Javed Sheikh aged about 37 years has been convicted un, sections 302 and 307 of Pakistan Penal Code by Mr. Muhammad Azeem Khan Niazi, Additional Sessions Judge, Lahore by his judgment, day the 13th December, 1978, for the murder of Sabir Hussain (decease and attempted murder of Manzoor Hussain (P.W.5) and sentenced under section 302, P.P.C. To imprisonment for life and to pay a fine of Rs 5,000 in default whereof to undergo further R.I. For three years, and under section 307, P.P.C. To 7 years' R.I. And to pay a fine Rs.3,000 in default whereof to undergo further R.I. For 2 -- years. Out of the fine, if realised, Rs.5,000 was ordered to be paid as compensation to the heirs of the deceased and Rs.3,000 to Manzoor Hussain P.W. Both the sentences to run consecutively.
Javed Sheikh has appealed against his conviction whereas Javed Iqbal, a nephew of the deceased has filed a revision, praying for enhancement of sentence awarded to the appellant, which has been --directed to be heard alongwith this appeal. Both the appeal and revision are being disposed of by the same order.
2. The occurrence tools' place on the 16th of November, 1976 at about 12-30 p.m. At Khawaja Auto Engineers, General Bus Stand, Badami Bagh, Lahore situated at a distance of less than a furlong from Police Post, Badami Bagh and at a distance of 3 -- miles from Police Station Misri Shah.
Statement Exh.P.F. Was made by Javed Iqbal (P.W.7) at 2 p.m. The same day which was recorded by P.W.11 Rehmat Ali A.S.-I. In Mayo Hospital, Lahore. The formal F.I.R. Exh.P.F./1 was recorded by P.W.16 Sarwar Hussain A.S.-I. At 2-30 p.m. The appellant was arrested on the 21st November, 1976 and on the same day he led to the recovery of dagger (P.1) which was dugout from near a tree in the area of Muslim Health Club, Iqbal Park, Lahore, and the same was taken into possession, vide memo.
Exh.P.B. Attested by Ittefaq Hussain (P.W.2), a brother of the deceased and Rashid Ahmad besides the investigating Officer. The other recovery witness, namely, Rashid Ahmad was not produced. The dagger P.1 was despatched to the Laboratory and the Serologist, vide his report Exh. P.S. Found the same to be stained with human blood.
The ocular account is furnished by Javed Iqbal P.W.7, the nephew of the deceased, and an injured witness Manzur Hussain P.W.5, the brother of the deceased. Two workers of the workshop, namely Muhammad Shafiq and Sajjad Butt were mentioned in the F.I.R. As eye-witnesses but they were not produced being unnecessary.
Real maternal-aunt of the appellant is married to Ittefaq Hussain P.W.2, and Ittefaq Hussain P.W.2 and Fazal Hussain (P.W.4) are both real brothers of the deceased.
3. Succinctly stated the case for the prosecution is that by way of family arrangement about 3 years prior to the occurrence Sabir Hussar deceased was engaged to Mst. Naeema Begum, sister of the appellant. The appellant did not approve of the same.
On the day of occurrence P.W.4 Fazal Hussain alongwith his were, for settling the date of marriage went to the house of the appellant where the entire family of the appellant lived. The appellant was not present there, At about 12.30 p.m. On the 16th November, 1976, i.e. The day P.W.4 Fazal Hussain visited the house of the appellant for settling the date the appellant came to the shop of the deceased i.e. Khawaja Auto Engineers, 'which was being run in partnership between Manzur Hussain P.W.5, Fazal Hussain P.W.4 and the deceased, where Manzur Hussain P.W.5, his nephew Javed Iqbal P.W.7, Muhammad Shafiq (given up P.W.), and Sajjad Butt (given up P.W.) were present alongwith Sabir Hussain deceased, when the appellant came armed with a Khanjar and inflicted dagger blows on Sabir Hussain deceased. Manzur Hussain P.W.5 tried to rescue his brother whereupon he gave dagger blows to Manzur Hussain P.W.5 as well on various parts of his body. On the receipt of dagger blows Sabir Hussain deceased fell on the counter of the shop while Manzur Hussain P.W. Fell on the floor of the shop. After their fall the appellant gave another dagger blow on the back of Manzur Hussain, and thereafter, he ran away from the spot. Javed Iqbal P.W.7 anti Muhammad Shafiq (given up witness) took both the deceased and the injured witness to the hospital. At 12.45 p.m. On the 16th November, 1976 Dr. M. Nasrullah Khan examined Sabir Hussain deceased (22), who was clinically in a condition of shock, and found the following injuries on his person:- xxxxxxxxxxxxxxx P.W.11 Rehmat Ali, A.S.-I. Who was present on his duty in Police Post General Bus Stand, Lahore at about 1 p.m. Learnt from Abdul Ghani constable about the receipt of injuries by Sabir Hussain deceased and Manzur Hussain P.W.5, whereupon he proceeded to Mayo Hospital and vide applications Exhs.P.K and P.L. He enquired from the Doctor about the fitness of the above-said two injured for making statements and the doctor, vide reports Exhs.P.K/1 and P.L/1, respectively declared that the injured were not in a position to make statements, whereupon he recorded the statement Exh.P.F., made by Javed Iqbal P.W.7, who was present at the spot. The above-said report Exh.P.F., was forwarded through Muhammad Hussain constable to Misri Shah Police Station for the registration of the case which was initially registered under sections 307 and 326, P.P.C. By P.W.16 Sarwar Hussain, A.S.I. P.W.11. Rehmat Ali, A.S.-I. Proceeded to the spot and collected blood-stained earth etc. And while he was present there he received information that Sabir Hussain had expired in the hospital and thereafter he prepared the inquest report Exh.P.M. The offence was later amended to one under section 302 of Pakistan Penal Code.
4. On the 17th November, 1976 at 12 noon Dr. Tahir Anis, Deputy Police Surgeon, Punjab, Lahore performed the post-mortem examination on the dead body of Sabir Hussain deceased.
5. The appellant has raised the plea of denial simpliciter, and in answer to question No.6, "why this case against you", he has stated: "Due to enmity with the P.Ws. And misunderstanding because I have come to know that the P.Ws.
Were annoyed and aggrieved against me under the wrong impression that I was opposing the engagement of my sister Naeema with their brother Sabir Hussain deceased and, therefore, they have deposed against me."
I have gone through the evidence with the help of the learned counsel for the appellant, for the State and that for the complainant.
6. Learned counsel for the appellant has argued that the occurrence has taken place in one of the busiest centres of business in Lahore and not a single person from the vicinity has come forward to support the case of the prosecution. It has further been argued that from the prosecution evidence it is clear that the engagement continued for nearly 3 years and Sabir Hussain deceased was not only related to the family of the appellant but was also on visiting terms, therefore, it would be wrong to assume that the appellant was opposing the engagement and marriage of the deceased to Mst. Naeema Begum; sister of the appellant and this is the case of the prosecution itself that this engagement took place with the consent of his mother and the other three brothers of the appellant.
It is further argued that the assailant/assailants escaped unidentified and the appellant has been roped in only on account of suspicion and misunderstanding.
7. Because of the broad facts of the case and the overwhelming evidence, learned counsel for the appellant has not been able to very seriously argue for acquittal. The witnesses have been subjected to very lengthy cross-examination which has naturally resulted in minor variations here and there but in view of the particular circumstances of this case I attach no importance whatsoever to such minor variations and discrepancies which are bound to happen when witnesses appear at the trial after such a long time.
8. It is a broad-day occurrence in one of the busiest business centres in Lahore. It is true that no independent person from the vicinity has been produced at the trial in support of the case for the prosecution but it is well-understood and recognized fact that people H are reluctant to step in the witness-box for fear of repraisals as a consequence of appearance against the accused. This aspect has been taken note of by the Supreme Court in Yaqub Shah's case PLD 1976 SC 53 and Muhammad Iqbal's case in the same volume at page 291. In the case in hand the testimony of the injured witness. i.e. Manzur Hussain P.W.5, by itself, is sufficient to uphold the conviction, and the prosecution was justified in not burdening the file by producing Muhammad Shafiq and Sajjad Butt, the two employees at the workshop, i.e. The other two natural witnesses. Manzur Hussain P.W.5, the brother of Sabir Hussain deceased, ran Khawaja Auto Engineers in partnership with the deceased and, therefore, he was a natural witness. Being the C brother of the deceased it was natural for him to intervene when the appellant inflicted dagger blows to Sabir Hussain deceased, whereupon the appellant inflicted as many as six injuries to Manzur Hussain P.W.5., out of which four are in the chest, including the injury No.1, which was found to be grievous and is reproduced:- Penetrating wound 2 c.m. x 1 -- c.m. On back of right chest about 3 c.m. Below the inferior angle of scapula. Hissing sound coming out of the wound when the patient coughed up in the examination room."
Bearing in mind the number and nature of injuries suffered by Manzur Hussain P.W.5, the learned counsel, for the appellant has found himself unable to argue that these injuries are self-suffered and were not p suffered in the incident, therefore, the presence of Manzur Hussain P.W.5 at the time of incident cannot be challenged. The deceased as well as the injured were rushed to the Mayo Hospital, Lahore immediately after the occurrence in the car of P.W.7 Javed Iqbal, and they were examined by the Doctor at 12.45 p.m. i.e. Within 15 minutes of the occurrence. This promptness would indicate that Javed Iqbal P.W.7 was also present at the time of the occurrence. His car was readily available and that is how the two injured were rushed to the hospital where they were examined within 15 minutes of the occurrence. Statement Exh.P.F. Was recorded at 2.00 p.m. As the A.S.-I. Rehmat Ali P.W.11 had proceeded from Badami Bagh after hearing the occurrence so in the particular circumstances of the case, the First Information Report is also very promptly made and in such a prompt F.I.R. The appellant is named as the sole assailant, and it is the case of both the parties that Sabir Hussain deceased was engaged to Mst. Naeema, sister of the appellant Javed Sheikh and according to the prosecution the appellant was not agreeable but according to the appellant he was agreeable and the prosecution has wrong impression on this point, therefore, even if the appellant's case was to be accepted on this point. I see no reason why the appellant should have been promptly nominated as the murder of his brother-in-law or conversely speaking as to why Javed Iqbal F P.W.7 should have chosen to nominate the brother of the fiancee of his injured uncle and substituted him for the real assailant who could possibly not have escaped from the scene of incident unidentified. Manzur Hussain, the injured witness would certainly know his own assailant as well as that of his brother. He nominates only the appellant as the assailant, and, therefore, there is no reason whatsoever to disbelieve him in this regard. The testimony of Manzoor Hussain P.W.5 is of the nature which inspires confidence and is by itself sufficient to maintain the conviction. Without looking for any corroboration, I have no hesitation in maintaining the conviction of the appellant and in this regard I would refer to Rashed v. The State PLD 1977 SC 557.
9. I would not attach much importance to the evidence of recovery of dagger P.1 which was taken into possession, vide recovery memo. Exh.P.B. The occurrence took place on the 16th November, 1976. The appellant was arrested on the 21st November, 1976, and it is difficult for me to believe that during the 5 days interval the appellant would G not have removed the blood from the dagger P.1.
This recovery is sought to be proved by the testimony of P.W.2 Ittefaq Hussain who is the real brother of the deceased. I have doubts about the bona fides of the recovery, and therefore, I rule out the same from consideration.
10. I am satisfied that the prosecution has succeeded in proving the case against the appellant conclusively. The conviction and sentence awarded to the appellant on both the counts is fully justified, and therefore, the appeal is dismissed.
11. I am in agreement with the learned trial Court on the question of sentence. In paragraph No.32 the learned trial Court has arrived at the correct conclusion to the effect that the prosecution has not taken I the Court into confidence for the precise reasons which led the appellant to the murderous assault on the day of occurrence. The learned trial Court has discussed this point in paragraphs Nos. 28 to 32, and the view taken by the learned trial Court is a fair view. I do not agree with the learned counsel for the appellant that the attack was made because Khawaja Fazal Hussain P.W.4, uncle of the deceased, had proceeded to the mother of the appellant for setting the date of marriage. It has not been pointed out to me from the evidence on record that the appellant was present in the house when P.W.4 Khawaja Fazal Hussain paid the above-referred visit or that the appellant had fore-knowledge of the visit of Khawaja Fazal Hussain P.W.4. In fact the improved case of P.W.4 Fazal Hussain, at the trial, is that while he was present in the house of the appellant and settling the matter with the mother and other family members of the appellant, the appellant himself gave a telephonic information of the incident, therefore, I am not persuaded to enhance the sentence.
The result is that the appeal as well as the revision for enhancement are dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.