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Petitioner: SHAFQAT RASOOL and 3 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Bashir A. Mujahid, M. Naeem-ullah Khan Sherwani Title: SHAFQAT RASOOL and 3 others vs THE STATE Case No.: Criminal Appeal No, 135 and Murder Reference No, 310 of 1997 Date of Judgment:1999-12-15 Reported As: 2000 YLR 2353 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' M. NAEEMULLAH KHAN SHERWANI, J.---This judgment will dispose of Murder Reference No,310 of 1997 referred to 'this Court as required under section 374, Cr.P.C. By learned Additional Sessions Judge, Burewala; Criminal Appeal No,135 of 1997 preferred by Shafqat Rasool, Abdul Ghani, Muhammad Afzal and Abdul Aziz appellants against their convictions and sentences and Criminal Revision No,65 of 1997 filed by Ghulam Murtaza against the appellants. 2. Learned Additional Sessions Judge, Burewala by virtue of his judgment, dated 30-4-1997 after having found and adjudged the appellants guilty of the charge under section 302/324/337/-F(v), P.P.C., convicted and sentenced them in the following manner:--- (i) Under section 302, P.P.C.; Shafqat Rasool appellant was punished with death. (ii) Under section 324/337-F(v), P.P.C.: Abdul Ghani, Muhammad Afzal and Abdul Aziz appellants were awarded punishment of three years' R.I., each along with a fine of Rs,5,000 or in default thereof to further undergo imprisonment for two months. Benefit of section 382-B, Cr.P.C. Was extended to them. They were, however, acquitted of the charges under section 302/149 read with section 148, P.P.C. 3. Relevant facts of the matter in issue are that Ghulam Murtaza alias Murtaza (P.W.10) had lodged Crime Report No,112 of 1994, under section 302/324/149 read with section 148, P.P.C. Registered with Police Station Saddar, Burewala at 7-35 p.m. On 20-5-1994 against the appellants and one Abdul Rashid. Complainant (Exh.P.H.) was dictated by the complainant at Tehsil Headquarters Hospital, Burewala at 7-20 p.m. To Rab Nawaz, Inspector/S.H.O. (P.W.12), who des-patched the same to the Police Station for formal registration of the case. Consequent upon receipt of Exh.P.H, Arif Mahmood, MHC (P.W.6) drew up formal F.I.R. (Exh. P.H/1), on the same day.
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4. Succinctly version of the complainant as contemplated in the F.I.R. Is as under:--- "The complainant is a cultivator by profession living in Chak No,285/EB. The cattle compounds of the complainant side and that of one Rashid son of Saeed Ahmad Arain are situated close to each other, On the fateful day, at about 4:00 p.m., the complainant was on his way to his house along with his goat, which was meant for sacrifice. When he passed by the side of the compound of Rashid Ahmad, Muhammad Afzal and Abdul Ghani alias Maqbool sons of Rashid Ahmad made their dog to follow the goat. They were already available there. The dog tried to bite the goat, but failed in so doing. The complainant lodged a protest with Muhammad Afzal and Abdul Ghani, who misbehaved with him. The complainant also paid them in the same coin and left for his house. When the complainant reached near the drawing room of Shah Muhammad, Abdul Ghani and Muhammad Afzal came running after him while carrying Sotas. The complainant raised hue and cry on seeing them, which attracted Mushtaq son of Muhammad Sharif and Muhammad Yousaf son of Noor Hussain. Abdul Ghani was the first to initiate violent attack upon the complainant. He delivered two successive blows, which landed on the right side of his head. Muhammad Afzal delivered a Sota blow, which landed on his left forearm. During this period, Rashid Ahmad armed with a hatchet, Shafqat Rasool armed with a rifle and Abdul Aziz armed with a Sota arrived there while exhorting Lalkaras. Muhammad Mushtaq and Mustafa (Ghulam Mustafa), brothers of the complainant also reached there. Muhammad Mushtaq tried to intervene but he was given a hatchet blow by Rashid Ahmad, which landed on the right side of his head. Abdul Aziz gave a Sota blow on the back of chest of the complainant. Muhammad Afzal gave a Sota blow on the person of Ghulam Mustafa, which landed on the left side of his head. In the twinkling of eye, Shafqat Rasool made a shot through his rifle, which struck Muhammad Mushtaq on his right flanks. He was fatally wounded and succumbed to his injuries at the spot. Besides the complainant, occurrence of the alleged incident was also witnessed by Ghulam Mustafa, Mushtaq son of Sharif and Muhammad Yousaf. After completing their ignoble design, all the accused levanted from the spot while still raising Lalkaras. The complainant also alleged that as a matter of fact, a dispute of the cattle compound was pending adjudication in the Court of learned Senior Civil Judge, Vehari in-between the two sides and because of the same grudge, the accused had launched a murderous assault in furtherance of common intention of them all upon Muhammad Mushtaq deceased and during the course of same incident inflicted injuries upon the complainant and his brother Ghulam Mustafa. 5. After the occurrence had come to an end, co-villagers shifted the injured persons to Civil Hospital, Burewala, where after being examined by a Medical Officer, they were admitted to the hospital. The complainant produced his own medico-legal report and that of his brother Ghulam Mustafa before Rab Nawaz, Inspector/S.H.O. At the time of making his statement in the hospital. The adversaries were also stated to have received few injuries at their hands. 6. Now the Investigating Officer (P.W.12) set at the uphill task of investigation into the crime. Since the complainant and Ghulam Mustafa were available in the hospital in an injured condition and their statements were to be recorded, so the Investigating Officer made a query through application (Exh.PQ), if they were in a fit condition of their health to make their statements. The doctor gave his expert opinion that they were fit for making their statements. He forthwith recorded their statements. Both the witnesses passed on their medico legal reports to the Investigating Officer. 7. Now the next worry of the Investigating Officer was to reach the place of occurrence, not only for spot inspection but also to des-patch the dead body to the mortuary for autopsy purposes and to examine the available witnesses. He prepared injury statement (Exh.PR) and inquest report (Exh.PS) qua dead body of Muhammad Mushtaq and deputed his subordinate official to shift the same to the mortuary for its postmortem examination. He took into possession an empty of 7-mm rifle (Exh.P3) and made it into a sealed parcel. Memo. Exh.P.L. Was prepared by him. Blood-stained soil
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was also collected by him from underneath the dead body of Muhammad Mushtaq and a memo. Exh.P.J. Was also prepared. It was also converted into a sealed parcel. Vide memo. Exh.PK, he also took into possession bloodstained soil from nearby platform of drawing room of Shah Muhammad and made it into a sealed parcel. Broken bangles 12 or 13 in number were taken into possession by him through memo. Exh.D.A. (its memo. Is without date). Mazhar Hussain, Draftsman (P.W.1) was asked to prepare site plans in triplicate (Exhs.P.A., P.A./1 and P.A./2) on the asking of the Investigating Officer, who put his notes in red ink on the same. Statements of all the witnesses, who joined investigation, were duly recorded by him. ' On 21-5-1994, last worn clothes of the deceased i,e, Bunyan (Exh.P1) and Chadar (Exh.P2), produced by Abdul Ghaffar, Constable (P.W.2), were secured by the Investigating Officer through memo. Exh.P.B. Shafqat Rasool and Abdul Ghani appellants were arrested by him on 25-5-1994, whereas Muhammad Afzal and Rashid Ahmad were arrested on 6-6-1994. Shafqat Rasool, on 7-7- 1994, led to the recovery of 7-mm rifle (Exh.P.4.) from within an iron chase lying in his residential room. It was made into a sealed parcel and a memo. Exh. PM was prepared. Sota (Exh.P5) was recovered at the instance of Abdul Ghani from his house. That too was taken into possession vide memo. Exh.P.N. Abdul Aziz got recovered his Sota (Exh.P6) on 18-6-1994 from his house. It was secured through memo. Exh. P.O. Rough site plans of the places of recoveries were also prepared by him. Statements of all those, who joined investigation were recorded and the case property was deposited with the Muharrir of the police station, who was duly instructed by the Investigating Officer to des-patch the incriminating articles to the concerned quarters for analysis purposes, which he did. 8. On 19-6-1994, both the sides were produced before Nusrat Ali Waraich, Range Officer, who also performed investigation in his own manner and challenged all the accused to face their trial. After finalization of the investigation, the challan was submitted to the Court. 9. The trial Court after observing all the legal formalities framed proper charge against the appellants, to which they pleaded not guilty and claimed to be tried. The prosecution was invited to produce the witnesses of its choice to prove its case beyond any shadow of doubt against the appellants. The prosecution in order to achieve its goal, produced twelve witnesses in all. 10. Mazhar Hussain (P.W.1), Abdul Ghaffar, Constable (P.W.2), Sanaulla Constable (P.W.3) and Zafar lqbal, FIG (P.W.9) are formal witnesses, so their evidence need not to be discussed here. 11. Dr. Muhammad Akram (P.W.4) conducted post-mortem examination upon dead body of Muhammad Mushtaq and observed as under:--- "(1) A lacerated wound 5 c.m. x 1 c.m. x bone deep on the back and right side of head, 12 c.m. Above the right ear. (2) Contusion 2 a.m. x 1 c.m. On the left side of forehead. (3) A fire-arm wound 1 c.m. x diameter x deep going with blackening in an area of 4 c.m. x 3 c.m. Around the wound on the upper part of right side of abdomen, 26 c.m. Below the axilla. (4) A fire-arm wound 3.5 c.m. x 3 c.m. On the back of outer side of the right chest, 24 c.m, below the posterior axillary food, 17 c.m. From the mid-line on the back. The edges of the wound were everted." ' On the examination of thorax, the doctor found last rib fractured under injury No,4 on the back. The walls of the abdomen were .Found injured under injury No,3. The peritoneum was injured under injury No,.3. The stomach was healthy and contained a few ounces of semi-digested food. Small intestines were perforated 3 c.m. x 3 c.m. Mesentery was contused and injured. Right and left kidneys were injured. Blood vessels at mid line at the level of kidneys were also injured. Scalp under injury No,1 was also injured. All the other organs were healthy and normal. ' Death, according to the opinion of the doctor, had occurred due to hemorrhage and shock as a result of the abovementioned injuries. All the injuries collectively and injuries Nos. 3 and 4
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individually were declared sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem. Injuries Nos.1 and 2 were caused by blunt weapon. While injuries' Nos.3 and 4 were caused by firm-arm. The time which elapsed between injuries and death was within few rainouts and that elapsed between death and post-mortem examination was within about 18 hours. Carbon copy of post-mortem report (Exh.P.C.) and pictorial diagram (Exh.P.C./1) showing the location of injuries, are in his hand and also bear his signatures. The doctor, after post-mortem examination, handed over the dead body of Muhammad Mushtaq along with police papers, copy of the post-mortem report and last worn clothes to Abdul Ghaffar, Constable (P.W.2). He also signed the injury statement and inquest report, which were produced before him before the post- mortem examination. 12. P.W.5 Dr. Muhammad Ashraf, on 20-5-1994, while posted as Medical Officer in Tehsil Headquarters Hospital, Burewala, medically examined the injured witnesses--Ghulam Mustafa and Ghulam Murtaza, as well as Abdul Ghani accused and his sister Mst. Naziran Bibi. He observed following injuries on their persons:--- (1) Ghulam Mustafa: "A lacerated wound bleeding 5 c.m. x 1-1/2 c.m. x scalp deep on the right side of head, 12 c.m. From the left ear. ' The injury was caused with blunt weapon and it was fresh, It was kept under observation for X-ray. Exh. PD is the correct carbon copy of the medico-legal report, which is in his hand and also bears his signatures." (II) Ghulam Murtaza: "(1) A lacerated would 4 c.m. x 1-1/2 c.m. x scalp deep on the right side of head, 5 c.m. Above the hair margin. (2) A lacerated wound 2.5 c.m. x 1 c.m. x scalp deep on the right side of head, 9 c.m. From the left ear, 3 c.m. Below the right side to injury No,l. (3) Contusion with swelling 10 c.m. x 6 c.m. On the lower part of left forearm. (4) Contusion 7 c.m. x 2 c.m. On the back and lower part of left chest. ' All the injuries were caused by blunt weapon and were fresh, which were kept under observation for X-ray, Exh.PE is the correct carbon copy of the medico-legal report, which is in his hand and bears his signatures." (III) Abdul Ghani: "(1) A lacerated L-shaped wound 7 c.m. x 1 c.m. x bone exposed on the top and back of head. (2) A reddish contusion 4 c.m. x 1 c.m. On the right lumber area on the back. (3) Contusion reddish 6 c.m. x 2 c.m. With swelling around on the top of right shoulder-joint. (4) An abrasion 2 c.m. x 1/2 c.m. On the back of left hand. ' All the injuries were caused by blunt weapon and were fresh. Injuries Nos. 1 and 3 were kept under observation for X-ray reports, while the remaining injuries were simple. Exh. P.G. Is the attested photo stat copy of the medico-legal report, which is also in his hands and bears his signatures." (IV) Mst. Naziran Bibi: "A lacerated Wound 3 c.m. x 1 c.m. x bone exposed on the occipital region of head in the middle area. ' The injury was caused by blunt weapon and was fresh, which was kept under observation for clinical observation and X-ray, Exh. P.F is the correct carbon copy of her medico-legal report, which is in his hand and also bears his signatures." 13. P.W.7 Mubrik Ali had associated himself with the investigation of this case and in his view and presence, the police collected blood-stained soil from two different places. He also attested the recovery memo. Exh.P.L. Through which empty of 7-mm rifle was secured by the Investigating Officer from the spot during the spot inspection. He also established identity of the dead body at
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the time of post-mortem examination and had attested memo. Exh.P.B., through which last worn clothes of the deceased were secured by the Investigating Officer. 14. P.W.8 Muhammad Ramzan, brother of Muhammad Mushtaq deceased, had joined investigation on 7-6-1994. He witnessed the recovery proceedings qua Shafqat Rasool and attested the recovery memo. Exh. P.M. Rifle 7-mm (Exh.P.4,) recovered at the instance of Shafqat Rasool was made into a sealed parcel after being recovered in his presence. Likewise, recoveries of Sotas (Exhs. P.S. And P.6.) from Abdul Ghani and Abdul Aziz, respectively, were observed by him and he attested the recovery memos. Exhs. PN and PO, respectively. 15. The most prominent of all the witnesses are Ghulam Murtaza and Ghulam Mustafa, who appeared as P.Ws.10 and 11, respectively. Ghulam Murtaza in his statement has furnished ocular account of the occurrence. He also furnished the inter se relationship of the accused persons. According to him, Muhammad Afzal, Abdul Ghani and Shafqat Rasool are real brothers, being sons of their co-accused Rashid Ahmad, who died and as such proceedings qua him abated. Abdul Aziz is real brother of Rashid Ahmad deceased, so in this way he is real paternal uncle of appellants Nos.1 to 3. He described, motive part of the occurrence and cause cousins i,e, immediate cause of occurrence. Ghulam Mustafa (P.W.11) also narrated the story of occurrence viewed by him at the spot. Both these witnesses were cross-examined at length by the learned counsel for the accused, but nothing beneficial could be elicited from them, which may have shattered the prosecution version. 16. Next important witness is Rab Nawaz, Inspector/S.H.O. (P.W.12), whose evidence is also of some significance because it was he, who initiated the investigation and took it to its last stage. He was also subjected to extensive cross-examination, but of no avail to the accused. After tendering in evidence, reports of Chemical Examiner, Serologist and Forensic Science Laboratory as Exhs. PZ, PY and PU, respectively, learned prosecutor declared the case closed. 17. In order to seek handsome explanation from the accused pertaining to the imputed crime they were examined under section 342, Cr.P.C. Abdul Aziz and Muhammad Afzal appellants, in their statements, opted plea of alibi. They alleged false implication in the case. Abdul Ghani and Shafqat Rasool appellants have admitted their participation in the occurrence, but in a different manner. They have taken. Up plea of exercise of self-defence by alleging that the complainant side had offered a distorted version of the occurrence and were also guilty of suppressing injuries on the person of Abdul Ghani and Mst. Naziran Bibi, his sister. It will be beneficial to reproduce their statements here in extensor:--- Statement of Abdul Ghani: "Q.12 Why this case against you and why the P.Ws. Have deposed against you? 'Ans. It is a false case. All the P.Ws. Are related inter se and with the deceased. They have made false statements against me due to enmity. The complainant twisted the facts of the occurrence and concocted a false story to involve us in this false case. ' Q.13. Have you anything else to say? ' Ans. I am innocent. On the day of occurrence immediately before the main occurrence our dog which was present in our Ihata about which litigation is going on between the parties, itself barked at the he-goat of the complainant whereupon there was exchange of hot words and abuses between me and Ghulam Murtaza P.W. In that Ihata. Ghulam Murtaza being aggrieved immediately left for his house. In the meantime I returned to my house. I and my sister Mst. Naziran wife of Muhammad Rafiq were present in the cattle Ihata in front of our residential house, when in the meantime Ghulam Murtaza, Ghulam Mustafa P.Ws. And Mushtaq Ahmad deceased armed with Sotas arrived in the said Ihata situate in front of our house. They launched a murderous assault on me and caused injuries to me with Sotas in that Ihata. When my sister Mst. Naziran intervened and beseeched them, Mushtaq Ahmed deceased gave a Sota blow on her head as a result of which
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she fell injured in the Ihata and her glass bangles worn by her also broke and fell there. I and my sister had raised alarm at the time of murderous assault on me which attracted my brother Shafqat Rasool to that Ihata. Mushtaq Ahmad deceased caught hold my sister Mst. Naziran injured from her head hair and was dragging and abducting her towards the main street in front of our house and at that time Shafqat Rasool accused acting in the exercise of right of self-defence of my sister Mst. Naziran and in order to save my life and also to stop the abduction of our sister Mst. Naziran by Mushtaq Ahmad deceased, fired a shot which hit Mushtaq Ahmad deceased in the said Ihata, who thereafter fell in the main street at some distance from there. I had caused injuries to Ghulam Murtaza and Ghulam Mustafa P.Ws, while exercising the right of self-defence of my person. My co-accused Rashid Ahmad since dead, Muhammad Afzal and Abdul Aziz had not participated in the occurrence and they were not present there at the time of occurrence. The complainant party committed aggression on us in the said Ihata." Statement of Shafqat Rasool: "Q.14. Why this case against you and why the P.Ws. Deposed against you? ' Ans. It is a false case. All the P.Ws. Are related inter se and with deceased and they have made false statements against me due to enmity. ' Q.14. Have you anything else to say.? ' Ans. I am innocent. The complainant party twisted the facts and fabricated a false story to involve us in this case. In fact our dog barked at the he-goat of the complainant party in our disputed Ihata, immediately before the main occurrence. Whereupon there was exchange of hot words and abuses between Ghulam Murtaza P.W. And my brother Abdul Ghani accused in that Ihata and thereafter Ghulam Murtaza P.W. Along with his brothers Ghulam Mustafa P.W. And Mushtaq Ahmad deceased came armed with Sotas in the cattle Ihata situated in front of our house, where my brother Abdul Ghani alias Maqbool Ahmad accused and my sister Mst. Naziran who is the wife of Muhammad Rafiq were present. The deceased and his two brothers named above launched a murderous assault on my brother Abdul Ghani accused w there and caused him injuries there and when my sister Mst. Naziran injured beseeched Mushtaq Ahmad deceased, Ghulam Murtaza and Ghulam Mustafa P.Ws., Mushtaq Ahmed deceased gave a Sota blow on her head, as a result of which she fell injured in that Ihata and in the occurrence her glass bangles were broken there. Mushtaq Ahmad deceased caught hold of her head hair in that Ihata and was abducting her from that Ihata. Abdul Ghani accused my brother and Mst. Naziran my sister had raised alarm, when they were under assault at the hands of the deceased and his two brothers named above, which attracted me to the said Ihata situate in front of our house. I seeing Murtaza and Mustafa P.Ws. And Mushtaq Ahmad deceased causing -injuries to my brother Abdul Ghani accused and my sister Mst. Naziran and also seeing Mushtaq Ahmad deceased abducting my sister Mst. Naziran by dragging her by catching hold of her head hair towards the street, I fired a single shot at Mushtaq Ahmad deceased in order to save the lives of Abdul Ghani accused and my sister Mst. Naziran and also to stop the abduction of. Mst. Naziran. The deceased after having sustained the, injury in the Ihata fell at some distance in the main street near the Baithak of Shah Muhammad. My brother Abdul Ghani acted in self-defence and caused injuries to Ghulam Murtaza and Ghulam Mustafa P.Ws. In self-defence. My other co-accused were not present there at that time." ' The appellants did not opt to make their statements on oath under the relevant provisions of section 340(2), Cr . P . C . In disproof of the accusations brought against them. They desired to produce evidence in defence and had produced their sister Mst. Naziran Bibi as D.W.1. 18. After fullest evaluation of facts and circumstances of the case and doing weightiest of the evidence, the learned trial Judge found and adjudged the appellants guilty of the charges and punished them as already mentioned.
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19. Learned counsel for the appellants has raised the following points for consideration while praying for their acquittal:-- (i) That the prosecution has produced only the related witnesses and no explicit reliance can be placed ,upon their testimony. They had suppressed four injuries on the person of Abdul Ghani and one injury on the person of his sister Mst. Naziran Bibi. ' That as a matter of fact, it was the complainant party, which had initiated aggression and Mushtaq deceased was responsible for giving Sota blow on head of Mst. Naziran Bibi and he also made an endeavour to abduct her, during the course of which her bangles were broken. While putting in this situation, he caused injuries on the person of Abdul Ghani appellant whereas .Shafqat Rasool appellant hurriedly made a shot through his rifle at the deceased because he was in the very act of abducting his sister Mst. Naziran Bibi. According to him, nothing is an offence which is done in the exercise of right of private defence. He further added that occurrence of the alleged incident had taken place at the site of the accused. (iii) That in any case, the sentence is severe. 20. Conversely, learned counsel for the complainant assisted by learned State Counsel submitted that the defence version is false and afterthought one. Injuries were even mentioned in the first information report and Shafqat Rasool appellant was responsible for the brutal murder of Mushtaq deceased. He also argued that no right of exercise of private defence was available to the appellants sand occurrence did not take place in the Ihata of the appellants. It was lastly argued that the appellants had been rightly punished by the trial Court. 21. We have heard respective arguments of both the sides with due care and attention and perused the record through able assistance of their learned counsel. Not only the complainant but also two others sustained injuries in the incident. Mushtaq deceased laid his life at the spot due to bullet injury fired at him by Shafqat Rasool appellant. Ghulam Murtaza and Ghulam Mustafa sustained four and one injuries, respectively at the hands of Abdul Ghani and Muhammad Afzal appellants. The prosecution version is that the accused were having a dog at their cattle compound and when the complainant…
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