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Petitioner: (1) The State (2) Arshad Ali @ Bawoo Tundda (3) Ameer Ali @ Meeru (4) Ali Sher VS Respondent: (1) Muhammad Arshad @ Tundda (2) The State etc (3) Faisal Mehmood (4) Faisal Mehmood etc.
Court Name: Lahore High Court Judge(s): Aalia Neelum, Abdul Sami Khan Title:(1) The State (2) Arshad Ali @ Bawoo Tundda (3) Ameer Ali @ Meeru (4) Ali
Sher vs (1) Muhammad Arshad @ Tundda (2) The State etc (3) Faisal Mehmood (4) Faisal Mehmood etc. Case No.:(1) Murder Reference No.232 of 2012 (2) Criminal Appeal No.540 of 2012 (3) Criminal Appeal No.628 of 2012 (4) P.S.L.A. No.140 of 2012 Date of Judgment:2016-06-14 Reported As: 2016 LHC 1976 Result: N/A Judgment AALIA NEELUM, J:- The appellants, namely, Muhammad Arshad alias Tundda son of Muhammad Rafique and Ameer Ali alias Meeru son of Mehmood Ahmad, both Jaat by caste, residents of Chak Maili Burji, Police Station Sadar Sangla Hill, District Nankana Sahib, have preferred appeals, who were involved in case F.I.R. No.277 dated 04.7.2009, offence under Section 302, 324, 337/U.D, 148, 149 P.P.C., registered at Police Station Sadar Sangla Hill, District Nankana Sahib and was tried by the learned Addl. Sessions Judge, Sangla Hill, District Nankana Sahib. The learned trial court seized with the matter in terms of judgment dated 17.03.2012 convicted the appellants as under:- 1. Muhammad Arshad alias Bawoo Tundda, appellant (in Crl. Appeal No.540/2012) Under Section 302 (b) P.P.C. read with section 34 P.P.C., and sentenced him to death. The appellant/convict was also burdened to pay Rs.1,00,000/- as compensation to the legal heirs of Shahid Maqbool, deceased as required under Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months each. Under section 324 read with section 34 PPC for causing injuries to Shakir Mehmood PW and sentenced to 10 years R.I. and also a fine of Rs.20,000/- and in case of default in payment thereof, to undergo S.I. for three months. 2. Ameer Ali alias Meeru, appellant (in Crl. Appeal No.628/2012) Under Section 302 (b) P.P.C. read with section 34 P.P.C., and sentenced him to life imprisonment. He was also burdened to pay Rs.1,00,000/- as compensation to the legal heirs of Shahid Maqbool,
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deceased as required under Section 544-A, Cr.P.C. and in case of default in payment thereof, to undergo S.I. for six months each. Under section 324 read with section 34 PPC for causing injuries to Shakir Mehmood PW and sentenced to 10 years R.I. and also a fine of Rs.20,000/- and in case of default in payment thereof, to undergo S.I. for three months. Under Section 337-D P.P.C. for causing Jaifah to Shakir Hussain, injured/PW and shall be liable to pay Arsh which shall be 1/3rd of the Diyat and he was also punished with imprisonment for five years as Tazeer. Ameer Ali alias Meeru, appellant was also liable to pay Arsh for causing Itlaf of teeths of Shakir Hussain, injured PW Under Section 337/U P.P.C. which shall be 1/10th of the Diyat. He is also liable to pay Arsh which shall be 10% of the Diyat for Shujjah Hashima Under Section 337/A(iii) PPC on the person of Shakir Hussain and sentenced to imprisonment for five years as Tazeer. Ameer Ali alias Meeru, appellant was also convicted under section 337-F(i) PPC for causing Ghair Jaifa Damyah on the person of Shakir Hussain and he is liable to pay Daman of Rs.10,000/- and also punished with imprisonment for one year as Tazeer. All the sentences shall run concurrently. The appellants are also extended benefit of section 382-B Cr.P.C. 2. Feeling aggrieved by the judgment of the learned trial court, Muhammad Arshad alias Bawoo Tundda, appellant has assailed his conviction and sentence through Crl. Appeal No.540 of 2012 whereas the appellant, namely, Ameer Ali alias Meeru has challenged his conviction and sentence by filing Crl. Appeal No.628 of 2012. 3. Apart from, the complainant has filed PSLA No.140/2012 challenging the acquittal of respondents No.1 to 5 passed by the learned trial court with the prayer to set aside the judgment dated 17.3.2012 to the extent of respondents No.1 to 5 and they be also convicted and sentenced in accordance with law. 4. The learned trial court has forwarded Murder Reference No.232 of 2012 for confirmation of death sentence inflicted upon Muhammad Arshad alias Bawoo Taundda/convict in terms of Section 374 of Cr.P.C. 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 consolidated judgment. 5. Prosecution story, as portrayed in the F.I.R. (Exh.PA) lodged on the complaint (Exh.PB) of Ali Sher, complainant/(PW-1) is that on 04.07.09, he along with Iftikhar Ali, Abdul Wahid, Shahid Maqbool and Shakar Hussain were returning from Mandi Safdarabad to their village by two motorcycles. Shahid Maqbool and Shakar Hussain were boarded on motorcycle No.2743 LEM whereas on the other motorcycle bearing registration No.4157-LEZ the complainant, Abdul Wahid and Iftikhar Ali were following them. At about 6:00 p.m. when they entered from canal side in the village, Arshad Ali alias Bawoo Tundda etc while armed were sitting in front of their house. On seeing Shahid Maqbool and Shakir Hussain, Arshad Ali alias Bawoo Tundda armed with Kalashnikov, Ameer Ali alias Meeru armed with Kalashnikov, Faisal Mehmood armed with 8 mm, Javed Iqbal armed with repeater 12-bore, Abdul Waheed armed with pistol 30-bore and Khawar Abbas armed with rifle 44-bore started firing with their respective weapons upon Shahid Maqbool and Shakar Hussain. They stopped their motorcycle and found that Master Muhammad Rafique raised Lalkara that today Shahid Maqbool etc be not spared alive and they be taught a lesson for the murder of his son, Zulfiqar. In the meantime, Arshad Ali alias Bawoo Tundda made a burst fire with his Kalashnikov at Shahid Maqbool whereas Ameer Ali alias Meeru made a burst fire with his Kalashnikov which hit Shakar Hussain. Both of them fell down from the motorcycle in injured condition. Thereafter, all the accused made firing hitting Shahid Maqbool and Shakar Hussain with their respective weapons. On hearing hue and cry, many persons came there whereas the accused persons fled away while firing and raising lalkaras. Shahid Maqbool succumbed to the
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injuries at the spot whereas Shakar Hussain sustained serious injuries and he was shifted to Allied Hospital, Faisalabad for medical treatment. The motive behind the occurrence was old blood fuel between the parties but compromise has been effected. The accused persons despite reconciliation nursed a grudge and committed the murder of Shahid Maqbool and caused injuries to Shakar Hussain. 6. After registration of the case, the police conducted usual investigation. Initially, Abdul Khaliq, SI/Investigating Officer (CW-7) conducted the investigation. He (CW-7) stated that on 4.7.2009 after receiving the information about the occurrence, he (CW-7) reached at the place of occurrence and recorded the statement (Ex.PA) of Ali Sher, complainant and sent the same for formal registration of the F.I.R. (Ex.PA) through Ghulam Mustafa 699/C to the police station. He (CW- 7) prepared the inquest report (Ex.CW-7/B) and injury statement (Ex.CW-7/C). He (CW-7) also drafted application (Ex.CW-7/D) for conducting post mortem examination and handed- over the dead body of the deceased through Ahmad Ali 112/C and Matloob Aftab 726/C to the hospital for post mortem. The Investigating Officer (CW-7) inspected the place of occurrence and prepared un-scaled site plan (Ex.CW-7/E) and secured the blood stained earth from the place of occurrence vide recovery memo (Ex.PF). He (CW-7) collected 47 empties from the place of occurrence of different caliber and taken into possession vide recovery memo (Ex.PG). He (CW-7) also took into possession the blood stained clothes of the complainant Ali Sher vide recovery memo (Ex.PJ) and recorded the statements of the PWs under section 161 Cr.P.C. On 5.7.2009 he (CW-7) again along with the police officials visited the place of occurrence where Ahmad Ali 112/C and Matloob Aftab 726/C handed over to him the last worn clothes of the deceased which were taken into possession vide recovery memo (Ex.PJ). The said constables also handed over to him a sealed phial which was taken into possession vide recovery memo (Ex.PK). The said constables also handed over to him dead body of the deceased at the place of occurrence which was handed over to the legal heirs of the deceased. On 6.7.2009 he (CW-7) along with draftsman Khalid Mehmood went to the place of occurrence. On 11.7.2009 he (CW-7) went to Allied Hospital, Faisalabad for recording the statement of injured Shakir Hussain under section 161 Cr.P.C. He (CW-7) also took into possession blood stained clothes of the injured vide recovery memo (Ex.PM), attested by Iftikhar and Mudassar PWs. On 27.7.2009 he (CW-7) received the medicolegal report of Shakir Hussain containing the injuries which were subsequently declared to be falling under section 337-A(iii), U, D, F(i) PPC and consequently he (CW-7) added the said Sections during his investigation. He (CW-7) concluded his investigation on 9.8.2009. According to his investigation , Muhammad Rafique, Muhammad Javaid and Abdul Waheed were not found at the place of occurrence and at the relevant time, they were found to be present at their shops at Lahore. During investigation Khawar Abbas accused was also not found at the place of occurrence at the time of occurrence and he was found in City Sangla Hill at the relevant time. Arshad, Ameer Ali and Faisal Mehmood accused along with two unknown accused persons were found involved by the Investigating Officer (CW-7) in the commission of offence. He (CW-7) also prepared site plan of the place of recovery (Ex.CW- 7/F). On reaching to police station, he (CW-7) handed over the case property to the Moharrar and the accused was detained in the lock up in accordance with law. On 11.8.2009 the Investigating Officer (CW-7) was transferred under the order of DPO and the case was handed over by him to the Moharrar of police station. 7. On 23.9.2009 the investigation of this case was entrusted to Muhammad Ashraf, ASI (CW- 9). He (CW-9) stated that after perusing the file, two accused persons were found absconders by him, namely, Arshad alias Bawoo Tundda and Ameer alias Meeru. The investigation remained with Muhammad Ashraf, (CW-9) till 05.10.2011 but thereafter, on the application of the complainant of the case, investigation of the case was transferred to Range Crime, Sheikhupura Region, Lahore SSP Rang Crime after completion of the investigation. He (CW-9) agreed with the investigation
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conducted by the local police. On 16.12.2009 again Moharrar of the Police Station handed over to him (CW-9) the case file on the order of the SHO concerned. On the same day, he (CW-9) prepared discharge-report regarding accused Javed Iqbal, Abdul Waheed, Rafique, Khawar Abbas upon the order of the SHO Police Station Sadar Sangla Hill. Thereafter, he (CW-9) presented the said discharge report before the learned Illaqa Magistrate who did not agree with the said report. On 23.9.2009 SHO police station concerned prepared the challan to the extent of Muhammad Arshad alias Bawoo Tundda and Ameer Ali alias Meeru. On 17.02.2011 the learned Additional Sessions Judge, Sangla Hill, formally charged the appellants along with others to which they pleaded not guilty and claimed trial. 8. Initially, the report under section 173 Cr.P.C. was submitted before the learned trial court mentioning the accused Muhammad Arshad alias Tundda and Ameer Ali alias Meeru with red ink as proclaimed offenders whereas accused Javed Iqbal, Abdul Waheed, Khawar Abbas and Master Muhammad Rafique in Column-II, however, name of Faisal Mehmood was incorporated in Column No.III of the challan. Later on, Ameer alias Meeru and Arshad Ali alias Bawoo Tundda were arrested by the police and their report under section 173 Cr.P.C. was submitted mentioning their names in Column No.III too. 9. Being aggrieved of the conduct of police, the complainant filed a private complaint which too was sent up and after recording the cursory evidence of the complainant and having perused the record, all the seven accused persons were prima facie found connected with the commission of murder so they all were summoned to face the charge. On 17.02.2011 the learned Additional Sessions Judge, Sangla Hill, formally charged the appellants along with others to which they pleaded not guilty and claimed trial. 10. Prosecution in order to substantiate its case produced as many as eight (8) prosecution witnesses during the course of trial. Ocular account in this case consists of the statements of Ali Sher, complainant (PW-2) and Shakir Hussain-injured (PW-3). Tallat Mehmood, ASI (PW-1) deposed that on 4.7.2010 at about 7.15 p.m. Ghulam Mustafa 699/C produced before him written complaint drafted by Abdul Khliq, SI (CW-7) on the basis of which he (PW-1) chalked out formal FIR (Ex.PA). Muhammad Aslam (PW-6) and Muhammad Ahsan (given up PW) are the recovery witnesses. Muhammad Aslam (PW-6) stated that on 4.7.2009 he along with Muhammad Ahsan PW joined the investigation and in their presence, the police collected 47 empties of Kalashnikov P-1 (1-23), 8 empties of 12 bore gun P-2 ((1-8), 4 empties of 8mm rifle P-3 (1-4), three empties of 30-bore pistol P-4 (1-3) from the place of occurrence and secured the same vide recovery memo (Ex.PG) after reducing the same into a sealed parcel which was attested by him along with Muhammad Ahsan (given up PW). The police also secured blood stained earth from the place of occurrence vide memo (Ex.PH) which was attested by the same set of witnesses after reducing the same into a sealed parcel. The police also secured blood stained clothes of Ali Sher, the complainant (PW-2) comprising of Shalwar (P-5) and Qameez (P-6) vide recovery memo (Ex.PJ) which was attested by the same set of witnesses. Muhammad Aslam (PW-6) further stated that on 9.8.2009 he and Iftikhar (given up PW) came to the police station and joined the investigation of this case. Faisal Mehmood accused while in police custody made a disclosure that he could lead to the recovery of weapon of offence and he led the police party to his residential house and got recovered 8mm rifle (P-7) from an iron box (paiti) lying in the residential room of his house. Upon unloading the rifle (P- 7) five live bullets P-8 (1-5) were also recovered. The said rifle and live bullets were reduced into sealed parcel and secured by the police vide recovery memo (Ex.PK) attested by him and Iftikhar (given up PW). During the deposition of Muhammad Aslam (PW-6) learned counsel for the complainant raised objection that this witness was concealing the truth and giving wrong number of recovered empties and the learned trial court on 6.5.2011 again re-called PW-6 and on that date learned ADPP for the State stated that to correct the record according to the articles, de-sealed the
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empties after recording the same correction be made, therefore, the parcel of empties was de- sealed in presence of both the sides in the trial court which were 23 in number and empties of Kalashnikov (P-1) are numbered as 23. Ahmad Ali 112/C (PW-7) deposed that on 4.7.2009 Investigating Officer handed over the dead body of Shahid Maqbool to him (PW-7) along with Matloob Aftab (given up PW). He (PW-7) escorted the dead body of the deceased to the mortuary at Nankana Sahib due to night and lack of arrangement, the post mortem could not be conducted at night and on the next day i.e. 5.7.2009 the doctor conducted the post mortem examination on the dead body. After conducting the post mortem examination, the doctor handed over the last worn clothes comprising of vest P-9, shalwar P-10, kameez P-11 and one sealed phial. Investigating Officer prepared memo (Ex.PL) regarding the last worn clothes as well as one sealed phial vide recovery memo (Ex.PM) which was signed by him (PW-7) along with Matloob Aftab (given up PW). Mudassar Hussain (PW-8) identified the dead body of Shahid Maqbool along with his father Muhammad Khan (given up PW). On 11.7.2009 the doctor handed over to him (PW-8) blood stained clothes of injured Shakir Hussain i.e. Shalwar (P-12), shirt (P-13) and bunyan (P-14) which were taken into possession by the Investigating Officer vide recovery memo (Ex.PN) which was signed by him (PW-8) and Iftikhar (given up PW). On 7.01.2011 the accused Arshad disclosed before the Investigation Officer in presence of Mudassar Hussain (PW-8) along with Iftikhar (given up PW) that the Kalashinkov which he used for murder of Shahid Maqbool, the deceased and injured Shakir (PW-3) were kept in his 'Patti' lying in his house which he could get recovered. The Investigating Officer took the accused Arshad and he (PW-8) along with Iftikhar (given up PW) accompanied them. The accused Arshad took the Investigating Officer to his house from where he led to the recovery of Kalashnikov lying in the 'Patti' from a room of his house after opening the main door with a key which was placed in a hole of the wall of his house. The accused Arshad after opening the patti got recovered the Kalashnikov (Ex.P-15) which he took into possession of the same vide recovery memo (Ex.PO) which was attested by Mudassar Hussain (PW-8) and Iftikhar (given up PW). The Investigating Officer also recorded their statements under section 161 Cr.P.C. After tendering the documentary evidence, the learned counsel for the complainant closed the prosecution evidence. 11. Dr. Riaz-ul-Hassan (PW-4), CMO, Allied Hospital, Faisalabad deposed that on 04.07.2009, he examined Shakir Hussain (injured PW-3). On examination, the doctor (PW-4) found following injuries:- 1. A fire arm entry wound 1cm x 1cm on left cheek. 2. A fire arm exit wound 1cm x 1cm on right side of nose. 3. A fire arm entry wound 1cm x 1cm on right side of nose. 4. A fire entry wound 1/2 cm x 1/2 cm on outer and back of right thigh middle part. 5. A fire arm grazing wound 1/2 cm x 1/2 cm on back of right elbow. 6. A fire arm grazing wound 1/2cm x 1/2cm on back of right forearm upper part. Injury No.1 to 6 KUO. Referred to dental Surgeon. Surgeon and radiologist of Allied Hospital for expert opinion. Declaration: As reported by the radiologist Dr. Jamil Ahmad vide X.Ray No.702 dated 16.07.2009, X.Ray Right thigh AP and lateral view, no fracture or joint dislocation were seen in the region of thigh. A metallic density shadow seen within proximal tibia.
X.Ray PNS (For maxillary wounds): Bone defect seen in the left maxillary bone. Need further evaluation of the region on C.T maxillary wounds. As reported vide X. Ray No.720 dated 23.07.2009, CT scan PNS, CT maxillary bones plain. A fracture by lateral maxillary bones seen with bone defect in the anterior wall of right maxillary sinus. Fracture nasal bones were also seen.
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As reported by Dental Surgeon Dr. Naeem Murtaza vide No.9965 dated 27.07.2009, the clinical examination showed missing left upper central and lateral incisors and canine i.e alveolar bone of this area 123 also found depressed. X.Ray and CT scan also shows missing teeth, above injury due to external trauma. Surgical notes No.3: Vide bed head ticket No.84496 dated 04.07.2009. As per report vide admin Registrar Surgical Unit No.3 Operation. Exploratory laparotomy wound exploded on the face and tracheotomy done. Surgeon Dr. Ishaq and Dr. Zahid Iqbal and Assistant Dr. Fazal. A fire arm wound lateral to the left side of nose. A fire arm wound on left cheek communicating with nasal cavity and a fire arm wound below the right eye connecting with nasal cavity. Two perforation in jejunum. Two liters of fecal stained fluid in the peritoneal cavity, the deep lacerated wound and single scar 1/2 cm x 1/2 cm on the back of right lumber region communicating peritoneal cavity. End to end the anastomosis have done jejunum. Repair of distal perforation. Homeostasis secured and abdomen closed. Injury No.1 337/U, Shaju-i-Hasham Injury No.2 Shaju-e-Hashma Injury No.3 Jurah Jaifa Injury No.4,5,6, Jurah Ghair Jaifa Damia The weapon is fire arm. MLC pertaining to the injured Shakir Hussain Ex.PE is correct carbon copy along with diagrams Ex.PE/1 which is signed by him. Duration of injuries: Fresh on arrival. 12. Dr. Shabbir Ahmad, SMO (PW-5) deposed that on 04.07.2009 he conducted post mortem examination on the body of Shahid Maqbool. On examination, following injuries were made:- 1.A. A fire arm wound of entry 1cm x 1cm on the left side of the head 4cm above left ear. 1.B. A fire arm wound of exit 1.5cm x 1.5cm on the right side of the head 1cm front of the left ear brain matter was coming out of the wound. 2.A. A fire arm wound of entry 1cm x 1cm on the left side of the neck 6cm blow the left ear. 2.B. A fire arm wound of exit 2cm x 1.5cm on the left side of the neck 2 cm blow the right ear on dissection skill bones fractured brain damaged, on X.Ray of the skill metallic dust seen. 3.A. A fire arm wound of entry 1cm x 1cm on the front of the upper part of the right chest 1cm blow the right mid clavicular point. 3.B. A fire arm wound of exit 1cm x 1cm on back of the right chest on the upper part. 4.A. A fire arm wound of entry 1cm x 1cm on front of the right shoulder. 4.B. A fire arm wound of exit 1cm x 1cm on the back of the right shoulder. 5.A. A fire arm wound of entry on the front of the upper part of the arm. 5.B. A fire arm wound of exit on the back of the right arm. 6.A. A fire arm wound of entry 1cm x 1cm on the front of the upper part of the right forearm. 6.B. A fire arm wound of exit on the back of the upper part of the right forearm. 7.A. A fire arm wound of entry on the middle of the front of the right forearm. 7.B. A fire arm wound of exit on the back of the middle of the right forearm. 8.A. A fire arm wound of entry 1cm x 1cm on the front of the right side of chest 6cm blow the right mid clavicular point. 8.B. A fire arm wound of exit 2cm x 1cm on the right of lateral side of the chest 10cm blow the right armpit. 9.A. Six fire arm wounds of entry each measuring 1cm x 1cm in an area 7cm x 4cm on the front of the lest chest middle of the left arm on the dissection one pellet was recovered from the left chest.
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10.A. A fire arm wound of entry 1cm x 1cm on the right side of the abdomen 2cm blow the right costal margin. 11.A. A fire arm wound entry 1cm x 1cm on the right flank 1cm above the right lilac crest. 12. A fire arm wound of exit 1cm x 1cm on the back of the left chest. 13. A fire arm wound of exit 1cm x 1cm on the right back 2cm above the right buttock. After conducting the postmortem examination, the doctor had rendered the following opinion:- "All the above stated injuries were anti mortem and caused by fire arm weapons. Death was cased due to damage of brain, heart, liver spleen and kidneys. These injuries were sufficient to cause death of a person in ordinary course of nature. Probable time between injuries and death was within five minutes and between death and post mortem was within 15/20 hours." 13. Iftikhar Ali, eye-witness, Abdul Wahad, Muhammad Ahsan and Muhammad Khan (PWs) were given up as being unnecessary by the learned counsel for the complainant vide his separate statement and closed the prosecution evidence by tendering in evidence attested copies of report of Chemical Examiner No.3031/B dated 17.8.2009 and report of Forensic Science Laboratory No.1941/FSL dated 6.3.2010 as Ex.PP and Ex.PQ. 14. After closure of evidence of the complainant, the learned trial court examined the remaining ten witnesses mentioned in the calendar of witnesses of the connected State case as CWs whereas CW Mr. Zaeem Iqbal Sheikh, SSP Range Crime Branch was given-up. 15. Mansab Ali, ASI (CW-1) deposed that on 04.07.2009 a parcel of blood stained earth and crime empties containing 47 empties of different bores were handed over to him by the Investigating Officer Abdul Khaliq SI (CW-7). On 21.07.2009, he (CW-1) handed over the parcels to Muhammad Azam, 671/C for their onward transmission to the offices of FSL, Lahore and Chemical Examiner, Lahore and on the same day he (CW-1) deposited the same intact. Rafaqat Ali, ASI (CW-2) deposed that on 07.01.2011 the Investigating Officer handed over to him one sealed parcel said to contain one Kalashnikov which he kept in the Malkhana intact and thereafter on 17.01.2011 handed over the same to Muhammad Azam 671/C for onward transmission to the FSL, Lahore. Khalid Mehmood, draftsman (CW-3) deposed that on 06.07.2009 he visited the place of occurrence on the direction of the police and on the pointation of the PWs. On 10.07.2009, he (CW-3) handed over copy of the sealed site plan in triplicate to the Investigating Officer concerned. The drawing and notes are in his hand and bears his signatures and the same are Ex.CW/1 to 3. Muhammad Azam, DSP (CW-4) deposed that on 10.10.2009 he was posted as Inspector Regional Investigation Branch, Sheikhupura Region, Lahore. Investigation of case FIR No.277/2009 was entrusted to…
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