SAYYED MAZAHAR ALI AKBAR NAQVI, J. - Zarrar Hussain son of Muhammad Hussain, caste Rangrez, resident of Chak No. 421/G.B. Tehsil Tandalianwala, District Faisalabad, was involved in case F.I.R; No. 663, dated 13.06.1998, offence under Sections 336, 324, 109, PPC, registered at Police Station Tandalianwala, and was tried by Mr. Muhammad Afzal Khokhar, learned Additional Sessions Judge Tandalianwala, District Faisalabad, who vide judgment dated 17.07.2008 convicted the appellant under Section 324, PPC, and sentenced him R.I. For ten years with fine of Rs. 20,000/- and in case of default in payment of fine, to further undergo R.I. For six months. The appellant was also convicted under Section 336, PPC, and sentenced to pay Arsh equal to Diyat and also to suffer R.I. For seven years.
2. The prosecution case as contained in the F.I.R. (Exh.PB/1) lodged on the complaint (Exh. P B) is that the complainant is resident of Chak No. 421/C.B and labourer. His niece Mst. Nasreen Bibi has been married with Zarrar Hussain accused 2V years prior to the occurrence and this wedlock gave birth to a son. Four years earlier Zarrar Hussain accused divorced his first wife. The uncle of the accused enticed Zarrar Hussain and his father to reconcile with first wife of Zarrar Hussain. On this instigation accused and his family members started unworthy behaviour with Mst. Nasrin Bibi. On 09.06.1998, at SHAM VELA the complainant received an information that Zarrar Hussain accused had turned Mst. Nasrin Bibi out of his house after giving severe beatings, who was returned back to the house of accused by the interference of inhabitants of Mohalla. The complainant alongwith Haji Manzoor and Sarwar went to the house of the accused to inquire into the matter and to bring back Mst. Nasrin from the house of the accused. Due to intervention of respectables of the Mohallah, they agreed to leave Mst. Nasrin Bibi in the. House of the accused. Due to late night the complainant and his companion slept in the house of the accused while the niece of the complainant and Zarrar Hussain accused were sleeping oh the upper storey of the house. At about 3:00 a.m. On the alaram of Mst. Nasrin Bibi, the complainant alongwith Manzoor and Sarwar rushed towards the upper storey where electric bulb was lightening. Zarrar Hussain accused armed with Chhuri was standing on the cot of Mst. Nasrin Bibi, who was lying on it. In their eye-view, Zarrar.
Hussain accused tried to cut the throat of Mst. Nasrin Bibi with his Chhuri, which was saved by Mst.
Nasrin Bibi and the back side of her hand was injured. Zarrar Hussain accused gave second blow of his Chhuri cutting the throat of Mst. Nasreen Bibi, who palpitated with the injury. When the complainant and PWs came forward, the accused fled away from the place of occurrence brandishing his Chhuri. The veins of the throat of Mst. Nasrin Bibi were cut and she became unconscious. The complainant with the help of his companion brought the injured to civil hospital, Faisalabad on a car, where she was admitted for treatment. The relatives of the accused party tried to effect compromise but the complainant did not agree.
3. The motive behind the occurrence was that Zarrar Hussain accused intended to reconcile with his first wife Mst. Shehnaz Bibi on the insisting of his uncle and due to this reason, the accused attempted to commit Qatal-e- Amd of Mst. Nasrin Bibi.
4. The appellant was arrested and chhuri was recovered on his pointing out. Having been found guilty, the Investigating Officer while placing his name in column No. 3 of the report prepared under Section 173, Cr.P.C. Submitted the same to the Court of learned Magistrate Section-30, where statement of the complainant was also recorded. Thereafter, in view of order of the Hon'ble Chief of this Court passed in Crl. Misc. No. 2654-B/2005, the case was entrusted to learned Additional Sessions Judge and de novo trial was conducted.
5. Prosecution in order to prove its case, produced as many as five prosecution witnesses. After completion of the prosecution evidence, the statement of the accused/appellant vips recorded under Section 342, Cr:P.C. Wherein he denied the prosecution evidence. After hearing arguments from both sides, learned Trial Court convicted the appellant in the above-stated terms.
6. Learned counsel for the appellant submitted that the sentence of the appellant is not warranted by the evidence. It was also argued that admittedly neither the complainant nor the injured nor the Investigating Officer made deposition before the learned Trial Court; therefore, the conviction is uncalled for. This aspect, learned counsel agitated, when the doctor had declared the injured healthy enough to record statement, creates doubt in the authenticity in the prosecution version, which fact escaped notice of the learned Trial Court. Learned counsel next contended that the learned Trial Court erred in law in withholding the benefit of apparent doubts in the prosecution story. Learned counsel further submitted that the occurrence was unseen and the prosecution witnesses were not present at the place of occurrence. Learned counsel vehemently argued that nothing was recovered on the pointing out of the appellant and the chhuri is planted upon him.
Learned counsel further stated that the prosecution miserably failed to establish its case against the appellant beyond shadow of reasonable doubt. Learned counsel went on arguing that in such circumstances of the case, evidence of the prosecution witnesses of ocular account, who admittedly are interested witnesses being close relatives of the deceased, is not trustworthy, Learned counsel lastly contended that in this backdrop the appellant is entitled to his acquittal from the charge.
7. As against above, learned DPG assisted by learned counsel for the complainant has vehemently opposed the contentions raised on behalf of the appellant. It was argued that presence of the prosecution witnesses at the place of occurrence is quite natural. It was further submitted by learned counsel for the complainant that prosecution through leading cogent and confidence inspiring evidence, proved its case against the appellant beyond reasonable doubt, therefore, the learned Trial Court was well-justified in convicting the appellant. Learned counsel vehemently stated that mere relationship of the PWs with the deceased or complainant does not debar their testimony. Learned counsel for the complainant went on arguing that the complainant of the case had earlier made statement before the learned Magistrate Section-30 and subsequently being hostile, his statement was not recorded, therefore, the learned Trial Court rightly observed that earlier statement could be read in the case. It was contended that as the speaking power of the injured had lost, therefore, her statement could not be recorded, however, Dr. Masood Iqbal Bukhari (PW-4), while appearing in the Court had rightly recognized her as injured lady. It was further argued that while convicting the appellant the learned Trial Court has given cogent reasons and no exception can be made to the same.
8. In the light of arguments I have gone through the record.
9. Ocular account in this case has come out from the deposition of Muhammad Sarwar (PW-1) and Haji Manzoor Hussain (PW-2), who gave the pin-picture of the manner and mode of the occurrence. Their presence at the place of occurrence, in the peculiar circumstances, is quite natural. Although the prosecution witnesses were squarely cross-examined but the defence could not detect anything in their favour to create dent in the prosecution version. It is well-settled by now that mere relationship of the prosecution witnesses, with the complainant or the injured, does not shatter their testimony, if otherwise, their statements are corroborated by the prosecution case.
So far as contention of learned counsel for the appellant qua non-production of the complainant and injured as prosecution witness is concerned, admittedly before becoming hostile, the complainant had got recorded his statement while appearing in the witness-box before the learned Magistrate, which is admissible in view of Article 131 of the Qanun-e-Shahadat Order, 1984.
It would be advantageous to reproduce the same as ready reference, which reads as under:- "131. Judge to decide as to admissibility of evidence. (1) When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant and not otherwise."
Moreover, Dr. Masood Iqbal Bukhari (PW-4) while making deposition had recognized the injured and also submitted that her speaking power had lost, as such the same is proved in view of Article 111 of the Qanun-e-Shahadat Order, 1984, which reads as under:- "111. Fact judicially noticeable need not be proved. No fact of which the Court will take judicial notice need be proved."
In this backdrop I am in full league with the observation of the learned Trial Court that any material available on the record can be taken into consideration. I may also add here that even otherwise, the occurrence is admitted one and the appellant was close relative of the prosecution witnesses and it does not sound sense that the prosecution witnesses might have deposed falsely against the appellant instead of the real culprits.
10. So far as the argument of learned counsel for the appellant that non-production of Muhammad Yousaf is a circumstance which creates dent in the genuineness of the prosecution version is concerned, suffice it to say that it is established principles of law that quality of evidence is required and not the quantity. There is no compulsion on the prosecution to adduce all the prosecution witnesses during the course of trial. The prosecution is always deemed at liberty to produce evidence of its own choice so nonproduction of any prosecution witness, would not create a crack in the prosecution version.
11. As far as discrepancies in the prosecution version as contended by learned counsel for the appellant are concerned, I am of the view that these are minor/trivial and do not shatter the prosecution case at whole. I, thus, see no infirmity in the impugned judgment,-which even otherwise is well reasoning.
12. Upshot of my above discussion is that prosecution has fully established its case against the appellant beyond reasonabale doubt and the learned Trial Court while appreciating the prosecution evidence available on record in its true perspective has rightly convicted the appellant. Resultantly Crl. Appeal No. 807 of 2008 is dismissed in toto and the conviction and sentence inflicted by the learned Trial Court in terms of judgment dated 17.7.2008 is maintained.