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Petitioner: MUHAMMAD YOUSUF VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Amanullah Abbasi, Wahid Bux Brohi Title: MUHAMMAD YOUSUF vs THE STATE Case No.: Criminal Appeal No,14 of 1996 Date of Judgment:1999-08-13 Reported As: PLD 2000 Karachi 94 Result: Sentence reduced.
JUDGMENT
JUDGMENT WAHID BUX BROHI, J.---Appellant Muhammad Yousuf stood his trial in the Court of Additional Sessions Judge, Sanghar for an offence under section 302, P.P.C. Read with section 34, P.P.C. On the charge that on 1-8-1991 at about 11-30 a.m. He, alongwith his father Bashir Ahmed, (the absconding accused) in furtherance of their common intention, committed Qatl-e-Amd of his grandfather Amanat Ali. On conclusion of the trial, the appellant was convicted by judgment dated 22-1-1996 for offence under section 302(a), P.P.C. And sentenced to death as Qisas. He preferred this appeal against the said conviction and sentence. The trial Court has also made a reference under section 374, Cr.P.C. For confirmation of death sentence. The appeal and the confirmation reference shall be disposed by this judgment. Briefly stated, the prosecution story, as reflected in the F.I.R. Lodged on 1-8-1991 at 12-30 p.m. At Police Station Sanghar by complainant Nazir Ahmed son of deceased Amanat Ali, resident of Chak No,56, Taluka Sanghar, is that he is a Zamindar and lives at the above address with his family members (including his father). They are in all two brothers and his elder brother Bashir Ahmed (the absconding accused) resides with his family members at Ward No,7, Sanghar town, who has three sons, namely, Muhammad Arshad, Muhammad Yousuf and Nasir. In the year 1987 his brother Bashir Ahmed's daughter Mst. Shahnaz Kauser was murdered and his brother had lodged a report against him (the complainant) at Police Station Sanghar which case is pending trial in the Sessions Court, Sanghar. His brother Bashir Ahmed had also got prepared record of the shops of his father with forged signatures of his father and had sold the same to his (Bashir Ahmed's) son Muhammad Yousuf in which matter the complainant's father had instituted a civil case against Bashir Ahmed and his son Muhammad Yousuf which is pending in the Court of Sessions Judge,
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Sanghar (presumably District Judge, Sanghar) and hearing of that civil case was fixed on 29-7-1991 on which date the complainant and his father, both were present in the Court and in presence of the complainant, appellant Yousuf asked his grandfather (complainant's father) to withdraw the case and give him the shop or else he would kill him (the deceased). On 1-8-1991 the complainant Nazir Ahmed, his son Shabbir Ahmed, and two cousins Ghulam Rasool son of Haji Murad and Sirajuddin and his father deceased Amanat Ali, went to Sanghar Town in connection with their personal work. First they went to their house in Ward No,8 and after staying there for a while, they proceeded to Bazar. Deceased Amanat Ali was ahead of them while the remaining four persons followed him. At about 11-30 a.m., when they reached Rehmat Shah Chowk, in front of Dr. Jameel's hospital, he saw his nephew Muhammad Yousuf and brother Bashir Ahmed coming towards them from front side. Yousuf was holding pistol in his hands and within their seeing, he made direct fires at the complainant's father while Bashir Ahmed, who was carrying a Chhurri inflicted 2 chhurri blows upon the complainant's father who, by that time, had fallen down due to the firearm injuries caused by Muhammad Yousuf. The complainant party was challenged not to approach them or else they would also be killed. Many persons of the town gathered there and the assailants, taking advantage of the rush, escaped alongwith the pistol. The Complainant party saw fire-arm injuries and Churri blows on the body of the deceased Amanat Ali. The complainant left his companions to guard the dead body and himself appeared at Police Station Sanghar where he lodged the report stating that his brother Bashir Ahmed and nephew Muhammad Yousuf have killed his father. S.I.P. Shabbir Ahmed of Police Station Sanghar recorded F.I.R. And took up the investigation. He inspected the place of occurrence from where he secured the dead body and held inquest thereon. He also secured five empties and a bullet (lead projectik) of pistol and a steel knife (Churri) with plastic handle of red colour and other articles of the deceased. He collected bloodstained earth from the place of occurrence and after sealing the relevant articles he prepared the Mashirnama of the place of incident in the presence of two Mashirs, namely Niaz Ali and Abdul Razzak, both residents of Chak No,56, Taluka Sanghar. Thereafter, the said S.I.P. Forwarded the dead body to Civil Hospital, Sanghar for autopsy. On the same day he recorded the statements of P.Ws. Sirajuddin and Ghulam Rasool under section 161, Cf.P.C, who supported the case of the prosecution. On 2-8-1991, S.I.P. Shabbir Ahmed received information from P.S. Liaquatabad, Karachi that accused Muhammad Yousuf was arrested by S.H.O. Of that police station and that his custody may be taken from them. He proceeded to Karachi and secured the custody of appellant Muhammad Yousuf from the said police. He also secured the blood-stained clothes worn by the accused. He prepared such Mashrinama in the presence of two Mashirs, namely, A.S.I. Muhammad Shareef and P.C. Nazir Ahmed, and returned to Police Station Sanghar alongwith the accused. On the pointation of accused Muhammad Yousuf, he secured a pistol of .32 bore, which was in working order and smelt of fresh discharge of gun powder, by digging the ground near North-Eastern corner of the boundary wall of the Government Boys High School Sanghar. He sealed the same and prepared such memo. Of recovery in the presence of same Mashirs, namely, A.S.I. Muhammad Shareef and P.C. Nazir Ahmed. On the same day he recorded the statement of the mashirs under section 161, Cr.P.C. After completing the investigation, the said S.I.P. Submitted the charge-sheet (challan) in the Court of Civil Judge and F.C.M. Sanghar, showing the Bashir Ahmed as absconder. The case was sent to the Court of Sessions Judge Sanghar and then transferred to the Court of Additional Sessions Judge, Sanghar, where the trial was held. The accused/appellant was charged with offence punishable under section 302, P.P.C. Read with section 34, P.P.C., to which he pleaded not guilty and claimed trial.
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In support of its case, the prosecution examined as many as nine witnesses namely; P.W.1 Nazir Ahmed (Exh.8), P.W.2 Siraj Ahmed (Exh.1-0), P.W.3 Ghulam Rasool (Exh.l1), P.W.4 Dr. Nisar Ali (Exh.12), P.W.5 Abdul Razzak (Exh.14), P.W.6 Muhammad Haneef (Exh.16), P.W.7 Fida Hussain (Exh.18), P.W.8 Muhammad Shareef (Exh.19) and P.W.9 Muhammad Aslam -(Exh.24). The witnesses produced the relevant documents while the Chemical Examiner's Report (Exh.26) and Ballistic Expert's Report (Exh.27) were produced by the Deputy District Attorney under a statement in writing. The statement of the accused was recorded under section 342, Cr.P.C. Wherein his case was of denial and false implication. Regarding his arrest he explained that he was picked up from a hotel alongwith 4 or 5 other persons and detained in police lock-up at Police Station Liaquatabad, Karachi from where he was brought to Sanghar by S.I.P. Muhammad Shareef. His clothes were neither stained with blood nor handed over to the said S.I.P. However, he added that he has been falsely implicated in this case due to enmity between his father and complainant, Nazir Ahmed. He produced a copy of private complaint under sections 302, 120-B and 114, P.P.C. (Exh.31) filed by complainant Nazir Ahmed against him and his father in the Court of Additional Sessions Judge, Sanghar and a copy of F.I.R. In Crime No,48 of 1987 in respect of murder of his sister Mst. Shahnaz Kausar. On completion of the trial, the learned Additional Sessions Judge, Sanghar, by his judgment dated 22-1-1996, convicted the appellant and passed the sentence as above. We have heard Mr. Azizullah K. Shaikh, learned counsel for the Appellant and Mr. Jalil Hashmi, A.A.- G. For the State. The learned counsel for the Appellant contended that the case of the prosecution rests on; (1) ocular evidence, (2) motive, (3) medical evidence and (4) circumstantial evidence consisting of recovery of crime weapon, matching of the crime weapon with the empties and bullet secured from the place of incident, and the arrest of the accused with blood-stained clothes, but the entire evidence placed on record is not free from doubt and hence not worth reliance, as such conviction could not be founded on such evidence. On the other hand the learned A.A.-G. Supported the finding of conviction, as according to him the ocular testimonies were true and reliable and circumstantial evidence adequately corroborated the same. In the first instance, he would like to consider the ocular testimonies which have been accepted by the trial Court completely. Learned counsel for appellant questioned the truth and credibility of ocular testimonies on the ground that the eye-witnesses are closely related to the deceased and the complainant and, besides being interested and hostile to the accused, their presence at the time of incident is also highly doubtful. He pointed out that admittedly there is enmity between the two parties who unfortunately belong to the same family, over disposition of shops of deceased Amanat Ali by his son, Bashir Ahmed under allegedly forged signatures of deceased Amanat Ali and sale thereof in favour of accused/appellant Muhammad Yousuf, besides murder of Mst. Shahnaz Kausar, vide F.I.R. (Exh.32) produced by the appellant during his statement recorded under section 342, Cr.P.C. He explained that complainant Nazir Ahmed is son of the deceased Amanat Ali and P.Ws. Sirajuddin and Ghulam Rasool are cousins of the complainant Nazir Ahmed and, in the background Of the abovementioned animosity, they are not only related persons but hostile to the accused/appellant, and as such had a motive to implicate the accused falsely. He further argued that the witnesses are residents of different places, Nazir Ahmed is resident of Chak No,56, which as admitted by him is 13/14 miles away from Sanghar Town and P.W. Sirajuddin is also resident of the same Chak, while P.W. Ghulam Rasool is resident of chak No,11, which, as admitted by the former witness, is about 9/10 miles away from Chak No,56, therefore, they cannot be treated as natural witnesses. As against this the learned A.A.-G. Explained that the eye-witnesses are equally related to both parties and their presence in the company of deceased Amanat Ali in the town of Sanghar cannot be questioned on the sole ground that their houses are situated in Chak Nos. 56 and 11 at a distance of 10 to 13 miles from the town.
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In fact, the evidence has come on record that deceased Amanat Ali had residential accommodation at Sanghar town also, and P.W. Sirajuddin (Exh.10) made it clear that he alongwith deceased Amanat Ali, complainant Nazir and P.W. Shabbir had gone to Sanghar and at the time of incident they were coming from the house of deceased Amanat Ali. The F.I.R. (Exh.9) also mentions the same fact that the complainant party alongwith deceased Amanat Ali had gone to Sanghar in connection with their personal work. The complainant has deposed that they had gone to their house at ward No,8 from where they were proceeding to Bazar when this incident took place. In the sketch (Exh.17) prepared by Tapedar Muhammad Hanif P.W.6 (Exh.16) point "E" is shown to be the residence of deceased Amanat Ali which was 433 feet away from point "A" , where deceased Amanat Ali recieved injuries. In these circumstances if deceased was accompanied by his son complainant Nazir Ahmed, his grandson Shabbir Ahmed and complainant's cousins Ghulam Rasool and Sirajuddin, their presence cannot be doubted on the ground that their houses were situated about 10 to 13 miles away from Sanghar town, unless it is established, otherwise, that their versions about their presence were unbelievable because of inconsistency or contradiction in their evidence. All the same, relationship of these witnesses with the deceased would not furnish a ground by itself to discard their testimony. In this context we may refer to the principles laid down by the Honourable Supreme Court from time to time. The question, to what extent the testimony of interested person claiming be eye-witness of occurrence be evaluated and believed received full attention by the Honourable Supreme Court in the case Niaz v. State PLD 1960 SC 387, wherein following observations were made:- "Whenever interested persons claiming to be eye-witnesses of an occurrence charge persons whom they have some motive for false implication, with the commission of the offence, the first question to be considered is whether in fact they saw the occurrence and were in a position to identify the culprits. If there be no reason to doubt that they in fact witnesses the occurrence and were in a position to identify the offencees, the further question arises as to whether they can be relied upon for convicting the accused without corroboration. In cases where such interested witnesses charge one person only with the commission of the offence, or where the number of persons whom they name does not exceed that which appears from independent evidence or from circumstances not open to doubt to he the true number of culpties, their evidence may. In the absence of anything making it unsafe to do so, be accepted without corroboration, for, substitution is a thing of rare occurrence and cannot be assumed, and he who sets up the plea of substitution has to lay the foundation for it. But if the Court finds that the number mentioned by interested persons may have been exaggerated their word cannot be made the basis of conviction and the Court will have to look for some additional circumstances which corroborates their testimony. This circumstances need not be such that it can of its own probative force bring home the charge to the accused." This point was further elaborated in the case Sahib Masih and others v. The State 1982 SCM R 178 in which it was held that in the case of interested witnesses, it is expected that their statements ring true or are not intrinsically unsound or inconsistent and when this test is satisfied, then in the case of ordinary interested witnesses, independent corroboration of some sort is looked for and ensured. Again, in very clear terms the Honourable Supreme Court observed in the case Ziaullah v. The State 1993 SCM R 155, that the rule laid down by the Supreme Court in this behalf is that mere relationship of an eye-witness with the deceased or his enmity with the accused by itself does not furnish a valid basis to reject his testimony, and in a such-like case, as a rule of prudence what is required is the proper scrutiny of his testimony and to seek corroboration before its acceptance. To quote a specific instance, it may be pointed out that in the case Mubarak v. The State 1982 SCM R 531, the witness was cousin of both parties, his statement in absence of any motive to give false evidence was implicitly relied upon and was held to be sufficient to bring home the guilt of
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the accused. So also, it was held in PLD 1996 SC 138 that mere relationship of an eyewitness with deceased or his enmity with accused was not valid basis for rejecting his testimony, however, testimony of such witness should be subjected to closer scrutiny and its corroboration also sought before it is accepted. Recently, in the case of Gul Khan v. The State 1999 SCM R 304, the facts of the case disclosed that there existed enmity between the parties, but since the prosecution evidence qua the accused rang true and stood corroborated by abscondence of accused as well as the motive which was proved by the statement of first informant and other eye-witness, while medical evidence was in no manner in conflict with ocular testimony, it was held that relationship by itself is no ground to discard the evidence in the case; consequently, after considering all the circumstances of the case, the testimony of eye-witnesses was believed and the conviction was upheld. Likewise, conviction was upheld in Sharafat Ali v. The State 1999 SCM R 329, holding inter alia, that no doubt the witnesses were related to the deceased their mere relationship was no basis to discard their evidence. The evidence of the material witnesses is, therefore, to be evaluated and assessed in the light of the above-stated principles. In the first instance the testimonies are to be subjected to a closer scrutiny to find out if the versions given by the eye-witnesses are free from major contradictions and are inherently consistent and worth reliance and then some sort of independent corroboration be also looked for. P.W.1 complainant Nazir Ahmed is son of the deceased; he has deposed that at the time of incident his son Shabbir and P.Ws. Siraj and Ghulam Rasool were accompanying him and within their seeing appellant Muhammad Yousuf who was coming from front side alongwith his father Bashir Ahmed fired directly at Amanat Ali at Rehmat Shah Chowk. He stated that Amanat Ali fell down due to firearm injuries, whereafter Bashir inflicted Chhuri injuries upon him and Amanat Ali died on the spot. According to him the place. Of occurrence was Rehmat Shah' Chowk in front of hospital of Dr. Jamil and the time was 11-00 a.m. In cross-examination he stated that he was 6/7 paces away from deceased toward his back side and that the accused fired at his father from a very short distance. P.W.2 Siraj Ahmed has also given a similar version stating that he accompanied P.W. Shabbir and complainant Nazir while deceased Amanat Ali was going ahead of them, and when they reached near Jamia Masjid in front of clinic of Doctor Jamil, he saw that appellant Yousuf fired directly from his pistol at deceased Amanat Ali. The accused threatened them not to come near them otherwise he will fire at them, therefore, they kept off. Thereafter, absconding accused Bashir caused Chura injury to deceased Amanat Ali, who as a result of injuries fell down. In cross-examination he stated that the time of incident was 11-00 a.m., and that they were at a distance of 7 paces from the deceased. Evidence of P.W. Ghulam Rasool shows that he was accompanying Nazir and Siraj while deceased Amanat Ali was going ahead of them and they were going towards the town. When the deceased reached Rehmat Shah Chowk, appellant Yousuf fired at him from his pistol. He has given the time of incident at 11-30 a.m. He has stated that accused Yousuf threatened them not to go near them else he would kill them. He is, however, silent about the other fact of Churn injuries caused to deceased Amanat Ali but he has added that when accused Yousuf ran away they went near deceased Amanat Ali, who was lying dead and they found pistol shot injury and knife injuries on the body of the deceased. He did not see anybody causing knife blow to the deceased but he saw a knife which was lying at the place of incident. Thus, a close scrutiny of the evidence of the eve- witnesses would show that there are no contradictions about the time and place of I it. 'dent and the firearm injuries caused by pistol by accused Bashir to deceased Amanat Ali. The only omission in the evidence of P.W. Siraj is that he is silent about the presence of P.W. Ghulam Rasool at the time of incident; so also P.W. Ghulam Rasool has not been able to state who caused knife injuries to the deceased, otherwise, the evidence of these witnesses is consistent about all other particulars of the
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occurrence. For a single omission the entire version cannot be doubted, as omissions of this kind are bound to occur with the lapse of time. This is a broad daylight incident and the eyewitnesses have seen the assailants from a very close point and there is no substantial infirmity or weakness in their testimonies as such there is no reason to doubt their veracity. In cross-examination nothing adverse could be elicited from them so as to make their versions inconsistent on account of discrepancies, except the point of relationship and enmity. Thus, their evidence is inherently believable. On the other hand the defence theory is that complainant Nazeer Ahmed himself killed his father. Such suggestion was put to him in the cross-examination that he killed his father and foisted the case upon the accused persons which he denied. It was also suggested to P.W. Siraj that he, in collusion with complainant Nazeer Ahmed caused murder of deceased Amanat Ali but he denied the same. Similarly, P.W. Ghulam Rasool denied the suggestion that the murder was committed by complainant Nazeer Ahmed and accused Yousuf was falsely implicated. However, the accused/appellant in his statement recorded under section 342, Cr.P.C. Did not come up with such a plea. He also did not examine himself on oath under section 340, Cr.P.C. So that the defence theory could be examined in the light of his version. No witness was examined in defence on behalf of the accused.. On the whole, the defence theory could not be substantiated. Even otherwise, this is broad daylight incident taking place in the town of Sanghar, it can hardly be conceived that the complainant would select such a place and time for killing his father, when the latter was residing with him all along. However, it may be clarified that the law is well-settled that failure of the accused to establish the defence plea is never a ground to hold that the case of prosecution was proved, as the prosecution has to make out the case on the strength of its own evidence and beyond reasonable doubt. As regards corroboration, the medical evidence fully supports ocular testimony. Dr. Nisar Ali, conducted the post-mortem examination and found the following injuries on the body of deceased Amanat (1) Fire-arm entry wound 1 c.m. x 1 c.m. Transverse direction margin inverted skin burnt on right temporal region. (2) Fire-arm entry wound 1 c.m. x 1 c.m. Margins inverted skin burnt, transverse in direction on mid auxilliary line at lower part of right side of chest. (3). Fire-arm entry wound 1 c.m. x 1 c.m. Margins inverted skin burnt transverse in direction on anterior auxilliary line 5 c.m. Below the injury No,2 on right side of chest. (4) Fire-arm entry wound 1 c.m. x 1 c.m. Margins inverted skin burnt on post auxilliary line transverse in direction 5 c.m. Above the injury No,2 on right side of chest. (5) Fire-arm exit wounds 2 c.m. x 2 c.m. Skin averted at mid auxilliary line on left of chest at the level of nipple. (6) A raised inflamated adematous spot measuring 3 c.m. x 1 c.m. On post axillary line on left side of chest at level of 2 c.m. Above the nipple (a bullet removed from the spot by dissection). (7) Fire-arm exit wound 3 c.m. x 2 c.m. On lateral past of left orbit damaging the eye ball and upper lid. This was probably the exit wound of injury No, 1 . (8) Incised stab wound 3 c.m. x 1 c.m. Above downward in length at chest cavity deep on right side of chest 7 c.m. Inferio lateral to the nipple. (9) Incised stab wound 3 c.m. x 1 c.m. Mussle deep on right buttock. He found the skull fractured at the site of injury No,1 and at the site of exit i,e, left orbital region. The membranes and brain matter were badly damaged and skull cavity was full with clotted blood. The chest was perforated at entry wounds Nos.2, 3 and 4 and exit wounds Nos.5 and 6 and also at the site of injury No,8. Ribs were also fractured and the heart was damaged. He opined that injuries Nos.1, 2, 3 and 4 were individually sufficient to cause/death in ordinary course of nature. According
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to him, the fires were made from a close range of within 6 inches, and injuries were caused by discharge of firearm containing bullets, while injuries Nos.8 and 9 were caused by sharp-cutting substance such as knife. In his opinion the death was instantaneous and the probable time between death and post-mortem was .About 3 hours. He started post-mortem examination at 2- 00 p.m. Which shows that the death had taken place at about 11-00 a.m. Thus, the time of death given by the Medical Officer coincides with the version of eye-witnesses. As regards the distance from which the firearm was discharged, the complainant stated that the pistol was fired from a very short distance and the medical officer supports this version as in his opinion the firearm was discharged from a distance, within 6 inches. His view is based on the fact that the skin was burnt at the place of firearm injuries. The medical evidence further lends support to the ocular testimonies as regards the weapon used in commission of the offence. The Medical Officer has opined that injuries were caused by a sharp-cutting substance such as knife, while the…
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