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Petitioner: YOUSAF MASIH alias GAPI and anothers VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad Shamim Khan, Sardar Tariq Masood Title: YOUSAF MASIH alias GAPI and anothers vs THE STATE Case No.:<p>Criminal Appeals Nos.511, 529, Criminal Revision No.368 and Criminal
JUDGMENT
Reported As: 2012 YLR 1976 Result: Order accordingly Judgment JUDGMENT ' SARDAR MUHAMMAD SHAMIM KHAN, J.---This judgment will dispose of Criminal Appeal No.511 of 2006 filed by Yousaf Masih and Abid Masih, appellants against the judgment dated 26-9-2006 passed in case F.I.R. No. 202 dated 28-12-2005, under sections 302, 34, 337-A(ii) & 337-D of P.P.C., Police Station Saddar, Layyah, District Layyah, whereby they were convicted by learned Addl. Sessions Judge, Layyah. Yousaf Masih was convicted under section 302(b) and 34 of P.P.C. And sentenced to death and to pay compensation amounting to Rs.1,00,000 to be paid to the legal heirs of the deceased under section 544-A of Cr.P.C. And in default of payment of compensation, he had to undergo six months S.I. Sentence of death was subject to its confirmation by this Court, whereas Abid Masai was convicted under sections 302(b) and 34 P.P.C. And sentenced to Imprisonment for Life and to pay compensation amounting to Rs.1,00,000 to be paid to the legal heirs of the deceased under section 544-A of Cr.P.C. And in default of payment of compensation, he had to undergo six months' S.I. The appellant was given benefit of section 382-B of Cr.P.C., whereas Sajid Masih, accused was acquitted. 2. Murder Reference No.718 of 2006 for confirmation or otherwise of death sentence of Yousaf Masih, appellant and Criminal Revision No.368 of 2006 for enhancement of sentence of Abid Masih, respondent No.2 from Life Imprisonment to Death, awarded to him by learned Addl. Sessions Judge, Layyah as well as Criminal Appeal No.529 of 2006 filed by the complainant against acquittal of Sajid Maseeh, respondent in the aforementioned case, shall also be disposed of through this judgment.
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3. Precisely the facts of the case are that on 28-12-2005 at about 7-30 p.m. Pitras Inayat, complainant along with his brother Bashir Masih went to cattle shed to tether his cattle. When his brother came out in the street, after tying his cattle, they saw accused Yousaf Masih alias Gapi, armed with CHHURI, Abid Masih armed with hatchet and Sajid Masih armed with SOTA, were present there. Yousaf Masih, accused inflicted CHHURI blows on the person of Bashir Masih, which landed on his head, neck, face and legs. Abid Masih, accused caused injuries on the person of Bashir Masih on his both hands with hatchet. Sajid Masih kept on raising lalkara during the occurrence. Meanwhile, complainant raised hue and cry whereupon P.Ws. Aneel Bashir and Imran Suhail reached at the spot. The accused after seeing the P.Ws. Managed to run away. The complainant took the injured to the hospital in unconscious condition. The police firstly lodged the case under sections 324 and 34, P.P.C. But the injured succumbed to injuries on the next day whereupon section 302 and 34, P.P.C. Were added. 4. The motive behind the occurrence was that Bashir Masih had dispute with Yousaf Masih accused over possession of AHATA. The accused due to this grudge caused murder of Bashir Masih. 5. After completion of investigation, challan was submitted before the learned trial court for trial. Charge against the accused persons was framed to which, they pleaded not guilty and claimed to be tried. ' In order to prove its case, the prosecution examined as many as eleven (11) witnesses. ' P. W.1 Muhammad Ramzan, Patwari Halqa prepared the site plan on the pointation of P.Ws. And on the direction of the- police. ' P. W.2 Khadim Hussain, 79/C deposed that on 6-1-2006 Moharrar/HC handed over him one sealed parcel said to contain blood-stained earth for its onward transmission to the office of Chemical Examiner, Lahore. He further deposed that on 13-1-2006 Moharrar further handed over to him two sealed parcel, one said to contain hatchet and other said to contain CHHURI for its transmission to the office of Chemical Examiner, Lahore. ' P. W.3 Dr. Muhammad Imran Mansoor, Medical Officer, DHQ Hospital, Layyah conducted the autopsy on the dead body of Bashir Masih and found the following injuries on his person:--- (i) A stitched wound 8.5 cm on the right side of face extending from the anterior margin of right mandible to the outer end of right Pina. On exploring the wound parotid gland along with its ducts was cut. (ii) A 'v' shaped stitched wound 8.5 cm each limp on the mid of top caput. On exploration, the wound, skull was cut in pieces. (iii) A stitched wound of 12 cm running along with occipital region of skull. On exploring, wound was bone deep. (iv) A stitched wound of 8.5 cm on the back of skull, 7 cm behind the injury No.2 and was bone exposed. (v) An incised wound of 7.5 cm x 2 cm into all the bones and tendons were cut on the dorsum of right hand. (vi) An incised wound of 5 cm x 2 cm dorsum of middle finger of left hand, prominal phalanx was cut. (vii) An incised wound 9.5 cm x 3 cm on the back lower edge of right costal margin 13 cm right to the vertebral column going deep into thoractic and abdominal cavity. 11th and 12th ribs deep to injury were cut. (viii) A stitched wound of 23 cm in the centre of abdomen and accompanying stitched wound of 10 cm on the left side of this wound. ' In the opinion of the Doctor, cause of death was due to haemorrhage and shock. Injury to the vital organs like brain, right lung, liver and spleen. Probable, duration between injuries and death was about ten hours while between death and post mortem were about nine hours.
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' P. W.4 Mushtaq Ahmad, A.S.-I. Recorded the Rapat No.29 Exh.PF on the complaint Exh.PE prepared by Mazhar Hussain, S.I. He further deposed that on 29-12-2005 at about 3-45 a.m., he received information through telephone that Bashir Masih injured has succumbed to the injuries, upon which he recorded Rapat No.33 Exh.PG and after the receipt of MLC, of injured Bashir Masih, He recorded the formal F.I.R. Exh.PH, then after the death of Bashir Masih, offence was amended under section 302, P.P.C. ' P. W.5 Muhammad Iqbal, 424/HC/Moharrar deposed that on 29-12-2005 I.O. Handed over to him one sealed parcel said to contain blood-stained earth for safe custody. On 6-1-2006 he handed over the same to Khadim Hussain, 79/C for its onwards transmission to the office of Chemical Examiner, Lahore.. On 18-1-2006 10 handed over him two sealed parcels said. To contain bloodstained CHURRI and blood-stained hatchet for their safe custody. On 13-1-2006 he handed over both parcels to Khadim Hussain 79/C for their onwards transmission to the office of Chemical Examiner, Lahore. ' P. W.6 Murad Masih, identified the dead body of Bashir Masih, deceased at the time of its post mortem examination. ' P.W.7 Zafar Ali, 223/C escorted the dead body of Bashir Masih to mortuary for autopsy. ' P. W.8 Pitras Masih, who was complainant of this case, deposed in support of the prosecution version. ' P.W.9 Aneel Bashir also deposed in support of prosecution version. ' P. W.10 Dr. Ghulam Yasin, Student D.A. At Mayu Hospital, Lahore, on 28-12-2005 medically examined Bashir Masih, who was brought before him in injured condition. He found the following injuries on the person of Bashir Masih, injured. (i) An incised wound 6 x 105 cm bone exposed with cut of lower one third of right ear starting from right cheek to Pinnah of right ear. KUO advised X-ray of skull. (ii) An incised wound 10 x 1 cm on back of neck starting from 8 cm away from righter ear deep to muscles. (iii) An incised wound on occipital part of head, bone exposed 9 x 1 cm. KUO advised. X-ray skull AP lateral view. (iv) An incised wound on the head 7 x 1 cm bone expose. Injury was kept under observation and X- ray of skull and lateral view was advised. (v) An incised wound on the head 4 x 1 cm bone was exposed, injury was kept under observation and X-ray of skull AP and lateral view was advised. (vi) A stab wound starting from middle part of epigastrim 3 x 0.5 cm deep cavity towards left of abdomen. Injury was kept under observation. (vii) An incised wound 7 x 3 cm, bone was exposed and with fracture of fore-finger at joining point of palm and fingers. Injury was kept under observation. X-ray of right hand was advised. (viii)An incised wound 6 x 1 cm, bone was exposed with fracture of little finger on dorsum of middle finger. ' Injury was kept under observation and X-ray of left hand was advised. ' P.W.11 Mazhar Hussain S.I. Conducted investigation of the case and deposed about the steps of investigation taken by him in this case. 6. The Deputy District Attorney gave up Aurangzeb, P.W. Being unnecessary, tendered in evidence the report of Chemical Examiner regarding earth Exh.PT, report of Chemical Examiner regarding CHHURI and Hatchet Exh.PH, report of Serologist regarding earth Exh.PV and report of Serologist regarding CHHURI and Hatchet Exh.P.W. And closed the prosecution case. 7. After recording the prosecution evidence, the appellants were examined under section 342 of Cr.P.C. Wherein they stated that they did not want to appear and depose on oath as required under
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section 340(2), of Cr.P.C. In reply to the question that why this case is against you and why the P. Ws. Have deposed against you, the appellant Yousaf Masih replied as under:- "On the night. Of alleged occurrence, I was sleeping in the cattle shed situated in my house. At about 11-00 p.m. (night), I saw Bashir Masih, deceased committing Zina with my daughter-in-law (Bahu) namely Nazia in the courtyard of my house. On seeing them in that condition, I lost my temperament and under the grave 'and sudden provocation, 1 took KAPA lying in the cattle shed and caused injuries to Bashir Masih, deceased, who on receiving injuries made his good escape from my house. After preparing this fictitious story, this false case has been made against me. I am innocent. P. Ws. Are closely related with Bashir Masih, deceased, due to this fact, they have deposed against me." 8. While replying to this question, Abid Masih, appellant replied as under:-- "On the night of alleged occurrence, at about 11-00 pm my father Yousaf Masih co-accused caused injuries to Bashir Masih, deceased under the grave and sudden provocation in our house when Bashir Masih was committing Zina with my wife Mst. Nazia. Due to this fact, I and all male members of my family were falsely involved in this case. I am innocent. All the P. Ws. Are closely related, therefore, they have deposed against me." 9. After conclusion of the trial, above mentioned conviction and sentence was passed against the appellants, while co-accused Sajid Masih was acquitted by learned trial court. 10. The appellants have challenged the validity of judgment dated 26-9-2006 passed by the learned trial court through this appeal, whereas the complainant has challenged the validity of aforementioned judgment to the extent of acquittal of Sajid Masih. 11. Learned counsel for the appellants contends that motive part of prosecution story regarding the dispute of Ahata was of trivial nature and was set up against the appellants in order to falsely involve them, which was not proved by the prosecution during investigation; that occular account was furnished by Pitras Inayat, P.W.8, who is real brother of Bashir Masih, deceased and Aneel Bashir, P.W.9, who is real son of Bashir Masih, deceased and no independent witness was produced by the prosecution to prove its case; that Pitras Inayat, P.W.8, complainant of this case was a chance witness; that occurrence took place at night time so serious question of identification was involved in this case; that recovery of CHHURI from the possession of Yousaf Masih, appellant and recovery of hatchet from the possession of Abid Masih, appellant, was also witnessed by Pitras Masih, P.W.8 and Aneel Bashir, P.W.9 and no independent witness from the vicinity was associated in order to witness the recovery proceedings, therefore, the aforementioned recoveries would not be corroborative pieces of evidence against the appellants; that prosecution has failed to prove its case against the appellants beyond reasonable doubt. Learned counsel for the appellants contended that in fact on 28-12-2005 at about 11-00 pm (night) Yousaf Masih, appellant saw, her daughter-in-law Mst. Nazia in a .Compromising position with Bashir Masih, deceased in the courtyard of his house. On seeing them in that condition he last his temperament and under the grave and sudden provocation he took KAPA lying in the cattle shed and caused injuries on the person of Bashir Masih, deceased, who on receiving the injuries made good his escape from his house and prosecution has roped the appellants on account of false and fabricated story therefore, It is prayed that case of Yousaf Masih, appellant comes within the ambit of section 302(c), P.P.C. Whereas Abid Masih, appellant is entitled to acquittal as he was not present at the time of occurrence. 12. On the other hand learned D.P.-G. And learned counsel for complainant have contended that occurrence was promptly reported to the police which excludes all chances of fabrications and consultations; that although Pitras Inayat, P.W.8/ complainant of this case is real brother of the deceased whereas another eye-witness Aneel Bashir, P.W.9, the son of the dedeased Bashir Masih but they had no enmity or to falsely implicate the appellant in this case; that Pitras Inayat has
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explained the reason of his presence at the time of occurrence, therefore, he cannot be stated to be a chance witness; that there is specific allegation against both appellants that they inflicted injuries on the person of the deceased on the vital parts of his body and caused his death; that the ocular account furnished by prosecution finds corroboration from the medical evidence; that prosecution has also proved motive part of the prosecution story during evidence; that recoveries of weapon of offence from the appellants is also corroborative pieces of evidence against the appellants; that defense plea taken by Yousaf Masih, appellant is highly improbable and unbelievable and is contrary to facts and record, which is not believable; that prosecution has proved its case beyond reasonable doubt, therefore, it is prayed that this appeal is liable to be dismissed. 13. We have heard the arguments advanced, by the learned counsel for the parties and perused the record with care. 14. It has been noticed that F.I.R. In the instant case, was lodged with reasonable promptitude. This occurrence took place on 28-12-2005 at about 7-30 p.m. Whereas Pitras Inayat, complainant got his statement Exh.PE recorded at the hospital before the police at about 8-30 p.m., after one hour of the occurrence. Such promptly lodged F.I.R. Excludes the chances of deliberations and consultations. The names of accused/ appellants, the manner of occurrence, seat of injuries, the weapon used during the occurrence and P.Ws. Were mentioned by the complainant in the F.I.R. Formal F.I.R. Exh.PH was chalked out at police station at about 10-5 p.m. 15. Motive behind this occurrence as alleged by the complainant in the F.I.R. Exh.PH was the dispute of Ahata between the deceased and the appellants. In order to prove motive prosecution produced Pitras Inayat, P.W.8 and Aneel Bashir, P.W.9. According to the evidence of Pitras Inayat, P.W.8, Bashir Masih, deceased was in possession of Ahata for a period of last 2/3 years prior to the occurrence, whereas appellants wanted to get the same Ahata, which was owned by Siraj Masih. Aneel Bashir, P.W.9 regarding motive, clearly stated that on 26-12-2005 at about Asar Walla, he along with Imran Suhail, P.W. Came out of their house and saw that his father Bashir Masih and accused Yousaf Masih were quarrelling with each other on account of dispute of Ahata. His father Bashir Masih abused Yousaf Masih, accused. He and Imran Sohail, P.W. Intervened and got the same separated. Yousaf Masih, while leaving the spot threatened Bashir Masih, deceased that he will take revenge for the same and thereafter in the evening this occurrence took place. Although during cross-examination both these P.Ws. Admitted that there was no litigation pending between the deceased and Yousaf Masih, appellant regarding the dispute of Ahata yet perusal of evidence of Mazhar Hussain, S.-I./P.W.9, who conducted investigation of this case, reveals that accused Yousaf Masih, appellant intended to get Ahata, which was bone of contention between the parties and he investigated the motive part of prosecution story at the spot. Both these P.Ws. Were even not suggested during cross-examination that false motive was set up by the prosecution, in order to falsely implicate them, therefore, in our view the prosecution has proved the motive part of B prosecution story against the appellants. 16. This occurrence was witnessed by Pitras Inayat, complainant/P.W.8 and Aneel Basheer, P.W.9. Pitras Inayat, P.W.8 deposed that he was resident of Chak No.120/TDA and he along with his nephew Imran Suhail (given up P.W.) visited the house 'of Bashir Masih in order to see him on the eve of Christmas. On 28-12-2005 at about 7-30 p.m. He along with his brother Bashir Masih went inside the cattle shed in order to tether the cattle. When they came out in the street from cattle shed, Yousaf Masih, armed with CHHURI, Abid Masih, armed with hatchet and Siraj Masih, armed with SOTA came over here. He raised hue and cry which attracted Aneel Bashir and Imran Suhail, witnesses, at the spot. In his presence and presence of Aneel Bashir and Imran Suhail, Yousaf Masih, appellant inflicted CHHURI blow on the person of his brother Bashir Masih which landed on his face, neck and abdomen. Abid Masih inflicted hatchet blows which landed on the head and hand of his brother
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Bashir Masih, deceased. After sustaining injuries Bashir Masih, deceased fell on the ground. Sajid Masih raised Lalkara that if anybody would come nearer, he would face dire consequences. On account of fear, he and other P.Ws. Did not intervene and this occurrence was witnessed by the complainant and the P.Ws. In the light of bulb. Bashir Masih was immediately shifted to D.H.Q. Hospital, Layyah, where he succumbed to his injuries on the following day of occurrence i.e. 29-12- 2005. 17. The other eye-witness of the occurrence namely Aneel Bashir, P.W.9 deposed on the same lines as Pitras Inayat, P.W.8 deposed and corroborated him on all material aspects of the case. Both these eyewitnesses were cross-examined by the defense at length but their evidence could not be shaken by the defence in any manner. These eye-witnesses have given a detailed account of events, leading to the murder of the deceased and are unanimous on all material points. There were neither any material contradictions nor any material improvement in evidence of both these eyewitnesses. Although this occurrence took place at night time but prosecution witnesses identified the appellants in the light of electric bulb. Perusal of site plan Exh.PA/1 prepared by Patwari reveals that availability of electric bulb was shown at point No.5. The electric bulb was not taken into possession by the police during investigation but it would not adversely affect the case of prosecution. Although Pitras Inayat, P.W.8 is real brother of Bashir Masih, deceased and Aneel Bashir, P.W.9 is real son of Bashir Masih deceased yet their relationship with the deceased is not a valid ground for excluding their testimony from consideration as both these P.Ws. Are not inimical towards appellants and both these eye-witnesses had no reason to falsely implicate the appellants in this case. Aneel Bashir, P.W.9 is real son of the deceased, who is natural witness of the occurrence, whereas. Pitras Inayat, P.W.8 has also well-explained reason of his presence at the time of occurrence as he had come to the house of his real brother in order to celebrate Christmas. No enmity or ill will of the deceased with the appellants has even been suggested by the appellants except aforementioned motive and it has been clearly stated by the P.Ws. During cross- examination that prior to the aforementioned motive there was no enmity of the deceased with the appellants. 18. Medical evidence which was furnished by Dr. Muhammad. Imran Manzoor, P.W.3 is in conformity with eyewitness account and has provided necessary corroboration thereto. According to the prosecution version, appellants inflicted injuries on neck, face, abdomen, head and hands of the deceased with CHHURI and hatchet, respectively, which fact is fully borne out from the statement made by Dr. Muhammad Imran Manzoor, P.W.3, who observed eight sharp edged weapon injuries on the person of Bashir Masih, deceased at the time of his post mortem examination and these injuries were on chest, head, finger and abdomen etc. All these injuries were caused by sharp edged weapon and were ante-mortem in nature. In the opinion of the doctor cause of death was due to haemorrhage and shock. These injuries damaged the brain, lung, liver and spleen.. The probable duration between injuries and death was about 10 hours whereas between death and post mortem examination was about 9 hours which fact also corroborates with the time of occurrence as narrated by the witnesses. 19. Another incriminating piece of evidence against the appellants was recoveries of weapon of offence. On 8-1-2006 Yousaf Masih led to the recovery of blood-stained CHHURI P-4 from his residential room, which was taken into possession by the police vide recovery memo Exh.PK after making it into sealed parcel, witnessed by Pitras Inayat, complainant and Aneel Bashir. On the same day Abid Masih also got recovered blood- stained hatchet from his residential room, which was taken into possession by the police vide recovery memo. Exh.PL, after making it into a sealed parcel. Perusal of report of Chemical Examiner Exh.PU reveals that aforementioned hatchet and CHHURI recovered from the possession of the appellants were stained with blood whereas report of Serologist Exh.PW confirms that aforementioned hatchet and CHHURI recovered from the
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possession of the appellants were stained with human blood, therefore, these recoveries from the possession of the appellants are corroborative pieces of evidence against them. 20. Yousaf Masih, appellant has taken a specific defense plea in this case and according to his version, on 28-12-2005 he was sleeping in the cattle shed in his house. At about 11-00 p.m. He saw Bashir Masih, deceased committing Zina with his daughter-in-law namely Mst. Nazia in the courtyard of his house. On seeing them in that condition, he lost his temperament and under the grave and sudden provocation he took KAPA lying in the cattle shed and caused injuries to Bashir Masih, deceased, who on receipt of injuries made good his escape from his house. The plea taken by Yousaf Masih, appellant is highly improbable and unbelievable. It runs counter to human nature that the Bashir Masih, deceased was committing Zina with Mst. Nazia in the courtyard of house of Yousaf Masih, appellant in the chilled night of December at about 11-00 p.m. For such purpose deceased and Mst. Nazia could have chosen a better venue as according to the stance taken by the appellant, Mst. Nazia was a consenting party. The appellant did not give any injury on the person of Mst. Nazia at that time. Mst. Nazia was neither produced before the police during investigation nor she was produced in defence before the learned trial Court in order to prove the plea taken by Yousaf Masih, appellant, in spite of the fact that she was his daughter-in-law. The blood-stained earth was not taken from the courtyard of the house of Yousaf Masih, appellant where the deceased was allegedly injured by the appellant, according to his version. The prosecution produced Aneel Bashir P.W. In whose presence the bloodstained earth was taken by the police from street in front of cattle shed of the deceased Bashir Masih. No suggestion to this P.W. Was given by the defence that blood-stained earth was not taken from aforementioned spot. This plea is also contrary to the record as occurrence took place at 7-30 p.m., and deceased was immediately shifted to DHQ hospital, Layyah, where he was medically examined by Dr.. Ghulam Yasin, P.W.10 at 9-15 p.m. Bashir Masih deceased was medically examined by the doctor after the occurrence at 9-15 p.m., in such circumstances how he was committing Zina with Mst. Nazia in the courtyard of house of appellant at 11-00 p.m. While taking the defence plea Yousaf Masih, appellant did not take into consideration the time of registration of F.I.R. And time of Medico-legal Examination of Bashir Masih, deceased in an injured condition, which is clearly indicative of the fact that this plea…
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