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Petitioner: GHULAM YASIN VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: GHULAM YASIN vs The STATE Case No.:Criminal Appeals Nos.185-J, 534, P.S.L.A. No,71, Criminal Revision No,407 and
JUDGMENT
Reported As: 2014 YLR 1283 Result: Appeals allowed Judgment JUDGMENT ' MANZOOR AHMAD MALIK, J.---This judgment shall decide Criminal Appeal No,1854 of 2009 titled as " Ghulam Yasin v. The State", Criminal Appeal No,534 of 2009 titled as "Ghulam Qasim v: The State", P.S.L.A No, 71 of 2009 titled as "Hail Ahmed Khan v. Muhammad Raman and 4 others", Criminal Revision No,407 of 2009 titled as "HO Ahmad Khan v. Ghulam Qasim and 2 others" and Murder Reference No,177 of 2009 titled as "State v. Ghulam Yasin" as all these matters have arisen out of the private complaint titled as "Hail Ahmad Khan v. Ghulam Yasin and others" filed by Ahrnad Khan complainant being dissatisfied with the investigation of case F.I.R. No,256/2006 dated 22-4-2006 offences under sections 302, 324, 148 and 149 P.P.C. Registered on his statement at Police Station Sadar Jhang, District Jhang. 2. Ghulam Yasin (appellant) in Criminal Appeal No 185-J of 2009 has filed this appeal against the judgment dated 16-4-2009, whereby, after having been tried by the learned Additional Sessions Judge Jhang in the above mentioned case, he was convicted, under sections 302(b), 324, 337-A(i), 337-A(ii), 337-F(i) and 337L(2) P.P.C. And sentenced as under:- "... For the foregoing facts, reasons and observations given above, the accused Ghulam Yasin is convicted under section 302(b), P.P.C. And sentenced to death as Tazir and to pay compensation of Rs,50,000 to the legal heirs of the deceased. In case of default he will further undergo 6 months simple imprisonment. ' The accused is also convicted under section 324, P.P.C. And sentence to 7 years, rigorous imprisonment and a fine of Rs,10,000. In case of default he will further undergo two mouths' simple imprisonment.
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' The accused is also convicted under section 337-A(i), P.P.C. And sentenced to 1 years, rigorous imprisonment on three counts. He will be also liable to pay Daman of Rs 3000 total. ' The accused is also convicted under section 337-A(ii), P.P.C. And sentenced to 2 years', rigorous imprisonment and also to pay Arsh equal to 5% of the Diyat amount. ' The accused is also convicted under section 337-F(i), P.P.C. And sentenced to 6 months', rigorous imprisonment on seven counts. He will be also liable to pay Daman of Rs,7000 total. ' The accused is also convicted under section 337-L(2), P.P.C. And sentenced to 1 years, rigorous imprisonment on six counts and he will also pay Daman of Rs,6000. ' Through the same judgment, Ghulam Qasim (appellant) in Criminal Appeal. No, 534 of 2009 was convicted, under sections 302(b), 324, 337-A(i), 337-A(ii), 337-F(i) and 337L(2) P.P.C. And sentenced as under:-- "... He is convicted under section 302(b), P. P. C . And sentenced to life imprisonment as Tazir and to pay compensation of Rs,50,000 to the legal heirs of the deceased Ghulam Parid. In case of default he will further undergo six months simple imprisonment. ' The accused Ghulam Qasim is also convicted under section 324, P.P.C. And sentenced to seven years' rigorous imprisonment and also a fine of Rs,10,000, In case of default he will further undergo simple imprisonment for two months. ' The accused is also convicted under section 337-A(1), P.P.C. And sentenced to 1 years, rigorous imprisonment on three counts, He will be also liable to pay Daman of Rs,3000 total. ' The accused is also convicted under section 337-A(ii), P.P.C. And sentenced to 2 years', rigorous imprisonment and also to pay Arsh equal to 5 % of the Diyat amount. ' The accused is also convicted under section 337-F(i), P.P.C. And Sentenced to. 6 months', rigorous imprisonment on seven counts. He will be also liable to pay Daman of Rs,7000 total. ' The accused is also convicted under section 337-L(2j, P.P.C. And sentenced to 1 years, rigorous imprisonment on six counts and he will also pay Daman of Rs,6000. ' All the sentences were ordered to run concurrently. The appellants were also given benefit of section 382-B, Cr.P.C. The learned trial court has sent Murder Reference No,177 of 2009 for confirmation or otherwise of the sentence of death awarded to Ghulam Yasin (convict). Through the same judgment, Muhammad Ramzan, Khadim Hussain and Muhammad Aslam, co-accused of the appellants were acquitted of the charges while extending them benefit of doubt. Haji Ahmad Khan, complainant has filed P.S.L.A. No,71 of 2009 against their acquittal. Haji Ahmad Khan complainant has also preferred Criminal Revision No,407 of 2009 for enhancement of the quantum of sentence of imprisonment for life awarded to Ghulam Qasim respondent No,1 to the sentence of death and also for enhancement of the amount of compensation imposed upon Ghulam Qasim and Ghulam Yasin, respondents Nos.1 and 2. 3. Briefly, facts of the case, according to the F.I.R. (Exh.PG) recorded on the statement (Mark- CW2/A) of complainant Haji Ahmed Khan (P.W.4) are that he was resident of Mauza Maduki Chah Usmanwala and a cultivator. Yasin son of Hakim Ghagrana Syal resident of Mauza Maduki was is son-in-law, who on 10/11-4-2006 had got registered F.I.R. No,217/2006 offences under sections 452, 337-F(ii), 337-F(i), 337-A (i), 337-L(2), .148 and 149 P.P.C. At Police Station Saddar Jhang against complainant and his relatives whereas in the alleged occurrence, complainant and his daughter Razia Tabassam were injured. Cross version was got recorded by the complainant side. Due to interference of people of locality, Haji Lal Khan son of Haji Salehoon caste Gugrana resident of Mauza Jalalpur was appointed as an arbitrator and, both The parties went to the arbitrator on the previous night where, after negotiation, Haji ljaz son of Hamayoun caste Gagrana was appointed as "Agwanni". After the settlement, Yasin and Qasim both sons of Farid caste Gagrana residents of Chak No,480 JB, Khadim son of not known caste Mochi and Aslam son of not known caste Mochi residents of Chak No,480 JB left the place. After 20/25 minutes, complainant along with his son
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Ghulam Farid while riding a motorcycle and brother-in-law (sala) of complainant Taj Mehmood son of Muhammad Khan along with Ramzan son of Lal caste Gugra.Na resident of Chak No,480 JB while riding on other motorcycle left for their houses. At about 08:30 p.m, when complainant's side reached near pull! Situated close to Dhari of Allah Ditta son of Salehoon Gugrana within the jurisdiction of Mauza Jalalpur, suddenly, Yasin armed with hatchet, Qasim armed with hatchets Khadim and. Aslam armed with sows came there who were identified by complainant's side in the light of motorcycles. They intercepted the complainant's side. The assailants raised lalkara to teach a lesson to Ghulam Farid for quarreling on which Ramzan son of Lal caught hold of Taj Mehmood from back and Yasin inflicted hatchet blow from wrong side which hit complainant's son Ghulam Farid on backside of the head, and said Ghulam Farid fell down. In his falling position, Yasin (appellant) gave repeated blows which hit at the head and mouth of Ghulam Farid whereas Qasim gave hatchet blow on the person of Ghulam Farid which landed on the left leg, back and arm of Ghulam Farid. Aslam and Khadim also gave sota blows on the person of Ghulam Farid. Taj Mehmood was also injured by the assailants with rotas and hatchet blows which landed on the head, left, shoulder, left leg, right arm and back. Complainant beseeched the assailants and on his hue and cry, Allah Ditta son of Khan. Muhammad Gugrana resident of Mauza Maduki and Riaz son of Muhammad Gugrana resident of Gugrana came at the spot who witnessed the occurrence. The assailants decamped while raising lalkaras. The complainant side shifted both the injured to Civil Hospital, Jhang and obtained results of doctors. As the condition of Ghulam Farid was precarious, the doctors referred him to Allied Hospital, Faisalabad. The complainant side was shifting Ghulam Farid to Allied Hospital Faisalabad in an ambulance but he succumbed to the injuries. 4. Dilbar Hussain Inspector (CW.7) was posted at Police Station Seder, Jhang. On 22-4-2006, on receipt of information about the occurrence, he went to Civil Hospital Jhang and recorded the statement of complainant Ahmad Khan and handed over the complaint to Aslam constable for registration of case. Thereafter, he prepared injury statement (Exh.PD) and inquest report (Exh.PF/1) of Ghulam Farid (deceased). After preparation of document he left Aftab Constable at the hospital for "postmortem of deceased Ghulam Farid and thereafter went to the place of occurrence and inspected the spot. He prepared rough site plan of the place of occurrence (CW.1/A), took into possession the blood through cotton vide memo (Exh.PH). Thereafter he started search of the accused but failed to arrest them. He went to the hospital and recorded statement of Taj 'Mehmood injured (P.W.5). Aftab constable handed over to him last worn clothes of deceased (P.2 to P.4) which were taken into possession vide memo (Exh.CW.7/13). On 23-4-2006, he again summoned complainant party at the Police Station 'and initiated proceedings for arrest of accused. On 28-4-2006 he along with Muhammad All Patwari (CW.1) went to the place of occurrence who took rough notes of the place of occurrence and handed, over scaled site plan (Exh.CW1/A). On 1-5-2006 he arrested accused Ghulam Yasin, Ghulam Qasim and Ramzan. On the next day he obtained their physical remand. On 9-5-2006 Ghulam Yasin (appellant) made disclosure and allegedly led to the recovery of hatchet which was taken into possession vide memo (Exh.PG). Ghulam Yasin (appellant) was sent to judicial lock up. On 15-5-2006 both the parties were confronted and also produced before the DSP concerned and during the investigation no incriminating material was found against the accused Aslam, Khadim and Qasim and they were found not involved in the occurrence. During the investigation he found Ghulam Yasin, Habib and Ismail involved in the occurrence but the complainant due to relationship did not bring before him any incriminating evidence. Accused Ghulam Farid and Ramzan were also sent to judicial lock up. He moved discharge report of Ghulam Qasim (appellant) but the learned Magistrate did not agree to the report. He placed accused Qasim, Aslam and Khadim in Column No,2 of the report under section 173, Cr.P.0 while accused' Yasin and Ramzan were placed in. Column No,3,
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5. Being dissatisfied with the Police investigation, the complainant filed a private complaint on 18- 7-2006 with almost the same allegations. Cursory evidence in the private complaint was recorded and the appellants as well as their co-accused were summoned to face the trial. Copies of the documents as required under section 265-C, Code of Criminal Procedure were provided to them and formal, charge under sections 302, 324, 148 and 149 P.P.C. Was framed against them on 16-11- 2006 to which they pleaded not guilty and claimed trial. In order to prove its case prosecution examined five witnesses whereas eight others were called by the learned trial court as court witnesses. Ocular account was furnished by Haji Ahmed Khan complainant (P.W.4) and Taj Mehmood injured (P.W.5). Dr. Tauseef Zafar (P.W.1) medically examined Taj Mehmood injured (P.W.5) and Ghulam Farid (deceased) in injured condition whereas Dr. Zafar Iqbal Patoana (P.W.2) conducted postmortem examination on the dead body of Ghulam Farid (deceased) and both these witnesses furnished the medical evidence. Ghulam Murtaza (P.W.3) witnessed the alleged recovery of hatchet (P.1) at the instance of Ghulam Yasin (appellant). Dilbar Hussain Inspector (CW.7) investigated the state case and while appearing before the learned trial court narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Hall Ahmad Khan complainant gave up P.W. Zulfiqar being unnecessary vide statement dated 2-3-2007. He further gave up P.Ws. Allah Ditta and Riaz being unnecessary vide statement dated 28-7-2007 and after tendering in evidence report of Chemical Examiner (Exh.PK) with regard to blood stained cotton and report of Serologist (Ex.PK/1), the complainant closed the prosecution evidence vide statement dated 15-4-2008. Statements of the appellants and their co-accused were recorded under section 342, Code of Criminal Procedure on 29-4-2008 wherein they refuted all the prosecution allegations levelled against them. Ghulm Yasin (appellant) to the question as to why the case against him and why the P.Ws. Deposed against replied as under:-- "I have been falsely and baselessly involved in the case due to enmity. The' P.Ws., have deposed against me falsely and baselessly on account of enmity and The detail of enmity, ill-will and other reasons has been given by me in my answers to the questions Nos.2, 3 and 5, which may be read as part of answer to this question. Now it is imperative to reproduce questions Nos.2, 3 and 5, which are as under:- Q.No,2. Is it a fact that Mst. Kalsoom daughter of Haji Ahmad Khan complainant (P.W.4) was your wife and your co-accused are Gagrana by Caste and your relative while Muhammad Aslam and Khadim Hussain your co-accused are your close friends? Ans: The real 'facts are that Mst. Kalsobm Akhtar daughter of Haji Ahmad Khan complainant, was my wife. In exchange, my sister Mst: Nasreen Akhtar was married with Ghulam Farid (deceased), the son of the complainant. Ghulam. Farid contracted another marriage in the year, 2005, with Mst: Nazia Daughter of Abid, my enemy, during the subsistence of his marriage with Mst. Nasreen Akhtar illegally and against the law and the rules on the subject. This was the third marriage of Ghulam Farid. I strongly protested thereon. The complainant forcibly restrained Mst: Kalsoom Akhtar, my wife, to come to my house. On 27-5-2005, I convened a Punchayat of the respectables of area at the Dera of Syed Javaid Akhtar Shah, Gaddi Nasheen of Derbar Hazrat Rodey Shah Bukhari. The complainant party persisted in their haughtiest and un reasonable conduct. Complainant Haji Ahmad Khan, his son Ghulam Farid. And Siddique, brothers-in-law Taj Mehmood and Islam, besides said Abid and his son Nazir etc.; launched murderous assault on me and also resorted to firing. Through police I got myself medically examined on 28-5-2005, but the respectables of brotherhood did not allow me to lodge criminal proceedings against the assailants at the behest of complainant. I produce certified copy of my MLR No,982/2005, dated 28-5-2005 (Ex.DN). Deceased Ghulam Farid shunted out my sister, Mst. Kalsoom Akhtar from his house. She was putting up at my house. On 24-1-2006, I sent written divorce to my wife Mst. Kalsoom Akhtar and
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re-married on 27-1-2006. The complainant, his sons and brothers-in-law got extremely annoyed and they became thirsty of my blood. ' It is correct that accused Muhammad Ramzan and Ghulam Qasim are Gagrana by Caste and my relatives, but my relations with them are strained. They are more related to the complainant party. So far as accused Khadim Hussain and Muhammad Aslam are concerned, they are not even acquainted with me, not so speak of their being friends of mine. I belong to Mauza Maddoky in Tehsil Jhang, whereas they reside in Chak No,480/JB, Tehsil Shorkot; with four villages in between. They belong to different brotherhood. ' Q.No,3. Is it a fact that 10/11 days before this occurrence, there had been a fight between you and complainant 'party, whereupon you got a case registered against them, as complainant Haji Ahmad Khan and his daughter namely Mst. Razia Tabasum was also injured in that fight, so Haji Ahmad Khan brought counter-version before police and investigation of the said case was in progress? ' Ans: It is incorrect. The real state of affairs is that Mst. Kalsoom Akhtar my wife, did not want to get divorce from me, On 10-4-2006, she against the wishes of her father Haji Ahmad Khan, the complainant and other relatives, came to my house voluntarily of her own In my absence, when I was busy at Maloana Moor for getting my thresher Machine repaired. As :Mst. Kalsoom Akhtar had already been divorced by me, my mother and sister did not allow her to enter my house. I came back to my house at about mid-night. Complainant Haji Ahmad Khan, deceased Ghulam Farid, Siddique, the complainant's sons Mst. Razia Tabasum and Mst: Sumaira, his daughters, P.W., Taj Mehmood and Riaz, his brothers-in-law, and Allah Ditta, his son-in-law, armed with lethal weapons guns, hatchet and sotas etc; already sitting in ambush, launched murderous assault, on me in my house with the common object of eliminating me and they seriously injured me, my mother and sisters and ultimately abducted me. My 'sister informed the police on telephone. I got registered the case against the assailants vide F.I.R. No,217 dated 17-4-2006, in Police Station Saddar Jhang, which is pending in a competent Court. I submit my MLC No,707/2006, dated 11-4-2006, (Ex:DO) ' As regards the complainant's cross-version the same stood cancelled by the police being found a sheer concoction, forgery and fabrication. That was nowhere under investigation. That is no pending in any Court. ' Q.No,5. Is it a fact that Haji ljaz son of Hamayoun, Gagrana, was appointed as "Agvanee" and thereafter you along with your co-accused Ghulam Qasim, Muhammad Aslam, and Khadim Hussain went away from the Punchayat and after about 20/25 minutes the complainant along with his son Ghulam Farid at about evening time while riding on one motorcycle, whereas Taj Mehmood P.W' and accused Muhammad Ramzan boarded on another motorcycle. Accused Muhammad Ramzan was seated on the rear seat of Taj Mehmood P.W., whereas Haji Ahmad Khan complainant was seated on the rear seat of Ghulam Farid (deceased) and they left for their houses on motorcycles? ' Ans: It is totally incorrect and false.' The factual position is that, during the night between 10th/ 11th of April, 2006, the complainant party, had injured me seriously. Even on 2I-4-2006, I was admitted in the hospital for treatment inasmuch as the I.O. Javaid khizar A.S.I. Had recorded my statement on that day in the hospital. I request that the record of investigation of that case may kindly be seen as a copy of the relevant proceedings has not been provided to me by the police despite efforts. Even before 21-4-2006, a date was fixed for the Punchayat but I had been unable to attend due to my injuries and the resultant incapacitation. On 21-4-2006, I, on being forced by the respectable, attended the Punchayat in the company of my first cousin Habib son of Lal. From the complainant's side, there had come in the Punchayat Haji Ahmad Khan; his friends Haji Abdul Majeed Heraj and Ghulam Abbas, Baloch, his son deceased Ghulam Farid and brother-in-law Taj Mehmood P.W.
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Many other respectables of the Maga were also present, who had been called by the complainant and P.W. Taj Mehmood Accused Muhammad Ramzan was also among them. ' The complainant, his son Ghulam Farid deceased, and P.W., Taj Mehmood adopted extremely aggressive, and objectionable conduct. They held out to me threats of dire consequence. They did not mend their ways despite warning of the arbitrator. Having been disappointed and apprehensive of harm at the hands of the said persons. I left the Punchayat with my cousin, said Habib -son of Lal on motor-cycle. One Ismail son of Shahadat, who is resident of Abadi near the Dera of Haji 'Lal Khan, got the lift and also sat'," on my motorcycle. It was extreme darkness. We had to stop at the Pully situate at .Distance of 1-1/2 Furlongs from the Dera of Haji Lal Khan, arbitrator, opposite to the Abadi of Khan Beg, Gagrana, on account of some problem having been developed without motorcycle. I opted to delay further for the reasons: firstly, due to my complete incapacitation to travel further due to my injuries especially the injuries to my right eye, right eye ball, left chest etc, on the one hand, and extreme darkness and unfavourable weather, on the other; secondly, the obvious and imminent danger of being waylaid, attacked and eliminated by the complainant party, pursuant to their previous conduct and also their recent threats of dire consequences in the Punchayat, as, in the meanwhile, Haji Ahmad Khan, the complainant, along with Haji Abdul Majeed Heraj had over taken and passed by us on a motor-cycle; and thirdly, to await my brothers-in-law Shoukat etc; who had been coming behind from the Dera of Haji Lal Khan, the arbitrator, on their Suzuki rickshaw to take me along. It is explained that I am all alone, poor and weak, while the complainant party is a big man power, physically, financially and politically strong and the, tatters had subjected me to physical violence whenever they so wished. ' Accused Ghulam Qasim, Khadim Hussain and Muhammad Aslam never participated the Punchayat and neither there was thus any question of their leaving the Punchayat with me. As above stated, complainant Haji Ahmad Khan, along with Haji Abdul Majeed Heraj, had come on a motorcycle at the Pully of Khan beg Gagrana and they had passed by us seeing us repairing the motorcycle. Some time after them, there had come at the spot accused Muhammad Ramzan with P.W., Taj Mehmood and Ghulam Abbas Baloch with deceased Ghulam Farid. They stopped back at some distance from the Puny perceiving our presence at the Pully. P.W., Taj Mehmood that the man at the Pully were there to give him beating. Since it was a dark night and there was at all no light of any sort at the site, nothing was visible even from the shortest distance. Accused Muhammad Reiman came towards us. Considering that he had come with my opponents and was thus coming to attack us, Ismail son of Shahadat gave him a Danda blow, which rested on the eye brow of his left eye. Accused Raman fell down on the metalled road after having been injured and got unconscious. ' Thereafter P.W., Taj Mehmood and deceased Ghulam Farid seized me from neck and, felled me down and started causing to me the injuries. P.W., Taj Mehmood, with the view to kill me started pressing my throat. I entreated Habib son of Lal and Ismail s/o Shahadat to save my life, who with the only intent of rescuing me gave certain Danda blows to Taj Mehmood and Ghulam Farid and thus saved me. On my hue and cry, there came many persons; men and women, from the abadi. Of Khan Beg Gagrana, who interened?. P.W., ' Taj Mehmood and, deceased Ghulam Ghulam Farid had seriously injured under:- me and caused injuries on my head, throat and other parts of my.. Body. The police did not get me medically examined despite my repeated requests, all of which was on the pressure of the complainant. I did not cause my injury either to deceased Ghulam Farid or P.W., Taj Mehmood because I was already too incapacitated and helpless, on account of my injuries. I had got neither any hatchet nor anything else.. ' Neither accused Ghulam Qasim nor accused Khadim Hussain and Muhammad Aslam participated the Punchayat nor they came with me. There was thus absolutely no question of their
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being, present with me at the 'scene of occurrence. ' Accused Ghulam Qasim happened to come at the place of occurrence after the incident was over after getting free from his day's work in his land, while on way back home to his house in Chak No,480/GB. ' The complainant party tried, with the connivance of the police, to shift the venue of crime from the Pully of Khan Beg Gagrana to the Pully near the Dhari of Allah Ditta son of Salehoon, Gagrana, dishonestly and with mala fides and ulterior ends, which speaks of the falsity of their version as put up in the case and fiction and concoction set-right from the very outset. ' To the question as to why the case against him and why the P.Ws. Deposed against, The complainant party has incorrectly, unjustly and baselessly involved'me in the case with mala fides and nefarious ends for the sole reason of being cousin of accused Ghulam Yasin. In this connection the police joined hands with the complainant -party for ulterior motives. Complainant Haji Ahmad Khan is the real father and P.W., Taj Muhammad is the real maternal uncle of deceased Ghutam ,Farid. Both of them closely related inter se. They are interested and partisan and inimical witnesses. They have perpetrated blatant falsehood and lie in the case to holster up and sustain their concocted story in the case. They are inimical toward us. No independent witness has been examined in the case. I was not present in the Punchayat, and neither knew anything. There was thus no question of my going away from the Punchayat in The Company of accused Ghulam Yasin. I was not present at the eventful time at the place of…
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