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Petitioner: YOUSAF VS Respondent: THE STATE and anothers
Court Name: Peshawar High Court Judge(s): Talaat Qayyum Qureshi, Shakirullah Jan Title: YOUSAF vs THE STATE and anothers Case No.: Criminal Appeal No,44 with Murder Reference No,10 of 1999 Date of Judgment:2000-05-04 Reported As: 2000 P Cr. L J 1386 Result: Order accordingly
JUDGMENT
JUDGMENT ' TALAT QAYUM QURESHI; J.--- This appeal is directed against the judgment of learned Additional Sessions Judge, Abbottabad, dated 9-8-1999 whereby he convicted the appellant under section 302, P.P.C. And sentenced him to death. He was further directed to pay Rs, 50,000 as compensation to the legal heirs of deceased or in default to undergo six months simple imprisonment. By this judgment we propose to dispose of Criminal Appeal No,44 of 1999 and Murder Reference No,10 of 1999. 2. Muhammad Rafique, lodged report vide F.I.R. Exh.P.A. To the effect that being Contractor of Municipal Committee, Abbottabad he has obtained contract of sewerage of filthy water of Makki Mosque. On the day of occurrence he was digging the drain of filthy water through labourers. At about 14-00 hours Zahoorur Rehman (deceased), Ex-Councillor of Municipal Committee, Abbottabad came to the spot. In the meanwhile, Yousaf son of Qalandar (appellant) also came to the spot and started altercation with Zahoorur Rehman. Yousaf (appellant) rushed towards his house, after some times came out alongwith D B shotgun and fired two shots one after another at the deceased, as a result of which he was hit near his mouth and abdomen, fell on the ground and was shifted in injured condition to the Hospital. The occurrence was witnessed by Arif Ali son of Hussain Khan and 2/3 other persons besides the complainant. Motive stated in the F.I.R. Is dispute over the land meant for graveyard. 3. Challan of the case was put into the Court of learned Additional Sessions Judge, Abbottabad The accused-appellant was formally charged to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 12 witnessed. Resume of the prosecution evidence is given below.
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4. Muhammad Ishaq Khan, A.S.-I. Police Station Cantt. Abbottabad (P.W.1) on receipt of Murasila Exh.P.A./1 incorporated its contents into F.I.R. Exh.P.A. The F.I.R. Was in his handwriting and signed by him. 5. Ahmad Ji S.H.O., Police Station Cantt. (P.W.2) submitted complete challan against the accused after completion of investigation on 14-1-1999. 6. Mushtaq Shah, A.S.-I. Police Station Cantt. Abbottabad (P.W.3) is marginal witness of recovery memo. Exh.P.W.3/1 through which bloodstained earth Exh.P.I., broken tooth of deceased Zahoor Abbasi Exh.P.2 were taken into possession by the Investigating Officer who sealed the same in his presence and affixed seals in the name of M.S. On parcels. He is also marginal witness of recovery memo. Exh.P.W.23/2 vide which Investigating Officer took into possession from spot one empty shell of .12 bore Exh.P.3 giving the smell of freshly discharge. The same was also packed and sealed in this presence and the Investigating Officer affixed seals of M.S. On the same. He also witnessed memo. Exh.P.D.3/3 regarding the house search conducted by Investigating Officer in his presence. He is also marginal witness of recovery memo. Exh.P.W.3/4 vide which a double-barrel shot gun Exh.P.4 Pak-made having words SFS-MAKU EELUM-Brand was described on the barrel. All the recovery memos. Correctly bear his signatures. 7. Nazar Rehman, A.S.-I. Police Station Cantt. Abbottabad (P.W.4) is also marginal witness to recovery memo. Exh.P.W.4/1 vide which Investigating Officer took into possession a sealed bottle containing a pellet Exh.P.T. Recovered from dead body of deceased. He is also marginal witness to the recovery memo. Exh.P.W.4/2 vide which the Investigating Officer took into possession blood- stained garments Eth.P.W.4/2 consisting of a Shalwar P.6, a shirt P.7, white Bunyan P.8 and another Banyan Exh.P.9, Chaddar Exh.P.10 having corresponding cut marks, sent by the doctor which were packed and sealed by the Investigating Officer who affixed seals in the name of MS on the same in his presence. He testified his signatures on the said recovery memos. To be correct. 8. Mehboobur Rehman son of Khani Zaman (P.W.5) received the dead body of Zahoorur Rehman deceased after the post-mortem examination and scribed receipt of the dead body and handed over the same to the Investigating Officer, 9. Muhammad Rafique son of Muhammad Zaman complainant narrated the same story as mentioned in the F.I.R. 10. Arif Ali son of Hussain Khan (P.W.7) stated that on the day of occurrence he was working with Muhammad Rafique (P.W.6) who had a contract of draining filthy water of Makki Masjid. It was about 2 p.m. When Zahoorur Rehman came there with Muhabat Khan and 2/3 other persons. Accused/appellant Muhammad Yousaf also came to the spot and an altercation took place between the accused and deceased but he could not understand the factum of altercation. Accused/appellant went to his house and after some time came out with D.B. Shotgun and fired two shots at the deceased, as a result of which he was hit on his abdomen and near the mouth, having sustained injuries he fell down on the ground. The accused decamped from the spot. He (P.W.7) alongwith other shifted the deceased then in injured condition to hospital where complainant Muhammad Rafique (P.W.6) lodged the report on arrival of police. Then the deceased succumbed to the injuries. He had seen the occurrence with his own eyes. Bilal and Rashid had also seen the occurrence as they were also present at the spot. 11. Haji Abdur Rashid (P.W.8) also stated that on the day of occurrence after offering Zuhar prayers he came out of the mosque, went to the spot. The digging work of the drain of the mosque was in progress. He saw that deceased Zahoor, accused Yousaf, Muhammad Rafique (P.W.6) alongwith others including Arif (P.W.7) were also present there. An altercation took place between deceased and accused/appellant, the factum of which he could not understand. Thereafter, accused- appellant Yousaf went to his house and after some times came out from his house with D.B. Shot gun and fired at deceased, as a result of which deceased was hit on his abdomen and near the
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mouth. After receiving the injuries the deceased fell down on the ground. Accused decamped towards his house alongwith shot gun. He (P.W.8) rushed to the road side, raised hue and cry, on which people attracted. The deceased then injured was shifted to Civil Hospital, Abbottabad. He had seen the occurrence. 12. Dr. Fiaz Hussain Shah, C.M.O., D.H.Q. Hospital; Abbottabad (P.W.9) had examined injured Zahoorur Rehman at about 2-40 p.m. On 20-12-1998. The injured was brought by Fazal F.C., Police Station Cantt. Abbottabad in injured condition for his medical examination. On examination he found a single fire-arm injury on the anterior abdominal wall with circular hole with the evident .12 bore pellets of No,4, cartridge, 8 in number spreading along the circumference of fire-arm injury with coming gut evidence. The other fire-arm shot at the neck of the same bore with open lacerated wound, at the base of mandibular angle on the left side, circular 2-1/2 x 2-1/2" communicating with big open laceration wound at base of left jaw, just above the left earotid destroyed artory measuring 4-1/2 x 5". It was external artory. Cavity bone deep wound containing with another laceration from the hyoid bone measuring 3" x 3" bone deep, underlying bone exposed and continuing with another two lacerations running "V" shaped, 2-1/2 x 3-1/2" bone deep. All the vicreas of left side lateral and anterior triangle of neck are exposed, distrorted including esepharynx oropharynx lateral wall of treacha oespohagus, vocal cords exposed. There was abduction of 6.7 c.m. Of left plus right mandibular bone. The doctor advised X-Ray of skull. A.P. And lateral view, X- Ray abdomen plan, kind of injures, dangerous to life. According to doctor weapon used .12 bore shot gun number 4 cartridge. The duration of injuries was 10 to 15 minutes back. He testified that Exh.P.W.9/1 was in his handwriting and bore his signatures correctly. He also owned the endorsement on injury sheet Exh.P.W.9/2. The patient was referred by him to Ayub Complex Hospital for further treatment. ' On the same day he conducted the autopsy of the dead body of deceased Zahoorur Rehman Abbasi. The body was brought to him by police and identified by Jehanzeb son of Muhabat and Gul Zaman son of Muhammad Ismail. He recovered one pellet of No,4 cartridge with blood-stained which was signed and sealed by him and handed over to police. On examination he found the following:- ' External examination "Of 50-51 years, man, gray hairs having facial poller with wound of entrance No,1, distorted, face. There is a big laceration measuring 6.8" running just behind the sub-mandibular area communicating with another laceration running to chin, measuring 4", another laceration communicating the order just described. There is a big hole in the area of submandibular region measuring 2-1/2 x 2-1/2" in diameter, the jaw on the left side just above the carotid artory, the under-structure are exposed. All the structure in the line of fireane damaged including lower part pharynx, vocal of external carotid artory. ' There is another fire-arm entry wound with area of speared of pellets 8 in number covering total area 2-1/2 x 2-1/2" circular cavity deep with gut lying outside. No evidence of charring or tattooing in the area. The injury on the neck is fire-arm No,1, shot gun .12 bore cartridge No,4. The striking angle of the fire-arm 175 corresponding to the body. Colour of clothes is light brown, bloodstained and corresponding to injury No,2 on abdomen. No post-, mortem lividity or rigor mortis developed slightly in the gluteal area. The blood-stained garments of the deceased were sealed, signed by the doctor and handed over to the police. The deceased was wearing light brown Shalwar and Qamis and sweater, all bloodstained, having fire-arm marks corresponding to injury No,2. ' Internal examination ' Cranium and spinal cord fracture of mandibular including tooth above 6.4 c.m. Area of the jaw is absent on both sides of ramus of mandible. Drain normal. All the structure in line of injury are damaged. Thorax -- larynx, traechea contained blood, cloth shattered and destroyed, cannot be
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recognized properly. Blood vessels-external carotid artory damaged by small (minor perforations). All other vessels in the line of injury are damaged. Abdomen wall interior abdominal wall damaged in mid umbilical region by fire-arm injury. Peritoneum ruptured and shattered. Mouth, pharynx and oesophagus -- the base of pharynx both walls are damaged, contained blood clots, upper part of oesophagus damaged, other structure cannot be identified properly due to exclusive damaged by fire-arm. Stomach and its contents perforated, by three minor perforations at greater curvature, contents are present of last meal. Small perforations and hemp-peritonium is there. About 2.5 litre of blood present in peritoneal cavity. Large intestine and its contents shattered by multiple small perforations, contained stool, leakage into peritoneum cavity. Kidneys both kidneys shattered with minor perforation and swollen. The bladder was containing residual urine 25 c.c. Muscles, bones and joints. All the structure in the line of injury the area anterior and lateral triangle of neck are damaged including external carotid artory, pharynx, nazo pharnygial wall hyoid bone, fracture of lower jaw on both sides with abduction of bone plus teeth of lower jaw, on both sides with abduction of bone plus teeth of lower jaw, dislocation of tempore mandibular joint on both side right and left. ' Remarks ' In the opinion of the doctor the cause of the death of the deceased was fire-arm injuries with .12 bore No,4 cartridge, causing lethal damage to structure in the neck, in the area of anterior and lateral triangle loading circulatory collapse and cardio respiratory arrest and huypovalamia. The time between injuries and death was 45 minutes and between death and post-mortem examination was 2 hours back. The post-mortem report consisting 6 sheets (including pictorial) is Exh.P.M. Which is in his handwriting and bears his signatures correctly. The doctor had also endorsed the injury sheet Exh.P.M./1 and inquest report Exh.P.M./2 of the deceased." 13. Zulfiqar Jadoon S.-I./S.H.O. Police Station Mansehra (P.W.10) was posted at Police Station Cantt. Abbottabad during the days of occurrence. He was present at Sarban Chowk alongwith other police party. After receiving information regarding the occurrence he proceeded to Civil Hospital, Abbottabad where deceased then injured was lying unconscious besmeared in blood. Complainant Muhammad Rafique reported the matter to him which was recorded in the shape of Murasila Exh.P.A./1 by him, was read over and explained to complainant who signed the same as token of its correctness. He prepared injury sheet Exh.P.W.9/2 of deceased, sent Murasila through D.F.C. Shaukat to police station for registration of case, went to the spot, prepared site plan Exh.P.B., at the instance of complainant and eye-witness Arif Ali. He took into possession blood-stained earth Exh.P.1, broken tooth Exh.P. Of the deceased vide recovery memo. Exh.P.W.3/1. He also took into possession one empty cartridge of .12 bore Exh.P.3 giving smell a fresh discharge having the words Shaheen 4 and word Wah Industries Limited vide recovery memo. Exh.P.W,3/2 sealed the parcel, affixed his seals thereon. He also recorded statements of P.Ws. Under section 161, Cr.P.C. Conducted the house search of the accused vide Exh.P.W.3/2. Neither accused was available nor any incriminating articles were recovered during the search. Zahoorur Rehman injured succumbed to the injuries on the same day. His dead body was shifted to mortuary of Civil Hospital, Abbottabad where his post-mortem examination was conducted. Vide recovery memo. Exh.P.W.4/2 he took into possession the blood-stained garments of deceased consisting of a Shalwar Exh.P.6, shirt Exh.P.7, white banyan Exh.P.8, a warm banyan Exh.P.9 and a Chaddar Exh.P.10, having corresponding cut marks of pellets, sent by doctor which were packed and sealed by him. He also took into possession sealed bottle containing pellet Exh.P.5 extracted from dead body of deceased, sent by doctor vide recovery memo. Exh.P.W.4/1. Vide his application Exh.P.W.10/1 he got recorded the statements of P.Ws. Abdur Rashid, Arif Ali and Bilal under section 164, Cr.P.C. Since the accused was avoiding his lawful arrest, therefore, vide his application Exh.P.W.10/2 he applied and obtained warrant under section 204, Cr.P.C. Against him. Vide application Exh.P.W.10/3 he sent bloodstained
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earth recovered from the spot and blood-stained garments of the deceased to Forensic Science Labotratory and obtained result Exh.P.W.10/4. The accused-appellant had obtained ad interim bail from Sessions Court, Abbottabad which was recalled. He arrested the accused on 9-1-1999 and vide his application Exh.P.W.10/5 obtained three days police custody of accused, interrogated him. During the interrogation he was willing to produce weapon of offence and on 11-1-1999 while in police custody he led the police party to a drain situated near the place of occurrence from where he picked up and produced D.B. Shot-gun .12 bore without any number (Pak. Made) Exh.P.4 having the words "SFS" M.A.K.N. EELUM. Brand. He also prepared recovery memo. Exh.P.W.3/1 and site plan Exh.P.B./1. The weapon of offence was sealed and packed by him. He recorded the statement of accused and vide his application Exh.RW.10/5 produced him before the Court for recording his confession. He did not confess his guilt. Vide his application Exh.P.W.10/6 he got recorded statements of P.Ws. Amirud Din and Muhammad Parvez Khan under section 164, Cr.P.C. Vide his application Exh.P.Z. He sent weapon of offence alongwith one empty shell recovered from the spot and a live round to arms expert for comparison and his opinion and obtained result Exh.P.Z./1. After completion of investigation he handed over the case file to S.H.O. For submission of challan. 14. Fazal Dad, A.S.-I. Police Station Mirpur (P.W.11) had prepared the inquest report Exh.P.M./1 which bore his signature correctly and the same was endorsed by the doctor. 15. Gul Zaman son of Muhammad Ismail (P.W.12) had identified the dead body of deceased before the police and before the doctor at Ayub Medical Complex, Abbottabad. The inquest report Exh.P.2 bore his signature correctly. 16. The statement of accused-appellant was recorded under section 342, Cr.P.C. He wished to produce Patwari Halqa alongwith record but did not wish to give his statement on oath under section 340(2), Cr.P.C. 17. Khan Afsar, Patwari Halqa Sheikhul Bandi was examined as He produced on record Fard Jamabandis for the years 1981-82, 1985-86, 1989-90 and 1993-94 in respect of Khasra No,1418 measuring 1 . Kanal 14 Marlas situated in Qasba Abbottabad which were placed on record Exh.D.W.1/1 to Exh.D.W.1/4 respectively. He also produced photostat copy of Mutation No,2744 unattested with register of mutations for the year 1996. The said mutation was recorded at serial No,2744 of the register. Photo copy of the same was exhibited as Exh.D.W.1/1. 18. Messrs Saeed Akhtar Khan and Fazal Haq Abbasi, Advocate, the learned counsel representing the appellant argued that the F.I.R. Was lodged after due consultations and deliberations. There were material contradictions regarding the recording of report. Arif Ali P.W.7 stated that the report was recorded by Akhtar S.-I. And then torn the same and re-drafted whereas Zulfiqar P.W.10 stated that Murasila Exh.P.A./1 and site plan were in the handwriting of Mushtaq Hussain Shah, P.W.3. Akhtar, S.-I. Was not produced by the prosecution whereas the learned trial Court on the request of the counsel for the defence observed that Exh.P.A./1 and Exh.P.B. (site plan) are in different handwriting. 19. It was further argued that all the P.Ws. Were interested witnesses. Muhammad Rafique P.W.6 is related to deceased, Arif Ali P.W.7 is the tenant of complainant party. Name of Abdur Rashid P.W.8 is not mentioned in the F.I.R., civil litigation was already pending between the deceased, P.Ws. 6 and 8 are plaintiffs while Babas son of appellant is defendant in the said suit, therefore, it was not safe to rely on their statements without further corroboration. None of the independent witnesses from vicinity was produced although the place of occurrence is thickly populated area. 20. It was further argued that the medical evidence is not in line with the prosecution case. The time of death and post-mortem examination was not given in post-mortem report. The same was recorded on the second day of post-mortem by relying on memory which is highly unsafe. No reason whatsoever was advanced by Dr. Fiaz Hussain Shah P.W.9 for writing the post-mortem report with delay. The possibility of manipulation in connivance with police and complainant party,
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therefore, cannot be ruled out. The number and description of injuries given in the post-mortem belies the prosecution version. The garments of deceased, blood-stained pellet (P.5) and post- mortem report was handed over to police after two days of the postmortem examination, i,e, on 22-12-1998. The blood-stained pellet (P.5) was neither sent to serologist nor sent to Fire-arm Expert to ascertain its calibre. 21. The recovery of shot gun P.4, it was argued was also doubtful. Despite availability of independent witnesses, none from public was associated. Mushtaq Shah P.W.3 and Zulfiqar P.W.10 contradicted each other on material points. The empty shell P.3 though taken into possession by Investigating Officer on 20-12-1998 was not sent to Fire-arms Expert for safe custody till alleged recovery of shot gun P.4 on 11-1-1999. Both empty shell and shot gun were received by the Fire-arms Expert on 16-1-1999. It was not known as to in whose custody the empty shell P.3 was kept from 20- 12-1998 till 16-1-1999 and where and in whose custody the D.B. Shot gun was kept since 11-1-1999 to 16-1-1999. It was also argued that the land bearing Khasra No,1418 where the alleged occurrence took place and where allegedly the drain was dug by Muhammad Rafique P.W.6 is owned and possessed by appellant and his son Babar and deceased with the help of Muhammad Rafique P.W.6 wanted to take forcible possession of the said land. Since they were doing mischief to the property of the appellant and his son, therefore, in order to save his property, he acted in self- defence. 22. It was also argued that the investigation of the case was not conducted honestly. On the same day and time house of the appellant and his brothers were burnt, although a case vide F.I.R. No,884 at the report of Zulfiqar P.W.10 was registered but time of the occurrence was wrongly given by P.W.10. 23. It was also argued that P.Ws.6, 7 and 8 in their statements have deposed that altercation took place between the deceased and the appellant, the factum of which they could not understand. What transpired between accused and deceased immediately before the occurrence was not known to the said P.Ws. 24. On the other hand Syed Shabbir Hussain Shah, Advocate, the learned counsel representing the complainant argued that Exh.D.W.1/1 to Exh.D.W.1/4 at page 108 show that it was in possession of Ahle-Islam. Exhs.D.W.1/2 and 1/3 Jamabandis for the years 1985-86 and 1989-90 show that the property in dispute was in possession of Ahle-Islam. Appellant or his son Babar never remained in physical possession of the property in dispute. The prosecution has properly proved its case beyond any shadow of doubt. All the P.Ws. Are consistent and their veracity could not be shattered though they were subjected to lengthy cross-examination. Regarding the recovery/discovery of weapon of offence, it was argued that the drain from where the crime weapon was recovered was just adjacent to prohibited area where common public has no excess. The medical evidence, recovery of blood-stained earth, empty shell and tooth of the deceased, from the place of occurrence fully support the case of prosecution. It was prayed that the appeal be dismissed and the conviction and sentence be maintained. 25. We have heard the learned counsel for the parties and perused the record. 26. The case of prosecution is based on following:--(1) Ocular evidence furnished by- (i) Muhammad Rafique (P.W.6) complainant, (ii) Arif Ali (P.W.7), (iii) Abdur Rashid (P.W.8) (2)(i) recoveries from the spot in the shape of blood-stained earth, (ii) broken teeth of the deceased, (iii) empty shell of .12 bore D.B. Shot-gun, recovery of pellet extracted from the dead body of deceased during post-mortem examination, (iv) recovery/discovery of D.B. Shot-gun at the pointation of accused,
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(v) result of Fire-arms Expert Exh.P.Z./1 and (3) Medico-legal report Exh.P.W.9/1. 27. Muhammad Rafique (P.W.6) who is also complainant in the case stated that being contractor of M.C., he was assigned the work of digging the drain for filthy water of Makki Masjid. It was about 2 p.m. And he was busy in digging the drain through labourers alongwith P.W.7, Zahoorur Rehman Ex- Member of M.C. Abbottabad came to the spot. In the meanwhile appellant Muhammad Yousaf also came to the spot, started some altercation with deceased, the factum of which he could not understand and thereafter accused went towards his house, after some time he came out alongwith D.B. Shot-gun and fired two shots one after the other at the deceased, as a result of which the deceased was hit on his abdomen as well as near his mouth, sustained injuries and fell on the ground. He was shifted in injured condition to the hospital where he lodged report Exh.P.A./1 in the shape of Murasila. Arif Ali P.W.7 and Abdur Rashid P.W.8 fully supported the version of complainant. No material contradiction could be brought on record by the defence though they were subjected to lengthy cross-examination. They are consistent on major aspect of the case. All the abovementioned P.Ws. Deposed that they had seen the occurrence with their own eyes. 28. The argument of the learned counsel for the appellant that the P.Ws. Are relatives of deceased and they had some grudge to falsely involve the accused has no force. Muhammad Rafique, (P.W.6), Arif Ali (P.W.7) and Abdur Rashid (P.W.8) are independent persons. The relationship of Muhammad Rafique with the deceased has not been brought on record. Even if it is presumed for the sake of argument that he was related to deceased, then mere relationship is not sufficient to discard his testimony. It has not been brought on record that he had any motive to falsely implicate the…
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