The appellants were tried by the learned Additional Sessions Judge, Rawalpindi in case FIR No, 522, dated 7.11.2005 under Section 302/34 PPC registered against the appellants at Police Station Airport for the charge that at 01.30 p.m. on 07.11.2005, they committed Qatl-iAmd- of Yasir Shahzad son of the complainant. The learned trial Judge on the conclusion of the trial, vide judgment dated 28.2.2007, convicted both the appellants under Section 302(b) PPC and sentenced them to, undergo imprisonment for life and also ordered them to pay an amount of Rs, 200,000/- each as compensation under Section 544-A of the Cr.P.C. to the legal heirs of the Yasir Shahzad/deceased and in case of default thereof the convicts were to suffer S.I. for six months. Both the appellants being declared juvenile, their trial was conducted under Juvenile Justice System Ordinance, 2000.
The benefit admissible under Section 382-B Cr.P.C. was extended to them.
2. Umair Yaqoob and Waqas Yaqoob alias Gama, Appellants No, 1 and 2, respectively, feeling aggrieved by the impugned judgment have challenged the same through the Criminal Appeal in hand bearing No, 59/2007, whereas Imtiaz Hussain, complainant has filed Criminal Revision No, 130 of 2008 for enhancement of sentence and of the amount of compensation. This single judgment will dispose of both the matters.
3. The prosecution story in brief is, that on the day of occurrence i,e, 07.11.2005, at about 01.30 p.m. the complainant Imtiaz Hussain, PW-12, along with his son Yasir Shahzad/deceased in the area of Dhoke Lalyial, Tehsil District Rawalpindi was proceeding towards Sarfraz General Store when the appellants Umair Yagoob armed with dagger while Waqas Yagoob alias Gama armed with chhurri, aged about sixteen and half years and seventeen and half years respectively, emerged there. The latter raised lalkara and gave a churri blow at the left flank of Yasir Shahzad while Umair Yaqoob gave a dagger blow on the right arm of Yasir Shahzad, who succumbed to the injuries in the hospital.
4. Explaining the motive, it was disclosed that Yasir Shahzad/deceased had a quarrel with the appellants a few days prior to the occurrence, which caused annoyance to the appellants and they were on a look to take life of the Yasir Shahzad.
5. At the trial, the prosecution, in order to prove the guilt of the appellants examined fourteen witnesses and abandoned the remaining P.Ws. PW-1 Zafar Iqbal escorted the dead body of Yasir Shahzad to the hospital for postmortem examination. PW-2, Khurram Shahzad, draftsman prepared the scaled site-plan of the place of occurrence. PW-3 Noor Muhammad received the sealed parcels of bloodstained cotton; churri-numa-dagger along with the parcel of churri/P-3 and kept them in Malkhana and further handed over these parcels to Muhammad Ashraf for onward transmission to the concerned offices. PW-4, Dr. Shaheen Akhtar medically examined Yasir Shahzad injured and recorded the following observations in his report Exh. PB and final opinion Exh.
PB/1:-- (1)Large incised wound over right cubital fossa about 15cm x 5 cm muscle deep bleeding profusely.
(2)Stab incised wound about 2.5 cm x 1.5 cm (depth not probed due to risk of infection) over 11th inter costal space. In posterior axillary line on the flank Chest intubation done. Corresponding holes on clothes are present.
According to the opinion of the Medical Officer Injury No, 1 was consistent with Itlaf-i-Salahiyaat-i- udw, while Injury No, 2 was declared as Jurh Jaifah and also Ghyar-Jaifah-Hashimah due to the rib fracture.
PW-5 Muhammad Nawaz, S.I. is the scribe of the FIR Exh. PC. PW-6, Muhammad Ashraf witnessed the recovery of churri P-3 from Umair Yaqoob, Appellant No, 1 and also signatory of Exh. PD. He also witnessed the recovery of brick P-2 and signed the recovery memo. Exh. PF. He further witnessed the recovery of churri P-3 from Waqas Yaqoob alias Gama, Appellant No, 2 and signed the recovery memo. Exh. PF. He also received the sealed parcels of blood-stained cotton and churries and transmitted the same to the offices concerned. PW-7, Ejaz Ahmad received the blood-stained shirt and Banyan P-4 and P-5, respectively and handed over the same to the I.O. who secured the same through recovery memo. Exh. PG, which was signed by the PW-7. He is also a witness of recovery of brick P-2 and churri P3. He signed recovery memo. Exh. PE and Exh. PF. PW-8, Mazhar Hussain identified the dead body of Yasir Shahzad. PW-9, Sher Nawaz being recovery witness of the recovery of the blood from the place of occurrence signed recovery memo. Exh. PJ. PW-10, Hafiz Muhammad Qasim Khan conducted the autopsy upon the dead body of Yasir Shahzad deceased and observed as under:--
1. A depression 5 cm x 4cm on left parietal area of vertex.
2. An incised wound 2.5 cm x 1-1/2 cm on left side of lateral part of hypochondrium at 11th inter- costal space on posterior axillary line.
3 An incised wound 24 cm x 8 cm on ventral side of right arm and right forearm 6 cm from axilla to 14 cm from wrist.
4. An incised wound 1/-1/2 cm x 1 cm on left side of lateral side of chest, 8 cm from left nipple (for chest intubations).
5. A stitched wound 19 cm along on middle of abdomen (surgical laparotomy wound).
6. An incised wound 1 cm x 1/2 cm on right side of abdomen (for drain).
On Dissection: A depressed fracture 5x4 cm on left parietal bone at vertex a large hematoma (subdural) present under the bone. Left kidney was ruptured badly and found in pieces.
Opinion In the opinion of the doctor cause of death was head injury in association with the injury to the left kidney. All injuries were ante mortern in nature. Injury No, 1 was caused by blunt weapon. Rest by sharp weapons. Such injuries were sufficient to cause death in ordinary course of nature. Probable time between injury and death was within four hours while between death and postmortem was one hour. PW-11, Muhammad Azeem and PW-12, Imtiaz Hussain furnished the ocular account of the occurrence. PW-13, Dr. Shahid Safdar operated upon Yasir Shahzad/deceased and recorded his observations in the report Exh. PN. Latif, S.I. Police Station, Airport, P.W.-14 proved the investigation of the case. The witnesses namely Arshad Mehmood, Raja Zafar Mehmood, Kamal Hussain and Irfan were given up being unnecessary.
6. The appellants, on conclusion of the prosecution evidence, were examined under Section 342 Cr.P.C. In their statements they denied the charge and pleaded innocence. However, they did not opt to lead any evidence in defence nor appeared themselves as their own Witnesses in terms of Section 340(2) Cr.P.C. At the conclusion of the trial, the learned Additional Sessions Judge, Rawalpindi hgld them guilty of the offence and accordingly convicted them as stated above.
7. Learned counsel for the appellants argues that Dr. Shaheen Akhtar, PW-4 who medically examined the injured found two injuries on the person of Yasir Shahzad/deceased, detailed above.
After the death of Yasir Shahzad, postmortem of his body was conducted on 11.11.2005 at 01.30 hours by Dr. Hafiz Muhammad Qasim Khan, PW-10. According to his statement, the cause of death was the head injury caused by a blunt weapon, which in his report Exh. PK has been numbered as,Injury No,
1. He has in cross-examination admitted that Injuries No, 2 and 3 were caused by a weapon having both of its edges sharp. These injuries numbered as 2 & 3 in Exh.PK have been numbered as 2 & 1 in Exh.B.
8. In order to see as to whether churn P-3 and dagger P-1 had both of their sides sharp, the same were requisitioned. After having opened their respective scaled covers, those were examined in open Court in the presence of learned counsel for the parties. It transpired that churri P-3 had only one of its sides sharp while its other side blunt. It is argued that Injuries No, 2 and 3 have not been caused by churri P-3. These injuries cannot be attributed to Waqas Yaqoob, alias Gama, Appellant No, 2, who was allegedly armed with churri P-3, which was not blood-stained when recovered. The dagger (churri-numa-khanger) had both of its sides sharp so both these injuries might have been inflicted with the dagger P-1. The same may perhaps be attributed to Umair Yaqoob, Appellant No, 1 who was allegedly armed with the dagger P-l. But PW-11 and PW-12, the eye-witnesses have attributed only one-dagger below to Umair Yaqoob, Appellant No, 1 that landed on left side of lateral part of hypochondrium at 11th inter costal space on posterior axillary line of Yasir Shahzad/deceased. The important aspect of this case is that only Injuries No, 2 and 3 find mention in the injury statement Exh. PP and the medico legal report Exh. PB, as Injuries No, 2 and 1 but as per postmortem report Exh. PK prepared by PW-10, there was a third injury on the head of the deceased that has been caused by a blunt weapon that is brick P-2. Injury No, 1 has been opined to have caused death of Yasir Shahzad, deceased. It measures 5 cm x 4 cm on left parietal area of vertex, which has not been noted by the I.O. at the time of preparation of injury statement and by the medical officer PW-4 who prepared the postmortem report Exh. PB. This injury having swollen and bumped out could not escape the notice of the I.O. and the Medical Officer.
9. The learned Deputy Prosecutor. General and the learned counsel for the complainant have supported the judgment passed by the learned trial Court and contended that the conviction should be maintained and the sentence should be enhanced from life imprisonment to capital sentence and that the amount of compensation should also be enhanced.
10.I have heard learned counsel for the appellants as well as the learned Deputy Prosecutor General and have also gone through the record. After going through the medical evidence and inspecting of dagger P-1 and churri P-3, I feel that Injuries No, 2 and 3, as shown in the postmortem report Exh. PK cannot be attributed to Waqas Yaqoob alias Gama, Appellant No, 2, who allegedly was armed with churri P-3, which at the time of recovery was not found stained with blood. His presence at the place of occurrence is also not proved. The Injury No, 1 mentioned in postmortem report Exh. PK cannot be attributed to any of the appellants because it was not found at the time of preparation of injury statement Exh. PP and medico legal report Exh.PB. It seems to be a callous devise of some person having the charge of injured Yasir Shahzad/deceased. The motive of its infliction could be to entangle the appellants in more serious an offence. Waqas Yaqoob alias Gama, Appellant No, 2 is acquitted of all the charges and. shall be released immediately if not required in any other criminal case. Umair Yaqoob, Appellant No, 1 is acquitted of the charge under Section 302 PPC, as Injury No, 1 mentioned in report Exh.PK caused with a brick cannot be attributed to him. However, he has caused Injury No, 2 to Yasir Shahzad/deceased with dagger P-1. The seat of injury shows that he has caused these injuries with the intention to cause death of Yasir Shahzad. It amounts to an attempt to cause Qatl-i-Amd. He is convicted under Section 324 PPC. While considering his tender age at the time of commission of offence, a lenient view is taken. He is sentenced to R.I. for six years. He shall also pay Rs, 10,000/- (rupees ten thousand) as fine. In case of default in payment of the fine, he shall further undergo S.I. for six months. He is also convicted under Section 336 PPC for having caused Itlaf-i-Salahiyaat-i-Udw, as the kidney of the deceased is ruptured and found in pieces. The punishment for this offence is Qisas, but in causing similar injury to the said convict/appellant, there might be serious apprehension to his life. The chance of aggravation of the injury cannot also be ruled out. An authorized Medical Officer has to be consulted. The Medical Superintendent of Benazir Hospital, Rawalpindi was directed to depute one of the Specialists/Urologists of the hospital to give his opinion in the terms of Section 336 PPC. Dr. Masroor Hussain..
Malik, Senior Registrar, Department of Urology of the said hospital appeared on 31.3.2010 and made the following statement/opinion:-- 'It is consistent with Itlaf-i-Salahiyyat-i-Udw, but by removing the kidney and cutting into pieces, is not without risk of enhancing the injury."
It be made part of the record). In the light of the opinion of the said Medical Officer, I am of the view that punishment of Qisas is not executable in this case. Umair Yagoob, Appellant No, 1 shall be liable to pay Arsh. Keeping in view the financial position of the convict and the heirs of the victim as provided under Sections 336, 337 and 323 PPC, the amount of Ursh payable by the convict/Umair Yaqoob, Appellant No, 1 to the heirs of Yasir Shahzad/deceased, is fixed at Rs, 6,00,000/- (rupees six lacs). Half of the said amount shall be paid on or before the 30th of June 2010. The remaining half shall be paid on or before the 30th of September 2010. In case of non-payment of the amount of Arsh, as fixed above, he shall be dealt with in accordance with the Provisions of Section 331 PPC. He shall also undergo R.I. for a term of six years as Tazir. Both the sentences under Sections 324 and 336 will run concurrently.
11.This appeal is partially accepted. The dagger P-1 and the churri P-3 are ordered to be returned by hand to the Sub-Inspector, present in Court. The same shall be confiscated after the period of filing any petition before the august Supreme Court of Pakistan is over.
12.In view of the judgment passed in Criminal Appeal No, 59 of 2007, the Criminal Revision No, 130/2008 filed by Imtiaz Hussain is hereby dismissed.