AZHAR MAHMOOD Versus THE STATE
Azhar Mahmood appellant (16 years) and Imtiaz alias Ghani (20 years) were tried by learned Additional Sessions Judge, Lahore, under section 302/34, P.P.C. for the murder of Javaid Iqbal (35 years), the brother of Sana Ullah complainant (P.W.5). The appellant was convicted and sentenced to imprisonment for life and a fine of Rs.20,000 or in default thereof 2 years' R.I. He was also ordered to pay a compensation of Rs.20,000 to the heirs of the deceased under section 544-A, Cr.P.C. or instead to undergo six months' R.I. Imtiaz co-accused was acquitted. The convict has come up in appeal.
2. The occurrence took place at 11-00 p.m. on 29-4-1991 in Farooq Street, Akber Road, Misri Shah, Lahore at a distance of 1-1/2 kilometres from Police Station Misri Shah in front of the house of Zafar Iqbal (P.W.8). Sana Ullah complainant was informed at the house about the occurrence and he reached Muhammad Boota, Sub-Inspector (P.W.12) who was in Misri Shah and made statement (Exh.P.C.) at 12-15 a.m. on 30-4-1991. On its basis formal F.I.R. (Exh.P.C./1) was registered by Shah Hussain Inspector (P.W.10).
3. The case given in the statement and FA.R. to the police was that Sana Ullah complainant alongwith parents and other family members lived in Farooq Street, Akber Road, Misri Shah, about 15/16 years back. Due to disputes with Talib Hussain etc. who used to roam in the Mohallah after taking liquor, the family shifted from Misri Shah about 10/11 years back after selling the house. The family settled in Daroghawala, Lahore. The version proceeds that at about 11-00 p.m. Javaid Iqbal, the younger brother of the complainant (the deceased) alongwith his friend Hamid Sadiq (P.W.9) left to see their friend Zafar Iqbal (P.W.8) on Scooter No.LHL-8794. They rang up the bell of Zafar Iqbal and he came out. The three were standing in the street and exchanging greetings when Azhar appellant, nephew of abovementioned Talib Hussain and Imtiaz, son of said Talib Hussain, armed with fire-arms emerged. Imtiaz raised the Lalkara that their old enemy should not go alive whereupon the appellant fired his mauzer hitting in the abdomen of the deceased. Imtiaz fired two shots with his mauzer striking the deceased in the left side of chest. The deceased fell down. The firing attracted the people of the Mohallah. Javaid Iqbal expired at the spot. It is also in the F.I.R. that on the information given by Hamid Sadiq P.W., the complainant had left for the spot (and made report to the police on the way).
4. Dr. Abdul Rasheed Mian (P.W.3) on 1-5-1991 at 9-15 a.m. performed the post-mortem examination on the dead body of Zafar Iqbal deceased. He found the following injuries:--
(1-A) A circular wound with inverted margins and size .75 cm. x.5 c.m. on front of right chest with a medial superficial extension which was almost quandrangular in shape with lacerated margins and having a size 1 c.m. x.8 c.m. (in addition to circular wound but continuous with it), situated 4.5 c.m. from mid line, 7 c.m. ,from right nipple and 18 c.m. below right mid clavicle.
(1-B) A circular wound with everted margins and having a size .7 c.m. x .7 c.m. on right posterior chest, 16 c.m. from midline, 23 c.m. from top of right shoulder.
(2-A) A circular wound with inverted margins and size .5 c.m. x .5 c.m. having collar of abrasion around it, in front of left abdomen, 5.5 c.m. from mid line and 16.5 c.m. from left nipple. '
(2-B) A oval wound with everted margins and having 1 c.m. x 0.6 c.m. size, on the back of left abdomen, 6 c.m. from mid line and 17.5 c.m. from upper most margin of median cleft.
(3) ??????? A circular wound with inverted margins and crescent shaped collar of abrasion on its superior aspect, situated on right posterior lateral chest near the posterior border of right axilla and 1 c.m. from it and 10 c.m. below right shoulder top.
On dissection a missile was opined to have entered into injury No.l-A, fractured 6th rib, and exited through injury No.l-B, after lacerating the liver and the adjacent tissues. Under injury No.3 the missile entered the thoracic cage from postereo-lateral aspect through sixth inter-costar space by fracturing 7th rib and perforating right lung, crossed vertebral column fracturing and perforating 9th and 10th thoracic vertibrae, also lacerating the spinal cord and thoracic cavity lacerated left lung and exited through chest cage, the missile found in the tissues on the back. The missile had entered through injury No.2-A, lacerated left kidney and intervening tissues and made exit under injury No.2-B on the back after tearing the peritoneum at many places.
In the opinion of the doctor all the injuries were ante-mortem, by fire?arm, resulting in death within 30 minutes and all being sufficient to result in death in the ordinary course of nature. Duration between death and post?mortem was stated to be 24 to 36 hours.
5. Muhammad Boota Sub-Inspector (P.W.12) after recording the statement of the complainant (Exh.P.C.) reached the spot, examined the dead body, prepared injury statement and inquest report (Exhs.P.F. and P.J.), collected blood-stained earth vide memo. (Exh.P.E.), crime empties (P.5/1- to 3) vide memo. (Exh.P.F.) and scooter lying at the spot vide memo. (Exh.P.G.) and sent the dead body to the mortuary. He arrested the appellant and his co?accused on 5-5-1991 and on 8-5-1991 the appellant got recovered pistol (P.4) from his residential house and was taken into possession vide memo. (Exh.P.D.) In cross-examination he conceded that Imtiaz accused was found innocent during investigation by him. He denied that defence was produced before him on behalf of the appellant that at the time of occurrence he, the appellant, was a Halal Tanneries, Gujrat.
6. At the close of the trial the appellant pleaded that the case was the result of misunderstanding and suspicion, the P.Ws. had deposed against him at the instance of the complainant who lodged in F.I.R. on account of malice. He produced Muhammad Bashir (D.W.1) the Assistant Security Officer, Halal Tanneries, Gujrat to support his plea. He stated that the appellant was their driver and was on duty from 7-4-1991 to 18-7-1991. He had brought the vehicle from Lahore with pieces of raw material at 21-30 hours on 29-4-1991. In cross?examination he admitted that he was present when the skins were unloaded. He did not make any entry of the departure of the appellant from the Tanneries. The driver mentioned in his register was Muhammad Khan and the name of the appellant was written by him. The signatures of the appellant were not obtained on the register. He denied that the appellant did not enter the Tanneries on 29-4-1991 at the time given by him.
7. The case of the prosecution rests upon the statements of Zafar Iqbal and Hamid Sadiq (P.Ws.8 and 9), the eye-witnesses, the arrest of the appellant, recovery of pistol (P.4), the crime empties (P.5/1, 2 and 3) from the spot, the medical evidence and the investigation.
8. Learned counsel for the appellant contended that it was a blind and unwitnessed murder at night and that the case was the result of enmity and malice of the complainant. On the other hand learned counsel for the State contended that the occurrence took place in the street of Misri Shah, Lahore, when everybody must have been awake, in front of the house of Zafar Iqbal who was the most natural witness and the two eye-witnesses being independent, no suspicion could be entertained as to their veracity. After hearing them and going through the record, the contentions on behalf of the learned counsel for the State must be upheld.
9. Zafar Iqbal and Hamid Sadiq (P.Ws.8 and 9) have fully supported the prosecution case and reiterated that it was the appellant who fired the shot and hit the deceased. No enmity of any sort has been brought out against them though Hamid Sadiq is a friend of the deceased. The investigation done by Muhammad Boota Sub-Inspector is also straightforward and only Imtiaz co?accused was found not concerned in the occurrence by him. His investigation seems to be honest and straightforward. The occurrence admittedly took place in front of the house of Zafar lqbal, he is, therefore, the most natural witness. Keeping in view the fact that Hamid Sadiq went to inform the complainant who reached Misri Shah and made statement to Muhammad Boota Sub- I Inspector, the F.I.R. seems to be prompt.
10. The result is that there is no force in the appeal which fails and is hereby dismissed. The appellant, however, would have the benefit of the IF provisions of section 382-B, Cr.P.C.
N.H.Q./A-644/L ????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.