1999 PLP 1018 (MLD)

This appeal calls into question judgment dated 6-2-1993 passed by Hafiz Khalil Ahmad, Sessions Judge, Bhakkar, whereby he convicted the appellant under section 302, P.P.C. and sentenced him to imprisonment for life and a fine of Rs.20,000 or in default thereof R.I. for one year. He further directed that appellant to pay compensation of Rs.20,000 to the legal heirs of the deceased under section 544-A, Cr.P.C. or in default thereof to further undergo R.I. for six months.

2. Briefly stated the facts of the case are that Khadim Husain complainant was living with his family at the lot of Chaudhrry Charagh Din situated in Chak No. 16 Adjacent to his Dera, Saifullah accused/appellant has also been residing. A few days prior to the occurrence Saifullah brought his wife Mst. Khawar alongwith her brother Nasir, aged 7/8 years. On the previous evening, Mst. Khawar was heard saying to her brother Nasir that they would not live in the Jangal and would return to their village. Saifullah felt annoyed with her on her said demand. At about midnight time, the complainant heard cries coming out of the house of Saifullah, upon which he alongwith his wife Mst. Anwar were attracted and found the door of his house opened, the lantern was burning and accused Saifullah had inflicted a Kassi blow on the left side of neck of her wife Mst. Khawar, who died on the spot. The accused then decamped from there. He found that Nasir, brother of deceased, was weeping while standing near the dead body of his sister. Leaving the dead body of Mst. Khawar under the supervision of Nasir and his wife Mst. Anwar, he left for the police station to lodge F.I.R. Ex. PA which was recorded by P.W.12 Nasrullah Khan S.I. who read over the same to him and who thumb-marked it in token of its correctness.

3. After registration of case Nasrullah Khan S.I. (P.W.12) made for the place of occurrence. He prepared injury statement Exh. PG, inquest report Exh. PH, inspected the spot, secured blood-stained earth and made its sealed parcel vide memo Exh. PB. He handed over the dead body to Murid Abbas constable for post-mortem examination who after the post-mortem examination produced before him last worn clothes P2 to P8 of the deceased and a sealed phial which he secured vide memo. Exh. PF. He also prepared a rough site plan of the place of occurrence Exh. PI and got site-plans Exh. PD and Exh.PD/1 prepared from Abdul Rehman Patwari. On 12-4-1992, he arrested the accused who led to the recovery of blood-stained Kassi P1 which he secured vide memo. Exh. PE and also prepared the site-plan of place of recovery Exh.PE/l. He handed over the parcels to Moharrir Head-constable and completed the investigation.

4. A charge under section 302, P.P.C. was framed against the accused on 22 1992 to which he pleaded not guilty and claimed trial.

5. To bring home guilt. to the accused, prosecution examined P.W.1 Ghulam Yasin S.I./S.H.O. who simply submitted the challan on 8-5-1992. P.W.2 Saifullah constable deposed that on 14-4-1992. he was given two parcels containing blood-stained earth and of Kassi which he delivered on the next day in the office Chemical Examiner, Lahore. P.W.3 Rabnawaz constable deposed that on 28-3-1992, he was given a sealed parcel containing blood-stained earth and other on 12-4-1992 and he delivered both the parcels to Saifullah P.W.2 on 14-4-1992 for onwards transmission to the office of Chemical Examiner, Lahore. P W.4 Khadim Hussain is complainant who deposed that he alongwith his wife Mst. Anwar were attracted on the cries coming from the house of Saifullah and found that Mst: Khawar had been murdered and her brother Nasir was standing near her dead body. He stated that he had lodged F.I.R. Exh.PA which was read over to him and he thumb-marked the same in token of its correctness. P.W.5 Nasir is an eye-witness of this occurrence and deposed that his sister Mst. Khawar was murdered by the accused by inflicting two Kassi blows on her neck. P.W.6 Dr. Ehsan-ul-Haq deposed that on 28-3-1992, he conducted post-mortem examination on the dead body of Mst. Khawar and found one injury on the left side of her neck. He further deposed that in his opinion, the said injury was sufficient to cause death in the ordinary course of nature. He deposed that time between injury and death was immediate and between death and post-mortem examination was 12 to 18 hours. He produced P.M. report Ex.PC and diagram or injury Ex.PC/1 which bear his signature. P.W.7 Abdur Rehman Patwari prepared the site plans Exh.PD and Exh.PD/1 which bear his signature. P.W.8 Allah Dad identified the dead body of Mst. Khawar at the time of her post-mortem examination. P.W.9 Kazim Abbas is a witness of recovery of Kessi P1 at the instance of accused Saifullah which was secured vide memo. Exh.PF. P.W.10 Bashir is a marginal witness of memo. Of recovery Exh.PE referred above and is father of Mst. Khawar deceased. P.W.11 Murid Abbas constable escorted the dead body of Mst. Khawar for post-mortem examination and produced her last worn clothes P.2 to P8 and a sealed phial which were secured vide memo. Exh.PF. P.W.12 Nasrullah Khan is the Investigating Officer whose evidence has been discussed above. The learned D.A. produced reports of Chemical Examiner Exh. PJ and PK and that of Serologist Exh.PL and PM. He thereafter, closed his evidence vide his statement dated 11-1-1992.

6. When examined under section 342, Cr.P.C., the accused Saifullah denied the prosecution version and stated that P. Ws. have deposed against him due to their relationship with the deceased, that some unknown ,person committed the murder of his wife and he has been implicated on account of his relationship with the deceased and due to suspicion, that one Farooq son of Nazir, a cousin of Mst. Khawar, had committed murderous assault upon Mst. Khawar prior to the occurrence as he was not happy with his marriage with Mst. Khawar, that he was apprehended by police from district Sheikhupura and Kassi has been planted upon him just to strengthen the prosecution case, that even his name has not been correctly m4.6tioned in the F.I.R, that he would produce evidence in his defence and would also record his statement under section 340(2), Cr.P.C. Accordingly, he examined D.W.1 Muhammad Nawaz 'and D.W.2 Ghaus Muhammad and got his statement recorded under section 340(2), Cr.P.C.

7. After going through the record and hearing the learned counsels for the parties, the trial Court convicted the appellant vide judgment under appeal.

8. Arguments have been heard and record perused.

9. It is submitted by learned counsel for the appellant that prosecution version consists of statements of complainant Khadim Husain (P.W.4) and eye witness Nasir (P.W.5), that the complainant has not fully supported his version given in F.I.R. Exh.PA, as is evident from his deposition, that there remains the statement of Nasir (P. W .5) in the field which lacks independent corroboration, as such the impugned judgment is not sustainable in the eyes of law.

10. On the other hand, the judgment under appeal has been supported by learned counsel for the state. His contention is that although complainant Khadim Husain (P.W.4) has not fully supported prosecution version emerging in F.I.R. Exh.PA, yet his statement stands fully corroborated by Nasir (P.W.5) who has got no animus to depose against the appellant, that ocular account given by P.Ws. 4 and 5 further stands corroborated from the medical evidence as well as evidence of recovery of blood-stained Kassi P.1, that trial Court has passed the impugned judgment in accordance with law and appeal merits dismissal.

11. The accused stands charged under section 302, P.P.C. for committing the murder of Mst. Khawar by inflicting Kassi blow on her neck. According to the prosecution version contained in Exh.PA, the incident was witnessed by Khadim Husain (P.W.4), his wife Mst. Anwar and Nasir (P.W.5), a brother of deceased Mst. Khawar. However, the record shows that when examined, Khadim Husain complainant has not fully corroborated his prosecution version given in F.I.R. Exh.PA and stated that when he and his wife were attracted on hearing the cries coming out of the house of accused, they found that Mst. Khawar was lying murdered and her brother Nasir was weeping standing by her side. The complainant has been declared hostile at the instance of the learned prosecutor, as such, his evidence has to be scrutinised carefully. The only other eye-witness of this occurrence is P.W.5 Nasir, who is real brother of the deceased. This witness has categorically deposed that it was the appellant who committed the murder of his sister Mst. Khawar by inflicting blow with Kassi. He has been cross-examined at length by learned counsel for the appellant, but he .failed to impeach his credibility. Besides this ocular account, there is also the statement of Dr. Ehsan-ul-Haq (P.W.6) who has also deposed that deceased died as a result of injury on her neck. There is yet evidence of recovery of Kassi P1 which has come on record through the statement of Kazim Abbas (P.W.9), who also attested the memo. of recovery Exh.PE. Thus, the ocular account of P.W.5 Nasir is not the only piece of evidence connecting the appellant with the commission of this offence, but medical evidence and evidence of recovery of Kassi also connects him with the commission of the offence. Thus, the mere fact that complainant Khadim Hussain (P.W.4) has not fully supported his own version appearing in Exh.PA does not mean that prosecution has failed to bring ` home guilt to the appellant.

12. Learned counsel for the accused/appellant has laid much stress on the ground that as the very complainant has not corroborated the prosecution version appearing in F.I.R. Exh.PA and consequently has been declared hostile, so conviction cannot be maintained on the basis of uncorroborated statement of P.W.5 Nasir. There is no force in this submission of learned counsel for the appellant as conviction can be passed even on a solitary statement provided the same does not suffer from any legal infirmity. In the instant case, P.W.4 Khadim Hussain has supported the prosecution version to the extent of seeing the dead body of Mst. Khawar lying in the house of her husband/appellant Saifullah, and he has not supported the prosecution version to the extent of seeing the appellant committing the murder of the deceased. The statement of P.W.5 Nasir, a brother of the deceased fully proves beyond any shadow of doubt that it was Saifullah appellant who committed the murder of the deceased by inflicting Kassi blow on her neck. The statement of P.W.5 further stands corroborated from the statement of P.W.6 Dr. Ehsan ul Haq who conducted post-mortem examination as well as P.W.9 Kazin Abbas who is a witness of recovery of Kassi P1 secured at the instant of accused/appellant. Again report of Chemical Examiner Exh.PK and report of Serologist Exh.PL prove that Kassi P1 recovered at the instance of the appellant was stained with human blood.

13. In view of my findings stated above, it is proved that prosecution has succeeded in connecting accused/appellant with the murder of deceased. The trial Court has passed the impugned judgment in accordance with law. It does not call for any interference and the same is upheld and appeal is hereby dismissed. H.B.T./S.193/L Appeal dismissed.