MUHAMMAD ALI HAROON Versus MUHAMMAD SHARIF

1. BASHIR A. MUJAHID, J. ---Muhammad Sharif alias Shefi son of Malik Khan, Muhammad Rashid alias Rodhi son of Malik Sabir and Abdur Rehman alias Manna son of Fazal Elahi have challenged judgment, dated 8-10-2000 passed by learned Additional Sessions Judge/Judge, Special Court, STA, Rawalpindi, whereby the appellants were convicted under section 302(b), P.P.C. for murder of Ahsan Yousaf, and Muhammad Sharif alias Shefi was sentenced to death, while Muhammad Rashid alias Rodhi and Abdul Rehman were sentenced to imprisonment for life. The appellants were also ordered to pay compensation of Rs.50,000 each to the legal heirs of the deceased under section 544-A, Cr.P.C., in case of default, they had to undergo for six month's R.I. each. Benefit of section 382-B, Cr.P.C. was extended to Muhammad Rasheed and Abdul Rehman, appellants.

2. The brief facts of the prosecution case are that F.I.R. No.219 (Exh.P.B.) was got registered with police station at 10-10 a.m. on the basis of statement Exh.P.B. of Muhammad Ali Haroon, P.W.11 recorded by Raza Mehdi, S.-I. at 9-30 a.m. in Fouji Foundation Hospital, Rawalpindi, wherein it was stated that on 22-9-1998 the complainant Muhammad Ali Haroon, P.W.11 alongwith his brother Ahsan Yousaf got contract of cattle market and at 7-45 a.m., they were present at cattle market as the same used to hold on each Tuesday, there was exchange of hot words between Abdur Rehman and Ahsan Yousaf (Yousaf) on issuance of receipt of commission of the contract and Abdur Rehman alias Manna accused went away after extending threats for dire consequences. Thereafter, at 8-15 a.m., Abdur Rehman alias Manna, Sharif alias Shefi, his brother Malik Sabir (since died) and Abdur Rashid alias Rodhi son of Malik Sabir both armed with fire-arms arrived at the spot. Malik Sabir and Abdur Rehman raised lalkara to the effect that Ahsan Yousaf and others will be taught lesson for obtaining contract of cattle market. Malik Sabir directed Abdur Rashid alias Rodhi and Sharif alias Shefi to fire at Sh. Ahsan. On which; fire first made by Sharif alias Shefi hit Ahsan Yousaf at his chest and the second fire made by Abdur Rashid hit on left arm who fed on the ground after receipt of the injuries and the accused fled away from the spot in a car. The occurrence was witnessed by Muhammad Iqbal Chishti and Muhammad Irshad apart from the complainant. Ahsan Yousaf in injured condition was being removed to the hospital but he succumbed to the injuries in the way. The motive for the occurrence was that the complainant had obtained contract for cattle market of the running year which annoyed of the accused party and in furtherance of their common intention they committed 'the murder of Ahsan Yousaf, brother of the complainant.

3. Rukhsar Mehdi after recording the statement Exh.P.B./1 of Muhammad Ali Haroon sent the same for registration of formal F.I.R. and he arrived at the place of occurrence and took the dead body of Ahsan Yousaf into possession and, prepared inquest report through memo. Exh.P.P. and moved an application Exh.P.O. for conducting the post-mortem examination. Then he arrived at the spot and took the blood-stained earth into possession through memo. Exh.P.J. which was attested by the Investigating Officer and Muhammad Iqbal, P.W.10. On 13-10-1998, he arrested Muhammad Sharif and, Muhammad Rashid appellants and on 17-10-1998 arrested Abdur Rehman and Muhammad Sabir accused. He also took into possession pistol P.6 and licence P.6/1 produced by Malik Ayub, through memo. Exh.P.H. He also took into possession a Toyota Car of Raja Sabir through memo. Exh.P.I. The investigation and the document prepared by Rukhsar Mehdi. S.-I. were proved by Iftikhar Ahmad, A.S.-I./P.W.13 during the trial, who was not available as he had proceeded to Kasovo on deputation. After completion of the investigation, challan of the case was submitted before the trial Court against the appellants.

4. The trial Court framed the charge which was denied by the appellant and they claimed trial.

5. During the trial, the prosecution examined as many as 13 witnesses to prove the guilt of the accused.

6. The medical evidence was furnished by Dr. Muhammad Arshad, P.W.5 who on 22-9-1998 had conducted the post-mortem examination on the dead body of Ahsan Yousaf and found the following injuries on his person:--

(i) 'A wound of entry on the front and middle of- the chest measuring 5 c.m. diameter. There was no burning, blackening or tattooing around the margins of the right nipple was 9 c.m. and from the, left nipple was 10 c.m. upward and inward.

(2) Wound of exist measuring 1 c.m. diameter on the left lateral chest back and it was 10 c.m. below the axillary pit.

(3) A wound of entry on the medial aspect of left arm in the middle measuring 6 c.m. diameter. There was no burning, blackening or tattooing.

(4) A wound of exit 1 c.m. diameter on the back of left arm in the upper third part.

7. The ocular account was furnished by Muhammad Ali Haroon, P.W.11 who was complainant of the case. He supported the version of the F.I.R. and narrated the motive of the occurrence. Muhammad Iqbal Qureshi was examined as P.W.10. He was an eye-witness of the occurrence. He supported the prosecution story by narrating the facts that on 22-9-1998 at 7-45 a.m. he was present in cattle fair in Rawat and was sitting alongwith Ahsan Yousaf on a cot and was issuing receipt when Abdur Rehman accused who had purchased a goat from the market for Rs.600 was demanded Rs.30 as a tax fee for this purchase and there an altercation took place between Ahsan Yousaf and Abdur Rehman who went away after extending threats and after some time he alongwith his co-accused Sharif alias Shefi and Rashid alias Rodhi son of Sabir both armed with rifle .222 bore and Malik Sabir empty-handed arrived at the spot. Abdur Rehman and Malik Sabir raised lalkara to teach lesson to Ahsan Yousaf for taking the contract for cattle market. On which, both the accused Sharif and Rasheed fired at Ahsan Yousaf from their respective weapons. Thereafter, the accused fled away in a car. This witness also attested the recovery memos. Exh.P.J. and Exh.P.K. and identification memo. of weapon of offence Exh.PL. and Exh.P.N.

8. Qamar-ud-Din, Dratsman was examined as P.W.1 who had prepared the site-plan. Naeem Ghani, P.W.2 was witness of wajtakkar and he stated that there was altercation between Abdur Rehman and Ahsan Yousaf (deceased) on the day of occurrence. Thereafter, he saw the accused running away from the spot in a vehicle towards Kalar Syedan after making fire shots. Iftikhar Ahmad was examined as P.W.3 and P.W.13, who had verified the investigation conducted by Rukhsar Mehdi (who proceeded abroad on deputation). Muhammad Asghar, F.C. P.W.6 had escorted the dead body for post-mortem examination and produced the last-worn clothes before the Investigating Officer which were taken into possession through memo. Exh.P.D. He also attested the recovery memo. Riffat Mehmood, F.C., P.W.7 had' taken the complainant Exh.P.B./1 to the police station for registration of formal F.I.R. and he also attested the recovery memos. Exh.P.E. and Exh.P.F. whereby at the time of arrest Rs.200 and a Seiko watch were taken into possession from the personal search of Abdur Rehman alias Manna and Rs.850 and Identity Card of Malik Sabir through memo. Exh.P.F. He also, attested the recovery memos. Exh.P.G. and Exh.P.H. whereby weapons of offence were taken into possession by the Investigating Officer. Khadim Hussain H.C./P.W.12 had delivered the sealed parcels at the Office of Chemical Examiner, Lahore.

9. The prosecution evidence was closed by tendering in evidence report of Chemical Examiner Exh.P.V. and that of Serologist Exh.P.X. and Forensic Science Laboratory Exh.P.W.

10. The statements of the accused were recorded under section 342, Cr.P.C. They defined the allegations and claimed their innocence and false involvement.

11. Malik Sabir has since expired and the remaining three appellants had faced the trial and the trial culminated into conviction of the appellants as mentioned above. The appellants have filed Criminal Appeal No.456 of 2000 against their conviction and sentence while Muhammad Ali Haroon, complainant has filed Criminal Revision No. 176 of 2000 for enhancement of compensation and sentence of Rashid and Abdur Rehman. Hence, both the matters are being decided by this single judgment.

12. Dr. Babar Awan, learned counsel representing Sharif alias Shefi appellant has argued that both .the alleged eye-witnesses Muhammad Iqbal, P.W.10 and Muhammad Irshad had not witnessed the occurrence and they are interested witnesses and their testimony has not been corroborated by any other independent source, therefore, the case of the prosecution is doubtful or in alternative it has been argued that Sharif had fired at the deceased under the command of Abdur Rehman, co- accused who was elder of the family. He has also not repeated the fire and recovery of weapon of offence is of no consequence with the commission of crime as no empty was taken into possession from the spot, therefore, it is not a case for capital punishment.

13. Learned counsel representing Rashid and Abdur Rehman, appellants had argued that Muhammad Iqbal, P.W.10 was contractor of cattle market and his presence at the spot is not proved and he has been brought into investigation/witness-box to support the prosecution falsely that no independent witness has been examined by the prosecution. Abdur Rehman has been attributed only proverbial Lalkara and that is also joint with Malik Sabir (deceased). According to the statement of Dr. Muhammad Arshad, P. W.5 there is possibility that both the injuries are that result of one fire shot and conviction of Rashid is not sustainable under the law and all the family members have been roped in falsely by throwing the wider net. It has been further argued that the case was not registered at the police station but was on 'Fard Bayan' which shows that F.I.R. was lodged, after deliberations and consultations and the case of the prosecution is doubtful.

14. Conversely, learned counsel for the complainant and for the State have opposed the appeal supported the impugned judgment. Learned counsel for the complainant has supplemented his contentions by arguing that the first occurrence took place between Abdur Rehman and the deceased. Thereafter, he went to his residence and brought his co-accused duly armed with licensed weapons and caused two independent shots each by Sharif and Rashid, Sharif alias Shefi accused in aged 45 years and no ground for lesser penalty is available to him for the reason that he acted under the influence of his elder. It was a daylight occurrence. The presence of both the eye witnesses at the spot cannot be doubted and is supported from the documentary evidence.

15. Heard. Record perused.

16. It was a daylight occurrence. The injured was taken to the hospital by Muhammad Ali Haroon, complainant P. W.11 and Muhammad Iqbal, P.W.10. The Investigating Officer arrived at Fauji Foundation Hospital after receiving the information about the occurrence and recorded the statement Exh.P.B./1 at the hospital. The first preference of the prosecution witnesses naturally was to save the life of the injured. The appellants are nominated accused in the F.I.R., with their specific role. The slip issued in the name of Abdur Rehman for Rs.600 was also taken into possession by the Investigating Officer when he arrived at the place of occurrence and as per statement of Naeem Ghani, P.W.2 who witnessed the first occurrence leads us to believe that earlier quarrel/altercation had taken place between Abdur Rehman, appellant and Ahsan Yousaf (deceased). There is no force in the arguments of the learned counsel for the appellants that the F.I.R. was registered with deliberations and consultation. The complainant Muhammad Ali Haroon, P.W. 11 and Muhammad Iqbal, P.W.10 and Naeem Ghani, P.W.2 are the natural witnesses and their presence at the spot cannot be doubted. They stood the test of lengthy cross-examination but nothing was brought on record to discard their testimony. The arguments of learned counsel Malik Rab Nawaz Noon that according to Doctor Muhammad Arshad, P.W.5 both the injuries can be the result pf the one fire shot, has not impressed us as from the dimension and seat of the injuries we find that both are the independent and distinct wounds and have been specifically attributed to both the appellants Sharif alias Shefi and Rasheed. Such-like concessional statement has always been deprecated by the apex Court. Non-availability of empty from the spot was also explained by the Investigating Officer which was due to presence of many other people and animals at the spot and the mass in the Cattle Market. Muhammad Ali Haroon, complainant P.W.11 and Muhammad Iqbal, P.W.10 have no previous enmity for false implication of the appellants. Active participation of Abdur Rehman appellant alongwith his co-accused has also been established beyond any shadow of doubt. The motive was also attributed to him. The earlier quarrel had taken place between him and the deceased. He is main and chief architect of the occurrence, therefore we find that the ocular account furnished by both the eye-witnesses has been fully corroborated by motive and also by medical evidence. The argument of the learned counsel that no specific description was given in the F.I.R. about the weapons of offence and the complainant made dishonest improvement, has also to force. It was stated in the F.I.R. that both the appellants Sharif and Rashid were armed with fire-arms and the weapons of offence recovered from their possession are licensed in their names. After deep re appraisal of the evidence, we find that the prosecution case has been established beyond any shadow of doubt against all the three appellants and do not find any force to interfere in the conviction recorded against them or the sentence awarded to Muhammad Rashid and Abdur Rehman appellants.

17. As far as the sentence of Sharif alias Shefi is concerned, lie has been attributed only one fire shot. He had no direct motive against the deceased and he has not repeated the first shot. He admittedly acted under the command of Abdur Rehman, his paternal uncle. He had no opportunity to cross-examine the Investigating Officer and investigation was proved by secondary evidence and his case is also at par with his co-accused Rashid who has been attributed one fire shot and we alter, his sentence from death to imprisonment for life in the interest of justice. The appeal is dismissed with the above modification. The sentence or compensation of in default thereof is, however, maintained. Criminal revision filed by the complainant is also dismissed having no force.

18. H.B.T./M-2020/L Order accordingly.