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, 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 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.
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 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 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 distance of 8/10 paces from the place of incident. He has denied the suggestion that workers of M.Q.M. Committed murder of his father due to political differences.
18. P.W.5, Muhammad Moin, has stated that at the time of incident he was working at the shop of deceased Saleem. After Maghrib prayer, P.W. Muhammad Waseem son of deceased Saleem came at the garage and stated something to Saleem and his uncle Saeed, on which complainant Saeed and Waseem went out of the garage. Deceased Saleem also followed them. After some time he heard the commotion and fire-arm report on which he rushed towards that direction and saw accused Yousuf, standing on the roof of a car having pistol in his hand. Accused Yousuf fired from his pistol which hit on the forehead of deceased Saleem, who fell down. They then took Saleem to hospital where he died.
Police came at hospital and recorded his statement. He also identified all the three accused persons in Court. He has admitted that from the time of incident up till his statement in Court he was working as helper in the motor mechanic shop of deceased. He further stated that he was working as helper since 4/5 years prior to the incident. According to him there were two other helpers as well but at the time of incident they were not available and had gone to offer prayer. He stated that his residence is about 1- 1/2 or 2 miles away from the place of incident. When P.W. Waseem came at the garage and took away the complainant Saeed, he and deceased Saleem were available at the garage. No other person was available in the garage at that time. He has denied the suggestion that at the time of incident he was not available in the garage.
19. P.W.6, Muhammad Aslam Kashmiri, has stated that he is resident of Mehmoodabad, Karachi South, and on the day of incident he had gone to the garage of deceased Saleem after Maghrib prayer for repair of his car. He was offered Aftari by deceased Saleem. In the meanwhile, a boy aged about 12/13 years came at garage and informed an old man that while he was going to his house, he found the street blocked. He requested for some space on which he was abused. On receiving this information, the old man went along with that boy. Later on he came to know that the old man was brother of deceased Saleem Mistri. After few minutes he heard and saw -two fire shots made by two persons from the balcony of their house and a wooden ladder was placed with the balcony. On fire shot reports, he along with some other persons rushed towards the place of incident and when he was at the distance of about 100 or 150 paces away, he saw that a person jumped over a Suzuki FX of white colour and fired from his weapon which hit Saleem Mistri. He also saw two other persons fighting with the brother of Saleem out of which one caused Danda blow to the brother of Saleem Mistri. In the meanwhile many other persons came there and accused persons ran away. He further stated that he heard one old man instigating accused persons to kill them and he will face the consequences. He subsequently came to know the name of brother of Saleem Mistri as Saeed and the names of accused persons Yousuf, Saleem Tidda and their father Islamuddin alias Kaloo. He further stated that accused Yousuf caused fire shot injuries to deceased Saleem Mistri. He has further stated that on 18-12-1999, accused Islamuddin, voluntarily produced the Danda which was lying under flower pots near the house of accused persons.
The Mashirnama of recovery of Danda was prepared by police officer which he has produced as Exh:16- A. In cross-examination, he has stated that he resides about 15/16 kilometers away from the place of incident. . He has stated that he reached about 45 minutes before Maghrib at the garage of deceased Saleem and saw three workers working there. He has stated that the place of incident was not visible from the garage. He has stated that the Danda was recovered from the place situated in public street.
20. P.W.7, Hassan Mehmood, is the Mashir of arrest of accused Islamuddin as well as Mashir of production of Danda by accused Islamuddin. In cross-examination he has stated that in his presence Islamuddin produced Danda from his shop.
21. P.W.8, Sub-Inspector, Zulfiqar Ali Shah, has deposed about the receiving of information from Medico Legal Officer and making of such entry in the daily diary of Police Station, which he has produced as Exh:18-A. He has stated that after receiving information he proceeded to the hospital and sought permission from MLO for recording statements of the two injured persons. He was informed that Saleem has expired. With the permission of doctor, he recorded 154, Cr.P.C., statement of injured Saeed, Exh: 11-A.
He has stated that, he, thereafter, collected Post-mortem Examination Report of deceased. In cross- examination he stated that complainant had disclosed the names of P.Ws. MoM and Abdul Jabbar to be the witnesses of occurrence and that he had not given the name of any other person.
22. P.W.9, Dr. Shahid Shaikh, Medico Legal Officer Civil Hospital Karachi, has stated that on 15-12-1999, he was posted as MLO at Police Surgeon Office Civil Hospital. The dead body of deceased Saleem was received there which was identified by Abdul Waheed and Abdul Jabbar.
' He started the autopsy at about 9-15 p.m., (wrongly typed in the deposition as 1915 hours) and finished the same at 10-20 p.m. On external examination he found the following injuries on the person of deceased:--
1. Lacerated penetrating wound 0.5 c.m. In diameter, circular in shape with inverted margin, on mid forehead. This was wound of entry.
2. Lacerated penetrating wound 3.5 c.m. Into 3 c.m. Regular in shape on left occipital region of skull, this was wound of exit.
' On internal examination, he found the following injury:-
1. On opening the skull fractures were seen on frontal and occipital region of the skull. There was collection of blood at the base of skull and brain matter was distorted and piece of wound were mixed with blood.
23. From internal and external examination of the dead body he was of the opinion that the death was caused due to head injury caused by fire-arm. The injuries were ante-mortem and were caused with fire-arm. Duration between the death and injury was instantaneous and duration between the death and post-mortem was 3 to 4 hours. He produced Postmortem Report, Exh:21-A. In cross-examination he stated that the injury appeared to have been caused with heavy weapon.
24. P.W. 10, Muhammad Abdullah, is a formal witness. He received 154, Cr.P.0 statement from hospital, incorporated the same in the F.I.R. Book and sent a copy to the S.H.O. Sub-Inspector Naseer Tanoli, for investigation.
25. P.W. Naseer Ahmed, the Investigating Officer, has stated that after receiving copy of F.I.R. He went to the hospital and met S.-I.P. Zulfiqar Ali Shah, who had already made compliance of section 174, Cr.P.C.
He collected the proceedings and then visited the place of incident which was situated in a street near Dawoodia Compound. He seized 7 empty bullets, one Projectile and bile Danda from the place of incident in presence of Mashirs Saeed and Abdul Majeed. He prepared Mashirnama of the place of incident and recovery of above articles, Exh:11-B. He prepared sketch of the place of incident, Exh.23-A.
He thereafter recorded statements of P.Ws. P.C. Yahya, S.-I. Abdullah, S.-I. Zulfiqar, HC Abrar, Abdul Majeed, Aslam Kashmiri and Hassan Mehmood. On 16-12-1999, he arrested accused Islamuddin.
Nothing was recovered from his possession. He stated that the other accused persons could not be arrested during the investigation. He submitted challan showing accused Islamuddin under arrest and accused Saleem and Yousuf as absconders. In cross-examination he has stated that P.W. Aslam Kashmiri, had not stated before him that he had gone in the street of Dawoodia Compound and saw the incident. He has further stated that P.W. Aslam Kashmiri, had not stated in his 161, Cr.P.C., statement that accused Islamuddin gave Danda blow to complainant on his head. He further stated that P.W.
Shoaib, had stated before him that accused Yousuf had gone to his house and brought pistol but he had not stated anything about accused Saleem. He has further stated that P.W. Shoaib had not stated in his statement under section 161, Cr.P.C., that accused Islamuddin caused Danda blow to complainant.
He further stated that P.W. Muhammad Waseem, stated in his 161, Cr.P.C., statement that he heard the noise and exchange of abuse and thereafter he remained outside the garage. He has further stated that P.W. Muhammad Moin, in his statement under section 161, Cr.P.C., had not stated that he heard the exchange of abuses and thereafter saw the accused persons who brought the pistols from their house.
He has further stated that P.W. Moin had not stated that accused Islamuddin caused Danda blow to complainant Saeed. The Investigating Officer has stated that he had not seized Sofa Set or ladder from the place of incident. He has denied the suggestion that a quarrel had taken place between the complainant and deceased with the workers of MQM and there was indiscriminate firing from heavy weapons like K.K.
26. P.W.12, Zafar Iqbal, and P.W.13, Muhammad Naeem Khan, are the formal witnesses. They have deposed about the arrest of accused Saleem on 8-3-2002. P.W. 14, Dr. Ahmed Ali Memon, has deposed the facts as narrated in the opening part of the judgment. In cross-examination he has accepted the possibility of receiving injury on the person of complainant Saeed by falling down on the road.
27. All the three accused persons in their statement under section 342, Cr.P.0 denied all the prosecution allegations. Accused Islamuddin stated that the witnesses have deposed against them due to political differences and on account of civil litigation between him and the prosecution witnesses. He further stated that he and his sons are the members of the Pakistan Muslim League, whereas the complainant party belongs to MQM. They have been involved by MQM leaders in this case. In fact, the workers of MQM had committed the murder of deceased Saleem as the complainant party provided shelter to one Nazir, the uncle of deceased who left his Orangi residence due to fear of his death at the hands of MQM, who was earlier attacked by the MQM workers. He further stated that he had old enmity with the complainant party. He filed the copies of complaints made to Governor of Sindh, dated 21-3-2000 and 10-5-2000. Accused Yousuf and Saleem have adopted the statement of their father accused Islamuddin. Accused Islamuddin while deposing as defence witness stated that he is active worker of Pakistan Muslim League, whereas the complainant belongs to MQM. He has old dispute with the complainant party over the plot of Anwar, the uncle of deceased Saleem. The Government had demolished the shops constructed on the plot of Anwar situated adjacent to the plot of accused. The accused approached High Court and won the case on which complainant party developed enmity. He has further stated that he was pressurized 2/3 times by Babar Ghori, Ex-MNA of MQM to leave the area and sell his house to the complainant party at the price of their choice. He has reiterated the fact about enmity between Nazir uncle of deceased Saleem and rival group of MQM. He has further deposed that the rival group of MQM had issued threats to him, asking to leave the Mohallah, otherwise the accused and his sons shall be murdered as his one son was murdered earlier. He has further stated that on the day of incident he had gone for Aftari to Jillani Mosque and came from there after Isha prayer and Taraveh. He reached his house at about 10-00 p.m., and was informed by his wife that police has visited his house twice and was asking for his sons. In the meanwhile S.H.O. Naseer, arrived at this house. He inquired about his sons Saleem and Yousuf and was informed that they had gone for Aftar to the house of mother-in-law of Saleem, situated in Orangi Town. He was then taken away to Police Station and was informed about the F.I.R in this case. Accused Yousuf and Saleem while deposing as defence witnesses have stated that on the day of incident they had gone to Orangi at about 4.00 p.m., and at about 11-00 p.m., they were informed by their mother that the police had taken away their father Islamuddin and was inquiring about them. D.W.4, Anjum Ara, mother-in-law of accused Saleem has stated that on 15- 12-1999 accused Saleem, his wife, children and accused Yousuf along with his wife had visited his house in connection with Aftar Ceremony of her daughter Amna. They came at about 4-45 p.m., at about 11- 00 p.m., mother of accused Saleem came to her house and informed that her husband Islamuddin, has been taken away by police. On receiving such information she went to Police Station Garden at the advice of accused Saleem and came to know that an F.I.R has been registered against Islamuddin, Saleem and Yousuf in respect of murder of deceased Saleem. She returned to his house on the next day at about 7-00 a.m., and informed Saleem and Yousuf about the registration of F.I.R. She denied the suggestion that on 15-12-1999 she provided shelter to accused Saleem and Yousuf who were wanted by police in murder case. She further denied that due to providing of shelter by her to accused persons a quarrel took place between her and her husband. She had accepted that she lodged an F.I.R. Against her husband on 1-3-2000 as her husband was maltreating her. But she has denied that she was maltreated by her husband becduse of providing shelter to accused Saleem and Yousuf. D.W. Gusher, has stated that he is residing in the same Mohallah where accused persons are residing. On 15-12-1999 at about Maghrib time he was standing at the Chowk of his Mohallah, where he heard fire-arm reports.
On hearing the tire-arm reports, he and other Mohallah people went there and saw a mob of people. He also saw 3/4 persons who were asking the brother of deceased to call Nazir. The culprits were holding Kalashnikov in their hands. The culprits then started firing and he along with other persons went away due to fear. After about one hour he came to know that Saleem mechanic was murdered. He further stated that accused Islamuddin, Yousuf and Saleem were not seen by him at the place of incident. He came to know after about one hour of the incident that accused Islamuddin was taken away by police.
In cross-examination he has stated that he did not appear before any Court for giving evidence prior to his deposition in the trial Court. He further stated that accused Islamuddin is his neighbor since childhood. He further stated that he had not seen anybody causing murder of deceased Saleem. D.W.
Mehar Ali, is a Ballistic Expert. He stated that there is no provision in the law categorizing pistols and Revolvers as light weapons and G-3 Rifles and Kalashnikovs as heavy weapons. He further stated that authors of the book have declared Bomb and Rocket Launchers as heavy weapons. He denied the suggestion that Fire-arm Experts have declared Pistol and Revolver as light weapons and G-3 Rifle, Kalashnikov and Machine Gun as heavy weapons.
28. Now we proceed to consider the contentions raised by the learned Advocates for the parties before us.
29. Mr. M.A. Qazi, learned counsel for the appellants Yousuf and Islamuddin Qureshi, has submitted that actually the deceased Saleem was murdered by workers of MQM. According to him the complainant party belongs to MQM Altaf group and there was a fighting between the workers of MQM resulting in the murder of Saleem and sustaining of injury by complainant Saeed, but under the pressure of leadership of the MQM, the actual culprits were let off and accused persons who belong to the Muslim League, Nawaz group were falsely implicated because there was between the parties on account of dispute over the properties. He has urged that in between the incident and recording of statement under section 154, Cr.P.C., at the hospital, the prosecution story was cooked up and the accused persons were falsely roped in. In support of his contention he has submitted that the time of recording statement under section 154, Cr.P.C, Exh: 11-A, is not shown in the statement He has further submitted that it is stated in the F.I.R. (statement under section 154, Cr.P.C.) that the episode started on the blocking of road by keeping the Sofas and that accused Yousuf and Saleem went upstairs on the instigation of Islamuddin, through the wooden ladder kept in the street and brought the T.T. Pistols but in the Mashirnama Exh.:11-B, there is no mention that the Sofa Set and wooden ladder were found at the place of incident and were recovered. He has submitted that some witnesses have stated that Sofa Set were recovered subsequently without Mashirnama but such version does not inspire any confidence. He further submitted that P.W. Muhammad Saeed, has stated at trial that accused Yousuf jumped over the roof of a car which was standing there and by standing at the roof of a car fired at the head of deceased Saleem, causing his death, but in 154, Cr.P.C., statement, Exh:11-A, it is not stated that there was any car at the place of incident and accused Yousuf had jumped over the car and had then fired at the deceased Saleem. Mr. Qazi, has contended that the Mashirnama Exh:11-B, is also silent on the point of availability of any car at the place of incident.
30. He has next contended that P.W.1, complainant Muhammad Saeed, has stated that accused Saleem and accused Yousuf both resorted to firing and that accused Saleem made ineffective firing at him but P.W. Abdul Jabbar, has stated that accused Yousuf alone made fire shots. He has not attributed any firing to accused Saleem. In cross-examination he has clearly stated that at the instigation of accused Islamuddin, only accused Yousuf went towards his house and brought the Pistol and that accused Saleem had not gone to the house at the instigation of Islamuddin. This witness has further stated, that, at the time of incident he had seen Islamuddin empty-handed and so also accused Saleem. P.W.1, complainant Muhammad Saeed, stated that accused Islamuddin gave Danda blow on his head but P.W. Abdul Jabbar, has not stated anything about causing Danda blow by accused Islamuddin to complainant Saeed. Mr. Qazi, has pointed out that the complainant P.W.1, Muhammad Saeed, stated in the F.I.R. That the incident was seen by P.Ws. Muhammad Moin and Abdul Jabbar. No other witnesses are named in the F.I.R. To have seen the incident but P.W.3, Muhammad Shoaib has been examined as an eye-witness. The learned counsel has submitted that P.W.3, has not attributed any firing to accused Saleem and causing the Danda blow to complainant by accused Islamuddin. He has merely stated that at the instigation of Islamuddin, accused Yousuf went to his house and after few minutes came down by making fire.
31. Mr. Qazi, has submitted that although, according to prosecution version, the incident took place when P.W. Muhammad Waseem who is named in the F.I.R. Asked the accused persons to give him way by removing the Sofa Set from the street, but his testimony on the point of actual incident of assault and murder is not trustworthy. He stated that accused Yousuf caught hold of his uncle Saeed from his neck and accused Islamuddin gave Danda blow on the forehead of Muhammad Saeed and in the meanwhile his father deceased Saleem also reached there on which accused Islamuddin instigated his sons to bring the weapons and kill them. At the instigation of Islamuddin accused Yousuf went upstairs and came down firing shots, jumped over the roof of a car and fired at his father, deceased Saleem, which landed on the forehead of deceased Saleem. Accused Saleem also fired at complainant Saeed, which missed. This version is contradictory to the version of P.W.1, Muhammad Saeed. The complainant stated that on the instigation of Islamuddin, his sons Saleem Tidda and Yousuf went upstairs, brought T.T. Pistols and started firing in the air. The complainant thereafter told Islamuddin as to what they were doing on which Islamuddin gave Danda blow on his forehead. Thus, according to complainant Saeed, the Danda blow was given by Islamuddin after his sons has started firing in the air but according to P.W.4, Muhammad Waseem, accused Islamuddin gave first Danda blow to complainant Saeed, thereafter deceased Saleem arrived and on his arrival accused Islamuddin instigated his sons who brought the weapons from their house and subsequently started firing. Mr. Qazi, has pointed out that P.W. Waseem has stated in the cross-examination that the place of incident is not visible from the garage of his father, which is situated in a nearby street. He stated in the cross-examination that he does not remember if he stated in his police statement that after complaining to his father and uncle he remained standing outside the garage. Mr. Qazi, has contended that the Investigating Officer, P.W.11, SIP Naseer Ahmed, has verified that P.W. Muhammad Waseem, had stated in his 161, Cr.P.C., statement that after hearing the noise and exchange of abuses, remained outside the garage. Mr. Qazi, has maintained that the motive assigned to the prosecution for the assault and murder is that P.W.
Waseem was not allowed to proceed towards his house but the evidence on record shows that after complaining to the complainant Saeed he remained outside the garage and was not present at the place of occurrence when the alleged incident of assault and murder took place. Mr. Qazi, has further submitted that P.W.2, Abdul Jabbar and P.W.3, Shoaib , did not implicate accused Saleem for firing and accused Islamuddin for giving Danda blow. As against this, P.W.4, Muhammad Waseem, has attributed Danda blow to accused Islamuddin and ineffective firing at accused Saleem. Mr. Qazi, has taken us through the evidence of P.W.5, Muhammad Moin, who has stated that he was working as machanic in the shop of deceased Saleem. He was present in the garage after Maghrib prayers; when P.W. Waseem came and told something to deceased Saleem and his uncle Saeed. The witness does not know as to what was stated by P.W. Waseem. This witness further stated that complainant Saeed and P.W.
Waseem went out of garage and deceased Saleem followed them. This witness remained in the garage and after sometime heard reports of fire shots. He rushed towards the place of incident and saw accused Yousuf standing on roof of a car with a pistol in his hand. Accused Yousuf fired his pistol which hit on the forehead of deceased Saleem, who fell down. This witness has further stated that at that time no other person was present in the garage and after reaching at the place of incident he had heard one fire shot report only. This witness has not attributed any act to accused Islamuddin and accused Saleem.
32. Dissecting evidence of P.W. Muhammad Aslam Kashmiri, he has submitted that his very presence at the garage of deceased Saleem, is belied by P.W.5, Muhammad Moin, a mechanic who has clearly'stated that no other person was available in the garage at the time when Waseem came to garage and took away complainant Saeed and deceased Saleem. However, P.W.6, Muhammad Aslam Kashmiri, has stated that he is residing at about 15/16 Kilometers away from the garage of deceased Saleem and had gone to the garage for getting his car repaired. He stated that he had gone to the garage of deceased Saleem before Maghrib Prayers and ater sunset he was offered Mari by deceased Saleem. AlthotIgh P.W. M. Moin, mechanic at the garage has stated that P.W. Waseem had said something to complainant Saeed but P.W. M.Aslam Kashmiri, has stated that P.W. Waseem informed complainant Saeed that he was going towards his house when the street was found blocked and on his request to give the way he was abused. This witness has further narrated a different story saying that after few minutes they heard two fire shots report made by two persons from the balcony of their house and a wooden staircase was kept with the balcony. Mr. Qazi has further pointed out that P.W.4, Muhammad Waseem has clearly stated that the place of incident is not visible from the garage but P.W. Aslam Kashmiri, has narrated the fact that as if the place of incident was fully visible from the garage. This witness has introduced firing from balcony but no other witness including complainant has stated the factum of firing from the balcony. Mr. Qazi, has further pointed out that P.W.4, M. Waseem has stated that garage of his father is at the distance of about 20 to 25 paces from the place of incident but P.W. M. Aslam Kashmiri, has stated that after hearing fire shot reports, he along with some other persons rushed towards the place of incident and he was still at a distance of 100 or 150 paces from the place of incident when he saw a person jumping over a Suzuki white car and firing from his weapon at deceased Saleem Mistri, on his forehead. He has further stated that he saw two other persons fighting with the brother of deceased Saleem. One out of them caused Danda blow to brother of Saleem Mistri.
In the meanwhile other persons came there and the accused persons ran away. This witness has further stated that he heard one old man instigating the other accused persons to kill the complainant party. This witness is the Mashir of recovery of Danda as well and has produced Mashirnama dated 18- 12-1999 Exh.16-A. Mr. Qazi, has submitted that the story of recovery of one Danda is nothing but a cock and bull story as the Investigating Officer has stated that he secured one Danda in presence of Mashirs Saeed and Abdul Majeed, when he visited the place of incident. In cross-examination this witness has stated that he came to the garage of deceased about 45 minutes prior to Maghrib and remained there till the incident took place. He has conceded that he has not stated in his statement before police that a boy came and told Saeed that some people had blocked the street. Mr. Qazi, has further pointed out that P.W. M. Aslam Kashmiri has stated that garage of deceased is situated in front of the street after crossing the road and that the place of incident was not visible from the garage. The Investigating Officer P.W.11, Naseer Ahmed, has admitted that P.W. Aslam Kashmiri, had not stated in his 161, Cr.P.C.
Statement that he had gone to the Dawoodia Compound, and saw the incident. He had not stated that sons of Islamuddin came down through ladder from their house. The Investigating Officer has further admitted that P.W. Aslam Kashmiri, had not stated in his 161, Cr.P.C., statement that accused Islamuddin gave Danda blow to complainant on his forehead.
33. Mr. M.A. Qazi, lids further submitted that the empties were not sent to Ballistic Expert and it is not known as to what was the exact weapon with which the fire was made. He has next contended that the firing was made with the heavy weapdn and T.T. Pistol is not included in the category of heavy weapon.
He has next contended that in the 164, Cr.P.C., statement Exh:11-A, the names of two eye-witnesses Muhammad Moin and Abdul Jabbar, have been subsequently inserted. He has contended that this fact is visible from a bare perusal of the document in Urdu. He has further submitted that the complainant signed blank paper on which the prosecution story was subsequently inscribed. However, Ile has conceded that no such questions were put either to the complainant or the police officer who recorded the statement. He has further submitted that in the memo. Of place of incident, the car from the roof whereof accused Yousuf is alleged to have fired at deceased Saleem, the Sofa Set and wooden ladder are not shown and were not recovered. Mr. M.A Qazi, has further submitted that there are two sets of witnesses one named in the F.I.R namely complainant Saeed and P.Ws. Abdul Jabbar, Moin and Waseem. Other set of eye-witness consists of P.W. Shoaib and M.Aslam Kashmiri. He has submitted that the presence of P.W. Abdul Jabbar at the place of incident is highly doubtful as according to him he closed his shop, went to his house, took Iftari, offered prayers and thereafter came to the garage of deceased Saleem. Mr. Qazi, has further submitted that there is nothing on record to show that the direction of the fire causing death of deceased Saleem was from upward to downward which should be if the firing is made from the car. He has submitted that the absence of evidence in this behalf makes the prosecution story doubtful. In support of his contention, he has placed reliance on the following judgments:- "(1) Mehmood Ahmed v. The State 1995 SCMR 127.
(2) Ata Muhammad v. The State, 1995 SCMR 599.
(3) State v. Muhammad Sharif, 1995 SCMR 635."
34. He has however, conceded that no question was asked from P.W.9, Dr. Shahid Shaikh, about the direction of injury. He has next contended that the witnesses whose names were not disclosed in the F.I.R may be excluded. In support of his contention he has placed reliance on the following judgments:--
(1) Khalil v. The State. PLD 1956 Lahore 840, and
(2) Mamoon v. The State, PLD 1962 Karachi 800.
35. He has lastly submitted that the incident was the result of quarrel between two factions of the MQM workers and the accused persons have been falsely implicated. In the end, he has submitted that in any case, the prosecution has failed to bring such strong evidence on record which may warrant confirmation of the capital sentence awarded to accused Yousuf and if the Court does not agree with his contention that, it is a fit case for acquittal, the sentence awarded to accused Yousuf, may be converted to lesser sentence of imprisonment and the confirmation reference may be rejected. He has submitted that so far, appellant Islamuddin, is concerned, there is no evidence worth the name and he is entitled to acquittal.
36. Mr. Shahadat Awan, learned counsel for the complainant appearing in acquittal appeals has submitted that P.W. Waseem, is named in the F.I.R. And therefore, his testimony implicating the accused persons cannot be ruled out of consideration. He has further submitted that all the eye-witnesses have implicated accused Yousuf which is corroborated with the testimony of Medico-Legal Officer. He has further contended that at least two prosecution witnesses have supported the prosecution version on the point of firing by acquitted accused Saleem Tidda and that all the prosecution witnesses have deposed about the instigation by accused Islamuddin. Mr. Shahadat Awan, has supported the conviction awarded to accused Islamuddin and has further submitted that acquitted accused Saleem Tidda may also be convicted for the offence punishable under section 324, P.P.0 and accused Islamuddin, be further convicted for the offence punishable under section 302, read with section 34, P.P.C.
37. Mr. Shoukat Hussain Zubedi, learned counsel appearing for accused/respondents in acquittal appeals has submitted that the incident took place in front of the house of accused and their presence at the place of incident is natural. No adverse inference can be drawn because of their presence at the place of incident. He has contended that the accused persons have been falsely implicated. He has pointed out that P.W.5, Muhammad Moin, has stated in cross-examination that when P.W. Waseem came at the garage and took away complainant Saeed, he and deceased Saleem were available at the garage and no other person was available there. He has submitted that except P.Ws. Waseem, Saeed and Muhammad Moira, no other person was available at the garage and therefore, the presence of any other person is a result of subsequent manipulation after consultation. Mr. Zubedi, has adopted the arguments addressed by Mr. M.A. Qazi.
38. Mr. Habib Ahmed, learned A.A.-G., has candidly stated at the very outset that he does not support the conviction awarded to accused Islamuddin, for the offence under section 337-F(1), P.P.C. He has further stated that he does not support the acquittal appeals as the trial Court has rightly acquitted accused Saleem and accused Islamuddin of the charge, of committing murder.
39. He has however, fully supported the conviction and sentence awarded to accused Yousuf and has submitted that he is mainly placing reliance on the testimony of three prosecution witnesses namely complainant Saeed and P.Ws. Moira and Shoaib. So far, the testimony of P.W. Waseem is concerned, the learned A.A.-G, has submitted that his testimony to the extent of motive is worthy of credence. He has argued that the presence of complainant Saeed, at the place of incident cannot be denied as he is an injured witness and there is overwhelming evidence to the effect that P.W. Waseem, had complained to him about the misbehavior of the accused persons and he had gone with P.W. Waseem, at the place of incident for seeking clarification from accused persons where situation subsequently flared-up and resulted in the death of deceased Saleem brother of complainant Saeed. So far, P.W.3, Muhammad Shoaib is concerned, he has submitted that P.W. Shoaib is a totally independent witness and his Tailoring shop is situated at a distance of 25 paces from the place of incident. Thus, his presence at the place of incident is natural. The learned A.A.-G., has further submitted that P.W. Shoaib is a truthful witness and has narrated the true facts as witnessed by him. He has fully implicated accused Yousuf for firing fatal shot at deceased Saleem. He has stated that he along with other persons took deceased Saleem to hospital where he died. This witness has not implicated accused Islamuddin for causing danda blow to complainant Saeed and has not implicated accused Saleem alias Tidda for bringing the T.T. Pistol, firing in the air or at the complainant Saeed. In cross-examination he has reiterated that except accused Yousuf no other accused had fired in his presence. The learned A.A.-G., has maintained that P.W. Moira was working as mechanic at the garage of deceased Saleem and has narrated the facts in a natural manner and without exaggerating any fact. He has clearly stated that he was working at the garage, when P.W. Waseem came there and said something to Saeed. Complainant Saeed went with the P.W. Waseem and deceased Saleem followed them. After some time he heard fire shot reports and rushed to the place of incident where he saw accused Yousuf standing over the roof of a car having pistol in his hand. He saw accused Yousuf firing pistol shot which landed on the forehead of deceased Saleem. He has further contended that he was also amongst the people who had taken Saleem to hospital. Mr. Habib Ahmed, has submitted that statements of P.W. Shoaib and Mom were recorded at hospital. He has further pointed out that P.Ws. Moira had seen accused Yousuf only firing at deceased Saleem and has deposed to that extent only. He has not implicated accused Islamuddin for causing Danda blow to complainant Saeed or accused Saleem firing in the air or at the complainant.
40. We have carefully considered the contentions raised by the learned Advocates for the parties and the entire material available on record. Before we proceed to consider the facts on record and appreciate the evidence, it would be appropriate to advert to the judgments on which Mr. M.A. Qazi, learned counsel for the respondents has placed reliance. A perusal of the three judgments delivered by Hon'ble Supreme Court, citied above, on which Mr. Qazi, has placed reliance shows that the findings in all the three judgments revolve around their own peculiar facts and are not germane to the facts and circumstances of the present case. So far the ratio of judgment in the case of Khalil v. The State PLD 1956 Lahore 840, is concerned, we find that in the cited case, prosecution had placed reliance on the statement of three witnesses. It was urged in respect of one witness that his name does not figure in the First Information Report as eye-witness in spite of the fact that the complainant who made the report had been to the scene of the occurrence and learnt details before he left the police station. It was contended that the witness could not be accepted as a witness of truth. It was observed by the learned Judge that he considered the statement of witnesses and was inclined to consider it truthful, but it appeared to him that in view of the fact that his name found no place in the first information report the safer course would be to keep his statement out of consideration. Thus, it will be seen that no hard and fast principle of law was enunciated to the effect that if name of a person is not disclosed in the first information report, he is not to be treated as a witness of truth or in every case his statement should be ruled out of consideration. The observation was made as a matter of abundant caution and not by way of laying down a rule of law for the purpose of appreciation of evidence while considering the imposition of sentence of death on an accused person. Likewise, in the case of Mamoon v. The State, PLD 1962 Kar. 800, it has been observed that names of two witnesses were not mentioned in the F.I.R to have been drawn at the spot or having witnessed any part of the occurrence therefore, their testimony was ruled out from consideration. This observation also is not the rule of law but is confined to the judgment in which the observation has been made. It is trite law of precedent that the findings and observations in a criminal case do not have the force of precedent until and unless some law is interpreted or a rule of law is enunciated. The reason being that seldom the facts and circumstances in two criminal cases are identical and thus, the normal rule in Criminal cases is that generally the findings and observations are confined to the criminal case in which they are given or made.
41. Now we proceed to consider the evidence on record vis-a-vis the points for determination framed by the learned trial Court and the findings given thereon.
42. So far, the first point for determination is concerned, which pertains to the unnatural death of deceased Saleem, on account of fire shot injury, Mr. M.A. Qazi, has frankly conceded that the trial Court has rightly decided the issue in affirmative.
43. As regards Points No,2 and 4, whether complainant M. Saeed received Danda injury on his forehead and whether it was caused by accused Islamuddin, we have already observed that the learned A.A.-G., has not supported the findings of learned trial Court on these points. The recovery of Danda at the instance of accused Islamuddin, is not proved and even otherwise the Danda was not stained with blood. In view of the fact that the learned A.A.-G., has not supported the prosecution case and the findings of the learned trial Court on the point of sustaining of Danda blow injury by complainant M.
Saeed, at the hands of accused Islamuddin, we need not to dilate on this point in any detail. However, we would like to observe that P.W. Dr. Ahmed Ali Memon, who issued Medico-Legal Certificate, in respect of the injury on the head of complainant M. Saeed, has stated in cross-examination that the possibility of sustaining such injury by fallen down on the road cannot be ruled out. Majority of the prosecution witnesses have not supported the prosecution on this point and the witnesses who have deposed in this regard are not consistent on the point of time when accused Islamuddin gave Danda blow to complainant Saeed and therefore, we are persuaded to agree with the contention of learned Advocate for accused Islamuddin and the learned A.A.-G, that the prosecution has failed to substantiate its version on tie point of causing Danda blow to complainant M. Saeed by accused Islamuddin. The findings of the learned trial Court on these points are therefore, not sustainable in law and are hereby set aside.
44. This brings us to the Point No,3, read with Point No,5, which are the most crucial points for decision.
We would again like to observe that the learned A.A.-G., has fully supported the acquittal of accused Islamuddin, of the charge under section 302 read with section 34, P.P.C., and has further supported the judgment of acquittal in respect of accused Saleem Tidda. The learned A.A.-G., has fully supported the finding of the learned trial Court that from the evidence of eye-witnesses the presence of accused Saleem alias Tidda at the time of occurrence is not established as all the material witnesses have not implicated accused Saleem alias Tidda for making fire-arm shots at the time of incident. Since the fact of firing on the part of accused Saleem Tidda is not established therefore, the question of any common intention with accused Yousuf for causing murder of deceased Saleem, does not arise. We are of the considered opinion, that the learned trial Court has rightly acquitted accused Saleem alias Tidda, to which no exception can be taken. Mr. Shahadat Awan, learned counsel for the complainant is not able to point out any infirmity in the finding of the learned trial Court so far, the acquittal of accused Saleem alias Tidda is concerned, and therefore, the finding of learned trial Court on this point is hereby upheld.
45. This leads us to the conviction and sentence awarded to accused Yousuf. The learned A.A.-G., while supporting the conviction and sentence awarded to accused Yousuf and the confirmation reference has submitted that the defence plea is an afterthought which requires no consideration. He has submitted that there is no evidence worth the name on record to suggest that deceased Saleem was murdered in a fighting between workers of M.Q.M. The plea that there .Was enmity between complainant party and accused party, therefore, the real culprits were let off and Islamuddin and his sons were falsely implicated also does not inspire any confidence. Accused Islamuddin has produced copies of two applications addressed to the Governor of Sindh, Exhs.31-A and 31-B. However, it was pointed out to the learned counsel for the appellants that the incident-took place on 15-12-1999 and the applications Exhs.31-A and 31-B, are dated 21-3-2000 and 10-5-2000 respectively, much after the incident. The plea of alibi is also an afterthought as no such suggestions were made to the prosecution witnesses in their cross-examinations. Realizing the weakness in defence plea Mr. M.A. Qazi, has not placed reliance on the testimony of defence witnesses and has based his arguments on the alleged infirmity in the testimony of prosecution witnesses only.
46. We are of the considered opinion that, P.W. Waseem has fully established the fact which was although very petty initially but subsequently was flared-up on the spur of moment, resulting in the death of deceased Saleem. By now it stands established that the principle of `falsus in uno, falsus in omnibus' has been discarded by the superior Courts in Pakistan. Thus, if testimony of a witness is not accepted on one point it is not necessary to discard his entire testimony on all the points. Now, the principle prevailing with the superior Courts in Pakistan, is that the Court is required to sift grain from the chaff and to disbelieve a part of evidence which does not inspire confidence or is not trustworthy or is improbable or is not corroborated with the testimony or circumstantial evidence of any other witness and shall accept other part of evidence which is found creditworthy, truthful and worth-reliance.
Adhering to this principle, we are of the opinion that, notwithstanding the discarding of testimony of complainant Saeed on the point of causing Danda blow to him by accused Islamuddin and firing by accused Saleem alias Tidda, his presence at the place of incident is unassailable. He sustained an injury during the course of incident which may be result of fallen on the road, nonetheless, it establishes his presence at the place of incident. His 154, Cr.P.C., statement was recorded at the hospital and the contention of the learned defence counsel that the 154, Cr.P.C., statement was subsequently concocted, for the reason that the time of recording the statement is not shown in the statement itself, is not tenable. The reason being that there is evidence on the record in the form of entry in the Police Diary Exh.18-A, that the incident was reported by M.L.O Civil Hospital, Dr. Ahmed Ali Memon, at Police Station Garden, at 7-00 p.m., Sub-Inspector Zulfiqar Ali Shah, P.W. 8, has stated that immediately after receiving the entry in daily diary he proceeded to the place of incident, where he found complainant Saeed and recorded his statement. Complainant Saeed, has fully implicated accused Yousuf and likewise P.Ws. M.
Shoaib and M. MoM, have fully implicated accused Yousuf for firing at deceased Saleem, which proved to be fatal. Even if the testimony of other witnesses is ruled out of consideration, the testimony of these three witnesses on which learned A.A.-G., has placed reliance is sufficient to establish the guilt of accused Yousuf up to the hilt and beyond any reasonable doubt. These witnesses have fully stood the test of cross-examination and are consistent on the point that within their sight and presence accused Yousuf fired straightway at deceased Saleem, which landed on his forehead causing his death. The Postmortem report fully corroborates the testimony of the eye-witnesses. Mr. M.A. Qazi, has not disputed the fact that death of deceased Saleem was caused because of sustaining fire-arm injury. The wound of entry was on the forehead and the wound of exit was at left occipital region of skull. The contention that accused Yousuf is alleged to have fired from the roof top of the car and therefore, the direction of the shot must be slanting downward and there is no evidence on this point is not found to be sufficient by us, causing any dent in the prosecution case. The reason being that the presence of accused Yousuf at the place of incident, his firing at deceased Saleem and the death being result of fire-arm shot landed on the forehead of deceased is fully established with the ocular testimony corroborated with Post-mortem Report. The rest is hairsplitting having no significance. We are further of the opinion that, the ocular testimony corroborated with the medical evidence is sufficient per se to establish the guilt of accused Yousuf and the fact that Sofa Set, wooden ladder and car were not recovered by the Investigating Officer is insignificant having no consequences. A mere lapse on the part of Investigating Officer on account of incompetence or inefficiency or negligence or lack of vigilance which does not go to the root of the case and does not cause any dent in the prosecution case or has no effect of creating doubt in the prosecution case, shall never have the effect of absolving an accused of the commission of an offence which is otherwise established up to the hilt by the testimony of the reliable witnesses supported with medical evidence.
47. For the foregoing reasons, it is held that accused Yousuf committed Qatl-i-Amd (intentional murder) of deceased Saleem and consequently his conviction under section 302, P.P.C., is hereby maintained.
48. This brings us to the question of sentence awarded to accused Yousuf for the commission of offence of murder. A resume of the prosecution evidence shows that quarrel started on a very petty matter. According to prosecution case, P.W. Muhammad Waseem was not given the way to his house as the road was already blocked with the Sofas. P.W. Waseern asked accused Yousuf and his brother Saleem alias Tidda to remove the Sofas on which a quarrel took place. Subsequently, P.W. Saeed, went to the accused persons followed by deceased Saleem and thereafter the situation flared up. P.W. Saeed has stated at trial that after accused Saleem and Yousuf brought T.T. Pistols, they started firing in the air and ultimately accused fired a shot at Saleem on his head. All these facts indicate that the death of deceased Saleem by accused Yousuf was not the result of premeditated intention but the incident took place by flaring up of emotions and the intention to fire at Saleem developed at the spur of moment.
We have already held that the prosecution has failed to establish that father of accused Saleem namely accused Islamuddin Qureshi instigated his two sons to kill the complainant party. Thus, we are of the opinion that neither there was any premeditated intention to kill nor there was any motive to do so. In our opinion the circumstances preceding the commission of offence provide mitigating circumstance warranting conversion of death sentence to imprisonment for life. The learned trial Court has very rightly observed that in the absence of evidence in respect of Tazkiyah-al-Shuhood of the prosecution witnesses the requirements of section 304, P.P.C, have not been met and therefore, punishment by way of Qisas cannot be awarded. The learned trial Court has therefore, awarded punishment by way of Tazir under section 302(b), P.P.C. However, the learned trial Court has not considered the circumstances proceeding immediately before the incident.
49. After considering the attending circumstances, we convert the sentence of death awarded to accused Yousuf, to the imprisonment for life. The convict is further sentenced to pay compensation as Rs,50,000 to the legal heirs of the deceased under section 544-A, Cr.P.C., and in default thereof to suffer simple imprisonment for six months more.
50. Consequent to the above findings, the Criminal Appeal No,30 of 2003, at the instance of accused Yousuf and Islamuddin Qureshi, is partly allowed to the extent of setting aside of conviction and sentence awarded to accused Islamuddin Qureshi for the commission of offence under section 337- F(1), P.P.C. The appeal at the instance of appellant/accused Yousuf son of Islamuddin Qureshi, is dismissed with the conversion of sentence from death to life imprisonment and awarding of compensation under section 544-A, Cr.P.C. The two acquittal appeals at the instance of complainant are hereby dismissed. With the conversion of death sentence to life imprisonment, the confirmation Reference No,1 of 2003 is hereby rejected.