MUHAMMAD YOUSAF Versus THE STATE

RIAZ AHMAD, J. ‑‑The appellants Muhammad Yaqoob aged 26 years, Yusuf aged 30 years, Nazeer aged 20 years and Muhammad Anwar aged about 19 years were arraigned before the Additional Sessions Judge, at Sargodha, to stand their trial on a charge under section 302 read with section 34 of the Pakistan Penal Code for having caused the murder of Muhammad Yar aged 45 years and on another charge under section 323, P.P.C. for having caused injuries to Mobara PW . 6.

Vide judgment dated 12‑6‑1984, the learned Additional Sessions Judge found only Yaqoob, Yusuf and Nazeer appellants guilty on the charge under section 302/34, P.P.C. Accordingly, the learned Additional Sessions Judge by convicting them sentenced Yaqoob appellant to death and to pay a fine of Rs.2,000 or in default to suffer rigorous imprisonment for a term of one year. It was further directed that in the event of the recovery of fine, the same was payable to the heirs of the deceased. Yusuf and Nazeer appellants on the aforesaid charge were sentenced to undergo life imprisonment and to pay a fine of Rs.2,000 each or in default of the payment of fine to suffer further rigorous imprisonment for a term of one year. It was also directed that the fine, if realized, would be paid to the legal heirs of the deceased Muhammad Yar. As far as Muhammad Anwar appellant was concerned, he was found guilty only on a charge under section 323 of the Pakistan Penal Code for having caused simple injuries to Mobara PW and thus he was sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000 or in default to suffer rigorous imprisonment for a period of two months. It was also directed that in the event of realisation of fine, the same shall be paid as compensation to Mobara PW.

Aggrieved by their conviction, the appellants have assailed their conviction through this appeal while the case of Muhammad Yaqoob appellant has also been referred to us under section 374 of the Criminal Procedure Code. This judgment shall dispose of both the appeal as well as the reference.

2. The occurrence resulting into the death of Yara deceased and injuries on the person of Mobara PW took place on 1‑8‑1982 at 10‑30 a.m. on a passage near a Kinu garden of Abdullah in village Kot Momin situated at a distance of four furlongs from Police Station Kot Momin.

The F.I.R. Exh.P.G. was lodged at the Police Station by Mobara complainant HW.6 and the same was recorded by Ghulam Qasim PW.8 Sub‑Inspector at 11‑45 a.m. on the day of occurrence.

Briefly, the prosecution case as disclosed in the F.I.R. was that the complainant was a resident of Dera Dhami‑Ana, Dakhli Kot Momin and on the fateful day, he alongwith his deceased brother Muhammad Yar at about 10‑30 a.m. was proceeding from the land of Muhammad Yar deceased towards their own residential Dera while on their way, when they reached their own land, near the Kinu garden of Abdullah, the appellant Muhammad Yaqoob armed with a gun and the other appellants armed with Sotas had ambushed themselves in the said Kinu garden. As soon as the complainant and his deceased brother passed near the said garden, the appellants emerged out and raised a Lalkara addressing the deceased remarking that they would now teach a lesson to the deceased for attempting to take the possession of the land. Muhammad Yaqoob appellant fired a shot from his gun hitting Yar Muhammad deceased who fell down after the receipt of the shot. Yusuf inflicted a Sota blow on the forehead of Yar Muhammad, while he was lying on the ground, another Sota blow was inflicted by Nazeer on the right side of the right eye of the deceased. The complainant while raising hue and cry fell upon the deceased to save him. Anwar appellant then inflicted Sota blows on the left shoulder, left buttock and right elbow of the complainant. In the meanwhile, Nazeer Ahmad PW.7 and one Ghulam Hussain immediately reached the scene and entreated the appellants to spare the deceased and the complainant. The appellants thereafter proceeded towards the east while the deceased succumbed to his injuries at the spot. The motive for the commission of the crime as disclosed was that between the deceased and the appellants Yusuf etc. there was a dispute about the possession of land. The deceased was eager to obtain the possession of his land from the appellant Yusuf and thus on account of this grudge, it was stated that the appellants had committed the crime.

3. On 2nd of August, 1982 Dr. Mazhar Rashid (P.W. 10) Medical Officer, Rural Health Centre, Kot Momin, Tehsil Bhalwal, conducted the post‑mortem examination on the dead body of Muhammad Yar and the following injuries were noticed:‑

(1) Lacerated wound 4 cm x 1 cm on the pack of right hand going deep.

(2) Lacerated wound 1 cm x 1/3 cm on inner side of right wrist joint.

(3) Circular lacerated wound 1 cm x 1 cm x going deep on the right side of abdomen in the right hypochonderian. There was blackening of margins of wounds.

(4) Lacerated wound 1/2 cm x 1/4 cm on the back side of abdomen.

(5) Circular lacerated wound 1 cm x 1 cm on the front of chest on the right side of mid line.

(6) Contusion 3 cm x 1/2 cm on. the forehead on the right side.

(7) Contused wound 1 cm x 1/4 cm on the bridge of nose.

(8) Contusion 3 cm x 2 cm on outer angle of right eye.

According to the doctor, the muscles of inter‑costal corresponding to injury No.5 were badly lacerated. A bullet had entered the middle media stinum and entered the right anterium of heart. The wall of the right antrium was lacerated. The bullet pierced the left antrium from the right antrium and entered the left pleura going in the lower lobe of left lung and was lodged in the hilum of left lung. The bullet was removed from this place. The wall of the left atria was lacerated. The left pleura was highly lacerated and conjested. The lower lobe of the left lung was badly lacerated

Abdominal wall below injuries Nos.3 and 4 was injured and the muscles were lacerated. The right lobe of the liver was also lacerated. The bullet after tearing the liver went into the retro peritoneal space and entered in the right kidney tearing the kidney into two halves and leaving the abdomen through injury No.4. Due to injury No.1 the tissue of the right hand beneath the injury was badly lacerated and there was comminuted fracture of the underlying metacarpel. In the opinion of the doctor, the injuries caused on the chest and abdomen were enough to cause death in the ordinary course of nature which had caused severe haemorrhage and shock. Injuries Nos.1 to 5 were caused by a fire‑arm weapon and the rest by a blunt weapon.

On the same day, the said doctor also examined Mobara P.W. and noticed the following four injuries on his person:‑

(1) Contused swelling 6 cm x 2 cm on the back of left temporal region.

(2) Contusion 7 cm x 1 cm outer part of left upper arm.

(3) Contused swelling 5 cm x 1 cm on the outer aspect and lower portion of right upper arm.

(4) Contusion 4 cm x 3 cm on the left buttock.

All the injuries were caused by a blunt weapon and were declared simple.

4. On 8‑8‑1982, all the appellants except Yaqoob were arrested by the Investigating Officer Ghulam Qasim S.I. P.W.8. On 12‑8‑1982, Yaqoob appellant who was serving in the Armed Forces was arrested from Risalpur Cantt. by Muhammad lqbal ASI P:W.1. On 8‑8‑1982, Yusuf appellant produced Dang P.5 which was taken into possession vide memo. Exh.P.D. attested by P.W.5 Ahmad, Muhammad Ali (not produced) besides the Investigating Officer. On the same day, Anwar appellant produced Dang P.6 which was taken into possession vide memo. Exh.P.E. attested by the same aforesaid witnesses. Nazeer appellant also produced Dang P.7 which was taken into possession vide memo. Exh.P.F. attested by the same witnesses. On 12‑8‑1982, Yaqoob appellant produced his licensed gun P.1 and its licence P.2 which were taken into possession vide memo. Exh.PA attested by A.S.I. Iqbal Shah P.W.1 and one Ghulam Sarwar, Constable (not produced).

5. At the trial, in support of its case, the prosecution placed reliance upon the ocular testimony of complainant Mobara an injured witness P.W.6, a brother of the deceased and Nazeer P.W.7 while Ghulam Hussain named in the F.I.R. was given up as unnecessary. In addition to the ocular testimony, the prosecution also relied upon the evidence as to the motive and the medical evidence in support of its case. Muhammad Anwar appellant when examined under section 342, Cr.P.C. to explain the evidence adduced against him, admitted his relationship with the other appellants and stated that they belonged to the same family. Anwar appellant further admitted the civil litigation pending between the deceased Yara and the father of Muhammad Yusuf appellant and stated that a stay order had been obtained against Yara deceased. He denied the charge and his involvement in the commission of the crime. Similarly, Muhammad Yaqoob appellant also admitted his relationship with the other appellants and also deposed about the civil litigation pending over the possession of the disputed land. He denied the charge and stated that he had been involved due to enmity. He also denied the recovery of gun P.1 alleged to have been made from his Unit. Nazeer appellant also denied the charge and admitted his relationship and deposed about the civil litigation pending between the deceased and the father of Muhammad Yusuf appellant in which against the deceased, a stay order had been issued. Muhammad Yusuf appellant likewise denied the charge and deposed about the pendency of litigation over the land and stated that he had been involved due to enmity. Muhammad Yusuf appellant produced a certified copy of the order Exh.DB passed by the learned Civil Judge in the suit title Dolan v. Muhammad Yar etc. He also produced a certified copy of the order passed by Additional District Judge, Sargodha in civil appeal title; Mutalli v. Yara (Exh.D.C.). Exh. DD copy of the plaint in a suit filed by Yara v. Ahmad was also produced. Certified copy of the stay order Exh. OE dated 13‑8‑1980 passed by the Civil Judge in case title Jallan v . Muhammad Yar was also produced by Muhammad_ Yusuf appellant. A copy of the order passed by the Supreme Court of Pakistan Ex. DF in the bail matter of Muhammad Anwar appellant was also produced. A school leaving certificate Exh.P.G. in respect of Muhammad Anwar's age was also produced by Muhammad Yusuf appellant.

6. With the assistance of the learned counsel for the parties, we have carefully perused the evidence on the record and we have also heard the contentions raised on behalf of the appellants and the State.

7. It was vehemently argued by the learned counsel for the appellants that this was an unwitnessed crime, inasmuch as, the medical testimony in this case belied the ocular testimony and proved that the witnesses Mobara and Nazeer had not seen the occurrence. In support of this contention, it was argued that if the occurrence had taken place in the manner as the prosecution wants us to believe then the post‑mortem examination could not have been conducted on the 2nd of August, 1982. It was further submitted that the F.I.R. was not prompt but had been dishonestly shown to have been lodged with promptitude, because if at all the F.I.R. was so prompt, then prosecution had failed to explain the delay in the post‑mortem examination because the dead body allegedly had been despatched on 1st of August, 1982 and the delay between the receipt of the dead body in mortuary and the post‑mortem goes a long way to show that the investigation in this case was not honest. It was further submitted that P.W.7 Nazeer was a chance witness and had miserably failed to render a satisfactory explanation about his presence at 'the time and scene of the occurrence. A perusal of the statement of P.W.3 Nazeer Ahmad in his examination‑in‑chief reveals that he was a resident of a village known as Chhani Dal situated at a distance of 4/5 miles from the place of occurrence. On the day of occurrence, he had come to Dera Dhami Ana to see Muhammad Yar deceased and on the Dera, he learnt that the deceased had gone to Kot Momin alongwith Mobara P.W. and thus the witness proceeded to Kot Momin to see the deceased. According to the witness, when he reached near the garden of Abdullah, he saw the occurrence.

8. Adverting to the contentions raised by the learned counsel for the appellants that Nazeer P.W.7, an eye‑witness, was a chance‑witness and had failed to render satisfactory explanation about his presence at the time and scene of occurrence, we find that the plea is not devoid of truth. In this behalf, it would be advantageous to reproduce a portion of the cross‑examination of Nazeer P..W..7 which reads as under:‑

..I had to purchase some plants from Muhammad Yar deceased, from his nursery, and therefore, I went to his Dera. I went to village Kot Momin on learning about the absence of Muhammad Yar, not to meet him there but because I had to purchase fertilizer. I did not state before the police that on learning about the presence of Muhammad Yar at village Kot Momin I went after him towards Kot Momin. Confronted with Ex. D.A. so recorded. I was not informed as to why and where in Kot Momin, Muhammad Yar deceased had gone. Village Kot Momin is a big place and I could not have traced Muhammad Yar there if I had desired to go after him. I had learnt at the Dera that Mobara P.W. and Muhammad deceased had gone together from their Dera to village Kot Momin."

A perusal of the above portion of the statement reveals that the answers to these questions were given in a half hearted manner. The natural course of the human conduct would be to wait at the Dera for the arrival of Muhammad Yar or to return to his own village. The desire to purchase fertilizer is also an afterthought and if in fact the witness had to purchase the fertilizer, then, there is no explanation on the record nor any material exists to show that such fertilizer was in fact purchased. To us, it seems that the witness is justifying his presence at the scene of occurrence but we are not satisfied with the explanation rendered by the witness.

9. It was next contended that the medical evidence in this case belies the ocular testimony. The medical evidence as deposed to by the doctor reveals that a bullet had pierced the dead body of the deceased which had been extracted and handed over to the police. We sent for the phial containing the said bullet and examination by us reveals that it was not the bullet but a pellet. We are not unmindful of the fact that the doctor while being examined, may have committed the error of describing the pellet as bullet. In addition thereto, we find that there are two injuries on the right hand of the deceased; one is on the back of right hand and the other is on the wrist. Both the injuries are in reverse position, and therefore, we cannot believe that the deceased would have raised his hand in one posture and then would have turned to raise the hand in another posture. Both the injuries cannot be the result of one shot. Adverting to injury) No.3 which is a circular lacerated wound 1 cm x 1 cm x going deep on the right side of abdomen in the right hypochonderian. There was blackening of margins of wound. The blackening around the wound shows that the shot was fired from a close range and it cannot be the same shot which had hit the inner side of the right wrist joint and the back of the right hand. It must be the second shot fired from a very close range. The prosecution has failed to explain this vital discrepancy which goes to the root of the prosecution case, to falsify it, because the consistent prosecution evidence is that only one fire was shot.

10. After the analysis of the prosecution evidence, as narrated above, we are now left with the statement of solitary eye‑witness namely Mobara PW.6 who is also injured and is a maker of the F. I. R. After careful consideration of the facts of the case and in the light of the analysis of the ocular testimony referred to above, we are of the view that Mobara PW 6 has deliberately suppressed the material facts of the case. The litigation between the deceased and Yusuf and other co‑accused over the piece of land goes a long way to reflect C the involvement of the appellants. It is prosecution's own case that the deceased was desirous to obtain the possession which was with the accused side and hence it was most appropriate opportunity to involve the accused side in this case. The crux of the issue is that we are not satisfied with the credibility of the ocular testimony to sustain conviction in this case.

11. For the reasons recorded above, we are of the view that the prosecution has failed to bring guilt home to the appellants and thus we have no hesitation in allowing this appeal. Accordingly, the death sentence awarded to the appellant Muhammad Yaqoob is hereby set aside. The conviction and sentence of appellants, Muhammad Yusuf and Nazeer Ahmad is also set aside. The conviction and the sentence of the appellant Anwar under section 323, P.P.C. is also set aside. They shall be released forthwith if not required in any other case.

The Criminal Revision (No.347 of 1984) filed by the complainant seeking enhancement of sentence of the appellants, Muhammad Yusuf, Nazeer Ahmad and Muhammad Anwar to death has no substance because we have already held that the prosecution has withheld the material facts and has thus failed to establish its case, therefore, the revision petition is also dismissed.

S.A./M‑474/L Petition dismissed.