2009 PLP 120 (SCMR)

MUHAMMD FARRUKH MAHMUD, J.

This petition is directed against the judgment, dated 20-2-2007 handed down by the learned Judge in Chambers of Lahore High Court at Multan Bench in case F.I.R. No.7 of 1998 dated 5-1-1998 registered at Police Station City Mailsi for offences under section 302/34, P.P.C. whereby the appeal of respondent Muhammad Akram was allowed and he was acquitted of the charge of murdering Mst. Maryam Bibi wife of Muhammad Jamil petitioner-complainant.

2. The relevant facts are that above noted F.I.R. was registered on the application of Muhammad Jamil petitioner-complainant. According to F.I.R., Jamil petitioner-complainant lived in Mohallah Tellupura, Mailsi and ran cloth shop in Gulshan Market. On the fateful day at about 2 p.m. his servant returned from his house and went to his other shop. At about 5-15 p.m. the petitioner closed his shop and started towards his house along with his sons Muhammad Arif and Muhammad Akram. When they reached near their house, they saw gathering at nearby shop of Rashid Ahmed. The complainant and his companions saw three persons coming out of his house. When he entered his house, he saw rooms of the house were locked from inside and electric bulbs were on. He knocked the door and when there was no response, he peeped through the window and saw that his wife Mst. Maryam Bibi was lying injured in the T.V. lounge. His son Muhammad Akram broke the window, opened the lock and went inside. He observed that Mst. Maryam Bibi had died and had received injuries on her neck and abdomen. The articles of the house were scattered. Screen of T.V. Glasses of trolley, doors of bath rooms and deck, had been broken. On hue and cry raised by the petitioner-complainant and his sons, the neighbours arrived at the spot. It was further mentioned in the F.I.R. that the P. Ws. could identify all the three accused. The information whether any theft was committed or not was to be furnished later. During investigation, on the strong suspicion of the complainant, respondent Muhammad Akram was arrested on 23-1-1998. The learned trial Court vide judgment, dated 28-6-2002 while rejecting the ocular account furnished by P.W.4 complainant and his son Muhammad Arif P.W.6, convicted respondent on the basis of circumstantial evidence under section 302(b), P.P.C. and sentenced him to imprisonment for life. He was also directed to pay compensation Rs.50,000 to the L.Rs. of deceased under section 544-A; Cr.P.C. Benefit of section 382-B, Cr.P.C. was given to the convict. Muhammad Akram respondent filed appeal before the learned High Court at Multan Bench which was allowed, as mentioned above. Hence, this petition.

3. Learned counsel for the petitioner has submitted that learned trial Court had rightly convicted the respondent on the basis of circumstantial evidence. He has not challenged the rejection of the ocular account either by the learned trial Court or by the learned High Court. According to learned counsel, the recoveries of blood-stained Chhuri and role of cloth (Thaan Latha) at the instance of respondent and injuries found on the hands of respondent were sufficient proof of his guilt and the evidence was wrongly rejected by the learned Judge in Chambers. The learned counsel has further argued that the respondent was servant of the petitioner-complainant who raised him like a son and would not involve him in a false case. He has further argued that the recovery of role of cloth from the shop of the complainant after 21 days was believable because after the occurrence, the respondent had concealed the cloth under heap of other roles of cloth and that injuries on the hand of the respondent clearly implicated him. The opinion of the doctor that the injuries could be caused by friendly hands was of no value as why should respondent receive injuries through friendly hand. Learned counsel has further argued that the delay in recovery of blood-stained Chhuri would also be immaterial as it was the complainant who led to the recovery.

4. Conversely, learned Deputy Prosecutor-General, Punjab has supported the impugned judgment.

5. We have heard the learned counsel for the parties at length and scanned the entire record of the case.

6. Undeniably, it was mentioned in the F.I.R. that the complainant and his accompanying sons saw three persons coming out of their house and they could identify those persons. The respondent being servant of the complainant would have been named in the F.I.R. if he would have been one of the three persons who were seen coming out of the house. Later on, the complainant and his son P.W.6 made dishonest improvements during trial and their statements were correctly discarded by the learned Courts below. Learned counsel has not challenged the rejection of direct evidence by the learned trial Court and has tried to base his case on the circumstantial evidence. It was a case of direct evidence as P. W.4 and P.W.6 furnished ocular account by stating that they had seen Muhammad Akram, Asghar Hussain and Mazhar Hussain coming out of their house. Of course, it was a dishonest improvement and they were rightly disbelieved. However, in a case of direct evidence, the other pieces of evidence are used for corroboration or in support of direct evidence. When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence. It is borne out from the record that the alleged recovery of blood-stained Chhuri has effected after about one month of the occurrence from an open plot which was not in exclusive possession of the respondent and was accessible to all. It was also not likely that the blood would not disintegrate meanwhile. So the reasons advanced by the learned Judge in Chambers are not arbitrary or fanciful for not believing the recovery. Similarly, the learned Judge has rightly concluded that the recovery of Thaan of Latha after 21 days of the occurrence from the shop of the complainant himself, was not believable. It may be added here that it was most unlikely for the accused to come to the shop of the complainant and conceal the role of cloth in the shop of the complainant. He could easily throw the cloth anywhere and forget about it.

7. Now coming to the injuries on the hand of the respondent. Suffice it to say that according to Muhammad Arif, respondent Muhammad Akram went to their house for delivering vegetable and after delivery, came back at about 2-30 p.m. amt thereafter his father sent him for grinding of wheat. He came back at the shop at 4-45 p.m. It is obvious from the above statement that if respondent had received any injury during the occurrence, then P.Ws. must have spotted it.

8. No motive is available against the respondent for commission of offence. Not a single circumstance has been pointed out by the learned counsel for the petitioner nor it has been spelt out from the record that the findings recorded in the impugned judgment were perverse, illogical, unconscionable and contrary to law and facts.

9. Consequently, we find no merit in this petition which is dismissed. Leave is refused. N.H.Q./M-73/SC Leave refused.