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Petitioner: MUHAMMAD SHARIF and 3 others VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): S. A. Manan, Zafar Pasha Chaudhry, Dr. Allama Fida Muhammad Khan Title: MUHAMMAD SHARIF and 3 others vs THE STATE Case No.:Criminal Appeals Nos.39/L, 51/L of 1998 L.W. Criminal Murder Reference
JUDGMENT
Reported As: 2004 P C R L J 1547 Result: Order accordingly Judgment JUDGMENT ' ZAFAR PASHA CHAUDHRY, J.--- Muhammad Sharif, Israr Ahmad alias Shehr Yar, Ghulam Shabbir alias Pappu and Mumtaz Hussain were tried by Additional Sessions Judge, Shorkot. District Jhang, in case F.I.R. No,4/96 (Exh.P.C./1), registered at Police Station Shorkot Cantt. By Tariq Mahmood, M.H.C., P.W.3, on 9-1-1996 at 9-40 p.m. Under section 302/34. P.P.C. On receipt of statement Exh.P.C. Made by Umar Draz, P.W.7 brother of Rab Nawaz (deceased), befote Nasar Ali, S.-I./S.H.O., P.W.9 at 8-00 p.m. At Rafiqui Chowk, Shorkot Cantt., about an occurrence, said to have taken place, at Adda Khumanwala, on the same day, at 5-00 p.m. Outside the shop of Muhammad Sharif (appellant herein), at a distance of 7/8 kilomters from the police station. ' Learned trial Judge vide judgment, dated 12-3-1998, convicted all of them under section 302/34. P.P.C. And sentenced each of them to death. ' Since appeal filed by the appellants and the Reference made by the learned Additional Sessions Judge, for confirmation of death sentence, have arisen from the same judgment, they are being disposed of together. 2. According to F.I.R., complainant on 9-1-1996, was going to his residential Chak No,498/JB, in Car No,1808, alongwith his brother Rab Nawaz (deceased), Chiragh Khan, Qutab Din and Muhammad Iqbal, P.Ws. When they reached in front of the arms repairing shop of Muhammad Sharif, at Adda Khumanwala, at 5-00 p.m., they saw Muhammad Sharif, Shehr Yar, Ghulam Shabbir alias Pappu standing on the road, armed with guns, alongwith Mumtaz Hussain, empty-handed. They gave a signal to stop the car. Complainant stopped the car, after going a little ahead in front of Kanwal Tractor Workshop. Mumtaz Hussain forcibly pulled out Rab Nawaz after opening the door of the car
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and gave a Lalkara that Rab Nawaz will not be allowed to escape alive, wherein Muhammad Sharif fired a shot from his gun which struck Rab Nawaz on his chest. Thereafter Muhammad Sharif, Shehr Yar and Ghulam Shabbir fired indiscriminately at Rab Nawaz. Complainant and his companions, on seeing the occurrence, felt scared and drove the car speedily towards Chak No,498/JB. Because of being puzzled, he struck the car with a tractor-trolley, near bridge of the canal. After some time, he returned to the spot alongwith companions. Rab Nawaz had expired due to injuries. They took care of his dead body. ' Motive for the occurrence was that few days before the occurrence, a quarrel had taken place between Muhammad Sharif etc. Accused and Rab Nawaz, deceased and they had exchanged abuses. The accused had fired at the deceased to avenge that. 3. Nasar Ali, S.-I., after dispatching statement Exh.P.C. To the police station for registration of case, reached the spot. He dispatched the dead body for post-mortem examination, after preparing injury statement Exh.P.K. And inquest report Exh.P.L., recorded statements of the P.Ws. And collected blood-stained earth from the spot, sealed the same into a parcel and took the same into possession vide memo. Exh.P.E. He also picked up 3 crime-empties P.1, P.2 and P.3 and took the same into possession vide memo. Exh.P.F. Car of the complainant was taken into possession vide memo. Exh.P.J. On 10-1-1996. Bloodstained shirt P.1, Shalwar P.2 of the deceased and phial (sealed) P.3, produced before him by a constable, after the post-mortem, were taken into possession by him vide memo. Exh.P.D. He searched for the accused and succeeded in arresting Muhammad Sharif, Israr Ahmad and Ghulam Shabbir on 28-1-1996. ' On 31-1-1996, Muhammad Sharif led to the recovery of gun P.5 from his shop which was taken into possession vide memo. Exh. P. G . ' Gun P.6 got recovered by Israr Ahmad on the same day from his house in Machhar Chowk was taken into possession by him vide memo. Exh. P . H. ' Gun P.7 got recovered by Ghulam Shabbir on the same day from his house near Machhar Chowk was taken into possession vide memo. Exh.P.1/1. ' Memos. Exhs.P.E., P.F., P.G., P.H., P.I. And P.J. Were attested by Chiragh Khan and Qutab Din, P.Ws., apart from Nasar Ali, S.-I. ' Mumtaz Hussain was arrested on 8-2-1996. After completion of necessary investigation, challan was submitted to the Court. 4. Statements of 10 prosecution witnesses were recorded at the trial. ' Dr. Muhammad Ali, Medical Officer, who had performed autopsy of the dead body of Rab Nawaz on 10-1-1996 at 10-30 a.m. Appeared as P.W.1 on general examination, he had observed that deceased was a young man aged 28/29 years. Rigor mortis and postmortem staining were present. Shirt and Shalwar were stained with blood. He noted following injuries on his person;-- (1) Multiple oval shaped fire-arm wound of entrance (32 on the chest, 8 on the arm). On front of chest and front of upper arm left in the area of 30 c,m. x 30 c.m. Each measures 0.8 c.m. x 0.8 c.m., going into the chest and arm. Injury extends from chest left on front to laterly axilla and upper arm, chest upper part. And extending to neck. (2) Abrasion 3 c.m. x 2 c.m. On the left chest on front 4 c.m. Above the nipple. ' On internal examination, he found third and fourth costal ridges fractured. Palurea was found injured on both sides. Both lungs (right and left) were injured and had collapsed. Pericaridium and left ventricle were injured. Remaining parts of the body were intact, except fracture of left humerous. ' According to his opinion, death had occurred due to haemorrhage and shock, resulting from injuries to the vital organs (heart, both lungs). ' Injury No,1 was opined to be sufficient to cause death, in the ordinary course of nature. The same was opined to have been caused by a fire-arm. Injury No,2 was opined to be accidental in nature
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and caused by blunt weapon. All injuries were ante-mortem. Duration between the death and injuries was opined to be few minutes, while time that elapsed between death and post-mortem was opined to be 18 to 24 hours. During cross-examination, he stated that there was no blackening or charring around injury No,1 According to his opinion, shot had been fired from a distance of more than 2 to 4 yards. He refuted the suggestion that fracture of upper arm could have been due to fall. He stated that dead body had been received in the hospital on 10-1-1996 in the early morning. 5. Sarfraz Ahmad, constable who had escorted the dead body for post-mortem, appeared as P.W.4. He stated that last-worn clothes of the deceased i,e, shirt P. I, Shalwar P.2 and phial P.3, handed over to him by the Medical Officer, were produced by him before the Investigating Officer on the same day, which, he had taken into possession vide memo. Exh,P.D. ' Tassawar Abbas, constable who had deposited the sealed parcels containing blood-stained earth and crime-empties, in the office of the Chemical Examiner on 23-1-1996. Appeared as P.W.5. After giving those facts, he stated that he had deposited the same in the Forensic Science Laboratory on 24-1-1996. He was not cross-examined. 7. Muhammad lqbal son of Nawab Ali, who had identified the dead body of the deceased at the time of post-mortem, appeared as P.W.6 and stated that fact on oath. During cross-examination, he stated that he had come to know in routine about the occurrence on the way when he was going to his village. He stated that he had reached the spot at 6-00 p.m. And at that time relatives of the deceased, except 4/5 other persons, were not present. He gave out that relatives of the deceased had arrived between 6 to 9-00 p.m. While the police had reached there at 9-00 p.m. 8. Umar Draz, complainant appeared as P.W.7. While repeating the facts given by him in the F.I.R., he stated that Mumtaz Hussain and Ghulam Shabbir raised their hands to stop the car. He also stated that shots fired by Israr Ahmad and Ghulam Shabbir had also hit the deceased on chest. He also stated that their car after meeting with accident, was damaged but they had escaped luckily and had returned to the place of occurrence. He also stated that he had left for the police station to lodge the report, leaving Chiragh Khan, Muhammad Iqbal Qutab Din, P.Ws. At the spot to guard the dead body. During cross-examination, on confrontation with his statement Exh.P.C., he was not found to have stated that Mumtaz Hussain and Ghulam Shabbir had raised their hands to stop the car, nor was he found to have stated therein that Ghulam Shabbir and Mumtaz Hussain had forcibly opened the door of the car. He was also not found to have stated therein that shots fired by Israr Ahmad and Ghulam Shabbir had hit the deceased on the chest. He gave out that he had gone from his Chak to Shorkot City, on the day of occurrence at 1-00 p.m. Alongwith Rab Nawaz, deceased and Chiragh Khan, P.W. And from there they had gone to see Nawab Surbana. He gave out that he had left Binda Surbana at 4-00 p.m. For returning to their Chak. He stated that he was driving the car. He stated that the place of occurrence was at a distance of 3 kilometers from the place where they had met with accident and they had returned from there on foot. According to him, they had come back in about 1-1/4 hours. He gave out that when they had returned to the spot, dead body was lying on the ground and they had placed the same on a cot. According to him, dead body was lying at a distance of about 8 Karams towards East of the shop of Muhammad Sharif accused. According to him, dead body was dispatched for postmortem at 10-00 p.m. While admitting that Chiragh P.W. Was his uncle as well as father-in-law, he expressed ignorance about the fact that Chiragh and Qutab Din, P, Ws, were co-accused in an abduction case and had remained in jail together, after being sentenced in the case. He denied the suggestion that deceased had abducted a woman of Kathia family. While answering questions pertaining to the plea of the appellants, he stated as follows:-- "It is incorrect that on 9-1-1996, at about 8/9 p.m. Rab Nawaz deceased armed with pistol, Muhammad Aslam son of Thiraj armed with a carbine, Mazhar Hayat Khuman armed with a pistol, Mumtaz alias Tajey Shah son of Shabbir Shah, armed with a carbine, came in a car at the shop of
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Sharif accused and the car was driven by Muhammad Rafiq Chouhan. It is incorrect that the aforesaid persons had committed dacoity at the shop of Sharif who resisted and in the meanwhile the light went off and in the darkness the above persons fired at Sharif and fire of aforesaid Tajey Shah missed Sharif and hit Rab Nawaz, in consequence of which he died. It is incorrect that I and the P.Ws. Did not witness the occurrence. It is incorrect that I falsely involved the present accused in this case with the blessing of Mian Umar Ali Janjiana. It is incorrect that Manzoor father of Sharif accused had filed a writ petition in the Honourable Lahore High Court, Lahore, against us. It is incorrect that due to influence of Mian Umar Ali, M.P.A. The police did not register the case on behalf of the accused." ' While answering questions by the counsel for Mumtaz Hussain, he admitted that Mumtaz Hussain had no relationship with his co-accused. He admitted that Mumtaz Hussain neither owned any land nor house at Adda Khumanwala. He volunteered that Mumtaz Hussain was generally seen with Sharif accused. He denied that Mumtaz Hussain was not learning from Sharif accused. He denied the suggestion that Mumtaz Hussain had remained with Rab Nawaz, deceased for a long time. The suggestion that Mumtaz Hussain was aged 14 years at the time of occurrence, was also denied by him. He denied the suggestion that Mumtaz Hussain used to live with Rab Nawaz and Rab Nawaz attempted to join Mumtaz Hussain in their party for committing dacoity at the shop of Sharif but Mumtaz Hussain had refused. He also denied the suggestion that Mumtaz Hussain was named as accused in this case for fear that he may not disclose the fact that Rab Nawaz had wanted him to join him in committing dacoity at the shop of Sharif appellant.. He denied the suggestion that Mumtaz Hussain was at the house of Zamin Shah at village Qatal Pur to participate in a ceremony of Khatna. 9. Qutab Din, P.W.8 while narrating the occurrence corroborated the statement made by P.W.7, before the Court. He added that he had joined the police on their arrival at the spot, in the investigation. He claimed that police had taken into possession blood-stained earth from the spot and crime-empties P.4/1-3, vide memo. Exh.P.E. And Exh.P.F. And he had attested the same. He also claimed that he had participated in the investigation where through Sharif had got recovered gun P.5, Shehr Yar had got recovered gun P.6 and Ghulam Shabbir had got recovered gun P.7 and had attested the memos. Vide which those guns had been taken into possession by the police. He also stated that police had taken into possession accidented car of the complainant from the place of accident vide memo. Exh.P.J. And he had attested the same. During cross-examination, he stated that police had recorded his statement on 9-1-1996. On confrontation with his statement Exh.D.B., before the police, he was not found to have stated therein that Ghulam Shabbir and Mumtaz Hussain had come in front of the car and stopped the same, that they had opened the left side door of the car, that the shots fired by Shehr Yar and Ghulam Shabbir, had also hit the deceased on the chest. He explained that he had returned from Mian Channu on 9-1-1996 and had met Umar Draz and his companions, when they were coming in a car at Tehsil Chowk Shorkot and had asked them for a lift and thus, joined them. He stated that on coming back to the place of occurrence from the place where their car had met with accident, they had found the dead body lying on the ground and they had placed the same on a cot. He stated that he had shown to the police the place where Rab Nawaz had been fired at and where his dead body was lying, after being injured. According to him, empties were scattered and were lying at a distance of 8 Karams from the place where dead body was lying on the ground. He explained that he had gone to the police station alongwith Chiragh on the day of recovery of guns and the accused had led the police to the places of recoveries separately. He denied the suggestion that he was not at the place of occurrence and was watering his fields in his Chak on the night of occurrence. The suggestion put to Umar Draz, P.W. Qua the plea of the accused alleging that Rab Nawaz had gone to commit dacoity alongwith his companions to the shop of Sharif and had met death at the hands of his own companions,
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were rejected by him like Umar Draz. While answering questions by the counsel for Mumtaz Hussain, he stated that Mumtaz Hussain was not running any provision store in Shorkot Cantt. During the days of occurrence, which he used to do prior to that. He expressed ignorance whether Mumtaz Hussain had any relationship with Sharif accused or friendship even. The suggestion put to Umar Draz that Mumtaz Hussain was involved in this case due to the reason that he had refused Rab Nawaz to join him in commission of dacoity at the shop of Sharif and for fear that he may not become a witness, for the defence of accused by disclosing that fact, were denied by him like P.W.7. 10. Nasar Ali, who had recorded statement Exh.P.C. Of Umar Draz, got the case registered, investigated the same, had submitted challan to Court (details of which have been noted in a previous para), appeared as P.W.9 and narrated those facts in detail on oath. He gave the details of arrest and recoveries from the accused as well. During cross-examination while admitting that he had not shown the position of the P.Ws. In the site plan, he stated that he had shown the presence of the P.Ws., sitting in the car. He denied the suggestion that Muhammad lqbal son of Muhammad Ameer and Muhammad Iqbal son of Nawab Ali were servants of Mian Umar Ali, Ex- M.P.A. He expressed inability to give the exact time when the dead body was dispatched for post- mortem. He denied the suggestion that no relative of the deceased was present at the spot when he had reached there. He asserted that relatives of the deceased including Umar Draz were present at the spot. While answering question about the manner and the circumstances in which the accused had got recovered guns, he gave the details of the same stating that each one of them was taken separately to the places, wherefrom they had got guns recovered. While answering questions about the plea of the accused, he stated as follows:-- "It is incorrect that on the night of 9-1-1996, at about 8/9 p.m. a group of dacoits comprising of Rab Nawaz deceased armed with pistol, Mazhar Hayat, armed with pistol, Tajey Shah son of Sher Shah armed with .12 bore gun came in a car which was driven by Muhammad Rafiq, at the shop of Muhammad Sharif accused and committed dacoity in which they decamped Rs.68,000, arms and ammunition. During the dacoity the abovesaid four persons had been firing and the firing was resisted by Sharif accused. Tajey Shah one of the members of the gang fired at Sharif, which missed him and hit Rab Nawaz. It is incorrect that the occurrence was witnessed by Manzoor Hussain father of Sharif, accused, Muhammad Nawaz son of Farid, caste Kathia, Rehm Din alias Kaka son of Khuda Bakhsh and Ali Muhammad son of Faqir Muhammad, caste Rajput. It is incorrect that the correct occurrence was reported to be by Manzoor father of Sharif but I under the influence of Mian Umar Ali Janjiana falsely involved the accused. It is incorrect that my entire investigation is based on dishonesty and I have twisted the facts." ' He admitted that in the conviction slip, he had written the age of Mumtaz Hussain as 16/17 years. He admitted that when he had reached the spot, dead body was lying on a cot, on the left side of Shorkot Road, near the shop of Sharif. He denied the suggestion that Mumtaz Hussain was aged about 14 years at the time of occurrence. The suggestion that Rab Nawaz had asked Mumtaz Hussain to join him in committing dacoity, at the shop of Sharif and as he had refused to do so, brother of Rab Nawaz had involved Mumtaz Hussain in this case, fearing that he may not disclose the fact that Rab Nawaz had asked him to join him to commit dacoity at the shop of Sharif. He denied the suggestion that Mumtaz Hussain had been involved falsely in this case. ' Statements of remaining witnesses are more or less of a formal nature. 11. Muhammad Iqbal son of Ameer, Shah Muhammad and Mehr Chiragh were given up as unnecessary. ' Exh.P.N., report from the office of the Chemical Examiner, Exh.P.O., report from the office of Serologist and report Exh.P.P., from the Forensic Science Laboratory, were tendered in evidence.
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12. Appellants during statement under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. Muhammad Sharif, Ghulam Shabbir and Israr Ahmad denied to have got recovered guns. Sharif in answer to the question, "why this case against you and why the P.Ws. Have deposed against you?" stated as follows:-- "P.Ws. Are interested and inter se related. In fact on the day of occurrence, at about 8/9 p.m. Accused in complaint case namely Muhammad Aslam, Mazhar Hayat, Mumtaz alias Tajey Shah, Rab Nawaz, deceased and Muhammad Rafique committed dacoity in my shop and Rab Nawaz was hit by the shot of Mumtaz alias Tajey Shah inside my shop, and accused of complaint case looted my shop and took away all the arms and Rs.68,000 from my shop. My father Manzoor Hussain went to Police Station Shorkot Cantt. For reporting the matter. Police took me to police station for my statement but later on at the instance of Umar Ali Janjiana Ex-M.P.A. Who is an influential person, I and my co-accused have been falsely involved in this case to save the accused of the complaint case." ' The other appellants while answering the same question adopted the statement made by Muhammad Sharif. 13. They examined in defence Ghulam Yasin, Record Keeper, District Jail, Jhang as D.W.1. Ghulam Yasin produced record of District Jail, Jhang, relating to 1970. He stated that name of Qutab Din son of Nawaz, caste Khakh, resident of Chak No,498/JB, Police Station Shorkot, is recorded at S.No,8137 with the observation that he was convicted and sentenced on 21-12-1970 by Summary Military Court, Jhang, for five years and to suffer 10 stripes and that name of Chiragh son of Ghulam Farid, caste Sargana, resident of Chak No,498/JB, Police Station Shorkot, was written at S.No,8139, with the observation that he was also convicted and sentenced by Summary Military Court, Jhang on 21-12-1970 and sentenced to undergo R.I. For two years. He further stated that both of them had been convicted under Martial Law Regulation No,39. During cross-examination, he stated that he neither knew them personally nor can identify them today. He stated that he had never gone to Chak No,498/JB. ' Muhammad Sharif had tendered in evidence complaint titled Manzoor Hussain v. Muhammad Aslam and others as Exh.D.B., copy of the order of the High Court, dated 11-12-1996 Exh.D.C. And copy of Writ Petition No,5184 titled Manzoor Hussain v. D.I.-G. And others as Exh. D. D. ' None of the appellants had chosen to make statement on oath under section 340(2), Cr.P.C. 14. Before narration of facts, it would be pertinent to refer to Criminal Appeal No,39/L of 1998 filed by Manzoor Hussain against four persons i,e, Muhammad Aslam, Mazhar Hayat, Mukhtar alias Mumtaz alias Tajey and Muhammad Rafique. In fact the private complaint had been instituted by Manzoor Hussain against the members of the complainant party in case F.I.R. No,4 registered with Police Station Shorkot Cantt. Under section 302/34, P.P.C. Against four accused persons namely Muhammad Sharif, Israr Ahmad, Ghulam Shabbir alias Pappu and Mumtaz Hussain who were convicted vide judgment dated 12-3-1998 which has been impugned vide Criminal Appeal No,39/L of 1998. The learned trial Judge disposed of both the cases i,e, private complaint titled as Manzoor Hussain v. Muhammad Aslam and others and the State case titled as State v. Muhammad Sharif and others by one and common judgment. The appellant, however, raised an objection that both the matters should have been decided separately as separate evidence had been recorded in the two cases and two different versions had been taken by Manzoor Hussain, complainant in complaint case and the State in the police challan case. It is, however, not disputed or denied that both complaint and the police challan have arisen out of the same incident and facts. The appellant's contention in the instant appeal i,e, Criminal Appeal No,39/L of 1998 that the private complaint should have been decided separately on the strength of its own evidence cannot be held to be totally without substance. It would have been legally more appropriate to decide the complaint separately.
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15. As noted above, both the appeals, in police case Criminal Appeal No,51/L of 1998 alongwith Murder Reference No,6/L of 1998 as well as Criminal Appeal No,39/L of 1998 involve similar and identical question of law and facts, they have been heard together. The plea raised in Criminal Appeal No,39/L of 1998 is in fact the defence version of the appellants in Criminal Appeal No,51/L of 1998 linked with M.R. No,6/L of 1998. 16. In the light of above detail of facts and evidence, two distinct and opposite versions have come on record. Since Criminal Appeal No, 51/L of 1998 alongwith Murder Reference No,6/L of 1998 relate to upholding the sentence and confirmation of death sentence, the reference to appellants in the following paragraphs would mean convicted appellants in Criminal Appeal No,51/L of 1998. Similarly the prosecution version and the prosecution witnesses would imply the prosecution witnesses in the police case. 17. According to prosecution, Umar Draz, complainant in the company of Chiragh Khan, Qutab Din and Muhammad Iqbal, was going towards Shorkot City in Car No,1808 at about 5-00 p.m. On 9-1- 1996. When they were passing in front of the shop of Muhammad Sharif (Appellant) who was running an arms repairing shop, they saw that Muhammad Sharif armed with .12 bore gun, Shehr Yar armed with .12 bore gun, Ghulam Shabbir alias Pappu also armed with .12 bore gun and Mumtaz empty-handed were standing over there. They gave a signal to stop the car. The complainant Umar Draz stopped the car by the side of the road in front of Kanwal Tractor Workshop. Mumtaz, appellant forcibly took Rab Nawaz out of the car and shouted a Lalkara that he may not be spared, on which Muhammad Sharif…
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