ABDUL GHAFOOR Versus STATE

KHAN RIAZ-UD-DIN AHMAD; J: -- The appellants Muhammad Yaqoob and Abdul Ghafoor were tried by the learned Additional Sessions Judge, Jhelum, alongwith their co-accused, namely, Faqir Muhammad and Abdul Ghani, on a charge under sections 120-B and 302/34, P.P.C. for the murder of one Master Muhammad ,Irshad. Vide judgment, dated 7-8-1989, the learned trial Judge, acquitting Faqir Muhammad and Abdul Ghani, co accused, convicted the appellants under section 302/34, P.P.C. and sentenced them to death with a fine of Rs.10,000 each, in default whereof to undergo R.I. for two years. The appellants were further directed to pay compensation of Rs.5,000 each to the legal heirs of deceased Master Muhammad Irshad or in default thereof to suffer further S.I. for six months.

2. Aggrieved by the aforesaid conviction, the appellants have filed Criminal Appeal No.82 of 1989, whereas the learned trial Court has made a Reference (Murder Reference No.201 of 1989) to this Court for confirmation of death sentence of the appellants. Both these matters are being disposed of together through this judgment.

3. The unfortunate occurrence in this case has taken place on 15-5-1988 at 7-00-a.m. within the area of Chattan, near Railway Line, while the statement Exh.P.E. of the complainant Arsal Mahmood P.W. was recorded at Civil Hospital; Jhelum, by S.I. Sikandar Beig P.W.15 at 8-50 a.m. the same day, which formed the basis for the formal F.I.R. Exh.P.E./1 recorded by A.S.I. Abdul Rauf P.W.2 at Police Station Sadar Jhelum on 15-5-1988 at 8-45 a.m. The distance between the place of occurrence and that of the, police station was stated to be two miles.

4. According to the F.I.R., Arsal Mahmood complainant P.W.13 was residing alongwith his brother Master Muhammad Irshad in Mohallah Makhdoomabad for the last 15/16 years. Muhammad Irshad was a teacher in Primary School Talim-ul-Islam, situated at river side in Shamali Mohallah Jhelum. On the fateful day at about 6-45 a.m., the deceased left for his school by riding a bicycle, followed by Arsal Mahmood complainant who also left for Jhelum City on his bicycle. When Master Muhammad Irshad reached near Railway Track in front of Lakkar Mandi, in the area of Mauza Chattan, the complainant saw Muhammad Yaqoob and Ghafbor both sons, of Faqir Muhammad, armed with iron rod and revolver, respectively, emerging from near the railway track, raising Lalkaras, that the deceased be caught hold of and done to death, as he was instrumental in the divorce of their sister from the complainant Arsal Mahmood, Ghafoor accused then caught hold of the deceased by dragging him down from the bicycle, while Yaqoob inflicted injuries with "Bari Ahni" (iron rod) on the person of the deceased on various parts of his body, who fell down. It was then that Ghafoor accused/appellant fired revolver shot, hitting the deceased on his right leg, while the second shot had hit the deceased on his left arm. The alarm thus raised attracted the complainant and one Ghulam Rasul at the spot, but both were threatened at revolver point, of dire consequences, if they tried to intervene and the accused made good their escape. Master Muhammad Irshad was taken to Civil Hospital in injured condition but could not survive and succumbed to his injuries by reaching the hospital.

5. The motive for the offence was stated to be that the complainant was married with Mst. Umm-i-Kulsoom the sister of the appellants about 6/7 years back, but due to strained relations, the complainant divorced Mst. Umm i-Kulsoom about 2/3 months before the occurrence. The accused/appellants had the impression that the divorce was given by the complainant at the instance of the deceased. It was further stated that the appellants had committed the crime at the abetment and conspiracy by Faqir Muhammad and Abdul Ghani, the acquitted co-accused.

6. On receipt of the telephonic information from the hospital, S.I. Sikandar Beig P.W.15 reached the hospital and recorded the statement Exh.P.E. of Arsal Mahmood P.W.13 and despatched the same to the police station for formal registration of F.I.R. Exh.P.E./1 through F.C. Muhammad Ashraf. The S.I. himself resumed the investigation by preparing the injury statement Exh.P.B. and inquest report Exh.P.C. in respect of the dead body and sent the dead body to the mortuary under the escort of Adalat Khan, Constable P.W.3 for post-mortem examination. He then reached the spot and took into possession blood-stained earth vide memo. Exh.P.H., attested by Najeeb Ali P.W.6 and Asghar Ali (not produced) besides the Investigating Officer P.W.15 and bicycle P.3 of the deceased vide memo. Exh.P.J., attested by the same witnesses.

7. On 15-5-1988 at 3-30 p.m. Dr. Khalid Mahmood P.W.1 conducted post-mortem examination on the dead body of Master Muhammad Irshad and found the following injuries on his person:--

(1) Lacerated wound 3" x 1/8" x bone deep 'on occipital region of right side of skull.

(2) Lacerated wound 1" x 1/8" x bone deep on the left occipital region of skull, 2" above to injury No.1.

(3) Lacerated wound 1-1/2" x 1/2" bone deep on the top of vertix 4" back from forehead.

(4) Lacerated wound of 1/2" x 1/2" bone deep on the middle of forehead.

(5) Lacerated wound 1/4" x 1/4" skin deep 1-1/2" above injury No.4.

(6) Lacerated wound ~/2" x 1/8" skin deep on left part of forehead.

(7) Lacerated wound of 1" x 1/2" into skin deep at the bridge of the nose.

(8) Lacerated wound 2-1/2" x 1/2" x 1" deep with inverted margins blacking of skin present wound of fire-arm. This injury is on the back of left elbow joint.

(9) Lacerated wound of fire-arm 1" x 1/2" x 1/2" deep with inverted lacerated margin and blacking of margin present on the front of right lower leg, 5-1/2" above to the right angle joint.

(10) Bruise size 4" x 1" on the back of left chest 3" below the lower tip of left scapula.

(il) A bruise measuring 4" x 1" on the posteral lateral aspect of left chest 2" below the injury No.10.

(12) A bruise of 4" x 1" on posterior aspect of left lumber region.

(13) An abrasion size 1/8" x 1/8" on the lateral aspect of left thighs.

There was fracture of left occipital bone, membrances were intact and normal. Bruising of left and right frontal lobe of brain present.

On chest left wall external injury already described.

Left ribs 9, 10 and 11 were found fractured. Left parital pleaura was injured at the side of fractured ribs.

There was bruise on the lower lobe of left lung. Stomach contained semi-digested food and looked healthy. Bladder was empty. All the other thorax and viscera were healthy and normal.

8. In the opinion of the doctor, the cause of death was head injury and injury on left chest. These injuries were sufficient to cause death. The probable time between the injuries and death was 1 to 3 hours and between death and post-mortem was about 8 to 10 hours.

9. On 25-9-1988, a query was made from the doctor to which he replied as under:--

(1) All the injuries were ante-mortem.

(2) Injuries Nos.l and 2 according to serial number contributed to death.

(3) Injury on left chest was described under serial No.10. It was located on the back of left chest below the left scapula and under serial No.11 it is located on the posterial aspect of left chest. Both these injuries contributed to death. The site of injuries was given on the sketch.

(4) Injury No.l was lacerated wound caused by blunt weapon.

In the post-mortem examination report (Exh.PA.) injuries Nos.8 and 9 were found to have been caused by blunt weapon. .

10. On 26-5-1988, S.I. Sikandar Beig P.W.15 arrested Muhammad Yaqoob and Abdul Ghafoor appellants and Faqir Muhammad in the case and handed over the investigation to S.I./S.H.O. Muhammad Ashraf P.W.11.

11. On 30-5-1988, Muhammad Yaqoob accused/appellant led to the recovery of iron bar P.5 from his residential house, which was taken into possession vide memo. Exh.P.L., attested by Haji Munawwar Hussain (not produced) and Oamar Hussain P.W.7, besides the Investigating Officer. On the same day, Abdul Ghafoor, while in custody, led to the recovery of .30 bore revolver P.4 which was taken into possession vide memo. Exh.P.K., attested by the same witnesses. After completion of the investigation, the accused were challaned to Court to face their trial.

12. In order to substantiate its version, the prosecution produced as many as 15 P.Ws. The prosecution mainly relied upon the testimony of Arsal Mahmood P.W.13 and Ghulam Rasool P.W.5, who furnished the ocular account.

13. In their statements under section 342, Cr.P.C. the accused/appellants denied the charges against them and pleaded that they had been falsely involved in the case on account of enmity and suspicion. In reply to question No.9, Abdul Ghafoor appellant stated as under:--

"It is correct that civil and criminal cases were pending between the parties and relations have become strained. So far as divorce to Mst. Umm-i-Kulsoom is concerned, Arsal Mahmood P.W. was desirous to keep her as his wife and had sent Jirga to us, filed a suit for restitution of conjugal rights, but we were not willing to send Mst. Umm-i Kalsoom for the reasons of said civil and criminal litigation because there was no likelihood of her being happy in the house of Arsal Mahmood. We demanded and persisted for her divorce and upon our persistence, Arsal Mahmood P.W. divorced her. We were happy on this divorce because it was done on our demand and wishes. We did not nourish any grudge against P.W. or the deceased."

Muhammad Yaqoob appellant also made a somewhat similar statement. However, the appellants did not make their statements under section 340(2) of the Cr.P.C. nor did they produce any witness in defence.

14. The learned trial Court, on the basis of the above evidence, convicted and sentenced the appellants as aforesaid.

15. Learned counsel for the appellants has vehemently argued that the F.I.R. was recorded after preliminary investigation and no sanctity could be attached to it; that there is no motive to kill the deceased, as the complainant who had divorced the sister of the appellants, was also present at the spot; that both the eye-witnesses are interested, inimical and chance witnesses of the occurrence, and there was no necessary corroboration of the tainted evidence, as the evidence with respect to recovery of the weapons has not been relied upon by the learned trial Court, the medical evidence was in conflict with that of ocular evidence because the nature and seats of injuries were not duly explained by the P.Ws.

16. On the other hand, learned counsel for the State has supported the impugned judgment by submitting that the ocular evidence consisting of Arsal Mahmood P.W.13 and Ghulam Rasool P.W.5 was sufficient to prove the case against the appellant" beyond any reasonable doubt, as the presence of these witnesses has not been seriously challenged by the defence.

17. We have heard the submissions made by the learned counsel for the parties and have gone through the record minutely with their assistance.

18. Arsal Mahmood P.W.13 has reiterated the version narrated by him in the F.I.R. and has further explained that the deceased had got registered two cases under sections 325 and 307, P.P.C. against the accused party, and even divorce was given by him to his wife at the instance of the deceased. It was because of these incidents that the accused had nursed grudge against the deceased and had consequently done him to death. He, however, denied the suggestion that he was not present at the scene of occurrence as the same took place in the early hours of the morning.

19. Ghulam Rasool appeared as P.W.5 and has corroborated the statement of Arsal Mahmood P.W.13 on all material points by stating that on the day of occurrence at about 7-00 a.m. he after attending to his duty, was going back to his house; when he reached near the railway track, he saw Muhammad Yaqoob armed with iron bar P.5 and Ghafoor with revolver P.4 emerging from near the railway track; Muhammad Yaqoob raised Lalkara that Muhammad Irshad deceased be taught lesson for being instrumental in the divorce of their sister from the complainant, by not sparing him alive, Yaqoob then pulled him down from the bicycle and inflicted injuries on his person with the iron rod, who fell down on the ground. It was then that Ghafoor fired revolver shots, hitting the deceased on his right leg and on his left arm near elbow. He and Arsal Mahmood raised alarm and tried to intervene but they were threatened with dire consequence by the accused/appellants, who made good their escape. In his cross-examination, he explained his presence at the spot by stating that he was serving as a clerk in the Civil Hospital and his duty hours were from 7-00 p.m. to 6-00 a.m. He also admitted that the acquitted accused Faqir Muhammad, the father of the two appellants, Muhammad Yaqoob and Abdul Ghafoor, was his collateral, as grandfather of Faqir Muhammad was the real brother of the grandfather of the witness. He has also admitted as correct that his land has common "Bannas" with the lands of Faqir Muhammad and they own the property jointly with possession over their respective shares. He, however, denied the suggestion that he has not seen the occurrence and had deposed falsely.

20. We have assessed the intrinsic worth of the statements made by the two witnesses and have reached the conclusion that the P.Ws. have:made a straightforward account of the occurrence, by making truthful statements which inspires confidence, and are worthy of reliance, even without any independent corroboration. Arsal Mahmood and Ghulam Rasool P.Ws. are closely related to the accused/appellants and have no such background of enmity, so as to implicate the accused persons falsely in a murder case. They have reasonably explained their presence at the spot, so they cannot be treated as chance witnesses. Learned counsel for the appellants besides labelling them as interested and chance witnesses has also pointed out certain discrepancies and improvements in the statements of the P.Ws. which are not of much relevance with the main occurrence and thus cannot be termed as material contradictions.

21. Learned counsel for the appellants has drawn our attention towards the improvements made by the complainant regarding the registration of the two criminal cases against the accused under sections 325 and 307, P.P.C. by the deceased. According to him, this fact has not been incorporated in the F.I.R. which was registered after preliminary investigation.

22. We have considered the contentions of the learned counsel but the same do not carry any weight and are superfluous; firstly because the F.I.R. is not an exhaustive document which would include minor details of the occurrence, as well as the other allied matters, if during the course of trial any explanation is tendered by the witness so as to clear some ambiguity or to strengthen the version with a fact, already in existence at the time of lodging the F.I.R., would not be treated as improvement, which would stand excluded from consideration. Therefore, we discard the argument of the learned counsel and consider the registration of two criminal cases as also one of the reasons and motive for the commission of the murder of the deceased.

23. So far as the recoveries of the weapons of offence are concerned, admittedly, the revolver was not sent to the Forensic Science Laboratory in order to know, whether any shot was fired from it or that revolver was in working condition. Similarly, the iron bar was not found to be stained with blood, therefore, it has rightly been discarded by the learned Court below. We also do not consider it as a corroboratory evidence of the ocular account furnished by Arsal Mahmood and Ghulam Rasool, P.Ws., because, as observed above, the statements of both these witnesses inspire confidence; hence, need no corroboration.

24. The contention of the learned counsel for the appellant that the medical evidence is in conflict with the ocular evidence because seat of injuries has not been properly explained by the witnesses is also without force. We have considered medical evidence carefully and we are of the view that the injuries on the person of the deceased were stated to have been caused by blunt as well as fire-arm weapon. The appellants in this case, as per ocular account, were armed with iron rod and revolver, respectively, which were used in the commission of the offence, as such, we are of the view that the medical evidence fully supports the assertion of the eye-witnesses that the deceased was given injuries, firstly by blunt weapon and then shots were fired on him. It was not possible for the witnesses to give us with photographic exactitude the location of all the injuries on the person of the deceased. We, therefore, do not agree with the learned counsel that the medical evidence was in conflict with the ocular evidence.

25. As regards the defence plea, it takes the appellants neither here nor there. The appellants had admitted that the civil litigation was pending between the parties and the relations were strained. Regarding divorce to their sister, it was asserted that the same was effected at the insistence of the appellants, as their sister was not happy in living in the house of the complainant. Be that as it may, the fact that the parties were inimical with each other stands established even from the above assertion of the appellants. Even otherwise, the appellants had not been able to substantiate their plea either by appearing themselves under section 340(2), Cr.P.C. or by producing defence evidence.

26. The upshot of the above discussion is that the prosecution has proved its case beyond any reasonable doubt against the appellants, as both the appellants have actively taken part in the occurrence by inflicting injuries on the person of the deceased with their respective weapons, causing brutal murder of the deceased, we, therefore, find no mitigating circumstances to award them lesser penalty. This appeal fails and is dismissed accordingly. The conviction and sentence of the appellants is maintained. The death sentence is confirmed.

Murder Reference is answered accordingly.

N.H.Q./A-662/L Appeal dismissed.