MUHAMMAD MUNIR KHAN, J.--This criminal appeal No.423/85 and the connected Murder Reference No.169/85 arise from the judgment of the learned Additional Sessions Judge Lahore whereby he on 25-6-1985 while acquitting Muhammad Ramzan (50) Iqbal (25) and Mst: Hanifan
(45) co-accused, convicted Pervez Akhtar (21) under section 302, P.P.C. For the murder of Abdul Majeed (25) and sentenced him to death and a fine of Rs.10,000 or in default thereof one year R.I., with the direction that the fine if recovered Rs.7,000 out of the same, be paid to the legal heirs of the deceased and the remaining amount of Rs.3,000 to Mst. Nawab Bibi P.W. As compensation.
2. The occurrence took place on 14-9-1984 at 8 p.m. In front of Old Tibiya College, Shahdara Town, Lahore at a distance of 21 kilometres from Police Station Shahdara.
3. F.I.R. Is statement Exh.P.E. Of Lal Din P.W.5 father of deceased which was recorded by Muhammad Siddiq A.S.I. P.W. 16 in Mayo Hospital, Lahore on the same day at 11-50 p.m. Formal F.I.R. Exh.P.E. /1 was drawn up at Police Station Shahdara Town at 12-20 A.M. On 15-9-1984 by Muhammad Rafiq A.S.I.
P.W.12.
4. The motive as alleged by the prosecution in the F.I.R. Was that about six months before the occurrence, Abdul Majeed deceased was married to Shahnaz Bibi sister of the appellant. Shortly thereafter the relations between the husband and wife became strained and Mst. Shahnaz went to the house of her father. Efforts were made for bringing her back but Muhammad Ramzan co- accused father of Mst. Shahnaz insisted upon talaq to her on the pretext that the deceased had levelled allegations of bad character against his wife, hence this occurrence.
5. As for the main occurrence, it has been stated that at the eventful time, Lal Din P.W.5 along with Abdul Majeed deceased, his wife Mst. Nawab Bibi P.W.7 were present in their house. Sardar Ali P.W.1 and Muhammad Rashid P.W.2 were also present there. Lal Din was taking meal. Some-one knocked the outer door of the house. Abdul Majeed opened it, Pervez Akhtar appellant armed with churri, Iqbal, Mst. Hanifan Bibi and Muhammad Ramzan co-accused were seen present outside the door.
On seeing Abdul Majeed, the co-accused Mst. Hanifan Bibi raised lalkara to the effect that Abdul Majeed be caught hold of and he should be taught lesson for not giving talaq whereupon Pervez Akhtar appellant gave churri blow in the abdomen of Abdul Majeed who raised alarm and fell on the ground and became unconscious. Lal Din, Mst. Nawab Bibi, Sardar Ali and Muhammad Rashid rushed towards the place of occurrence and on seeing them, the appellant and co-accused ran away. Abdul Majeed was removed to Mayo Hospital, Lahore, where he succumbed to the injuries on the night between 20/21-9-1984.
6. The appellant was arrested on 19-3-1984 by Muhammad Siddiq A.S.I. P.W.16. On 24-9-1984 he led to the recovery of blood-stained Churri P.1 from his house which was taken into possession vide memo. P.A. Attested by Muhammad Sharif P.W.3 and Muhammad Yousaf P.W.6. Sadiq Hussain S.I.
P.W.17 had effected the recovery. Serologist's report Exh . P . V . Reveals that the churri was stained with human blood.
7. On 14-9-1984 Dr. Abid Kareem PW, 13 had examined Abdul Majeed in his injured condition. He found following injury on his person:-
(1) A puncture wound 3 x 2 cm on enterior abdominal wall 3 cm below umbilicus. Mesentry and loops of intestine were projecting out of the wound.
The injury was caused by sharp-edged weapon. The patient was immediately shifted to emergency West Surgical Ward for treatment. Dr. Sadaqat Ali P.W.14 operated upon Abdul Majeed on the same day. The operation notes are EXh.P.l On 22-9-1984 Zaheer Anjam Sherazi conducted post-mortem examination of the dead body of Abdul Majeed. He found following injuries:-
(1) Surgical stitched wound 6 c.m. Long with 25 stitched intact in right paramedian region of the abdomen.
(2) Surgical stitched wound 6 c.m. Long with five stitched intact on front of right shoulder.
(3) Surgical stitched wound 3 c.m. With three stitched intact on medial side of right lower leg 9 c.m.
Above medial malleolus.
On examination of abdomen. Peritoneal cavity was full of foul smelling pus. Adhesions were present around loops of small intestine. Evidence of surgical repairs was present in small intestine. Its mesentery and caecum. Pus was present in spleen. Rest of the internal organs were healthy.
In his opinion, the cause of death was septicemia. Secondly to abdominal injury No.1 which was caused by sharp edged weapon and modified by surgery. The injuries Nos. 2 and 3 were caused by surgical interference. The probable time between the injury and death was 5 to 7 days and between death and post-mortem examination was 1 to 2 days.
On 23-9-1984 pr. Muhammad Tahir Anees P.W.8 had medically examined Nawab Bibi P.W. He found following injuries on her person.
(1) Contused swelling 7 x 5 c.m. Over left mandible.
(2) Contusion 6 x 3 c.m. Over upper front left part of chest."
The injuries were caused by blunt weapon and were simple in nature.
8. To prove its case, the prosecution produced 17 witnesses. Sardar Ali P.W.1, Muhammad Rashid P.W.2, Lal Din P.W.5 and Nawab Bibi P.W.7 were allegedly the eye-witnesses of the occurrence, Sardar Ali P.W.1 and Muhammad Rashid P.W.2 did not support the prosecution case. They stated that they knew nothing about the occurrence. They were declared hostile and were cross- examined by the prosecutor. Lal Din P.W.5 stated that at the time of occurrence, he was present in his house and taking meal. Sardar Ali and Muhammad Rashid P.Ws. And Abdul Majeed deceased were also sitting with him. The door of the house was knocked at. Abdul Majeed opened the door.
His mother followed him. He heard lalkara raised by Mst. Hanifan Bibi and cries of Abdul Majeed deceased. He came to the door and saw that Abdul Majeed was lying on the ground. Pervez Akhtar appellant was present there. He tried to inflict injury to Abdul Majeed which he (witness) stopped with his right arm. Thereafter, the appellant and his co-accused ran away. Mst. Nawab Bibi P.W.7 supported the entire prosecution case. She stated that at the eventful time she along with deceased, Sardar Ali, Muhammad Rashid and Lal Din P.Ws were present in the house. Pervez Akhtar appellant and his co-accused knocked the door of the house. Abdul Majeed deceased went to open, the same and she followed him. On the opening of the door. Mst. Hanifan raised lalkara to the effect that Abdul Majeed deceased be taught lesson for giving divorce to her daughter. Ramzan and Iqbal co-accused caught hold of Abdul Majeed and dragged him out of the door. Pervez Akhtar appellant gave Chhuri blow in the abdomen of Abdul Majeed. He tried to inflict second blow.
In the meantime, Lal Din P.W. Reached there and caught the hand of Pervez Akhtar accused. She further stated that the accused had also beaten her. Muhammad Sharif P.W.3 and Muhammad Yousaf P.W.6 were produced to prove the recovery of blood-stained Chhuri P.l from the appellant.
They also turned hostile and were allowed to be cross examined by the prosecutor. Sadiq Hussain P.W.17 stated that Pervaiz Akhtar appellant had led to the recovery of chhurri P.1 from his house on 24-9-1984.The rest of the evidence is of formal nature. Serologist report Exh.P.Y. Reveals that Chhuri was stained with human blood.
9. When examined under section 342, Cr.P.C. The appellant denied all the incriminating circumstances. He raised the plea of false implication on account of enmity. In disproof of charge against him he gave evidence on oath wherein he stated that on 12-9-1984 he had gone to Sheikhupura. On 14-9-1984 he was in Sheikhupura and that on 19-9-1989 his father brought him from there and produced him before the police at Police Station Shahdara. He knew nothing about the occurrence. The co-accused had also given evidence under section 340, Cr.P.C. In disproof of the charge against them. No other witness was produced in defence.
10. The learned trial Court while believing Lal Din and Mst. Nawab Bibi eye-witnesses, recovery of blood-stained Chhuri P.1 from the appellant supported by Sadiq Hussain P.W.17, has convicted and sentenced the appellant.
11. The learned counsel for the appellant contended that the prosecution has failed to prove its case against the appellant beyond reasonable doubt inasmuch as Sardar Ali P.W.1 and Muhammad Rashid P.W.2, the two eye-witnesses have not supported the prosecution case; that the two recovery witnesses namely Muhammad Sharif P.W.3 and Muhammad Yousaf P.W.6 have also refused to support the recovery of chhurri P.1 from the appellant; that Lal Din P.W.6 had not seen the infliction of injury by the appellant to the deceased; that Mst. Nawab Bibi being related to the deceased and inimical towards the appellant is not a reliable witness and that it would be highly unsafe to accept the testimony of Sadiq Hussain P.W.17 with regard to the recovery of blood- stained chhuri P.1 from the appellant. Conversely the learned counsel for the State has supported the judgment of the learned trial Court.
12. We have considered the submissions made by the learned counsel for the parties and have reviewed the entire evidence produced by the prosecution; statement of the accused recorded under section 342, Cr.P.C.; the evidence given by him on oath in disproof of the charge against him and the surrounding circumstances, carefully. We have not been able to persuade ourselves to agree with the learned counsel for the appellant. We find that the two eye-witnesses namely Sardar Ali P.W.1 and Muhammad Rashid P.W.2 as well as the two recovery witnesses namely Muhammad Sharif P.W.3 and Muhammad Yousaf P.W.6 were won over and have made obliging statements. After having admitted their signatures on the recovery Memos. The aforesaid recovery witnesses have stated that nothing was recovered by the police in their presence. Since the two eye-witnesses and the recovery witnesses have resiled from their statements and were declared hostile and cross-examined by the prosecutor, therefore, we are of the view that the statements made by them do not adversely affect the prosecution case and the rest of the evidence. We find that it is a case of promptly lodged F.I.R. Wherein the name of the appellant, the weapon used by him and the manner in which he came to the house of the deceased and caused injuries are mentioned. There is nothing on the record to show that the F.I.R. Exh.P.E. Is not a genuine document or that it was not recorded at the time and place mentioned therein, so much so, no suggestion was given to the complainant as well as the Investigating Officer with regard to the registration of the case after preliminary investigation.
13. Adverting to the most crucial evidence i.e. The ocular account of the occurrence given by Lal Din P.tN. 5 and Mst. Nawab Bibi P.W.7, we find that the occurrence having taken place in front of the door of their house, they were the natural witnesses of the occurrence. We have very much been impressed by the straight-forward manner in which Lal Din gave his evidence. Although he could easily state before the Court that he had seen Pervez Akhtar appellant inflicting injury on the person of the deceased yet he did not say so and confined his statement to what he had actually seen. From his statement given in the Court, the presence of the appellant at the time of occurrence is very much established. Mst. Nawab Bibi had no serious enmity with the appellant.
The appellant is the son of her brother and as such she was not expected to implicate him falsely in place of the real murderer of her son. She has successfully faced the test of cross-examination.
Except for minor and immaterial contradictions/ discrepancies here and there. Her statement does not suffer from major contradictions, material discrepancies and dishonest improvements. No doubt, her statement was recorded on the 9th day of occurrence, but in the circumstances of the case, she cannot be blamed for that. She being the mother of the deceased and the resident of the house near which the occurrence took place, was always available to the police for recording her evidence. Her evidence cannot be discarded for the inefficiency or omission on the part of the Investigating Officer to record her statement as early as possible. Her name was mentioned in the FIR as an eye-witness of the occurrence. In the peculiar circumstances of the case, the delay in recording her statement under section 161, Cr.P.C., does not detract her evidence at trial from its correctness. Her statement is in consonance with the probabilities and materially fits in with rest of evidence and circumstances of the case. We do not see any legal infirmity in her statement. It seems to us that she is confidence inspiring witness and her evidence can be accepted and acted upon without corroboration, In case, the rule of prudence requires independent corroboration of her statement, that is also available in the shape of recovery of blood-stained chuuri Ex.P1 from the appellant Sadiq Hussain S.I. Has stated that the appellant had led to the recovery of blood-stained chhuri EX.P1. The Serologist's report shows that chhuri EX.P.1 was stained with human blood. We have already held that the attesting witnesses having been won over have made confessional statements. We do not see any reason to exclude from consideration the statement of the Investigating Officer with regard to the recovery of blood-stained chhuri Ex.P1 from the appellant.
No doubt he is a police official but it is well-settled that a police official is as good a witness as anybody else and he cannot be condemned merely because of the office he-holds. He has successfully faced the test of cross-examination. He had no motive to plant recovery of blood- stained Chhurri Ex.P1 upon the appellant. The submissions made by the learned counsel are without substance. It was a pre-meditated attack. The appellant had come to the house of the deceased after having armed himself with chhurri. The kind of weapon, the nature of the injury, the force with which the blow was given, the seat of the injury selected by the appellant for the infliction of the injury and the death being a direct result of that injury, do indicate that he had no intention other than that of killing the deceased. For all these reasons. We are convinced that the learned trial Court has rightly convicted the appellant under section 302, P. P. C.
14 This brings us to the question of sentence which certainly demands utmost care on our part.
Having borne in mind all the circumstances surrounding the guilt, we feel that there are mitigating extenuating circumstances in favour of the appellant for lesser penalty inasmuch as the motive for the crime remains shrouded in mystry. Although in the FIR, Lal Din had mentioned motive for the crime as under:- but in his statement before the court he said nothing about the motive of the crime. In her examination-in chief Mst. Nawab Bibi stated that Mst Hanifan co-accused had raised lalkara to the effect that the deceased should be taught a lesson for giving divorce to her daughter. She also stated that there was dispute between the deceased and his wife but she was not aware of that dispute.
For what has been said above, there being satisfactory basis for upholding conviction of the appellant under section 302, P.P.C. We, hereby maintain it but alter the sentence from death to imprisonment for life. The fine of Rs.10,000 or in default thereof one year R.I. Awarded by the learned trial Court and the direction for the payment of Rs.7,000 to the legal heirs of the deceased and Rs.3,000 to Mst. Nawab Bibi P.W. Are maintained.