MUHAMMAD SIDDIQUE ALIAS KIKO Versus THE STATE

GAULAM MUJADDID MIRZA. J.‑On 12th of June 1971, at about 3‑00 p.m. Munir Ahmad P. W. was busy baking baqirkhanl at the shop of Sufi Noor Muhammad in Gowalmandi, Lahore, when Muhammad Siddique came there and started teasing Muhammad Ishaque a teen‑ager, who was working alongwith Munir Ahmad. Muhammad Yaqoob deceased, a guest of Sufi Noor Muhammad, wag sitting outside the shop on the takhtposh. Muhammad Siddique had a pistol in his hand and he was drunk. He wanted to commit unnatural offence with Muhammad Ishaque in the shop. Munir Ahmad resented, on which Muhammad Siddique told him that he was a known gangster of Gowalmandi and demanded some money from him. Munir Ahmad refused. Muhammad Siddique tried to forcibly take some money from the till. Munir Ahmad stopped him from doing so, on which Muhammad Siddique fired at him with the pistol. The bullet passed through his left leg and hit Muhammad Yaqoob in the left flank. Muhammad Siddique then disappeared from the scene while shouting. Both the injured were then taken to the Mayo Hospital in a tonga by Muhammad Saleem.

Even prior to this occurrence, Muhammad Siddique used to visit the shop of Sufi Noor Muhammad and had an eye on Muhammad Ishaque. He used to tease him and would also demand some money from Munir Ahmad. Munir Ahmad did not approve of this and this motivated the present occurrence.

2. Khair Muhammad Sub‑Inspector (P. W. 13) while on patrol duty received information about the aforesaid incident. He proceeded to the Mayo Hospital, Lahore, for recording the statements of the injured. Muhammad Yaqoob was then lying unconscious. He, however, recorded the statement (Exh. P. A.) of Munir Abmad and sent the same to Police Station, Gowalmandi for the registration of the case. The Police Officer then inspected the spot and took into possession one empty cartridge (P. 5), vide memo. Exh. P. C. On 13th June 1971, he arrested Muhammad Siddique from Nisbet Road, Lahore, and recovered pistol (P. 2) from his person vide memo. Exh. P. D. The Sub‑Inspector in writing enquired from the doctor as to whether Muhammad Yaqoob was in a fit condition to make a statement but was told vide endorsements Exhs. P. J./1 to P. J./4, that the injured was not in a fit condition to give any statement. The Police Officer then prepared the injury statements of Munir Ahmad and Muhammad Yaqoob and got them medically examined. Muhammad Yaqoob died on 24th June 1971, his inquest report was then prepared and the post‑mortem was performed by Doctor Rafi-ud‑Din. Initially the case was registered under sections 307 and 452, P. P. C. but on the death of Muhammad Yaqoob section 302, P. P. C. was also added. After completion of the investigation and the inquiry by the committing Magistrate, the accused was sent up for trial.

3. At the trial, the accused denied the prosecution allegations and stated that he bad to receive some money from Sufi Noor Muhammad, as he had worked with him two years back." Noor Muhammad was willing to pay only Rs. 15 whereas he owed him Rs.

100. The accused demanded the exact amount, this led to a quarrel between the two, the respectables of the locality intervened and Muhammad Siddique was told that Sufi Noor Muhammad would pay the amount due from him. According to Muhammad Siddique it was this incident which led to his implication in the present case. He pleaded not guilty and stated that he was arrested by the police while he was asleep in his house. He produced Doctor Rafi‑ud‑Din and Doctor Muhammad Sharif in defence.

4. The trial Court found the accused guilty of the murder of Muhammad Yaqoob for which he was sentenced to death. He was also found guilty under sections 307 and 452, P. P. C. and was sentenced to one year's rigorous imprisonment under each count. This sentence was to run concurrently if the death sentence was not confirmed by this Court. The convict has filed an appeal against the judgment of the trial Court dated 7th February 1973 and reference under section 374, Cr. P. C. is also before us. Both these matters will be disposed of by this judgment.

5. The prosecution case rests on the direct evidence and the circumstantial evidence of recovery of crime empty from the shop of Sufi Noor Muhammad and pistol from the possession of the appellant and finally the medical evidence.

6. Munir Ahmad the first informant saw the incident from the start to the finish and gave precisely the same account before the trial Court which he had stated in the first information report. According to him he was fired at because he did not permit the appellant to criminally assault Muhammad Ishaque. At that time Muhammad Yaqoob was sitting on the takhtposh outside the shop. The appellant moved aside, fired his pistol which hit Munir Ahmad in the left leg, the bullet after piercing through his leg hit Muhammad Yaqoob on the right flank who fell down from the takhtposh whereas Munir Ahmad fell on the takhtposh. Munir Ahmad was medically examined by Doctor Muhammad Sharif on 13th June 1971. The doctor found one fire‑arm wound 1/3" circular on the outer inner aspect of left knee joint and a fire‑arm wound, 1/2" x 1/2" circular on the inner aspect of knee joint.

7. Sufi Noor Muhammad, at whose shop the incident took place, was examined by the prosecution. He had also attested the recovery of empty cartridge and pistol. Before the trial Court he resiled from his statement which he made before the committing Magistrate. He was declared hostile and was cross‑examined by the Public Prosecutor. Later on, his statement before the committing Magistrate was transferred under section 288, Cr. P. C. to the file of the trial Court. Before the committing Magistrate he admitted the recovery of the empty‑cartridge from his shop as well as of the pistol from the possession of the appellant.

8. Muhammad Ishaque did not, support the prosecution case before the trial Court, because he said that he heard a sound of a patakha. Munir Ahmad who was then baking baqirkhani fell down and that he had not seen the appellant at the shop at that time. Muhammad Ishaque was declared hostile and his statement before the committing Magistrate wag also brought on the record of the trial Court under section 288, Cr. P. C. Before the committing Magistrate Muhammad Ishaque had given a detailed statement. He admitted that he was employed at the shop of Sufi Noor Muhammad where Munir Ahmad was also working. He admitted that the appellant used to visit the shop but according to Muhammad Ishaque that was to collect the money from Munir Ahmad. The witness also admitted the visit of the appellant on the day of occurrence on which he again demanded the money from Munir Ahmad and at that time he was drunk. Munir Ahmad refused to give him the money, whereupon the appellant fired at Munir Ahmad, who was injured in his knee and Muhammad Yaqoob was hit in the abdomen. After that the appellant ran away and the injured were taken to Mayo Hospital, Lahore.

9. The remaining witnesses are of formal type with the exception of Muhammad Sarwar, Fire‑arms Examiner, who examined empty P. 5 with the test empty and opined that it had been fired from pistol P. 2.

10. Learned counsel for the appellant took us through the entire evidence. The first point urged was that there was considerable delay in lodging the first information report and this was on account of the fact that the prosecution wanted to gain some time for deliberations in order to name the culprit. According to the learned counsel the incident took place at 3.00 p.m., the police station was at a distance of 1 ? furlongs but the first information report was lodged at 7‑45 p.m. It was next argued that even otherwise the entire prosecution evidence was not trustworthy, because neither Noor Muhammad, at whose shop the alleged incident took place, nor Muhammad Ishaque, who was the bone of contention, supported the prosecution case. According to the learned counsel even the statement of Muhammad Ishaque before the committing Magistrate was not worthy of reliance.

Munir Ahmad's evidence was challenged on the ground that it was in direct conflict with the testimony of Sufi Noor Muhammad and Muhammad Ishaque and even otherwise the story given by this witness was not probable as it was not possible for him to depose with certainty about the correct identity of the person who fired the shot.

? Last of all, learned counsel tried to take up the position that the death of Muhammad Yaqoob was not the result of bullet injury but was on account of the fact that while he was admitted in the hospital he was given a bottle of 7‑Up to drink and this caused septic which resulted in his death. In support of this learned counsel took some advantage of the evidence of Dr. Rafi‑ud?-Din who also appeared in defence. Muhammad Yaqoob while he was alive was first examined on 13th June 1971 by Dr. Muhammad Sharif who found a fire‑arm wound, 1/3' circular over the 6th intercostal space, 3' from the midline with margins inverted and lacerated, whereas in the post‑mortem report Dr. Rafi‑ud‑Din found two surgical operated wounds, left peridium with extension to the left by a transverse incision, a drainage tube wound 1/2' circular on the right side of the abdomen, a drainage tube wound, 1/2' x 1/3` on the left side of the abdomen, one healed (fire‑arm) wound, 1/3' x 1/3' with scab formation over the 6th inter-costal space, 3' from the ,median line and a small wound transverse venesection on the left fore‑arm ,on its outer side.

Doctor Rafi‑ud‑Din while appearing from the side of defence deposed ,that according to him the wound was longitudinal incision and it was further .extended by a transverse. Left peridium incision was septic. Learned ,counsel wanted to avail of this piece of evidence, but we cannot ignore the remaining evidence where the doctor further clarified that the death could ,not be caused on account of infection, removal of spleen and damage to the stomach.

11. We would first of all like to deal with the point of delay. After considering the submission and evidence on the record we are unable to agree with the learned counsel that there was inordinate delay in this case because it is in evidence that immediately after the firing the two injured persons had been removed to the hospital in a tongar and it was there that .the police officer recorded the statement of Munir Ahmad. There is nothing on the record from which it could be inferred that the delay was intentional or was to gain time to concoct a story to falsely implicate the appellant.

Similarly, we are not inclined to discard the entire prosecution evidence ‑on the ground that Noor Muhammad and Muhammad Ishaque did not ,support the prosecution case before the trial Court. As already observed Noor Muhammad admitted the factum of recovery of crime empty as well as ‑that of ,pistol, but later on he changed his position and this was obviously with the purpose of showing favour and concession to the appellant and 4hat was the ,reason that his statement before the committing Magistrate was transferred to the Sessions file. We have no hesitation in holding that ‑the evidence recorded by the committing Magistrate is a substantive evidence ‑for all intents and purposes. Reference in this connection be made to Muhammad Yar etc. v. The State ( 1971 S C M R 667 ).

The defence succeeded in extracting some favourable reply from Muhammad Ishaque in his cross‑examination when it was stated by the witness that .he was deposing at the instance of Noor Muhammad, his Ustad, but in the same breath he said that he was tutored by the police and again ‑said that it was incorrect that he was tutored by the police and that he had ‑not seen the occurrence. He concluded by saying that many times he was ,tutored by the police but he had given the correct statement.

12. The entire prosecution case rests on the evidence of Munir Ahmad. It is an admitted position that he was injured and according to the medico legal report the injury was the result of fire‑arm. This establishes his presence at the spot beyond any shadow of doubt. The defence had not brought anything on the record to show that Munir Ahmad was in any manner hostile or inimical to the appellant and thus had a motive to falsely implicate him in a charge punishable with capital sentence. We do not find any force in the submission made by the learned counsel that he was not in a position to see the real assailant. This witness was cross‑examined at length. In cross‑examination a question was put to him;

"Is it a fact that you had not seen any person while firing with the pistol?". This was objected to by the Public Prosecutor but the question

? was ultimately allowed by the Court and the answer given by this witness, although a very detailed one needs to be reproduced verbatim, and is to the following effect :‑

"I had seen the person while using the pistol It was Siddique alias Khiko who had fired the pistol. The shop is nine paces in length and six feet in width. The persons sitting in the shop were at a distance of 8/9 feet from me. When I was hit by the bullet, I was in my senses. Yaqub became unconscious. I cannot tell the number of the tonga or the name of its driver in which I was removed to the hospital. There was no other person in the tonga except myself, Yaqub and Salim P. W. and the tonga driver. Yaqub deceased was a friend of mine. He was also the friend of my employer. He was dressed in a dhoti and a shirt. The bullet had crossed the shirt of Yaqub d,‑ceased. The police had not taken into possession the shirt of Yaqub deceased or myself. Much blood had fallen on the ground. The Police Station Gowalmandi is at a distance of 8 acres from the shop. Sufi Noor Muhammad had gone to the police station at that time. Sufi Noor Muhammad had arrived when I was taken to the tongs. I had not suggested him to go to the police station. He had gone there of his own accord. The tonga had passed in front of the police station on its way to the hospital. Because I was suffering, therefore, I had not suggested that the report should be lodged first of all with the police. I cannot tell the date or month when the occurrence took place. It was in summer. 1 bad no watch at the time of the occurrence, therefore, I cannot tell the exact time. It was Peshiwela. The shop has staircase. The Azan of Peshi prayer had been called. The blood had fallen on the stairs as well as inside the shop near the Tanoor. It took us about 15 minutes to reach the hospital. Immediately thereafter, Noor Muhammad also visited the hospital. He reached there after 30/45 minutes. He bad not stated to me tbat he had lodged the report with the police. I had not asked Noor Muhammad whether he had lodged the report with the police or not. He remained there for 30/45 minutes and then left the hospital. He had conversation with me but not with Yaqub as be was unconscious. He asked me to have patience as I was suffering from pain. No other conversation took place between myself and Noor Muhammad P. W. The police reached the hospital at about sun‑set. I had not sent anybody to inform the police. The police had come on the information of Noor Muhammad P. W."

We are, therefore, convinced that Munir Ahmad was present at the spot. He saw the occurrence and was injured by the bullet of the appellant which also hit Muhammad Yaqoob and killed him. The evidence of Munir Ahmad finds corroboration from the testimony of Noor Muhammad and Muhammad ‑Ishaque and the submission of the learned counsel that Muhammad Ishaque never said a word that the appellant was after him is of no substance, because when Muhammad Ishaque was examined before the committing Magistrate he was only 12/13 years of age and even if he omitted to say so, the defence is not entitled to any credit. He would naturally feel embarrasFed to depose that the appellant wanted him to submit to his lust. Being of tender age he was under the influence of his master Noor Muhammad and this fact cannot be lost sight of that the appellant according to his own showing was a notorious gangster of Gowalmandi. It required some courage for a young boy of his age to face such a desperado from the witness‑box. On the other hand it goes to the credit of the boy that in spite of his tender age, poverty and pressure he never completely surrendered in favour of the appellant. We would,. therefore, believe that part of his evidence which concerns his presence and. that of Munir Ahmad and the accused and the incident of firing and discard the remaining evidence. The circumstantial evidence in this case of matching of the empty with the pistol and the medical evidence, therefore, proves the case of the prosecution beyond any shadow of doubt.

13. The arguments in this case concluded on 3rd July 1974. While the judgment was reserved we found that the medico‑legal report of Munir Ahmad had not been formally proved by doctor Muhammad Sharif who had examined him. The case was, therefore, listed for rehearing and when this fact was brought to the notice of both the learned counsel, learned counsel for the State prayed for some time as he wanted to submit an application for summoning Dr. Muhammad Sharif to prove the medico‑legal report. This request was allowed and the additional evidence was recorded during which the appellant was present in custody along with his counsel. Two witnesses were examined. Muhammad Saleem, Assistant in the Establishment Branch, Office of the Director Health Services, Punjab, Lahore, appeared as C. W.

1. He deposed that Dr. Muhammad Sharif had left for Iran and the office bad no intimation as to when he was likely to return. Therefore, secondary evidence was led. Muhammad Hussain, Assistant Record‑keeper office of the Resident Medical Officer, Mayo Hospital, Lahore, was examined as C. W.

2. He stated that he knew Dr. Muhammad Sharif and was well?acquainted with his handwriting. He had seen the report and signature of Doctor Muhammad. Sharif in the original medico‑legal register and as such he was confident that the medico‑legal report of Munir Ahmad which was exhibited as C. W. 2/2 bore the signature of Doctor Muhammad Sharif.

We are constrained to observe that although the medico‑legal report of Munir Ahmad had been exhibited but it was never formally proved. This shows lack of proper attention by the Public Prosecutor and even that of the Presiding Offcer, nor could the learned defence counsel be exonerated of his duty. He should have brought this fact to the notice of the Court at the time of the trial.

14. After the additional evidence had been recorded, the case was relisted and we gave another chance to the learned counsel to argue the matter. In addition to the submissions already made, learned counsel raised two other points. It was contended that Munir Ahmad had been injured in the thigh. This was suggestive of the fact that the appellant did not have the intention to kill, otherwise he would have chosen some vital pact of the body and the mere fact that the bullet after passing through the body of Munir Ahmad had injured Muhammad Yaqoob, who died later on, would not expose the appellant to capital punishment. It was next submitted that since the judgment of the trial Court the appellant had been in death cell. He had suffered the agony of solitary confinement for a long time and this fact itself would be suffcient to commute his death sentence to that of life imprisonment.

15. We do not find any substance in these arguments. There is nor evidence on the record from which it could be inferred that the appellant wanted to show off by firing or that he simply wanted to create sensation in the locality. As the evidence goes, Munir Ahmad was fired at when the appellant was under the influence of liquor and had been stopped from removing the money forcibly and criminally assaulting the boy. The fact ? that Munir Ahmad was hit in the thigh was a sheer chance. He was fired :at from within the range. Munir Ahmad, therefore, owes his survival to Almighty and not to the injury of the thigh. The mere fact that Muhammad Yaqoob deceased was hit after Munir Ahmad had been injured would not in any manner diminish the criminal liability of thel" appellant, nor would he be entitled to any concession in the quantum of sentence, because the firing was with the intention to kill.

We are also not impressed with the argument that as the appellant had been in the solitary confinement for some time, therefore, on this ground alone he is entitled to any concession in the quantum of sentence. Tile ,& murder was committed in broad daylight in one of the most thickly populated localities of the town and if concession is to be given on this) ground alone then it would have a far‑reaching effect. Moreover, even in those cases where a person had been acquitted, death sentence had been restored even after the lapse of six years. Reference in this connection may be made to Abdul Rashid v. Umid All and others ( PLD 1975 SC 227 ).

16. Considering all the necessary aspects of the case, we are of the view that the appellant was rightly convicted by the trial Court. Muhammad Yaqoob died as a result of fire‑arm injury at the hands of the appellant and not on account of any other circumstance like the one suggested by the learned defence counsel. We would, therefore, dismiss the appeal and

,. confirm the sentence of death.

A. Q. ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.

PLD1975SC227