1994 P Cr (PLP)

KHAN RIAZ-UD-DIN AHMAD, J.

The appellant Muhammad Yaqoob aged about 35 years alongwith two others, namely, Mst. Zaib-un-Nisa and Ghulam Qadir, was tried by the learned Additional Sessions Judge, Rawalpindi, on a charge under section 302/34, P:P.C. for having committed the murder of one Altaf Hussain. Vide judgment, dated 22-1-1989, the learned trial Judge, while acquitting Mst. Zaib-un-Nisa and Ghulam Oadir, convicted the appellant under section 302, P.P.C. and sentenced him to death and to pay a fine of Rs.25,000 or in default to undergo R1. for two years. The amount of fine, if realized, was ordered to be paid in equal distribution to the heirs of the deceased as' compensation under section 544-A, Cr.P.C. In the event of conversion of death sentence to life imprisonment, the appellant was held to be entitled to the benefit of section 382-B, Cr.P.C.

2. Aggrieved by the aforesaid conviction and sentence, the appellant has filed the instant appeal, whereas the learned trial Court has made a reference (Murder Reference No.136 of 1989) to this Court under section 374, Cr.P.C. for confirmation of death sentence. Both these matters are being disposed of through this judgment.

3. The fateful incident had taken place on 6-6-1987 at about 11-15 a.m. in the area of Muslim Town, Rawalpindi, at Allah Wala Chowk, at a distance of 2 kilometres from Police Station Farooqabad. F.I.R. Exh.P.A./1 was recorded by Taj Muhammad S.I. P.W.1 on receipt of the statement Exh.PA. of Zardad Khan, complainant, brother of the deceased, P.W.12, made before S.I. Muhammad Akram P.W.13 at General Hospital, Rawalpindi, at about 2-00 p.m.

4. Briefly the case of the prosecution as contained in the F.I.R. is that on 6-6-1987 at about 10-00 a.m. Zardad Khan complainant alongwith his brother Altaf Hussain deceased and Muhammad Razzak left for Islamabad. When they reached Allah Wala Chowk at 11-15 a.m., suddenly Muhammad Yaqoob appellant, Ghulam Qadir co-accused both armed with Chhuris, while Mst. Zaib-un-Nisa, empty handed, turned up at the spot. Mst. Zaib-un-Nisa exhorted her co-accused `to go away with Altaf Hussain, who was few paces ahead of his brothers. She held Altaf Hussain in her clasp, while Muhammad Yaqoob and Ghulam Qadir inflicted successive Chhuri blows on various parts of his body, as a result of which he fell down on the ground, followed by further Chhuri blows by the two accused. The alarm raised by Zardad Khan P.W. attracted Muharram Khan P.W.11 and others who apprehended Muhammad Yaqoob accused at the spot alongwith Chhuri, while the other co-accused namely, Mst. Zaib-un-Nisa and Oadir escaped from the scene of occurrence.

5. The motive of the occurrence was stated to be that on 15-2-1987, Zulfiqar Ahmad, nephew of Altaf Hussain deceased, was murdered and Farooq, Habib-ur-Rehman and Muhammad Sarwar, the close relatives of the accused, were challaned therefor. Altaf Hussain deceased had been pursuing the said case against the accused. The appellant and his co-accused wanted Altaf Hussain to desist from pursuing that case. Thus, on account of this grievance, they had caused fatal injuries to Altaf Hussain.

6. Altaf Hussain in injured condition, was shifted to General Hospital, Rawalpindi, where F.C. Muhammad Shamim P.W.4 who was on duty in the Emergency Room, prepared his injury statement Exh.P.B. and got him medically examined.

7. On 6-6-1987 at 11-45 a.m. Dr. Mahmood Ahmad Khan P.W.7 medically examined Altaf Hussain and found the following injuries on his person:-- (1)??????? A penetrating wound 4 c.m. x 1 c.m. in the left hypochondrium just to the left of epigastrium, depth not probed. (2)??????? A penetrating wound 5 c.m. x 1 c.m. below and lateral to the right nipple about 8 c.m. below. Depth not probed. (3)??????? Incised wound 4 c.m. x 0.5 c.m. on the medial aspect of right palm. It is skin deep. (4)??????? Penetrating wound 7 c.m. x 4 c.m. in the left axilla with profused bleeding. As per medico-legal report Exh.P.B., the doctor declared injuries Nos.l, 2 and 4 to be dangerous to life and injury No.3 as simple. The duration of the injuries was within one hour and they were inflicted with a sharp-edged weapon. However, Altaf Hussain expired in the hospital the same day.

8. On receipt of information about the aforesaid occurrence, Raja Muhammad Akram, S.I. P.W.13 reached the hospital where he recorded -the statement of the complainant and sent the same to the police station for formal registration of the F.I.R. He arrested Muhammad Yaqoob, appellant who was produced by Zardad Khan P.W. alongwith Chhuri, which was taken into possession vide memo. Exh.P.G. attested by Abid Hussain P.W.10, Zardad Khan P.W.12 and Muhammad Riaz (given up P.W.). He took into possession medico-legal reports in respect of the deceased and his last-worn clothes P.1 to P.3 and a pair of Chappal P.4/1-2 vide memo. Exh.P.C., attested by Muhammad Shamicn F.C. P.W.4. He also prepared the injury statement Exh.P.J. and inquest report Exh.P.K. of the deceased. Injury statement Exh.P.B. of Altaf Hussain produced by the aforesaid F.C. Muhammad Shamim was also taken into possession vide memo. Exh.P.C. attested by the same witness. Then he sent the dead body of Altaf Hussain to the mortuary for post?mortem examination, under the escort of F.C. Imtiaz Ahmad P.W.6.

9. On 7-6-1987 at 10-30 a.m. Dr. Muhammad Hanif P.W.8 conducted post-mortem examination on the dead body of the deceased and found the following injuries on his person:-- (1)??????? An incised wound 4 c.m. x 1 c.m. in the left hypocondrium; just to the left of epigastrium, 14 c.m. below left nipple and 12 c.m. above umbilicus. (2)??????? An incised wound 5, c.m. x 3 c.m. on right side front of chest, 8 c.m.below right nipple and 10 c.m. lateral to mid of sternum. (3)??????? An incised wound 4 c.m: x 0.5 c.m. on the medial aspect of right palm. It is skin deep. (4)??????? An incised wound'? c.m. x 4 c.m. on left axilla. (5)??????? Two stitched wounds of venesection on the medial aspect of right and left ankle joint above mallelous. (6)??????? An incised wound of venesection 3 c.m. x 0.5 c.m. on medial aspect of left leg, 4 c.m. above medial mallelous. In the opinion of the doctor, the deceased died due to shock and haemorrhage which led to cardio-respiratory failure as a result of injuries Nos.l and 4, which were sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem, caused by sharp-edged weapon. Injuries Nos.2 and 3 were simple in nature. Injuries Nos.5 and 6 were venesection done by the doctor for the treatment of the deceased. Probable time between injuries and death was in between one to two hours and the time between death and post-mortem examination was within twenty-four hours.

10. Muhammad Akram S.I. P.W.13 drafted a complaint under section 13 of Arms Ordinance, 1965, and sent it to the police station for registration of the case. Then he went to the spot alongwith Zardad, Muharram, Abid and Riaz, P.Ws., and Muhammad Yaqoob accused. On spot inspection, he took into possession blood-stained earth and sealed the same into a parcel vide memo. Exh.P.H., attested by Muhammad Riaz and Abid Hussain, P.Ws. He also arrested Mst. Zaib-un-Nisa and Qadir accused on 25-6-1986. After due investigation, the accused were challaned to Court to face their trial.

11. To prove its version at the trial, the prosecution examined as many as 13 P.Ws. Ocular account was furnished by Muharram Khan P.W.11 and Zardad Khan P.W.12. Zardad Khan P.W.12 also furnished the evidence with respect to the motive. Medical evidence was given by Dr. Mahmood Ahmad Khan P.W.7 and Dr. Muhammad Hanif P.W.8. Muhammad Akram S.I. P.W.13 gave the details of the investigation. The prosecution also tendered in evidence the positive reports of the Chemical Examiner Exhs.P.L. and P.M. and that of the Serologist Exhs.P.N. and P.O. The rest of the evidence was formal in nature.

12. When examined under section 342, Cr.P.C., the accused/appellant pleaded his innocence and denied the allegations against him. In reply to question "As to why this case against you and why the P.Ws. deposed against you", the appellant stated as under:-- "I have been involved in this case due to enmity. Altaf deceased was a fraudulent person and he had deprived many persons of their earning on the pretext of sending them abroad and some unknown persons committed the murder of the deceased:" However, the appellant neither made his statement under section 340(2), Cr.P.C. in disproof of the allegation levelled against him nor produced any witness in his defence.

13. On the basis of the abovesaid evidence, the learned trial Court convicted and sentenced the appellant as indicated above. 14.?????? Learned counsel for the appellant has vehemently contended that the two eye-witnesses produced by the prosecution, namely, Zardad Khan P.W.12 and Muharram Khan P.W.11, being interested and partial witnesses, their statements may not be relied upon without independent corroboration. Elaborating his submissions, learned counsel submits that Zardad Khan P.W.12 is real brother of the deceased, while Muharram Khan P.W.11 is from their brotherhood. It is further contended that even the presence of these two witnesses at the spot is doubtful. According to the learned counsel, Muharram Khan P.W.11 who is stated to be dealing with the sale and purchase of second-hand cars has got no parking place in front of lus so-called shop which consist of a Khokha, as such, it cannot be said within certainty that he was running the same business at the relevant time and had witnessed the occurrence. The place of occurrence was populated one and there are chances that independent persons around the said place might have seen the occurrence but no such person has been produced by the prosecution. Learned counsel has also pointed out certain discrepancies, so as to challenge their veracity. In support of his contentions, regarding presence of the said witnesses learned counsel submits that if these witnesses had been present there, the co-accused of the appellant, namely, Mst. Zaib-un-Nisa and Qadir, would not have made good their escape and would have been apprehended at the spot. Even the learned counsel disputes the arrest of the appellant at the spot by the said P.Ws. According to him, Muhammad Shamim P.W.4 who was in the Emergency Ward at the relevant time does not support the version of the prosecution, as according to the said P.W., some persons had brought the appellant at the hospital. Lastly, it is submitted that as two other innocent persons were also involved in the occurrence, so the version of the prosecution stands belied by their acquittal by the learned trial Court, as such, the same evidence is not to, be relied upon to convict the appellant.

15. On the other hand, learned State counsel, assisted by the learned counsel for the complainant, has controverted the contentions of the learned counsel for the appellant and has submitted that no enmity whatsoever against the two eye-witnesses has been alleged by the appellant, so as to falsely implicate him in the crime; that the discrepancies pointed out by the learned counsel have no bearing on the factum aspect of the case, being minor in nature, which in the normal course of events, could occur by the lapse of time; that Muharram Khan P.W. is independent witness and has absolutely no relationship with the deceased and that he is natural witness of the occurrence as well. His shop was located near the place of occurrence and he has made straightforward statement, supporting the case of the prosecution which has not been seriously challenged by the defence; that the appellant was apprehended by the P.Ws. at the spot and was produced before the police. This is a strong circumstance to prove the case of the prosecution against the appellant beyond any reasonable doubt that the motive alleged by the prosecution stands proved through Zardad Khan P.W.12, who stated that Altaf Hussain deceased was pursuing the murder case of Zulfiqar deceased, his nephew, against the close relatives of the appellant, as such, the accused party was inimical towards him and wanted to stop him from pursuing the said case. It is lastly submitted that the acquittal of the two co-accused of the appellant would not affect the case of the appellant, as the statements of the P.Ws. cannot be brushed aside on this score alone that their statements were not believed qua the two acquitted co-accused.

16. We have considered the submissions made by the learned counsel for the parties and have perused the record with their assistance. The prosecution has mainly relied upon the testimony of two eye-witnesses, namely, Muharram Khan P.W.il and Zardad Khan P.W.12, besides the evidence of the recovery of weapon of offence from the possession of the appellant Muhammad Yaqoob at the time of his arrest coupled with the evidence of.motive furnished by Zardad Khan P.W.12 and the medical evidence.

17. Zardad Khan P.W.12 has reiterated the contents of the F.I.R. and has further stated that immediately after the occurrence, he alongwith Muharram Khan P.W. and others took the injured to Rawalpindi General Hospital alongwith Muhammad Yaqoob appellant/accused who was apprehended at the spot with the weapon of offence. It was there at the hospital that his statement Exh.PA. was recorded by S.I. Muhammad Akram P.W.13. He produced Muhammad Yaqoob accused alongwith the blood-stained Chhuri P.5 before the Investigating Officer, who arrested him and took the Chhuri P.5 into possession vide memo. Exh.P.G. He further stated that Mst. Zaib-un-Nisa was the mother of Qadir co-accused and Muhammad Yaqoob appellant was the brother of Farooq the son-in-law of Mst. Zaib-un-Nisa accused. While giving the details of motive, this witness has specifically statod in his statement that in February, 1987, Zulfiqar stepson of Altaf deceased of this case was murdered in which Sarwar, Habib-ur-Rehman and Farooq, son, husband and son-in-law of Zaib-un-Nisa, accused, respectively were challaned to Court and were facing the trial. Farooq accused of the said case happened to be the real brother of Muhammad Yaqoob appellant. As Altaf deceased was pursuing the case against the accused, so the appellant and other accused wanted the deceased to desist from pursuing the abovesaid case, which consequently led to the present occurrence.

18. Muharram Khan P.W.11 has corroborated the version of Zardad Khan P.W.12 on all material particulars, by stating that on 6-6-1987 at 11-15 a.m. when he was present in his shop situated in Allah Wala Chowk, Rawalpindi, he saw that .Zardad Khan and Muhammad Razzaq, P.Ws., alongwith Altaf Hussain deceased crossed near his shop. Altaf Hussain deceased was ahead of his brothers at a distance of about 5/6 paces from them. When Altaf Hussain deceased reached in front of Karyana shop of Sheikh Ghulam Rasool, Mst. Zaib-un-Nisa, Ghulam Oadir and Muhammad Yaqoob appellant appeared at the scene. Muhammad Yaqoob appellant and Ghulam Qadir were holding Chhuris in their hands. Mst. Zaib-un-Nisa raised a Lalkara that Altaf deceased would not be allowed to go alive and held the deceased in her clasp from behind while Muhammad Yaqoob appellant initiated an attack and gave a Chhuri blow to Altaf Hussain, which hit him in his belly, followed by Ghulam Qadir who also inflicted a Chhuri blow on the person of the deceased, which hit him on his chest and the said accused then gave successive Chhurii blows to Altaf Hussain. It was further stated that the blow of Muhammad Yaqoob accused hit the deceased in his left armpit and the blow given by Ghulam Qadir had hit him on the palm of his right hand. The alarm thus raised attracted large number of persons at the spot. He, Zardad Khan, Abid Hussain and Muhammad Riaz P.Ws. apprehended Muhammad Yaqoob appellant at the spot alongwith blood-stained chhuri while the co-accused had made good their escape. Altaf Hussain in an injured condition was -then taken to the General Hospital, Rawalpindi, where he succumbed to his injuries the same day. In cross-examination, he has stated that Altaf Hussain deceased was not related to him. He has also denied having any animus against the appellant and also denied the suggestion that he had not seen the occurrence.

19. We have considered the intrinsic worth of the statements made by the two witnesses. We find that though they were subjected to a lengthy cross?examination by the defence but nothing beneficial to the appellant could be elicited. Admittedly, Zardad Khan P.W. is the real brother of the deceased but his presence at the spot at the relevant time has satisfactorily been explained by the prosecution. On the fateful day, all the three brothers were going to Islamabad and were on their way to get conveyance to reach their destination when the occurrence had taken place at Allah Wala Chowk. Therefore, it cannot be said that Zardad Khan P.W. was subsequently imported as an eye?witness. Muharram Khan P.W.11 who is an independent and natural witness of the occurrence has further lent support to the version given by Zardad Khan P.W. The shop of Muharram Khan is located in the said Chowk. The occurrence had taken place at about 11-15 a.m. and it is the time when the shop-keepers are normally present at their business concerns. Learned defence counsel has tried to challenge the veracity of this witness by arguing that as no parking place of the cars was provided in front of the shop of the said witness, therefore, this witness was not telling the truth by saying that he was running a motor-dealer shop and that this witness was Daniyal by caste and was from the brotherhood of the deceased, so his statement is not to be relied upon, being an interested witness. We are afraid that both the contentions of the learned counsel are without any force. To run a business of motor-dealer shop, it is not essential to have a parking place in front of the said shop as the footpaths of the roads and vacant sites around serve the purpose of parking cars and they require only a small place to sit in and manage their affairs. So far as the interestedness of this witness due to brotherhood is concerned, we repel the contentions by simply observing that no enmity whatsoever has been urged against the said witness, which would have prompted him to falsely implicate the appellant. As such, he cannot be treated as an interested witness. This witness has categorically stated that immediately after the occurrence, the accused/appellant was apprehended at the spot alongwith Chhuri P.5. the weapon of offence, which was blood-stained and the same was produced before the police alongwith the appellant. The said Chhuri was reported to be stained with human blood vide reports sent by the Chemical Examiner and Serologist Exh.P.L. and Exh.P.N: respectively. This is yet another circumstance to connect the appellant with the crime.

20. The contention of the learned counsel for the appellant that the above-said two witnesses are not to be believed, as their statements stand disbelieved by the learned trial Court qua Mst. Zaib-un-Nisa and Qadir co?accused, the same would simply be brushed aside by observing that the statements of the P.Ws. are not to be treated as indivisible, as the maxim falsus in uno falsus in omnibus is no more applicable these days, because the Courts /~ are required to sift the grains from the chaff. The statements of the two witnesses have been scrutinized cautiously by us. We find that these were consistent, so far the role played by the appellant and his arrest alongwith the weapon of offence at the spot was concerned. No material contradictions or any discrepancy has occurred in the statements of the said witness, so as to label the said statements as false and fabricated. We are, therefore, of the considered view that the statements of the eye-witnesses inspire confidence and are worth reliance.

21. Lastly, learned counsel for the appellant has prayed for the commutation of the sentence of the appellant as, according to him, the fatal injuries have not been specifically attributed to the appellant and this being a mitigating circumstance, , the death sentence may be converted into life imprisonment. We have considered this aspect of the matter but we do not feel persuaded .to agree with the learned counsel on this point as well. The appellant after having armed himself with Chhuri had brutally committed the murder of a person who, in due course of law, was pursuing the case of his stepson in the Court against the brother and other close relatives of the appellant. Moreover, Muharram Khan P.W.11 has specifically stated that the appellant had initiated the attack by inflicting Chhuri blow, hitting him under his left armpit which subsequently proved fatal. The mode and manner of infliction of injuries on the person of the deceased, as such, would not warrant any leniency for the appellant.

22. The upshot of the above discussion is that the statements of the two eye-witnesses, namely, Muharram Khan P.W.11 and Zardad Khan P.W.12 inspire confidence and thus are worth reliance. The apprehension of the C accused at the spot alongwith Chhuri, the weapon of offence, is yet another circumstance to strengthen the case of the prosecution. There is no conflict between the medical evidence qua ocular account. Therefore, we are of the view that the prosecution has successfully proved its case against the appellant beyond any reasonable doubt and the learned trial Court has rightly convicted and sentenced the appellant. The sentence of death imposed on Muhammad Yaqoob appellant is, therefore, justified, as such, the same is confirmed. Murder Reference No.136 of 1989 is answered in the affirmative and the criminal appeal filed by the appellant stands dismissed. Death sentence confirmed. N.H.Q./M-1719/L ????????????????????????????????????????????????????????????????????????????? Appeal dismissed.