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Petitioner: ABDUL SATTAR alias SATTARI and 3 otherss VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Aalia Neelum, Syed Shahbaz Ali Rizvi Title: ABDUL SATTAR alias SATTARI and 3 otherss vs The STATE and others Case No.: Criminal Appeal No,1207 of 2010 and Murder Reference No,434 of 2010 Date of Judgment:2015-04-01 Reported As: 2016 P Cr. L J 1535 Result: Appeal accepted
JUDGMENT
JUDGMENT AALIA NEELUM, J.---Abdul Sattar alias Sattari son of Safdar, Caste Rajpoot, resident of Chak No,17, Tehsil Chunian, District, Kasur, (2) Khalid alias Khaldi son of Ramzan alias Shida, Caste Rajpoot, resident of Wazirkey, Alipur Chattha, Gujranwala, (3) Nazir Ahmad alias Kali son of Safdar, Caste Rajpoot, resident of Chak No,17, Tehsil Chunian, District, Kasur and (4) Ebad Ali son of Muhammad Khan, Caste Rajpoot, resident of Lambay Khalsa, Tehsil Chunian, District, Kasur appellants (Cr1. Appeal No,1207 of 2010) along with Iqbal alias Bali (since acquitted), Shahra (since acquitted), Qasim Ali (since acquitted), Hakim Ali (since acquitted), Jabbar alias Baggi (since acquitted) and Rehmat alias Mhami (since acquitted) were involved in private complaint under sections 302, 170, 148, 149, P.P.C., and were tried by Mr. Muhammad Ajmal Hussain, Additional Sessions Judge, Kasur. The learned trial court seized with the matter in terms of judgment dated 04.05.2010 convicted the appellants as under:- {{TABLE}} Sr. No, Appellant Conviction and Sentence 1. Abdul Sattari Sattar alias Convicted under section 302(b), P.P.C. And sentenced to death on four counts along with compensation of Rs,100000/-to the legal heirs of deceased and in default thereof, further undergo six months' S.I. The compensation amount will be recoverable as arrears of land revenue. Further convicted under section 302(b), P.P.C. Read with section 149, P.P.C. And sentenced to life
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imprisonment on four counts along with compensation of Rs,100000/-on each count to the legal heirs of deceased persons and in default whereof, he will undergo six months' S.I. The compensation will be recoverable as arrears of land revenue. Benefit of section 382-B of Cr.P.C. Was also extended in his favour. All sentences will run consecutively. Khalid alias Khaldi Convicted under section 302(b), P.P.C. And sentenced to death along with compensation of Rs,100000/-to the legal heirs of deceased and in default thereof, further undergo six months' S.I. The compensation amount will be recoverable as arrears of land revenue. Further convicted under section 302(b), P.P.C. Read with section 149, P.P.C. And sentenced to life imprisonment on four counts along with compensation of Rs,100000/-on each count to the legal heirs of deceased persons and in default whereof, he will undergo six months' S.I. The compensation will be recoverable as arrears of land revenue. Benefit of section 382-B of Cr.P.C. Was also extended in his favour. Ebad Ali Convicted and sentenced under section 302(b), P.P.C. Read with section 149, P.P.C. And sentenced to life imprisonment (R.I) on five counts along with compensation of Rs,100000/-on each count to the legal heirs of deceased persons and in default whereof, he will undergo six months' S.I. The compensation will be recoverable as arrears of land revenue. Benefit of section 382-B of Cr.P.C. Was also extended in his favour. Nazir Ali alias Kali Convicted and sentenced under section 302(b), P.P.C. Read with section 149, P.P.C. And sentenced to life imprisonment (R.I) on five counts along with compensation of Rs,100000/-on each count to the legal heirs of deceased persons and in default whereof, he will undergo six months' S.I. The compensation will be recoverable as arrears of land revenue. Benefit of section 382-B of Cr.P.C. Was also extended in his favour. All the sentences shall run consecutively. {{TABLE}} 2. Feeling aggrieved by the judgment of the learned trial court, Abdul Sattar alias Sattari, Khalid alias Khaldi, Nazir Ahmad alias Kali and Ebad Ali have assailed their conviction through filing Crl. Appeal No,1207/2010. The learned trial court forwarded Murder Reference No,434/2010. For confirmation of death sentence inflicted upon the convicts, namely, Abdul Sattar alias Sattari and Khalid alias Khaldi. As all the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed of through single judgment. 3. Precisely, the story as contained in the private complaint (Exh.PB) lodged by Ahmad Din (PW-1) is that on the night of 03.8.2003 the complainant along with Ghulam Muhammad alias Gaman went to the house of Hassan Ahmad (bhanja of the complainant) and stayed over there for a night. In the morning of 04.08.2003 at 5.30 a.m. The complainant woke up for Fajjar prayer, meanwhile, the accused-appellants along with their companions, having worn police uniforms, equipped with firearm weapons entered into the Havili by scaling over the wall. The complainant made Hassan Ahmad and others woke up by informing that police had come. The complainant along with Hadayat and Ghulam Muhammad alias Gaman made them hide near a wall and saw that those are not police employees, rather those were (1) Abdul Sattar alias Sattari, (2) Nazir Ahmad alias Kali, (3) Iqbal alias Bali, (4) Khalid alias Khalidi, armed with .12-bore repeater (5) Ebad Ali, (6) Niaz Ahmad, (7) Sarfraz alias Seebha, armed with pump-action guns, (8) Shahra (9) Qasim Ali (10)
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Hakim Ali (11) Jabbar alias Baggi (12) Muhammad Altaf (13) Fayyaz (14) Sher alias Sheri armed with pump-action (15) Rehmat Ali alias Mahi armed with rifle and six other unknown persons while armed with deadly weapons were also remained standing outside the Haveli. Abdul Sattar alias Satari made fire with repeater which hit Bhanja of the complainant, namely, Hassan Ahmad on right side of his head. Nazir alias Kali made fire with repeater gun which hit Idrees son of Hassan Ahmad on his left flank(vakhi). Iqbal alias Bali son of Safdar while armed with repeater also made fire. With repeater gun which also hit Idrees on his left flank (vaki). Altai and Sher alias Sheri made two fires with pump action guns which hit Shafique son of Hassan Ahmad. Ebad Ali, Sarfraz alias. Sapha and Niaz Ahmad accused made fires with pump action guns which hit Wazir Ali son of Hassan Ahmad on different parts of his body. Shahra made fire with .12 bore gun which hit Ghafooran Bibi daughter of Hassan Ahmad. Khalid alias Khalidi also made fire with repeater gun hitting Ghafoorn Bibi on different parts of her body. Hassan Ahmad, Idrees, Shafique, Wazir Ali and Ghafooran Bibi succumbed to injuries sustained by them at the spot. Ultimately, the accused persons fled away after making indiscriminate firing. The occurrence was seen by Khalil Ahmad and Jahangir Ali. The motive behind the alleged occurrence is that previous enmity exists between the parties. 4. Earlier on the oral complaint (Ex.PA) of the complainant-PW-1 FIR (Ex.PA/1) was lodged on 04.08.2003. On the receipt of information regarding the occurrence Muhammad Rafique, Inspector (PW-14) reached the place of occurrence along with other police officials and collected blood stained earth from five spots and sealed them through recovery memos Exh.DD to Exh.DH; recorded the statements of the witnesses, secured crime empties into possession through recovery memo .Exh.PC, also prepared rough sketch map of the place of occurrence (Exh.CW-14/1). He also prepared injury statements of the deceased Ex.CW-14/13 to Ex.CW-14/13-17. He also prepared inquest reports Exh.CW 14/2 to 6 regarding the deceased, Mst. Ghafooran Bibi, Muhammad Idrees, Hassan Ahmad, Wazir Ali and Muhammad Shafique respectively. The dead bodies were escorted to the THQ Hospital for its autopsy. After post mortem examination, last worn clothes of all the five dead bodies were taken into possession by the Investigating Officer through memos Exh.PJ, PK, Pl, PM & Exh.CW1/1. On 29.9.2003, the (CW-14) arrested accused Abdul Sattar, Rehmat alias Mandi, Ebad Ali. During the course of interrogation after disclosure Abdul Sattar, Rehmat @ Mandi, Ebad led to the recoveries of weapon of offence from the house of Abdul Ghaffar resident of Chunian. Abdul Sattar-accused led to the recovery of repeater (P-9) which he took into possession vide recovery Exh.PN, Rehmat-accused led to the recovery of .7-MM rifle (P-10) which he took into possession vide recovery Exh.PO, Ebadaccused led to the recovery of pump action .12-bore (P-11), which he took into possession vide recovery memo Ex.PQ, After preparation of recovery memos, statements of the PWs were also recorded by the Investigating Officer besides sketch of map of the place of recoveries (Exh.CW- 14/7). On 25.10.2003, during interrogation the Investigating Officer declared accused Shahnawaz, Sharafat Ali, Abdul Jabbar and Hakim Ali innocent. 5. There after, on 22.11.2003 investigation came before Nasir Mahmood Bajwa, DSP, the then SHO, police station Chunian. On 24.11.2003 he arrested accused Khadim Hussain alias Khalid son of Muhammad Ramzan and effected recovery of pump action .12-bore (C-6) along with five cartridges (C6/1-5) from Khadim Hussain and took the same into possession vide recovery memo Exh.CW6/1. He prepared site plan of the place of the recovery. He also drafted complaint under section 13 of Arms Ordinance XX of 1965 and sent the same to police station for registration of case. After completion of the investigation, the Investigating Officer sent the accused to judicial lock up. Thereafter, on 10.02.2004, investigation came before Zulfiqar Ali, SI (CW-16), who recorded statement of Shaukat Ali, Moharrar and Abdul Karim, constable. He obtained warrants of arrest Exh.CW16/1-7 of accused Iqbal alias Bali, Nazir alias Kali, Sarfaz, Niaz Ahmad, Muhammad Altaf, Fayyaz and She Sheri and handed over the same to Irshad Ali, ASI for execution. He also obtained
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proclamation of above said accused and handed over to Irshad Ali, ASI for execution. He also recorded statement of Irshad Ali, .ASI under section 161 Cr.P.C. He submitted challan against these accused under section 512 Cr.P.C. The complainant through written application (Ex.DD) nominated Iqbal and Tanveer Iqbal as accused in the FIR on 19.08.2004. He also recorded statement of complainant under section 161 Cr.P.C. On 20.8.2004 he recorded statement of PWs Irshad and Akbar under section 161 Cr.P.C. On 11.11.2004 he arrested accused Iqbal and interrogated him. On 17.11.2004 he also arrested accused Nazir alias Kali and obtained his physical remand and found the accused innocent. On 31.12.2004 he got completed challan of these accused on the insistence of complainant. 6. Having found the appellants guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the Court of Session enrouted through the learned Illaqa Magistrate as provided under section 190(2), Cr.P.C. Iqbal, Nazir Ahmad, Niaz Ahmad, Sarfraz, Muhammad Altaf, Fayyaz, Sher alias Sheri were declared proclaimed offender. Later on, Iqbal alias Bali, Nazir Ahmad alias Kali, proclaimed offender were arrested and the police submitted their supplementary challan. Dissatisfied with the result of investigation, the complainant filed a private complaint (Exh.PB) on 12.01.2010 in line with the FIR against the appellants and their co-accused, before the learned Illaqa Magistrate who sent the same to the worthy Sessions Judge, Kasur for its entrustment to the court of competent jurisdiction. I he learned trial court after hearing preliminary arguments, summoned all the accused persons to face their trial. 7. After appearance of accused persons, they were formally charge sheeted by the learned trial court in terms of order dated 10.12.2005 respectively, to which they pleaded not guilty and claimed trial. The prosecution in order to advance its case, produced as many as four prosecution witnesses. Ocular account in this case is coming from the statements of Ahmad Din (PW-1), Ghulam Muhammad alias Gaman (PW-2) and Hadayat (CW-5). Khalil Ahmad (PW-3) and Jahangir (CW-3) are the witnesses of Waj-Takkar. Master Muhammad Sadiq Qamar, draftsman (CW-9) prepared scaled site plans Ekh.CW-9/1-2 and handed over the same to the Investigating Officer on 08.08.2003. 8. Dr. Farzana Shaheen (CW-12) had conducted postmortem examination upon the dead body of deceased Mst. Ghafooran Bibi on 04.8.2003 and found the following injuries:- INJURIES 1. Two lacerated wounds each 1 x 1 cm on back of left elbow 5 cm apart from each other and communicated to each other. 2 Six penetrating wounds each 1 x 1 cm in an area of 15 x 8 cm on left side of abdomen in left iliac fossa 6.0 cm below and left to umbilicus. These were all ante-mortem wounds. 3. Two penetrating wounds each 2 x 2 cm x 3 cm apart from each other and communicating with each other on front of left, thigh. OPINION. According to her opinion, the cause of death was due to haemorrhage caused by abdominal injury which was sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was immediate and between death and postmortem was 13 hours. Ex.CW-12/1 is carbon copy of postmortem report Ex.CW-12/1-A which is pictorial diagram of injuries which bear her signatures. 9. On the same day, Dr. Muhammad Arif Mehmood had conducted postmortem examination on the dead body of the deceased Wazir Ali and found the following injuries:- INJURIES I. The multiple lacerated wound 3/4 cm diameter margins inverted and it was bone deep and present on the left upper and forearm. There was fracture' of the left radius and ulna. One pellet was recovered from the left upper arm.
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2. Lacerated wound two in numbers on the left side of the abdomen, lateral part wounds were abdominal cavity deep. Margins of the wounds were inverted. 3. Lacerated wound size cm diameter margins were inverted and it was chest cavity deep and it was present on the back of chest left side lateral part, 6 cm below the left axilla. One pellet was recovered from the chest cavity. OPINION. As per his opinion death had occurred due to haemorrhage due to injuries. The probable duration between injury and death was immediate and duration between death and postmortem was 6 to 12 hours. Ex. CW-13/1 is the correct carbon copy of postmortem report and Ex.CW-13/1-A is sketch of injuries which bore his signatures. 10. Similarly on the same day, Dr. Muhammad Arif Mehmood had conducted postmortem examination on the dead body of deceased Idrees and found the following injuries:- INJURIES 1. Lacerated wound 3 cm diameter, margins were inverted and it was chest abdominal cavity deep. Margins were blackened and it was present on the back of the lower part of the left side of the chest wound was directed to the right side. 2. Two lacerated wounds 3/4 cm diameter each. Margins were evened on the right side of the abdomen 4 cm above the right iliac fossa. Injury No,1 entry wound and 2 was exit wound. Injuries Nos.I and 2 were communicated each other. OPINION. After thorough postmortem examination, the doctor has opined that death had occurred due to shock and haemorrhage due to injuries. The probable time between injuries and death was immediate and duration between death and postmortem was 6 to 12 hours. Ex. CW-13/1 is the correct carbon copy of postmortem report and Ex. CW-13/1-A is the sketch of injuries which bore his signatures. 11. On the same day, Dr. Muhammad Arif Mehmood had conducted postmortem examination on the dead body of deceased Shafique and found as under:- INJURIES 1. Lacerated wound. 3 cm diameter. Margins were inverted and blackened on the left side of the chest 3 cm left of mid line and 4 cm medial to left nipple. Wound was going invert and laterally. It was entry wound. 2. Lacerated wounds in numbers, cm x 1 cm. Margins were everted and were chest cavity deep on the left side of the chest lateral side and upper part of abdominal. Injuries 1 and 2 were communicated with each, so injury No,1 entry wound and injury No,2 was exit wound. 3. Lacerated wound 3/4 cm diameter. Margins were inverted and it was skin deep on the left upper arm. OPINION.
After thorough postmortem examination, the doctor has opined that death was caused due to shock and haemorrhage due to injuries. The probable time between injuries and death was immediate and duration between death and postmortem was 6 to 12 hours. Ex. CW-13/3 is the correct carbon copy of postmortem report and Ex. CW-13/3-A is the sketch of injuries which bore his signatures.
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12. On the same day, Dr. Muhammad Arif Mehmood also conducted postmortem examination on the dead body of deceased Hassan Ahmad and found the following injuries:-
INJURIES
I. Lacerated wound 15 cm x 8 cm brain cavity deep on the right side of head. Margins were inverted and blackened. Right prital and right occipital bones were fractured. Brain mettle was damaged badly. One pellet was recovered from the brain cavity. OPINION. After thorough postmortem examination, the doctor has opined that death had occurred due to shock and haemorrhage due to injury. The probable time between injuries and death was immediate and duration between death and postmortem was 6 to 12 hours. Ex. CW-13/4 is the correct carbon copy of postmortem report and Ex. CW-13/4-A is the pictorial diagram of injury which bore his signatures. 13. Rest of the prosecution witnesses are formal in nature. 14. On 08.03.2007 the complainant Ahmad Din has given up PWs Hadayat and Jehangir Ali whereas Muhammad Ramzan PW was given up on 21.03.2009 being un-necessary. On 25.07.2009, the complainant Ahmad Din closed his evidence while tendering the reports of Serologist Ex.PR, reports of Chemical Examiner as Ex.PS, Ex.PT, Ex.PU, Ex.PV, Ex.PW and reports of Forensic Science Laboratory as Ex.PX, Ex.PY and Ex.PZ. 15. The appellants were also examined under section 342, Cr.P.C., wherein the appellants opted to produce defence evidence. The appellants also opted not to appear as their own witnesses in terms of section 340(2), Cr.P.C., in disproof of the allegations levelled against them in the prosecution evidence. 16. While replying to a question, why this case and why the PWs and CWs have deposed against him, the appellant Abdul Sattar alias Sattari made the following deposition:- "I adopt the same story as narrated by my co-accused Abdul Jabbar alias Baggi. I am innocent". 17. Nazir Ahmad alias Kali appellant replied this particular question in the following terms:- "I was declared innocent by the I . 0 during investigation since I was employee in shop of Rana Scrape situated at Chowk Yateem Khana Lahore. The PWs have deposed falsely against me being close relative to each other. Furthermore according to medical evidence there is no any entry wound on the right flank of the deceased, Muhammad Idrees. The prosecution n story is totally false and has been concocted and fabricated due to my previous enmity with the complainant party. According to the medical expert, fire arm injury could not be caused to the deceased while in lying position. Thus from it, it appears that none of the witnesses have witnessed the occurrence. In fact the complainant and the. PWs had reached the place of occurrence after the occurrence. Hence, the medical sample has falsified the prosecution story". 18. Khalid alias Khaldi appellant while replying to this particular question stated as under:- "My original name is Khadiin Hussain and I have been falsely implicated in this case without any cogent reason. PWs have deposed falsely against me since they are close relatives to each other. I am permanently residing at Gujranwala and I have been involved falsely in this case due to my relationship with my co-accused. In fact some other person was Khalid Hussain to whom the police did not trace out. So, I have been falsely implicated in this case by the police". 19. Ebad Ali appellant while replying to this particular question stated as under:-
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"I have been falsely involved in this case due my relationship with my co-accused. Neither I committed the offence nor have any concern whatsoever with in innocent. Moreover no weapon of offence has been recovered from me during investigation". 20. In defence evidence, Zahoor Ahmad, Muhammad Akram, Muhammad Khalil and Muhammad Nadeem were produced as DW-1 to DW-4 respectively and thereafter closed the defence evidence on 17.10.2009. 21. Learned trial court after evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond shadow of reasonable doubt resulting into conviction of the appellants in the afore stated terms. 22. Arguments advanced from both sides have been heard. We have also gone through the record available on file with the able assistance of learned counsel for the appellants and learned counsel for the complainant as well as Deputy Prosecutor General. 23. The occurrence according to the prosecution took place at 5.30 a.m. On 04.8.2003. It is the prosecution case that on the night of 03.8.2003 Ahmad Din-complainant went to the house of his bhanja, namely, Hassan Ahmad along with Ghulam Muhammad alias Gaman PW-2 and Hadayat CW-5 and thereafter they stayed there overnight. On 04.8.2003 at about 5:30 A.M the complainant woke up to offer Fajjar prayer when all of sudden, some persons in police uniform equipped with fire arms entered into the Haveli by scaling over the wall. Upon which the complainant thought that police had arrived and he awakened Hassan etc. And informed them that police arrived. Thereafter Hassan Din along with Ghulam Muhammad alias Gaman PW-2 and Hadayat CW-5 concealed themselves behind the walls and they saw that the persons in police uniform were not police personnel and rather those were Abdul Sattar alias Sattari (the appellant), Nazir Ahmed alias Kali (the appellant), lqbal alias Bali (since acquitted) Khalid alias Khali (the appellant), all armed with repeater .12 bore guns, Ebad Ali (the appellant), Niaz Ahmed (Proclaimed offender), Sarfaraz alias Sapha (Proclaimed offender) all armed with pump action guns, Shahra (since acquitted), Qasim Ali (since acquitted), Hakim Ali (since acquitted), Jabbar alias Bagggi (since acquitted) all armed with double barrel .12 bore guns, Muhammad Altaf (Proclaimed offender), Fayyaz (Proclaimed offender), Sher alias Sheri (Proclaimed offender) all armed with pump action guns Rehmat Ali alias Mahi (since acquitted) armed with rifle along with six unknown accused persons armed with fire arms weapons who remained standing outside the Haveli. Abdul Sattar alias Sattari (the appellant) made fire with repeater which hit at the right side of head of Hassan Ahmed Bhanja of the complainant, Nazir Ahmed alias Kali (the appellant) made fire with repeater gun which hit at the left flank of ldrees (son of Hassan Ahmed), lqbal alias Bali (since acquitted) made fire with repeater gun which hit at the left side of flank of Idrees, Muhammad Altaf (Proclaimed offender) and Sher alias Sheri (Proclaimed offender) made two fires with pump action guns at Shafique and Muhammad Hassan, Ebad Ali (appellant), Niaz Ahmed (Proclaimed offender), Sarfaraz alias Sapha (Proclaimed offender) made fires with pump action guns which hit Wazir Ali (son of Hassan Ahmed) on different parts of his body, Shahra (since acquitted) made fire with .12 bore gun which hit Mst. Ghafooran Bibi (daughter of Hassan Ahmed), Khalid alias Khali (the appellant) made fire with repeater gun which hit Mst. Ghafooran Bibi (daughter of Hassan Ahmed) on different parts of her body. All the accused decamped from place of occurrence after making incriminating firing. Hassan Ahmed, Idrees, Wazir Ali, Shafique and Mst. Ghafooran Bibi succumbed to the injuries at the spot. The alleged occurrence was also witnessed by Khalil Ahmed P.W-3 and Jahangir Ahmed C.W.3 (son of Hassan Ahmed). Thereafter the complainant Ahmad Din went to the police station Chunian and lodged the report about the occurrence at 7:10 A.M. PW-1 Ahmad. Din (the complainant), during the cross-examination deposed that, "8/10 police officials came at the place of occurrence at 08-30 A.M. 1 myself had informed the police. 1 reached at P.S. At 06.30 A.M. Police reached the place of occurrence with the on police vehicle. Police stayed at the place of
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occurrence more than two hours." PW-2 Ghulam Muhammad alias Gaman deposed during cross- examination that, "He. Left the place of occurrence to inform the police at 06:00 A.M. And came back after 2/2-1/2 hours. Police sent us with the dead bodies at 10/101/2 a.m. For autopsy." PW-3 Khalil Ahmed deposed during cross-examination that, "Police reached the place of occurrence after about one hour and remained there for more than one hour." CW-3 Jahangir Ali deposed during cross-examination that, "Police reached the place of occurrence at 8:30 A.M." CW-5 Hadayat deposed during examination-in-chief…
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