MUHAMMAD QAISER Versus STATE
JUSTICE ABDUL MAJID TIWANA (MEMBER). --- This judgment shall also deal with and dispose of Criminal Appeal No.87/SAC/L of 1992, both arising out of the judgment, dated 28-11-1992, by which the learned Judge, Special Court for Speedy Trial No.ll, Lahore, convicting Muhammad Qaiser, Aziz Khan and Arif appellants under section 302/34, P.P.C: -
(a) sentenced Muhammad Qaiser appellant to death as Tazeer subject to its confirmation by the Supreme Appellate Court and also to pay a compensation of Rs.2,00,000 to the legal heirs of Muhammad Daud (deceased); and
(b) sentenced Aziz Khan and Arif appellants to imprisonment for life and to pay a compensation of Rs.5,000 each to his legal heirs.
He, however, acquitted Maqbool Ahmad co-accused of the charge under section 302/109, P.P.C.
The prosecution case, as it gleans out from the evidence led by it, is as
Muhammad Gulzar complainant and Muhammad Daud (deceased), who were brothers-in-law inter .se, resided in Siddique Nagar, a locality of Okara Town. Muhammad Ibrahim P.W. also resided with his brother Muhammad Daud (deceased). Sh. Saeed, who is also resident of this locality, had a dispute with Muhammad Qaiser appellant over the possession of some shops. The latter had not only taken possession of those shops but also involved the former alongwith his son in the false case: F.I.R: No.88 of 1992 registered at Police Station B' Division Okara on 23-3-1992 under section 337-A(2)/34, P.P.C. During its investigation, Muhammad Gulzar complainant appeared in defence of Sh. Saeed and also filed an affidavit with a view to get him exonerated of the charge. As a result, this case was cancelled by the police. This caused annoyance to Muhammad Qaiser appellant and he bore grudge with Muhammad Gulzar complainant. In this background, on 24-4-1992 at 8-15 p.m. when Muhammad Gulzar complainant was present in the Baithak of his house situated in Siddique Nagar, Okara, alongwith his brothers-in-law, namely, Muhammad Ibrahim P.W. and Muhammad Daud (deceased), who were his immediate neighbours and Naveed P.W. (not produced), all the three accused-appellants alongwith Muhammad Akram absconding co-accused appeared in front of his Baithak. They raised a Lalkara, challenging Muhammad Gulzar complainant for siding with Sh. Saeed. Muhammad Gulzar complainant, Muhammad Daud (deceased), Muhammad Ibrahim and Naveed P.Ws., hearing the Lalkara, came out of the Baithak into the street. To their surprise, they found Muhammad Qaiser appellant and his brother Muhammad Akram absconding accused armed with .12 bore guns, Aziz Khan appellant carrying a pistol and Arif appellant wielding a rifle. The complainant and his companions pleaded with the appellants and their absconding co-accused but the latter did not desist. Opening the attack, Muhammad Qaiser appellant fired a shot with his gun at Muhammad Gulzar complainant but it hit Muhammad Daud (deceased), injuring his right buttock, followed by his brother Muhammad Akram absconding accused who fired a shot with his gun, hitting Muhammad Daud (deceased) on the left back. As a result of these injuries he fell down. Aziz Khan and Arif appellants, who were allegedly Karindas (servants) of Muhammad Qaiser appellant, fired shots with their respective weapons. Muhammad Gulzar complainant and his two companions, namely, Muhammad Ibrahim and Naveed P.W. hurriedly entered the Deori of his house and saved their lives. The assailants left the spot raising Lalkaras. Muhammad Daud expired on the spot after a short while. The matter was reported to the police by Muhammad Gulzar complainant and on his statement the case was registered during the same night at 8-45 p.m. at Police Station `B' Division, Okara under section 302/34, P.P.C. against the appellants and their absconding co-accused. In a supplementary statement the complainant alleged that the murder of Muhammad Daud had been committed by the aforesaid four persons at the instance of Maqbool Ahmad co-accused, the father-in law of Muhammad Qaiser appellant. He was also arraigned as co accused.
3. S.I./S.H.O. Riaz Ahmad (P.W.12), after the registration of the case, took up its investigation. He vent to the spot, prepared the injury statement and inquest report of the dead body of Muhammad Daud and sent it to the mortuary for post-mortem examination. He picked up blood-stained earth from the place of occurrence and seized four empties of .12 bore gun, two empties of 30 bore pistol and ten empties of .223 bore rifle. On 30-4-1992, on the receipt of an information, he went to the Poultry Farm of Muhammad Qaiser appellant situated in Fardus Town, Okara and, after seizing his shotgun alongwith a bag containing 20 live cartridges in the presence of Muhammad Gulzar complainant and Naveed P.W. (not produced), arrested him. On 5-5-1992 he arrested Aziz Khan appellant from Bus-stand Okara and also seized pistol alongwith 5 live cartridges. On the following day he arrested Arif appellant from the same place and seized rifle alongwith 10 live cartridges. He prepared separate challans for the possession of illicit arms. He deposited the parcels pertaining to his case in Police Malkhana and got the same despatched to the relevant offices at Lahore. Despite efforts, he could not arrest Muhammad Akram co-accused and, after getting him declared absconder, submitted the challan to the Court concerned against others.
4. On the commencement of trial, the appellants were charged for the murder of Muhammad Daud in furtherance of their common intention, punishable under section 302/34, P.P.C. and against Maqbool Ahmad co accused under section 302/109, P.P.C. for hatching a conspiracy alongwith his co-accused for killing him. On their pleading not guilty, the prosecution led evidence against them by producing as many as 14 witnesses.
5. To be a little more precise, Dr. Nazir Hussain, Medical Officer, D.H.Q. Hospital Okara deposed that on 25-4-1992 at il a.m. he conducted post-mortem examination on the dead body of Muhammad Daud aged about 40 years brought to the mortuary by the police and on external examination he found the following injuries:--
(1) A lacerated wound 1 c.m. x 1 cm. deep going on the back of lower part of left side of chest. The edges were inverted and slightly blackish (wound of entry).
(2) A lacerated wound 1.5 c.m. x 1 c.m. deep going on the front of lower part of right side of chest. The edges were everted (wound of exit).
(3) A lacerated wound 1 c.m. x 1 c.m. deep going on the medial side of right buttock. The edges were inverted and slightly blackish (wound of entry).
(4) A lacerated wound 1.5 cm. x 1 c.m., deep going on the front of upper part of right thigh. The edges were everted (wound of exit).
Perforations were present on the corresponding parts of clothes in respect of all the injuries.
6. On dissection he found femoral vessels of right thigh ruptured alongwith laceration of surrounding vessels, and spleen, left kidney and liver were lacerated. In his opinion, death, in this case, occurred due to shock and haemorrhage as a result of the abovementioned injuries which were sufficient in the ordinary course of nature to cause death. According to him, all these injuries were ante-mortem and were caused by a fire-arm resulting in death in about half an hour: He proved the post-mortem report (Exh.P.A.) and the diagram of injuries (Fxh.P.A./1). He further deposed that on the same day at 12-30 p.m. he conducted post-mortem examination on the dead body of one Basharat aged about 25 years brought to the mortuary by the police and on its exeternal examination he found the following injuries:-
(1) A large lacerated wound 5 cm. x 4 c.m. deep, going to the outer side of left shoulder. There were three small lacerated wounds, each measuring 1 c.m. x 1 c.m. deep, going alongwith 6 small abrasions measuring from 1-1/2 c.m. x 1/2 c.m. to 1 c.m. x 3/4 c.m. around the main wound. The total area of the injury was 10 c.m. x 6 c.m. The edges were black and inverted. Perforations were present on the corresponding parts of clothes. It was a wound of entry. There was burning on the corresponding part of clothes. There were three small lacerated wounds each measuring 1 c.m. x 1 c.m. in an area of 6.5 c.m. x 5 c.m. in the left exilla and inner side of left upper arm. The edges were everted. There were 3 small lacerated wounds each measuring 1 c.m. x 1 c.m. in an area of 7 c.m. x 5 c.m. on the outer side of upper part of left side of chest. The edges were inverted. These were wounds of exit and re-entry. Perforations were present on the corresponding part of the clothes.
On dissection he found left lung, large vessels of heart ruptured and 3rd, 5th and 7th ribs on the left side and left humerus fractured. He found one pellet embedded in the sub-clavicular area of the front of right side of chest and discovered three pellets from chest cavity which was full of blood.
7. In his opinion, death occurred due to shock and haemorrhage as a result of injury No.l which was sufficient 'in the ordinary course of nature to cause death, having been caused by a fire-arm. He proved the post-mortem report (Exh.P.H.) and the diagram of injuries (Exh.P.H./1).
8. The next two witnesss were Muhammad Gulzar complainant (P.W.2) and Muhammad Ibrahim (P.W.3). They gave the eye-witness account in line with the prosecution story. Their testimony stands amply reflected in the above narration of the prosecution case and may be subjected to detailed appraisal, when necessary, in due course.
9: Rao Muhammad Hanif (P.W.4) and Shaukat Ali (P.W.5) were witnesses of hatching conspiracy between Maqbool Ahmad acquitted accused and the appellants. Neither of them was believed on this point and very rightly so.
10. Muhammad Nawaz_ (P.W.6), being the identifier of the dead body of Muhammad Daud at the time of post-mortem examination, Ubaid Ullah Khan, Draftsman (P.W.7), F.C. Kauser Ali Shah (P.W.8), A.S.I. Muhammad Nawaz (P.W.9), F.C. Muhammad Arshad (P.W.10) and F.C. Muhammad Aslam (P.W.11), were formal witnesses and their testimony needs no detailed discussion.
11. S.I. Riaz Ahmad (P.W.12) and Inspector Ahmad Nawaz (P.W.14) were the investigating Officers. The part played by them as such has already been outlined.
12. Dr. Abid Hussain Medical Officer, D.H.Q. Hospital, Okara (P.W.13) testified that on 25-4-1992 at 12-15 he had medically examined Muhammad Boota brought to him by the police and found on his person a lacerated wound 2 cm. x 2 c.m. x deep with blackening and inverted margin on the outer and upper right leg and a lacerated wound 1/4 c.m. x 1/4 cm. going deep on the back middle right leg with corresponding hole on the Shalwar which stood stained with blood. These injuries, according to him, were simple and caused by a fire-arm within the duration of 6 hours. He explained that injury No.1 was the entry wound, while injury No.2 was its exit. He proved the medico-legal report (Exh.P.T).
13. On the completion of the prosecution evidence, the appellants and their acquitted co-accused were examined under section 342, Cr.P.C. They denied all the incriminating circumstances figuring against them in the prosecution evidence and alleging their false implication, professed innocence.
14. Muhammad Qaiser appellant placed on the record certified copies of the judgments EXh.D-1 and orders Exh.D-1/2 and Exh.D-1/3, besides the certified copy of the report made under section 173, Cr.P.C. (Exh.P.D.l/4) and closed his defence. Arif appellant produced the duplicate copy of his pistol licence (Exh.DJ.) and adduced no other evidence.
15. On the conclusion of the trial, the learned trial Judge, by the judgment now under challenge, after acquitting Maqbool Ahmad co-accused on benefit of doubt, convicted the appellants in the manner aforesid, without saying anything about Muhammad Akram co-accused whose case was separated from the very inception on account of his absconsion. Aggrieved by his findings, where the appellants came up in appeal, the State has also filed appeal against the acquittal of Maqbool Ahmad co-accused.
16. It was argued on behalf of the appellants that the case was registered on 25-4-1992 after due consultation and deliberation but this date was subsequently altered as 24-4-1992 to make the F.I.R. prompt; that the prosecution failed to prove the motive alleged in the F.I.R. because Sheikh Saeed, who figured materially in this respect, was not produced as a prosecution witness to corroborate the statement of Muhammad Gulzar complainant on this point; that Muhammad Gulzar complainant and Muhammad Ibrahim P.W., who gave the eye-witness account, were closely related to each other as also to the deceased and the prosecution could not produce any independent witness; that the appellants had no grievance against Muhammad Daud (deceased) to kill him and if at all there was any motive, it was against Muhammad Gulzar complainant and had he been present at the time of occurrence, they would not have spared him; that the story of electric light near the place of occurrence was introduced at the trial and the occurrence took place during dark night making it impossible for the eye witnesses to see as whose shot had hit Muhammad Daud (deceased); that all the recoveries were fake and were planted on the appellants in order to strengthen the prosecution case; and that the confessional statement of Muhammad Qaiser appellant could not be brought on the record being inadmissible in evidence under Article 40 of the Qanun-e-Shahadat, nor the copy of the F.I.R. could be brought on the file to prove this bad character in violation of the provisions of Article 68 of the said Order. The learned counsel representing the State has tried to support the impugned judgment and has also argued half-heartedly the State appeal against the acquittal of Maqbool Ahmad co-accused.
17. After going through the record with the assistance of the learned counsel representing the parties and considering their arguments, we are of the opinion that various contentions raised above by the learned counsel for the appellants are without force. Taking up his arguments ad seriatim the alleged overwriting regarding the date of occurrence was immaterial. It was in fact 24-4-1992 and it could not be 25-4-1992, which was inadvertently mentioned in the F.I.R. and was later rectified. There is no dispute between the parties about the time and place of occurrence nor there could be any real controversy between them about its date:
18. The motive alleged in this case was that there was a property dispute between Sh. Saeed, a Mohallahdar and friend of Muhammad Gulzar complainant, with his opponents Sh. Muhammad Qaiser appellant and his brothers Muhammad Akram absconding co-accused and Sh. Muhammad Aslam and in a case got registered at the instance of the later against Sh. Saeed and his son, Muhammad Gulzar complainant had appeared in their defence before the police and it caused annoyance to the accused party. While appearing as a prosecution witness, he reiterated these facts before the trial Court. Copy of the case F.I.R. No.88 of 1992, dated 23-3-1992 (Exh.P.V.) of Police Station "B" Division Okara, registered on the statement of Khalid Azeem, alongwith the police file (Exh.P.V./2) was brought on the record. These documents corroborated the statement of Muhammad Gulzar complainant to a greater extent and in our opinion, the motive as alleged by the prosecution stood amply proved.
19. Muhammad Gulzar complainant and Muhammad Ibrahim P.Ws., both of whom gave the eye-witness account, were no doubt closely related to each other as also with Muhammad Daud (deceased) but this relationship did not entail any legal infirmity because there was no previous enmity between them and the appellants. This contention was, therefore, also without force.
20. It is true that the appellants had no motive against Muhammad Daud (deceased) but Muhammad Qaiser appellant and his two co-appellants, who were acting at his behest being their employees, had motive against Muhammad Gulzar complainant. They, after arming themselves with fire arms, came to kill him but Muhammad Daud came in their way while beseeching and intervening in the matter and he was killed by their shots. Under section 301, P.P.C. if a person wants to murder someone and in the process happens to kill someone else, then he incurs the same liability which he would have incurred if he had succeeded in killing the person whom he wanted to kill. Therefore, the appellants are liable for the murder of Muhammad Daud in the same manner if he had succeeded in killing Muhammad Gulzar complainant. The trial Judge, in our opinion, should have convicted the appellant under section 301, P.P.C. instead of section 302/34, P.P.C.
21. The fact regarding the presence of electric light at the time of occurrence near the spot was, no doubt, did not figure in the F.I.R. and it was introduced by the eye-witnesses at the trial but their assertion to that effect was not seriously challenged by the defence. The incident having taken place in a locality of Okara Town, the availability of electric light near the place of occurrence was not improbable as the streetlight in big towns is generally provided by the Municipal Authorities. In addition thereto, the residents also make adequate arrangement of electric light in front of their houses for their own convenience. So, there is no force in this argument either.
22. However, we are inclined to agree with the contentions of the learned counsel that the recoveries of fire-arms effected from the appellants by the police during the course of investigation do not-inspire confidence. As such this piece of evidence is discorded but it does not adversely affect the prosecution case.
23. The last contention of the learned counsel for the appellants also appears to be weightier. Neither the confessional statement of Qaiser appellant could be brought on the record, nor the evidence of his bad character could be led against him. There was a specific prohibition in the Law of Evidence in this respect, though the relevant provisions, in our opinion, are not in consonance with Shariah which is now the supreme law of the country and the same need to be done away with but so long they are on the statute book, we are bound to enforce them.
24. In our view, the prosecution had fairly succeeded in proving the guilt of the appellants in committing the murder of Muhammad Daud, by adducing the reliable occular evidence coupled with the corroborative medical evidence and further supported by the evidence of motive and they had to be convicted for his murder but to under section 307, P.P.C. to which their conviction is now altered. As regards their sentence, Aziz Khan and Arif appellants have already been awarded lesser punishment of imprisonment for life and it cannot be further reduced. So far as Muhammad Qaiser appellant is concerned, he alongwith his absconding brother is the main culprit, having spearheaded the attack by going to the house of the complainant after arming themselves with deadly weapons and killing an innocent person mercilessly, merely because he tried to interest and beseeched them for patience. He, therefore, does not deserve any leniency.
25. In view of the above, there is no force in the appeal and the same is dismissed. The State appeal against the acquittal of Maqbool Ahmad appellant is dismissed as he, in our opinion, was rightly acquitted.
N.H.Q./105/SAC Appeal dismissed.