Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: AYUB And 2 Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khalid Paul Khawaja, Khizar Hayat Title: AYUB And 2 Others vs THE STATE Case No.: Criminal Appeal No.496 of 1987 and Murder Reference No.141 of 1988 Date of Judgment:1991-08-13 Reported As: 1991 P Cr. L J 1535 Result: Appeal dismissed
JUDGMENT
JUDGMENT KHALID PAUL KHAWAJA, J.--- Mehmood alias Moodi (28), Ayub (30) and Amanullah (19) all real brothers, were tried by the learned Additional Sessions Judge, Faisalabad under sections 302, 307/34, P.P.C. for having in furtherance of their common intention murdered Imtiaz deceased (25) and attempted at the lives of Liaqat Hussain, Arshad Mehmood and Jahangir. On 21-6-1987 they were convicted under sections 302/34, 324/34 (on three counts) and 326/34 (on two counts), P.P.C. and were sentenced as follows:-- (i)Mehmood alias Moodi. Under section 302/34, P.P.C.death and a fine of Rs. 5,000 or in default to undergo simple imprisonment for one year. Additionally, under section 544-A, Cr.P.C. he was ordered to pay a sum' of Rs.10,000 as compensation to the legal heirs of Imtiaz deceased or in default to suffer simple imprisonment for 6 months. (ii)Ayub and Amanullah. Under section 302/34, P.P.C.life imprisonment for the murder of Imtiaz deceased and a fine of Rs.5,000 each or in default to undergo simple imprisonment for one year each. Under section 544- A, Cr.P.C. they were ordered to pay a sum of Rs.10,000 each as compensation to the legal heirs of Imtiaz deceased or in default to undergo simple imprisonment for 6 months. (iii)All the three appellants. Under section 324/34, P.P.C3 years' R.I. for having caused injuries to Jahangir injured P.W.
---
## Page 2
(iv) All the three appellants. Under section 326/34, P.P.C:10 years' R.I. each and a fine of Rs.5,000 each or in default to undergo simple imprisonment for one year for having caused grievous hurt to Jahangir injured. Under section 544-A, Cr.P.C. they were ordered to pay Rs.5,000 each to Jahangir injured P.W. by way of compensation or in default to undergo 6 months' simple imprisonment. (v) All the three appellants. Under section 324/34, P.P.C.3 years' R.I. and a fine of Rs.5,000 each or in default to suffer simple imprisonment for one year for causing injury to Liaquat P.W. They were all ordered to pay Rs.5,000 each to the injured P.W. by way of compensation under section 544-A, Cr.P.C. or in default to undergo simple imprisonment for 6 months. (vi)All the three appellants. Under section 326/34, P.P.C.10 years' R.I. each and a fine of Rs.5,000 each or in default to undergo simple imprisonmentfor one year for causing grievous injury to Arshad Mehmood P.W. Under section 544-A, Cr.P.C. they were ordered to pay Rs.5,000 each to Arshad Mehmood injured P.W. as compensation or in default to undergo simple imprisonment for 6 months. (vii)All the three appellants. Under section 324/34 P.P.C.3 years' R.I. each and a fine of Rs.5,000 each or in default to undergo simple imprisonment for one year for causing simple injuries to Arshad Mehmood P.W. 2. All the sentences of imprisonment were ordered to run concurrently and the appellants were granted the benefit under the provisions of section 382-B, Cr.P.C. 3. The learned trial Court has referred the case to this Court under section 374, Cr.P.C. (Murder Reference No.141 of 1988) for confirmation of death sentence awarded to Mehmood alias Moodi appellant. 4. Mehmood alias Moodi, Ayub and Amanullah appellants have appealed (Criminal Appeal No.496 of 1987) against their convictions and sentences. 5. Liaquat Hussain complainant has lodged a Revision Petition (No.587 of 1989) for the enhancement of the sentence of fine imposed on Mehmood alias Moodi appellant and also for enhancement of sentences of Ayub and Amanullah from life imprisonment to death. 6. By this judgment we propose to dispose of all the above matters. 7. The occurrence took place on 27-9-1985 at 5 p.m. in the area of Cloak No.226/G.B. Tehsil Samundari District Faisalabad, in front of the Baithak of Liaquat Hussain (P.W.6), which was at a distance of 16 miles from Police Station Samundari. Formal F.I.R. Exh. P.B. was recorded by Muhammad Ashraf, Moharrar Head Constable (P.W.3) at Police Station Samundari on the same day at 8-30 p.m. on the statement of Exh. P.N. of Liaquat Hussain P.W., hereinafter referred to as the complainant, which Inspector/S.H.O. Javed Ali (P.W.9) had recorded at 8-15 p.m. in the Tehsil Headquarter Hospital Samundari. 8. The prosecution case as set up in the F.I.R. in brief, is that about 8/10 days before the occurrence Mehmood appellant was challaned by the Police for possessing illicit fire-arm. The said appellant suspected that Liaquat Hussain complainant had provided secret information to the police in this regard. Mehmood appellant in the presence of Nazir son of Muhammad Ali (not produced) had expressed his grievance against the complainant and had declared that he would teach him a lesson. On the day of occurrence at about 5 p.m. Liaquat Hussain P.W., his two brothers Arshad Mehmood and Imtiaz Hussain alongwith Jahangir were standing in the Chowk in front of their Baithak when Ayub appellant armed with .12 bore carbine, Mehmood alias Moodi and Amanullah appellants armed with Chhuris came there raising Lalkaras that they would teach the complainant party a lesson for spying on them. Mehmood appellant inflicted a Chhuri blow in the abdomen of the complainant as a result of which the latter fell down. He inflicted another Chhuri blow, which
---
## Page 3
landed on the left side of the chest of Imtiaz deceased who also fell down after receiving the injury. Ayub appellant fired a shot from his carbine, which hit Arshad Mehmood P.W. on his left palm who also fell down. He was also given a Chhuri blow on the back of his head by Amanullah appellant. The latter then inflicted successive wows on the front and back of the left elbow flank and back of Jahangir (not produced). On the alarm raised by the injured, Ali Haider P.W. was attracted to the place of occurrence. All the three appellants then ran towards the house of Malik Naseem. The complainant alongwith Haider P.W. chased them but Mehmood appellant pulled out a revolver from his Dub and fired a shot. He threatened to kill the said P.Ws. if they tried to go near them. Thereafter the appellants fled away. Muhammad Ayub uncle of the complainant, who in the meanwhile had reached the place of occurrence removed the injured to the Civil Hospital, Samundari where Imtiaz deceased succumbed to his injuries. 9. On the arrival of the hospital, Dr. Ghulam Rasool (P.W.4) the then S.M.O., Tehsil Headquarter Hospital, Samundari sent Ruqqa Exh. P.F. to the S.H.O. Police Station Samundari informing him about the arrival of the aforesaid injured persons. On the receipt of said Ruqqa P.W.9, Javed Ali, Inspector/S.H.O. reached the hospital and recorded the statement Exh. P.N. of Liaquat Hussain (P.W.6). The said statement was sent to the police station where formal F.I.R., as pointed out above, was drawn up. 10. Javed Ali, S.H.O. then prepared injury statement Exh. P.U. and inquest report Exh. P.V. of Imtiaz Hussain deceased and collected the medico-legal reports of the injured. On the following day i.e. on 22-9-1985 he inspected the spot and arrested Ayub, Mehmood and Amanuallah appellants. On the same day while in custody Ayub appellant led to the recovery of carbine P.6 from his residential house, which was taken into possession vide memo. Exh. P.S. attested by Ali Haider P.W.8 and Nazir (not produced). On the same day Mehmood accused also led to the recovery of blood stained Chhuri P.5 from his residential house, which was taken into possession and sealed into parcel vide memo. Exh.P.R., attested by the above witnesses. On 6-10-1985, while in custody, Amanullah appellant led to the recovery of blood-stained Chhuri P.7 from his residential house, which was taken into possession vide memo. Exh. P.T. 11. After the completion of investigation all the three appellants were challaned. 12. On 21-9-1985 at 6-20 p.m. Dr. Ghulam Rasool (P.W.4) the then S.M.O., Tehsil Headquarter Hospital Samundari medically examined Jahangir son of Abdul Sattar aged 18 years, caste Rajput, resident of Chak No.226/G.B., Police Station Samundari and found the following injuries on his person:--- (1)An incised wound 3/4 c.m. x 1/2 c.m. x muscle deep upon front of left fore-arm in its upper portion. (2)An incised wound 2-1/2 c.m. x 1 c.m. x muscle deep upon back of left forearm in its upper portion. (3)A stab wound measuring 1/4 c.m. x 1/4 c.m. x 4 c.m. upon the front and outerside of left half of chest in its lower portion about 6 c.m. front costal margin. (4)A stab wound 2 c.m. x 1 c.m. x chest cavity deep upon back of left side of chest close to mid-line. Bleeding was then continued from injury No.4. ' Injury No.4 was dangerous. Injury No.3 was kept under observation and X-ray was advised, while rest of injuries were simple. All injuries were inflicted with sharp-edged weapon within three hours' duration. Exh. P.C. is correct carbon copy of his medico-legal report. Exh. P.C./1 is the sketch showing the seat of injuries. On the basis of X-Ray film Exh.P.K./1 and report Exh.P.K./2, injury No.3 was declared simple. ' On the same day at 6-45 p.m. he also examined Liaquat (complainant) son of Muhammad Zaman, aged about 35 years caste Rajput, resident of Chak No.226-G.B. Police Station Samundari District Faisalabad and found the following injury on his person:-- ' A stab wound 3-1/2 c.m. x 3/4 c.m. x abdominal cavity deep on front of right half of abdomen in its upper portion about 5 c.m. below right costal margin.
---
## Page 4
' The injury was kept under observation and X-ray was advised. It was inflicted with sharp-edged weapon within three hours' duration. Exh. P.D. is his medico-legal report while Exh.P.D/1 is the sketch showing the seat of injury. Later on in view of the X-ray report Exh.P.L./2 the injury was declared simple. ' On the same day at 7-00 p.m., the doctor also examined Arshad Mehmood son of Muhammad Zaman, aged 25 years, caste Rajput, resident of Chak No.226/G.B. Police Station Samundari and found the following injuries upon his person:-- (1)An incised wound 4 c.m. x 1 c.m. x bone deep upon back of left half of scalp. (2)A fire-arm wound 4 c.m. x 4 c.m. x bone deep upon front of left hand. It was surrounded by multiple fire-arm wound 1/6 c.m. x 1/6 c.m. x muscle deep in an area of 6 c.m. x 5 c.m. upon the front of left hand under line base of 4th metacarpal bone was dislocated. ' Injury No.2 was grievous while injury No.l was kept under observation. Injury No.2 was inflicted with fire-arm while injury No.1 was caused with sharp---edged weapon within three hours. Exh.P.E. is the medico-legal report while Exh.P.E./1 is the sketch showing the site of injuries. Injury No.1 was later on declared simple in view of the X-ray report Exh.P.M./3. ' On 22-9-1985 at 7 a.m. P.W.4 conducted post-mortem examination on the dead body of Imtiaz Ahmad son of Muhammad Zaman caste Rajput resident of Chak No.226/G.B. Police Station Samundari aged about 25/26 years. The dead body was of a well-built young man. Face was pale, eyes and mouth were closed, rigor mortis was present in all the four limbs and post-mortem staining was also present on the back. Only one injury was found upon the dead body and that was a stab wound 2 c.m. x 3/4 c.m. chest cavity deep upon front of left half of chest about 6 c.m. from mid-line and 6 c.m. below left nipple in the 5th intercostals space. Left 6th rib was partially cut. ' On opening the thorax, right and left lungs were found healthy and pale. Pericardium was bearing cut upon front. Pericardial cavity was full of blood. Left ventricle of the heart was bearing perforated wound upon front and back I-1/4 c.m. x 1/3 c.m. x cavity deep. ' All other organs were found healthy. The injury was grievous as well as fatal. It was inflicted with sharp-edged long weapon and was ante-mortem. ' Death, in the opinion of the doctor, was due to haemorrhage (internal as well as external), shock and injury to heart caused by the above injury, which was sufficient in ordinary course of nature to cause death. The probable time between injury and death was within.30 to 45 minutes and between death and post-mortem was about 12 hours and 50 minutes. Exh. P.J. is the correct carbon copy of his post- mortem report while Exh.P.J/1 it the skiagram showing the location of injury. 13. The appellants were formally charged under sections 302/34 and 307/34 P.P.C. but they pleaded not guilty. 14. In support of their case the prosecution examined 9 P.Ws. including the 3 eye-witnesses, namely, Liaquat Hussain, Arshad Mehmood and Ali Haider. 15. In their statements under section 342, Cr.P.C. Ayub and Amanullah appellants denied having participated in the commission of the crime. They maintained that they were not present at the time and place of occurrence. Mehmood alias Moodi appellant, however, in reply to the question as to why the present case had been lodged against him and why the P.Ws. had deposed against him, made the following statement:-- "I have been falsely implicated and the witnesses have falsely deposed against me. The complainant party had a motive to assault me, and they launched an aggression against me. I took shelter into the house of Malik Naseem. The complainant party, one after the other, entered that house and assaulted me. They assaulted me and caused injuries to myself, and they themselves received injuries in self-defence and also at the hands of the sons of Malik Naseem
---
## Page 5
aforesaid, who tried to save me from the hands of the complainant party. When I appeared before the police, I showed my injuries to the Investigating Officer who intentionally did not prepare an injury statement and did not get me medically examined. After the expiry of my physical remand, I was sent to the judicial lock-up and thus my injuries could not be examined by any Medical Officer." 16. None of the appellants opted to make a statement on oath under section 340, Cr.P.C. They also did not produce any evidence in defence. 17. After considering the material available on record the learned trial Court disbelieved the prosecution evidence about motive and recoveries but relying on the ocular and medical evidence convicted and sentenced the appellants as stated above. 18. We have heard the parties' counsel and with their assistance have gone through the record very minutely. 19. Assailing the judgment it is contended by the learned counsel for the appellants that non- examination of Jahangir injured, who was cited as an eye--witness adversely affects the credibility of the prosecution story. He further contended that from the evidence on record it is not proved that the occurrence had taken place in the Chowk near the Baithak of the complainant party and thus this was sufficient to knock the bottom out of the prosecution case. He maintained that the presence of Ali Haider P.W. at the time and place of occurrence is not established and that the - ocular evidence is so discrepant and contradictory that it is not safe to place any reliance on it. He submitted that the non-proof of motive is indicative of the fact that the very basis of the prosecution case is false and thus the whole story narrated by the P.Ws. deserves to be discarded. Lastly, the learned counsel urged that the defence version, which is reasonably probable and rings true, should be acted upon to record the acquittal of the appellants. 20. Defending the impugned judgment the learned counsel for the State has controverted the above contentions and maintained that the prosecution had succeeded in establishing the guilt of the appellants beyond reasonable doubt. 21. In the F.I.R. Jahangir son of Raja Abdul Sattar was named as one of the eye-witnesses and it was claimed that he had sustained injuries at the hands of the appellants during the incident in which Imtiaz deceased lost his life. He was not examined during the trial and was given up by the learned Deputy District Attorney as having been won over by the opposite party. In doing so the Prosecutor was instructed by the complainant's learned counsel. The given up P.W. was not examined in defence nor did the appellants make any request to call him as a Court witness. In these circumstances when the prosecution were convinced that Jahangir the given up P.W. would not support their case there was no obligation on them to call him and there would not be any justification. whatsoever to raise a presumption adverse to them. It is now a settled principle of law that where the defence fails to examine the given up P.W. in defence or call him as a Court witness no adverse inference can be drawn against the prosecution. Non-production of Jahangir, therefore, does not mean that the whole prosecution case stood falsified particularly when the defence had failed to bring on record any material to prove that in withholding the witness the prosecution had any oblique motive. We, therefore, are not persuaded to agree with the learned counsel for the appellants. The contention, consequently, is repelled. 22. Now, we have to examine, if the prosecution had succeeded in establishing that the occurrence took place in the Chowk near the Baithak of the complainant party. In this regard the statements of Liaquat Hussain, Arshad Mahmood and Ali Haider P.Ws. are relevant who have consistently supported the prosecution version. Besides, Ali Haider P.W. has deposed that blood-stained earth was also collected from there and sealed into a parcel vide memo. Exh. P.Q. of which he was a marginal witness. The parcel containing the said blood-stained earth was sent to the Chemical Examiner who vide report Exh. P.X. confirmed that the same was stained with blood. The Serologist
---
## Page 6
in his report Exh. P.Y. opined that the blood was of human origin. There, therefore, was sufficient evidence on record to show that the occurrence had taken place in the Chowk close to the house of the complainant party. Learned counsel for the appellants has argued that the Baithak of the house of the complainant is not shown in the site plan Exh.P.A., that from the said site plan it is also not proved that the said house is situated near the Chowk and that the nor--examination of Muhammad Iqbal Constable, who took the parcel containing blood-stained earth to the Office of the Chemical Examiner, means that there was no proof of the fact that the earth collected from the Chowk and sent to the Chemical Examiner for analysis was actually stained with blood and this would raise a strong presumption that no such occurrence had taken place in the said Chowk. The arguments advanced by the learned counsel have no substance. Perusal of the site plan Exh. PA. shows that the deceased and the injured P.Ws. had sustained injuries at points Nos.1 and 2 which were located in a Chowk. The house of Liaquat Hussain complainant is shown towards North- Western side of the said Chowk, at a distance of 80 feet from the said points. It is true that the draftsman has not specifically shown the Baithak of the complainant party in the said house but this omission is of no consequence because Baithak is a part of a house and he was not supposed to give a detailed construction plan of the said house showing each and every room of it. We are, therefore, satisfied that the site plan does show that the occurrence had taken place in the Chowk near the house of the complainant party. 23. Recovery memo. Exh. P.Q. shows that the Investigating Officer had taken into possession blood- stained earth from the place of occurrence during the spot inspection on 22-9-1985. The memo. is attested by Ali Haider P.W. who is also an eye-witness of the occurrence. Collection of the blood- stained earth and its making into a sealed parcel is proved from the statement of the said Ali Haider. According to the prosecution case the sealed parcel containing the blood-stained earth was delivered by the Investigating Officer to Muhammad Ashraf, Moharrir Head Constable (P.W.3) for safe custody who subsequently handed over the said parcel to Muhammad Iqbal Constable No.1019 for delivery into the office of the Chemical Examiner ' at Lahore. Muhammad Iqbal has not been examined. Learned counsel for the appellants is of the view that the non-examination of the said constable would raise a presumption that no blood-stained earth was ever recovered from the place of occurrence and it would also show that the occurrence had not taken place in the Chowk, as alleged by the prosecution. The contention is not tenable. The proof of the fact that the occurrence had taken place in the Chowk depends upon the evidence of the eye-witnesses. Collection of blood-stained earth from the place of occurrence was only a confirmatory circumstance and cannot be considered to be the only evidence to determine place of occurrence. Even otherwise, the production of Muhammad Iqbal Constable was not absolutely necessary. The report of the Chemical Examiner Exh. P.X. shows that the parcel containing blood- stained earth was received in his Office through Muhammad Iqbal F.C. No.1019 in connection with F.I.R. No.349 dated 21-9-1985 under sections 302, 307, 34, P.P.C. of Police Station Samundari, District Faisalabad. It is observed in the said report that the said parcel was sealed and all the seals were intact. In view of this data it is established beyond doubt that the blood stained earth, which the Chemical Examiner had analysed and about which he had made a report was the blood-stained earth, which laved Ali Investigating Officer had taken into possession and sealed into a parcel from the place of occurrence (Chowk) vide memo. Exh. P.Q. attested by Ali Haider. It is immaterial as to who had delivered the said parcel in the office of the Chemical Examiner and as to why he has not been examined. In holding this view we rely on Khan Baig's case reported as PLD 1956 FC 62. 24. The next submission of the learned counsel for the appellants is that the testimony of Ali Haider P.W. is liable to be discarded as he was not present at the time and place of occurrence and had not witnessed the commission of crime. Learned counsel maintained that in his statement as P.W.8, Ali Haider has stated that his house was situated near the Chowk where the occurrence took place
---
## Page 7
but his house has not been shown in the site plan Exh. P.A., which was indicative of the fact that his assertion was not true. The argument is too far-fetched to be seriously considered. Admittedly, his house is not shown in the site plan Exh. PA. The draftsman has highlighted a few important points in the said plan to identify the place where the members of the complainant party had received injuries. He has also shown the houses surrounding the said place. He was not supposed to encompass the whole of the locality in his site plan and that is why the house of Ali Haider P.W. has not been shown. The witness was available to the defence for cross-examination but no suggestion was put to him to the effect that he did not reside in the said locality near the place of occurrence. All the injured P.Ws. who have appeared before the trial Court in support of the prosecution case have stated that Ali Haider P.W. was present near the place of occurrence and had witnessed the commission of crime. His name also appears in the F.I.R. which was recorded without unnecessary delay. It is mentioned in the F.I.R. and the eye-witnesses have also deposed before the trial Court that immediately after the occurrence Liaquat Hussain complainant and Ali Haider P.W. had given a chase to the appellants which establishes his presence at the time and place of occurrence. We, therefore, have no doubt in our minds that Ali Haider P.W. was present at the relevant time and had seen the occurrence. 25. Next is the learned counsel's criticism of the ocular evidence. Pointing out a few discrepancies in the statements of the P.Ws. he urged this Court to disbelieve and exclude from consideration the testimony of the eye-witnesses. The discrepancies, which he pointed out, are:-- (a)Liaquat Hussain complainant (P.W.6) stated that while standing in the Chowk, they i.e. his brothers and Jahangir (given up P.W.) were talking about water-supply while Arshad Mahmood (P.W.7) stated that they were not discussing anything in particular. (b)According to Liaquat Hussain and Arshad Mahmood P.Ws. they were standing when the appellants initiated the attack on them but Ali Haider P.W. has stated that they were sitting when the occurrence started. (c)Arshad Mahmood P.W.7 has stated that the occurrence had started 5/7 minutes after their arrival in the Chowk but according to Ali Haider P.W. the occurrence had commenced after 15 minutes of the arrival of the P.Ws. in the Chowk. (d)The eye-witnesses have stated that Ali Haider P.W. was standing…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.