Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUKHTIAR KHAN VS Respondent: THE STATE
1988 M L D 191(2)
1988 M L D 191(2)
[Karachi]
Before Ajmal Mian and Allahdino G. Memon, JJ
MUKHTIAR KHAN‑‑Appellant
versus
THE STATE‑‑Respondent
Criminal Appeal No. 110 and Confirmation Case No. 6 of 1987, decided on 3rd April, 1988.
(a) Penal Code (XLV of 1860) S. 302‑‑Evidence of complainant and eye‑witnesses clearly proved that accused was responsible for causing death of deceased‑‑Medical evidence as well as recovery of blood‑stained Churi at pointation of accused supporting case of prosecution‑‑Evidence produced by prosecution straightforward, natural and reliable‑‑No reason existing for complainant party to have left actual culprit and involve accused falsely‑‑Prosecution proved its case beyond reasonable doubt‑ Conviction of accused upheld.
(b) Penal Code (XLV of 1860)‑‑ ‑‑‑Ss. 302 & 304, Part 1‑‑No previous enmity existing between parties and accused had no motive to kill deceased‑‑Sudden fight took place after altercation in which both parties received injuries‑‑Prosecution failed to explain injuries caused to accused and his two sons‑‑Murder of deceased was not premeditated‑‑Conviction altered from S. 302, Penal Code, to S. 304, Part I, Penal Code, and sentence of death reduced to rigorous imprisonment for seven years.
Iqtidar Ali Hashmi for Appelllant.
Rasheed A. Akhund for the State.
Date of hearing: 19th January, 1988.
JUDGMENT ALLAHDINO G. MEMON, J.‑‑The appellant was charged and tried alongwith his sons Naseem Khan and Qadeem Khan under sections 302, 307 read with section 34, P.P.C. before the learned IInd Additional Sessions Judge, (East) Karachi who has convicted him under section 302, and has awarded him capital sentence subject to confirmation by this Court, while the Co‑accused were acquitted vide Judgment dated 12‑7‑1987.
The brief facts of the prosecution case are that one Lai Wali lodged a report at P.S. Ferozeabad on 30‑11‑1979 which reads as under:‑‑
"I reside at the above address alongwith Akhtar Shah, Rehman Gul, Nawab Sher and Khan Wali. One Mukhtiar Khan son of Mehrab Din also resides near my house alongwith his two sons namely Naseem Khan and Oadeem Khan. Today on 30‑11‑1979 at about 2‑00 p.m. while Akhtar Shah son of Nazar Gul was coming to his house, he saw a bundle of sticks near the house of Mukhtiar Khan on which he told Naseem Khan and Qadeem Khan sons of Mukhtiar Khan that you have blocked the way of my vehicle and as such the sticks be removed from there. On this the mother of Naseem Khan and Oadeem Khan came out from her house and started abusing, on which Naseem Khan and Qadeem Khan were excited and they were going to attack Akhtar Shah but Mohallah people Fazal Anwar son of Habeeb and my brother Khan Wali and others intervened and prevailed upon Naseem Khan and Qadeem Khan not to fight with Akhtar Shah. At about 5‑30 p.m. while Gulab Sher, Nawab Sher and Rehman Gul were going to a hotel for taking tea, Mukhtiar Khan was standing in front of his house, on seeing the above three persons, he called Gulab Sher and enquired about what had happened at noon and started abusing Gulab Sher. He called his sons Naseem Khan and Qadeem Khan and told them that he should not go alive. Thereafter he took out Churi and attacked Gulab Sher stabbing on his chest on left side, on which Gulab Sher fell down. Naseem Khan attacked Rehman Gul with Churi while Qadeem Khan gave knife blows to Nawab Sher and caused them blows on their persons and they fell down. I, my brother Khan Wali and Akhtar Shah tried to intervene and to save them on which Naseem Khan attacked Akhtar Shah and Qadeem Shah attacked Khan Wali and caused them injuries. Mukhtiar again inflicted injury to Gulab Sher while he had fallen on ground and caused injuries on his buttocks. This occurrence was witnessed by Fazal Store Wala, Shabbir and others. I took injured namely Nawab Sher and Gulab Sher to Hospital in a vagon of Nawab Sher as they were seriously injured. On the way Gulab Sher son of Gulab Din died. I complain against accused Mukhtiar Khan son of Mehrab and Naseem Khan and Qadeem Khan sons of Mukhtiar Khan."
On 30‑11‑1979 the S.H.O. received information from Dr. Abdul Qayoom at about 8‑00 p.m. that injured Nawab Sher has been admitted in the Hospital and one Gulab Sher had died. Copy of this report has been produced as Exh. 17. On receipt of the above information S.H.O. Ghulam Samadani went to Hospital and recorded statement of Lai Wali Khan which has been produced as Exh. 2‑A. He prepared Mashirnama of dead body which has been produced as Exh. 12‑A. He prepared inquest report of the dead body and the same has been produced as Exh. 12/8. He recorded statements of injured Akhtar Shah and others in Jinnah Hospital. By that time he received copy of F.1.R. from P.S. and the same has been produced as Exh. 19. From the Hospital he proceeded to the scene of offence. Police party comprising of Sub‑Inspector Muhammad Hussain and A.S.I. Akhtar were already present at the Wardat. At the scene of offence he recorded statements of P.Ws. Shabbir and others. At about 12‑30 p.m. he inspected the place of Wardat and prepared such Mashirnama in the presence of Mashirs at the pointation of complainant. He had also prepared sketch of Wardat which has been produced as Exh. 19. He arrested accused Mukhtiar Khan, Naseem Khan and Qadeem Khan on 1‑12‑1979 and prepared such Mashirnama in presence of Mashirs Wazir Akbar and Muhammad Akbar which has been produced as Exh. 9‑A. He searched the house of the accused but nothing .incriminating was secured. He sent the clothes of the accused to the Chemical Examiner for report. During the interrogation accused Mukhtiar Khan informed him that he had kept Churi used in the commission of offence and the same was recovered on his pointation under Mashirnama which has been produced as Exh.7‑A. Accused Naseem Khan led the police and Mashir to his house and produced a Churi which was secured under Mashirnama, and the same has been produced as Exh.8‑A. He had also secured unlicensed Churi through A.S.I. Muhammad Hussain from accused Qadeem Khan, and a separate case under Arms Ordinance was registered against him. Mashirnama has been produced as Exh.10‑A which was prepared by Sub‑Inspector Muhammad Hussain. The weapons and the clothes were sent to the Chemical Analyser for report and the report was produced as Exh.20. Thereafter he got the statement of P.Ws. Shabbir, Akhtar Shah and others recorded under section 164, Cr.P.C. from the Area Magistrate. After completing the investigation he submitted challan before the concerned Magistrate.
A formal charge was framed against the accused to which they pleaded not guilty.
At the trial prosecution examined complainant Lai Wali P.W.1, he has produced his statement recorded at the Hospital as Exh.2‑A Rehman Gul P.W.2, an eye‑witness, Nawab Sher P.W.3, an eye‑witness, Akhtar Shah, P.W.4 an eye witness, Khan Wali P.W.5, Mashir Sultan Khan Exh.6, he has produced Mashirnama of recovery of Churi from accused Mukhtiar Khan' as Exh.7‑A, Mashir Akhtar Khan P.W.7, he has produced Mashirnama of recovery of dagger produced by accused Naseem Khan as Exh.8‑A. Mashir Wazir Khan P.Ws, he produced Mashirnama of arrest and recovery of blood‑stained clothes from the accused as Exh.9‑A. Mashir Zarwali P.W.9, he has produced the Mashirnama of recovery of knife produced by accused Qadeem Khan as Exh.10‑A, Shabbar Khan, an eye‑witness, he did not support the prosecution and was therefore declared postile, Mashir Wali Shah P.W.11, he acted as Mashir of dead .body and inquest report and has produced the same as Exhs.12‑A and 12‑B, Fazal Azeem P.W:12 an eye‑witness, he has produced his 164 Cr.P.C. statement as Exh.13‑A. However, he did not support the prosecution and was declared hostile, Dr. Capt. Abdul Majeed, who had examined deceased Gulab Sher on 30‑11‑1979. According to him, he had found three incised injuries on the person of deceased Gulab Sher and has produced the post‑mortem notes as Exh.14‑A. He had also examined injured accused Naseem Khan, Mukhtiar Khan, and Oadeem Khan. According to him he found one lacerated wound and one contusion on the person of accused Naseem Khan, four contusion on the person of injured Qadeem Khan and one lacerated wound on the person of Mukhtiar Khan. The injuries on the person of the three accused were simple in nature. He has produced the medical certificates as Exhs.14‑B to 14‑D, Pervaiz Ahmed Inspector C.W.1, he had received summons for. service on Dr. Qayoom Malik, and Lal Ahmed Shah but they could not be served. S.H.O. Ghulam Samadani P.W.14 he has produced the copy of F.I.R. which was incorporated in 154, Cr.P.C. book as Exh.18, sketch of Wardat as Exh.19 and Chemical Report as Exh.20. Dr. Ali Jan P.W.15 he was . examined at the place of Dr. Abdul Qayoom, he has produced the medical certificates regarding injured Rehman Gul as Exh.22, inured Nawab Sher as Exh.23 and Gulab Sher as Exh.24, Muhammad Hussain S.I.P. P.W.16, he had reoovered knife from accused Qadeem Khan and prepared such Mashirnama, which has been produced as Exh.10‑A.
After close of prosecution case the statements of accused were recorded in which they denied the allegations. However, they did not lead any evidence in their defence.
Complainant Lal Wali Khan P.W.1 has fully supported the contents of his F.I.R. He has produced his statement which was subsequently incorporated in 154, Cr.P.C. book as Exh.2‑A. According to him many people had collected to intervene. In cross‑examination he has deposed that P.Ws. Nawab Sher, Rehman Gul and Akhtar Shah are related to him. Deceased Gulab Sher was also related .to him. Akhtar Shah had asked accused Naseem Khan to remove the wooden logs from the way. He has denied a suggestion that incident at 2‑00 p.m.. did not take place in his presence but the facts of this incident were narrated to him by Akhtar Shah. At 5‑30 p.m. also he was at Fazal Store. He was the only person available at the store at that time. Akhtar Shah and his brother were attracted on commotion later on. Fazal Azeem the Storekeeper was present at the shop at that time. No other relation of Fa7al was at his shop. Gulab Sher, Nawab Sher, Rehman Gul told Fazal Azeem Store‑Keeper that they were going to take tea. He had stated in his statement under section 164, Cr.P.C. that at about 5‑30 p.m. he was standing at that store when above named three P.Ws. had told Fazal Azeem that they are going to take tea. There is only wall intervening his house and Fazal's Store. He remained in his house from 2‑00 to 5‑30 p.m. During that ‑period none of the P.Ws. came to his house. They all reside in the same house: At ‑ 5‑30 p.m. deceased Gulab Sher and P.W. Nawab Sher and Rehman Gul were coming to their house after their duties. All the three persons were taxi drivers and used to ply taxies. They had come in their own taxies. He had stated so before the police. After causing injuries to all the injured, accused ran away. He denied a suggestion that accused had caused injuries to Gulab Sher after he had fallen on the ground after receipt of injury on chest. Many people had collected, but he could not give their number. Those people were of their Mohallah and he knew many of them. Sobedar Habibullah, Izat Khan and Wazir Khan had collected besides prosecution witnesses. He had not given the names of any of the above persons except P.Ws. Police had come at the Wardat at about 12‑00 or 12‑30 mid night. He was not present at that time but was called later on. Akhtar Shah and Khan Wali were present in the house when the police arrived but Rehman Gul and Nawab Sher were in the hospital. Akhtar Shah and Khan Wali were not called by the police from the house. None from the Mohallah was present when police arrived. Police did not record his statement when they came at the Wardat. Police did not record statement of any P.W. in his presence. Police did not come to Wardat or to his house. He was also not called. at police station. Police did not record his any other statement except statement Exh.2‑A in the hospital. There is no previous dispute with accused except the altercation which took place at 2‑00 p.m. In the incident of 2‑00 p.m. Nawab Sher, Gulab Sher and Reliman Gul were not present. They had not come back at the house till 2‑00 p.m. They returned to house at 4‑30 p.m. He and these three persons were present in the house from 4 30 to 5‑30 p.m. He had not narrated the facts of early incident to Nawab Sher, Gulab Sher and Rehman Gul and no one else had also narrated the facts to them. He denied a suggestion that he was not present at the Fazal Store at 2‑00 p.m. and 5‑30 p.m. and he had deposed falsely against the accused due to his relationship with deceased Gulab Sher.
The ocular account of incident is further supported by P.Ws. Rehman Gul ,(injured), Nawab Sher (injured); Akhtar Shah and Khan Wali.
Evidence of Dr. Capt. Abdul Majeed P.W.13 shows that on 30‑11‑1979 he had carried on the post‑mortem on the dead body of deceased Gulab Sher, and he found the following injuries on his person.
(1) Incised wound left over clavical 1/3" x 1/4" skin deep.
(2) Incised wound front of left chest 1‑1/2" x 1/2" x cavity deep.
(3) Incised wound left buttock 3" x 1/2" x muscle deep.
On internal examination he found the following damage:‑‑
(1) Pericardium showed incised wound 1" x 1/2" x through and through.
(2) Heart showed incised wound on the right vertical 1" x 1/2" x chamber deep.
(3) Abdomen was empty.
(4) Stomach contained little digested food mucus pale.
(5) Small intestine contained little digested food.
Rest of the organs were normal. 'According to him injury No. 2 with its corresponding internal injury was sufficient to cause death m ordinary course of nature. Death was due to shock and haemorrhage as a result of stab, homicide stab on the body with sharp‑edged weapon of assault like Churi, dagger, knife or any other similar weapon of assault. He has produced the post‑mortem report as Exh.14‑A.
He had examined accused Naseem Khan, (injured) and found the following injuries on his person:‑‑
(1) Lacerated wound left tample 2" x skin deep.
(2) Contusion left shoulder 1" x 1‑1/2".
Injuries were fresh and simple in nature, and appeared to have caused by a blunt weapon. Certificate has been produced as Exh.14‑B.
Accused Qadeem Khan had the following injuries on his person:‑
(1) Contusion right shoulder 1/4" x 1/4".
(2) Contusion left tample 1/4" x 1/4".
(3) Contusion back of right 3" x 1/2".
(4) Contusion back of left chest 3" .
All the injuries were fresh and simple in nature, and appeared to have been caused by hard and blunt weapon. The certificate has been produced as Exh.14‑C.
He had found the following injuries on the person of accused Mukhtiar:‑‑
(1) Lacerated wound left temple 3‑1/2" x 1" x skin deep.
The injury was fresh and simple in nature, and appears to have been caused by hard and blunt weapon. He has produced the certificate as Exh.14‑D.
The appellant Mukhtiar led the police and Mashirs to a place near his house near Railway Line and produced one Churi by removing a heavy stone. The Churi was blood‑stained such Mashirnama was prepared by police in presence of Mashirs Rustom Khan and Sultan Khan. Mashir Sultan Khan P.W.6 has supported the prosecution on this point and has produced the Mas‑rnanza of recovery as Exh.7‑A.
The learned trial Judge while relying upon the ocular evidence, recovery, and the fact that appellant was also injured, has convicted him as described above, while the co‑accused were given benefit of doubt and acquitted.
We have heard the learned counsel for the appellant and the learned counsel for the State.
It was contended by the learned counsel for the appellant that it was 2 case of sudden fight between the parties and the appellant and his sons had also received injuries in the fight which fact was suppressed by the prosecution. That the appellant had not taken any undue advantage and therefore the learned trial Judge erred in convicting the appellant under section 302, P.P.C. It was further contended that looking to the circumstances of the case the offence if any will fall under section 304, Part I, P.P.C.
The learned counsel for the State has candidly conceded to the above position, and according to him the appellant was at the most liable under section 304, Part I, P.P.C. and not under section 302, P.P.C.
We have considered the contentions of the learned counsel and have gone through the R & P of the case. The evidence of complainant and three eye‑ I witnesses clearly proves that the appellant was responsible for causing death of deceased Gulab Sher. Apart from the ocular evidence there was medical evidence, as well as recovery of blood‑stained Churi from the place which was pointed out by the appellant to the police. The evidence appears to be straightforward, natural and reliable. There was no reason for the complainant party to have left the actual culprit and involve the present appellant falsely. Even the learned counsel for the appellant has not challenged the evidence, therefore we are of the considered view that the prosecution had proved its case beyond reasonable doubt, and the judgment of the learned trial Judge does not call for interference in this respect.
However, we have given our anxious consideration to the question of nature of offence committed by the appellant. Admittedly there was no previous enmity between the parties nor appellant Mukhtiar had a motive to kill deceased Gulab Sher. It appears that there was sudden fight between the parties in which both parties received injuries. Unfortunately, the prosecution has failed to explain the injuries caused to the appellant and his two sons. There is an allegation that there was an altercation between the parties at 2‑00 p.m. on the same day but the appellant and the deceased were not party to the above altercation.
In view of the above circumstances we are of the considered view that it was not a case of premeditated murder but there was sudden fight between the parties and it was only injury No. 2 which had caused the death of deceased Gulab Sher, and therefore, the conviction of the appellant is altered from section 302, P.P.C. to section 304, Part I, P.P.C. and sentence is substituted to R.I. for seven years, and fine of Rs.5,000 in default of payment of fine the appellant shall suffer R.I. for six months. The appellant shall be entitled to the benefit of section 382‑B, Cr P.C. while computing the above sentence.
The above appeal is allowed partly. The reference for confirmation of sentence is rejected.
We had decided the above appeal/confirmation case on 19‑1‑1988 and these are the reasons for the same.
M.Y.H./M‑548/K
Appeal partly accepted.