MUHAMMAD YUNUS QAMAR Versus RUBINA

Muhammad Yasin (30/35) and Falak Sher (25/26) were tried alongwith Muhammad Sharif, Fazal Elahi, Muhammad Ishaq (brothers of Falak Sher) and Bashir Ahmad (maternal-uncle) by Additional Sessions Judge, Lahore, for having murdered Mst. Sakina Bibi on 17-5-1986 at 6-00 a.m. near Darbar Pir Borhan Shah, Circular Road, at a distance of one kilometre from Police Station Naulakha, Lahore.

Vide judgment, dated 29-9-1988, learned trial Judge convicted Muhammad Yasin and Falak Sher under section 302/34, P.P.C. and sentenced each of them to undergo imprisonment for life plus to pay a fine of Rs.10,000 each, in default whereof to undergo R.I. for two years each.

Each of them was also directed to pay a sum of Rs.25,000, as compensation, to the heirs of the deceased, in default whereof to undergo S.I. for six months each.

Muhammad Sharif, Fazal Elahi, Muhammad Ishaq and Bashir Ahmad were acquitted vide the same judgment.

2. The convicts have filed appeal.

3. F.I.R. Exh.PA. was registered at the Police Station by Inamullah Khan (P.W.11) at 6-45 a.m. on the statement of Haji Abdul Hamid (P.W.5).

According to F.I.R., Mst. Sakina had married Abdul Rashid 17/18 years prior to the occurrence without the consent and against the wishes of his brother Yasin (appellant), his cousins Falak Sher (appellant), Muhammad Ishaq, Fazal Elahi and Muhammad Sharif. All of them were annoyed on that account. They always used to look for an opportunity to take revenge from Mst. Sakina Bibi for having married without their permission. Falak Sher etc. had quarrelled with Mst. Sakina Bibi on one or two occasions before the occurrence.

On the day of occurrence, Mst. Sakina Bibi started from her house alongwith her son Muhammad Jahangir (P.W.8) at 6-00 a.m. for Bairoon Yakki Darwaza to purchase vegetable. The complainant followed them on a motor-cycle. When Mst. Sakina reached near the shop of Muhammad Sharif, Milk-seller, Falak Sher armed with a dagger, Ishaq, Fazal Elahi, Muhammad Sharif and Muhammad Yasin armed with Chhuris came there raising Lalkaras that they will finish Mst. Sakina Bibi for having degraded the family. Falak Sher caused injuries with the dagger on both sides of the neck while Muhammad Ishaq inflicted injuries on the back of left arm. Fazal Elahi gave her a blow on the abdomen. Muhaibmad Sharif caused injuries on the back. Muhammad Yasin also gave her injuries on the back and left arm. The complainant and Jahangir P.Ws. continued raising alarm but the accused threatened them. Sh. Muhammad Javed and Muhammad Saeed reached the sot hearing noise and witnessed the occurrence.

It is alleged in the F.I.R. that Falak Sher etc. committed the murder at the instance of Bashir Ahmad.

4. Muhammad Munir Ahmad, Inspector/S.H.O., on receipt of F.I.R. while being on patrol, reached the spot and despatched the dead body for post mortem after preparing necessary papers. Blood-stained earth was also collected by him from there vide memo. Exh.P.C. Muhammad Sharif, Fazal Elahi, Muhammad Ishaq and Muhammad Yasin were arrested by him on 27-5-1986. Dagger P.4 got recovered by Falak Sher on 20-6-1986 was taken into possession by him vide memo. Exh.P.F.

Investigation was, thereafter, transferred to Ch. Ghulam Rasool, D.S.P. (C.W.1). On his orders, Feroze Khan, A.S.I. (P.W.4) arrested Falak Sher on 10-6-1986.

Bashir Ahmad, who was allowed pre-arrest bail by the Additional Sessions Judge was formally arrested by Muhammad Bashir (P.W.15) on 17-6-1986.

Investigation was also conducted by Sardar Saeed Gul Khan, D.S.P. (C.W.2). All the accused named in the F.I.R. were challaned on his instructions.

5. Statements of 15 P.Ws. were recorded at the trial.

Dr. Khalid Aziz, who had performed autopsy on 18-5-1986 at 11-00 a.m., appeared as P.W.6. He had noted following injuries on the body of the deceased:--

(1) Spindal shape obliquely placed incised wound situated on left side of neck measuring 3.5 c.m. x 1 c.m., ,6.5 c.m. above and lateral to sternal notch. It is found to be skin deep on exploration of the neck.

(2) Spindal shape incised wound, measuring 2.5 c.m. x 1 c.m. situated at upper part of left side of neck 6 c.m. below left ear. This is also skin deep, on exploration and is found to be communicating with injury No.3.

(3) Spindal shape incised wound measuring 1.5 c.m. x .5 c.m. situated on left side of .neck 1 c.m. above and behind injury No.2. This is also skin' deep and communicating injury No.2.

(4) Spindal shape penetrating wound chest cavity deep measuring 2 x .75 c.m. in mid cavicular region in left supra clavicular fossa. It is obliquely placed, and is directed medially downward. On exploration after passing through skin fascia muscles parietal pheura to orch of iota and then up to tericartium. Left chest cavity is found to be full of partially clotted 12-00 cc of which was recovered from the site.

(5) Incised wound 2 c.m. x 1 c.m. muscle deep on back of left forearm. 7 c.m. below left elbow and is communicating with injury No.6

(6) 3.5 c.m. x 2 c.m. incised wound back of left forearm 5 c.m. below and behind injury No.5 and 9 c.m. from left elbow, communicating with injury No.5. It is muscle deep.

(7) 3.5 c.m. x 1 c.m. incised wound on right buttock 8 c.m. lateral to mid line. It is skin deep.

(8) 3 c.m. x 1 c.m. transversely placed penetrating wound chest cavity deep situated down left side of chest, slightly behind posterior axillary line. 17 c.m. below posterior auxillary fold and 13 c.m. lateral to mid line posterially. On exploration after passing through skin fascia muscles, on left side, damaged pleura perforated the inferior border of lower lob of left lung and then has entered through partcardium to apex of heart and right ventricle. .

(9) 3 c.m. x 1 c.m. incised wound in left lumber region 4 c.m. below and behind injury No.8. 1 c.m. niidline posterially. It is muscle deep and has reached to the lever of transerse line of lumber vertebra,

(10) .75 c.m. x 2.5 c.m. incised wound in left lumber region 4.5 c.m. below and behind injury No.9 and 5 c.m. lateral midline posterially. It is muscle deep.

(11) 3.5 c.m. penetrating wound abdominal cavity deep situated in left lumber region, slightly behind the posterial auxiliary line 25 c.m. below and behind posterial auxiliary fold and 12 c.m. from midline posterially. On exploration after passing through skin fascia muscles, right toe of diaphragm, right kidney. peri perinephric fat was haemorrhagic with a big retroteritoneel haematoma or right side. Right renal vessels were cut.

(12) 2.5 c.m. x 1 c.m. incised wound muscle deep on right side of the neck 7 c.m. below right ear.

(13) 1 c.m. x 5 c.m. muscle deep incised wound back of neck 2.5 c.m. lateral to midline.

(14) 2.4 c.m. x .75 c.m. penetrating wound on right side of front of chest 11 c.m. below right nipple and 4 c.m. from midline. After passing through skin, fascia muscle right dome diaphragm right lob of liver petitioneal is found to be full of blood.

(15) 1 c.m. x.5 c.m. incised wound muscle deep on the right side of neck.

(16) 2 c.m. x .5 c.m. penetrating wound chest cavity deep right side of neck, close to external end of right clavical. After passing through the skin fascia cut the clavical right pleura right lung, right chest cavity contained 11 cc of blood.

(17) 2.5 c.m. x .75 c.m. penetrating wound chest cavity deep on left side of chest 4 c.m. below injury No.4 after passing through skin fascia muscle entered left pleura, left lung was found to be clasped.

(18) 2.5 c.m. x 1 c.m. incised wound on front of left shoulder.

(19) 2.5 c.m. x 1 c.m. incised wound scalp deep on right side of back of head.

(20) 0.5 c.m. x 0.5 c.m. incised wound skin deep back of left side of chest 3.5 c.m. lateral to midline.

(21) 3.5 c.m. x 1.5 c.m. abrasion on back of shoulder.

(22) .5 c.m. x .5 c.m. abrasion on left side of abdomen. On exploration larynx and trachea was healthy. Stomach contained 6 ounces of curd like material. Small intestine was healthy contain chyme. Spleen was shruklen. Left kidney was healthy. Bladder empty. Uterus was firm, hard and empty. Big fibroid was attached with fundus which was calsified in the middle.

Injuries Nos.l to 20 were opined to have been caused by sharp-edged weapon while injuries Nos.21 and 22 were opined to have resulted from blunt weapon. Death was opined to have occurred due to profused haemorrhage and damage to vital organ. All injuries collectively and injuries Nos.4, 8, 11 and 14 individually were opined to be sufficient to cause death in the ordinary course of nature. Time between injuries and death was opined to be immediate while the time between death and post-mortem was opined to be 24 to 36 hours.

During cross-examination he stated that injuries Nos.l to 20 could possibly be caused by a sharp double-edged weapon and could also be caused by a single-edged weapon.

6. Ocular account was deposed to by Haji Abdul Hamid (P.W.5), Sh. Muhammad Javed (P.W.7) and Muhammad Jahangir (P.W.8).

Haji Abdul Hamid while repeating the facts given by him in the F.I.R. stated during cross-examination that Rashid, his brother (husband of the deceased) was hanged on having been convicted for the murder of one Muhammad Boota. He admitted that apart from Rashid, his brother Muhammad Sadiq, his uncle Maula Bakhsh and his son Shaukat were also tried for the murder of Boota. He admitted that the accused used to pursue the Boota's case in the Court. He denied the suggestion that they considered Mst. Sakina responsible for the hanging of their brother Rashid and so had severed relations with her. He gave out that his brother Siddique had got a case registered against Bashir, Ishaq, Fazal Elahi and Muhammad Din accused and others in 1973 and had got another case registered against them in 1981-82 also. He explained that he was going to Mayo Hospital to see his daughter, who was admitted there, when the occurrence had taken place. He stated that Mst. Sakina used to take her son Jahangir alongwith her while going to purchase vegetables. According to him, the dead body was removed from the spot at 9-00 a.m. for post-mortem. He gave out that vegetable shops in Yakki Gate were at a distance of 200 yards from the place where the occurrence had taken place. He denied the suggestion that he had not witnessed the occurrence and had lodged a false report after consultations and deliberations against all the accused. The suggestion that he had come to know after the registration of case that actually Mustafa alias Musti had committed the murder but had not pursued the case against him so that the prosecution case against the accused named by him in the F.I.R., is not spoiled, was denied by him.

7. Sh. Muhammad Javed (P.W.7) while narrating the occurrence did not state as to which of the accused had caused, which injury except in the case of Falak Sher regarding, whom he stated that he had given blows to the deceased on the clavical bone and at her back. During cross-examination, he stated that his house was at a distance of two furlongs from the place of occurrence. He claimed that he had witnessed the occurrence while on way to the house of his brother-in-law. He stated that he knew Mst. Sakina since six years prior to the occurrence and claimed that Falak Sher was his friend and they used to fly kites together. While denying the suggestion that he was notorious bad character of the locality, he did not refute that he had been challaned in some criminal cases which included cases under section 294, P.P.C., under the Arms Ordinance and under Prohibition (Enforcement of Hudood) Ordinance. He declared that he was involved in those case falsely and was not convicted in any one of them. He stated that Jahangir P.W. was present when the police had arrived at the spot. He denied the suggestion that he had not witnessed the occurrence and had made a false statement against the accused because of his intimate relations with the complainant. He admitted that he had declined to take oath on the Holy Our'an regarding the involvement of the accused except Falak Sher accused. The suggestion that he had refused to take oath on the Holy Qur'an as that would have been a false oath, was denied by him.

8. Muharimad Jahangir (P.W.8) while corroborating the statement made by P.W.5 did not specifically state about the specific injuries caused by the accused except Falak Sher regarding whom he stated that he had caused injuries to her mother on clavical bone, on the back and neck. Regarding motive, he stated that his mother was murdered for having married his father of her own accord. During cross-examination, he admitted that none of the accused had assaulted his mother before the occurrence in question. However, he added that she always apprehended an attack. He stated that the accused had neither visited their house to see his mother nor his mother had ever gone to the house of the accused. He claimed that he was present at the spot when the police had arrived there. In answer to a question, he stated that nobody other than the lady-constables had observed the injuries on the body of her mother. He gave out that he, his uncle and other P.Ws. had not intervened physically due to the fear of the accused. He denied the suggestion that he had not witnessed the occurrence and made a false statement.

9. Zulfiqar Khan, who had witnessed the recovery of blood-stained dagger P.4 at the instance of Falak Sher from his house, appeared as P.W.13 and verifed that fact. During cross-examination, he stated that his video shop was at a distance of two furlongs from Police Station Naulakha. He explained that he had joined the police party while being present in front of the police station. He did not deny that there are houses as well as shops around the house from where the accused had got recovered dagger. He denied the suggestion that he had not witnessed the recovery and had made a false statement at the instance of Khasta Khan who was his co-gangster. He declared that he had seen the accused, for the first time, on the day of occurrence.

10. Muhammad Feroze Khan, S.I. who had arrested Falak Sher on 10-6-1986 when he had appeared before him near Babu Hotel, appeared as P.W.4 and deposed that fact.

11. Muhammad Munir Ahmad, S.H.O., who had investigated the case, arrested Muhammad Sharif, Fazal Elahi, Muhammad Ishaq, acquitted accused, and Muhammad Yasin (appellant) on 27-5-1986 and had taken into possession blood-stained dagger P.4 got recovered by Falak Sher (appellant) on 20-6-1986, appeared as P.W.14 and deposed those facts. During cross-examination, while giving the names of the persons present at the spot, he did not mention the name of Jahangir P.W,. However, he stated that some other persons besides the ones mentioned by him were also present and he had joined them in the investigation. He admitted that first version of the accused on arrest was that only two persons, namely, Falak Sher (appellant) and one Mustafa were involved in the occurrence and that the remaining accused were neither present at the spot nor involved in the occurrence. He denied the suggestion that no recovery had been effected at the instance of Falak Sher and that he had planted the dagger on him.

12. Muhammad Bashir, Inspector (P.W.15) claimed that he had formally arrested Bashir accused after confirmation of his pre-arrest bail.

13. Inamullah Khan, who had registered F.I.R. Exh.P.A., while appearing as P.W.11 deposed that fact. He denied the suggestion that he had rcpt registered the case in the morning but had done so in the afternoon.

Statements of the remaining witnesses, except Ahmad Din P.W., who deposed against Muhammad Bashir, acquitted accused about the conspiracy, are more or less of a formal nature.

Statement of Ahmad Din has no bearing on the case against the appellants.

Positive reports from the offices of Chemical Examiner and Serologist regarding stains of human blood on the earth collected from the spot and dagger recovered from Falak Sher were also tendered in evidence.

14. The appellants during their statements under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. All of them took up the stance that they had been involved falsely on account of enmity.

Falak Sher stated as follows in answer to the question, "Why this case against you and why the P.Ws. have deposed against you?":--

"As being relatives of co-accused, the complainant party has falsely involved me. In fact, one Mustafa alias Musti had caused injuries to Mst. Sakina deceased on provocation. I was present at the spot but did not participate in present occurrence, neither the complainant nor Muhammad Jahangir P.W. and other P.Ws. were present at the spot nor my co-accused were present at the spot. During the investigation, this fact also came to the knowledge of the police but they did not arrest Mustafa alias Musti, under the influence of the complainant party."

They declined to make statement on oath but examined in defence five police officials in order to prove F.I.Rs. registered at different police stations against P.Ws.5, 7 and 12, for different offences.

15. Sardar Saeed Gul, D.S.P. and Ghulam Rasool, D.S.P. were examined as C.Ws.l and 2, respectively. Both the D.S.Ps. only gave out that they had also partly investigated the case, one after the other.

16. I have gone through the record with the assistance of learned counsel for the appellants and considered the contentions raised by learned counsel for the parties.

17. Although, learned counsel for the appellants strenuously argued that performance of post-mortem on the following day of the occurrence lends lot of support to the suggestion that the F.I.R. had not been registered at the time claimed, and so the same be deemed to have been recorded after consultations and deliberations, yet he failed to point out anything concrete from the record to belie the claim of the Police Officers and the complainant, that the case was not registered at the time, claimed. Although the P.Ws. were subjected to lengthy cross-examination yet no effort was made, during cross-examination, to prove that the delay in the performance of post-mortem had occurred because of the delay in despatch of body to the mortuary. On the other hand, there is evidence that the dead body had been despatched to the mortuary for post mortem from the spot, at 9-00 a.m. Such claim was never challenged.

18. Yet another aspect of the matter which belies the suggestion of the F.I.R. having been recorded late, is that the complainant while mentioning that the occurrence had been committed at the instance of Bashir accused, had not given the names of the witnesses of conspiracy. Had the F.I.R. been lodged some time in the evening, the complainant would have found opportunity to mention the names of the witnesses who were later produced before the police to prove the conspiracy.

In the circumstances, there appears to be no weight in the argument that the F.I.R. in this case had been recorded with delay, after consultation and I deliberations.

19. The defence not only succeeded, during cross-examination in proving that P.Ws.5, 7 and 12 had been proceeded against, for different criminal acts, but had brought on record F.I.Rs. in that regard also. Yet that in my view, in the circumstances of this case, is not sufficient to discard the testimony of P.Ws. 5 and 7, because none of the F.I.Rs. is evidence of the fact that they would have perjured against the appellants. All that, those F.I.Rs. indicate, is, that the witnesses had been proceeded against criminally in different matters. Antecedents regarding the morality of a witness alone is not sufficient to reject his testimony, unless he is proved to be interested and inimical or is proved to 8 be an absolute slanderer having no regard for truth. In the case in hand, such a conclusion cannot be drawn against P.Ws.5 and 7. P.W.7 in spite of suspicious character, had during investigation, refused to swear on Holy Qur'an regarding the guilt of the accused, other than Falak Sher.

Barring the aspect as to what advantage can be extended to the accused, other than Falak Sher, one thing is obvious, that the Guy had his own sense of morality and understood, how much it was immoral to state about a fact on Holy Qur'an, which one is not 100 per cent. sure of being correct.

20. The testimony of Abdul Hamid P.W. also does not go to prove that he was not a man of convictions, but was prone to tell absolute lies for personal gains. In the circumstances, I have no hesitation in repelling the arguments that C the testimony of P.Ws.5 and 7 should not be relied upon, merely on the ground that they had been proceeded against criminally in certain matters. (Note- Credentials of testimony of P.W.12 have not been discussed as he had made statement against Bashir Ahmad, who is acquitted, and qua whom no matter is pending before this Court.).

21. The contention of learned counsel that presence of Muhammad Jehangir P.W. at the spot was doubtful, has not impressed me. He was barely 14/15 years old at the time of occurrence. The deceased had lost her husband. He was her only child. For him also, his mother, was every thing in the world. In the circumstances, Jehangir's having accompanied his mother, stands well explained. The argument that Jehangir P.W. alone could have been sent by his mother to bring vegetable, finds explanation from the circumstances, surrounding the mother and child. The mother must have been taking extra care about his well-being and safety, and might not have been permitting him to move alone. The mere fact that the Inspector was not found to have noted his name in the case diary, which he prepared on reaching the spot, is not enough to believe that he was not there. Jehangir P.W. claimed that he was present. The other eye-wtinesses also stamped that fact. The Investigating p Officer had also recorded his statement under section 161, Cr.P.C. at the spot. His presence, therefore, at the spot, cannot be doubted.

22. Although, I have repelled the argument of learned counsel for the appellants that none of the three eye-witnesses had witnessed the occurrence, yet I find weight in the argument of learned counsel that maintenance of conviction on a capital charge on the uncorroborated testimony of inimical witnesses would not be a safe administration of justice.

The unhappy and strained relations of Abdul Hamid P.W.5 and Jehangir P.W.8 stand proved from the record. In fact they also never denied that their relations with the accused were strained.

No doubt, Sh. Muhammad Javed was not related to the deceased, or P.Ws. 5 and 8 and he had no recorded enmity with the appellants, yet he cannot be accepted to be absolutely an independent witness. In the circumstances, evidence for corroboration of the ocular account, has to be looked for.

23. There is evidence of recovery of blood-stained dagger at the instance of Falak Sher. The same was not only deposed to by Zulfiqar Khan P.W.13 but was also deposed to by Muhammad Munir Ahmad, Inspector P.W.14. Both the witnesses had no bias against him (Falak Sher appellant). At least there is E nothing such on record. The mere fact that the recovery was effected 34 days after the occurrence, is no ground to reject the testimony of the two independent witnesses regarding recovery, particularly when the dagger was found stained with human blood. The recovery after 34 days, also stands explained from the fact that Falak Sher was not available till 10-6-1986, i.e. 23 " days after the registration of case. He had led to the recovery of dagger on 20-6-1986, i.e. 10 days after his arrest. The argument of learned counsel for the appellants that bloodstains on the dagger would have vibrated after such a long period, does not advance the case of the appellant as the dagger was got recovered from the ceiling of a residential room. The dagger hidden in the ceiling could have easily retained the bloodstains because it was not exposed to weather. Had it been got recovered, buried beneath the earth, the argument could have force. The contention that the appellant (Falak Sher) had enough time at his disposal to destroy the weapon, in my view, does not hold water, in all cases. It is the way, the accused would feel to behave after having committed such a heinous offence.

24. Apart from the evidence of recovery of weapon from Falak Sher, there are other circumstances on record also, which go to prove his participation in the occurrence. In that, he himself had not denied his presence at the spot. His stance was that he had only witnessed the occurrence.

The principle that the plea of the accused has to be accepted or rejected as a whole, does not apply to the stance of the accused. He had not raised any plea. The plea is based on some rights, i.e. self-defence, defence of property or of having acted under grave and sudden provocation. The stance, that he took up, was a mere admission and the admission can always be taken into account while deciding the guilt or innocence of the accused. If the principle of rejection or acceptance of the whole statement of the accused is extended to Falak Sher, then under what law the Court will be able to convict the person, he named to have committed the murder? That person was neither challaned nor is there any evidence or allegation against him.

For all the reasons noted above, no doubt is left in my mind that the prosecution has been able to prove the case against Falak Sher beyond reasonable shadows of doubt. The appeal filed by him, is therefore, dismissed. He shall be given benefit of the provisions of section 382-B, Cr.P.C.

25. Nothing incriminating was recovered from Yasin appellant. The only fact which learned counsel for the State/complainant canvassed against him was, that being real brother of the deceased he might have a grievance of more serious nature against the deceased as she had brought shame to the family, by marrying a stranger against the wishes of family members. Although the said fact is correct, nonetheless the said fact cannot be made a basis of maintenance of his conviction as it was complainant's own case, right from the time he got the F.I.R. registered that Yasin brother of Mst. Sakina and Falak Sher, Ishaq, Fazal Elahi and Muhammad Sharif sons of her uncle Muhammad Din were extremely annoyed and aggrieved. If the fact of being annoyed on account of the deceased having married a person of her own choice, was not taken as corroboration against Muhammad Ishaq, Fazal Elahi and Muhammad Sharif (acquitted accused, how can the same fact be pressed into service against Yasin appellant? According to the complainant, Yasin as well as the acquitted accused Muhammad Ishaq, Fazal Elahi and Muhammad Sharif, alongwith Falak Sher had same type of feelings and grievances against the deceased. What cannot be considered as basis for conviction of Muhammad Ishaq, Fazal Elahi and Muhammad Sharif for the commission of murder, can also not be I considered to be the basis in the case of Yasin.

Considering all circumstances, and facts on record, I am not convinced that the prosecution has been able to prove the case against Yasin beyond K reasonable shadows of doubt. He is, therefore, extended the benefit of doubt by way of abundant caution. The appeal filed by him is, therefore, allowed and he is acquitted. He shall be released forthwith if not required in any other case.

N.H.Q./M-757/L Order accordingly.