1995 P Cr (PLP)

ABDUL HAFEEZ CHEEMA, J.

This case relates to the murder of Muhammad Yaqoob (55) son of Imam Din Butt; a shopkeeper of Gujranwala/Sheikhupura More. The occurrence took place slightly after mid day on 18-10-1989 and the scene of occurrence is a market at a distance of i about 200 yards from G.T. Road near Sheikhupura More, Gujranwala, in the vicinity of old Octroi. The initial report was lodged by Babar Yaqoob (P.W.9), son of the deceased at 2-15 p.m. in the District Headquarter Hospital, Gujranwala with Shahid Farooq (P.W.11) Inspector/S.H.O., Police Station Sabzi Mandi, Gujranwala.

2. According to the first informant, his father Muhammad Yaqoob and his uncle Meraj Din owned a market consisting of 16 shops. Both the brothers made a division and seven shops came to each one's share. The two shops in the middle of the market, were, however, kept joint and after removal of their intervening wall, the .two were converted into one big shop. It was rented out to one Ch. Sadiq, D.S.P. (Retd.) who vacated it two years prior to the occurrence and parties had applied two locks each, on both the doors of this shop. Muhammad Arif (22), Muhammad Tariq (19) sons and Mst. Sakina Bibi (50) widow of Meraj Din, brother of Muhammad Yaqoob, deceased, all the three accused made various efforts to occupy this entire shop but all the attempts were foiled by Muhammad Yaqoob deceased.

3. On the fateful day when the complainant, his father and brothers Babar, Zaheer and Nadir Yaqoob were present in their shop of sanitary-wares, close to the disputed shop, Arif and Tariq accused appeared there at about 12-00 noon and wanted to take the possession of the shop forcibly. This was resisted by Muhammad Yaqoob deceased, and the complainant. The accused, however, went back threatening that they shall teach the complainant side a befitting lesson for offering resistance to their attempt. They re-appeared at the place of occurrence after about 20/25 minutes accompanied by Mst. Sakina Bibi, their mother, Ilyas alias Pattu and Abbas, sons of Muhammad Hussain Kashmiri of Village Bakhrewali near Oila Didar Singh, shouting at the complainant. Arif and Tariq were armed with pistols whereas Abbas and Ilyas had rifles with them Mst. Sakina Bibi exhorted the accused to teach Yaqoob and his sons a lesson unforgettable for frustrating their attempt to occupy the disputed shop. Arif opened his pistol fire, which hit Muhammad Yaqoob on his left flank (side of Wakhi), Sakina Bibi threw a piece of brick which landed on Yaqoob's right hand injuring his fingers. Abbas gave his rifle butt blow on the chin of Yaqoob, deceased, whereas when the complainant Babar went ahead to rescue his injured father, he was inflicted a blow by Tariq with his pistol butt, which caused head injury to him.

4. On the receipt of injury, Yaqoob fell down and was removed by the complainant and his brother to the District Headquarter Hospital by means of a wagon, where he was medically, examined by Dr. Naveed Aslam Butt (P.W.1) Medical Officer. A short while later, he succumbed to his injuries. Shahid Farooq, Inspector/S.H.O. (P.W.11) arrived in the hospital and recorded the statement of Babar, complainant, as per his dictation at 2-15 p.m which is Exh. P.D. and transmitted it to the police station, on the basis of which formal F.I.R. Exh.P.D./1 was recorded by Baqir Hussain, A.S.I. (P.W.2).

5. The doctor on his initial examination of Muhammad Yaqoob, injured, described his general condition as follows: "was not satisfactory. B.P. and pulse were not audible, patient was' gasping." and found following injuries on his person: (1) Fire-arm lacerated wound with black margin 2.5 centimetre x 1.25 c .m. penetrating with inverted margins on lateral part of left chest .5 c.m. below left nipple and 15 c.m. from midline. (2) An incised wound 1-1/2 c.m. x 1/4 c.m. on left side of chin. (3) Abrasion 8 c.m. into 5 c.m. left side of forehead. (4) Multiple lacerated wounds on palmer surface of right hand thinner side. (5) Lacerated wound 0.5 c.m. x 1/4 c.m. on lower part of right leg medial side. (6) Lacerated wound 2 c.m. x 1/2 c.m. on dorsum of the left foot at the base of big toe. (7) An incised wound half c.m. x 1/4 c.m. on tip of right ring finger. (8) Abrasion on back of right little finger. The injured was found in dangerous condition and nature of injuries was equally described dangerous by him. Injury No-1 was by fire-arm whereas injuries Nos.2 and 7 were by sharp-edged weapon and rest were caused by blunt weapon. In the column of probable duration of injuries, the doctor described them as fresh. Exh. PA. was correct carbon copy of his medico-legal report with his signatures.

6. On the following day at about 10-00 a.m. he conducted post-mortem examination of Muhammad Yaqoob and found him wearing Qameez anti Shalwar, his eyes and mouth were closed, rigor mortis staining were present. He recorded the eight injuries on his body, which have already been described supra.

7. Scalp, skull and vertebrae were healthy membranes and brain, were found healthy whereas spinal cord was not opened. On dissection one metallic foreign body was found from the back of the lower part of the chest under spinet s muscle at the level of twelfth thoracic vertebra. "left chest wall injured under injury No. l, ribs and cartilages were healthy. Left lung pleura injured under injury No l, right healthy. Larynx and trachea and right lung were healthy. Left lung was injured under injury No. l and left thoracic cavity full of blood. Pericardium and heart were healthy and empty. Inferior venacava injured due to injury No. l. Abdomen was healthy. Peritoneum injured due to injury No. l. Mouth pharynx and oesophagus were healthy. Diaphragm injured due to injury No. l Stomach empty and injured under injury No. l. Pancreas healthy., Small intestines, healthy and multi-perforations due to injury No. l. Large intestines, healthy and contained gases and faecal matter. Liver, left lobe of liver was injured due to injury No. l. Spleen kidneys and organs of generation were healthy. Bladder was empty and healthy."

8. According to his observation, all the injuries were ante-mortem. The death in this case had resulted due to haemorrhage and shock due to injury No.1 which was sufficient to cause death in the ordinary course of nature. Probable time between injury and death, according to him, was one and-half hours and between death and post-mortem 12 to 24 hours.

9. The dead body, which was identified by Babar Yaqoob complainant, was handed over to the heirs whereas last-worn clothes of the deceased, police papers and sealed phial were given to the police for further necessary action. Post-mortem report Exh. P.B. and diagrams Exh.P.B./1 and Exh.P.B./2 are in the hand of the doctor with his signatures. He also medically examined Babar Yaqoob, complainant (P.W.9) and found his general condition as satisfactory and recorded his injury described in the medico-legal report Exh. P.C.

10. Shahid Farooq, Inspector/S.H.O., Police Station Sabzi Mandi (P.W.11) came to hospital, recorded the statement Exh. P.D of Babar Yaqoob (P.W.9) and transmitted it to the police station for registration of formal case. He took charge of the dead body, prepared his injury statement Exh P.L. inquest report Exh. P.M. and applied for post-mortem examination. He proceeded to the spot, took into possession broken pieces of ceramic stained with blood vide recovery memo. Exh. P.K- He also took rough notes of the place of occurrence. On 19-10-1989 he received one sealed phial Exh. P.E. post-mortem report, last-worn clothes of the deceased, shirt P.1 and Shalwar P.2 from Munir, F.C. No.1136 (P.W.3) and formally took them into possession vide memo. Exh. P.E. He procured site plans Exhs. P.H. and P.H./1 from Masood Ahmed Bhatti (P.W.6), Draftsman and appended notes thereon in red ink. He effected the arrest of the accused person on 14-1-1989.

11. During the investigation, Arif, accused, led to the recovery of pistol P.4 from his residential house vide memo. Exh P.F., which was concealed in a steel chest. Tariq accused; while in custody led to the recovery of pistol P.5 from his drawing room, concealed in a canister. Abbas and Ilyas, accused later on led to the recovery of their rifles, hidden in a godown below the gunny bags. All these arms were duly secured. by the Investigating Officer through properly witnessed memoranda i.e. Exhs P.F., P.G., P.I. and P.J., respectively. He examined the witnesses, completed the investigation, procured report Exh. P.Q. from S.P. Technical Services and it was after the completion of the investigation that he was transferred and report under section 173, Cr.P.C. was prepared by Muhammad Saleem, Inspector (P.W.12) who also submitted the challan.

12. At the trial, prosecution examined 12 P.W s. in all. Dr. Naveed Aslam Butt (P.W.1) conducted medical examination of the deceased and Babar Yaqoob injured, and so also conducted the post-mortem examination of the deceased. Baqir Hussain, A.S.I. (P.W.2) had formally recorded F.I.R. Exh.P.D/1, on the receipt of complaint Exh P.D. through Mushtaq Ahmad, F.C. No.1631 (P.W.8). He also received blood-stained earth, last-worn clothes of the deceased on 19-10-1989, which were handed over to him by the S.H.O. for safe custody in Malkhana. Consequently he despatched the relevant parcels to the office of chemical examiner intact and received all the fire-arms sent by the Investigating Officer for safe custody in Malkhana and despatched relevant parcels to S.P. Technical Services through Ramzan, F.C. No.831 (P.W.4). Muhammad Munir, F.C. No.1136 (P.W.3) had received the aforesaid articles after autopsy and had transmitted them to Moharrar. Muhammad Ramzan, F.C. No.831 (P.W.4) had transmitted sealed parcel of .30 bore pistol to S.P. Technical Services Lahore, as directed. Muhammad Boota (P.W.5) is the recovery witness of pistol, P.4, which was effected by the police at the instance of Arif accused, while under custody from his residential room vide recovery memo. Exh. P.F. He also witnessed the recovery of crime weapon Exh. P.G. of Tariq, accused, who led to its recovery while under arrest from a canister lying in his room. Masood Ahmad Bhatti, Draftsman (P.W.6) prepared site-plans Exhs. P.H. and P.H./l., Muhammad Younas (P.W.7) had witnessed the collection of last-worn clothes of the deceased, which were handed over by the doctor to Munir, F.C. (P.W.3) for entrustment to Investigating Officer and so also witnessed the recovery of the weapons from Abbas and Ilyas. Mushtaq, F.C. No.1631 (P.W.8) received certain parcels of broken pieces of blood stained ceramic and transmitted them to the office of Chemical Examiner.

13. Ocular account of occurrence has been provided by Babar Yaqoob (P.W.9), the first informant in this case and his brother Nadir Yaqoob (P.W.10) Shahid Farooq, Inspector/Investigating Officer appeared as (P.W.11) whereas Saleem, Inspector (P.W.12) had merely prepared the report under section 173, Cr.P.C. and had got the challan submitted to the competent Court.

14. In his statement under section 342, Cr.P.C. Arif, accused, admitted that his father and Muhammad Yaqoob, deceased, owned 16 shops, eight of which belonged to Muhammad Yaqoob whereas the remaining eight fell to the lot of his father. But when asked as to why this case had been made against him, he took up the following plea: "We were in possession of the disputed shop and ever since it fell vacant we had applied out locks. On the day of occurrence a prospective tenant approached my elder brother Tufail, who wanted to show the said shop to the said person. In the meanwhile Yaqoob, deceased and his associates (tenants) assaulted my brother Tufail and started him giving beating. In the meanwhile, someone fired which hit Yaqoob resulting in his death. Making use of this situation the complainant has involved myself and my relatives in this false case."

15. Tariq and his mother, Sakina Bibi, made a similar statement whereas Abbas and Ilyas, the two brothers, stated that they had been falsely implicated and they had played no part in the occurrence. According to them, the cause of their false implication was that they were ice vendors and were maintaining a horse and a cart. They would tether their horse near the shop of the complainant, which had earned them their displeasure. It was on account of this grudge that they had been maliciously involved. Arif and Tariq, accused, appeared as their own witnesses and reiterated their defence pleas taken in their statements under section 342, Cr.P.C. Muhammad Tufail (Retd.) S.I. was examined as (D.W.1) by the accused, who stated that he had gone to meet the S.H.O. for his personal business where he dictated injury statement Exh. P.L and inquest report Exh. P.M. to him. Subsequently he was also dictated statement under section 173, Cr.P.C. by Muhammad Saleem, subsequent S.H.O. He denied that he wrote these documents of his own and claimed that he had neither added nor subtracted even a single word of his own and had faithfully taken down what was dictated to him.

16. The learned Court 'after thoroughly evaluating the evidence and believing the prosecution version, convicted Arif under section 302, P.P.C. and sentenced him to death and fine of Rs.50,000 in default of which he was ordered to undergo further rigorous imprisonment for five years in the event of non-confirmation of the death sentence. In case of realization of the fine, it was ordered to be given to the legal heirs of the deceased as compensation. Muhammad Tariq was convicted under section 323, P.P.C. and was sentenced to undergo R.I. for one year and a fine of Rs.1,000 or in default to undergo R.I. for three months. Abbas, Ilyas and Sakina Bibi were acquitted presumably affording them the benefit of doubt.

17. Arif, convict, has appealed against his conviction and sentence of death. His case has also been referred to us under section 374, Cr.P.C. for the confirmation of sentence of death. The complainant has also filed revision petition for enhancement of fine from Rs.50,000 to'Rs.2,00,000 (two lacs). This judgment will dispose of the appeal, reference and the revision.

18. We are mainly concerned with the question whether the guilt of Arif appellant before us, has been satisfactorily established and whether his conviction and sentence should be maintained.

19. The case of prosecution rests on ocular evidence, which has been mainly provided by Babar Yaqoob (P.W.9) and Nadir Yaqoob (P.W.10), the other connecting evidence of recovery of blood-stained ceramic, the recovery of crime weapons and the medical evidence. Shahid Farooq Investigating Officer (P.W.11) has also strengthened the prosecution case through hip proper investigation. ,

20. Babar Yaqoob (P.W.9) and Nadir Yaqoob (P.W.10) have supported the version given in the F.I.R. that out of 16 shops each party had in possession of seven shops but the two shops in middle by removing intervening wall had become one shop and was in joint possession of the parties. It was the accused side, which wanted to have exclusive possession of the two shops on the fateful day. When resisted by Yaqoob and his sons, Arif accused, had caused death of his uncle Muhammad Yaqoob by a pistol shot on the middle of his chest right below the left nipple, which indeed was a vital part. According to the medical evidence this injury, in the, ordinary course of events, was sufficient to cause death. The evidence of recovery also lends support to the prosecution version. Considering the ocular, recovery and medical evidence, coupled with the evidence of strong motive, the trial Court believed that Arif and Tariq accused had gone, in the first instance, to the spot to take possession of the shop but on being resisted reappeared with full preparation and by their attack caused death of Muhammad Yaqoob. .

21. The defence plea when examined in juxtaposition with prosecution evidence breaks down and fails to inspire confidence. The occurrence decidedly took place at or about mid-day and it was not at all probable (when the surrounding shopkeepers had not been attracted to the spot perhaps realizing the gravity of the situation) that in the alleged crowd consisting of a few persons some one had fired at Yaqoob and the assailants had not been noticed, by any of those present at the spot. The plea is preposterous and fails to convince even a man of ordinary prudence and virtually tantamount to a "bare denial" of the occurrence.

22. Learned defence counsel has raised the following contentions, which shall be taken up and discussed serial-wise: (i) The inquest report P.M., injury statement P.L. application for post- mortem P.N., are not in the hand of the Investigating Officer, as such, these shall be excluded from evidence. (ii) It is clear from a perusal of the record that the disputed shop was in joint possession and the rent of the shop was shared by both sides in the proportion of 50% as such the complainant side had no right to restrain the accused party from occupying their portion. (ii) Abbas, Ilyas and Mst. Sakina Bibi have been acquitted on the basis of the evidence, which has been believed qua Arif and Tariq, accused. This, therefore, provides no justification for their conviction. (iv) Injury was not on the vital part of the, deceased and was not repeated, as such no mens rea can be inferred qua this single fire attributed to Arif. (v) The witnesses are closely related to the deceased and as such cannot be termed as independent witnesses and no conviction can be based on the testimony of such interested witnesses; (vi) The attack was in fact launched by the complainant side and the accused had merely acted in their defence, as such at the best it is a case which can fall under section 337-D, P.P.C. (vii) In case the occurrence is believed, it was a sudden fight and the case falls under section 304, Part II, P.P.C. (viii) Lastly the defence version is reasonable and fits in the circumstances of the case.

23. We have heard the learned defence as well as State counsel at a considerable length.

24. Taking up the first plea, we would like to refer to the statement of Muhammad Tufail (D.W.1). Although, he states that he had drafted report under section 173, Cr.P.C. injury statement Exh P.L. application for post -mortem Exh. P.N. and inquest report Exh. P.M. but he is very clear and unequivocal on the point, that he' had not inserted even a single word on his own accord and the aforesaid documents were written by him 'on the exact dictation of the Investigating Officer. It may be kept in view that Muhammad Tufail has been put up as a defence witness and a reading of his statement shows that although it was the duty of the Investigating Officer to record these documents himself but the way these had been recorded neither appears t lave caused any prejudice to the accused nor any miscarriage of justice had Occurred because as per his showing he had written them exactly according to the dictation of the Investigating Officer. Investigation by an incompetent section Officer does not vitiate the trial and the irregularity is curable under section 537, Cr.P.C. as laid down in P L D 1958 Dacca

145. Reference in this connection may also be made to 1980 P Cr. L J 97.

25. The criticism as to motive levelled by the learned defence counsel is patently devoid of any force because the case set up by the prosecution is that these two shops, which had been made into one, were in fact the joint property but the accused wanted to get the possession of the entire shop by sheer force. When prevented, they caused the death of Muhammad Yaqoob for which there was no justification, moral as well as legal. The record does not show that the accused were trying to get control of their portion of the shop but they had come to get the entire shop. This is obvious from the defence plea of Arif accused himself when he claims that they were in possession of the entire shop after its vacation by Ch. Sadiq, D.S.P. This is what prosecution had contradicted with an unimpeachable evidence. Repeated suggestions were made to P.W.9 and P.W.10 but they- refuted with full vehemence and it was asserted by them that although the accused had applied their two locks to the two doors of the disputed shop, yet likewise two locks from the complainant side also existed there. Even otherwise this plea, if read in the light of the statement of Arif accused, under section 342, Cr.P.C., completely breaks down because it is admitted proposition that out of 16 shops both the brothers owned 8 shops each and Arif accused conceded this proposition in answer to question No.3 in his statement referred to above. This objection, therefore, carries no weight.

26. It does not appear to be correct that the same evidence has been believed qua Arif and Tariq whereas the same testimony has been disbelieved with regard to the acquitted accused. Taking up the case of acquittal of Abbas and Ilyas, it is obvious that they have not been attributed by the prosecution to have any motive against the complainant side. They have neither claimed so nor have they proved any pre planning and pre-concert between these accused and the family of Meraj Din. So, therefore, their acts are to be judged on individual basis. The assertion of the prosecution is that Abbas, accused, caused chin injury to Muhammad Yaqoob, deceased, with the butt of his rifle. This injury, according to the medical report is caused by sharp-edged weapon, which could have been caused to Yaqoob, deceased, when he fell down on the pieces of ceramic lying near the sanitary store. He was thus tightly given the benefit of doubt. As for Ilyas accused, the allegation against him is that he caused injury to Yaqoob deceased with the butt of his rifle on his leg. Babar Yaqoob (P.W.9), however, described this injury on the foot and leg of his father. After the infliction of fatal injury on vital part of Yaaqoob & cased by Arif accused, there was no fun for Ilyas to have caused leg and foot injuries with the butt of his rifle. Benefit of doubt, therefore, certainly accrued to him, which has been rightly given to him. Sakina Bibi was correctly given the benefit of doubt because there was a major discrepancy qua her part in the statement of Babar Yaqoob, who had entrusted her with brickbat in the F.I.R. while in the statement he claimed that Sakina had injured his father with the, pieces of pottery. That was what is called sifting of wheat from the chaff and this is what the trial Court appears to have correctly carried out. So, therefore, the Court was justified in affording benefit of doubt to the acquitted accused and it cannot be said that the divisibility of credibility of a witness is not permissible.

27. We now come to the next objection of the learned defence counsel and wonder if the chest can be described as a non-vital part of the body. The medical examination shows that the seat of this injury was so vital that it had caused so colossal a damage that it pierced through the inferior venacava, peritoneum diaphragm; stomach, multi-perforations were caused in the intestines, left lobe of liver was injured and this injury had been described by the doctor to be sufficient in the ordinary course of nature to cause death of a human being. The seat of injury being on vital part and from a close range, Arif appears- to have rightly thought when his prey had fallen down that there was no need to repeat the fire. So, therefore, the assertion of the learned defence counsel is without any merit and is rejected.

28. Coming to the next contention, we find that there is a consensus among the judicial authorities that mere relationship is not sufficient to discredit the witnesses if otherwise their testimony inspires confidence, as such, we are not disposed to agree that as a general rule such evidence cannot be believed. Reliance in this connection can be placed on Iqbal alias Balla's case reported as 1994 S C M R

1. Every case is to be decided on its own merits and in the light of the circumstances of each particular case. In this case the dispute was between the cousins, who happened to be present at the spot, which is their place of business, as such P.W.9 and P.W.10 were the most natural witnesses. Their testimony, therefore, cannot be excluded from consideration on this score alone. The prosecution version is supported by ocular evidence, medical evidence and evidence of recoveries. When examined with defence plea in juxtaposition it appears to be quite reasonable and believable in the given situation. As such there appears to be no reason to discredit the evidence of the P.W s. which gets support from various other circumstances.

29. Learned counsel took up the next plea with great fervour but we are afraid, he has not been able to bring on record any circumstance, which could lend support to this stand. In the first instance, if Tufail had been manhandled and had suffered injuries at the hands of the complainant party why he had not undergone any medical examination. Secondly, there is not an iota of evidence that he had taken any prospective tenant for showing him the premises. Even the name of that alleged intending tenant had not figured anywhere. Then as discussed above, the plea that someone else had fired at Yaqoob during the dispute between the two sides at mid, day is simply unbelievable. There is sufficient evidence on record to show that the property was joint but Arif and others wanted the possession of the whole. The complainant side only resisted lb their unlawful attempt. The defence, plea appears to be simply an afterthought. Section 337-D, P.P.C. was brought on the statute book through Ordinance VII of 1990 (enforced on 5-9-1990) and the occurrence had taken place in October, 1989. It is a settled proposition that criminal law amendments cannot be E retrospective. So, therefore, the learned counsel is not competent to invoke the provisions of section 337-D, P.P.C.

30. The evidence led by the prosecution shows that the occurrence took place in two parts and in the first instance Arif and Tariq appeared on the scene and were resisted by the complainant side from taking forcible possession of the two shops. They reappeared with full preparation and premeditation, as such, this was not a sudden fight and no provocation was offered to them, hence, there is absolutely no ground to seek the application of section 304, Part Il, P.P.C.

31. The last and final plea has already been dealt with and the defence plea set up by the accused had been rightly discarded by the learned trial Court.

32. Learned counsel for the complainant had filed Revision Petition No.269 of 1991 for the enhancement of sentence of fine. No solid ground whatsoever has been advanced for the enhancement. Since the death sentence is being confirmed, there is no occasion to enhance the fine. The revision petition is without any merit and is dismissed.

33. We would, therefore, dismiss the appeal and confirm the sentence IF awarded to the appellant. N.H.Q./M-1854/L Appeal dismissed.