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Petitioner: LEHRASIB alias RASAB and 2 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Rustam Ali Malik, Zafar Pasha Ch. Title: LEHRASIB alias RASAB and 2 others vs THE STATE Case No.: Criminal Appeal No,160 of 1996 Date of Judgment:2002-03-28 Reported As: 2002 P Cr. L J 1653 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' RUSTAM ALI MALIK, J.--- By this judgment we propose to dispose of Criminal Appeal No,160 of 1996. 2. The brief facts of the case are that F.I.R. No,64 of 1995 was registered on 22-2-1995 in Police Station Dinga, District Gujrat under sections 302/460/394/34, P.P.C. The formal F.I.R. Exh.P.O./1 was registered on the basis of statement Exh.P.O. Of one Muhammad Ashraf son of Ghulam Muhammad, complainant who had stated that he is a resident of Mauza Chillianwala and for the last 5/6 years had been living in a Mohallah of Dinga. The house of his brother Muhammad Arif is adjacent to his house. On the day of occurrence (22-5-1995) around 4-00 a.m. He w,e,f, the complainant was present in jtis house. He heard the sound of firing and also the cries from his brother's house and so he rushed in that direction. He saw four persons on the upper storey of the house and who were Muhammad Ilyas armed with a rifle 222 bore, Lehrasib armed with a gun .12 bore, Riasat Ali armed with a pistol .30 bore and Azhar armed with a carbine and they were forcibly removing_ the ear-rings from the ears of Mst. Razia Bibi, the sister-in-law of the complainant, Mst. Bushra wife of Tariq Mehmood and Mst. Kishwar Bibi the niece of the complainant. Muhammad Arif brother of the complainant and his nephew Qasim and also the ladies present there resisted. Muhammad Arif held Riasat Ali accused in his fold (Japha) while Muhammad Ilyas, Lehrasib and Azhar fired with their respective weapons hitting Muhammad Arif in his chest and right flank. Riasat Ali who was the companion of the accused was also injured as a result of firing of his companions. Both of them fell down. As a result of the firing, Mst. Razia Bibi and Mst. Bushra Bibi also got injured and fell down. Muhammad Arif the brother of the complainant and Riasat Ali, companions of the accused, died at the spot. The occurrence was witnessed by the complainant and also by Qasim, Mst. Razia Bibi, Mst. Bushra Bibi and Mst. Kishwar Bibi. In the meanwhile, the police party reached
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there and they arrested Muhammad Ilyas and Lehrasib accused at the spot while Azhar Iqbal accused managed to escape. 3. It may be mentioned here that Mst. Razia Bibi also succumbed to the injuries subsequently. The complaint Exh.P.O. Was recorded by Farooq Hussain, S.-I./S.H.O. (P.W.16) on the statement of P.W.6 Muhammad Ashraf complainant. The deceased in this case were Muhammad Arif aged 60 years, his wife Mst. Razia Bibi aged 45 years and Riasat Ali who was one of the companions of the accused, aged 22/23 years. The injured was Mst. Bushra Bibi P.W.7. The other eyewitnesses examined by the prosecution are Muhammad Ashraf complainant, P.W.6 and Mst. Kishwar Bibi P.W.B. In this case, the prosecution has examined as many as 16 P. Ws. Of them P. W.1 is Dr. Muhammad Ali Chatha, P.W.2 Dr. Munawar Hussain, P.W.3 Muhammad Akhtar, P.W.4 Mehdi Khan, P.W.5 Abdul Razzaq, H.C. P.W.6 Muhammad Ashraf, P.W.7 Mst. Bushra Bibi, P.W.8 Mst. Kishwar Bibi, P.W.9 Muhammad Aslam, P.W.10 Afzaal Mehmood, P.W.11, Muhammad Afzal, A.S.-I. P.W.12 Dr. Farooq Ahmed Bangish, P.W.13 Haji Muhammad Akram, P.W.14 Akhtar Naqaash, Draftsman, P.W.15 Muhammad Umar, H.C. And P.W.16 Farooq Hussain, Inspector/S. H . 0 . 4. The three accused namely Lehrasib alias Rasib, Muhammad Ilyas and Azhar Iqbal alias Azhar were formally charged by the learned Special Court (Suppression of Terrorist Activities), Gujranwala Division, Gujranwala on 6-11-1995. They were charged under section 458/34, P.P.C. For the offence of house breaking by night for trespassing into the house of Muhammad Arif, deceased in furtherance of their common intention and being armed with semi-automatic and automatic fire-arms with the preparation of causing hurt to the inmates of the house. They were charged under section 460, P.P.C. For being jointly concerned in the commission of the offence of house breaking by night and for causing the Qatl-e-Amd of Muhammad Arif and Mst. Razia Bibi, deceased and causing injuries to Mst. Bushra Bibi P.W. They were charged under section 302(b) read with section 34, P.P.C. For firing on Muhammad Arif in furtherance of their common intention and causing him injuries resulting in his death. They were charged under section 302(b), read with section 34, P.P.C. For firing at Mst. Razia Bibi, deceased in furtherance of their common intention and causing injuries to her which resulted in her death. They were charged under section 324/34, P.P.C. For the offence of attempt to commit Qatl-e-Amd for causing such bodily injuries to Mst. Bushra Bibi P.W. In furtherance of their common intention that if she had died as a result of those injuries they would have been guilty of Qatl-e-Amd. They were charged for the offence under section 301, P.P.C. On the allegation that in an attempt to commit Qatl-e-Arnd of Muhammad Arif, deceased, they had stabbed their own co-accused Riasat Ali by missing the target and who had died as a result of that injury. ' Lastly, the accused were charged under section 397/34, P.P.C. For having robbed the golden ear- rings of Mst. Razia Bibi, deceased, Mst. Kishwar Bibi and Mst. Bushra P.Ws. In furtherance of their common intention on gun point, while causing the death of Muhammad Arif, deceased, Mst. Razia Bibi, deceased and attempting to commit Qatl-e-Amd of Mst. Bushra Bibi, during the course of commission of robbery. 5. All the three accused pleaded not guilty and the prosecution was thus asked to produce its evidence. 6. As already mentioned, the prosecution has examined in this case as many as 16 P.Ws. Of them P.W.1 is Dr. Muhammad Ali Chatha who on 22-2-1995 had performed operation (exploratory lapratomy) on Mst. Razia Bibi. ' His findings relating to operation were as under:-- (1) Haemopartoneum. (2) Multiple perforation in small gut. (3) Shattering of transverse colon in middle part. (4) A large perforation at/above junction of oeacum/assending colon.
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(5) Multiple tears in mesentery. ' Exh.P.A. Is the photostat copy of his operation/notes. 6. P.W.2 is Dr. Munawar Hussain, Medical Officer who on 22-2-1995 had medically examined Mst. Bushra Bibi wife of Tariq Mehmood and had found the following injuries on her body:-- (1) A lacerated wound of inverted margins which were black 3-1/2 x 1/2 c.m. On the right plam. It was mussle deep. (2) A lacerated wound of inverted margins with blackening measuring 2-1/2 x 1 c.m. Mussle deep on the ulner side of right wrist. (3) A lacerated wound of inverted margins with blackening 1 c.m. In diameter on the medical aspect of right fore-arm. X-Ray was advised. (4) A lacerated wound with blackened and inverted margins 1-1/2 c.m. In diameter deep on the back of right fore-arm. (5) A lacerated wound with inverted black margins 1-1/2 c.m. In diameter going deep into the left arm on the anterior aspect. Left elbow joint. It was directed upward. Clinically fracture of left humerous. X-Ray was advised. (6) A lacerated wound with irregular everted margins 2 c.m. In diameter on the medical aspect of left midarm. (7) A lacerated wound 1-/2 c.m. In diameter on the front of chest going deep X-Ray advised. ' According to him injuries Nos.1, 2 and 3 were declared Ghair Jaiffah Mutlhama and injuries Nos.5 and 6 were declared Ghair Jaiffah Munaqqilah and injury No,7 was kept under observations. According to him, all the injuries were caused with fire-arm and were found fresh (to have been caused within 1 or 2 hours). Exh.P.B. Is the carbon copy of his medico-legal report. 7. P.W.2 on the same day had also medically examined Mst. Razia Bibi wife of Muhammad Arif, deceased and had found the following injuries:-- (1) A lacerated wound to inverted margins 2 x 1-1/2 c.m. Just below the left constal margin going deep into the abdomen. The abdomen was very tender and swelling seen at the injury side. X-Ray advised for internal bleeding. (2) A lacerated wound having inverted margins 1-1/2 c.m. In diameter on the left breast going deep. X-Ray chest advised. (3) A fire-arm exit wound, edge everted, measuring 3 x 2 c.m. On the right side of abdomen. ' According to him, injuries Nos.1 and 2 were kept under observation, injury No,3 was declared as Ghair Jaiffah Mutalahama and injury No,4 was declared as Jaiffah. According to him the injuries .Were caused by fire-arm and were found to be fresh. Exh.P.C. Is the carbon copy of his medico- legal report. 8. P.W.12 is Dr. Farooq Ahmed Bangish, Medical Officer who on 22-2-1995 at 10-00 a.m. Had conducted the post-mortem examination on the dead body of Muhammad Arif, deceased and found the following injuries on the dead body:-- (1) Nine fire-arms entry wounds each measuring 1/2 x 1-1/2 c.m. Into going inward in area 10 x 6 c.m. On the front of right side of the chest. Margins were inverted. (2) Four fire-arm exit wounds each measuring 1 x 1/2 c.m. On the back in upper part of left side of the chest in an area 8 x 6 c.m. (3) Fire-arm entry wound 1/2 x 1/2 c.m. Going deep on the outer and upper part of left hip joint. Margins were inverted. (4) Fire-arm exit wound 2 x 2 c.m. On the front and lower part of left side of abdomen. (5) Fire-arm entry wound 2 x 2 c.m. On the outer and posterior part of chest. Margins were inverted. (6) Four exit wounds each measuring 1 x 1/2 c.m. On the outer part of left side of the chest in the postal axillary line.
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' In his opinion the death had occurred due to shock and haemorrhage as a result of injuries Nos.1, 3 and 5 which were sufficient to cause death in the ordinary course of nature. According to him the time between injury and death was immediate while that of death and post-mortem examination was about six hours. Exh.P.W. Is the carbon copy of the post-mortem report while Exh.P.W./1 is the sketch of injuries. 9. On the same day w,e,f, on 22-5-1995, P.W.2 Dr. Farooq Ahmed Bangish had conducted the post- mortem examination on the dead body of Riasat Ali son of Nazar Muhammad and had found the following injuries on his dead body:-- (1) Incised wound 3 x 1-1/2 c.m. Going deep on the front of left side of abdomen. Viseras were coming out of the wound. (2) Incised wound 4 x 1 c.m. Into bone deep on the top of left side of the head. ' In his opinion the death had occurred due to shock and excessive haemorrhage as a result of injury No,1 which was sufficient to cause death in the ordinary course of nature. The time between injury and death was immediate and that between death and post-mortem examination was about 7 hours. Exh.P.X. Is the carbon copy of the post-mortem report while Exh.P.X./1 is a sketch of injuries. 10. On 25-2-1995 at 9-30 a.m. P.W.12 conducted the post-mortem examination of the dead body of Mst. Razia Bibi wife of Muhammad Arif, deceased and found the following injuries:-- (1) Fire-arm entry wound measuring 8 x 1/2 c.m. Going deep. Margins were inverted on the left side of the chest just below the left chest. No blackening was present. (2) Fire-arm wounds 2 x 1/2 c.m. Skin deep in the left costal margins. (3) Fire-arm exit wound measuring 3 x,2 c.m. Edges were everted on the right side of the abdomen. (4) Fire-arm entry wound 1/2 x 1/2 c.m. Into mussle deep on the back and outer part of right hip joint. ' In his opinion the death had occurred due to shock and haemorrhage as a' result of injury No,1 which was sufficient to cause death in the ordinary course of nature. According to him the time between injuries and death was 67 hours and that between death and post-mortem examination was 9 hours and 45 minutes. Exh.P.Y. Is the carbon copy of the post-mortem report while Exh.P.Y./1 is the sketch of injuries. 11. P.W.3 Muhammad Akhtar is an attesting witness of certain recovery memos. P.W.4 Mehdi Khan Constable No,897 and P.W.5 Abdul Razzaq, H.C. No,269 are formal witness who performed certain functions during the investigation. P.W.6, P.W.7 and P.W.8 are the eyewitnesses who furnished the eye-witness account of the occurrence. Of them P.W.6 is Muhammad Ashraf, complainant. He stated that his house is adjacent to the house of his brother Muhammad Arif deceased which had joint roof. On 22-2-1995 around 4-00 a.m. At Sehri (it was the month of Ramzan) he was present in his house. There was electric light in their homes. He was attracted to the roof of the house of his brother Muhammad Arif due to alarm raised from there and he found that on the second floor of the house Lehrasib accused armed with a gun, Muhammad Ilyas accused armed with .222 rifle, Riasat Ali, deceased armed with a pistol .30 bore and Azhar Iqbal armed with a carbine were present. All of them were previously knowing to him. They started snatching the ear-rings of Mst. Razia Bibi wife of his brother Muhammad Arif, her daughter Mst. Kishwar Bibi and Mst. Bushra Bibi, the wife of son of Muhammad Arif, deceased. His brother Muhammad Arif and nephew Qasim were resisting the accused. In consequence all the four accused fired and the shots hit the walls of the premises. Meanwhile Muhammad Arif, deceased picked up a cricket bat and gave a blow with the same on the head of Riasat Ali, accused. Thereafter, Muhammad Arif held Riasat Ali in his clasp. At that time, Muhammad Ilyas, accused attempted to stab Arif but instead the knife hit Riasat Ali, accused in the abdomen. All the remaining three accused started firing at Arif who received injuries on chest, right arm-pit and the left flank towards the back. Mst. Bushra Bibi and Mst. Razia
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Bibi, P. Ws. Also sustained injuries as a result of the said firing. Riasat Ali fell down on the roof on the second floor whereas Muhammad Arif, Mst. Razia and Mst. Bushra. Bibi had fallen down inside the room on the same storey. Arif and Riasat Ali succumbed to the injuries there and then. Subsequently, on 25-2-1995 Mst. Razia Bibi also expired. The incident was witnessed by Qasim, Mst. Bushra Bibi, Mst. Kishwar and by himself w,e,f, P.W.6. P.W.6 further stated that immediately thereafter a police party arrived there which rounded up Muhammad Ilyas and Lehrasib accused alongwith their weapons. However, Azhar Iqbal accused managed to escape. His statement Exh.P.O. Was recorded by the Investigating Officer. 12. P.W.7 Mst. Bushra Bibi is injured P.W. In her statement she deposed that Lehrasib accused was armed with pistol .30 bore Azhar with Carbine Lehrasib with a gun and Muhammad Ilyas with .222 rifle. They had pounced upon them and had started snatching their golden ear-rings. They raised alarm which attracted Muhammad Arif who was sleeping on the first floor, her brother-in-law Qasim who was sleeping on the second floor and her maternal-uncle Ashraf, the complainant, to the spot. According to her, Qasim and Arif resisted the accused and all the accused resorted to firing and shots fired by them hit the walls. Her father-in-law Arif had picked up a cricket bat and had given blow with the same on the head of Riasat Ali, accused. Her father-in-law had clasped Riasat Ali, accused while Muhammad Ilyas accused tried to stab her father-in-law. Arif with the knife but instead it hit Riasat Ali accused in the abdomen. Thereupon, Ilyas Lehrasib and Azhar Iqbal accused started firing and the shots fired by them hit her father-in-law Arif on his chest, right arm pit and flank and as a result of which he fell down while Riasat Ali, accused had also fallen at some distance. According to P.W.7, her mother-in-law Mst. Razia Bibi and she herself w,e,f, Mst. Bushra Bibi had been injured as a result of the firing of accused and that Mst. Razia Bibi had died some days after the occurrence as a result of those injuries while Arif had succumbed to the injuries then and there, at the spot. 13. P.W.8 Mst. Kishwar Bibi who is also an eye-witness of the occurrence supported the other P. Ws. She also specifically named the accused. 14. P.W.9 Muhammad Aslam is the recovery witness. According to him on 28-2-1995, Azhar Iqbal alias Azhar accused was arrested by the police and in the presence of P.W. The police had conducted his personal research and had recovered a loaded carbine from the folder of his Shalwar. The police also recovered four cartridges of .12 bore from the side pocket of the said accused. The carbine was recovered from Azhar Iqbal alias Azhar accused and was exhibited as Exh.P.14 while cartridges recovered from him were described as Exh.P.15/1-4. The carbine Exh.P.14 was stated to have been taken into possession vide recovery memo. Exh.P.P. After it had been made into a sealed parcel. According to P.W.9 Muhammad Aslam, on 6-3-1995 Azhar Iqbal alias Azhar while in police custody had made a disclosure and had led to the recovery of six golden rings Exh.P.13/1-6 lying on the slab of his house which were taken into possession by the Investigating Officer vide Exh.P.Q. P. W.10 is Afzaal Mahmood, Constable No,1328 who performed certain formal duties while P.W.13 Haji Muhammad Akram is the owner of jewellery shop in Raja Bazar, Dinga who had manufactured the ear-rings Exh.P.13/1-6 for .Krif deceased. He identified the said ear-rings in the Court. P.W.15 Muhammad Umar, H.C. No,440, while posted as Moharrir Head Constable in Police Station Dinga, on the receipt of complaint Exh.P.O., had recorded the formal F.I.R. Exh.P.O./1. He had performed certain other functions also during the investigation. 15. P.W.11 is Muhammad Afzaal, A.S.-I. Who stated that on 22-2-1995 around 4-15 a.m., he alongwith the Investigating Officer had reached the residence of Muhammad Ashraf. Complainant and it was from there that Lehrasib and Muhammad Ilyas had been arrested from the gallery of the roof of Muhammad Ashraf's house. At the time of their apprehension, Lehrasib accused was holding a .12 bore gun, Exh.P.23, in loaded condition which was unloaded and two live cartridges Exh.P.24/1-2, were taken out. A Khaki bag Exh.P.25 which was hanging on his right shoulder containing 13 live
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cartridges Exh.P.26/1-13 and all those articles were taken into possession by the Investigating .Officer vide memo. Exh.P.T. P.W.11 further deposed that at the time of arrest of Muhammad Ilyas accused he was holding .222 rifle Exh.P.27 which was unloaded and six bullets Exh.P.28/1-6 were recovered. He had the magazine Exh.P.29 and 14 bullets Exh.P.30/1-14 and a belt Exh.P.31 having 20 bullets Exh.P.32/1-20. All these articles were taken into possession by the Investigating Officer vide memo. Exh.P.11. P.W.11 further deposed that the Investigating Officer had taken into possession from near the dead body of Riasat Ali accused a mauzer Exh.P.33 in loaded condition which was unloaded and three live cartridge Exh.P.34/1-3 were recovered. The Investigating Officer, took into possession from his right side pocket the purse Exh.P.35 and 15 live cartridges Exh.P.36/1-15 and all these articles were taken into possession by the Investigating Officer vide memo. Exh.P.V. P.W.11 further deposed that the dead body of Riasat Ali, deceased was lying in the courtyard of roof of Muhammad Arif, deceased. 16. P. W.14 Akhtar Naqqash had prepared the site plan Exh.P.Z. And Exh.P.Z./1. P.W.16 is Farooq Hussain, Inspector Investigating Officer. He deposed that on 22-2-1995 he learnt about the firing and rushed to the spot. After having reached the place of occurrence, he divided the contingent (of police) into two groups. One headed by him and the other headed by Muhammad Afzaal, A.S.-I. He went to the roof of the house of Muhammad Arif, deceased where dead bodies of Arif and Riasat Ali accused were lying and he found two ladies Mst. Razia Bibi and Mst. ' Bushra Bibi in injured condition. Mst. Razia Bibi later on succumbed to the injuries on 25-2-1995. He examined the injured ladies and dispatched them to the hospital at Dinga. Then he shifted to the roof of the house of Muhammad Ashraf complainant from where he apprehended Lehrasib and Muhammad Ilyas, accused Lehrasib was having .12 bore gun Exh.P.23 alongwith two cartridges loaded in the gun Exh.P.24/1-2 and 13 cartridges lying in the bag Exh.P.25 which are Exh.P.26/1-13. He secured these items etc. Recovered from Lehrasib vide memo. Exh.P.T. In the presence of Muhammad Afzaal, A.S.-I. And Mehr Ali Shah, A.S.-I. According to him Muhammad Ilyas was having .222 rifle Exh.P.27 which was loaded with magzine Exh.P.29 which contained six rounds. He stated that he was having a bandolier Exh.P.31 containing 20 rounds Exh.P.32/1-20. One loaded magazine Exh.P.37 was also lying in the said bandolier loaded with 14 cartridges Exh.P.30/1-14. He secured all the aforesaid articles vide memo. Exh.P.U. In the presence of the witnesses. He visited/inspected the house of Arif and where he recorded the statement Exh.P.O. Of Muhammad Ashraf, complainant and thereafter sent the same to the police station for registration of the case. Besides performing other usual functions in connection with the investigation, he arrested Azhar accused on 28-2-1995 and on his search he recovered carbine Exh.P.14 from his person, loaded with a cartridge and also recovered four other cartridges from his pocket. The cartridges are Exh.P.15/1-5. The carbine was secured vide memo. Exh.P.P. 17. From the record it appears that on 21-1-1996 the learned D.D.A. Tendered in evidence the report of the Chemical Examiner Exh.P.KK., report of Serologist Exh.P.LL. And report of Fire-arm Expert Exh.P.MM. He gave up P.Ws. Namely Qasim Khadim Hussain, Amjad Ali, Manzoor Hussain, Muhammad Asghar, Muhammad Ali Shah, A.S.-I. Police Station Dinga and Muhammad Inayat, A.S.- I. As unnecessary and closed the case for the prosecution. 18. On the conclusion of the prosecution evidence the statements of the accused under section 342, Cr.P.C. Were recorded. They denied all the incriminating circumstances. Lehrasib accused in his statement, claimed that all the recoveries were fake. He took the plea that Riasat Ali, deceased was engaged with Mst. Kishwar Bibi P.W. But later on Muhammad Arif, deceased, backed out as he wanted to marry her somewhere else and that Mst. Kishwar Bibi was interested in Riasat Ali of Muhammad Arif deceased and was willing to marry him and that Riasat Ali, accused often visited the house of Muhammad Arif deceased and on the night of occurrence Mst. Kishwar Bibi, P.W. Had called Riasat Ali, deceased to her house and she was going to elope with him.
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' When it was noticed by Muhammad Arif deceased, other members of their family also woke up. Muhammad Arif, deceased gave knife blow to Riasat Ali accused and who in order to save his life fired at Arif, deceased. As a result of his firing Muhammad Arif, Mst. Bushra Bibi and Mst. Razia Bibi sustained injuries while Mst. Kishwar Bibi ran towards adjoining room and concealed herself there. They took the plea that Muhammad Ashraf and Qasim P.Ws. Were not present at the spot and that Mst. Kishwar Bibi P.W. Also did not see the occurrence as she had ran away to the adjoining room. Subsequently, in connivance with the police and to save the family from insult, false version of dacoity was concocted. Lehrasib accused took the plea that he was arrested in the police station when in the morning he came to now that Riasat Ali had been murdered by Muhammad Arif, deceased. When he admonished Muhammad Ashraf, P.W. At the police station for giving a false version, the police involved him also. He stated that Muhammad Ilyas accused had also accompanied him and he was also involved and arrested there due to the same reason. He stated that being afraid of the medical examination, Mst. Kishwar Bibi P.W. Had been married after she made a statement as a P.W. Before this Court. 19. Azhar Iqbal alias Azhar accused in answer to the question as to why case (had been set up) against him and as to why the P.Ws. Had deposed against him, replied that Riasat Ali was his relative and that he had protested against his murder, and therefore, he had been falsely involved in this case. Muhammad Ilyas, accused in response to the same question put to him adopted the statement given by his co-accused w,e,f,, Lehrasib. All the three accused denied the recoveries and claimed that the prosecution had manoeuvred false reports from the Forensic Science Laboratory. None of the accused made statement under section 340(2), Cr.P.C. However, they stated that they wanted to produce evidence in defence. On 25-10-1996 Lehrasib accused tendered in evidence Nikah Nama Exh.P.C. And closed his defence evidence. Muhammad Ilyas and Azhar Iqbal alias Azhar accused stated on 25-1-1996 that they do not want to produce defence evidence, although they had earlier stated on 23-1-1996 that they will produce evidence in defence. 20. After hearing the arguments, the learned trial Curt convicted all the…
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