KHIZAR HAYAT Versus THE STATE

TASSADUQ HUSSAIN JILANI, J .‑‑‑This judgment shall dispose of Criminal Appeal No.435 of 1998 filed by Khizar Hayat, appellant, Criminal Appeal No.442 of 1998 filed by Muhammad Mansha, appellant and Murder Reference No.463 of 1998 as they arise out of the same judgment dated 2‑12‑1998 passed by Mr. Muhammad Latif Qureshi, learned Additional Sessions Judge, Khanewal vide which having tried the appellants and others (in case registered vide F.I.R. No.83 of 1994 dated 17‑4‑1994 under sections 302/34/109, Pakistan Penal Code, Police Station, Sarai Sidhu, District Khanewal) he while acquitting co‑accused Ghulam Qadir convicted the appellants for the murder of Muhammad Shafi, deceased and sentenced them in the following terms:‑‑

(1) "Khizar Hayat son of Muhammad Rustam, (convicted under section 302(b), P.P.C., sentenced to death and a fine of Rs.50,000 as compensation to be paid to the legal heirs of the deceased under section 544‑A, Cr.P.C. in default whereof to undergo S.I. for six months).

(2) Muhammad Mansha son of Haji Muhammad Ramzan, (convicted under section 302(b), P.P.C., sentenced to life imprisonment and a fine of Rs.50,000 as compensation to be paid to the legal heirs of the deceased under section 544‑A, Cr.P.C. in default whereof to undergo S.I. for six months).

2. The prosecution story as given in the F.I.R. Exh.P.G. registered at (6‑15 a.m. on 17‑4‑1994) on the statement of Muhammad Sharif (P. W. 9). recorded by Muhammad, Sher (P. W.11) briefly stated is that on 16‑4‑1994 at about 7.00 p.m. Muhammad Shafi, deceased went to see Muhammad Sharif, complainant in Chak Nu.67‑A/10‑R, on their way back home they alighted from wagon at Bus Stand Choperhatta and were walking down towards home when near Madrassa Arabia Rehmania they were attacked by the accused. The appellants Khizar Hayat and Muhammad Mansha were armed with 'daggars' while Muhammad Yousaf was empty‑handed. Khizar Hayat, appellant raised lalkara that he would revenge the murder of his father whether after he gave dagger blow to complainant's father on his chest, Muhammad Yousaf caught complainant's father; Muhammad Shafi, by his hair and Muhammad Mansha, appellant gave daggar blow which hit the latter on his right flank, Khizar Hayat, appellant gave a second blow which landed on his left flank. He repeated the blow which hit Muhammad Shafi on the back of the shoulder. He fell down whereafter both the appellants gave him injuries on various parts of the body. On hue and cry raised people were attracted and the accused decamped from the spot.

3. Having registered the case Muhammad Sher Inspector/S.H.O. (P.W.11) went to Nishtar Hospital, Multan. By that time Muhammad Shafi had already died. He prepared injury statement (P.1), inquest report (Exh.P.K.), entrusted the dead body to Muhammad Anwar, Head Constable for escorting the same to mortuary, collected Shirt, P.5 of Muhammad Shafi, deceased from Muhammad Sharif P.W.9 vide recovery memo. Exh.P.F., recorded the statements of the prosecution witnesses; collected blood‑stained earth from the spot vide memo. Exh.P.B. which was attested by Haq Nawaz who appeared as P.W.5, collected blood‑stained Shalwar P.3 and "Azar band". P.4 vide recovery memo. Exh.P.E., arrested both the accused on 20‑4‑1994, appellant Khizar Hayat led to the recovery of blood‑stained daggar P.1 which was secured vide memo. Exh.P.C., the same was attested by Haq Nawaz P.W.5, Muhammad Mansha, appellant led to the recovery of blood stained daggar P.2 on 1‑5‑1994 which was secured vide memo. Exh.P.D., prepared the site‑plan of recovery and finally under section 173, Cr.P.C.

4. During the trial the prosecution examined 11 witnesses including two doctors and the Investigating Officer.

5. When Muhammad Shafi deceased was brought to the hospital he was examined by Doctor Muhammad Azam, P.W.10 who found the following injuries:‑

(1) 2 c.m. abrasion x 1/2 c.m. about right temporal region.

(2) An incised wound 1‑1/2 c.m. on left external ear.

(3) An incised wound 1 x 1/4 c.m. on the medial side of the eye.

(4) An incised wound 2 c.m. x 1/2 c.m. on left vestibule of nose.

(5) An incised wound 4 c.m. x 1 c.m. oblique on the front of chest cross to midline.

(6) An abrasion 3 c. m. x 1 /2 on the back of right shoulder.

(7) An incised wound 3 c.m. x 1/2 c.m. on the front of right lower chest near midline.

(8) An incised wound 10 c.m. x 2 c.m. omentum was coming out from right lower part of abdomen.

(9) The abrasion 5 x 1/4 c.m. on right middle chest.

(10) An Abrasion of 4 c.m. x 1/4 c.m. on right middle chest.

(11) Incised, wound 1/2 c.m. x 1 c.m. on the inner side of right thumb.

(12) Incised wound, 1/2 c. m. x c.m. on the inner side of right thumb.

(13) Incised wound 4 x 2 c.m, on the right lateral lower abdomen omentum was coming out.

(14) Incised wound 4‑1/2 c.m. x 1‑1/2 c.m. on back left lower chest.

Muhammad Shafi, deceased was died at 3‑00 a.m. on 17‑4‑1994 and his post‑mortem examination was conducted by Dr. Waseem Abbas Zaidi, who appeared as P.W.12 and found following injuries:‑‑

(1) Incised wound 6 c.m. with seven silk stiches on mid of upper lip extending upto left nostril.

(2) Lacerated wound 3‑1/2 c.m. x 1/2 c.m. x bone deep on front and right side of head 6 c.m. above the right eye‑brow.

(3) Lacerated wound 3 c.m. x 1/2 c.m. on top and right side of head 8 c.m. posterior to Injury No.2.

(4) Lacerated wound 3 c.m. x 1/2 c.m. x through and through on front and upper part of left ear pinna, with two silk stiches.

(5) Incised wound 2 c.m. x 1/2 c.m. x skin deep on left side of face 1‑1/2 c.m. front of left ear.

(6) Incised wound 4-1/2 c.m: 1‑1/2 c.m. x going deep (oblique) on front and right side of chest 9‑1/2 c.m. above the right nipple 3 c.m. outer to midline.

(7) Incised wound 3 c.m. x 1/2 c.m. x going deep (transverse) on front and lower part of right side of chest 9‑1/2 c.m. below the nipple. 2 c. m. outer to midline.

(8) Incised wound 1‑1/2 c.m. x 1/2 c.m. stiched with two stiches on outer and mid of left chest in mid axillary line.

(9) Incised wound 5 c.m. x 2 c.m. x going deep on front and upper most part of left abdomen Omentum coming out.

(10) Incised wound 1‑1/4 c.m. x 1‑1/4 c.m. skin deep on palmar surface of terminal phalanynxs of left hand all four fingers (transverse and in line).

(11) Incised wound 1‑1/2 c. m. x 1‑1/4 c. m. x skin deep on outer and mid of right side chest in mid axillary line.

(12) Incised wound 5 c.m. x 2‑1/2 c.m. x going deep on outer and upper part of right side of abdomen large gut was coming out of it.

(13) Incised wound 4 c.m. x 2 c.m. x going deep just below the Injury No. 12.

(14) Incised wound 4 c.m. x 1/2 c.m. x muscle deep (verticle) on back and mid of left chest 4 c. m. below the left scapula.

Death according to him was due to shock and haemorrhage, all the injuries, according to him were sufficient to cause death in the ordinary course of nature. The probable time between the death and post mortem examination was about 12' to 16 hours. Muhammad Sharif, complainant while appearing as P.W.9 made statement consistent with the allegation levelled in the F.I.R., P.W.8 Ghulam Sarwar is yet another eye‑witness who corroborated the prosecution story. P.W.1 is Muhammad Ramzan who prepared the site‑plan, P.W.2 is Muhammad Aslam, Head Constable who received sealed parcel containing blood stained earth and delivered the same in the office of Chemical Examiner. P.W.3 is Farid Ali, Moharrir/Head Constable. He kept the sealed parcel containing blood‑stained earth for safe custody in Police Malkhana.

P.W.4 is Khalid Mehmood. He is formal witness with regard to one sealed parcel. P.W.5 is Haq Nawaz son of Khair Din who attested Exh.P.B. i.e. recovery memo. with regard to blood‑stained earth and Exh.P.C. recovery memo. of daggar P.1. P.W.6 is Bashir Ahmad, A.S.‑I. who attested the recovery memo. Exh.P.D. pertaining to daggar P.2 recovered from Muhammad Mansha, appellant. P.W.7 is Muhammad Anwar constable who escorted the dead body for the purposes of post‑mortem examination.

6. The accused when examined under section 342, Cr.P.C. denied the prosecution story and attributed false implication to previous enmity over a Ihata. 'It was further stated that the complainant party to wreak vengeance committed the murder of Muhammad Arif, Muhammad Yousaf and injured Imam Bakhsh and Muhammad Hayat during the trial of the instant, case. The said occurrence is subject‑matter of the F.I.R. No.123 of 195, under sections 302/324/109/34, P.P.C.

7. Learned counsel for the appellants in support of his appeal made following submissions:‑‑

(1) That it was an unseen occurrence and blind murder. According to him, the prosecution story, as given in the F.I.R. registered on the statement of son of the deceased is unnatural as if he was present he would have intervened to protect and save his father. He added that the examination of Medico‑legal report Exh.P.H. shows that no relative accompanied Muhammad Shafi to hospital and he was taken to the hospital by Moharrir/Head Constable.

(2) That the ocular account is belied by medical evidence inasmuch as per statement of P.W.12 Dr. Muhammad Waseem Abbas Zaidi, Injuries Nos.2, 3 and 4 were blunt weapon injuries whereas, according to the ocular account none of the assailants was carrying blunt weapon.

(3) That from the evidence recorded it appears that Muhammad Shafi was without shirt and without shoes which is evident from the fact that the doctor who examined Muhammad Shafi did not hand over the shirt to the Investigating Officer and it was the complainant (P.W.9) from whom the Investigating Officer secured the shirt, P.5 of Muhammad Shafi, deceased. This shows that he was done to death at night when he was asleep.

(4) That the recovery of weapon of offence is not worthy of credence as no independent witness was there to witness the same.

(5) That F.I.R. was lodged after a delay of 11 hours, which shows that they were not sure about the accused and there was pre . He referred to Exh.P.1, (letter addressed to Medical Officer, Civil Hospital) inquiry report Exh.P.F. (memo. of recovery of blood‑stained shirt of deceased) Exh.P.E. (memo. of blood‑stained clothes of deceased) where the name of accused are missing in support of the aforesaid contention.

8. Learned counsel for the complainant as also for the State supported the impugned judgment by submitting that it was a day time occurrence, F.I.R. was lodged promptly, the appellants were specifically named and definite he was assigned to 'each of them; that it is not believable that a son (P.W.9) would let off the real culprits and falsely implicate the appellants. The prosecution story, it was contended, stands corroborated by medical evidence of motive and that of recovery.

9. Heard.

10. The occurrence which constitutes the motive part of the prosecution story, has not been denied by the appellants i.e. that complainant of the instant case and his father Muhammad Shafi were .tried for the murder of the father of Khizar Hayat, appellant, the complainant was convicted and sentenced to death whereas his father Muhammad Shafi, deceased was acquitted. The complainant too was acquitted by the High Court. In the afore‑referred circumstances, therefore, there is a substance that the appellants with a view to avenge the said murder committed the murder of Muhammad Shafi, deceased. The witnesses who appeared in support of the motive part of the prosecution story are P.W.8 Ghulam Sarwar and Muhammad Sharif, P.W.9. They are also they eye‑witnesses of the occurrence. Coming to the ocular account the F.I.R. was lodged by the P.W.9 Muhammad Sharif who is son of Muhammad Shafi deceased. His enmity with the appellants stand established as he was accused and tried for the murder of the father of Khizar Hayat, appellant but was acquitted. His statement, therefore, has to be seen with caution. His conduct during the occurrence does not correspond with the natural human conduct. It is repellent to common sense that a healthy well‑bodied young man would be a silent spectator to a scene in which his father Muhammad Shafi, deceased was subjected to merciless beating by the appellants. The question whether he was present therefore, is not free from doubt. However, P.W.8 is admittedly not related to the complainant and has no enmity with the appellants. None was even remotely suggested enmity during the lengthy cross‑examination to which he was subjected. His statement on all material particulars i.e. time of occurrence, the manner of attack and the locale of injuries is consistent with the story as given in the F.I.R. He is a natural witness of the occurrence as well as it is in evidence that he resides at a distance of one square from the place of occurrence. His statement stands, corroborated by medical evidence inasmuch as the injuries which he attributed to the appellants Khizar Hayat and Muhammad Mansha correspond to the description of injuries given in the medical evidence furnished by P.W.10 Dr. Muhammad Azam and P.W.12 Dr. Waseem Abbas Zaidi. His testimony is further fortified by evidence of recovery of blood‑stained daggars. The arguments of the learned counsel for the appellants that since none from the locality witnessed the factum of recovery the same should be disbelieved is not tenable firstly because P.W.5 who attested Exh.P.C. i.e. memo. of recovery of daggar P.1 from Khizar Hayat appellant, is a witness of locality. He is not inimical to the appellant and he is not related to the complainant party either. Bashir Ahmad, A.S.‑I. is a witness of recovery of daggar P.2 of Muhammad Mansha he was subjected to lengthy cross‑examination and nothing was brought on record to warrant an inference that he was either motivated by malice to depose falsely or his testimony was not worthy of credence. It is a settled proposition of law that a police officer in absence of any enmity with the accused is worthy of the same credence as a public witness. This is in line with the law laid down by the august Supreme Court in Nur Hassan v. The State (1993 SCMR 1608), Muhammad Naeem alias Naeema v. The State (1992 SCMR 1617). So far as the arguments of inconsistency between the medical evidence and ocular account qua the three blunt weapon injuries on the person of Muhammad Shafi deceased is concerned the same is of no avail for two reasons, firstly, there is no conflict between the medical evidence and ocular account so far as specific injuries attributed to appellants Khizar Hayat and Muhammad Manshar are concerned: The injuries attributed to these appellants correspond to the locale of injuries as given in the medical evidence not only in the evidence furnished by Dr. Muhammad Azam, (P.W.10) but also Dr. Waseem Abbas Zaidi, (P.W.12). Secondly, Dr. Waseem Abbas Zaidi (P.W.12) did not categorically state that these lacerated wounds were positively the result of blunt weapons injuries. These injuries could very well be the, result of fall on the ground because of the manner in which he was subjected to attack while lying on the ground.

The argument of delayed F.I.R. and omission of the names of accused on memos. Exh.P.1, Exh.P.F. and Exh.P.E. is of no avail. Firstly, because Exh.P.H. shows that Muhammad Sharif (P.W.9) took Muhammad Shafi deceased to Hospital and the doctor not only recorded his brief statement but, obtained his thumb‑impression on Exh.P.H. This was at 9‑40 p.m. His statement is to the following effect" Date and, hour of report sent to police":

Secondly, Muhammad Sharif (P. W.9) was busy attending to his father who was in a critical state and his first priority was to save him rather go to the Police Station and lodge F.I.R. Thirdly, the omission of names on some memos. could be a bona fide lapse and by itself would not lead to a presumption that no F.I.R. had been registered at that time because the F.I.R. No. and date is duly mentioned in those memos.

This leaves us with the question as to whether the conviction of the appellants can be sustained on the solitary statement of P.W.8. It is a settled proposition of law that in a criminal trial it is never the quantity but quality of evidence which weighs with the Court. It is the intrinsic worth and credibility of the deposition and the independence of the witnesses which weighs with the Court while appreciating the evidence. The statement of a solitary witness who is an independent, has no animous with the accused which stands corroborated by other circumstantial evidence on record i.e. the motive, the medical and recovery evidence is enough to sustain conviction on a capital charge. This is in line with the law laid down by the august Supreme Court in Muhammad Siddique v. The State (1971 SCMR 659); Shah Wali v. The Crown (1971 SCMR 273); Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) and Bacha Said v. The State (PLD 1978 SC 102).

For what has been discussed above, we are of the view that prosecution case against the appellants stand proved beyond reasonable doubt to sustain conviction on a capital charge. Criminal Appeals Nos.435 and 442 of 1998 have no merits the same are dismissed. The Murder Reference No.463 of 1993 is answered in affirmative and the death sentence awarded to Khizar Hayat, appellant is hereby confirmed.

H.B.T./K‑260/L Appeal dismissed.