JUDGMENT MUHAMMAD NAWAZ ABBASI, J. - The appellant namely Muhammad Yaqoob was tried tor the charge of murder of Abdul Waheed under Section 302, PPC by the learned Additional Sessions Judge, Rawalpindi, and upon conviction through judgment dated 10.8.1993 was sentenced to imprisonment tor life with a direction to pay Rs. 25,000/- as compensation to the legal heirs of the deceased and in default of payment of compensation was ordered to suffer imprisonment for 6 months' ST.
2. The appellant being aggrieved of conviction and sentence has preferred this'Criminal Appeal No. 99 of 1995 before this Court, whereas Lai Khan complainant being dissatisfied with the sentence awarded to the appellant has preferred Criminal Revision No. 68 of 1995 for enhancement of sentence of the appellant from life imprisonment to death. The criminal appeal and revision shall be disposed through this single judgment.
3. Briefly the facts narrated in the F.I.R. Ex.PC/1 which was recorded on the basis of statement of Lai Khan complainant are that his son was engaged with Mst. Farzana daughter of Muhammad Saleem about a year prior to the occurrence but Muhammad Yaqub accused maternal uncle of Mst. Farzana was against this engagement which was ultimately dissolved. On 10.8.1993 at about 8.00 p.m. The complainant alongwith his son Abdul Wahid deceased and Abdul Ghaffar visited the house of Muhammad Yaqub situated near Committee Chauk Rawalpindi to offer condolence-on the death of sister of Muhammad Yaqoob and remained present there till 10.30 p.m. And during this period they discussed family affairs including the engagement of Abdul Waheed with Mst. Farzana.
Muhammad Yaqoob during the course of discussion flared up and while picking up a Cricket bat gave beating to Abdul Waheed and thereafter while picking up a Churri caused a number of injuries to the deceased which proved fatal. The complainant tried to rescue his son but failed and the deceased having sustained injuries with Churri succumbed to the same at the spot. The motive behind the occurrence was that the accused having developed grudge against Abdul Waheed deceased on the issue of his engagement with his niece and earlier lodged a report against the deceased at Police Station, Waris Khan with a view t(f undo the proposal of marriage of his niece with the deceased. The complainant alongwith his deceased son and Abdul Ghafoor had gone to the house of Muhammad Yaqub so that the engagement of his son with niece of accused may be revived as the mother of girl, was interested in its revival. The accused having not tolerated the visit of the deceased to his house with his father committed his murder.
4. Ikram Hussan.Shah, ST. PW-5 on receipt of complaint Ex.P.C. . |Vol. XX Muhammad Yaqoob V, The State Cr.C. 205 (Muhammad Nawaz Ahbasi, J.) at about 12.30 a.m. On 10.8.1993 through S.H.O. Recorded formal F.I..R. Ex.PC/1- This witness has identified the handwriting of Sh. Muhammad Aslam, Inspector/S.H.O. Who investigated the present case but before commencement of trial died. The witness served with S.H.O. For a considerable time while'being posted^at Police Station Waris Khan as the subordinate of S.H.O. And thus was familiar with the signature and handwriting of deceased S.H.O. He stated that the-complaint Ex.PC/1, recovery memo, of blood-stained earth Ex.PF recovery memo, of weapon of offence Cricket, bat and Churri Ex.PG, injury statement of Abdul Waheed deceased Ex.PH, inquest report Ex.PJ, and notes in red ink on the site-plan Ex.PA and Ex.PA/1 and the recovery memo, of blood-stained clothes of the deceased Ex.PB were prepared by Muhammad Aslam, Inspector SHO and all these documents bearded his signatures. The rough site-plan Ex.PK and report under Section 173, Cr.P.C.
Were also prepared by the late Inspector.
5. Dr. Munawar Hussan, Medical Officer, D.H.Q. Hospital, Rawalpindi PW-6 conducted post-mortem examination of Abdul Waheed deceased and found the following injuries on his person:-
(1) Incised wound 3 x 2 c.m. On left nipple.
(2) Incised wound 4x2 c.m. 3 c.m. Intro medical to injury No. 1 and 4. 5 c.m. Latter to epigastrium. #tbs (3)
(4)
(5) #the Incised wound 6x2 c.m. Muscle deep 3 c.m. Below the neck and 14 can. Above epigastrium. This injury had abrasion on both sides as shown in figure. Starting point was 9 c.m. Away from left nipple.
Incised wound 9 x 1 c.m. Front of neck, 3 c.m. Above the injury No. 3.
Contuous swelling 1 x 1 c.m. On right forehead 3 c.m. Above eye brow. ,
(6) Right eye swelling, close'and bothlide were blackened.
(7) Left eye lide (lower) blackened swelling and eye closed.
(8) Both lips were contused on inner aspect swelling and mouth closed.
(9) Evidence of bleeding from both nostrils were present.
(10) Abrasion 1 x 25 c.m. On front of left shoulder.
(11) Lacerated wound 2 x 1 on right front of middle leg.
(12) Contusion 2x2 c.m. Just below injury No. 11. , (13) Abrasion 5x5 c.m. On left middle fropt of leg.
(14) Incised wound 4 x 1 c.m. On left posterior respect of mid thigh 21 c.m. Above knee.
(15) Contusion swelling .5 x .5 c.m. On left upper back of fore-arm 3 c.m. Below elbow.
(16) Abrasion 1 x .5 c.m. On right ear anteriorly.
(17) Contusion swelling 9x6 c.m. On right posterior aspect of thrgh 19 c.m. Above knee joint.
On opening thorax third left rib was cut by injury No. 1 and Trachea was partially fractured by injury No. 4. Left lung lower zone cut by injury No. 1, left verticlex was cut through and through by injury No. 2 rest was healthy. On opening abdomen every thing was healthy.
In the opinion of the Doctor the death was the result of injury No. 2 which was caused by sharp- edged weapon and causing damaged the heart was sufficient to cause death in the ordinary course of nature. All injuries on the person of deceased were found ante-mortem and injuries Nos. 1 to 4 were caused by sharp-edged weapon whereas injuries Nos. 5 to 13 and 15 to 17 were caused with blunt weapon.
6. The prosecution in order to prove its case produced 8 witnesses in all including the Doctor.
Qamar Din draft man PW 1 inspected the place of occurrence on 12.8.1993 and after taking rough notes on the pointation of the PWs prepared the site-plan. Imtiaz Hussan PW2 identified the dead- body of the deceased in the mortuary.
7. Ihsan Ellahi, ASI, PW 3 Moharrir of the Police Station, Waris Khan on 10.8.1993 received sealed parcels containing blood-stained cotton and blood-stained Churri which were kept by him in the Malkhana in safe custody.'The above-said parcels were delivered by him to Mukhtaj Ahmad constable on 17.8.1993 to take the same to the concerned offices at Lahore.
8. Mukhtar Ahmad constable PW-4 escorted the dead-body of the deceased to the mortuary for the post-mortem examination and produced last worn clothes of the deceased viz. Shalwar P-1, Shirt P-2, Banian P-3, [Vol. XX Muhammad,Yaqoob V. The State #tbs Cr.C. 207 #the (Muhammad Nawaz Abbas i, J.)
Pair of Joggers P-4/1 -2, Socks P-5/1-2 and Blanket PB to the I.O. Which were handed over to him by the Doctor and were secured through memo. Exh.PB.
9. Since the Investigating Officer died before the commencement of trial, therefore, Ikram Hussan PW-5 while identifying husband-writing proved the recoveries memos, and other documents prepared by the Investigating Officer during the investigation. Lai Khan complainant PW-7 deposed in support of the prosecution story as narrated in the F.I.R. Whereas Abdul Ghaffar PW-8 another eye-witness of the occurrence while K making a similar statement fully corroborated Lai Khan. According to the eye-witnesses they alongwith Ahdul Waheed went to the house of \ Muhammad Yaqoob accused at 8 p.m. For the condolence on the death of his sister and after saying Fatiha while sitting in a room of the house of accused during the general talk at about 10.30 p.m. Also discussed the matter relating to the engagement of Abdul Waheed with Mst. Farzana, niece of Muhammad Yaqoob accused. The accused suddenly being flared up picked up a Cricket bat and started beating Abdul Waheed and on the Cricket bat being broken the accused while picking up a Churri caused successive blows to the deceased with Churri on different parts of his body and fled away from the place of occurrence. The deceased succumbed to the injuries at the spot.
10. The accused, in his statement under Section 342, Cr.P.C. While denying the prosecution story pleaded innocence and admitted the occurrence in the following manner:- "That his sister Mst. Naseem Akhtar was married in village Gangootha Gujjran Police Station, Sahila.
She had died on Friday preceding the occurrence, on her saidful demise, he' alongwith his family went to the said village to participate in the funeral of his sister and since their stay in the house of her late sister prolonged, therefore, with a view to take the necessary clothes of his children from his residence at Committee Chowk, lie alongwith his daughter Alia reached at his house in the evening and at about 10 p.m. He while leaving Mst. Alia in the house alone went to Bazar to fetch cigarettes and when at about 10.30 p.m, on coming back he saw that deceased was molesting his daughter with an attempt to overpower her for committing rape with her, whereupon he in grave and sudden provocation while picking up a Cricket Bat gave successive blows to Abdul Wahid deceased and when Abdul Wahid deceased picked up a Churri and attacked on him whereupon he while snatching the Churri from him in exercise of his right of self-defence gave Churri blows to him who succumbecf to the injuries."
11. The learned counsel for the appellant contended that the presence of the eye-witnesses at the spot seemed to be highly doubtful as it is not acceptable at real father of the deceased would not interfere in the occurrence in which his young son was being caused injuries by the appellant. He added that the witnesses being resident of Chakwal which is at.a distance of 60/70 miles from the place of occurrence would not be normally present at the house of accused at the relevant time and therefore the explanation offered by them of their presence with the deceased at 10.30 p.m. In the house of the appellant for offering condolence on the death of his sister was not convincing.
The learned counsel argued that it was an unseen occurrence and that except the admission of the appellant of taking place of occurrence in the manner as he discribed, there was no evidence in support of the prosecution version, and contended.That learned Trial Court has committed an illegality by excluding the defence version from considerations. The learned counsel submitted that since the deceased while trespassing into the house of appellant made an attempt to commit rape with her young daughter, therefore, he having lost self-control under grave and sudden provocation caused injuries to the deceased and thus was entitled to the benefit of Section 100, PPC. In the alternate the learned counsel argued that even in the light of prosecution story itself the appellant while suddenly flared up caused injuries to the deceased, and the defence version being arpply supported by the prosecution story, the plea of grave and sudden provocation. Stood proved even by the prosecution version beyond doubt and consequently the conviction and sentence under Section 302 (b), PPC was bad in law.
12. Conversely learned counsel representing the complainant argued that the number of injuries caused to the deceased by the appellant would show the state of mind of the appellant with which he committed murder which would conveniently lead to an inresistable conclusion that it was an intentional murder. He submitted that the visit of the PWs to the house of appellant on the sad occasion of death of his sister for condolence was natural and during the general talk the issue relating to the engagement of the deceased with niece of the appellant was also discussed, therefore, the presence of the PWs at the spot would not be challengeable and further they have narrated the occurrence in the manner in which if was admitted by the appellant. He argued the defence version of grave and sudden provocation was subsequently introduced to get the benefit of truth-fulness of the |Vol. XX Muhammad Yaqoob V. The State Cr.C. 209 (Muhammad Nawaz Abbasi, J.)' witnesses. The learned counsel while summing up submitted that in the given facts the conviction and sentence awarded to the appellant under Section 302(h), PPG was unexceptional.
13. I have heard the learned counsel for the parties and perused the record with their assistance.
The material fact relating to the place and time of occurrence, the sustaining of injuries by the deceased at the hand of appellant with Cricket Bat and Churri in his house are not disputed.
However, it being a case of two version the controvercy was regarding the manner of taking place the occurrence. According to the prosecution the appellant during the course of discussion on the issue relating to the revival of engagement of the deceased with his niece suddenly flared up and while acting in a brutal manner started causing injuries to the deceased with Cricket Bat and then with Churri in the presence of eye-witnesses whereas according to the defence version the deceased while trespassing into the house of the appellant with intention to commit an offence of Zina with her young\ daughter was in process of molesting her when the appellant suddenly reached at home and under gfave and sudden provocation caused injuries to the deceased with bat and Churri who lost his breath at the spot.
14. The two versions while putting in juxta position would Unambiguously .Suggest that it was a sudden occurrence! However, the factum of grave and sudden provocation as pleaded by the defence is not supported by any evidence direct or circumstantial except the statement (Ex.DA) of the appellant made before the police. According to the defence version except the deceased, the appellant and his daughter no one else was present in the house at the relevant time, but the appellant did not bother either t^produce his daughter before the police in support of defence plea during the investigation or she was examined as defence witness at the trial. Thus, the appellant while withholding the best evidence in his defence would not be successful to establish the defence plea through his sole statement under Section 342, Cr.P.C. The occurrence in the present case took place at 10.30 p.m. In the house of the appellant, the report of which was lodged by- the father of deceased at. The Police Station Waris Khan within two hours which would not possibly be done by him while residing at a distance of 60/70 miles away from the place of occurrence within two hours. If the complainant w^juld not, be present at the spot he would have no source of information about the sad occurrence at Chakwal shortly after the occurrence. It is also not acceptable that deceased would come all alone to the house of appellant at Rawalpindi during the night and stay there without the consent and knowledge of appellant or his daughter.
Therefore, the prosecution story that deceased came to the house of appellant in company of his,father and another close relative for condolence was more > natural and plausible. It is usual that people on such occasion after offering of the condolence also discuss their family affairs, therefore, the presence of the eye-witnesses in the circumstances in the house of the appellant and discussion of the issue relating to the engagement of niece with deceased was not unnatural: However, it is not clear from the prosecution.Story that why the appellant while discussing this issue with elders-of the deceased would attack on the deceased and cause him successive injuries. The scrutiny of the counter stories together would reveal that during the conversation deceased probably behaved in a abnormal manner which was not tolerated by the appellant and he while losing self-control at the first instance caused injuries to the deceased with Cricket bat and then under the some state of mind inflicted injuries to the deceased with Churri which proved,fatal. Thus, the circumstances would suggest that fateful occurrence was sudden and was not pre-meditated. It appears that both the parties deliberately withheld the truth, the immediate cause of sad incident with a view to cause maximum damages to each other. It is a proved fact that the parties were carrying grievance against each other ever the engagement of niece of appellant with the deceased and it was the only cause behind the sad incident. The close scrutiny _ of evidence and analysis of the circumstances under which,occurrence took place it can safely be said that although it was a sudden occurrence but was not a case of self-defence as pleaded by the appellant. The appellant while losing self-control during the discussion for some unknown reasons caused injuries to the deceased and thus, it would not be a case of Qatl-e-Amd punishable under Section 302(b), PPC rather would fall within the ambit of Section 302(c), PPC for the purpose of punishment. Consequently, I while converting the conviction of the appellant from Section 302(b), PPC convict him under Section 302(c), PPC and reduce his sentence from the imprisonment tor life to 20 years. The appellants however, given benefit of Section 382-B, Cr.P.C. With above modification in the conviction and sentence this appeal stands dismissed.
THE STATE , decided on 6th March, 2000.
Criminal Procedure Code (V oT 1898)- -S. 497-Pakistan Penal Code, 1860, Ss. 392/324/353/34-Bail, grant of- Despite the detention of accused in jail for the last eleven months challan against them had not scrfar been submitted in the Court by the Investigating Officer who was bound to submit the report under S. 173, Cr.P.C. within seventeen days after the registration of the F.I.R.-Prosecution was unable to explain such delay-Accused in the circumstances were entitled to the grant of bail and they were released on bail accordingly. \ (Paras 4,5)
For the Petitioner; Sauthi M. Ishaque, Advocate.
For the State: Dilawar Hussain, Advocate. l ORDER "
ABDUL GHANI SHAIKH, J.- The applicants Shahzad Ahmed and Saeed Ahmed seek Jbail in F.I.R. No. Ill of 1999 of Police Station North Nazimabad registered for offence under Sections 392/324/353/34, P.P.C. The applicants' bail plea was earlier rejected by Illrd Additional Sessions Judge, Karachi.Central on 30.10.1999, hence this present bail application. The learned counsel for the applicants at the very outset submitted that the applicants were arrested by the police on 16.4.1999 and up to this time interim or final challan is not submitted in any Court of law and as such the detention of the applicant/accused is illegal and amounts to wrongful confinement. The learned counsel further stated that on 30.12.1999 the Investigating Officer was present in Court and has submitted that he would submit the challan but in spite of that no challan has been submitted though more than two months have passed. The learned counsel for the applicants has argued that there was absolutely no evidence with the police and that is why the police has not submitted challan against the accused. He has further argued that the applicants were arrested and 13-D cases were separately registered against them and both applicants are granted bail offence under Section 13-D by the Trial Court.
Learned counsel has further argued that whatever the allegations be against the applicants but that cannot be detained in custody for such a long time without submitting the challan. He has lastly argued that by today the applicants have almost completed 11 months in jail. N Mr. Dilawar Hussain, Advocate appearing for the State is not able to controvert the submissions made by the learned counsel for the applicants except that the present applicants were arrested by the police at the spot.
I have considered the arguments made by the learned counsel [Vol. XX Muhammad Yaqoob V. The State Cr.C. 2^)3 (Muhammad Nawaz Ahhasi, J.) appearing for the parties and have also gone through the impugned order passed by the Trial Court. The learned counsel appearing for the State has not been able to give any explanation that why the case has not been challaned though under the law Investigating Officer is bound to submit report under Section 173, Cr.P.C. within seventeen days. Admittedly this bail application was filed on 11.11.1999 and copy was received by A.G. Office even then the State Counsel has not bothered to make enquiry from the police as to why the challan has not been submitted.
In view of the above circumstances, I am of the view that the applicants are entitled to the grant of bail and they are accordingly granted bail in the sum of Rs.2,00,000 each and P.R. bonds }n the like amount to the satisfaction of the Trial Court.
K.L.R. 2061 Criminal Cases 203 [Lahore] Present: Muhammad Nawaz Abhasi, J.
MUHAMMAD YAQOOB Versus THE STATE versus THE STATE , decided on 6th March, 2000.
Criminal Procedure Code (V oT 1898)- -S. 497-Pakistan Penal Code, 1860, Ss. 392/324/353/34-Bail, grant of- Despite the detention of accused in jail for the last eleven months challan against them had not scrfar been submitted in the Court by the Investigating Officer who was bound to submit the report under S. 173, Cr.P.C. within seventeen days after the registration of the F.I.R.-Prosecution was unable to explain such delay-Accused in the circumstances were entitled to the grant of bail and they were released on bail accordingly. \ (Paras 4,5)
For the Petitioner; Sauthi M. Ishaque, Advocate.
For the State: Dilawar Hussain, Advocate. l ORDER "
ABDUL GHANI SHAIKH, J.- The applicants Shahzad Ahmed and Saeed Ahmed seek Jbail in F.I.R. No. Ill of 1999 of Police Station North Nazimabad registered for offence under Sections 392/324/353/34, P.P.C. The applicants' bail plea was earlier rejected by Illrd Additional Sessions Judge, Karachi.Central on 30.10.1999, hence this present bail application. The learned counsel for the applicants at the very outset submitted that the applicants were arrested by the police on 16.4.1999 and up to this time interim or final challan is not submitted in any Court of law and as such the detention of the applicant/accused is illegal and amounts to wrongful confinement. The learned counsel further stated that on 30.12.1999 the Investigating Officer was present in Court and has submitted that he would submit the challan but in spite of that no challan has been submitted though more than two months have passed. The learned counsel for the applicants has argued that there was absolutely no evidence with the police and that is why the police has not submitted challan against the accused. He has further argued that the applicants were arrested and 13-D cases were separately registered against them and both applicants are granted bail offence under Section 13-D by the Trial Court.
Learned counsel has further argued that whatever the allegations be against the applicants but that cannot be detained in custody for such a long time without submitting the challan. He has lastly argued that by today the applicants have almost completed 11 months in jail. N Mr. Dilawar Hussain, Advocate appearing for the State is not able to controvert the submissions made by the learned counsel for the applicants except that the present applicants were arrested by the police at the spot.
I have considered the arguments made by the learned counsel [Vol. XX Muhammad Yaqoob V. The State Cr.C. 2^)3 (Muhammad Nawaz Ahhasi, J.) appearing for the parties and have also gone through the impugned order passed by the Trial Court. The learned counsel appearing for the State has not been able to give any explanation that why the case has not been challaned though under the law Investigating Officer is bound to submit report under Section 173, Cr.P.C. within seventeen days. Admittedly this bail application was filed on 11.11.1999 and copy was received by A.G. Office even then the State Counsel has not bothered to make enquiry from the police as to why the challan has not been submitted.
In view of the above circumstances, I am of the view that the applicants are entitled to the grant of bail and they are accordingly granted bail in the sum of Rs.2,00,000 each and P.R. bonds }n the like amount to the satisfaction of the Trial Court.
K.L.R. 2061 Criminal Cases 203 [Lahore] Present: Muhammad Nawaz Abhasi, J.
MUHAMMAD YAQOOB