HAKIM INAYAT ULLAH KHAN Versus THE STATE
JUSTICE ABDUL MAJID TIWANA (MEMBER).--- Hakim Inayat Ullah Khan, the appellant herein, was tried by the learned Judge of Special Court for Speedy Trial No.1I, Lahore, for committing the murder (Qatl-i-Amd) of Safdar Hassan, a young boy aged about 15 years, on 12-1-1992 at about 7-45 p.m. in the house-cum-clinic of latter's father in Mohallah Tehsildarwala, Kundian, District Mianwali.
2. On the conclusion of the trial, vide judgment, dated 21-9-1992, he was convicted under clause (a) of section 302, P.P.C. and sentenced to death. He was also convicted under section 452, P.P.C. and sentenced to seven years' R.I. and a fine of Rs.10,000 or in default of its payment to further undergo one year's R.I. This sentence was to operate only if the sentence of death was not upheld by the Supreme Appellate Court. He was also directed to pay a compensation of Rs.1,00,000 to the legal heirs of Safdar Hassan (deceased) under section 544-A, Cr.P.C.
3. The prosecution story, as it gleans out from the evidence led by it, is that Muhammad Hassan, the father of Safdar Hassan (deceased), was Hakeem by profession. His clinic (Shafa Khana) was situated adjacent to his residential house in Mohallah Tehsildarwala, Kundian Town. An intervening door connected his residential house with his clinic.
4. Four/five months prior to the occurrence, Hakeem Inayat Ullah, aged abut 28 years, set up his clinic known as "Faisal Shafa Khana" in Siddiqui Bazar, Kundian and started attending to his patients. The residents of Mohallah started raising eyebrows over his dubious activities and also suspected him for indulging in narcotics. On 12-1-1992 they assembled and Hakeem Muhammad Hassan was also amongst them. They drafted a complaint about his immoral activities and also summoned Aziz 0lah Khan, Councillor to represent them. The applicants, including Hakeem Muhammad Hassan, led by the Councillor, went to Police Station Kundian at about 3 p.m. and presented the complaint. Aziz Ullah Khan, Councillor recorded a note on the complaint, vouchsafing the correctness of the allegations. The appellant, having come to know about it, felt, annoyed, particularly against Hakeem. Muhammad Hassan.
5. In this tense background, on the same day at about 7-45 p.m. when Hakeem Muhammad Hassan was present in his house alongwith other members of the family, including his son Safdar Hassan (deceased), a student of 9th Class, and his elder brother Ihsanullah P.W. alongwith Ghulam Ahmad P.W. was present in a room of the clinic, the appellant entered the clinic of Hakeem Muhammad Hassan. He knocked at the intervening door, in response whereof Safdar Hassan (deceased) stepped out after opening it. His father Hakeem Muhammad Hassan also followed him. No sooner Safdar Hassan (deceased) came out of the intervening door, than the appellant pointed his gun towards him. Confronted with this situation, he immediately turned back in order to enter his house but he was fired at by the appellant, as a result of which he sustained injuries on the back of his head and fell down. The appellant, having accomplished his mission, hurriedly went out of the clinic and riding his motor-cycle parked in the street, drove it away. Ehsan Ullah and Ghulam Muhammad P.Ws., who were present in the room of the clinic, also saw the occurrence. Hakeem Muhammad Hassan with the help of his son Ehsan Ullah P.W. and their relation Ghulam Muhammad P.W. picked up the injured and removed him on a vehicle to the Civil Hospital, Mianwali, in unconscious condition. Leaving his son at the hospital, Hakeem Muhammad Hassan came to Police Station Kundian at 10 p.m. and lodged the report (Exh.P.J.) and also produced medico-legal report of his son arid his blood stained clothes.
6. Inspector/S.H.O. Mehrban Hussain, after the registration of the case under section 324, P.P.C., took up its investigation, went to D.H.Q. Hospital, Mianwali and enquired from the doctor about the ability of the injured to make statement but he was informed that the injured was not in a position to make the statement. On the following day he went to the spot, carried out its inspection, collected blood-stained earth, prepared its rough sketch, recorded the statements of the witnesses and searched for the accused. On 14-1-1992 at about 3 p.m. he, with the help of Ghulam Sarwar and Sher Ali, Constables, arrested the appellant after a short chase and seized a .12 bore double-barrel gun alongwith four live cartridges from him. Since it was an unlicensed weapon, he registered a separate case against him under the Arms Ordinance. On 23-1-1992 Hakeem Muhammad Hassan complainant informed him about the death of his son in General Hospital, Lahore, wherefrom his dead body was brought to D.H.Q. Hospital, Mianwali. He went there and prepared the inquest report and sent the dead body to the mortuary for post-mortem examination. On the death of the injured he amended the offence. On 23-1-1992 he got prepared the site plan from the Draftsman. He recorded the statement of some more witnesses. In this way he completed the investigation and submitted the challan against the appellant to the Court of Session.
7. On the commencement of trial, the appellant was charged for the murder of Safdar Hassan and on his, pleading not guilty the prosecution (adduced evidence against him by producing as many as 11 witnesses.
8. To be a little more precise, Constable Amanullah (P.W.1), Constable Zafar Iqbal (P.W.2), Dr. Javed Masud, Medical Officer, General Hospital, Lahore (P.W.3), who issued death certificate of the deceased, Muhammad Shafiq, Draftsman (P.W.5), M.H.C. Ehsan Ullah (P.W.6) and Ghulam Sarwar (P.W.10) were formal witnesses. Their testimony, therefore, does -not necessitate and detailed discussion.
9. Dr. Mehr Khan, Medical Officer, D.H.Q. Hospital, Mianwali (P.W.4) testified that on 12-1-1992 at 8-45 p.m. he had medically examined Safdar Hussain injured, aged 16 years, who was unconscious, and found the following injuries:-
(1) Multiple entry wounds of fire-arm projectile 1/2 c.m. x 2/3 c.m. on the back of chest upper part bilaterally back of neck.
(2) Multiple entry wounds of fire-arm projectile ranging from 1/2 c.m. x 2/3 c.m. to 2/3 c.m. x 1 c.m. on the back of skull and also on the right side of the skull.
(3) An exit wound of fire-arm over right cheek l/2 c.m. x 2/3 c.m. in size.
(4) A grazing wound of fire-arm 3 c.m. x 1/2 c.m. x muscle deep 1/2 c.m. to the front of right ear.
(5) An exit wound of fire-arm projectile 1/2 c.m. x 2/3 can. being 2 and 1/ 2 c.m. to the right side of right eyebrow.
10. All these injuries, according to him, had been caused by a fire-arm within the duration of one hour. He proved medico-legal report (Exh.P.D.).
11. He further testified that on 23-1-1992 at 12-20 p.m. he had conducted post-mortem examination on the dead body of Safdar Hassan and found the same wounds on same parts of the body, where he had earlier noticed the injuries during medico-legal examination. On dissection he found right occipital bone and right temporal lobe fractured, membranes, right cerebellum and right cerebral temporal lobe punctured and clotted blood present on scalp and on the back and right side of brain surface. In his opinion, death in this case occurred due to shock and haemorrhage on account of injury No.2, which was ante-mortem, caused by a fire-arm and sufficient in the ordinary course of nature to cause death. He proved the post-mortem report (Exh.P.E.) and diagrams (Exh.P.E/1) and (Exh.P.E./2). He added that during post-mortem he had recovered four pellets from the brain and six pellets from the soft tissues on the back chest.
12. Hakeem Muhammad Hassan complainant (P.W.7) and Ehsan Ullah (P.W.8) gave the eye-witness account. Their testimony finds reflections in the above narration of the prosecution case and their statements may be subjected to detailed appraisal in due course where necessary.
13. The next witness was Aziz Ullah Khan, Councillor of Municipal Committee, Kundian Town (P.W.9). He deposed that on 72-1-1992, residents of Mohallah Tehsildar Wala had summoned and told him that they were fed up with the nefarious activities of the appellant and they had written an application (Exh.P.H.). According to him, he accompanied them to Police Station, Kundian and after recording a note (Exh.P.H./1) thereon under his signature, presented it to the S.H.O. He added that Hakeem Muhammad Hassan complainant was one of the applicants, whose name stood mentioned in the application at Serial No.2.
14. The last witness was Inspector/S.H.O. Mehrban Hussain (P.W.11). The part played by him as Investigating Officer has already been outlined.
15. The learned Prosecutor gave up all the remaining witnesses as unnecessary and tendering in evidence the report of Chemical Examiner (Exh.P.O.) and that of Serologist (Exh.P.O.), closed the prosecution case.
16. Hakeem Inayat Ullah appellant, in his, statement recorded under section 342, Cr.P.C. denied all the incriminating circumstances figuring against him in the prosecution evidence and alleging his false implication, professed innocence. He produced Amanullah, S.S.O. Incharge of 132 KV. Grid Station, Wan Bachran, District Mianwali, as D.W.1. He testified that Kundian Town was being supplied electricity from Grid Station Wan Bachran which in turn received electric supply from Ludewala. With the help of record of Grid Station, Wan Bachran, he deposed that on 12-1-1992 there was total failure of electric supply from Ludewala at 17-40 hours and it was restored at 19-53 hours. According to him, under the instructions of Regional-Control Centre, Islamabad, the supply of electricity from Grid Station Wan Bachran was closed from 20-20 hours to 22-06 hours and Kunidan Town did not receive electricity during these hours. This record, as the note of the learned trial Judge indicates, was returned to the witness after having been seen by the Court. In reply to a question of cross-examination, he explained that an operator on duty made entries in the said register and at the relevant time Ghulam Qadir SSO-11 was on duty.
17. On the conclusion of the trial, the learned trial Judge, by the judgment now challenged, convicted and sentenced the appellant in the manner aforesaid. Aggrieved by these findings, he has filed this appeal.
18. It was argued on behalf of the appellant that motive alleged by the prosecution had not been proved because the appellant had no animosity with the deceased boy and if at fill he was annoyed with the deceased's father on account of their professional rivalry and his machination against him, he would have ordinarily killed him and not his innocent son. It was urged that, as per prosecution evidence, the group of Mohalladars headed by Aziz Ullah Khan, Councillor, of which deceased's father was also a member, had gone to S.H.O. Kundian at about 3 p.m. on the day of occurrence and there was no indication from the record that the appellant had knowledge of any such move against him and in the absence of any such knowledge, there was no reason for him to have felt so much annoyed with the deceased's father so as to go to Es house and kill him, or his son.
19. There is no substance in this contention. No doubt the appellant had apparently no enmity with the deceased but his ill-will against his father was obvious. Hakeem Muhammad Hassan complainant was an old resident of Kundian Town while the appellant had set up his clinic there only a few months prior to the occurrence. So there was a natural professional rivalry between them and they could not tolerate each other. In addition to his covert opposition of the appellant as his professional rival, Hakeem Muhammad Hassan complainant also happened to join the group of his detractors in the Mohallah and writing a joint complaint against him, went to the police station where they advocated for a legal action against him. This open move by the prominent persons- of the locality could not remain hidden from the appellant who was carrying on his business there and was expected to have some sympathizers to inform him about it. The participation of Hakeem Muhammad Hassan complainant must have added fuel to the fire. Therefore, we are not inclined to accept the contention that the appellant had no knowledge about the complaint of Mohalladars, including Hakeem Muhammad Hassan complainant, made by them to the local police, making allegations of serious nature, touching even his moral character, against him. In the tense background of professional rivalry he had reason to believe that Hakeem Muhammad Hassan complainant was the prime mover in the said complaint against him and this fact was sufficient to drive him to take an extreme step of killing Hakeem Muhammad Hassan complainant or any member of 'his family, whoever came in, his way. So in our view the motive stood amply proved.
20. Commenting on the ocular account, the learned counsel contended that the occurrence remained un witnessed and if at all it was witnessed, then the assailant remained unidentified and the appellant was named merely on the basis of suspicion in the background to professional rivalry between him and Hakeem Muhammad Hassan complainant. Elaborating his argument, he canvassed that in response to knock at the common gate between the clinic and house of Hakeem Muhammad Hassan complainant, only his deceased son had come out to find out as who was the caller and there was no reason for the complainant himself to have also followed him to the door. According to him, neither Ehsan Ullah P.W., the brother of the deceased, nor Ghulam Ahmed P.W. (not produced) was present in any room of the clinic of the complainant party to see the occurrence because had they been so present, they would not have allowed the appellant, who was armed with a gun, to go straight to the intervening door and knock at it instead of contacting them and if he had gone near the door and happened to knock at it, they would have been the first to come into contact with him instead of the deceased, but Ehsan Ullah P.W. deposed that he did nothing to intercept the appellant neither before nor after the occurrence, until he ran away on a motor-cycle after committing the crime.
21. There is no substance in this contention either. Hakeem Muhammad Hassan complainant and his son Ehsan Ullah P.W. both were natural 8 witnesses. The former was expected to be present in his house and the latter in any room of the adjoining clinic at the time of occurrence. Nowadays the incidents of house trespass by intruders and robbers being the order of the day, people in every part of the country are reluctant to immediately open the main door of the house in response to the knock. Elderly persons are generally apprehensive and they do not allow the youngsters to go out. In this background if the complainant, as he claimed, also happened to follow the deceased to the common door in response to the knock, there was nothing unusual in it. We believe that the complainant saw the appellant firing at his son. Similarly, there could be no doubt in the presence of Ehsan Ullah P.W. in a room of the clinic. Clinic or Shafakhana being a place often frequented by the outsiders, there was nothing extraordinary or unusual for Ehsan Ullah P.W. who assisted his father in carrying on Hikmat in that Shafakhana, to have felt alarmed or become immediately attentive if some body entered the Shafakhana armed with a gun which was a usual feature in Mianwali District. The complainant being a Hakeem by profession, people even otherwise went to his house-cum-clinic for treatment even at odd hours.
22. With reference to the statement of Aman Ullah, S.S.O. Incharge Grid Station, Wan Bachran (D.W.1), it was vehemently asserted that electricity stood disrupted in Kundian Town on account of closure of Grid Station Wan Bachran, from where it obtained electric supply, from 17-43 hours to 17-53 on the day of occurrence and, as per statement of Hakeem Muhammad Hassan complainant in the F.I.R., the occurrence had taken place at 7-50 p.m. or at 7-45 p.m., as deposed at the trial, and when there was complete dark in his house on account of the failure of electricity, the eye-witnesses, even if they were present, could not identify the assailant.
23. The argument too does not cut much ice. We are of the view that the electricity was available at the time of occurrence and there was no difficulty for the eye-witnesses in identifying the appellant while committing the crime. In the first instance, it was not proved by the defence that the electric supply stood really disrupted from 5-40 p.m. to 7-53 p.m. The statement of Aman Ullah S.S.O. (D.W.1) suffered from serious legal infirmities and being inadmissible in evidence, it cannot be read. The first infirmity apparent on the record is that the copy of the register, from which he deposed, was not placed on the record of the trial Court and in the absence of such copy or the original record, the oral account given by the witness about the contents of such document was not admissible. Article 102 of the Qanun-e-Shahadat is clear on this point. Secondly, Aman Ullah (D.W.1) was not the author of the entries about which he was deposing. The entries were allegedly made by Ghulam Haider S.S.O. and only he could depose and prove them unless he was precluded from appearing as a witness due to the circumstances beyond his control and justification for adducing secondary evidence had been made out, but nothing was brought on the record in that respect. So, whatever was deposed by Aman Ullah (D.W.1) cannot be even referred to by the learned counsel for the appellant. Hakeem Muhammad Hassan complainant and his son Ehsan Ullah P.W. categorically deposed that the electricity was available at the time of occurrence and we believe their statements.
24. Finally, it was urged that it was a case of extenuation in the matter of sentence and if the conviction of the appellant was to be maintained, his sentence might be reduced to imprisonment for life because there was nothing on the record as to what had actually transpired between him and the victim at the time of occurrence. We are not inclined to accede to the request of the appellant's counsel. It was a wanton murder indicating the reckless conduct of the appellant who brutally took the life of a young school going boy, hardly 15/16 years old, after virtually trespassing into the house of his parents. He does not deserve any leniency in the sentence.
25. Before parting with this appeal, we would like to observe that the requisite degree of proof, as contemplated by section 304, P.P.C., being not available on the record, the conviction of the appellant could not be recorded under section 302(a), P.P.C. for Qatl-i-Amd liable to Qisas. It was a case of Tazeer punishable under section 302(b), P.P.C. and to rectify this error, we convert the conviction and sentence of the appellant from under section 302(a), P.P.C. to the one under section 302(b), P.P.C. With this modification, we dismiss the appeal.
N.H.Q./91/SAC Order accordingly.