JUDGMENT KH. MUHAMMAD SHARIF, j.-~ This judgment will dispose of Criminal" Appeal No. 233/J/04 filed by Muhammad Ismail alias Bholee appellant, who was convicted and sentenced by learned Addl. Sessions Judge, Kamalia, vide his judgment dated 31.7.2003 as under:-- Under Section 302(b), PPC, imprisonment for life with further direction to pay Rs. One lac as fine or in default thereof six mon% SI.
Under Section 324, PPC, seven years R.I. With a fine of Rs. 30,000/- or in default two months SI for commission of attempt to commit Qaim -Amd of Mst. Somaira Bibi injured.
Under Section 324, PPC, seven years R.I. With a fine of Rs. 30,000/- or in default two months SI for commission of attempt to commit Qatl-i-Amd of Shakoor Hussain injured.
However, all the sentences were ordered to run concurrently with the benefit of Section 382-B, Cr.P.C,
2. Brief facts of the case, as disclosed by Muhammad Mumtaz complainant (PW.I) are that on 23.7.2005 at 3.00 p.m. He alongwith Nazar Abbas (PW.2) and Shabhir Ahmad (given up PW) was present in the Ihata of Allah Bakhsh when all of sudden they heard noise of weeping of the children from the nearby sugarcane crop. They rushed to that place and saw that Somaira Bibi aged about seven years and Shakoor Hussain aged about five years daughter and son of Manzoor Hussain were lying in an injured condition and accused Muhammad Ismail being armed with chhuri was inflicting chhuri blows on the right side of neck of Zaheer Abbas (deceased) aged about 1-1/2 years, who also fell down on the ground. The complainant and PWs tried to catch hold of Muhammad Ismail who while brandishing chhuri fled away.
Motive behind the occurrence was that there was dispute between Manzoor Hussain (given up PW) father of the deceased and father of Muhammad Ismail accused with regard to possession of Ihata and about two days before, Muhammad Ismail had given slaps to Shakoor Hussain and complaint thereof was made to his (accused) parents and that Muhammad Ismail accused had advanced threats at that time that he would finish the generation of Manzoor Hussain. That for this annoyance Muhammad Ismail had caused murder of Zaheer Abbas and had attempted at the lives of Mst. Somaira Bibi and Shakoor Hussain.
3. Investigation of the case was taken over by Muhammad Hussain, SI PW.10. He after registration of the formal F.I.R, reached at the spot, inspected the spot, collected blood-stained earth, which was taken into possession vide recovery memo. Ex. PB, and prepared site plan Ex. PK. On 25.7.2002 he arrested Muhammad Ismail accused, who on 26.7.2002 while in custody got recovered chhuri blood-stained P.1\from his residential house, which was taken into possession vide recovery memo. Ex.PG. After completion of remaining formal investigation, the accused was challaned to face the trial.
4. At the trial, prosecution in order to prove its case produced 12 witnesses in all, therefore, learned D.D.A, tendered in evidence report of Chemical Examiner regarding chhuri Ex.PO., that of Serologist Ex.PO/1, report of Chemical Examiner, regarding blood-stained earth Ex.PP, that of Serologist Ex.PP/1 and closed the prosecution case, then, the statement of the appellant was recorded u/S. 342, Cr.P.C, in which he pleaded innocence.
5. Learned counsel for the appellant after having read the entire prosecution evidence, Statement of the appellant recorded u/S. 342, Cr.P.C, and other relevant material available on record, submits that appellant was of unsound mind at the time of occurrence, that Muhammad Mumtaz complainant is first cousin of the father of Zaheer deceased aged 1-1/2 years, that F.I.R, was recorded after due deliberation and consultation, that though Mst. Somaira Bibi and Shakoor Hussain injured PWs had appeared before the learned Trial Court but they being in capable of facing cross-examination were not cross-examined, that Nazar Abbas PW.2 is also related to the deceased, that recovery of chhuri had been planted on the appellant, that in fact Trial Court should have acquitted the appellant being of unsound mind, that prosecution failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. On the other hand, learned counsel for the State submits that appellant is named in the F.I.R., that he has caused the death of infant baby aged 1-1/2 years and also caused injuries on the person of Mst. Somaira Bibi and Shakoor Hussain, that ocular account is fully corroborated by medical evidence and that learned Trial Court had already taken a very lenient view in this case. He supports the judgment of the learned Trial Court.
7. I have heard learned counsel for the parties at a very great length and have also gone through the evidence available on record. Occurrence in this case had taken place on 23.7.2002 at 3.00 p.m.
While the matter was reported to the police at Civil Hospital, Kamalia on the same day at 6.30 p.m.
By Muhammad Mumtaz complainant and the formal F.I.R, was recorded on the same day at 6.40 p.m., the distance between place of occurrence and the Police Station was six miles. Appellant is the only accused in this case. The prosecution produced two eye-witnesses, namely, Muhammad Mumtaz (complainant PW.I), first cousin of father of Zaheer deceased and Nazar Abbas (PW.2).
Though Muhammad Mumtaz is related to the deceased but Nazar Abbas PW.2 had ho relationship either to the deceased or to the complainant and he is most independent witness. PW.3 is Mst.
Somaira Bibi injured PW, who was produced by the prosecution but as it was observed by the learned Trial Court that due to tender age and immature understanding the witness was unable to understand nature of the question put To her so her statement was not recorded. As far as, Shakoor Hussain injured PW-4 aged 5 years is concerned, he also did not know the meaning of oath so due to his tender age and immature understanding his statement was not recorded but he had only pin pointed the accused in the Court and expressed that the appellant caused injury t<* him with chhuri, he was also not cross- examined, as the same was not allowed being of immature understanding. Dr. Fateh Din Shad, M.O. PW.5 furnished medical Evidence in this case, who had medically examined Zaheer Abbas (deceased), Mst. Somaira Bibi and Shakoor Hussain while Dr. Shafqat Hussain, M.O. PW.8 conducted post-mortem examination on the dead-body of Zaheer Abbas deceased. Appellant was arrested in this case on 25.7.2002, he led to the recovery of blood- stained chhuri on 27.7.2002 from his residential house. Ocular account in this case is fully corroborated by medical evidence. Appellant while appearing u/S. 342, Cr.P.C, in reply to question No. 8 stated as under:-- "it was an unseen occurrence. The PWs Nazar Abbas and Manzoor Hussain were inimical towards me and my father and civil litigation. Has been going on. These PWs are closely associated to complainant and his influence on him. They managed to brief the complainant and mis-led him.
The children could not identify the assailant at the time of occurrence and * even they were not able to give evidence at trial stage. They were tutored by the complainant. Moreover, the dera where the PWs were allegedly . Present when they heard the alarm, is situated at a distance of 5-6 acres from the place of occurrence, it has been confirmed so by PW.9 Allah Ditta revenue patwari who prepared the site plan and the I.O. So it is impossible to listen hue and cry from that dera."
The bare perusal of above-said answer would show that it is neither here nor there. Both the eye- witnesses have no animus against the appellant;, they have fully implicated tho appellant in this case. Ocular account is fully corroborated by medical evidence coupled with the recovery of blood-stained chhuri and in this regard report of Chemical Examiner and that of Serologist are positive in nature. The learned Trial Court has not awarded capital punishment on the ground that behavior of the appellant before him was not' reasonable and he was abnormal but the appellant could not produce any documentary evidence in this regard. Moreover, neither the State nor the complainant has filed any revision petition for the enhancement of sentence against the appellant, matter also relates to year 2002 and now we are going in the year 2006 so at this stage it will not be proper to issue notice for the enhancement of sentence of the appellant, however, as the prosecution has proved its case against the appellant through ocular account corroborated by medical evidence coupled with recovery of blood-stained chhuri on the pointation of the appellant, so this appeal filed by the appellant is dismissed. The conviction and sentence recorded against the appellant by the learned Trial Court is maintained in to.