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Petitioner: Maulana NAWAB-UL-HASSAN and 7 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Saeed Akhtar, Muhammad Nawaz Abbasi Title: Maulana NAWAB-UL-HASSAN and 7 others vs THE STATE Case No.: Criminal Appeals Nos.385-T, 396-T and Criminal Revision No,136-T of 2000 Date of Judgment:2001-09-12 Reported As: 2002 YLR 804 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD NAWAZ ABBASI, J.---This single judgment proposes to dispose of Criminal Appeal No,385-T of 2000 (Maulana Nawaz-ul-Hassan and others v The state), Criminal Appeal No,396-T of 2000 (Muhammad Khan v. The State) and Criminal Revision No,136 of 2000 (Nawaz Khan v. Maulana Nawab-ul-Hassan and others), which have been preferred against the judgment dated 23-9-2000 passed by the learned Judge, Special Court-II, Anti-Terrorism Rawalpindi Division and Islamabad Capital Territory. 2. The appellants namely Maulana Nawab-ul-Hassan, Haji Fateh Muhammad, Shahab-ud-Din, Ghulam Raza, Muhammad Aslam, Muhammad lqbal, Muhammad Riaz and Muhammad Khan faced trial under sections 302/324/148/149/109, P.P.C. Before a Special Court established under Anti-Terrorism Act, 1997, for the charge of committing the murder of Mumtaz Hussain, Ahmad Khan and Ghulam Haider and for murderous assault upon Muhammad Amin, Mumraze Khan, Sadiq Khan and Nawab Khan complainant residents of Village Jhamat situated in the area of Police Station Jand, District Attock. The learned trial Judge having found the appellants guilty of the charge convicted and sentenced them as under:- (i) Under section 148, P.P.C. ' All the appellants were awarded sentence of three years' R.I. Each. (ii) Under section 7 of the Anti-Terrorism Act, 1997. ' Maulana Nawab-ul-Hassan and Shuhabud Din, were sentenced to death for causing murder of Mumtaz Hussain and Ghulam Haider respectively whereas the remaining appellants were awarded sentence of imprisonment for life. ' Under section 302(b), P.P.C.
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' Maulana Nawab-ul-Hassan was sentenced to death for causing the murder of Mumtaz Hussain with the direction to pay an amount of Rs,3,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased and the remaining appellants were awarded the sentence of imprisonment for life. (b) Shahab-ud-Din was sentenced to death for causing the murder of Ghulam Haider with direction to pay an amount of Rs,3,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased. The retailing appellants have been awarded the sentence of imprisonment for life. (c) All the appellants have been awarded sentence of imprisonment for life for the charge of murder of Ahmad Khan deceased. (iv) Under sections 324/149, P.P.C. ' The appellant namely Muhammad Riaz, was awarded R.I. For ten years for causing injuries to Muhammad Amin. In addition he has been awarded fine of Rs,5,000 and In case of default in payment of fine, was directed to 'undergo S.I. For three months. The remaining appellants have been awarded sentence of three years' R.I. Each. (v) Under sections 324/149, P.P.C. ' For causing injuries to Nawab. Khan P.W., Muhammad Iqbal and Muhammad Khan have been sentenced to R.I. For ten years with a fine of Rs,5,000 each and in default of the payment of fine, were directed to undergo S.I. For three months each. The remaining appellants have been sentenced to three years' R.I. Each. (vi) Under sections 324/149, P.P.C. ' For causing injuries to Sajjad Hussain, Fateh Muhammad and Muhammad Aslam have been awarded sentence of R.I. For ten years each with a fine of Rs,5,000 each and in default of the payment of fine, to undergo S.I. For three months each. The remaining appellants were awarded sentence of three years' R.I. Each. 3. All the sentences of imprisonment awarded to the appellants were directed to run concurrently with' benefit of section 382-B, Cr.P.C. Ghulam Raza, Usman Haider and Sabir Hussain co-accused of the appellants being fugitive from law were declared proclaimed offenders and their trial was separated from the appellants. The accused namely Ghulam Hussain, Nawab Khan, Muhammad Khan and Muhammad Hussain having been given benefit of doubt were acquitted from all the charge. 4. The case was registered on the complaint Exh. P.K lodged by Nawab Khan son of Mehdi Khan which was recorded by Malik Aitbar Khan S.I/S.H.O, Police Station Jand at 8-20 a.m. Within two hours of the occurrence. The complaint contained the following facts:-- ' Nawab Khan complainant along with Mumtaz Hussain son of Haji Muhammad Nawaz, Ahmad Khan son of Sultan, Ghulam Haider son. Of Afzal, Muhammad Amin son of Rab Nawab, Mumraze Khan son of Gul Khan, Sajjad son of Khan Baig, Ghulam Shabbir son of Dost Muhammad, Abid Hussain son of Amir Alam, Ghulam Raza son of Ghulam Mohyyud Din, Harnid Abbas son of Dost Muhammad, Khurshid Ahmad son of Dost Muhammad, Muhammad Iqbal son of Ghulam Hussain, Haji Muhammad Nawab son of Ghulam Mohayyud Din, Aslam son of Allah Yar, Zafar Iqbal son of Mehdi Khan and Arshad Mahmood son of Nawab Khan, all residents of Village Jhamat while present in front of the house of Haji Nawab were waiting for the vehicle to go to Rawalpindi, for appearance in the Special Court constituted under Anti-Terrorism Act, 1997, in the murder case of Umar Siddique when suddenly the accused namely Nawab-ul-Hassan son of Shah Nawaz, Sabir Hussain son of Ghulam Hussain, Shaliabud Din son of Ghulam Raza, Muhammad Riaz son. Of Muhammad Hussain armed with klashnikovs along with Ghulam Hussain son of Muhammad Hussain appeared from the western street .Adjoining to the house of Haji Nawaz and it the same time from the eastern street of the house of Master Gul Khan, the accused namely Muhammad
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Iqbal son of Ghulam Muhammad, Ghulam Raza son of Ghulam Muhammad, Fateh Muhammad sob of Muzaffar Khan, Usman Haider son of Ghulam Hussain, armed with klashnikovs, Muhammad Khan son of Afzal Khan and Muhammad Aslam son of Gul Khan armed with .222 rifle alongwith Muhammad Hussain son of Hadayat Khan, Muhammad Khan so of Rajmir, Nawab son of Shakoor empty-handed appeared at the scene. The accused encircled Mu,mtaz Hussain, Ahmad Khan, Ghulam Haider, Muhammad Amin, Mumraze Khan, Sajjad Khan and the complainant whereas Ghulam Hussain, Muhammad Hussain, Nawab and Muhammad Khan so of Rajmir raised Lalkara that the complainant and his companions being belonged to Shia sect were Kafers who were responsible for the murder of one Umar Siddique be done to death and simultaneously Nawab-ul- Hassan fired with his klashanikov which hit on the chest of Mumtaz Hussain. Ahmad Khan was injured with the burst fired by Sabir Hussain with his klashanikov whereas' Ghulam Haider sustained fire-arm injuries as a result of burst fired by Shahab-ud-Din with his klashanikov. Muhammad Amin sustained injuries at the hands of Muhammad Riaz. The complainant sustained injuries as a result of firing of Muhammad Iqbal . And Muhammad Khan whereas Ghulam Raza and Usman Haider caused injuries with their respective weapons to Mumraze Khan. Fateh Muhammad and Muhammad Aslam fired at Sajjad Hussain. The remaining companions of the deceased and the injured witnesses who were present on the other side , of the road while taking refuge in the office of Agricultural Department located in the nearby to save their lives. ' The, motive behind the occurrence as narrated in the complaint was that six years earlier, Usman Siddique, son of Ghulam Hussain accused was murdered, and a case was registered against the complainant and his above named companions, which was still pending before the Special Court at Rawalpindi. Due to this enmity in the background, Ghulam Hussain and his companions being revengeful, in furtherance of their common object, attacked on the complainant party, as a result of which three persons died at the spot and four were injured. 5. Malik Aitbar Khan, S.I., the then S.H.O. Of the Police Station Jand, while reaching in the Hospital prepared the injury statements of the witnesses who sustained injuries in the occurrence and proceeded to the place of occurrence. The S.H.O. Prepared injury statements and inquest reports of Mumtaz Khan, Ghulam Haider and Ahmad Khan deceased and dispatched their dead bodies for post-mortem examination. During the spot inspection, the Investigating Officer collected the blood-stained earth and eighty crime empties from the place of occurrence and secured the same in the separated sealed parcels. The Investigating Officer also took into possession electric bulbs which were available outside the office of Agricultural Department; and water supply Tube- well. The investigation was then entrusted to D.S.P./S.D.P.O. J and who having effected the arrest of all the accused except Sabir Hussain and Usman Haider finalised the investigation and submitted the Challan. The above named two accused being fugitive were declared as proclaimed offenders and their trial was separated under section 512, Cr.P.C. 6. The charge against the, appellants was framed in the following manner:- "(1)That on 19-12-1998 at 6-30 a: m. In the area of Village Jhammat of Police. Stition Jand, District Attock, you, Nawab7u1-Hassan, Shahab-ud-Din, Muhammad Riaz, Muhammad Iqbal, Ghulam Raza and Fateh Khan alongwith your absconding accused persons, Sabir and Usman Haider armed with klashnikovs. Muhammad Khan son of Afzal and Muhammad Aslam armed with .222 rifles, Muhammad Hussain, Ghulam Hussain, Muhammad Khan son of Rajmeer and Nawab, empty- handed, in the prosecution of common object of you all, formed an unlawful assembly, committed an offence of 'section 148, P.P.C.Which is within the cognizance of this Court. (2) That on the same day, time and place you all the above named accused persons in the prosecution of common object of unlawful assembly,' started firing at the complainant party, resultantly, caused the death of Mumtaz Hussain, Ghulam Haider and Ahmad deceased and thus
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you all the accused committed an offence of their Qalt-e-Amd punishable under sections 302/149, P.P.C. Which is within the cognizance of this Court. (3) That on the same day, time and place you all the accused persons mentioned above, in the prosecution of common object of you all, being member of an unlawful assembly,. Started firing on the complainant; party with your respective weapons and caused injuries to Muhammad Amin, Mumraze Khan, Sajjad Hussain and Nawaz Khan P.Ws. With such intention and knowledge and under such circumstances, if any of them expired as a result of your firing, you all would have been guilty of their murder and thus you all have committed an offence of attempted murder punishable under sections 324/149, PPC which is within the cognizance of this Court. ' That on the same day, time and place, you all the above mentioned accused persons, in the prosecution of common object of you fail, being member of an unlawful assembly, rioting, punishable under in order to strike terror and to create a sense of fear and insecurity in the people of area, particularly Shia Sect, made indiscriminate firing with your respective weapons, consequently took lives of three persons and caused injuries to four persons, as mentioned above. Thus, committed an offence punishable under section 7 of the Anti-Terrorism Act, 1997, which is within the cognizance of this Court." 7. The prosecution in proof of the charge apart from the ocular account also placed reliance on the evidence of motive, the medical and recoveries. The gist of the evidence produced by the prosecution is given as under :- ' In addition to Nawab Khan son of Mehdi Khan complainant, Muhammad Amin, Sajjad Hussain and Muhammad Riaz being injured witnesses have furnished the ocular account of the occurrence. Their evidence is to the effect that on 19-12-1998 at 6-15 a.m. They along with the deceased namely Mumtaz Hussain, Ghulam Haider, Ahmad Khan and others after offering Fajar prayer in the mosque were present in front of the house of Haji Muhammad. Nawaz whereas their companions namely Ghulam Raza, Aslam Khan, Abid Hussain, Ghulam Shabbir, Muhammad Nawaz, Khurshid Ahmad, Hamid Abbas, Muhammad Iqbal, Zafar Iqbal and Arshad Mahmood while present in front of Agricultural Office were waiting for vehicle to proceed to Rawalpindi. Meanwhile, the accused; namely Nawab-ul- ' Hassan, Sabir Hussain, Shahab-udDin, Muhammad Riaz armed with klashnikovs and Ghulam Hussain empty-handed appeared from the western side of the house of Haji Muhammad Nawaz whereas their co-accused namely Haji Muhammad Hussain and Nawab Khan empty-handed, Muhammad Khan, Usman Haider, Ghulam Raza, Fateh Muhammad, Muhammad Iqbal armed with klashnikovs, Muhammad Khan son of Muhammad Afzal and Muhammad Aslam Khan son of Gul Khan armed with .222 rifles appeared from the eastern side in the street in which the house of Master Gul Khan was situated. The accused namely Ghulam Hussain, Muhammad Hussain, Nawab Khan and Muhammad Khan raised Lalkara that Shias were kafers and the complainant party. Being Qaatils of Umar Siddique be killed and simultaneously Nawabul-Hassan fired a burst with klashnikov which caused injuries to Mumtaz Hussain, on his abdomen, legs and on left side of his back. Mumtaz Hussain having sustained the injuries fell on the ground and expired. Shabbir Hussain accused fired a burst with klashnikov at Ahmad Khan, who succumbed to the injuries at the spot. Similarly a burst was fired by Shahab-ud-Din accused at Ghulam Haider who also succumbed to the injuries sustained by him at the spot. Muhammad Amin P.W. Was injured as a result of firing made by Muhammad Riaz whereas the complainant sustained injuries with the firing of Muhammad Iqbal and Muhammad Khan. Mumraze Khan another companions of the complainant was caused injuries by Usman Haider and Ghulam Raza. Sajjad Hussain was fired at by Fateh Muhammad and Muhammad Aslam accused. The members of the complainant party who were standing in front of the office of Agricultural Department having taken refuge in the said office saved their lives. The motive as stated was that in addition to the religious differences between the
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parties, the accused were revengeful against them due to the murder of Umar Siddique son of Ghulam Hussain accused. The occurrence relating to the murder of Umar Siddique had taken place six years ago in which the complainant party was challaned and the said case was still pending before the Special Court at Rawalpindi. 8 Dr. Faiz Muhammad Farooqi, Medical Superintendent, THQ Hospital Jand, P.W. 10 medically examined .The injured witnesses namely Haji Muhammad Amin, Mumraze Khan, Sajjad Hussain, Nawab Khan and found the following injuries on their persons:- ' Haji. Muhammad Amin. (4) A lacerated wound 5 x 3 c.m. On the inner side of left forearm at the level of wrist. Corresponding cut is present on the Kameez. (2) A lacerated wound 9 x 8 c.m. On the back of left hand. Corresponding cut is present on the Kameez. (3) A fire-arm wound of entry 3 x 1 c.m. On the back of left thigh. Corresponding cut is present on the Shalwar. ' Mumraiz Khan. (1) A fire-arm wound of entry 1.5 x 0.8 c.m. On the outer side of leftlower leg. (2) A fire-arm wound of exit 2.2. x 1.2 c.m. Oh the inner side of left lower leg. (3) A lacerated wound .7 x 4 c.m. On the anterior side of penis. (4) A lacerated wound 6 x 4 c.m. On right scrotum. Testis coming out. (5) A lacerated wound 6 x 6 c.m. On the inner side of right thigh. Corresponding cuts are present on the Shalwar. ' Saiiad Hussain. (1) A fire-arm wound of entry 1 x 1 c.m. On the inner side of right thigh. (2) A fire-arm wound of entry 1 x 0.8 c.m, in the front of right thigh 6 c.m. Above injury No, 1. (3) A fire-arm wound of exit 6 x 3 c.m. On the back of right thigh. (4) A fire-arm wound of exit 7 x 4 c.m. Pn the outer side of right thigh. Corresponding cuts are present on the Shalwar. ' Nawab Khan (1) A fire-arm wound of entry 1.8 x 1 c.m. On the back of left upper arm. ' Corresponding cuts present on the Chadar, Kameez and Jersey. (2) A fire-arm wound of exit 2.5 x 1.5 c.m. In front of left upper arm. Corresponding cuts were present on the Chaddar, Kameez and Jersey. (3) A fire-arm wound of entry 2.5 x 1 c.m. On the inner side of right foot 5 c.m. Below medial malleolus. 9. Jumma Khan P.W.4 remained associated with the investigation and was deputed to get the injured witnesses medically examined. The evidence of this witness was of no significance but still he made some obliging concession in favour of the accused. Muhammad Afzal, constable P.W.1, Muhammad Hussain, constable P.W.2, Khan Badshah P.W.3 also remained associated with the investigation and performed different function including taking the parcels containing blood- stained earth and the crime empties for delivery in the office of Chemical Examiner and Forensic Science Laboratory at Lahore. The prosecution placed on record the reports of the Chemical Examiner Exh.P.F.F and that of the Serologist Exh.P.G.G. Tahir Iqbal, Constable P.W.5 was deputed to take the dead bodies to the mortuary and after post-mortem examination he delivered the last worn clothes of three deceased to 'the Investigating Officer. Muhammad Farooq, H.C. P.W.6 has recorded the formal F.I.R. Exh.P.K/1 on the basis of complaint Exh.P.K, which was sent to the Police Station by Aitbar Khan, S.I./S.H.O. Of the Police Station. Master Suleman P.W.7 has prepared the site plans under the, direction of the Investigating Officer .And on pointation of the P.Ws. Ibrar Hussain P.W.8 identified the dead bodies of the deceased at the time of post-mortem examination.
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Muhammad Khan P.W.9 witnessed the recovery of the crime empties and blood-stained earth from the place of occurrence. Aitbar Khan S.I./Investigating Officer died before the commencement of the trial, therefore. Muhammad Farooq, H.C. P.W.14 who was posted as Moharrir of the police station has proved the handwriting and signatures on the documents prepared by the S.H.O. During the investigation. 10. The accused in their statements under section 342, Cr.P.C. While denying the charge pleaded false implication in the following manner:- ' Nawab-ul-Hassan "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some motorcyclist attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case. ' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party and sectarian and on account of suspicion and on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committed by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this connection." ' Fateh. Muhammad "It is correct that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In factr on the day of occurrence, small hours of the morning when it was complete dark some Motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case." ' Shahab-ud-Din "It is correct that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws.. In fact, on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case." ' Muhammad Riaz "It is correct that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact, on the day of occurrence, small houri of the morning when it was complete dark some Motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co.-accused had absolutely no hand, in the murder of the present deceased persons and the injured P.Ws. In this case." ' Muhammad Khan "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some Motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this. Case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case.
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' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party and sectarian and on account of suspicion and on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committed by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this connection." ' Ghulam Hussain "It is correct that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact, on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case. ' The P.Ws. Are all closely related inter se and are almost members of the same family, on account of previous enmity and their close relationship between themselves they have falsely deposed against me and my co-accused." ' Nawab Khan-1 "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complaint party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case. ' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party and sectarian and on 'account of suspicion and on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committed by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this connection." ' Muhammad Hussain "It is incorrect that Umar Siddique was murdered by the complainant party but it is incorrect that we had on account of that grudge or enmity attacked the deceased of the present case or injured, the P.Ws. In fact on the day of occurrence, small hours of the morning when it was complete dark some motorcyclists attacked the complainant party of this case injuring the injured P.Ws. And committed the murder of the deceased persons of this case. I or my co-accused had absolutely no hand in the murder of the present deceased persons and the injured P.Ws. In this case. ' I have already explained that I and my co-accused have been falsely implicated on account of previous enmity of murder of Umar Siddique which belong to our party' and sectarian and on account of suspicion and, on account of differences I and my co-accused have been falsely implicated. In fact, the occurrence was committed by motorcyclists who were also traced and for which documentary evidence has been requested to be summoned from the office of S.P. Attock in this…
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