2003 PLP 2136 (YLR)

11. The fourth eye-witness P.W.4 Ramzan, husband of the deceased Mst. Maryam, deposed that on 30th October, 1993 he went to the house of his mother-in-law and accused Yousuf also came there and shook hands with him and P.W. Ibrahim. Mst. Maryam was cooking meals. The accused talked to Mst. Maryam and all of a sudden, took out a revolver from the fold of his trouser and fired at her. He wanted to reload the pistol on which Ibrahim tried to snatch it from him, but the accused scratched him on his cheek, however, the pistol was snatched by Mst. Khadija, wife of Ibrahim. The accused then escaped away, but he was apprehended by the people of Mohallah who had also beaten him and he had gone unconscious. A suggestion was given to him that during the period of five months, while Mst. Maryam remained in the house of accused Yousuf, the latter did not touch her. In this manner it was admitted that the deceased remained in the house of accused for five months. At the most it was suggested that the accused did not commit any unlawful act, but on this fact this witness showed lack of his knowledge.

12. P. W.5 Ahmed is a neighbour. He had found the ambulance in front of the house in which Mst. Maryam was being taken to hospital. He also sat in the ambulance and went to hospital where Mst. Maryam died after 15 minutes. Similarly, P.W.6 Qasim was going to his house when he saw the people

men and women, beating accused Yousuf who fell down and became unconscious. Police came there and took away the accused. The N.I.C. of accused and Rs.89 cash were also recovered from the accused in his presence. He runs a donkey -cart. In the cross-examination he admitted that Yousuf was lying injured at the place of incident.

13. The investigation was conducted by the then S.H.O. Muhammad Sadiq, but evidence was placed on record through C.W.1 Police Constable Azmat Shah to the effect that Muhammad Sadiq had been murdered by the terrorists. P.W.8 S.-I. Zulfiqar was formerly Roznamcha Moharrir and conversant with the handwriting and signature of S.H.O. Muhammad Sadiq. He saw the document such as F.I.R. and other papers and confirmed the signature of S. H.O. Muhammad Sadiq.

14. On the point of Qatl-i-Amd of Mst. Maryam Dr. Hamid Jillani, who had conducted autopsy deposed that he found the following surface injuries on the dead body of Mst. Maryam:-- (1) Entry wound 1 c.m. x 0.7 c.m. at the middle of the forehead with balckened inverted morgines. (2) Exit wound 1.2 c.m. x 1 c.m. from the right car just along the posterior morgine of the external additory metuous. (3) Bruce 3 c.m. x 2 c.m. redish on the supero lateral aspect of the right shoulder.

15. On internal examination he found fracture of frontal bone and a hole in it, which was a fire-arm injury and was also the cause of death of Mst. Maryam. His evidence fully supports the case of prosecution on the point of death of Mst. Maryam by causing fire-arm injuries to her.

16. As against the prosecution evidence the accused, in his statement on oath, explained that Mst. Maryam was his maternal cousin and after the death of her father she, alongwith her husband resided at the back street of their house, but since Ibrahim, the second husband of Khadija used to harass Mst. Maryam and her husband they shifted to another house. There was a quarrel between them on which husband of the deceased left the house and went to the house of his sister. After some time her mother, aunt and husband went to take her, but she refused. Report was lodged with police against the accused, but no action was taken. He sent Mst. Maryam to the house of her husband. Thereafter, he received telephone of Ibrahim that his aunt was sick, on this he went there. Ibrahim, on seeing him, abused him and took out pistol and fired upon him. He saved himself, but the bullet hit at the head of Mst. Maryam who was in the kitchen. He ran away, but the people of neighbour chased him and beat him. He went unconscious. He regained his senses in the hospital. The case was registered against him, but nothing was secured from his possession. He produced the certified copy of the judgment for the offence under section 13(d) of the Arms Ordinance.

17. He led defence and examined witnesses Ibrahim, Rasheed and Muhammad Irfan. Ibrahim stated that the accused was a man of good character. He wanted to say something about the earlier incident and not this occurrence, which was not relevant for the purpose of defence. The other defence witness namely Rasheed also spoke about the other case and clearly stated that he had no concern with the present case. Irfan has also given evidence about the previous occurrence and not the instant matter. In this way, no defence worth mentioning was led by the accused.

18. A thorough examination of the evidence of eye-witnesses would show that accused Yousuf was present at the place of incident and this fact has not been questioned. On the contrary, the trend of cross examination as also the statement of accused on oath straightaway admit his presence. It also stands admitted that the injury was caused to Mst. Maryam by a fire-arm which the witnesses often called pistol and revolver. The medical evidence has also supported their version that the fatal injury was caused by a fire-arm and the wound 'of entry was at the forehead of deceased Mst. Maryam. There are four eye-witnesses of the occurrence and they have by and large given a common version that appellant Yousuf made the fire and he wanted to repeat the same, but he was overpowered by P.W. Ibrahim and the pistol was snatched from him by complainant Khadija.

19. Learned counsel for appellant assailed the veracity of the witnesses on the ground that they belong to one and the same family and in order to save Ibrahim who, according to him, was the actual culprit, they involved Yousuf. As regards the relationship of the 'witnesses, the admitted position as already stated, is that complainant Khadija P.W.1 is wife of Ibrahim P.W.3, while Mst. Hawa Bai P.W.2 is sister of Khadija and mother of deceased Mst. Maryam. Appellant Yousuf's mother Fatima is sister of late Baboo Ismail, husband of Hawa Bai P.W.2. It has also come in evidence that earlier the hand of Mst. Maryam was demanded for Yousuf, but her parents declined. After marriage Mst. Maryam and Ramzan lived together, but after some time Ramzan left the house. It is said that he did so because he was frightened by Yousuf. No doubt, Ramzan has admitted that for some time he left the house as he was beaten by his wife Mst. Maryam, but the facts remains that accused Yousuf had been instrumental in holding control over Mst. Maryam although she was married to Ramzan and he kept her with him for a pretty long time. In his statement on oath the appellant has explained that she was kept in the house in the back lane, but in cross-examination question put to witness Ramzan gives out the actual picture wherein a suggestion was put to the effect that Yousuf did not touch Mst. Maryam as long she was with him. This is sufficient to support the motive as stated by the prosecution witnesses.

20. It would be significant to note that the entire prosecution story has, otherwise, been admitted by the appellant in one way or the other excepting the plea taken by the appellant that it was Ibrahim who fired from his pistol at the appellant which incidentally hit Mst. Maryam who was sitting in the kitchen preparing food. A contention was, however, raised by the learned counsel for the appellant that the examination-in-chief of complainant and the Medical officer was recorded in absence of the accused, therefore, in view of the law laid down in Muhammad Waqar v. The State (1991 PCr.LJ 197) evidence of these witnesses should be taken out of consideration. In this context it may be observed that the proceedings had wholly gone in presence of the Advocate of the accused and even in case of those two witnesses, further proceedings were adjourned and subsequently the entire evidence of these witnesses was recalled and reaffirmed in presence of the counsel and thereafter the counsel for the accused started the cross-examination. This irregularity was by itself slight in nature, but the trial Court had wisely taken steps to rectify the same. The evidence, therefore, cannot be brushed aside on this technical ground alone.

21. A contention was also raised about the crime weapon namely the pistol on the ground that the Investigation Officer who had recovered the same was not examined in the Court. Reliance was placed on Afzal Hussain v. The State 1989 PCr.LJ 471 wherein the evidence of the person who produced the Mashirnama being other than the Investigating Officer who had drawn the same, was not accepted. The facts in the instant case are altogether different. In the cited case no Mashir was examined by the prosecution, but instantly, both the witnesses of recovery namely: Ibrahim and Ramzan have been examined in the Court, therefore, the above-cited authority is not applicable to the instant case. It is a question apart that no material significance, as no crime empty has been secured from the place of incident. Instantly, even chemical examiner's report has not come on record, but it was rightly argued by Mr. Fazalur Rahman Awan, learned counsel for State that loss of one corroborative piece of evidence was not sufficient to dislodge the entire case of prosecution which was otherwise, in substance, proved through reliable evidence. I agree with him that this irregularity is negligible.

22. Learned counsel for appellant also contended that the case property viz. Blood stained earth etc. has not been produced in Court, but the evidence of P.W. Ramzan shows that the same were produced in Court. This contention, therefore, looses its force.

23. It was also argued that the F.I.R. was lodged with delay of about 4 and 1/2 hours. The Court may take notice of the events stated by the witnesses that in the first instance there was scuffle and the fire-arm was snatched from Yousuf and then on commotion Yousuf started running, but people of Mohallah stoned him and caused injuries to him. He was captured by the people of Mohallah and on the other hand ambulance was arranged and the deceased was rushed to hospital in injured state where the statement of Khadija was recorded under section 154, Cr.P.C. and only then the F.I.R. was drawn. It is very difficult to expect that every event should proceed in mechanical order and a common man, who would definitely be in a plight of confusion and distress, should think of nothing else, but lodging of F.I.R. Efforts to save the life of an injured as also to capture the culprit are inevitably the most logical and legitimate acts to be performed first by the relatives of the victim. Such an act would be in accord with normal human behaviour and conduct. Delay in lodging of F.I.R. is not always fatal to a case, but the prevalent circumstances are to be kept in mind and then its effect is to be assessed. In the instant case, in view of the circumstances discussed above, the testimonies cannot be disbelieved simply because of delay of few hours in lodging the F. I. R.

24. Two important facts viz. biting by the accused on the cheek of Ibrahim and injuries caused to accused by Mohallah people have come on record through ocular evidence as also admission of the accused about the last mentioned fact, but the prosecution has failed to corroborate the same through medical evidence and only at late stage the prosecutor through an application under section 540, Cr.P.C. placed the documents on record. I agree with the learned counsel for appellant that this mode of proving documentary evidence was not legally acceptable. The Medical Officer should have been examined in Court and the documents ought to have been produced through him. Nevertheless, it has been unanimously spoken by the witnesses that Ibrahim was bitten on his cheek by Yousuf. All the same, appellant himself admitted that people of Mohallah beat him and caught hold of him. Basically, the direct evidence on this point coupled with the evidence of accused is sufficient to lend support to the case of prosecution.

25. Now, turning to the contention that the eye-witnesses belong to one family and their testimonies may not be accepted, it may be noted that their evidence smoothly lays down the account of the occurrence and no reliable evidence has come on record to support the plea of appellant that on the request of Ibrahim he had gone to the house of Hawa Bai, mother of the deceased. The appellant is also equally related to the complainant party. Indeed, the admitted facts that the people of Mohallah reacted very sharply, and with immediate response stoned the accused and overpowered him lend enormous support to their versions. The motive is fully described by the eye-witnesses and the same can be spelt out even from the statement of accused made on Oath. The credibility of ocular testimonies is, therefore, not open to exception the trial Court has rightly accepted the same, consequently, the conclusion that the appellant has caused the fire-arm injury to Mst. Maryam is upheld.

26. In view of the evidence on record, as discussed above, the guilt of appellant for the offence of Qatl-i-Amd has been proved. However, no opinion has been recorded for the offence under section 337-F(1), P.P.C. and since the medical evidence could not come on record on this point in accordance with law it would not be appropriate to record conviction for this offence at this stage.

27. As far the conviction for Qatl-i-Amd is concerned, the charge is wholly silent if it was for an-offence under section 302(a), P.P.C. It has time and again been insisted by the Honourable Supreme Court as also this Court that a trial Court should invariably mention in the charge in explicit terms if the alleged Qatl-i-Amd is punishable under section 302(a), (b) or (c), P.P.C. Reference may be made to Abdul Haq v. The State PLD 1996 SC 1 and Muhammad Yousuf v. State PLD 2000 Karachi

94. In the instant case the evidence on record shows that the accused had first met the witnesses and shaken hands with them without showing any sign of fury or anger. What infuriated him all of a sudden is an important question for this purpose. One of the witnesses namely Ibrahim stated that he did not hear what was the conversation between Yousuf and Mst. Maryam. The admission on the part of Ramzan, husband of deceased Mst. Maryam that he was beaten by Mst. Maryam reflects the harsh attitude of Mst. Maryam in dealings. Perhaps, there could be some irritating words of Mst. Maryam which led to such a situation. In these circumstances the trial Court has rightly recorded conviction under section 302(b), P.P.C. instead of 302(a), P.P.C. The conviction and sentence of imprisonment for life are accordingly maintained, but the sentence of fine, which is not provided in the said section, is set aside. However, the amount of Rs.25,000 awarded as compensation under section 544-A, Cr.P.C. is maintained. Benefit of section 382-B, Cr.P.C., extended by the trial Court, is also maintained. With the above modification in the sentence the appeal stands dismissed. H.B.T./M-498/K Appeal dismissed.