AURANGZEB Versus State

1. The appellant was charged under section 302, P.P.C. for committing murder of Abdul Rasheed and was tried before the learned IInd Additional Sessions Judge, Karachi (Central), who convicted him under section 302, P.P.C. and sentenced him to suffer life imprisonment and fine of Rs.25,000, in default of payment of fine, he shall suffer six months' R.I. more, if the fine amount is recovered 75% will be paid to the legal heirs of the deceased Abdul Rasheed and 25% will be deposited in the Government treasury. The trial Court also extended the benefit of section 382-B, Cr.P.C.

2. The appellant challenged his conviction and sentence before this Court through jail appeal, which was admitted for regular hearing.

3. The brief facts of the prosecution case are that on 9-10-1996 complainant Akbar Khan lodged a report alleging therein that he had a hotel at Chandani Chowk, Nazimabad and his elder brother Abdul Rasheed (deceased) was a driver of one Akhtar Saleem, who was on duty at Bungalow No.C-65, Block-11, F.B. Area, Karachi. The complainant was present in his hotel when driver Umer Khan came at the hotel and informed him that at about 10 a.m. a Security Guard namely Aurangzeb had pressurized a vegetable seller to pay Bhatta and it was agreed that the matter may be brought to the knowledge of Member Mohallah Committee namely Farjan. On this dispute. Umer Khan, Fazal Khan, Hussain Khan and Abdul Rasheed (deceased) went to the house of Farjan, who was available in the street and Security Guard namely Aurangzeb was also standing. Abdul Rasheed (deceased) complained to Farjan about the act of the Security Guard who abused Abdul Rasheed and caught hold him by the neck and slapped him and opened fire which hit him on his chest and crossed the back of Abdul Rasheed. He was removed in injured condition to Abbasi Shaheed Hospital. The incident was conveyed to the complainant who immediately proceeded to Abbasi Shaheed Hospital, where he saw him in injured condition. Police recorded statement under section 154, Cr.P.C. and case was registered under section 324, P.P.C. Later Abdul Rasheed died in the hospital and offence was converted into section 302, P.P.C.

4. During the course of investigation, the appellant was arrested and after usual investigation charge-sheet was filed in the Court of law having jurisdiction for the offence under section 302, P.P.C.

5. The trial Court framed formal charge as Exh.2 for offence under section 302, P.P.C. to which the appellant pleaded not guilty and claimed his trial. His plea was recorded as Exh.3.

6. At the trial, the prosecution examined complainant Akbar Khan as Exh.4. He produced 154, Cr.P.C. statement as Exh.5, memo. of inspection of dead body as Exh.6, Inquest report as Exh.7. P.W.2 Afzal Khan was examined and his deposition was brought on record as Exh.8. P.W.3, M.L.O. Dr. Syed Saeed Haider Kazmi was examined as Exh.9. He produced a letter of cause of death issued by him as Exh.10. P.W.4 Umer Khan as Exh.11. He produced memo. of place of Vardat as Exh.12. Memo. of arrest of accused, personal search and recovery. P.W.5 Hussain Khan as Exh.14. P.W.6 Farjan as Exh.

15. P.W.7 Dr. Quraban Ali Chandio as Exh.17. P.W.8 Dr. Abdul Hameed Shaikh as Exh.18. He produced Medico-Legal Certificate as Exh.18/A. P.W.9, P.C. Shadab Ameer as Exh.19. He produced memo. of recovery of licence as Exh.19/A. P.W.10 S.P. Muhammad Rustam as Exh.20. He produced F.I.R. as Exh.20/A, Entry No.50, dated 9-10-1996, letter addressed to M.L.O. regarding statement of injured as Exh.20/C, sketch of place' of Vardat as Exh.20/D. F.I.R. No.395 of 1996 as Exh.20/E, Entry No.102, dated 15-10-1996 as Exh.20/F, another letter addressed to Incharge Dr. I.C.U. for recording statement of injured as Exh.20/G and Exh.20/H, photocopy of Certificate of incorporation as Exh.20/I, Entry No.155 dated 28-10-1996 as Exh.20/J, photocopy of memo. of recovery of licence of weapon as Exh.20/K. Thereafter prosecution side was closed by the learned D.D.A. vide statement as Exh.21.

7. The trial Court recorded the statements of accused Aurangzeb under section 342, Cr.P.C. as Exh.22 in which he denied the allegations levelled against him by the prosecution and claimed his innocence and submitted that he has been involved falsely by the complainant party due to mala fide intention.

8. The learned trial Judge after considering the ocular evidence, circumstantial evidence, medical evidence convicted and sentenced the appellant as above. This appeal is directed against the said judgment of conviction filed by the appellant through Jail. Mr. Khalid Mehmood, Advocate has filed power on his behalf.

9. Complainant Akbar Khan supported the contents of the F.I.R. and produced F.I.R. as Exh.5. He deposed that on 9-10-1996 at about 5 p.m. he was available in the hotel Chandni Chowk in Nazimabad, where Umer Khan came and informed him that his brother Abdul Rasheed has sustained fire-arm injury. It was further informed that vegetable seller namely Aurangzeb/Security Guard is harassing him and used to demand Rs.10 daily as Bhatta/bribe. Abdul Rasheed, Umer Khan, Hussain Khan went to Farjan, Chairman of Mohalla Committee and apprised him about the acts of the appellant. At that time Aurangzeb was also present and he immediately caught hold Abdul Rasheed and then slapped him and fired pistol upon him which hit Abdul Rasheed. It was further informed by Umer Khan to the complainant that Afzal Khan had taken Abdul Rasheed to Abbasi Shaheed Hospital and thereafter he proceeded to Abbasi Shaheed Hospital. Complainant saw injured Abdul Rasheed, who was available in the Operation Theater. Police was already available there. A statement under section 154, Cr.P.C. was recorded as Exh.5 of the complainant. Deceased Abdul Rasheed had expired in the hospital. Mashirnama was prepared and produced as Exh.6 and 7. P.W.2 Afzal Khan was examined in the trial Court as' Exh.8. He deposed that on 9-10-1996 at about 3-45 p.m. he was standing in front of House No.C-95, F.B. Area, Karachi. Deceased Abdul Rasheed Was also working' as driver in Bungalow No.C-85, F.B. Area, Karachi. Afzal Khan, Abdul Rasheed, Hussain Khan and Umer Khan were sitting in the street and it was informed by Abdul Rasheed (deceased) to them that Aurangzeb was harassing vegetable seller and used to demand Bhatta of Rs.10 daily from him. It was further informed by him that they went to Farjan Chairman, Mohalla Committee and the deceased complained io him who was available in the street and Aurangzeb. was also standing nearby. The deceased narrated the facts of dispute to Farjan. At that time appellant Aurangzeb caught hold Abdul Rasheed and gave beating to him and fired pistol shot at Abdul Rasheed who sustained injury on the right side of chest. Umer Khan and Hussain Khan immediately took Abdul Rasheed to Abbasi Shaheed Hospital and Farjan also caught hold Aurangzeb at the place of incident. He identified the accused in the trial Court. P.W.3 Dr. Saeed Haider was examined and his statement was exhibited as Exh.9. He was working as M.L.O. in Abbasi Shaheed Hospital, Karachi. He received the dead body from Health Care Block-K, North Nazimabad through A.S.-I. Muhammad Rustam of Police Station Gulberg on 28-10-1996 with request to communicate the cause of death. It was opined by him that the cause of death is cardio respirartory failure due to septicemia as a result of gun-shot injury to chest and abdomen. He issued such certificate which was brought on record as Exh.10.

10. Umer Khan was examined and his deposition was brought on record as Exh.11. He deposed that the complainant and accused are known to him. On 9-10-1996 incident has taken place. He was working as driver and was available at the place of incident. At about 10 a.m. in his presence appellant Aurangzeb was demanding Bhatta from a vegetable vendor namely Shahoo. The vegetable vendor complained to Abdul Rasheed who said that they will inform the head of the Mohalla Committee. On the same day at about 3-45 p.m. they were available near Bungalow No.C-85 when Abdul Rasheed informed that Aurangzeb had made demand for Bhatta from vegetable vendor. Then above named persons went to Mohalla Chairman/Member of Mohalla Committee, Farjan who was standing outside his house, then Abdul Rasheed informed him about the demand of Bhatta and threats extended by Aurangzeb. At that time Aurangzeb was standing nearby. He caught hold Abdul Rasheed from his neck and slapped him and immediately opened fire with pistol which pierced in his chest. He was taken to Abbasi Shaheed Hospital in injured condition. He informed his brother Akbar Khan at Chandni Chowk. Complainant reached in the hospital, where his statement under section 154, Cr.P.C. was recorded. He accompanied with complainant along with police party to the place of occurrence which was inspected and Mashirnama was prepared, which was signed by him. Appellant was arrested in his presence. Such memo. was also prepared which was produced in the trial Court as Exhs.12 and 13. The Investigating Officer also recovered pistol and was shown to him in the trial Court at the time of recording of evidence.

11. P.W.5 Hussain Khan was examined and his deposition brought on record as' Exh.14. He deposed that he knows complainant, deceased Abdul Rasheed. He is also known to accused appellant Aurangzeb. It is further deposed by him that on 9-10-1996 in the evening he along with other witnesses was available in front of Bungalow No.C-85 when Aurangzeb came there. He told them that Aurangzeb was demanding Bhatta from a vegetable seller. He accompanied with the complainant met Farjan Chairman of the Mohalla Committee and then deceased Abdul Rasheed narrated the facts for demanding Bhatta by the appellant Aurangzeb. Appellant Aurangzeb slapped him, abused him and took out his T.T. pistol and immediately opened fire at Abdul Rasheed. They took the injured to hospital. Police party also came and recorded statement of complainant under section 154, Cr.P.C. It is further deposed by him that at 9-30 Umair Khan accompanied with the police the place of accident which was inspected and inspection report was prepared. Appellant was arrested in his presence and Mashirnama was prepared as Exh.17.

12. The trial Court examined Farjan as P.W.6 and his deposition was recorded as Exh.15. He deposed that Aurangzeb was working as Guard of a Private Company of Youngmen Security (Pvt.) Ltd. He was Member of Mohalla Committee. On 9-10-1996 Abdul Rasheed, Afzal Khan, Umer Khan and Hussain Khan came to him at about 3-45 p.m. and made complaint that accused Aurangzeb is demanding Bhatta from vegetable seller. On narration of this fact accused Aurangzeb who was also present caught hold Abdul Rasheed and hit him and then took out T.T. pistol and fired at Abdul Rasheed. P.W. Umar Khan, Hussain Khan, Afzal Khan were trying to separate accused Aurangzeb and Abdul Rasheed. Abdul Rasheed fell down on the ground due to fire-arm injury which was hit by Aurangzeb on his chest.

13. P.W. Hussain Khan, Umer Khan, Afzal Khan took the injured Abdul Rasheed to Abbasi Shaheed Hospital. The appellant was arrested at the time of incident along with T.T. pistol and accused Aurangzeb was taken into custody and then brought to the Police Station Gulberg. The Investigating Officer recorded 161, Cr.P.C. statements of witnesses. He had identified' the accused in Court.

14. P.W.7 A.S.-I. Qurban Ali was examined as Exh.17. He deposed that on 9-10-1996 he was working as A.S.-I. at Police Station Gulberg. On that day he was present at the police station and received an information from M.L.O. Hamid Shaikh that one injured Abdul Rasheed has been admitted in Hospital having fire-arm injury and requested to depute any Police Officer to the hospital to record the statement of injured Abdul Rasheed. On such information he proceeded to Abbasi Shaheed Hospital, where he found injured Abdul Rasheed unconscious. He requested for recording statement under section 154, Cr.P.C. of complainant which was recorded as is Exh.5. He verified his signature in the trial Court. It is further deposed by him that 154. Cr.P.C. statement was handed over at the police station.

15. P.W. Dr. Hameed Shaikh was examined in the trial Court. His deposition was recorded as Exh.18. He deposed that on 9-10-1996 he performed his duty in Abbasi Shaheed Hospital as M.L.O. at 4-20 p.m. he received injured Abdul Rasheed with fire-arm injury. He found injury on left side of the chest and internal area was blacking, charring and sniggering around. He made entry at Police Control as Entry No.11 which was recorded by H.C. Mujeed Khan. He issued such certificate which was produced as Exh.18-A. It will be advantageous to reproduce the medical certificate as under:---

16. "History: Fire-arm injury during assault is alleged.

17. General condition semi-conscious, restless.

(1) Fire-arm wound of entry in punctured manner of about 0.25 c.m. in diameter with inverted margins over the lower part of left anterior chest with blacking, charring and sniggering around.

18. Exit wound of about 0.75 c.m. in diameter with inverted margin over the back side at the level of L-1."

19. P.W.9 Shadab Ahmed was examined as Exh.19. It is stated by him that on 9-10-1996 he was posted at Police Station Gulberg. On the date of incident he was on duty and was working as Roznamcha Head Moherer. At about 2-45 p.m. Haji Muhammad produced T.T. pistol along with some document (copy of licence) before S.-1. Muhammad Rustam at police station. Such Mashirnama was prepared regarding recovery of T.T. pistol and licence.

20. P.W.10 S.-I. Muhammad Rustam as Exh.20 deposed that on 9-10-1996 he was present at the police station at about 18-45 hours he received a statement of the complainant and on the basis of such statement under section 154, Cr.P.C. F.I.R. was registered being Crime No.389 of 1996 under section 324, P.P.C. After recording the F.I.R. he took the investigation and immediately proceeded for holding investigation and recorded the statements of the prosecution witnesses, memo. of dead body, inquest report, place of Vardat. A.S.-I. Qurban Ali had come of M.L.O. and requested for permission to record statement of the injured but the concerned M.L.O. refused that the injured is not in proper condition for recording his statement. At about 21-50 hours he along with Afzal Khan and Hussain Khan reached in Gall in front of House No.C-85, where accused Aurangzeb was present. He was arrested in presence of the above-named witnesses and .30 bore pistol was also recovered with four live bullets and 15 live bullets in the bag. He also secured one authority letter issued by Youngmen Security Service. He prepared Mashirnama of arrest and articles as Exh.13. The Investigating Officer also recorded statements of witnesses and registered F.I.R. No.395 of 1996 under sections 13-D and 16-B of Arms Ordinance. The appellant also recorded his statement in the Station Diary being Serial No.102 against Abdul Rasheed regarding maltreatment. He produced it as Exh.20/F and verified to be same and correct and bear his signature.

21. On the very date of incident injured Abdul Rasheed was shifted by his legal heirs from Abbasi Shaheed Hospital to Health Care Hospital and met with Doctor and moved an application with the prayer to record statement of the injured and they then met with the incharge Health Care Hospital and requested that the injured is lying in the Operation Theater and his statement may be recorded but it was informed that the injured is unconscious. On 28-10-1996 he was present at the police station at about 17-00 hours and it was informed that injured Abdul Rasheed had expired. His dead body has been taken to his house. He made such entry and inquest report was also prepared as Exhs.6 and 7. The Investigating Officer proceeded to Health Care Hospital, North Nazimabad and met with Dr. Azfar who had obtained brief report and then went to Abbasi Shaheed Hospital and handed over report of Azfar to M.L.O. Dr. Saeed Haider Kazi and requested for issuance of a certificate for the cause of death of the deceased. After obtaining opinion and completing investigation he submitted challan against accused Aurangzeb under section 302, P.P.C.

22. Mr. Khalid Mehmood, learned counsel for the appellant, has contended that the evidence of the eye-witnesses, medical evidence, deposition of Investigating Officer and circumstantial evidence in the shape of recovery of weapon the prosecution has failed to prove case against the appellant. The evidence is full of contradiction and slightest benefit of doubt is to be extended in favour of the appellant. Medical report reflects that the injured/deceased sustained injury by gun-shot fire whereas the Investigating Officer has recovered pistol from the appellant and this version is confirmed as per certificate issued by Dr. Azfar. This fact was ignored by the learned trial Court while awarding conviction to the appellant. It is further urged on behalf of the appellant that recovered weapon was not sent to Ballistic Expert to get confirmation whether said weapon was used in the crime at the time of incident. It is further argued that the appellant was employed in the Education Department and was on duty at the time of alleged incident and such proof in the shape of a certificate was produced by the appellant in the trial Court but no reason has been mentioned in this regard in the judgment. It is vehemently argued by learned counsel for the appellant that injured Abdul Rasheed was alive for more than 18 days and the Investigating Officer was silent as to what was the reason for non-examination of the injured by the Medical Officer/Investigating Officer. The statement of appellant Aurangzeb was recorded as Exh.23 and it is stated that on 9-10-1996 he was performing his duty on Government Boys Primary School situated in Block-19, Al-Noor Sector-2, when at about 3-00 or 4-00 p.m. second shift started in the school one boy came to him and informed him that Investigating Officer Rustam of Police Station Gulberg wants to talk with him. He came out in the window shop outside the school and talked with Investigating Officer Rustam who told him that he has arrested a person in connection with the report of theft of fan and articles from the school lodged by him in the year 1994 and his presence is required to identify him. He went to Police Station Gulberg and met with Investigating Officer Rustam, where he saw that Younus Jan and other 4/5 persons were present and were known to him. Some interrogation was made from Younis regarding commission of theft but on the next day police officials released the same culprits. Appellant was also detained in respect of the theft of fan and articles and due to this annoyance 'he has been involved falsely. He has examined Muhammad Nawaz as D.W. 1 as defence witness-2. Regarding the presence in Al-Noor Primary School the appellant Aurangzeb was available in the school upto 2-00/3-00 p.m. He also examined one Dastan as D.W.3 to show that he was present on duty on 9-10-1996 and falsely involved in this case. He has also narrated the theft of school's fan and other articles. It is further argued that the prosecution has failed to make out any case against the appellant and he is entitled for acquittal.

23. Mr. Khalid Mehmood in support of his proposition has relied on PLD 1963 (W.P.) Kar. 92, 1969 PCr.LJ 187 (Lahore) 1974 PCr.LJ 385 (Lahore), 1972 SCMR 578 and PLD 1954 FC 197.

24. Mr. Sardaruddin learned counsel on behalf of the State has argued that all the witnesses have fully supported the case of the prosecution. There is no material contradiction between the statements of all the prosecution witnesses. The prosecution has proved its case beyond any shadow of doubt and conviction and sentence awarded by the learned trial Court be maintained. Learned trial Court relying upon the ocular evidence, circumstantial evidence, medical evidence and subsequent station diary regarding altercation between the deceased and appellant. The appellant has admitted that there was altercation between him and the deceased at the time of incident in presence of witnesses.

25. I have heard Mr. Khalid Mehmood, learned counsel for the appellant and Mr. Sardaruddin, learned counsel for the State. I have also considered the contentions of the learned counsel and have also gone through the R&Ps and the case, and case-law, relied upon at the bar.

26. In this matter the prosecution has examined as many as ten witnesses and all are private, independent witnesses who have supported the case of the prosecution. P.W. Afzal Khan who is eye-witness of the incident deposed that on 9-10-1996 at about 3-45 p.m. he was standing in front of House No.C-95, F.B. Area Karachi, where he used to work as driver. Abdul Rasheed was also working as a driver. Abdul Rasheed (deceased) along with Umer Khan and Hussain Khan were sitting in the street while Abdul Rasheed informed them that Aurangzeb was harassing vegetable vendor and used to demand Rs.10 daily from him as Bhatta. They all proceeded to Farjan, Chairman of Mohalla Committee and made a complaint against Aurangzeb who was also standing there and immediately Aurangzeb inflicted slap to Abdul Rasheed and took out a pistol and fired at Abdul Rasheed. Abdul Rasheed sustained injury on right side chest and fell down. P.W. Umer Khan is also eye-witness of the incident who deposed the same facts. P.W. Hussain Khan being eye-witness of the incident also supported the version of P.W. Afzal Khan and Umer Khan P.W. Farjan is also eye-witness of the incident who has corroborated evidence of the other eye-witnesses and there is no mention of enmity of the appellant with the above prosecution witnesses. There is recovery of weapon from the possession of the appellant. All the prosecution witnesses were cross-examined at length but there is no contradictory evidence regarding the presence of the appellant at the place of incident. There is no motive of the prosecution witnesses to falsely implicate the accused in crime and there is no resort to disbelieve the version of the eye-witnesses of the incident who are independent and reside in same vicinity and known to both the parties. Medical evidence also corroborates the version of eye-witnesses to the extent that there was a fire shot injury on the chest of the deceased. Appellant Aurangzeb also resides near the house of Farjan.

27. Mr. Khalid Mehmood, learned counsel for the appellant during the course of argument has also filed a statement duly signed by him to the extent that the appellant has not admitted statement on oath that he is involved in a case of dacoity of F.I.R. No.395 of 1996 lodged under section 13-D/16-E, Arms Ordinance read with section 109, P.P.C. which was the offshoot of the present murder case. He has also annexed photostat copy of F.I.R. Crime No.395 of 1996 of Police Station Gulberg. It is an admitted position on record that the appellant also lodged Station Diary being Station Diary No.102 and admitted that there was altercation by him with deceased Abdul Rasheed, which was incorporated on 15-10-1996. This entry was produced by P.W.10 Muhammad Rustam as Exh.20/F. By bringing this Station Diary on record by the Investigating Officer and not denied by the appellant, there is admission on his part regarding fight between the appellant and the deceased in presence of witnesses. Arguments of the learned counsel for the appellant is that the appellant was implicated due to enmity but has not mentioned the nature of the enmity with the complainant or prosecution witnesses. No question regarding enmity was suggested to the complainant as well as to the prosecution witnesses. Therefore, in view of the above circumstances it is clear that the prosecution witnesses namely Umer Khan, Afzal Khan, Hussain Khan and complainant Akbar and independent witness Farjan had no enmity with the present appellant A so as to falsely implicate him. It is broad-daylight incident, all the evidence of the complainant and prosecution witnesses appear to be natural. Moreover, there is no reason for these witnesses to leave the actual culprit and to falsely implicate the appellant. Evidence of prosecution witness appears to be trustworthy inasmuch as the incident has taken place in front of the house of Farjan, who was Chairman of Mohalla Committee. The Investigating Officer requested the M.L.O. to record statement of the injured but his condition was not found fit by the concerned Medical Officer. From the perusal of the medical certificate it reflects that the injured Abdul Rasheed sustained injury on right side of chest which crossed on the backside. The injury was through and through and in such a situation the injured was unconscious for sufficient days. His legal heirs tried to shift the injured for recording his statement but it was opined by the Medical Officer concerned that the injured is unconscious and unable to record his statement. Therefore, the plea of the appellant's counsel that the injured was alive for more than 18 daysis irrelevant. Therefore, I am convinced that the evidence of the prosecution, particularly evidence of Umer Khan, Afzal Khan, Hussain Khan and Farjan is confidence inspiring and does not suffer from any infirmity. There is no relationship of each witness with the deceased, B therefore, their evidence will not affect their evidence as they had no reason to implicate the appellant falsely. The appellant used to demand Bhatta from Pushcart of Rs.10 and the deceased and other witnesses made complaint to Farjan about the activity of the appellant. There is no material brought on record in the cross-examination on behalf of the appellant that the said witnesses have reason to implicate him falsely. There were two more important pieces of evidence available against the appellant; firstly the appellant appeared before the police station where he lodged Station Diary No.102 regarding altercation with the deceased. He produced his T.T. pistol along with licence. There is direct part attributed to the appellant that he caught hold Abdul Rasheed and hit him, abused him and took out T.T. pistol and fired at him., Medical C evidence and the evidence of eye-witnesses support the version of the prosecution that deceased Abdul Rasheed was killed by him at the place of incident. The cause of death of deceased Abdul Rasheed is due to fire-arm injury.

28. The trial Court while considering evidence of the independent witnesses, circumstantial evidence and the medical evidence found the appellant guilty of the charge and rightly awarded life imprisonment under section 302, P.P.C.

29. From the above discussion, I am of the considered view that the prosecution has proved its case against the appellant beyond reasonable doubt and the judgment of the learned trial Court does not require any interference.

30. Therefore, appeal is accordingly dismissed.

31. N.H.Q./A-215/K Appeal dismissed.