MUHAMMAD SHARIF J.-Muhammad Ajmal, the appellant has been convicted under sections 452 and 302, of the P. P. C. He has been awarded capital punishment under section 302, P. P. C. And has been ordered to pay Rs, 5,000 as fine or in default thereof to suffer R. I., for a period of two years. Rs, 5,000 have been awarded by way of compensation to the heirs of the deceased as envisaged under section 544-A of the Cr. P. C. He has been convicted under section 452, P. P. C. And has been ordered to suffer R. I., for five years in addition to a fine of Rs, 1,000. In default of the payment of fine, he has been directed to undergo further six months' R.I. Muhammad Ajmal has preferred this criminal appeal against his conviction and sentence. The learned Additional Sessions Judge, Bahawalnagar, who pronounced the judgment against the appellant on 31st January, 1982 has referred this case to us under section 374 of the Cr. P. C., for the confirmation of the death sentence.
An appeal against the acquittal of Muhammad Yaqoob, the alleged accomplice of Muhammad Ajmal has also been filed. Both the appeals and this murder reference have been heard together and are being disposed of by means of this consolidated judgment.
2. The facts which led to the detection of this crime in substance are that Mr. K halid Farooq Wattoo Advocate, Bahawalnagar had two wives namely Mst. Nusrat and Mst. Shaheen Rizwana. Mst.
Shaheen Rizwana is the sister of Muhammad Ajmal appellant and the daughter of Maulvi Muhammad Latif. Mst. Shaheen Rizwana indulged in civil litigation against her father Maulvi Muhammad Latif regarding landed property which was decided in her favour in April, 1979. That decision was based on the oath of Mr. Khalid Farooq wattoo, Advocate, which he had taken after holding the Holy Quran in his hands. Maulvi Muhammad Latif, the father-in-law of Mr. Khalid Farooq Wattoo took exception to the said oath which culminated in the decision of the civil suit in favour of his daughters namely Mst. Shaheen Rizwana and Mst. Zahida Parveen and threatened that he would slake the instinct of revenge by getting Mr. Khalid Farooq Wattoo murdered. In order to give vent to this grievance, Maulvi Muhammad Latif is alleged to have hatched an effective conspiracy to murder Mr. Khalid Farooq Wattoo. Accordingly on 21st May, 1979 at about 7-30 p. m., Mr. Khalid Farooq Wattoo was sitting on a sofa in his drawing room.. Mr. Muhammad Tayyib Advocate, the brother-in-law of Mr. Khalid Farooq Wattoo, the complainant in this case, was also sitting in the same drawing room. Munshi Ghulam Qadir, Ghulam Murtaza Wattoo, a Girdawar were present in the office and in the meantime, Umair Farooq, the son of Mr. Khalid Farooq Wattoo, Advocate entered the drawing room with a receptacle of water. Muhammad Ajmal, the appellant, while armed with a revolver entered the drawing room with some other unknown person and commenced indiscriminate firing at Mr. Khalid Farooq Wattoo. After the receipt of a number of fire- arm injuries, Mr. Khalid Farooq Wattoo tilted on the sofa and Muhammad Ajmal brought out a knife from the upper portion of his shalwar and gave a knife blow on the back of Mr. Khalid Farooq Wattoo. The unknown accomplice of the appellant also gave a knife blow on the back of Mr. Khalid Farooq Wattoo. On hearing the report of firing Munshi Ghulam Qadir and Ghulam Murtaza Wattoo rushed to the drawing room from the office and Mn. Nusrat wife of Mr. Khalid Farooq Wattoo strode to the drawing room from inside the house and all of them witnessed this occurrence. The assailants ran away after injuring Mr. Khalid Farooq Wattoo.
3. Mr. Khalid Farooq Wattoo was taken to the hospital where he was afforded medical aid and was examined by Dr. Shabbir Ahmad Goraya, P. W.
3. Mr. Muhammad Tayyib Advocate drafted the report Exh. P. Q., and the formal F. I. R. Exh. P. Q./1 was recorded on the basis of the said complaint. Mr. Khalid Farooq Wattoo expired at about 2-15 a. m., on the same night. Dr. Shabbir Ahmad Goraya, P. W. 3, conducted the autopsy on his dead body and observed the following injuries :-
(1) A circular wound on the left shoulder lateral side with the dimension 1/6" x I" and going back of the chest and deep.
(2) A circular wound on the posterior surface of the left upper arm with the dimension 1/6" x 1/6" and going back of the chest.
(3) Two circular wounds on the left scapular region of about the same size and shape. It may be a wound of exit of the wounds number one and two.
(4) A wound on the top of left shoulder of about the same size and shape as above.
(5) A circular wound on the right upper chest in the right third intercostal space close to the sternum. The size was 1/6" x 1/6" versus lungs deep. It was a wound of entrance.
(6) Two stab wounds on the left chest back almost in the middle which was of an equal size and shape with the dimension of 1" x x
(7) A wound on right lower back (lumber region) of the same size and shape as above but deep into the abdomen.
(8) One wound on the left frontal head of the same size and shape as above but deep into the brain. It was a wound of entrance.
(9) A swelling on the right side of the frontal head just above the right ear with the dimension of 2" x 2".
This medical expert has opined that injuries Nos. 5, 6 and 8 proved fatal and dangerous to life.
4. On 2nd June, 1979 the appellant was arrested. On 4th June, 1979, while in police custody, the appellant got recovered the revolver Exh. P. 7 which he had concealed under the earth near the service road of Fordwah Canal. The pistol contained 7 empties Exh. P. 8/1-7 in its chamber. It was secured into sealed parcel vide memo. Exh. P. M. The identification parade of Muhammad Yaqoob accused was held. He got recovered the dagger Exh. P. 9 on 5th June, 1979 after digging the earth near the service road of Fordwah Canal. After the completion of the investigation the challan of the appellant, Muhammad Yaqoob and Maulvi Muhammad Latif, the father of the appellant was submitted. As a sequel to the impugned trial, the appellant was awarded the aforementioned punishment wheareas Muhammad Latif and Muhammad Yaqoob were extended the benefit of doubt and acquitted.
5. Mr. Muhammad Tayyib Wattoo P. W..9, Umair Farooq P. W. 10 and Ch. Ramzan Ali Advocate, P. W. 11 have furnished an ocular account of this incident. Mr. Muhammad Tayyib Wattoo Advocate, Bahawalnagar, who happens to be the sister's husband of the deceased, has narrated the incident as stated in the report Exh. P. Q. He has clarified that he was present in the drawing room in connection with the preparation of cases. He has stated that Muhammad Ajmal and an unknown person who was subsequently identified as Yaqoob, had entered the drawing room of the deceased. Ghulam Murtaza Wattoo, Girdawar and Munshi Ghulam Qadir were present in the office.
According to them, Umair Farooq, a minor son of the deceased, had brought water and Muhammad Ajmal fired with his revolver at Mr. Khalid Farooq Wattoo a number of times and after exhausting the bullets, he gave a knife blow on the back of the deceased. The deposition of Mr. Muhammad Tayyib Advocate, P. W. 9 has been assailed mainly on the ground that he happens to be a relative of the deceased and claimed to have joint practice with the deceased, but the deceased did not claim any rebate in the income-tax on the basis of their joint practice. An interested witness is one who has a motive to falsely implicate an accused. Mr. Muhammad Tayyib Wattoo had no motive to falsely involve Muhammad Ajmal, the appellant in this case. It is but natural that Mr. Muhammad Tayyib Wattoo, a novice in the profession, had gone to the house of the deceased in the evening when usually all the Advocates prepare cases for the next day. This witness has not been questioned as to what were the terms of their joint professional engagements. It has not been asked whether Mr. Muhammad Tayyib Wattoo was paid his rumeneration in cash or did he share a portion of the joint income or whether he was still a trainee.
In the absence of these clarifications it is not safe to infer that the factum of having no rebate in the income-tax has falsified this witness.
6. Umair Farooq P. W. 10 was a student of 10th class when he made a statement before the learned trial Court. He has corroborated the statement of the complainant in its minor details. It has been sugges. Ted to him that be never lived in the house where this murder was committed and he lived in his house in Muzaffar Street. His presence at the time of the commission of this crime is, therefore, doubted. The learned trial Court has observed that before the purchase of the new house, both the wives of the deceased lived together in Muzaffar Street and it is not improbable that after the purchase of a new house both the wives had shifted to the house situate in Urdu Bazar. I see nothing wrong with the residence of this child witness with his father in Urdu Bazar. It was a summer season and the demand of water by the deceased or the persons present in the drawing room is natural. The learned trial Court has noted the demeanour of this witness in the terms that he had promptly responded to the questions of the learned defence counsel.
7. Ch. Ramzan Ali Advocate, P. W. 11, is an independent witness who has lent full corroboration to the prosecution case. He had come to the house of the deceased to discuss a legal prosposition confronting him in a civil appeal namely Mst. Suban etc. v. Mst. Waziran etc. He had testified that the Parat Nikah was placed on the file and not exhibited and he intended to discuss with the deceased the effect of such omission and the non-production of Nikah Khawan or the witnesses of nikah in that appeal: The appellant placed on the file copy of a judgment pronounced by Ch. Muhammad Ali, Civil Judge 1st Class, Chishtian Exh. D. H., which is indicative of the fact that the nikahnama had been exhibited. It is a fact that the said appeal was pending in which Ch. Ramzan Ali, P. W. 11, had been engaged as a counsel. The mere fact that the nikahnama had been exhibited, is not enough to discredit the testimony of this witness because nobody is infallible and Ch. Ramian Ali, like, other human beings, must have been a prey to oblivion. The learned trial Court has, therefore, rightly relied on the statement of this ocular witness.
8. It was contended on behalf of the appellant that the jug and the glasses brought in the drawing room by the son of the deceased and the brief left by Ch. Ramzan Ali Advocate were not found in the drawing room and, therefore, it should be taken to mean that both these witnesses bad come forward just to lend assistance to the prosecution case. The taking possession of these articles was not very material and furthermore it is attributable to the degree of efficiency and care of the Investigating Officer. This argument is devoid of any force. The story of the recoveries of the weapons of offence has rightly been disbelieved by the learned trial Court.
9. The motive for the commission of this crime cannot be concealed. Exh. P. R., is the copy of agreement of sale entered into between Muhammad Latif, the father of the appellant and his daughters Mst. Shaheen Rizwana wife of the deceased and Mst. Zahida Bibi, the wife of Mian Maqbool Ahmad Wattoo. About 300 Kanals of land was agreed to be sold in favour of his daughters by the appellant's father in consideration for a sum of Rs, 50,000 and Rs, 30,000 had been received as advance money. The vendor did not perform his part of the contract and both his daughters brought a suit for the specific performance of the contract. During the pendency of the said sui, Maulvi Muhammad Latif, the appellant's father made an offer that in case his daughters or the husbands of his daughters made a statement on the Holy Quran that the bargain was transacted for Rs, 50,000 and he had received Rs, 30,000 as part payment of the sale price, then the suit of his daughters be decreed. The copy of his statement is Exh. P. U. This offer was accepted and as evidence from Exhs. P. X. And P. Y., both Mr. Khalid Farooq Wattoo and Mian Maqbool Ahmad Wattoo took the proposed oath. The copy of the judgment is Exh. P. 2 which shows that on the basis of the statement of the vendor and the husbands of the vendees, a decree was passed against the father of the appellant. The appellant is one of the affectees of this judgment being the heir of his father and he certainly nourished a grievance against Mr. Khalid Farooq Wattoo who was an eminent Advocate and was believed to be instrumental in the institution of the suit on behalf of his wife as well as the wife of Mian Maqbool Ahmad Wattoo. The appellant was really motivated to kill his brother-in-law on a piece of land measuring about 300 Kanals.
10. It has been conceded by the appellant that be had gone to Karachi in search of a job and had gone to Col. Muhammad Anwar who is an employee of the Steel Mills, Karachi. The plea of alibi has been taken by the appellant but has not been substantiated. He could have examined Col. Muhammad Anwar who could depose about the purpose of the appellant's arrival in Karachi, but Col. Muhammad Anwar has not been produced. The ocular witnesses state that they had seen'
Muhammad Ajmal murdering Mr. Khalid Farooq Wattoo and his absconf dence serves a good piece of corroboration against him.
11. It has been contended by the learned counsel for the appellant that the police did not take any proceedings under section 87 of the Cr. P. C., against the appellant which suggests that the story of abscondence is a concocted affair. In Bacha Said v. The State , it has been held that proceedings for declaring an accused as a proclaimed offender under section 87 the Cr. P. C,, are not sine qua non for treating such accused as absconder for the purpose of raising any presumption of guilt against him. In accordance with the said precedent, it is not imperative that the prosecution must prove that the proceedings under section 87 of the Cr. P. C., were really taken after declaring the accused a proclaimed offender. It appears to us that the appellant had absconded after the commission of this crime as he dreaded the ordeal of a criminal trial.
12. The F. I. R. Was lodged with due promptitude. An attempt has, been made to create doubts regarding the time of this occurrence. Dr. Shabbir Ahmad Goraya, P. W. 3 had performed the autopsy on the dead body of Mr. Khalid Farooq Wattoo and the autopsy report Exh. P. C., is1 indicative of the fact that he was brought to the hospital on 21st May, 1979. The date of examination has been scribed as 22nd May, 1979. The date underneath the signature of this medical officer is also 22nd May, 1979. The learned trial Court has remarked that this medical expert was more interested in saving the life of renowned lawyer and after administering medical aid to the injured Advocate, he wrote this report afterwards and inadvertently scribed the date as 22nd May, 1979 thrice on this document. It may be noted that the police officer had querried the doctor whether or not Mr. Khalid Farooq Wattoo was fit to make a statement. The querry was made on 21st May, 1979 and the medical officer had certified on 21st May, 1979 that Mr. Khalid Farooq Wattoo was unconseious and was unable to make any statement. It shows that Mr. Khalid Farooq Wattoo was brought to the hospital just after this incident and the incident did not take place in the late hours of night.
13. It was contended that Yaqoob had lent a helping hand to the appellant in killing Mr. Khalid Farooq Wattoo and had given a stab wound on the back of the deceased. Yaqoob had no motive to kill Mr. Khalid Farooq Wattoo. He was not named in tha F. I. R. And is stated to be an unknown assailant. He was known to Ch. Ramzan Ali Advocate P. W. 11 before this incident and was seen by Mr. Muhammad Tayyib Wattoo and Umair Farooq as he runs a carpenter shop in the vicinity of the venue of the crime. His name should have been known to the complainant when the latter had gone to the Police Station, but strangely enough his name was not known for a couple of days and an identification parade was conducted which appears to be a farce as Yaqoob was known to the ocular witnesses except Mst. Nusrat who has not been examined. He has rightly been acquitted by the learned trial Court.
14, The learned counsel for the appellant with reference to Shaukat v. The State , represented that the appellant, according to the prosecution story, was acting under the influence of his father and he deserved lesser penalty for this offence. In the said precedent the mother of the assailant was present on the spot and had provoked the appellant to kill his victim. The principle enunciated in the said precedent cannot safely be extended to the facts of this case. Firstly because the father of the appellant was not present at the time of commission of this crime and secondly the appellant was about 30 years of age when be committed this crime and was not devoid of exercising discretion in this matter. He brutally killed his brother-in-law on the dispute over the land which had been purchased by the wives of the deceased and Mian Maqbool Ahmad" Wattoo. There is no mitigating or extenuating circumstance in favour of the appellant. The learned trial Court has rightly exacted the capita punishment on the appellant under section 302, P. P. C. For committing grisly murder of a renowned Advocate of Bahawalnagar. He had also committed an offence under section 452, P. P. C. And the term of sentence awarded to him under this section does not appear to be disproportionate to the nature of the offence committed by the appellant. I, therefore, confirm the death sentence awarded to the appellant. The reference is answered accordingly. The appeal lodged by the appellant and the appeal against the acquittal of Muhammad Yaqoob fail and are dismissed.
KHIZAR H AYAT, J.-Having gone through the judgment of my learned brother Muhammad Sharif, J.
Proposed to be delivered in this case, I find myself in agreement with his Lordship's conclusions that both the appeals one filed by Muhammad Ajmal appellant against his conviction and sentence and the other filed by the State against the acquittal of Muhammad Yaqoob merit dismissal and death sentence of Ajmal must be confirmed but as I feel somewhat differently about evidentiary value of certain pieces of evidence on record, therefore, I would add a few remarks of my own.
2. From amongst the eye-witnesses, I doubt if Ch. Ramzan Ali, Advocate (P. W. 11) was present with the deceased at the relevant time discussing a legal proposiLion confronting him in an appeal titled Mst. Suban etc. v. Mst. Waziran pending in the Court of District Judge, Bahawalnagar. The witness has asserted that the second assailant of Khalid Farooq deceased was Muhammad2 Yaqoob respondent (acquitted accused), whom he knew well, long before the occurrence, but astonishingly his name is missing in the F. I. R. Ch. Ramzan Ali explained that he had not told the name of Muhammad 'Yaqoob to Muhammad Tayyib (first informant) before he left for making the report presuming that he might be knowing him. Muhammad Tayyib, Advocate the first informant stated that he did not know Muhammad Yaqoob previously. He rushed to the Police Station for report directing other persons to take the deceased to the hospital. By stating so he wanted to give an impression that being in hurry for lodging the F. I. R. Promptly he did not ask the particulars of the second assailant from the other eye-witness, who knew him. I am not pursuaded that Muhammad Tayyib P. W. Who is an Advocate by profession would have left for the report without conferring with the witnesses present at the spot particularly as to the identity of the assailant. To accept the above explanations of the P. Ws. Would tantamount to doing violence to intelligence.
The matter does not end here. Even the inquest report Exh. P. G. Drawn up after the death of Khalid Farooq at 2-15 a. m. Is silent as to identity of the second assailant although Ch. Ramzan All's statement was recorded by the Investigating Officer at 9-10 p. m. In the hospital wherein he described the second assailant as Muhammad Yaqoob. This would indicate that Ch. Ramzan Ali's statement was not available with the police till the drawing up of the Inquest Report which would mean that this witness. Was neither with the deceased at the time of attack nor was he by his side in the hospital when he expired. The fact that his brief (Subhan etc. v. Waziran) allegedly left by him at the spot was not found there by the Investigating Officer has further confirmed my doubts particularly when Munshi Ghulam Qadir has been posted to guard the place of occurrence, till the arrival of the police.
The question arises that if Ch. Ramzan Ali was not there then to whom Umair Farooq (P. W. 10) had come to serve water in the drawing room. The Sub-Inspector did not find the water-set also at the spot during his inspection. My answer to this would be that since the occurrence took place in a part of the house, were Umair lived, therefore, he would have reached the spot with his mother hearing numerous reports of the gun-fires from the drawing room and seen the occurrence as the assailants stayed there for quite some time and gave numerous injuries to the deceased with different weapons.
3. I further find that Muhammad Tayyib P. W. In order to explain the omission of Muhammad Yaqoaob's name in the F. I. R. Coined an explanation of rushing hastily to the Police Station as if he was worried more for the report than the life of his brother-in-law. My impression, therefore, is that Muhammad Tayyib being a junior and close relative of the deceased was definitely present with the deceased at the time of attack made at evening time when the Advocates normally work in their offices, but I would not believe that the F. I. R. Exh. P. Q. Was made in a hurried fashion as this witness wants us to believe. Studying the F. I. R. One feels that the informant took some time in collecting the information about the civil suit decreed in favour of the wife of the deceased and also about the incident wherein Maulvi Abdul Latif (acquitted accused) issued threats that he would get the deceased murdered. However, I feel sure that the report was not delayed unnecessarily and was rather lodged with reasonable promptitude. The doctor has stated that Khalid Farooq was brought in the hospital in injured condition at 7-45 p. m. Which means that some witnesses were definitely around him when he was fired at and that is why he was immediately removed to the hospital. S. H.O. Faiz Muhammad (P. W. 15) claims to have started writing F. I. R. Exh. P. Q. At 7-45 p. m. The doctor has stated that Khalid Farooq deceased was brought in injured condition to the hospital at 7-45 p. m and that S. H.O. Faiz Muhammad arrived in the hospital as soon as the injured was brought there. It was, therefore, physically impossible for S. H.O. Faiz to be present recording F. I. R. At the Police Station and to be simultaneously present with the deceased in the hospital. In these circumstances, it appears to me that Muhammad Tayyib (first informant) had taken Khalid Farooq to the hospital in an injured state and after arrival of S. H.O. There he drafted and handed over complaint Exh. P. Q. To him.
4. There is yet another circumstance which had attracted my notice i. e. Recovery of knife P. 5 from the spot allegedly left by Ajmal appellant at the spot, which learned trial Court has used as corroboration which is not correct for there is no evidence showing this weapon as belonging to the appellant. Ch. Ramzan Ali tried to fill in the gap by saying that it was the same knife which the appellant had used in the occurrence but when further questions were put he conceded that he would not be able to pick up the same if mixed up with other similar knives.
5. On overall appraisal of the evidence on record, I find that the testimony of Muhammad Tayyib (first informant and Umair Farooq coupled with the evidence of motive and abscondence successfully brought home the charges of murder and criminal house trespass to the appellant who has been rightly convicted and in the circumstances of the case, the appellant rightly deserves the death penalty. PLD 1978 SC 102 1981 P Cr. L J 1348