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Petitioner: YOUSUF and others VS Respondent: THE STATE and others
Court Name: Sindh High Court Judge(s): Sarmad Jalal Osmany, Muhammad Mujeebullah Siddiqui Title: YOUSUF and others vs THE STATE and others Case No.:Criminal Appeal No,30 of 2003, Confirmation. Case No,1 of 2003,Criminal
JUDGMENT
Reported As: PLD 2005 Karachi 449 Result: Order accordingly Judgment JUDGMENT MUHAMMAD MUJEEBULLAH SIDDIQUI J.---By this single consolidated judgment, we intend to decide the Criminal Appeal No,30 of 2003 preferred by Appellants Yousuf and Islamuddin Qureshi, against their conviction and sentence recorded by the learned Ilird Additional Sessions Judge, Karachi (South) in Case No,25 of 2000, F.I.R No,223/99 Police Station Garden, Reference Application No,1 of 2003 submitted by the learned trial Court and Criminal Acquittal Appeals No,86 and 87 of 2003, preferred by complainant Muhammad Saeed, assailing the acquittal of respondents Saleem alias Tidda and Islamuddin alias Kaloo. 2. The facts giving rise to these appeals/Confirmation Reference, are that on 15th December, 1999, one Ghulam Muhammad brought two persons at Medico-Legal Section, Civil Hospital, Karachi. They were Muhammad Saleem son of Abdul Hameed, aged about 35 years, resident of Ghulam Hussain Qasim Road, Dawoodia Compound Garden, Karachi and Muhammad Saeed son of Abdul Hameed, aged about 47 years. Dr. Ahmed Ali Memon, Medico-Legal Officer, examined Muhammad. Saleem and found him dead. The Medico Legal Officer informed Police Control about his receiving the dead body and one injured and then shifted the dead body to mortuary. He issued Medico Legal Certificate Exh.29-A, certifying Muhammad Saleem as dead. He then examined injured P.W. Muhammad Saeed, who was conscious. He found one lacerated wound 3 c.m. x 0.2 c.m. x skin deep over the mid-forehead. Bone was not exposed. He advised for X-Ray of the skull and referred to CMO for treatment. The injury was opined to have been caused by hard and blunt substance. Subsequently, after receiving Radiological Report, no fracture was found and therefore, the injury was declared as ShajjahI-Khafifah. The intimation given by Dr. Ahmed Ali Memon was recorded in Daily Diary of Police Station Garden, Karachi vide Entry No,61 at 7.00 p.m. The entry reads as follows:-- "At this time Dr. Ahmed Ali Memon, informed that two persons (1) Saleem son of Abdul Hameed aged 35 years (2) Saeed son of Abdul Hameed aged 47 years, residents of Ghulam Hussain Haji Qasim Road,
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Dawoodia compound, were received having injuries alleged to have been casued in personal quarrel by firing and Lathi blows. Saleem son of Abdul Hameed was dead while Muhammad Saeed son of Abdul Hameed was injured. They were brought by Ghulam Rasool at Civil Hospital. Somebody from Police Station be sent for investigation. I, Sub-Inspector Zulifqar Ali Shah, am proceeding." 3. P.W.S.-I Zulfiqar Ali Shah, then proceeded to hospital and with the permission of doctor, recorded statement of injured Saeed under section 154, Cr.P.C. The statement reads as follows:-- "Muhammad Saeed son of Abdul Hameed resident of Ghulam Hussain Qasim Road, Dawoodia Compound, House No,14/G, states that he resides on the above address and is a Suzuki Driver. Today on 15-12-1999 after Maghrib Prayer, he and his younger brother who has a garage at Ghulam Hussain Qasim Road were sitting there. At that time his nephew (brother's son) Muhammad Waseem came there and told to him that he was going to his house on Motorcycle. Islamuddin Qureshi and his sons had blocked the road by keeping Sofas on the road. He asked them to remove the Sofas so that he can go ahead towards his house on which Saleem Tidda and his brother Yousuf abused and slapped him. On receiving this information I alone went to Saleem Tidda and complained for slapping and abusing my nephew. He caught hold of me from collar of my shirt and in the meanwhile Yousuf and his father Islamuddin, who were standing nearby also came there and started abusing me. On hearing commotion my brother Saleem also came there. Islamuddin instigated his sons to bring the pistol and kill us and that we should not be spared. On this Yousuf and Saleem Tidda went upstairs their house through a wooden ladder and brought T.T. Pistol. They immediately started firing at we two brothers with the intention to kill us. I, asked Islamuddin as to why they were doing so, on which Islamuddin gave a Danda blow on my head causing injury on my forehead. Yousuf fired at the head of my brother Saleem and Saleem Tidda fired at me but I escaped injury. My brother Saleem died at the spot. Yousuf and Saleem Tidda then went away along with their father waiving their weapons. This incident was witnessed by Muhammad MoM son of Muhammad Ghaffar and Abdul Jabbar son of Haji Jan Muhammad. I have brought dead body of my brother to hospital with the assistance of Mohallah people. On the intimation of Doctor, Police Sobedar has arrived and recorded my statement. My complaint is against Islamuddin Qureshi and his sons Saleem Tidda and Yousuf, for committing murder of my brother Saleem by firing and causing injuries." 4. Sub-Inspector Syed Zulfiqar Ali sent the statement of the complainant to P.S. And himself proceeded to collect the Post-mortem Examination Report of deceased. The statement was received at P.S. By P.W. Muhammad Abdullah, Sub-Inspector, who incorporated the same as F.I.R in the 154, Cr.P.C. Book. The F.I.R. Was sent to P.W. Naseer Ahmed, S.H.O. Police Station Garden for investigation. On receiving the copy of F.I.R he proceeded to Civil Hospital and met S.-I.P., Zulfiqar All Shah, who had prepared the report under section 174, Cr.P.C. And had conducted the proceedings. He collected Memo of the Examination of the dead-body and report under section 174, Cr.P.C., and then proceeded to the place of incident. From the place of incident which was situated in street near Dawoodia Compound, Ghulam Hussain Qasim Road, he secured 7 empty bullets and one projectile from Saeed and Abdul Majeed. He prepared Mashirnama and then prepared the sketch of the place of incident. He then came back to Police Station and recorded statements of P.Ws. P.C. Yahya, S.I., Abdullah, S.I., Zulfiqar, H.C., Abrar, Abdul Majeed, Aslam Kashmiri and Hassan Muhammad. On 16-12-1999, he received information that accused Islamuddin was available on Garden Chowk. On receiving this information, he proceeded to the pointed place and arrested accused Islamuddin. Nothing was recovered from his possession. On 18-12-1999, accused Islamuddin, led the police party to the place of incident. The Investigating Officer recovered one Danda from the place of incident on his pointation. He could not arrest accused Saleem and Yousuf and after completing the investigation, submitted challan showing accused Saleem and Yousuf as absconders. Subsequently, on 8-3-2000, accused Saleem alias Tidda son of Islamuddin, was arrested by the then S.H.O., Inspector Naeem Khan and accused Yousuf surrendered before the Court on 21-2-2000, who was already declared absconder after issuance of proclamations under sections 87 & 88 Cr.P.C. The trial Court then framed charge against the accused persons as follows:-- "CHARGE
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I, Farooq Ali Channa, III-Additional Sessions Judge Karachi South, do hereby charge you: (1) Islamuddin alias Kaloo son of Karimuddin Qureshi (2) Yousuf son of Islamuddin (3) Saleem alias Tidda son of Islamuddin as follows:-- That on 15-12-1999 at 1818 hours, at Dawoodia Sompound Ghulam Qasim Road, Karachi, in furtherance of the common intention of you, did commit Qatl-i-Amd, by causing fire shot injuries to Saleem son of Abdul Hameed, with the intention of causing his death or with the knowledge that such injuries are so imminently dangerous that they in all probability will cause death, and in consequence of which injuries the said Saleem son of Abdul Hameed died at the spot on 15-12-1999. And you have thereby committed an offence punishable under section 302 read with section 34, P.P.C, and within the cognizance of this Court. And I hereby direct that you accused be tried by this Court on the said charge. I further charge you that on the above said date, time and place in furtherance of the common intention of you caused Danda blow to Muhammad Saeed son of Abdul Hameed and thereby caused injuries to the said Muhammad Saeed on his head, with such intention or knowledge, and under such circumstances, that if by that act you had caused Qatl, you would have been guilty of Qatl-i-Amd, and you have thereby committed the offence of attempt to commit Qatl-i-Amd, punishable under section 324 P.P.C. And within the cognizance of this Court. I further charge you that on the above said date, time and place, caused Danda blow to Muhammad Saeed son of Abdul Hameed on his head, and thereby you have committed the offence of Shajjah-i- Khafifa punishable under section 337-A(i), P.P.C., read with section 34, P.P.0 and within the cognizance of this Court." 5. All the three accused persons pleaded not guilty to the charge. 6. In support of the charge, the prosecution examined P.W.1, Muhammad Saeed (Complainant). P.W.2, Abdul Jabbar, P.W.3, Muhammad Shoaib, P.W. 4 Muhammad Waseem, PW.5, Muhammad Moin, P.W.6, Muhammad Aslam Kashmiri, P.W.7, Hassan Muhammad, P.W.8, Zulfiqar Hussain Shah, P.W.9, Dr. Shahid Shaikh, P.W.10, Muhammad Abdullah, P.W.11 Naseer Ahmed, P.W.12, Zafar Iqbal (wrongly written in the R & P as P.W.13) P.W.13, Muhammad Naeem Khan (wrongly written in the R&P as P.W.12 and P.W.14, Dr. Ahmed Ali Memon (wrongly written in the R & P as P.W.13). 7. Accused Islamuddin, Yousuf and aleem alias Tidda, were examined under section 342, Cr.P.C. They examined themselves on oath as well, as defence witnesses under section 340(2), Cr.P.C. The accused persons examined D.Ws, Ms. Anjum Ara, Gullsher and Mehmood Ali in defence. 8. The learned trial Court framed the following points for determination:-- (1) Whether on or about the 15th day of December, 1999 deceased Saleem son of Abdul Hameed died unnatural death on account of fire-shot injuries, as alleged by the prosecution? (2) Whether on 15-12-1999 complainant Muhammad Saeed son of Abdul. Hameed received Danda injury on his forehead, as alleged by the prosecution? (3) Whether accused Yousuf and Saleem alias Tidda with their common intention at the instigation of accused Islamuddin caused the murder (Qatl-i-Amd) of Saleem son of Abdul Hameed, as alleged by the prosecution? (4) Whether accused Islamuddin caused Danda injury to complainant on his forehead, as alleged by the prosecution? (5) What offence, if any, the accused have committed?" (9) The learned trial Court gave findings as follows:- Point No, 1 Proved. Point No,2 Proved. Point No,3 As under. Point No,4 Proved.
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Point No,5 1)Accused Yousuf is guilty of causing Qatl-i-Amd of deceased Saleem, 2) Accused Islamuddin alias Kaloo is guilty of causing Danda below to Complainant Saeed and 3) accused Saleem alias Tidda is acquitted. 10. The learned trial Court held that the prosecution was able to establish the charge of Qatl-i-Amd against accused Yousuf son of Islamuddin, but no evidence in respect of Tazkiyah-al-Shuhood of the prosecution witnesses was brought on record as such there was lack of evidence required under section 304, P.P.C. It was held that the punishment of Qisas cannot be awarded. However, from the material brought on record accused Yousuf son of Islamuddin was found guilty of Qtal-i-Amd of deceased Saleem, punishable by way of Ta'zir. The learned trial Court further observed that the act of causing death of deceased Saleem by accused Yousuf amounted to Ghunda-Gardi/FasadFil-Arz and hence he was not entitled to any leniency. The learned trial Court, therefore, convicted accused Yousuf under section 302(b), P.P.0 by way of Tazir and sentenced him to death. He was directed to be hanged by neck till his death. Accused Islamuddin Qureshi alias Kaloo was convicted for the offence punishable under section 337(F)(1), P.P.0 only and was sentenced to the imprisonment already undergone and to pay fine of Rs,5000 as Daman. The amount if recovered was directed to be paid to the complainant. Accused Saleem alias Tidda son of Islamuddin was acquitted of the charge by giving him benefit of doubt. 11. Being aggrieved with the convictions and sentences awarded to accused Yousuf and Islamuddin Qureshi, they have preferred appeal assailing their convictions and sentences. The complainant Muhammad Saeed being dissatisfied with the acquittal of accused Saleem has preferred acquittal appeal praying that he may be convicted of the offences punishable under sections 302, 324, 337-A(1) read with section 34, P.P.C. The complainant feeling dissatisfied with the conviction of accused Islamuddin Qureshi alias Kaloo for the offence punishable under section 337(F)(1), P.P.C, only has preferred another acquittal appeal praying that he may be convicted for the offences punishable under sections 324, 337-A(1)/34, P.P.0 and the sentence awarded under section 337(F)(1), P.P.0 may be enhanced. 12. We have heard Mr. M.A. Qazi, learned Advocate for the appellants/accused Yousuf and Islamuddin, Mr. Shahadat Awan, learned counsel for the complainant Muhammad Saeed, Mr. Shoukat Hussain Zubedi, learned counsel for accused/respondents Islamuddin and Saleem in Acquittal appeals and Mr. Habib Ahmed, learned A.A.-G for the State. 13. Before we proceed to consider the contentions raised by the learned Advocates for the parties, it would be appropriate to give a resume of the prosecution evidence available on record. 14. P.W. 1 Muhammad Saeed (Complainant) has supported his version contained in the statement under section 154, Cr.P.C, Exh.11-A, with the variation that accused Saleem Tidda and Yousuf brought T.T. Pistols and started firing in the air and ultimately accused Yousuf climbed over the roof of a car and started firing. One fire shot was hit on the head of his brother Saleem. He has stated that his statement was recorded at Civil Hospital and he had shown the place of incident to police from where police recovered 7 empty bullets and one ladder which was stained with blood. He has stated that the Mashirnama of the place of incident and recovery was prepared in his presence. He and Majeed acted as Mashir. He has produced Mashirnama of Wardat and recovery of empties. Exh.11-B. He produced 7 empty bullets also in Court. In cross-examination, he stated that on the other side of. Dawoodia Compound, there are six shops of accused Islamuddin and he resides on the upper floor of the shops. He further stated that his house is situated after one house from the house of accused Islamuddin. He further stated that from the garage of his brother Saleem, the place of incident was not visible. He proceeded on to state that exchange of hot words between him and the accused persons continued for about 5/7 minutes and thereafter the incident took place. During the exchange of hot words 20/25 persons gathered at the place of incident. Within 2 or 3 minutes of the instigation made by the accused Islamuddin, his sons Saleem and Yousuf brought the pistols from their residence. They did not try to run away from the place of incident during that time of 2 or 3 minutes. He further stated that the firing continued for 1 or 2 minutes and the accused persons made 3 or 4 shots in the air and thereafter accused Yousuf fired straight at the deceased Saleem. He has further stated that the persons available
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at the place of incident did not attempt to catch hold of accused persons and no such attempt was made by him. He conceded that the age of accused Islamuddin would be about 70 years. He has denied the suggestion that he cooked up the story and narrated the same in his section 154, Cr.P.C., statement after about 2 or 2-1/2 hours of the incident. He has frankly stated that the empty bullets recovered from the place of incident were not sealed and there is no specific mark available on empty bullets produced in the Court hence he cannot say if the empty bullets were same which were recovered from the place of incident. He has accepted the suggestion that P.W. Muhammad Moin, resides at Mevashah Road, Lyari, which is about 3 K.M away from the place of incident and P.W. Abdul Jabbar resides in Shah Nawaz Compound, which is at a distance of 50 paces from the place of incident. He denied the suggestion that accused Saleem was the active worker of M.Q.M. And that his uncle Nazir was also an active member of M.Q.M. He further denied suggestion that about two months prior to the incident his uncle sustained fire shot injuries at the hands of workers of M.Q.M. He further denied that due to that incident his uncle Nazir shifted and started residing with him. He further denied that due to differences between his uncle Nazir and M.Q.M. Workers they were threatened by the activists of M.Q.M. Prior to the incident. He has denied the suggestion that there was enmity between his family and family of accused persons over property, prior to the incident. He has denied the suggestion that his brother Saleem was murdered by the workers of M.Q.M. Due to political differences and under the pressure of M.Q.M., he has implicated Islamuddin and his sons. He has conceded that Islamuddin and his sons belong to Muslim League Nawaz Group. He has denied the suggestion that at the time of incident the accused persons were not present. He stated that police had taken away the wooden ladder and Sofa-set to Police Station without preparing any Mashirnama. 15. P.W. 2, Abdul Jabbar, has stated that deceased Saleem was his friend. On the day of incident he came to the motor garage of deceased Saleem after Maghrib prayer. At that time, P.W. Saeed brother of deceased Saleem and other mechanics/workers were present at the garage. In his presence P.W. Waseem son of deceased Saleem, came at the garage and told something to complainant Saeed. Waseem told complainant Saeed that accused Saleem Tidda and Yousuf have slapped him on which Saeed and Waseen went towards Yousuf and Saleem Tidda. Deceased Saleem also went behind them, where quarrel took place between them. He also went towards Saleem and Yousuf following the complainant party. In his presence accused Islamuddin, father of accused Saleem alias Tidda and Yousuf, instigated his sons to kill them, saying he will face the consequences. At the instigation of Islamuddin accused Yousuf went to his house, which was situated on the upper storey through a wooden ladder and brought T.T. Pistol and started firing. Accused Yousuf thereafter jumped over the roof of one car and fired straightway at deceased Saleem which hit him on his forehead. After sustaining the fire shot injury by deceased Saleem, the witness along with the brother of deceased namely Saeed, Rasheed, Naeem and some other Mohallah people took him to hospital where he succumbed to his injuries. He specifically stated that accused Yousuf alone made fire shots. He has produced Mashirnama of the dead-body Exh.12-A and Inquest Report Exh.12-B, which were prepared in his presence by police at the hospital. He identified accused Yousuf in Court to be the person who committed murder of deceased Saleem. In respect of accused Islamuddin and Saleem alias Tidda, he stated that they also participated in quarrel. He further stated that male family members of complainant side and accused side participated in the quarrel. In cross-examination he stated that deceased Saleem was his friend for 18/19 years. He is a boiler mechanic by profession and had a shop at Garden West at a distance of about 200 paces away from the place of incident. The incident took place in the month of Ramzan, therefore, on that day he had closed his factory at 3-30 p.m., and gone to his house. After Aftari, he offered Maghrib prayer and thereafter, came to the garage of deceased Saleem. His residence was at a distance of 30 to 35 paces from the garage of deceased Saleem, situated in Shahnawaz Building, Shahar Bano Galli. In cross-examination he has conceded that in his police statement he disclosed his residential address as Rafiq Compound Islampura, which is situated at a distance of one kilometer from the garage of deceased Saleem. He has confirmed in cross- examination that at the instigation of Islamuddin accused Yousuf only went towards his house and
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brought. Pistol. He stated that accused Saleem had not gone to his house at the instigation of Islamuddin. He further stated that at the place of incident he had seen accused Islamuddin empty- handed and that accused Saleem was not making fire shots at the time of incident. He has stated that in his police statement he had stated that accused Islamuddin and accused Saleem were empty- handed. He has further stated that he has not implicated any person in his police statement for causing Danda blow and had not stated that any person sustained the Danda blow injury. He has denied that any quarrel took place between deceased Saleem and workers of M.Q.M. He denied the suggestion that workers of M.Q.M. Committed murder of deceased Saleem due to enmity. He further stated that police had taken away the wooden ladder from the place of incident. 16. P.W.3, Muhammad Shoaib, has stated that at the time of incident he was in his Tailoring shop near Jillani Masjid Garden. He has stated that after Aftari, he heard some noise out of his shop on which he went towards the place of incident and saw complainant Saeed, his brother Saleem and accused persons namely Islamuddin, Yousuf and Saleem, exchanging harsh words. After he reached near them, accused Islamuddin instigated Salem and Yousuf to take out the weapons and kill them. At the instigation of Islamuddin, accused Yousuf went to his house through wooden ladder which was already available in the street and after few minutes he came down making fires. The accused Yousuf thereafter jumped over the roof of a car of white colour and fired straight way at deceased Saleem which hit on his forehead. The deceased fell down and thereafter, all the three accused persons ran away in the street. Deceased Saleem was then brought to hospital where he died. Police arrived at the place of incident and recorded his statement. He identified all the three accused persons in Court. In his cross-examination he stated that his house is situated at the distance of about 200 paces from his shop. He further stated that he used to take Aftari at his shop as he was working alone at his shop. According to him the distance between the shop and place of occurrence would be 25 paces. When he reached near the place of incident he saw 15/20 persons available there. 4 or 5 fire shots were made by accused Yousuf. He further stated that no other accused fired in his presence. He has denied suggestion that workers of M.Q.M. Caused murder of deceased Saleem due to political differences. He further denied the suggestion that, at the time of incident he was in his house and not at the place of incident. 17. P.W.4, Muhammad Waseem, has stated that deceased Saleem was his father. Complainant Saeed, is his uncle. Accused Islamuddin, Saleem and Yousuf are known to him as they reside in the same Mohallah. On the day of incident at about Maghrib time he was going to his house on Motorcycle. When he reached in the street, he found it blocked with Sofa Set. He requested the accused persons to give him some space on which they got annoyed and accused Yousuf slapped him while accused Saleem Tidda, started abusing him, on which he went to the garage of his father and narrated the facts to his uncle. His uncle complainant Muhammad Saeed came with him towards the place of incident and asked from the accused persons about the incident on which accused Yousuf caught hold of his uncle by his neck. Accused Islamuddin, gave a Danda blow on the forehead of his uncle Muhammad Saeed. In the meanwhile, his father Saleem also reached there, on which accused Islamuddin instigated his sons to bring weapons and kill them saying that he will face the consequences. At the instigation of Islamuddin, accused Yousuf went to his house through wooden ladder and then came down making fire. Accused Yousuf, thereafter jumped over the roof of a car and fired at his deceased father Saleem, which hit on his forehead. After sustaining injury his father deceased Saleem fell down. He proceeded on to state that accused Saleem also made ineffective fire at his uncle Saeed. After sustaining fire-arm injury to his father the accused persons ran away firing in the air and they toolfi his father to hospital where he died. He identified all the three accused persons in Court. In cross-examination he stated that distance between the garage of his father and place of incident would be 20/25 paces. According to him the place of incident is not visible from the garage of his father as it is situated in nearby street. According to him the door of his house is at the…
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