1992 P Cr (PLP)

JUSTICE RAJA AFRASIAB KHAN (MEMBER).

Falak Sher (26) son of Ahmad Hasan, Jafar (26) son of Ahmad, Manzoor (27/28) son of Muhammad Hussain, Noor Ahmad (16) son of Bashir Ahmad and Manzoor alias Manzoori (30) son of Shahamad, were tried by the learned Judge, Special Court for Speedy Trials No.1, Lahore, under sections 458/149 and 460/149, P.P.C. On 10-5-1992, the learned Judge convicted Falak Sher, appellant, under section 458, P.P.C. and sentenced him to 10 years' R.I. plus a fine of Rs.10,000 or in default thereof to undergo further R.I. for one year. He was also convicted under section 460, P.P.C. and sentenced to death as Qisas for the murder of Salim (38). He was also convicted and sentenced to imprisonment for life for having made an attempt to murder Mst. Mamoona Tahira (P.W.25). The remaining 4 co-accused, namely, Jafar, Manzoor, Noor Ahmad and Manzoor alias Manzoori were acquitted by the learned Judge by giving them the benefit of doubt, vide the same judgment.

2. Shortly stated, the facts of the case are that Muhammad Tayyab son of Qasim, a resident of village Munanwala, was an employee of Government Transport Service during the time of the occurrence. His younger brother Tahir Mehmood was t6 be married on 24-11-1991. His elder brother Muhammad Saleem, who was employed in the Pakistan Army, as Khateeb Subedar, had also come on leave to attend the said marriage ceremony. His sister, Mst. Maimuna Tahira along-with her husband Noor Ahmad had also come from Sahiwal on the occasion. On 24-11-1991, at about 3-30 a.m. they were talking 'with one another in connection with the arrangements of marriage. In the meantime, they felt as if some body was present and moving about in the courtyard of their house. In consequence, Muhammad Tayyab, Muhammad Saleem, Tahir Mehmood and Mst. Maimuna Tahira came out in the courtyard. Muhammad Saleem was just ahead of them. There was a special arrangement of light having been made in the house in order to celebrate the marriage ceremony. They saw a stranger with a carbine standing in the courtyard of their house in suspicious condition. Later, it was, known that he was Falak Sher, the appellant. Muhammad Saleem made an attempt to apprehend him. Falak Sher, thereupon fired which hit Muhammad Saleem on his chest. Muhammad Saleem fell down. Falak Sher tried to reload his weapon to again fire at them. However, Muhammad Tayyab grappled with him in the meantime. The other accused, whose identity was later on disclosed by the appellant, were Manzoor alias Maizoori, Jafar, Noor, Doona and Manzoor son of Muhammad Hussain. They were standing on the roof of their house duly armed. They fired at the complainant party as a result of which Mst. Maimuna Tahira was injured. On the alarm being raised, Muhammad-Anwar Khan, Muhammad Ibraheem, the neighbours of the complainant, also reached the spot to witness the occurrence. Muhammad Saleem died on the spot on account of the injuries. Mst. Maimuna Tahira was lifted in an injured condition and was brought to hospital for her treatment. It was also known that on the previous night these very persons had committed a theft in the house of Mst. Hameeda Bibi, wife of Ghulam Muhammad. The accused .had entered into the house of the complainant in order to commit a dacoity while armed with deadly weapons.

3. Statement Exh.P.F./2 of the complainant Muhammad Tayyab was recorded by Aizaz-ud-Din S.I./S.H.O. Police Station Mananwala at 4-15 a.m. on 23-4-1991. Thereafter, the formal F.I.R. Exh.P.F./1 was registered by Muhammad Akber Moharrir Head Constable on the same day at 4-20 a.m.

4. Aizaz-ud-Din S.I./S.H.O. Police Station Mananwala (P.W.13) investigated the case. He straightaway went to the spot. Falak Sher, appellant, was produced by Anwar and Ibraheem P.Ws. before him along with carbine P.2 and an empty P.1 with two live cartridges. The crime empty and the carbine were taken into possession by him vide memos Exh.P.H. and Exh.P.J. and were sealed into separate parcels. The accused Falak Sher was found injured and as such was also medically examined. The dead body of Muhammad Saleem was found lying in the house of the complainant. Injury statement Exh.P.D. and Inquest Report Exh.P.E. of the dead body were prepared by the investigator. The dead body was sent to mortuary for post-mortem examination under the scort of Daulat Khan A.S.I. Blood-stained earth was taken into possession vide memo. Exh.P.G. Rough site plan Exh.P.M. was prepared by the investigating officer. Daulat Khan A.S.I. produced shirt 11.3, Chadar P.4 and a vest P.5 and a sealed phial P.6 containing pellets before the Sub-Inspector which were taken into possession vide memo. Exh.P.L. The remaining accused were arrested by the Police Officer on 27-4-1991 except Manzoor accused who was arrested by him on 14-5-1991. He disclosed that he could lead to the recovery of his weapon of offence. In consequence, carbine P.7 and six live cartridges P8/1-6 were recovered from near a tree at a distance of half a mile from Mananwala at his instance. These articles were taken into possession vide memo. Exh.P.N. The statement of Mst. Maimuna. Tahira was recorded in the hospital by the Police Officer on 9-5-1991. Site plans Exh.P.K. and Exh.P.K./1 were prepared by Syed Abdul Raheem Kazmi, Draftsman (P.W.10) under the directions of the investigating officer.

5. The report Exh.P.T. dated 6-5-1991 of the Chemical Examiner and the report Exh.P.V. dated 19-7-1991 of the Serologist on the earth, taken into possession from the place of murder, were positive, inasmuch as it was found to have been stained with human blood. The report of the Forensic Science Laboratory Ex.PU dated 18-7-1991 was positive and it disclosed as follows:-- "The crime empty of .12 bore marked as C was examined and compared with the test empties of .12 bore prepared from the shot pistol of .12 bore and it was found that:-- The crime empty of .12 bore marked as C HAD BEEN FIRED from the shot pistol of .12 bore butt and body signed abovementioned."

6. Dr. Abdul Bari Medical Officer, D.H.Q. Hospital Sheikhupura conducted post-mortem examination upon the dead body on 23-4-1991 at 9-30 a.m. and found the following injury on it:-- "9 fire-arm wounds of entry each measuring 8 c.m. x .8 c.m. in an area of 17 x 16 c.m. on front of chest, both sides lower part." On external examination, it was found that 4th, 5th and 6th ribs on his front were fractured on the right side. On the left side, 5th and 6th ribs were also fractured. It was noted that both lungs, heart, diaphragm, liver, stomach, both large and small intestines were damaged. Great blood vessels of chest were damaged. One pellet from right lung and two pellets from under the skin of left side of chest were recovered. These articles were sealed and handed over to the police officer for keeping them in safe custody. The injury was ante-?mortem having been caused by afire-arm. It was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was immediate while the time between death and post-mortem examination was within 5 to 8 hours. On the same day at about 5-00 a.m. the same Doctor medically examined Mst. Maimuna Tahira and found the following injury on her person:-- (1) Multiple fire-arm wouhds of entrance measuring .3 c.m. x .3 c.m. x DNP on head, forehead, eyes, face, neck and front of chest." Her eyes were swollen. The patient complained that she was unable to see anything. She was suffering a shock. Her blood-pressure was 90/60 and pulse thready. The injury was kept under observation. The Doctor opined that the injury was caused by a fire-arm within a duration of two to three hours. On 13-7-1991, the said injury was declared to be grievous.

7. The eye-witness account was furnished by Muhammad Tayyab P.W.5, Mst. Maimuna Tahira P.W.6, Muhammad Ibraheem P.W.7 and Anwar Khan P.W.9.

8. Falak Sher, appellant denied the allegations levelled against him in his statement under section 342, Cr.P.C. He stated that his maternal aunt Mst. Rasoolan Bibi lived in Mananwala. He had come to the village to see her. On the morning of the night of occurrence, he was going towards the bus-stand in order to go back to his village when he was suddenly caught by 15/16 persons. They handed him over to the local police. He went on to explain that one Noor Ahmad of his village was employed as an Inspector Police (Razakar) and was inimical towards him and that he got him involved falsely in this case. The appellant disclosed that he was given beating by the police and was also medically examined. He pleaded his innocence.

9. Learned counsel vehemently contends that there was not an iota of evidence to show that the appellant was concealing himself in order to commit a lurking house-trespass by night at the place of occurrence. He, therefore, argues that the provisions of section 460, P.P.C. were not at all attracted to the facts and circumstances of this case. It is maintained that the prosecution did not at all succeed to prove, its case against the appellant beyond reasonable doubt. Lastly, learned counsel urges that the offence was not gruesome or sensational and as such the case could not have been referred to the learned Special Court for Speedy Trials under the law. The learned Additional Advocate-General defended the conviction and sentence of the appellant by adopting the reasons already given in the judgment under challenge. He says that Muhammad Tayyab and Mst. Maimuna were the natural witnesses being the inmates of the house and as such were rightly, relied upon. He submits that the appellant was caught red-handed by the witnesses themselves at the spot along with his weapon and as such he was rightly convicted and sentenced.

10. We have heard the learned counsel for the parties at considerable length and have also gone through the entire record very carefully. We do not find any substance in the arguments of learned counsel for the appellant. In our view, entrustment of - the case of the appellant for his trial to the learned Special Court for Speedy Trials was justified in law inasmuch as the offence committed by him in the small hours of night of occurrence was undoubtedly gruesome, sensational and alarming in nature. The point essentially touches the very jurisdiction of the learned trial Judge and as such it should have been raised before him. It appears that it was not taken up before him. The learned counsel, therefore, cannot be allowed to raise this point at this late stage. Even otherwise, we do not find anything wrong with the trial of the appellant by the learned Special Court under the existing law. The argument, therefore, fails and is hereby repelled. The other contention of the` learned counsel that there was no evidence to show that the appellant concealed himself for commission of lurking house-trespass, has equally no force and is also discarded. Learned counsel also relies upon Chhadami v. Emperor A I R 1940 All: 259 in support of his plea. We hold the view that the authority relied upon has no relevance at all to the facts and circumstances of this case. The precedent case dealt with a petty theft of an old pair of shoes worth a few annas, having been committed by a person belonging to a registered criminal tribe. The accused in that case was caught by the witnesses not on the spot while in the case in hand the accused was apprehended by the witnesses at the spot during the process of commission of the crime. The appellant had come to the spot duly armed during night stealthily to commit lurking house-trespass. The co-accused of the appellant had already gone to the roof of the house of the deceased. The accused in this case, therefore, had already committed lurking house-trespass by night before committing the murder of Muhammad Saleem. There is overwhelming evidence available on record that the accused while armed with deadly weapons had trespassed into the house of the complainant and thereafter committed the offences charged against them. Muhammad Tayyab P.W.5 and Mst. Maimuna Tahira P.W.6 are undoubtedly real brother and sister of the deceased but their presence at the spot at the time of occurrence cannot at all be doubted because Muhammad Saleem was to be married and as such they had come to attend his marriage ceremony. They supported the case of the prosecution in its entirety. They deposed unanimously that on 23-4-1991 at about 3-30 a.m. they felt as if some one was present and moving in the courtyard of their house. They, therefore, came out in the courtyard only to find in the electricity light that the appellant was present duly armed with a carbine. Muhammad Saleem held Falak Sher appellant in his clasp whereupon he fired which hit Muhammad Saleem on his chest. On receipt of the injury he fell down and died on the spot. In the meantime the witnesses also reached the spot. They overpowered the accused. The other accused also fired and injured Mst. Maimuna Tahira P.W.6. The evidence of P.W.5 and P.W.6 does inspire confidence being natural, consistent and straightforward. The medical evidence also corroborates the ocular account inasmuch as it shows the existence of only one fire-arm injury on the, person of the deceased. The report of the Forensic Science Laboratory would further lend support to the prosecution case because the weapon recovered from the appellant was found wedded with the crime-empty recovered from the spot. This is a case of single accused having been caught at the spot by the witnesses. There is, thus, overwhelming, trustworthy and reliable evidence available on record to show that the appellant committed the crimes charged against him.

11. The result of the above discussion is that the appellant was rightly convicted and sentenced by the learned trial Court. Accordingly, we proceed to uphold the conviction and sentence of the appellant. The appeal of the appellant being without substance is hereby dismissed. (Sd.) ??? Shafiur Rahman, Chairman (Sd.) Raja Afrasiab Khan, Member JUSTICE ABDUL MAJID TIWANA (MEMBER).

The sentence of the appellant awarded to him by the learned trial Judge under section 460, P.P.C., in my opinion, falls under the category of `Tazir', if at all that categorisation is necessary, and not under `Qisas' as held by him in the impugned judgement. With this observation, I concur with the conclusion reached by my learned brothers. N.H.Q./50/SAC?????????? Appeal dismissed.