2007 PLP 1985 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.652 of 2006 filed by Amin alias Saleem, Abdul Waheed alias Pappu and Mustafa appellants, who were convicted and sentenced by learned Additional Sessions Judge, Faisalabad vide his judgment dated 27-4-2006 under section 302(b), P.P.C. to undergo imprisonment for life each and to pay Rs.50,000 as compensation to the legal heirs of the deceased with the benefit of section 382-B, Cr.P.C. Criminal Revision No.493 of 2006 filed by Rana Nasir Ali against Amin etc. for the enhancement of sentence shall also be disposed of through this single judgment.

2. Brief facts of the case, as disclosed by Rana Nasir Ali complainant P.W.3, are that on 8-2-2000 at about 7-30 p.m. his brother was returning from the shop of Hafeez Mechanic and while he was coming down from the Tonga near the house, the accused Waheed alias Pappu, Amin alias Billu, Mustafa along with two unknown persons came with their common intention, that Waheed raised "Lalkara" that they have come to take revenge for disgracing them, that Waheed alias Pappu fired a shot with .12 bore gun on Asif Ali deceased, who sat down and the fire missed and when he was sitting the accused Amin inflicted hatchet blow causing injury on the left side of his head, that the second injury on the head of the deceased was caused by Mustafa accused , by back side of the hatchet, that thereafter, Waheed alias Pappu inflicted three blows by "Butt" of gun, which landed at head and various parts of his body, that on hearing hue and cry, Ghulam Mustafa (given up), Abdul Hameed (P.W.5) and other people of the village attracted to the place of occurrence and witnessed the occurrence. Motive behind the occurrence was that about one hour prior to the occurrence an altercation took place between the deceased and accused Waheed alias Pappu on account of misunderstanding and the deceased slapped at Waheed accused and due to this grudge, the accused committed the murder of the deceased.

3. After registration of the formal F.I.R., the investigation of the case was taken over by Muhammad Hussain S.-I. P.W.9, he reached at the hospital, prepared injury statement Exh.P.B. and inquest report Exh.P.C. of the deceased, then, went to the spot, collected blood-stained earth vide memo. Exh.P.G. on 20-2-2000 he arrested Amin accused, who on 5-3-2000 got recovered hatchet P.2, which was taken into possession vide memo. Exh.P.E. He also got recovered a .222 bore rifle belonging to the deceased; which was taken into possession vide memo. Exh.P.D. After completion of remaining formal investigation the accused were challaned to face the trial.

4. At the trial, prosecution in order to prove its case produced 13 witnesses in all, thereafter, learned D.D.A. tendered in evidence report of Chemical Examiner Exh.P.Q., report of Serologist Exh.P.R. and closed the prosecution case, then, the statements of the appellants were recorded under section 342, Cr.P.C. in which they pleaded the right of self-defence. They also tendered in evidence certified copies of five F.I.Rs. Exh.D.C. to Exh.D.G. in their defence.

5. Learned counsel for the appellants in support of this appeal submits that there is delay of 11 hours in lodging the F.I.R., that Waheed appellant also received fire-arm injury during the occurrence but the prosecution suppressed his injury, that Dr. Tahir Mahmood M.O. P.W.12, who had conducted medical examination of the deceased in. his lifetime, also examined Waheed appellant on the same day at 8-20 p.m. and found fire-arm injury on his abdomen, that during the investigation, the Investigating Officer came to the conclusion that Waheed appellant had acted while using the right of self-defence, that though Amin and Mustafa appellants were armed with hatchet but there is no injury on the person of the deceased with sharp edged weapon, that Investigating Officer also came to the conclusion that Mustafa, Gulzar and Waheed were not present at the. spot, that no recovery pf any weapon of offence was effected from Waheed appellant, that learned trial Court had not touched and discussed the version of the appellants, that deceased was a person of bad character andin this regard appellants had also tendered in evidence five F.I.Rs. registered against the deceased and this fact was admitted by Rana Nasir P.W.3 in his statement before the trial Court. He further submits that it is a case of two versions and if both the versions are put in juxtaposition, then, version of the appellants seems to be more plausible and convincing one, that appellants have not exceed the right of self-defence, that prosecution failed to prove its case against the appellants and they are entitled to acquittal.

6. On the other hand, learned A.P.G. assisted by learned counsel for the complainant submits that delay in lodging the F.I.R. has been explained, as deceased was taken to the different hospital for treatment but later on, he died and then the F.I.R. was lodged, that deceased has received four injuries and injury No.4 is the cause of death and said fact is admitted by Dr. Anwar Saood Sadiq P.W.1, that appellants also claimed the right of self-defence and according to Article. 121 Qanun-e-Shahadat Order when an accused person wants to bring his case within the ambit of section 300 P.P.C., then, the onus lies on him but in the instant case, appellants failed to discharge the onus lies on him, that place of occurrence is 100 feet away from the house of the appellants and it is nearer to the house of the complainant party so the possibility of the appellants having attacked upon the deceased cannot be ruled out, that appellants also did not appear under section 340(2), Cr.P.C.' and M.L.R. of Waheed appellant was not got exhibited in evidence, that recovery of rifle of the deceased from Amin appellant substantiate the version of the prosecution, that if both the versions are put in juxtaposition, the version of the prosecution seems to be more plausible and convincing one, that after receiving the injuries, the appellant Waheed was, not in a position to give the injuries to the deceased, that blood-stained earth was taken from in front of the house of complainant party, that before the learned trial Court complainant had explained the injuries of the appellant, that presence of Waheed appellant at the spot is established on record, that from Amin appellant not only the rifle of the deceased was recovered but also hatchet was recovered from him, that prosecution has proved its case against the appellants and they are not entitled to acquittal.

7. I have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 8-2-2000 at 7-30 p.m. within the revenue estate of Chak No.240/GB at a distance of 3-K.Ms. away from Police Station, Jaranwala while the matter was reported to the police by Nasir Ali complainant/real brother of Asif deceased through computer written Urdu complaint Exh.P.F. at 6-25 a.m. on 9-2-2000 at Civil Hospital, Jaranwala and the formal F.I.R. Exh.P.F./1 was recorded on the same day at 6-30 a.m. by Muhammad Tufail A.S.-I. In all three accused were mentioned in the F.I.R., Waheed was armed with gun .12 bore while Amin and Mustafa were armed with hatchet. There were two other accused of abetment, namely, Muhammad Sadique and Gulzar, who were acquitted by the learned trial Court and no appeal against their acquittal was either filed by the complainant, or the State. First of all, I may state here that it is a case of two versions and in a case of such-like nature the principle of law as annunciated by the apex Court of the country is to put both the versions in juxtaposition and then see to it that which version is correct and nearer to truth. By applying this principle of law, I may here with advantage reproduce cross-examination of Dr. Tahir Mahmood P.W.12 as under:-- "On the same day i.e.8-2-2000 at 8-20 p.m. I also conducted the medical examination of Waheed Ahmed son of Ali Ahmad r/o Chak No.240/GB Police Station Jaranwala. In the medical examination relating to Waheed Ahmed it is correct that he received two fire-arm injuries. The Injury No.2, which is wound of exit on posterior abdominal wall is the result of Injury No.1, which is wound of entry and present on anterior abdomen. The possibility of counter-attack by such a person who is receiving these abdominal injuries is variable depending upon the damage to internal viscra and blood vessels." I may state here that though the M.L.R. of Waheed appellant was: not exhibited by the defence but the same is available on record at page 201 and according to said M.L.R. Waheed appellant was brought to hospital by his cousin on the day of occurrence and was medically examined by the above said doctor on the same day and the duration between injuries and medical , examination given by the doctor also coincide with the time of occurrence and above all these injuries were suppressed by the prosecution so it can safely be ruled out that prosecution has not approached the Court or the police with clean hands, so as far as, non-production of M.L.R. of injured is concerned, that can be said to be negligence on the part of learned defence counsel. Then, Dr. Anwar Saood Sadiq P.W. conducted post-mortem examination on the dead body of Asif Ali deceased on 9-2-2000 at 3-00 p.m., he found four injuries on his person, Injuries Nos.1 and 2 are lacerated wounds while Injuries Nos.3 and 4 are abrasion and contused swelling. The said doctor has given the time between injury and death as eight hours and between death and post-mortem as 13 hours. According to the F.I.R., Amin appellant gave injury with hatchet on the right side of head of the deceased and Mustafa appellant gave injury with wrong side of the hatchet on the head of the deceased but there is no sharp edged weapon injury on the head of the deceased, so this glaring contradiction between ocular account and medical evidence shows that had the eye-witnesses -been present at the spot they must have not committed such a big mistake with regard to injury on the person of the deceased. There is yet another aspect of the matter and that is had the eye-witnesses been present at the spot, they must have taken the deceased to the hospital and name of one of them must have been mentioned in relevant column of Friend/relative of M.L.R. However, complainant while appearing before the learned trial Court tried to bring his case in lines with medical evidence and in this regard by making dishonest improvements also mentioned the injuries of Waheed appellant. At this stage, I may also divert to the statement of Muhammad Hussain S.-I./ ,Investigating Officer P.W.9, who had stated during cross-examination that on the very first day he tried to record the statement of Waheed appellant but he was not fit to make a statement but later on, doctor gave a certificate on 15-2-2000 that he is fit to make a statement, then, his statement was recorded and according to statement of Waheed appellant he had acted in right of self-defence. In cross-examination, the said Investigating Officer had given the detail of said statement of Waheed appellant, he also came to the conclusion that rest of the accused were not present at the spot at the time of occurrence and no recovery was effected from Mustafa and Waheed appellants. As far as, recovery of hatchet from Amin appellant is concerned, that was not found to be stained with human blood. It is correct that rifle of the deceased was recovered from Amin appellant even in column of the inquest report no time of information has been given therein as required under the law. Amin appellant while appearing before the learned trial Court in his statement recorded under section 342, Cr.P.C. has also taken a stand that his real name is Saleem and that was not mentioned in the F.I.R. and moreover 4/5 copies of F.I.Rs. registered against the deceased were also tendered in evidence by the appellants. First version of the accused before the police is very important and in this regard reliance is placed upon a case titled as Muhammad Yaqub 'v. The State (PLD 1969 Lahore 548). After having heard learned counsel for the parties and going through the evidence available on record, I .am of the considered opinion that F.I.R. in this case was recorded after due deliberation and consultation and if both the versions are put in juxtaposition, the possibility of version of the appellants being true cannot be ruled out for the reasons that Waheed appellant has not exceeded the right of self-defence and participation of other accused in the occurrence is doubtful in nature, so while granting the benefit of doubt, I accept this appeal, set aside the conviction and sentence recorded against the appellant by the learned trial Court. Waheed appellant is on bail and he shall be discharged from his bail bonds. Amin and Mustafa appellants are in Jail and they shall be released forthwith if not required to be detained in any other case. Criminal Revision No.493 of 2006 filed by Rana Nasir Ali against Amin etc. for the enhancement of sentence is dismissed. H.B.T./A-137/L Appeal accepted. 2007 Y L R 1990 [Karachi] Before Azizullah M. Memon, J Dr. ASHFAQ AHMED SHARIF

Petitioner Versus Dr. SHIREEN QASIM BHAM and others

Respondents C.P. No.38 of 2006, decided on 8th March, 2007. West Pakistan Family Courts Act (XXXV of 1964)

S. 5 & Sched.

Constitution of Pakistan (1973), Art.199

Constitutional petition

Custody of minor

Welfare of minor

Meaning

Right of father to claim the custody of minor is not an absolute one and welfare of the minor will always remain paramount consideration for entrusting the custody of the minor either to the mother or to the father

Mother is entitled to custody of male child until completion of age of seven years and female child until she attains puberty and the fact that father is the lawful guardian of his minor children does not compel the court to pass an order in his favour unless it is in their welfare to do so

Welfare of the minor means his material and intellectual, moral and spiritual well being

Merely because the mother leaves her own house to attend her job would not mean to say that she would not be in a position to properly look-after the welfare of the minor, for such a reason she would not stand disentitled to retain the custody of her minor son/child

Both mother and father, in the present case, were doing their respective jobs and had to leave their respective houses to attend to their respective duties, thus the minor will have to remain in the house while his parents are on their respective duties, and none of the parties could be said to have superior right of custody

Minor had remained with mother for considerably long period and taking his custody from the mother would amount to throwing him in new atmosphere which is likely to disturb the routine daily affairs of the minor and may also cause mental disturbance to him

Mother is symbol of sacrifice for the child, there is no earthly substitute for love, affection and care of mother, therefore, where all things are equal concerning the parents, mother has preference in the matter of custody. Section 352 of Mulla's Muhammadan Law; 2000 SCMR 838 and 1983 SCMR 606 ref Ch. A. Rashid for Petitioner. Muhammad Jamil for Respondent No.1. JUDGMENT AZIZULLAH M. MEMON, J.

This constitutional petition is directed against the judgment dated 24-12-2005 passed by Additional District Judge No.3 Karachi East, in family Appeal No.33 of 2005, whereby the said appeal stands dismissed (which was filed by the petitioner against the order dated 16-3-2005 passed by the Family Judge No.1 Karachi East in Guardian and Ward application bearing No.1579 of 2001) wherein the petitioner plaintiff had prayed for the custody of his minor son namely Umer Hayat Ahmed Sharif.

2. Heard the learned counsel for the contesting parties.

3. Petitioner/plaintiff filed the above stated Guardian and Ward Application bearing No.1579 of 2001 stating therein that respondent Dr. Shirin Qasim was married to him on 24-1-1999 at Karachi and the said minor namely Umair Hayat Ahmed Sharif was born on 25-10-1999 at Karachi out of the said wedlock. Plaintiff was offered a good job in the USA, but he kept on postponing his departure for USA till the said son was born where after he proceeded to there: it was alleged that respondent ill-treated the parents of the plaintiff/petitioner and even did not allow them to meet the said minor son despite best efforts from their side to meet and to see him.

4. Ultimately the respondent filed suit for dissolution of marriage bearing No.835 of 2001 in the Family Court Karachi East, which now admittedly stands decreed on the ground of Khula and the marriage in the between the parties stands dissolved accordingly.

5. The ground for seeking the custody of the minor is that the defendant/ respondent remains busy throughout the day with her job and would not be able to pay due attention to the child for his proper up- bringing and leaves him with the old parents when she herself goes to attend to her job her parents are not in a position to look-after the child effectively, whereas the plaintiff/petitioner with his family would provide much better conducive and free atmosphere to bring him up and make his personality grow positively, hence the prayer made in the said application is for the custody of the said minor or in the alternative to allow the plaintiff petitioner to keep the child with himself at least two days in a week.

6. The respondent defendant contested the said application by filing the written statement wherein she narrated her own grievances against the petitioner. The trial Court framed the following issues:-- (1) with whom the welfare of the minor lies? (2) what should the order be? (4) (4)

7. Parties produced their respective evidence where after the Family Court dismissed the said application with the following observations: "Mr. Choudhry Abdul Rasheed learned counsel for the petitioner has contended that petitioner is highly educated person being consultant neurologist, he is financially strong, in his absence his mother can look-after the minor and it is in the welfare of the minor if the custody is given to the petitioner. On the other hand, Mr. Javed Rajput the learned counsel for the respondent has contended that minor is aged only 6 years old and respondent is entitled for his custody. Moreso, that petitioner has failed to bring anything on record, which could prove that the respondent is not entitled to have the custody of the minor at this stage. The legal position of the case is that minor is aged less than seven years and under the law respondent being mother of the minor is - entitled to his custody, and in this situation, the petitioner had to prove a very strong case for depriving the respondent mother from her legal right and the minor from the love and affection of his real mother for which there can be no substitute. It would be appropriate to refer to section 352 of Mulla's Muhammadan Law. Which read as follows:-- The mother is entitled to the custody (hizanat) of her male child until he has completed the age- of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child(e), unless she marries a second husband in which case the custody belongs to the father (I). It is settled law that welfare of the minor lies where the right of custody lies unless there is any strong evidence on record, which establishes that such person has neglected grossly in taking care of the minor or the mother is leading a life which is prejudicial to the interest, welfare and upbringing of the minor. In this case mother has not got second marriage and there is nothing on record, which could adversely speak about her character. Petitioner has tried to put up a case that the respondent is a doctor by profession and some time she has to remain on duty for more than 24 hours and during this time minor is at the mercy of strangers. Respondent has denied that she remain on duty for long time. I however, do not believe her. It is a fact of common knowledge that some time the doctor working in government hospital have to perform duties for 24 hours or even more in case of some emergency but this is not the general routine. The question is if the minor is taken from the custody of respondent and handed over to the petitioner would he be able to remain with him for 24 hours. In my view neither it is possible nor it is required. The petitioner is also neuro-physician, having his own clinic also and in case the custody is handed over to him he will also either employee some servant or ask his mother who is also an old aged lady to look-after the minor. The minor is a school going child, normally he goes to school at the same time when the respondent goes for her duty and return in afternoon when the respondent also return. It is possible that she returns' after 2/3 hours. Respondent is residing with her mother and she can look-after him 2/3 hours in case the absence of the respondent. Similarly if the respondent is on night duty minor can sleep without the respondent as is being done in the past. In my view it cannot be said that duty of the respondent is so badly affecting his welfare, which necessitate depriving the respondent from her legal rights."

8. The petitioner/plaintiff filed the appeal against the said order dismissal of his application, which was heard by 3rd Additional District Judge, Karachi East, and which Appeal (bearing No.33 of 2005) was dismissed vide judgment dated 24-12-2000. Hence the petitioner has filed this constitutional petition.

9. As stated above; the petitioner has contended that the respondent/mother being a lady Doctor herself mostly remains away from her own house to attend to her job and is not left with sufficient time to devote towards proper welfare of the minor son of the parties and thereafter, he prayed for the custody of the minor son.

10. In this regard, it is a settled principle of law that right of father to claim the custody of minor son is not an absolute one and that welfare of the minor will always remain paramount consideration for entrusting the custody of the minor either to the mother or to the father (2000 SCMR 838): further mother is entitled to custody (Hizanat) of male child until completion of age of 7 years and female child until she attains puberty and the fact that father is the lawful guardian of his minor children does p not compel the Court to pass an order in his favour unless it is in their welfare to do so and welfare of the minor means his material and ,intellectual, moral and spiritual well being (1983 SCMR 606).

11. Merely because the mother leaves her own house to attend to her own job would not mean to say that she would not be in a position to properly look-after the welfare of the minor; for such a reason she would not stand disentitled to retain the custody of her minor son/child. Admittedly both mother and father are doing their respective jobs, and leave their respective houses to attend to their respective duties; thus the minor will have to remain in the house while his parents are on their respective duties, and none of the parties could be said to have superior right of custody on such a ground.

12. The minor has remained with mother/respondent for considerably long period and taking his custody from the mother would amount to throwing him to a new atmosphere which is likely to disturb the routine daily affairs of the minor and may also cause mental disturbance to him. Mother is symbol of sacrifice for the child, there is no earthly substitute for love, affection and care of mother; therefore where all things are equal concerning parents, mother has preference in the matter of custody of minor.

13. No misreading of evidence or non-reading of evidence and/or illegality in the order judgment of learned two Courts below is pointed, out; hence there being no reason to interfere with the same. The constitutional petition was dismissed on 6-3-2007 vide a short order in the following terms: "for the reasons to' following in detailed judgment, - the petition is dismissed in limine with the direction that the petitioner/father shall be entitled to have the temporary custody of the minor son from the house of his mother viz. the respondent at 11-00 a.m. on a Saturday and that he shall without fail leave the custody of his minor son at the house of the respondent/ mother in between 10-00 and 11-00 a.m. on the 'next morning viz. on Sunday. Such an arrangement shall be availed by him on every alternate Sunday. The above order shall be effective in addition to the earlier orders passed with regard to the arrangement for the petitioner/ father to meet his minor son during the summer vacation and winter holidays (as directed earlier) along with the arrangement/ directions made earlier for the purposes of Eid meetings and the Birthday meetings of the child with the petitioner/father." Above are the reasons for the said short order. M.B.A./A-73/K Petition dismissed.