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Petitioner: RAZZAQ AHMAD VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: RAZZAQ AHMAD vs THE STATE Case No.:Criminal Appeals Nos.1321, 1318, 1319 Criminal Revision No. 869 and Murder
JUDGMENT
Reported As: 2012 YLR 1616 Result: Bail allowed Judgment JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---We propose to dispose of Murder Reference No.638 of 2006, sent by the learned trial Court, Criminal Appeal No.1321 of 2006, preferred by appellant Razzaq Ahmad, Criminal Appeal No.1318 of 2006, submitted by Zafar Iqbal appellant, Criminal Appeal No. 1319 of 2006 filed by Sher Muhammad, Muhammad Akbar, Fayyaz Ahmad, Khizar Hayat and Umar Hayat and Criminal Revision No.869 of 2006, filed by Muhammad Arshadcomplainant, by this single judgment, as all these matters stem out of judgment dated 19-7-2006, passed by learned Additional Sessions Judge, Mandi Bahauddin. ' It is pertinent to mention here that the sentence of the appellant Mazhar Iqbal was suspended on 23-12-2008 and he was released on bail. The appellant Mazhar Iqbal, thereafter, absented himself from this Court and proceedings under section 514 of Cr.P.C. Were initiated against him. Notice to the surety namely Muhammad Afzal was issued and bail granting order was re-called on 8-6-2010. In compliance of this Court's order dated 7-7-2010 the surety Muhammad Afzal had already deposited an amount of Rs.1,00,000 to the Deputy Registrar (Judicial) of this Court. The learned counsel for the complainant has contended that the appeal filed by Mazhar. Iqbal (Criminal Appeal No. 1320 of 2006) cannot be decided until and unless he surrenders before this Court. The learned counsel for the appellant Mazhar Iqbal does not contest the said objection of the learned counsel for the complainant. In this view of the matter, the appeal filed by Mazhar Iqbal appellant cannot proceed any further. The file of his appeal be consigned to the record room and the same will be decided on his arrest.
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2. Zafar Iqbal, Fayyaz Ahmad, Umer Hayat,Razzaq Ahmed, Khyzar Hayat, Sher Muhammad and Muhammad Akbar appellants alongwith their co-accused Asif Mehmood, Tassawar Iqbal, Kamran Saif, Irfan, Mazhar Iqbal, Ehsan Ullah, Muhammad Mehndi, Nazir Ahmed, Amjid Iqbal, Iftikhar Ahmed alias Pomi, Niaz Ali, Muhammad Yousaf and Muhammad Younas were tried in case F.I.R. No.312 of 2004, dated 13-8-2004, registered at Police Station, Pahrianwali, District Mandi Bahauddin, in respect of offences under sections, 302, 324, 148, 149 of P.P.C. After conclusion of the trial, vide its judgment dated 19-7-2006, while acquitting co-accused namely, Muhammad Asif, Tassawar, Irfan, Ehsanullah, Amjid, Kamran, Mehdi, Rana Niaz, Iftikhar Ahmed, Nazir Ahmed, Muhammad Yousaf and Muhammad Younas, the learned trial court has convicted and sentenced the appellants as under:- - ' Zafar Iqbal ' Under sections 302(b)/149 of P. P. C. To death for committing Qatl-e-Amd of Liaqat Ali deceased. He was also ordered to pay Rs.50,000 (Rupees fifty thousand only) as compensation, if recovered, to the legal heirs of the deceased or in default of payment to suffer rigorous imprisonment for six months. ' Razzaq Ahmad ' Under sections 302 OW 49 of P. P.C. To death for committing Qatl-e-Amd of Liaqat Ali deceased. He was also ordered . To pay Rs.50,000 (Rupees fifty thousand only) as compensation, if recovered, to the legal heirs of the deceased or in default of payment to suffer rigorous imprisonment for six months. ' Sher Muhammad alias Shera, Akbar, Fayyaz, Khyzar Hayat and Umar Hayat ' Under sections 302(b)/149 of P. P. C. To imprisonment for life for 'committing Qatl-e-Amd of Liaqat Ali deceased. They were also ordered to pay Rs.50,000 (Rupees Fifty Thousand only) each as compensation to the legal heirs of the deceased or in default to suffer simple imprisonment for six months each. Benefit of section 382-B of Cr. P. C. Was also extended to them. 3. Brief facts of the case as disclosed by Muhammad Arshad complainant (P.W.12) in F.I.R. (Exh.PC/1) are that on the intervening night, i.e. 12/13-8-2004 at 11-00 p.m. (night) the complainant Muhammad Arshad (P.W.12) along with Mushtaq Ahmad, Muhammad Tufail (P. W.13), Muhammad Sharif (P: W,14) and Liaqat Ali deceased was coming back home after offering funeral prayer of one. Mst. Sardaran Bibi wife of Muhammad Hussain. Liaqat Ali deceased was 5/6 karams ahead. Of them and when he (Liaqat Ali) reached near the gate of one Safdar son of Karam Elahi, the appellant Zafar Iqbal, Mazhar Iqbal (since proclaimed offender) Sher Muhammad appellant, Razzaq Ahmad appellant, Muhammad Fayyaz appellant, Muhammad Akbar appellant, Khizar Hayat appellant and Umar Hayat appellant, all armed with hatchets, Muhammad Asif, Tasawar, Irfan, Ehsan Ullah, Amjad, Kamran, Rana Niaz, all armed with `sota' (clubs), Muhammad Mehndi empty-handed (co-accused since acquitted) who were already present Inside the Dara' of above mentioned Safdar came out in the street. Mehndi raised lalkara that Liaqat Ali should not be let off and he should be taught a lesson for getting the turn of water changed, on which Zafar Iqbal appellant inflicted a hatchet blow which landed on the left side of the head of Liaqat Ali, second hatchet blow was inflicted by Razzaq Ahmad appellant which hit Liaqat Ali on the back side of his head who fell down on the ground. Shera accused, thereafter, gave a hatchet blow which landed behind the left ear of Liaqat Ali. Mazhar Iqbal (since P.O.), Fayyaz Ahmad, Muhammad Akbar and Khizar Hayat appellants also inflicted hatchet blows on Liaqat Ali which landed on his left shoulder. Umar Hayat appellant gave successive hatchet blows on the back of Liaqat Ali. Tassawar, Asif, Irfan, Rana Niaz Ahmad, Ehsan Ullah, Amjad and Kamran (co-accused since acquitted) also inflicted sota blows on the person of Liaqat All which landed on his left upper arm, on his back, on the left and backside of his shoulder, left cheek, on the back of his left hand and on his right shoulder. The occurrence was witnessed by the complainant Muhammad Arshad (P.W.12), his
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brother Mushtaq, Muhammad Tufail (P.W.13) and Muhammad Sharif (P.W.14), in the light of electricity. They did not intervene due to fear to their own lives. On the hue and cry raised by Liaqat Ali the people of the locality attracted to the spot on which the accused fled away from the place of occurrence. 4. The motive behind the occurrence was the change of the turn of water of agricultural land. ' The matter was reported to the police at Bus Stand Pahrianwali on the same night, i.e. 13-8-2004 at 12-1/4 p.m. (night) through Fard Bian' Exh. PC on the basis of which formal F.I.R. Exh. PC/1 was registered at Police Station, Pahrianwali, Iftikhar Ahmad, Nazir Ahmad, Muhammad Yousaf and Muhammad Younas were implicated through supplementary statement of the complainant. It was alleged by the complainant that the above mentioned accused Iftikhar Ahmad, etc. Gave beating to Muhammad Sharif (P.W.14) when he tried to rescue Liaqat at the time of occurrence, whereas., Nazir Ahmad .Co-accused allegedly gave a fist blow under the left eye of. Muhammad Sharif (P.W.14). 5. After completion of investigation, the challan was submitted before the Court, the appellants and their co-accused, were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 16 P.Ws. ' The complainant Muhammad Arshad. (P. W.12), Muhammad .Tufail (P.W.13) and Muhammad Sharif (P.W.14) furnished ocular account of the occurrence. ' P.W.1 Dr. Shahid Naseein Iqbal, SMO, RHC, Pahrianwali, on 13-8-2004, medically examined Liaqat Ali (deceased), and found the following injuries on his body:-- (1) Tentative incised wound (3 small skin deep wounds at margin of this wound) about 13 cm x 3 cm on left side of neck starting just behind the labule or ear. It was muscle deep and tendons beneath was also cut and it was going backward. Advised X-Ray. (2) Incised wound about 9 cm x 2 cm x bone was exposed and also cut on left side of head in temporal region about 3 cm above ear. X-Ray was advised. (3) Incised wound about 7 cm x 2 cm x bone exposed on back of head in between ears in occipital region. Profuse bleeding was there from wound. X-ray was advised. (4) 4 incised wouncli measuring each 7 cm x 2-1/2 cm x muscle deep on left side ' at junction of arm and shoulder joint. All the four wounds are about 1 cm apart. (5), Incised wound 8 cm x 1-1/4 cm x skin deep on left upper arm in middle. (6) .Incised wound 7 cm x 2 cm x muscle deep on back in lumber region on Rt. Side of back bone. (7) Incised wound about 7 cm x 1-1/2 cm x muscle deep on Lt. Lumbar region near spinal column X-Ray was advised. (8) Bruise 4 cm round red blackish in colour on left back of lower chest. X-Ray-was advised. (9) Blackish bruise 4 cm round on back of Lft. Shoulder joint. (10) An abrasion 2 cm x 1-1/4 cm on left side of face lateral to nose. (11) 2 incised wound measuring each. 2 cm x 1-1/4 cm on back of Lt. Hand and these were skin deep. (12) Incised wound 6 cm x 1/2 cm x muscle deep on Rt. Shoulder joint. ' On the same day (13-8-2004) Dr. Shahid Naseem Iqbal, SMO, RHC, Pahrianwali (P.W.1) also examined Muhammad Sharif son of Muhammad Hayat aged 60 years and found the following injuries:- (1) Bluish black bruise 4 cm x 3 cm on lower side of left eye. There was sub-conjuntival haemorrhage in left eye and whole eye was red. (2) He was complaining of pain of whole body. ' Liaqat Ali, later on, succumbed to the above-mentioned injuries in the hospital on 28-8-2004, at 9-45 p.m.
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' Dr. Ghulam Abbas Nasir (P.W.6) on 29-8-2004 at 8-00 a.m. Conducted the post-mortem examination on the dead body of Liaqat Ali (deceased) vide Post mortem Report Exh.PF, Diagrams Exh.PF/-1 and Exh. PF/2 and found the following injuries on his person:- (/).An injury mark about 13 cm on left side of neck starting just behind the lobule of ear going backwards with 3 small injuries marks at margins of this wound. (2) An injury mark 9 cm on temporal region about 3 cm above left ear. ' (3) Injury mark 7 cm on back of head in between ears on occipieal region. (4) 4 injuries marks 7 cm long and in an are of 2-1/2 cm on left side of junction of arm and shoulder joint about 1 cm apart from each other. (5) An injury mark 8 cm on left upper arm in middle. (6) An injury mark 7 cm on back of lumber region on right side. (7) An injury mark 7 cm on left lumber region near spinal column. (8) 2 injury marks measuring 2 cm each on back of left hand. (9) An injury mark 6 cm on right shoulder joint. ' In his opinion, the death occurred due to haemorrhage, shock and injury to vital organ brain caused by injuries Nos.1 and 2, which were caused by sharp-edged weapon. Injuries Nos.3 to 9 were contributory to injuries Nos.1 and 2 to cause death which were also caused by sharp-edged weapon. All the injuries were ante mortem in nature. Injuries Nos.1 and 2 were sufficient in ordinary course of nature to cause death. Time between injury and death was within 15 to 17 days and between death and post-mortem within 7 to 15 hours. ' Munawar Hussain, S.-I./S.H.O. (P.W.16) and Nazeer, S.-I. (P.W.15) were the Investigating Officers of this case, who completed the investigation and submitted the challan. ' Sikandar Hayat, A.S.-I. (P.W.2), Muhammad Azam, MHC (P.W.3), Gulzar Ahmad, draftsman (P.W.4), Muhammad Mehndi (P.W.5), Liaqat Ali, Constable/565 (P. W.7), Muhammad Ashraf, 177/C (P.W.8), and Sikandar, A.S.-I. (P.W.10), are the formal witnesses. ' The evidence of recoveries was furnished by Taj Muhammad (P.W.9), Nazir Ahmad, S.-I. (P.W.15) and Munawar Hussain Shah, S.-I. (P.W.16). Muhammad Javed Baryar, DSP (CW-1) appeared as court witness. The prosecution produced documentary evidence in the shape of F.I.R. Exh.PC/1, statement of Muhammad Arshad Exh. PC, copy of site plan Exh. PD, memo of possession of clothes Exh.PE, post-mortem report, etc. Exh.PF, copy of death report Exh.PF/3, memo of possession of blood-stained hatchet Exh.PG, 85 PH, memo of possession of sota Exh.PJ, memo of possession of bloodstained Shalwar Exh.PK, memo of possession of blood-stained hatchets Exhs.PL, and P.M., copy of Rapat No.22 dated 28.08.2004 Ex.PN, copies of warrant of arrest and reports Exh. PO to PR/1, copies of Proclamation and reports Exh. PS to P.W.1, memo of possession of bloodstained earth Exh.PW, copy of application to doctor and report Exh.PY, reports of Chemical Examiner Exh.PBB, Exh. PCC and Serologist Exh.PDD, Exh. PEE. 6. The statements of the appellants and their co-accused under section, 342 of Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. In answer to the question, ,why this case against you and why the P. Ws. Have deposed against you, the appellants replied as under:-- Zafar Iqbal "The occurrence is unseen one. In fact, deceased was having bad character and womanizer. During the night of occurrence, he went to the' house of one Bhadar and was caught red-handed in the house of Bhadar while committing zina with Mst. Alogaddas. At the same time, Bhadar, Mubasher, Tassawar, Yasir and Sajid (who are not facing trial) had given him thrashing in the house of said Bhadar Khan and threw him in the lane. After the announcement made in the Loudspeaker of the mosque, the complainant and P. Ws. Reached there and after premeditation
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and pre-consultation due to previous enmity with Tufail P. W.1. Have been involved in this case falsely. P. Ws. Are closely related with complainaitt party". ' The appellants namely Razzaq Ahmad, Fayyaz Ahmad, Muhammad Akbar, Sher Muhammad, Khizar Hayat and Umar Hayat adopted the same plea as taken by Zafar Iqbal appellant. ' Neither the appellants made statement under section 340(2), Cr.P.C. Nor they produced any evidence in their defence. The learned trial Court vide its judgment dated 19-7-2006, while acquitting co-accused, namely, Muhammad Asif, Tassawar, Irfan, Ehsan Ullah, Amjid, Kamran, Mehdi, Rana Niaz, Iftikhar Ahmed, Nazir Ahmed, Muhammad Yousaf and Muhammad Younas, found Zafar Iqbal, Fayyaz Ahmad, Umer Hayat, Razzaq Ahmed, Khyzar Hayat, Sher Muhammad and Muhammad Akbar appellants, guilty and convicted and sentenced them as mentioned and detailed above. 7. The learned counsel for Zafar Iqbal appellant, in support of this appeal, contends that Zafar lqbal appellant has no motive to take part in the occurrence and no motive was alleged against him by the prosecution; that even the motive brought on the record through the statements of prosecution witnesses is vague as the same is only to the extent that there was a dispute of the change of water but no detail of such dispute was disclosed in the F.I.R. Or brought before the learned trial court and no document in this respect was placed on the record; that the eye- witnesses of the prosecution were not present at the spot at the relevant time which is clear from the fact that they all have admitted that there was an announcement on the loudspeaker regarding the death of Liaqat Ali, therefore, had the eye-witnesses been present at the spot then there was no such occasion for the said announcement; that Muhammad Arshad complainant claims that he took the injured Liaqat Ali (subsequently dead) to the hospital but the MLR Exh. PA shows that the deceased was brought to the hospital by one Mushtaq (given up P.W.); that as far as Muhammad Tufail (P.W.13) and Muhammad Sharif (P.W.14) are concerned their evidence cannot be accepted because Muhammad Tufail (P.W.13) has admitted in cross-examination that he had enmity with the accused party; that so far as the other eye-witness, i.e. Muhammad Sharif (P.W.14) is concerned, he is not a reliable witness because he stated in the court that he was caught hold of by Iftikhar, Nazir, Yousaf and Younis accused and Nazir accused gave him a fist blow under his left eye but he was not believed by the learned trial court regarding his own alleged injuries and all the persons named by him qua the injuries allegedly sustained by him were acquitted by the learned trial court and their acquittal was maintained by this Court in appeal filed against them; that moreover in the F.I.R. It was not the case of the complainant that Muhammad Sharif was injured in this incident and even in the relevant column of Mukhtas'ar Halat of Inquest Report, there is no mention of this fact; that in this case 20 persons were implicated as accused out of whom eight accused were alleged to have caused injuries on the person of deceased Liaqat Ali with hatchets, whereas, the seven others were alleged to have caused injuries with sotas and role of raising a lalkara was attributed to Muhammad Mehndi co-accused, whereas, Iftikhar Ahmad, Nazir Ahmad, Muhammad Yousaf and Muhammad Younas were implicated through supplementary statement with the allegation that they caught hold of Muhammad Sharif (P.W.14) and gave him fist and kick blows. The appellant Nazir Ahmad was assigned a specific role of giving fist blow, which landed on the left cheek below left eye of Mohammad Sharif (P. W.14), but the learned trial court acquitted 12 accused persons, including those who were accused of causing injuries on the person of the deceased with Dandas and their acquittal was challenged by the complainant through Criminal Appeal No.1475 of 2006 which was dismissed by this Court and the matter was not agitated any further, thus, the same attained finality, therefore, evidence which has been disbelieved qua acquitted co-accused, especially those who allegedly caused injuries on the person of the deceased, cannot be believed to the extent of the appellant, unless and until it is corroborated/supported by any other independent piece of evidence which corroboration is very
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much lacking in this case; that recovery of hatchet at the instance of the appellant is of no avail to the prosecution case because the same has not been proved as per law; that the version of the appellant that the deceased was a womanizer and he was found in an objectionable condition with one Mst. Muqadas and was killed by his relative is probable in the circumstances of this case; that after the post-mortem examination, the doctor did not hand over Shalwar to the police and the same was handed over to the police on 7-9-2004, i.e. 25 days after the occurrence which supports the version of the appellants. ' The learned counsel for Razzaq, Fayyaz and Sher Muhammad appellants, while adopting the arguments of the learned counsel for Zafar Iqbal appellant, further contends that recovery at the instance of Razaq has not been proved in accordance with the law and even it was affected after one and a half months of the occurrence, therefore, no importance can be attached on this piece of evidence; that it is the case of prosecution that hatchet was recovered at the instance of. Razzaq appellant on 30-9-2004 and it was dispatched to the Office of Chemical Examiner on 5-10-2004 and was received in the said office on 7-10-2004, therefore, the recovery and positive report of the. Chemical Examiner is of no avail to the prosecution case. ' The learned counsel for Muhammad Akbar, Khizar Hayat and Umar Hayat appellants, in support of this appeal, contends that no recovery was effected, as far as, Akbar is concerned, whereas, the recoveries of hatchets allegedly affected at the instance of Khizar Hayat and Umar Hayat appellants were not proved because the 1.0. Has stated that the same were recovered from the same house; that it is the case of the prosecution that Khizar Hayat was armed with hatchet, and caused injury on the left shoulder of Liaqat Ali deceased but according to the relevant record, same ihjury was attributed to Akbar, Fayyaz and Mazhar accused as well, which shows that the prosecution case is doubtful in nature; that as far as Umar Hayat appellant is concerned it was the case of the complainant in the F.I.R. That he caused injury one after the other on the back of Liaqat Ali deceased whereas the complainant while appearing before the learned trial court has attributed only one injury to him and same was the case of other eye-witnesses of the prosecution, whereas, as a matter of fact there are two injuries on the person of the deceased, therefore, the above mentioned appeals be accepted and the appellants be acquitted from the charges. 8. On the other hand, the learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, opposes this appeal on the grounds that the incident took place in the village and it has not been denied or disputed that the eye-witnesses are not resident of the same village rather it is on the record that their residences are situated hardly at a distance of few acres from the place of, occurrence; that all the eyewitnesses have reasonably explained their presence at the spot; that all the appellants are specifically named in the F.I.R. With specific allegations of causing injuries on the person of the deceased which resulted into his death; that there is nothing on the record which could even suggest that there was any enmity of the appellants with the complainant party due to which, the appellants have been implicated in this case falsely; that matter was reported to the police promptly at 12-15 a.m. (night), whereas, the occurrence took place at 11-00 p.m. (night); that version of the appellant was vague and even otherwise no evidence in support of that was produced by any of.' the appellants; that hatchets were recovered from Zafar Iqbal; Razzaq Ahmad, Khizar Hayat and Umar Hayat appellants and the reports of Chemical Examiner and that of Serologist are positive; that non-recovery of hatchets from the appellants Fayyaz, Muhammad Akbar and Sher Muhammad is not damaging to the prosecution case because they have been assigned specific roles by the eye-witnesses and their evidence is natural, confidence-inspiring and straightforward; that the prosecution has also proved the motive through the statements of eye-witnesses; that the motive, as alleged by the prosecution, is further established through documentary evidence (Exh. PDF/1-4) (wrongly, mentioned as Exh.DF), which shows that the turn of water was changed in favour of Liaqat Ali
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(deceased) and he also moved an application for the implementation of the, order regarding the turn of water; that the eye-witness, i.e. Muhammad Arshad, (P.W.12), Muhammad Tufail (P. W.13) and Muhammad Sharif (P.W.14) are consistent on all material aspects of the incident like time, place, mode and the role played by the appellants; that the medical evidence furnished by Dr. Shahid Naseem Iqbal (P.W.1) and Dr. Ghulam Abbas Nasir (P.W.6) fully supported the ocular account; that there was no change in the version of the prosecution before the court and it remained the same as it was on the first day of occurrence when the matter was reported to the police, therefore, the appeals filed by the appellants against their convictions and sentences be dismissed and Murder Reference be answered in the affirmative. 9. We have heard the arguments of learned counsel for the parties at length and perused the record minutely with their able assistance. 10. The occurrence in this case took place on the intervening night of 12/13-8-2004 at 11-00 p.m. In front of the gate of the house of one Safdar son a Karam Elahi at village Haigarwala, Police Station Pahrianwali, District Mandi Bahauddin. The matter was reported to the police by Muhammad Arshad (P.W.12) at 12-1/4 a.m. (night) on 13-8-2004 through Exh.PC on the basis of which formal F.I.R. Exh.PC/1 was recorded on 13-8-2004 at 12-30 a.m. (night) at Police Station Pahrianwali, District Mandi Bahauddin. The prosecution in order to prove the ocular account of the occurrence has examined three eye-witnesses namely Muhammad Arshad (P.W.12), Muhammad Tufail (P.W.13) and Muhammad Sharif (P.W.14). Although it was alleged by the prosecution that Muhammad Sharif (P.W.14) was also injured at the time of occurrence at the hands of Iftikhar Ahmad, Nazir Ahmad, Muhammad Yousaf and Muhammad Younis co-accused of the appellants (since acquitted) but the fact of receiving any injury by Muhammad Sharif (P.W.14) was neither mention in 'Fard Bian' Exh. PC or in F.I.R. Exh.PC/1. Moreover, the learned trial court vide the impugned judgment dated 19-7- 2006 has acquitted all the above 'mentioned accused while extending them the benefit of doubt. The appeal filed by the complainant against the acquittal of above mentioned accused Iftikhar Ahmad, etc. i.e. Criminal Appeal No. 1475 of 2006 has already been dismissed by this Court vide judgment dated 4-4-2007. The complainant or the State has admittedly not challenged the above mentioned order of this Court before the Hon'ble Supreme Court of Pakistan, thus, the judgment of acquittal of the above mentioned accused Iftikhar…
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