Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: JAFAR and 6 others VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: JAFAR and 6 others vs The STATE Case No.: Criminal Appeal No 419 and Murder Reference No,121 of 2008 Date of Judgment:2013-03-05 Reported As: 2013 P Cr. L J 1650 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---Jafar, Ali Sher, Riaz, Ozair, Yousaf, Afzal and Safdar appellants along with three others were tried in case F.I.R. No,572 of 2005 dated 9-7-2005 offences under sections 302, 109, 148 and 149, P.P.C. Registered at Police Station Tandlianwala, District Faisalabad. After conclusion of the trial, learned trial Court vide its judgment dated 15-4-2008 has convicted and sentenced the appellants as under:-- ' Jafar, Ali Sher, Riaz and Ozair, appellants. ' Convicted under sections 302(b), 149, P.P. C . Each for committing the murder of Shahid Iqbal, deceased and sentenced to death each with a direction to pay the compensation amount of Rs,1,00,000 (Rupees One Hundred Thousand only) each to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to suffer simple imprisonment for six months S.I. Each. The compensation shall be recoverable as the arrears of land revenue. ' Yousaf and Afzal appellants. ' Convicted under sections 302(b), 149, P.P.C. Each for committing the murder of Shahid Iqbal, deceased and sentenced to imprisonment for life (R.I.) each with a direction to pay the compensation amount of Rs,1,00,000 (Rupees One Hundred Thousand only) each to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to suffer simple imprisonment for six months' S.I. Each. The compensation shall be recoverable as arrears of land revenue. ' Safdar. ' Convicted under sections 302(b), 109, P.P.C. For committing the murder of Shahid Iqbal, deceased and sentenced to imprisonment for life (R.I.) with a direction to pay the compensation amount of
---
## Page 2
Rs,50,000 (Rupees Fifty Thousand only) to the legal heirs of deceased as envisaged under section 544-A of Cr.P.C. And in default, thereof, to suffer simple imprisonment for six months' S.I. ' The learned trial Court, however, acquitted Zahoor, Muddai and Abbas, co-accused while giving the benefit of doubt to them. 2. Feeling aggrieved, the appellants have challenged their conviction and sentences through Criminal Appeal No, 419 of 2008, whereas, the learned trial Court has transmitted Murder Reference No,121 of 2008, for confirmation or otherwise of the death sentences of Jafar, Ali Sher, Riaz and Ozair convicts/appellants. We purpose to dispose of both these matters by this single judgment as both have arisen out of the same judgment dated 15-4-2008 passed by the learned Additional Sessions Judge, Tandlianwala, District Faisalabad. 3. Brief facts of the case as given by the complainant Ahmad Yar (P.W.5) in his written application Exh.PA on the basis of which formal F.I.R. Exh.PA/1 was chalked out are that on 5-7-2005 at about 3- 00 p.m. He (complainant) along with Muhammad Yaqoob (P.W.6) and Dost Muhammad (given up P.W.) was present at the 'dhari' of Muhammad Yaqoob (P.W.6). At that time Shahid Iqbal (deceased), son of the complainant, aged about 30 years was coming from the village towards the drwi' of Muhammad Yaqoob (P.W.6) and when he reached at killa No,15, suddenly Zahoor (since acquitted), Ali Sher (appellant), Jafar (appellant since dead), Yousaf (appellant), Riaz (appellant), Oozair (appellant), and. Afzal (appellant) armed with sotas came there from the charri crop cultivated in killa No,6 and attacked on Shahid Iqbal .(deceased) while raising lalkaras., They said that they would teach a lesson to Shahid Iqbal and Muhammad Yar for beating Ali Sher. Shahid Iqbal tried to run away but Ali Sher, Riaz, Jafar and Oozair (appellants) chased him and gave sota blows on his head who fell down. In that condition Yousaf, Afzal (appellants) and Zahoor accused (since, acquitted) gave sota blows which hit Shahid Iqbal on his right arm and back of Shahid Iqbal (deceased). Complainant along with P.Ws. Rushed towards Shahid Iqbal (deceased). All the accused fled away from the spot, while raising lalkaras that they had taken the revenge of beating to Ali Sher (appellant). Complainant and P.Ws. Took Shahid Iqbal (deceased) to civil Hospital, Tandlianwala where he was admitted. The condition of Shahid Iqbal became serious on 9-7-2005, so he was taken to Allied Hospital, Faisalabad where he succumbed to the injuries at about 4-00- p.m. It was further alleged that occurrence had been committed at the abetment of Muddai, Abbas accused (since acquitted) and Safdar (appellant). The complainant also stated that he remained busy in the medical treatment of Shahid Iqbal till 9-7-2005, hence, he could not inform the police earlier, about the occurrence. ' The motive behind the occurrence as set forth in the F.I.R. Exh.PA/1 was, that the accused persons had committed the murder of Shahid Iqbal (deceased) due to a minor reason. 4. The appellants Jafar. Yousaf, Ali Sher, Afzal, Ozair and Riaz were arrested by Shoukat Ali, SI, (P.W.8) and on 31-7-2005 all the above mentioned appellants led the police to Chak No,413/GB where `sotas' (P-1, P-2, P-3, P-4, P-5 and P-6) were recovered on the pointations of Ali Sher. Riaz Jafar, Ozair, Afzal, Yousaf (appellants), respectively, which were taken into possession vide memos Exh.PB, Exh.PC, Exh.PD, Exh PE, Exh.PF, Exh.PG, respectively. After completion of investigation, the challan was prepared and submitted before the learned ti ial Court. The learned trial Court, after observing legal formalities; as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants and their co-accused on 9-12-2005. To which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced nine witnesses, during the trial. Ahmad Yar, complainant (P.W.5) and Muhammad Yaqoob (P.W.6) are the witnesses of ocular account. ' Dr. Abdul Satar Randhawa (P.W.4) conducted post mortem examination on the dead body of Shahid [ghat (deceased), whereas Shoukat Ali. SI (P.W.8) is the Investigating Officer of this case. Muhammad Hanif (P.W.2) is the witness of recovery of `sotas' (P-1 to P-6).
---
## Page 3
' Farooq Ahmad, SI (P.W.1), Basharat Ali, Patwari (P.W.3), Muhammad Iqbal 1931 (P.W.7) and Zulfiqar Ali, ASI (P.W.9) are the formal witnesses. The prosecution also produced documentary evidence in the shape of complaint filed by Ahmad Yar complainant Exh.PA, F.I.R. Exh.PA/1, memo of possession of recovery of `sota' (P-1) Exh.PB from the possession of Ali Sher (appellant), memo of possession of recovery of `sota' (P-2) Exh.PC from the possession of Riaz (appellant), memo of possession of recovery of 'sota' (P-3) Exh.PD from the possession of Jaffar (appellant), memo of possession of recovery of `sota' (P-4) Exh. PE from the possession of Ozair (appellant) memo of possession of recovery of 'sota' (P-5) Exh.PF from the possession of Afzal (appellant), memo of possession of recover of `sota' (P-6) Exh.PG from the possession of Yousaf (appellant), copy of scaled site plan of the place' of occurrence in duplicate Exh.PH and Exh.PH/1, post mortem report of Shahid Iqbal (deceased) Exh.PJ, pictorial diagrams Exh.PJ/1, injury statement Exh.PK, inquest report Exh.PL, memo of possession of last worn clothes of Shahid Iqbal deceased Exh.PM, site plan of place of occurrence without scale Exh.PN, site plan without scale of the place of recovery of 'sotas' Exh.PO, copy of site plan Mark A and closed its evidence. 6. The statements of the appellants and their co-accused (since acquitted) under section 342, Cr.P.C. Were recorded by the learned trial Court. They refuted the allegations levelled against them and professed their innocence. While answering to question "Why the prosecution witnesses deposed against you and why this case against you" the appellants replied as under:-- ' Afzal. "The case is false and fabricated. Ahmad Yar, alleged complainant, Muhammad Yaqoob deposed falsely being inimical to me and my alleged co-accused and they are closely related with each other and as well as alleged deceased Shahid Iqbal. Complainant party prevailed upon police through Rah Nawaz, MPA. Saee Muhammad is complainant of the private complaint of cross version who filed a private complaint against Ahmad Yar, Muhammad Yarob, Dost Muhammad, Hanif Allah Ditta, Murad and one Muhammad Afzal son of Saee Mohammad and Muhammad Ashraf which is pending before learned Judi. Magistrate, Tandlianwala. The actual facts of the case are that on 5-7-2005 at about 3-00 p.m. 1 along with Muhammad Saee complainant of the private complaint, Muhammad Yousaf injured, Noor Muhammad and Muhammad Ashraf were sitting on the cots in front of my house on the road under the shadow of trees at square No, 20 and we at that time talked with each other. In the meanwhile Shahid lqbal alleged deceased was armed with hatchet, Dost Muhammad armed with hatchet, Muhammad Hanif armed with hatched, Murad armed with hatchet, Muhammad Afzal son of Saeed armed with pistol Muhammad Ashraf armed with gun 12 bore, Ahmad Yar alleged complainant armed with dang, Muhammad Yaqoob armed with dang, Allah Ditta armed with dang reached the place of occurrence and were raising lalkaras to teach a lesson for beating to Shahid lqbal alleged deceased and Waris son of Shahadat resident of Chak No, 41 8/GB for abusing and insulting of them. Muhammad Afzal armed with pistol Muhammad Ashraf armed with gun, they started firing at the spot and created terrorism and panic in the village and raised lalkaras, if someone came to near them and tried to save the lives of myself and the above said other persons otherwise they should be murdered as due to that reason complainant party of the private complaint became afraid and worried at that time. Shahid lqbal alleged del cased present blow a hatchet to Muhammad Yousaf which hit on his head. Shahid lqbal also blow hatchet to me which hit on my head, Dost Muhammad inflected hatchet to Muhammad Yousaf which hit on the right side of his head. Murad inflected hatchet blow to Muhammad Yousaf which hit his near left hand at forearm. Muhammad Hanif inflected hatchet blow to me which hit me on my right cheek. Muhammad Yaqoob inflected dang to Muhammad Yousaf which hit on his back of chest. Allah Ditta inflected dang to you Muhammad Afzal which hit on my right arm. In the meantime, I and Muhammad Yousaf picked up sotas near road and inflected some injuries to Shahid Iqbal alleged deceased in
---
## Page 4
the right of private self defence. If I and Muhammad Yousaf did not beat to Shahid Iqbal alleged deceased he and others murdered to myself and. Muhammad Yousaf. This occurrence was witnessed by Saee Muhammad complainant of private complaint, Noor Ahmad and Muhammad Ashraf resident of Chak No,417/GB. The above said eyewitnesses namely Saee Ahmad, Noor Muhammad and Muhammad Ashraf beseeched the accused of the complaint and saved our lives. After the occurrence, myself and Muhammad Yousaf in injured condition reached at civil hospital, Tandlianwala for getting MLCs and treatment where the accused party of private complaint also reached there. At that time, the alleged complainant party compromised with us. Due to that reason we did not get our MLCs from the said hospital. We got our treatment from the private clinic. On 9-7-2005 Shahid Iqbal alleged injured had died. A false case under sections 302, 148, 149, 109, P.P.C. Had been registered against myself and my alleged co-accused with wrong contents stated in the F.I.R. No,572 dated 9-7-2005, P.S. Tandlianwala. Complainant party stated a wrong motive in this case. The actual fact of the motive was that 10/11 days before the present occurrence the motorcycle, of Safdar Ali my co-accused was stolen by Waris who returned the said motorcycle through punchait and confessed his crime in the punchait so case of stolen motorcycle was not registered against him because matter was patched up in the punchait. Waris is a good friend of Shahid Iqbal deceased. On the day of occurrence at about 11-00 a.m. Shahid Iqbal and the above said. Waris both were passing from our Bazar near our house, at that time Mohammad Yousaf, Jaffar, Ali Sher myself and Ozair Ahmad already were sitting there under the shadow of tree. We asked Shahid Iqbal deceased why he brought Waris on our village who had already stolen our motorcycle and why Shahid Iqbal and Waris deceased were passing from our bazaar. On the asking of the above said fact and a quarrel took place between us and Shahid Iqbal and Waris. We had beaten Shahid Iqbal and Waris and abused them at that time. Due to that grudge the above said persons of the complainant party of the case attacked us while armed with lethal weapons and injured myself and Yousaf. I and Muhammad Yousaf in the right of private-self defence, picked up sotas from the spot and injured Shahid Iqbal to save our lives Rab Nawaz Kharal, MPA who is relative of the complainant party of the case in connivance with the local police registered a false case against us. Police did not record our version correctly. I was medically examined on 10-7-2005. Muhammad Yousaf was also examined on the same day. We produced our MLCs before police and police did not give weight to our ML Cs. A false case was registered against myself and my alleged co-accused. Ahmad Yar and Muhammad Yaqoob gave a false statement before this honourable court. I am totally innocent. My father also filed a private complaint against the above said accused persons. They are facing the trial before learned trial Court. The complainant party of the murder was aggressor. ' Jafar, Yousaf, All Sher, Riaz, Ozair and Safdar. "The case is false and fabricated. Ahmad Yar, Muhammad Yaqoob deposed falsely being inimical to me and my alleged co-accused and they are closely related with each other. The complainant party prevailed upon the police through Rab Nawaz, MPA registered a false case against myself. I heard the detailed statement of Muhammad Afzal alleged co-accused which is recorded in my presence. I rely upon the statement of Muhammad Afzal the alleged co-accused. I did not take part in the main occurrence. ' The appellants produced Muhammad Afzal (appellant) in their defence who made statement on oath as envisaged under section 340(2), Cr.P.C. Muhammad Afzal (appellant) in his statement recorded under section 340(2), Cr.P.C. Took this plea that on 5-7-2005 at 3-00 p.Ni. He, Muhammad Yousaf (appellant) and other members of the accused party namely Noor Muhammad, Muhammad Ashraf and Muhammad Saee were attacked upon by the complainant party. He further claimed that Shahid Iqbal (deceased) along with Dost Muhammad, Murad, Muhammad Hanif, Muhammad Yaqoob, Allah Ditta inflicted hatchet and 'dang' blows on his person, as well as,
---
## Page 5
on the person of Muhammad Yousaf (appellant) and thereafter he (Muhammad Afzal appellant) and Muhammad Yousaf (appellant) picked up `sotas' and inflicted some `danda' blows on the person of Shahid Iqbal (deceased) while using their right of private defence. The appellants also produced documentary evidence in the shape of statement of Muhammad Yaqoob Exh.DA, MLR of Muhammad Afzal (appellant) Exh.DB, pictorial diagrams of injuries Exh.DB/1, MLR of Muhammad. Yousaf appellant Exh.DC, pictorial diagram Exh.DC/1 statement under section 161, Cr.P.C. Of Muhammad Iqbal Exh.DD, copy of F.I.R. No,465 of 1988 Exh.DE, copy of private complaint under sections 324, 148 and 149 filed by Saee Muhammad Exh.DF and copy of Jamanbandi for the year 2003-04 Exh.DG. 7. The learned trial Court vide judgment dated 15-4-2008, found Jafar. Ali Sher; Riaz, Ozair, Yousaf, Afzal and Safdar appellants guilty, convicted and sentenced them as mentioned and detailed above. 8. Learned counsel for the appellants, in support of this appeal, contends that totally a false story was narrated in the F.I.R. Exh.PA/l; that there is un-explained delay of four days in reporting the matter to the police despite the fact that distance between the place of occurrence and police station was just 16 kilometers; that in the F.I.R. It was case of the complainant that he took Shahid Iqbal (deceased) in injured condition to Civil Hospital, Tandlianwala where he remained admitted and became serious and then he was taken to Allied Hospital, Faisalabad but there is no evidence on the record qua the treatment of Shahid Iqbal deceased, either in Allied Hospital, Faisalabad or at Civil Hospital, Tandlianwala; that two appellants namely Yousaf and Afzal appellants were also injured in this incident but the injuries of said appellants were suppressed in the F.I.R. And in the statements made by the prosecution witnesses before the learned trial Court; that the alleged recoveries of `sotas' are inconsequential, as none of the `sota' was stained with blood; that no specific motive was alleged in the F.I.R., however, the complainant stated that when the deceased was attacked it was stated by the appellants that they have come to teach a lesson to Shahid Iqbal (deceased) and Muhammad Yar for beating Ali Sher (appellant) and while appearing before the learned trial Court, the complainant has stated in his cross-examination that the altercation took place between Shahid Iqbal (deceased) and Ali Sher (appellant) in the morning time in front of the house of one Mattal and admittedly said Mattal has not been examined before the police or before the learned trial Court; that Muhammad Yaqoob (P.W.6) during his cross-examination stated that it was Ali Sher appellant who abused Shahid Iqbal (deceased) in the morning time prior to the occurrence and he further stated that Shahid Iqbal was a respectable person and they felt aggrieved due to the said abuses, therefore, the motive was with the complainant party to take revenge of the abuses given by Ali Sher (appellant); that the version of Afzal appellant recorded under sections 340(2), as well as, 342, Cr.P.C. And adopted by the other appellants is more probable and convincing which gets support from the evidence of the prosecution that it was Ali Sher appellant who abused Shahid Iqbal (deceased) and it was Shahid Iqbal (deceased) who had grudge in his mind, therefore, he (deceased) along with his other companions attacked on the accused party; that Muhammad Afzal and Muhammad Yousaf appellants were medically examined by the same Doctor who conducted the post mortem examination on the dead body of Shahid Iqbal (deceased) and their MLRs have also been brought on the record; that it was admitted by the Investigating Officer that houses of the appellants are close to the place of occurrence; that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt, thus, this appeal be accepted and the appellants may be acquitted from the charges. 9. Learned Deputy Prosecutor-General, for. The State, assisted by learned counsel for the complainant opposes this appeal on the grounds that the delay in lodging the F.I.R. Per se is no ground to discard the prosecution evidence and even otherwise the said delay has been plausibly
---
## Page 6
explained in the F.I.R. Wherein it has been mentioned that the complainant was busy in medical treatment of Shahid Iqbal deceased; that there is no reason for the prosecution witnesses to falsely depose against the appellants; that the ocular account of the prosecution is fully supported by the medical evidence as the deceased in this case received seven injuries on his person, as per post mortem examination report of the deceased; that the prosecution case is also corroborated by the recoveries of `rotas' at the instance of Jafar, Yousaf, Ali Sher, Afzal, Ozair and Riaz (appellants); that specific plea was taken by the appellants but they have not been able to prove the same; that appellants have themselves admitted in their statements recorded under sections 340(2) and 342, Cr.P.C. That they committed the murder of Shahid Iqbal (deceased); that there is no mitigating circumstance in this case; that the sentences of death were rightly awarded to the appellants and the same may be maintained, appeal may be dismissed and Murder Reference be answered in the affirmative. 10. We have heard the arguments of learned counsel for the parties and have also gone through the evidence available on the record with their able assistance. 11. Before proceeding further it would be relevant to mention here that on 10-1-2013 learned counsel for the appellants stated that one of the appellants namely Jafar has died in the Central Jail, Faisalabad. In this regard report was requisitioned from the Superintendent, Central Jail, Faisalabad, who vide his report bearing No,789 dated 23-1-2013 submitted that the condemned prisoner namely Jafar has died on 21-7-2012 at the District Headquarter Hospital, Faisalabad. He has also annexed the death certificate of Jafar (appellant) along with his report. Thus keeping in view the report and death certificate submitted by the Superintendent, Central Jail, Faisalabad, Murder Reference No,121 of 2008 stands abated to the extent of Jafar appellant. 12. Now coming to the merits of this case, it would not be IA out of place to mention here that it is a case of two versions, i.e, one put forth by the prosecution in the form of ocular account furnished by Ahmad Yar, complainant (P.W.5) and Muhammad Yaqoob (P.W.6), whereas, the other has been brought on the record through the statements of the appellants, recorded under section 342 of Cr.P.C. And suggestions put to the prosecution eye- witnesses during their cross-examination. 13. It is settled now by the Hon'ble Supreme Court of Pakistan in number of judgments that it is the prosecution which is required to prove its case against the accused persons beyond any shadow of doubt and the defence version is to be taken into consideration after evaluating the prosecution evidence to find out whether the same inspires confidence or not? In this regard, we have been fortified by an illustrious pronouncement of the Hon'ble Supreme Court of Pakistan in the case reported as Ashiq Hussain v. The State (PLD 1994 SC 879), wherein, at page 883, the learned Apex Court of the country has been pleased to observe as under:-- "The proper and legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eyewitnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. And the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr. P. C. Is exculpatory, then he must be acquitted. If the statement under section 342, Cr. P. C. Believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counter versions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing in the case at close before reaching at a conclusion regarding the truth or falsity of the
---
## Page 7
defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence and the total effect should be estimated in relation to the question, viz is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly." ' Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of 'Amin Ali and another v. The State' (2011 SCM R 323), therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan in such like situation, we will, first, examine the case of the prosecution. 14. The occurrence in this case took place on 5-7-2005 at 3-00 p.m. Whereas the…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.