MIAN BURHANUDDIN KHAN, J.-Muhammad Saleem alias Seema was tried by the learned Additional Sessions Judge, Abbottabad under section 302, P. P. C. For committing the murder of Farid Khan aged about 60/65 years by stabbing him with a dagger in the limits of village Isa, convicted and sentenced to death and a fine of Rs. 1,000 and in default of payment of fine, six months' R.
1. Amount of fine, if realized, was ordered to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C. His appeal was dismissed by the learned Judges of the Peshawar High Court and the death sentence awarded to him by the trial Court was confirmed vide the impugned judgment dated- 1-2-1977. He then sought leave against the judgment of the High Court which was granted vide order of this Court dated 5-12-1978 to consider whether the various pieces of evidence relied upon by the learned Courts below in particular, the motive for the crime, absence of blood on the spot and negative report regarding dagger Eah. P-3 the weapon, of offence allegedly used by the accused-appellant in committing the offence and the Investigating Officer after taking it into possession, failed to seal it into a parcel and the same (dagger) remained in the police Malkhana for sufficient long time); for corroboration of the ocular evidence could have legally and factually been relied upon when the retracted confessional statement, recorded by a Magistrate has not been relied upon by the trial Court as well as the Court, of first appeal.
2: According to the prosecution case, on 20-12-1975 at about 11 a. m. Mst. Sajda Begum (P. W. 6) daughter of the deceased, was present in her house washing clothes in the courtyard when she heard the cries of her father the decreased. On coming out of the house she saw her father holding his abdomen with his band and blood was coming out and he charged the accused Seema for stabbing him. She also saw Muhammad Saleem alias Seema son of Muhammad Sadiq running away from the spot. Khiaar Hayat, P. W. 7 also reached the spot and witnessed the crime. Both the witnesses placed the deceased on a cot with the help of co-villagers and carried him to the police station but he (Muhammad Farid Khan deceased) died on the way. Mst. Sajda, lodged the report Exh. P. A. At about 12.15 p. m. At the Police Station Ghazi lying at a distance of 3 miles from the spot.
3. Motive stated in the report Exh. P. A. Is that the deceased was a witness against the accused- appellant in a theft case. After recording the report Muhammad Wazir Khan (P. W. 10) A. S. I. Went to the Rural Health Centre, Ghazi where the dead body of the deceased was lying. He prepared the injury sheet Exh. P. D. And inquest report Exh. P. D.1 and sent. The dead body to the mortuary for post-mortem examination. The Investigating Officer then visited the spot, prepared the site plan Exh. P. C. Correctly with the notes and recorded the statement of Nawab Hassan, Manager, Habib Bank, Ghazi, copy of which is Exh. P. H. 2 and also produced the original thereof. Nawab Hassan also produced the identity card of the accused and scabbard which the Investigating Officer took into possession vide Memo. Exh. P. H. I and arrested the accused who, while in custody, led the I. O. To the compound of a Haveli where, from a cattle-shed he brought out the danger Exh. P-3 which was taken into possession vide Memo. Exh. P. G. The 1. O. Also prepared sketch of the place Exh. P. H.
Showing the recovery of the dagger. On 23-12-1975 he produced the accused before a Magistrate who recorded his confessional statement. He also filed a copy of the statement Exh. P. W. 10/1 of Farid Khan deceased in case F. I. R. 107 dated 1-7-1974 under section 457/380, P. P. C., lodged against the accused with P. S. Ghazi.
4. Dr. Sardar Saeed, P. W. 8 performed the post-mortem examination on the dead body of Muhammad Farid Khan and found an incised wound 5/8" x ----- going deep directed above, on the abdomen J" to the right of mid line of the body, and in his opinion, death was caused due to shock and haemorrhage.
5. Mst. Sajda Begum P. W. 6, as already stated, was present in her house when she heard the deceased's cries of distress. She saw the deceased bleeding and feard the deceased charging Muhammad Salim alias Seema for stabbing him with a dagger. She also saw Salim alias Seema running from the spot. She went to the police station and lodged the report Exh. P. A. And she admitted the same to be correct. Her statement is supported by Khizar Hayat, P. W. 7 who was present at the spot at about 11 a.m. He saw the deceased sitting near the wall of the mosque when accused Muhammad Saleem came and stabbed the deceased with a dagger. After that the accused ran away and Mst. Sajda came out of her house, then he (P. W. 7) and Mst. Sajda took care of the deceased. According to Mst. Sajda and this witness (P. W. 7) the accused appellant had committed trespass into the house of one Mst. Roobi, a neighbour of the deceased and the deceased was cited as a prosecution witness in that case, and on this score the accused was annoyed with .The deceased. .
6. The accused when examined under section 342, Cr. P. C. Denied the charge, repudiated the confessional statement Exh. P. T. Recorded by Mr. Yar Muhammad, Resident Magistrate, Tarbela on 23-12-1975 and also denied the recovery of dagger P-3. He said that he never entered the house of Nawab Hussain and denied having lost his identity card there. He further stated that the case had been fabricated by the relatives of the deceased as they had enmity with him prior to the occurrence and wanted to involve him in the murder case of Muhammad Farid Khan.
7. Learned counsel appearing for the appellant has argued that the prosecution case consisted of the testimony of Mst. Sajda P. W. 6 who is daughter of the deceased and being a married woman she should have been in the house of her husband; that Khizar Hayat P. W. 7 is a nephew of the deceased and is a chance witness as his house is away from the spot and he had gone to his land situate in Village Jailoo at about 8.30 a. m. And strangely enough he happened to be on the spot at the crucial time. The learned counsel further contended that recovery of the dagger P-3 in no way corro--borated the ocular testimony as the same was recovered and sealed into a parcel on the same day but remained in the police Malkhana for considerable time whereafter it was sent to the Chemical Examiner and, therefore, the Che--mical Examiner's report, even if the case is accepted to be positive, is not worth consideration; that the confessional statement recorded by the Magistrate, Tarbela does not saddle the accused with any responsibility and, moreover, the same could hardly be called a confessional statement for the purpose of sections 18 to 21 of the Evidence Act.
8. None of the points argued by the learned counsel would meet the requirement of law to hold the accused as innocent of the commission of the murder of Muhammad Farid Khan deceased for the reason that Mst. Sajda, P. W. 6 had no personal enmity with the accused whatsoever and she would be the last person to charge the accused falsely leaving the real culprit as I cannot be said that it was a crime unseen. It was committed in the midst of the village in broad daylight at 11 a. m. She had been cross-examined regarding her presence but she could not be negatived by any other reason. Khizar Hayat, P. W. 7 is also not a person who could be termed as 'interested' or having had any grouse against the accused-appellant. On record we find a copy of report Exh. P. H. 3 of Mst.
Roobi dated 1-7-1975 wherein the name of the deceased Farid Khan was mentioned as a witness who had reached the spot and bad seen the accused Saleem committing trespass in her house. A copy of his statement recorded under section 161 had also been placed on the record in case registered vide F.
1. R. 107 dated 1-7-1975 under sections 457 and 380, P. P. C., which is the alleged motive for the crime. Thus, even if the recovery of the dagger P-3 and identity card found in the house of Nawab Hussain be kept out of consideration, the rest of the evidence is sufficient to sustain the conviction in the crime which the accused-appellant committed without any qualm of conscience. We do not find any reason to interfere with the judgment of the High Court and uphold the conviction of and sentence of death awarded to the accused appellant, and fine imposed upon him.