assailant of his own wife. This statement, therefore, is a substantive piece of evidence against the accused. It not only contains the details of the murder but also the motive for which the accused killed his own wife. I am, therefore, of the view that though Muhammad Aslam did not support the prosecution during the trial but conviction of the appellant can be based on the F.I.R. Exh. P.A. which is a substantive piece of evidence in the facts and circumstances of this case. The prosecution case as given in F.I.R. Exh. P.A. is supported by the recovery of two blood-stained clothes Jarsi P. 1 and Dhoti P. 2 from the person of the accused who was arrested on the day of occurrence. These clothes were removed from his person and as such, there was no other proof required to establish the ownership of these clothes by the accused. Rana Wali Muhammad P.W. 3 is a Lambardar and he witnessed the recovery of these clothes from the accused. He had no enmity with the accused- nor any relationship with the complainant party. It is correct, that Rana Wali Muhammad appeared as a prosecution witness for recoveries in 3 or 4 other cases but this fact alone will not be enough to disbelieve him in the present case. The prosecution case as given in F.I.R. Exh. P.A. is also corroborated by the recovery of Chhuri P. 3 at the instance of the accused. It is correct that the Chhuri was got recovered from an open place accessable to others but it is in evidence that the said Chhuri was lying in a bush which was in the exclusive knowledge of the appellant. The recovery, therefore, cannot be disbelieved simply for the reason that it was made from an open place accessable to others. The conduct of the accused is also significant in the facts and circumstances of the case. The dead body was recovered from his house as is proved by the recovery of blood-stained earth vide memo. Exh. P.F. The inquest report Exh. P.J. also indicates that the dead body was found in the house of Saeed Ahmad accused. This fact was not challenged in the cross-examination on behalf of the accused. The accused pleaded that he had been implicated in this case on account of misunderstanding. There is nothing to show any circumstance of misunderstanding in the instant case. If the accused had not killed his own wife, he must have proceeded to lodge a report himself for the murder of his wife against some culprit. This was not done. The conduct of accused is also, therefore, a circumstance in support of the prosecution case.

6. In view of the above, I find no merits in this appeal which is accordingly dismissed. The conviction and sentence of the appellant is maintained. The fine, if recovered, will be paid to the heirs of the deceased as ordered by the learned trial Judge. The appellant was allowed bail by suspension of sentence by this Court. He shall be, taken in custody to stiffer the unexpired sentence. M.A.K. Appeal dismissed.