KIFAYATULLAH Versus STATE
RASHID AZIZ KHAN, J. -- Kifayatullah (35) was tried by Judge, Special Court for Speedy Trial No.VIII, Sargodha, for an offence under section 302/301, P.P.C. The trial Court vide its judgment, dated 11-5-1988 convicted him under section 301/302, P.P.C. for the murder of Basit Ali and sentenced him to death with a fine of Rs.50,000, or in default thereof five years' R.I. The fine, if recovered, out of it Rs.40,000 was directed to be paid to the legal heirs of deceased Basit Ali. He was also convicted and sentenced under section 302, P.P.C. for the murder of Javed Iqbal to death and a fine of Rs.50,000, or in default five years' R.I. It was also directed that in case the fine was recovered, out of it Rs.40,000 shall be paid to the legal heirs of deceased Javed Iqbal as compensation. The convict has appealed. This judgment shall dispose of the same.
2. Prosecution story, in brief, as given in F.I.R. Exh.PJ./1, was to the effect that first informant Muhammad Aslam Khan, on 16-11-1985 at about 12 noon, with his cousin Javed Iqbal, son of Ghulam Qasim, was buying bananas from the Rehri of Basit Ali near the Railway Crossing Northern. In the meanwhile, appellant Kifayatullah came from northern side and raised a Lalkara to Javed Iqbal that he would not be left alive. He fired his revolver, which instead of hitting Javed Iqbal, hit Basit Ali, who was standing near his Rehri. Said Basit Ali fell down. Javed Iqbal, in the meanwhile, tried to run away but Kifayatullah fired a second shot, which hit Javed Iqbal in his back, who also fell down. Basit Ali died at the spot. Javed Iqbal was transported to Civil Hospital, Mianwali. Motive for the occurrence was that father of Javed Iqbal had appeared as a witness for prosecution against Kifayatullah in a case registered under section 307, P.P.C. and for the said reason present occurrence was committed.
F.I.R. Exh.P.J./1 was drawn on 16-i1-1985 at 1-30 p.m. on the statement of Muhammad Aslam P.W.11, recorded by Maula Bakhsh, A.S.I., P.W.13, of Police Station City, Mianwali, at Chowk Dakhana, with regard to an occurrence which took place the same day at 12 noon near the Railway Gate Shamali.
Maula Bakhsh, A.S.I. P.W.13, after recording statement Exh.P.J. of the complainant, sent the same to the police station for registration of a case and himself went to the spot. He found the dead body of Basit Ali lying there, therefore, he prepared injury statement Exh.P.L. and inquest report Exh.P.M. and sent the dead body for post-mortem examination. Mehr Ali, brother of the deceased Basit Ali, was present at the spot and he was sent with the dead body. He looked for the accused, who was not available. He went to the police station at 11-15 p.m. on the same day, where Inayatullah, father of the accused, produced before him revolver P.8. On opening the revolver, he found one empty P.9 and three missed cartridges P.10/1-3 and two live cartridges P.11/1 2, in it. He secured the revolver vide memo. Exh.P.K. He took into possession last-worn blood-stained clothes of Basit Ali deceased vide memo. Exh.P.D. He got the site plan Exhs.P.G. and P.G./1 prepared from the Draftsman and himself gave notes in red ink thereunder. He received information with regard to the death of Javed Iqbal on 17-11-1985, therefore, he went to the hospital and prepared inquest report Exh.P.O. and sent the dead body for autopsy. He took into possession the last-worn blood-stained clothes of Javed Iqbal deceased vide memo. Exh.P.E. He investigated the case till 20-11-1985 but could not arrest the accused as he was not available.
Muhammad Ashiq, Inspector, P.W.14, on 20-11-1985, took over the investigation and arrested the accused on 2-12-1985. On 15-12-1985, Kifayatullah accused while in custody led the recovery of revolver P.7 after digging out the same from a place near the Canal, Thal Project, Mianwali. The revolver was sealed into a parcel vide memo. Exh.P.H. He got the recovery memos attested from the witnesses. After completion of investigation, he challaned the accused.
Dr. Sher Anwar, Medical Officer, District Headquarter Hospital, Mianwali, P.W.1, on 16-11-1985, medically examined Javed Iqbal, aged 20 years, and found the following injuries:--
(1) A wound of entry over the right side of back of abdomen measuring 1 x 1 c.m, 5 c.m. right to mid-line and 8 c.m. below the right scapular lower margin. There was blackening measuring 1-3/4 x 1-3/4 c.m. around the entry wound.
(2) A lacerated wound measuring 1/2 c.m. x 1/2 c.m. on the front of abdomen, 4 c.m. right to umbilicus and 7 c.m. below right hypochondrium.
Both the injuries were caused with a fire-arm within half an hour. After examination, he referred him to Mayo Hospital, Lahore, for treatment.
On the same day at about 4 p.m. he performed post-mortem examination on the dead body of Basit Ali aged 60 years, and found:--
"A wound of entry 1 x 1 c.m., with blackening around it, measuring 1-3/4 x 1-3/4 c.m. over the outer part of right side of chest. It was 6 c.m. below the right axilla, 3 c.m. in front of right scapular lower margin.
In his opinion, the death had occurred due to severe haemorrhagic shock caused by the injury which was ante-mortem and sufficient to cause death in ordinary course of nature.
P.W.2 Dr. Syed Shuib Shah, Assistant Professor, on 18-11-1985 at 11-30 a.m. conducted the post-mortem examination on the dead body of Javed Iqbal and found the following injuries:-
(1) There was a circular fire-arm wound of entry measuring 1 x 1 c.m. at right lumber region on the back, which was 8 c.m. away from vertebral column. The margins and the adjacent tissues were bruised. The side of the injury corresponded with holes present on clothes, whose margins were black. The site also corresponded with injury No.1 of M.L.R. SAN125/85 dated 16-11-1985.
(2) There was a wound measuring .8 x .4 c.m. with lacerated margin present on the front of right side of abdomen 6 c.m. above and lateral to umbilicus. The place was the same as mentioned in the above mentioned M.L.R.
(3) External evidence of surgery. There was a stitched wound (right paramedial 15 can. long with 17 silk sutures. The centre point was 3 c.m. away from umbilicus).
In his opinion, injury No.1 was ante-mortem caused with a fire-arm. The death had occurred because of haemorrhage and the injury was sufficient to cause death in the ordinary course of nature.
3. Prosecution in support of its case produced 15 witnesses in all. The doctors who had conducted the post-mortem examination on both the deceased appeared as P.W.1 and P.W.2, respectively. Tauhid Ullah, F.C. P.W.3 had produced blood-stained clothes, Chaddar P.1, shirt P.2 and Salooka P.3 of Basit Ali deceased before the Investigating Officer, who secured the same vide memo. Exh.P.D. He had given a packet to the Investigating Officer which was given by the doctor, and the same was secured vide memo. Exh.P.D. He had signed the recovery memo. Khan Muhammad, F.C. P.W.4 had produced the last-worn clothes, stained with blood, of Javed Iqbal deceased before the Investigating Officer who took them into possession vide memo. Exh.P.E. He had signed the recovery memo. Shaukat Ali, Constable, P.W.6 received six parcels for delivery to the office of Chemical Examiner and of Forensic Science Laboratory on 17-12-1985. He delivered the said articles in the respective offices on 18-12-1985. On 27-12-1985, he was again given six sealed parcels which he delivered in the respective offices. So long they remained in his custody, they were not tampered with. Zaheer-ud-Din, Draftsman, P.W.8 had prepared site plan Exh.P.G. and Exh.P.G./1 on the directions of the police. Khan Bahadur, P.W.9 had witnessed the recovery of revolver P.7 at the instance of Kifayatullah, appellant. He had signed the recovery memo. Exh.P.H. as well. Muhammad Ali, A.S.I. P.W.10 had drawn formal F.I.R. Exh.PJ./1 on the basis of statement Exh.P.J. which he received the same day. Ocular account was furnished by Muhammad Aslam and Mehr Ali, P.Ws.11 and 12, respectively. The case was initially investigated by Maula Bakhsh, A.S.I., P.W.13, and subsequently by Muhammad Ashiq, Inspector, P.W.14.
At the conclusion of prosecution evidence, Muhammad Khan, eye witness, was given up as unnecessary and the learned Prosecutor after tendering in evidence report of the Chemical Examiner Exh.P.T. and of the Serologist Exh.P.U. and report of the Forensic Science Laboratory P.V. closed the prosecution case.
Thereafter, the appellant was examined without oath, wherein he refuted the prosecution allegations and pleaded innocence. In answer to a question, he stated that Ghulam Qasim had appeared as a witness against him but he bore no grudge against him or against his son Javed Iqbal, deceased. He further stated that he voluntarily appeared before the police on the same day, i.e. 16-11-1985 alongwith his father. He was detained by the police without showing his formal arrest. He had to appear before a Magistrate on 21-11-1985 in a case under section 307, P.P.C., therefore, he gave an application Exh.D.C. for adjournment before the said Court. He further stated that on the fateful day, a mosque called Baghdadi Mosque, near the house of Ghulam Qasim, was under his control. Another mosque, called Mecci Mosque, was at a distance of ten paces from Baghdadi Mosque. In 1980, father of the appellant became President of the Mosque where members of the Tablighi Jamait used to stay, which was objected to by Ghulam Qasim Khan. Two days before the present occurrence, he had gone to the mosque for cleaning and repairing bath rooms. Javed Iqbal deceased objected, whereupon an altercation took place. On the same day, i.e. the day of occurrence, he was passing through the place of occurrence when Javed Iqbal deceased came close to him and fired at him with a revolver. He fired four successive shots but three missed. The fourth shot, instead of hitting the appellant, hit Basit Ali who died. Thereafter, in exercise of right of private defence, he fired and injured Javed Iqbal, who fell on the ground alongwith his revolver. He picked up his revolver, took it home and narrated the incident to his father who brought him to the police station and produced the revolver as well the same day. He further stated that he was carrying an unlicensed revolver, with him and the eye-witnesses were not present at the spot.
4. It was contended by learned counsel for the appellant that the presence of eye-witnesses at the spot was highly doubtful. Contended that even otherwise, both the eye-witnesses were closely related to the deceased, therefore, interested and inimical. Stated that P.W.11 Muhammad Aslam was first cousin of Javed Iqbal, deceased, and Mehr Ali P.W.12 was real brother of Basit Ali, deceased. Asserted that Muhammad Aslam, P.W., was not present at the spot nor he had taken the injured Javed Iqbal to the hospital because the doctor, in his statement, had stated that one Mehr Khan had brought the injured. Argued that in these circumstances, had the witness been present at the spot, he would have taken the injured to hospital being close relation. Asserted that the demeanour of Mehr Ali, P.W., administers that he was not present at the spot but was sent for and made an eye-witness. Asserted that had Mehr Ali been present at the spot, he would not have left the dead body of his brother Basit and gone home from where he was called. Argued that the motive, as set up by the prosecution, has not been proved at all, because father of Javed Iqbal, deceased had given evidence four/five years before the present occurrence, in which every body was acquitted, therefore, it can hardly be used as a motive. Argued that the accused in his statement has given a plausible explanation of the occurrence which, if kept in juxtaposition with the prosecution case, appears to be more reliable. Argued that the investigation was conducted in an extremely dishonest manner and the appellant, who had appeared before the police the same day alongwith revolver with which he was fired at, yet the police suppressed the most material evidence available in his favour. The contentions were opposed by learned counsel for the State as well as for the complainant. According to them, it was a broad daylight murder, in which two persons were done to death and both the deceased did not have anything in common,, therefore, the chances of false involvement could never arise in such a case. It was argued that the police was in league with the appellant, that is why they tried to give undue concessions to the appellant. Asserted that Mehr Ali, P.W.12, real brother of Basit Ali, deceased, had no, enmity with the appellant or with Javed Iqbal, deceased. If the defence version was correct, then he should have come out with the truth by stating that Javed Iqbal had fired which hit his brother who died.
5. We have heard the learned counsel and gone through evidence with their assistance. As far as time, date and place of occurrence are concerned, they are not disputed. The appellant in his defence has also accepted the same, though, according to him, it took place under different circumstances, than asserted by the prosecution. In these circumstances, it is held that the occurrence took place on 16-11-1985 at 12-30 noon, wherein Javed Iqbal and Basit Ali, lost their lives by means of fire-arm injuries. As far as the present occurrence is concerned, prosecution has tried to prove its case by ocular account and sought corroboration from medical evidence and motive. The eye witness account has been furnished by Muhammad Aslam and Mehr Ali, P.Ws.11 and 12, respectively. Both of them supported the prosecution version by giving a detailed account of the occurrence. They were subjected to lengthy cross-examination. We have noticed that not a single suggestion was given to either of them to indicate any enmity or motive on their part for false involvement of the appellant. They were also cross-examined with regard to their presence at the spot but nothing has been brought on the file which could even remotely suggest that they were not present at the spot or they had any enmity or motive for false involvement of the appellant. The evidence given by both of them inspires confidence and can safely be relied upon. The statement of this witness finds corroboration from medical evidence, according to which Javed Iqbal, deceased, had received an injury on the back which is confirmed in the post-mortem report. The contention of the learned counsel that Muhammad Aslam, P.W., was not present at the spot because had he been present at the spot, he would have taken his cousin to hospital, which he did not do. According to the statement of the doctor, one Mehr Khan had brought the injured. This argument has not impressed us because this witness had stated that when he took Javed Iqbal to hospital, he met some relations, therefore, he handed over the injured to them and himself went to the police station for purpose of recording F.I.R. After careful consideration, we do not find anything wrong with the explanation given by this witness. In the absence of background of any enmity, we can safely rely upon the explanation. As far as the contention that Mehr Ali, P.W. was not present at the spot because he himself stated that after the occurrence he went home is concerned, this argument is also repelled. It is borne out from the record that this witness had taken Basit Ali, deceased, to hospital for the purpose of post-mortem examination. It is also in evidence that deceased Basit Ali was taken to the mortuary on the same day. If the witness was not present at the spot but was imported, then there was nothing to prevent the prosecution from showing his presence at the spot when the police arrived. There was no background of enmity of this witness with the appellant nor there is anything on the record to indicate that he was partisan of deceased Javed Iqbal. He is absolutely an independent person who was doing the business of selling fruit next to the Rehri of deceased Basit Ali. After the occurrence if he had gone to his house, it is but natural to inform other relatives about the occurrence and thereafter he again came back and took the deceased to the mortuary. In these circumstances, it is held that eye-witnesses were present at the spot and can safely be relied upon.
We have given anxious consideration to the defence version but it has not impressed us. The defence that Javed Iqbal had fired at the appellant four times, and thereafter he fired in self-defence has not impressed us. Similarly, the defence version that fire of Javed Iqbal deceased hit Basit Ali who died is also without substance. According to evidence, two revolvers were recovered, one .32 bore and the other .455 bore. The dimensions of injuries on both the deceased are exactly the same which could not have been possible if both the deceased received injuries from different revolvers because .455 bore is a heavier weapon than a .32 bore. It could be ascertained from which weapon the lead bullet recovered from the dead body of Basit Ali, deceased, was fired. The defence version is further belied by post-mortem report according to which deceased Javed Iqbal had received an injury on his back and in such circumstances, if he was running away there was hardly an occasion for the exercise of right of private defence. For the reasons discussed above, we hold there is no substance in the defence version, which is, accordingly, rejected. The upshot of the discussion is that the prosecution has been able to prove its case against the appellant beyond doubt on each count. Resultantly, the appeal-fails, which is dismissed.
N.H.Q./K-75/L Appeal dismissed.