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Petitioner: NASIR ABBAS VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Sayyed Mazahar Ali Akbar Naqvi, Aalia Neelum Title: NASIR ABBAS vs The STATE Case No.: Criminal Appeal No.1660 and Capital Sentence Reference No.40-T of 2010 Date of Judgment:2013-12-16 Reported As: 2015 YLR 629 Result: Appeal allowed
JUDGMENT
JUDGMENT ' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Nasir Abbas son of Muhammad Ashraf, caste Raja, resident of Chak No.26/JB, Police Station Nishatabad, Faisalabad, appellant, was involved in case FIR No.537, dated 20-8-2009, offence under section 302, P.P.C., read with section 7 of the Anti- Terrorism Act, 1997 registered at Police Station Raza Abad, Faisalabad and was tried by Raja Muhammad Arshad, learned Judge, Anti-Terrorism Court, Faisalabad. The learned trial Court seized with the matter in terms of judgment dated 16-6-2010 convicted and sentenced the appellant as under:-- {{TABLE}} Under section 302(b), P.P.C., for committing Qatl-i-amd of Mst.Kinza Bibi sentenced to death with direction to pay.. Rs.5,00,000 as compensation tote legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Mst. Kinza Bibi and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof to undergo S.I. For six months. Under section 302(b), P.P.C., for committing Qatl-i-amd of Mst. Wejiha Bibi sentenced to death with direction to pay Rs.5,00,000 as
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compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Mst. Wajiha Bibi and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof to undergo S.I. For six months. ' Under section 302(b), P.P.C., for committing Qatl-i-amd of Mst. Rehena Bibi sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Mst. Rehana Bibi and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof, to undergo S.I. For six months. Under section 302(b), P.P.C., for committing Qatl-i-amd of Mst. Mehreen Bibi sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Mst. Mehreen Bibi and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof, to undergo Si. For six months. Under section 302(b), P.P.C, for committing Qatl-i-amd of Muhammad Yousaf sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Muhammad Yousaf and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof, to undergo SI for six months. Under section 302(b), P.P.C., for committing Qatl-i-amd of Muhammad Shehzad sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Muhammad Shehzad and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fire and in case of default in payment thereof, to undergo S.I. For six months. Section 302(b), P.P.C., for committing Qatl-i-amd of Muzammil Ali sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Muzammil Ali and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and, in case of default in
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payment thereof, to undergo S.I. For six months. Under section 302(b), P.P.C., for committing Qatl-i-amd of Naveed sentenced to death with direction to pay Rs.5,00,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo S.I. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Naveed and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof, to undergo S.I. For six months. Under section 302(b), P.P.C., for committing Qatl-i-amd of Tajammal Ali sentenced to death with, direction to . Pay Rs.50,000 as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in case of default in payment thereof, to undergo Si. For six months. Under section 7(a) of the Anti- Terrorism Act, 1997, for committing Qatl-i-amd of Tajammal and causing terrorism sentenced to death with direction to pay Rs.5,00,000 as fine and in case of default in payment thereof to undergo S.I. For six months. {{TABLE}} ' Feeling aggrieved by the judgment of the learned trial court, the appellant impugned the same by way of filing Criminal Appeal No.1660/2010 while the learned trial court forwarded Capital Sentence Reference No.40-T/2010 for confirmation of death sentence inflicted upon Nasir Abbas/convict in terms of section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, these are being disposed off through consolidated judgment. 3. Prosecution story as contained in the FIR (Exh.PA) lodged on the statement (Exh.PA) of Asghar Ali son of Mehr Din caste Ansari, House No.842/D, Ghulam Muhammad Abad, Faisalabad (PW-12) is that he is resident of Makka Chowk and labourer by profession. On 19-8-2009 at about 10:00 p.m., the complainant along with Muhammad Tariq son of Muhammad Iqbal, caste Khilji, resident of Civil Quarters, Ghulam Muhammad Abad and Javed son of Abdul Rasheed, caste Rajput, resident of Noori Chowk, House No.1199/D, Ghulam Muhammad Abad, went to the house of his sister namely Shamshad Akhtar alias Rehana Chaudhry situated at Kaleem Shaheed Colony No.1 and remained busy in talking for some time. Subsequently the complainant along with Muhammad Tariq and Javed slept in the baithak while Mst. Rehana Chaudhry (sister of the complainant), Muhammad Yousaf (behnvai of the complainant), Tajammal, Muzammal (bhanjas of the complainant), Kinza and Wajeeha (bhanjees of the complainant) and Naveed (servant of the house) slept in their rooms. Mehreen Bibi (bhanji of the complainant) slept in another room and Shehzad (servant) slept at their rooftop of the house. On the morning of 20-8-2009 at 5:20 a.m. Someone knocked at the door on which the complainant along with Javed woke up and the complainant opened the door and Nasir Abbas son of Muhammad Ashraf, caste Raja, resident of Chak No.26/G.B. Nishat Abad, damad of sister of the complainant while brandishing pistols in his both hands entered the house and went towards the room and resorted to indiscriminate firing with his pistols due to which Mst. Rehana Chaudhry, Muhammad Yousaf, Tajummal, Muzammal, Naveed and Wajiha received serious injuries and succumbed to the same while Kinza Bibi was seriously injured. Nasir Abbas went to the other room of the house where while making firing he committed the murder of Mahreen Bibi, bhanji of the complainant. In the meanwhile Shehzad servant of the house on hearing the noise of firing stepped down the stairs and he too, on receipt of fire shots made by Nasir Abbas, died at the spot. As per contents of the FIR, besides the complainant the occurrence was witnessed by Javed and Muhammad Tariq in the light of bulb erected in the house. The accused Nasir Abbas while making firing and brandishing his pistols; thereby creating panic
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among the public at large, succeeded in fleeing away from the place of occurrence. Kinza Bibi injured was shifted at Allied Hospital for her medical treatment. ' Motive behind the occurrence as disclosed in the FIR was that at the time of contracting Nikkah, the accused had promised to provide a house and maintenance allowance, which he didn't fulfil and due to this reason the spouses were not on good terms and on account of this grudge the accused Nasir Abbas committed the murder of Rehana Chaudhry, Muhammad Yousaf Tajammal, Muzammal, Wajiha, Naveed, Mehreen and Shehzad and inflicted severe injuries to Kinza. 4. On receipt of information regarding the occurrence, Shaukat Ali, S.I. (P.W.5) along with other police officials proceeded to the place of occurrence; where he recorded statement of the complainant and after endorsing police karvai transmitted the same to the Police Station for registration of formal FIR. ' After lodging the case, investigation was entrusted to Hamid Javed Ali, S.I.(P.W.16), who visited the place of occurrence prepared injury statement (Exh.PH) and inquest report (Exh-PJ) of Mst. Wajiha Bibi, injury statement (Exh.PL) and inquest report (Exh.PM) of Mst. Rehana, injury statement (Exh.PO) and inquest report (Exh.PP) of Mst. Mahreen, injury statement (Exh.PR) and inquest report (Exh.PS) of Muhammad Yousaf, injury statement (Exh.PU) and inquest report (Exh.PV) of Shehzad, injury statement (Exh.PX) and inquest report (Exh.PY) of Muzammal, injury statement (Exh.PAA) and inquest report (Exh.PBB) of Naveed, injury statement (Exh.PDD) and inquest report (Exh.PEE) of Tajammal Ali. Thereafter, the Investigating Officer secured bloodstained earth from the place where Mst. Kinza received injuries (Exh.PFF), and also from the place of murders of Tajammal (Exh.PGG), Naveed (Exh.PHH), Muzammal (Exh.PJJ), Mst. Mahreen (Exh.PKK), Mst. Wajeeha (Exh.PLL), Mst. Rehana (Exh.PMM), Shehzad (Exh.PZZ) and Muhammad Yousaf (Exh.PAAA). The Investigating Officer dispatched the dead bodies to mortuary for autopsy. From the spot, the Investigating Officer also collected nineteen crime empties of pistol .30-bore (P-26/1-19) and took into possession vide recovery memo Exh.PWW. He also collected 5 mobile phones i.e. NOKIA (P-27), SIEMEN (P-28), SAMSUNG (P-29), NOKIA-6300 (P-30) and NOKIA-1110 (P-31) and took into possession vide recovery memo Exh.PXX. He also prepared rough site plan of the place of occurrence (Exh.PBB;. ' Thereafter, the Investigating Officer received information that Mst. Kinza Bibi had died in the hospital on which he visited Allied Hospital, Faisalabad and prepared injury statement (Exh.PE), inquest report (Exh.PF) and handed over the dead body to constable for escorting the same to mortuary. On the same day on receipt of spy information the Investigating Officer. Arrested Nasir Abbas appellant and obtained his physical remand. On the direction of the Investigating Officer and pointing out of the P.Ws., on 21-8-2009, Aurangzeb draftsman (P.W.15) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PYY and Exh.PYY/1), which was made part of the file. During the course of interrogation the appellant after making disclosure led to the recovery of pistols (P-15 and P-16) three bullets (P-17/1-3) and two magazines (P-18/1-2) which the Investigating Officer took into possession vide recovery memo Exh.PSS attested by the P.Ws. He also prepared rough site plan of the place of recovery (Exh.PSS/1). After the postmortem examinations on the dead bodies of Muzammal and Naveed deceased their last worn clothes shirt (P-1), patloon (P-2) and shirt (P-3) and trouser (P-4) respectively were produced before the Investigating Officer, which he took into possession vide recovery memos Exh.PB and Exh.PC. On the same day Muhammad Yaqoob 3178/C also produced last worn clothes of Shehzad, vest (P-5), shalwar (P-6), last worn clothes of Mehreen Bibi shirt (P-7) shalwar (P-8), last worn clothes of Wajiha Bibi shirt (P-9), trouser (P-10) and last worn clothes of Rehana Chaudhry dopatta (P-11), qameez (P-12), shalwar (P-13) and brazier (P-14) before the Investigating Officer, which he took into possession vide recovery memos Exh.PNN, Exh.PPP, Exh.PQQ and Exh.PRR respectively. Thereafter, Rafi Ullah 1292/HC (P.W.11) produced before the Investigating Officer last worn clothes of Tajammal deceased shirt (P-19), patloon (P-20), belt (P-21), last worn clothes of Yousaf deceased shalwar (P-
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22), bunyan (P-23) and last worn clothes of Kinza Bibi qameez (P-24) and shalwar (P-25), which he took into possession vide recovery memo Exh.PTT, Exh.PUU and Exh.P.W. Respectively. On reaching the Police Station, the Investigating Officer handed over the case property to Moharrar Malkhana for safe custody and onward transmission to the quarter concerned and recorded the statements of the prosecution witnesses in terms of section 161, Cr.P.C. 5. Having found the appellant guilty, the Investigating Officer prepared report under section 173, Cr.P.C. And sent the same to the court of competent jurisdiction. On 2-12-2009, the learned Judge, Anti Terrorism Court, Faisalabad, formally charge sheeted the appellant, to which he pleaded not guilty and claimed trial. Prosecution in support of its version produced as many as sixteen (16) prosecution witnesses. ' Occular account in this case has come out from the statement of Asghar Ali (P.W.12)/complainant. Shaukat Ali, S.I. (P.W.5) had recorded statement of the complainant on the basis of which Muhammad Arshad Farooq Head constable/ Duty Officer (P.W.1) had chalked out formal FIR Aurangzeb draftsman (P.W.15) had drafted scaled site plan of the place of occurrence while investigation in this case was conducted by Hamid Javed Ali, S.I. (P.W.16). ' Lady Dr. Humaira Parveen, (P.W.6) had conducted postmortem examination upon the dead body of Mst. Kinza Bibi and observed following injury on her person:-- "(1) A cut lacerated wound about 1/2 cm x 1 cm on the right side of the head, 7 cm away from the right eyebrow and 8 cm above the right ear. Right ear was also swollen and bruised. On deep dissection collection of blood under scalp in an area about 15 cm x 13 cm with depressed fracture of the right temporal and parital bones. Blood was collected under the menegies." ' After conducting the postmortem examination, the doctor rendered the following opinion:- "Death occurred due to neurogenic shock caused by injury No.1, which was inflicted by blunt means. Injury was ante-mortem and sufficient to cause death in ordinary course of nature. Viscera were sent to office of Chemical Examiner, Lahore to rule out any intoxication. ' Probable time that elapsed between injury and death was hospital death and between death and postmortem was within 12 hours." ' On the same day, P.W.6 also conducted postmortem examination upon the deed body of Mst. Wajeeha Bibi and observed following injuries on her person:-- "1.A) A firearm wound of entry measuring about 3 cm x 2 cm with inverted margins on the left side of the face, just one cm away from the left eye. 1.B) A firearm wound of exit on the back of the head, 6 cm behind the right ear measuring about 6 cm x 5 cm with brain matter coming out from the wound along with multiple pieces of fractured skull bone. (2) A lacerated (grazed) wound 6 cm x 3 cm on left forearm, muscle deep, 4 cm away from the wrist joint and 10 cm below the elbow joint. (3) A lacerated wound about 3 cm x 1 cm on the centre of the middle finger of right hand with fracture of middle phalynx." ' After the postmortem examination, the doctor rendered the following opinion:- "Death occurred due to extensive brain damage caused by injury Nos.1.A and 1.B, which were inflicted by firearm weapon. All injuries were ante-mortem and injuries Nos.1.A and 1.B were sufficient to cause death in ordinary course of nature. Visceras were sent to office of Chemical Examiner, Lahore to rule out any intoxication. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 24 hours." ' Lady Dr. Tanveer Zafar, Senior Demonstrator, Forensic Medicine Department (P.W.7) on 20-8-2009 had conducted postmortem examination upon the dead body of Mst. Rehana and observed following injuries on her person:--
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(1.a) A firearm wound of entry 1 cm x 1 cm with blackening and tattooing and colour of abrasion lies on the left eyelid in the centre just below the left eye-brow, enters the skull cavity damaging face bones and skull bones were fractured in pieces and exit via injury No. 1 .b. 1.B) A firearm wound of exit 2 cm x 2 cm with everted margins and brain matter and chip of bone present in the wound, lies on the back of head in the occipital bone in the centre and 10 cm away from back of right ear. 2.a) A firearm wound of entry 1 cm x 1 cm in the centre of apigastric region lies 1 cm away from mid-line, more towards left side, enters the abdominal cavity damaging the skin, muscles, left lobe of liver, right lung and chest cavity was full with blood. Fracturing 3rd thoracic rib from the back and exit via injury No.2.b. 2.b) A firearm wound of exit 1 cm x 1 cm with everted margins lies on the right back of chest. 3.a) A firearm wound of entry 1 cm x 1 cm with inverted margins and colour of abrasion on the outer side of left chest walls leis 8 cm below left armpit and 6 cm away from left breast, enters the chest cavity and damaging the 5th, 6th intercostals spaces, left lung, diaphragm, enters in the abdominal cavity and damaging transverse part of colon and exit via injury No.3.b. 3.b) A firearm wound of exit 1 cm x 1 cm with everted margins on the back lies 16 cm away from back bone." After conducting the postmortem examination, the doctor rendered the following opinion:- "In this case death occurred due to injuries Nos. 1.a, 1.b, 2.a, 2.b and 3.a, 3.b causing severe blood loss, leading to haemorrhagic shock. The injuries were ante-mortem, inflicted by firearm and sufficient to cause death in ordinary course of nature. Viscera were sent to office of Chemical Examiner, Lahore to rule out any intoxication. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to 24 hours." ' On the same day P.W.7 also conducted postmortem examination upon the dead body of Mst. Mehreen Bibi deceased and observed following injuries on her person:- "1.a, 1.b A firearm wound of exit and entry on the head entering from frontal bone and fracturing the skull, top of the skull bone was absent. Brain matter was seen." ' The doctor, after conducting the postmortem examination, rendered the following opinion:- "In this case death occurred due to injuries Nos.1.a, 1.b, causing heavy bleeding and brain damage inflicted by firearm. Injuries were ante-mortem and sufficient to cause death in ordinary course of nature. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was within 12 to 24 hours." ' On the same day Dr. Javaid Iqbal (P.W.8) had conducted postmortem examination upon the dead body of Muhammad Yousaf and observed following injuries on his person- "1.a) A firearm wound of entry 1 cm 1 cm just on the lobule of right ear on upper part of right side of the neck. 1.b) A firearm wound of exit 1 cm x 1 cm on the back of left ear on left side of the head. 2.a) A firearm wound of entry 2 cm x 2 cm just on front of right ear with burning and blackening. It is 3 cm from right eye-brow on right temporal area. 2.b) A firearm wound of exit 1-1/2 cm x 1-1/2 cm just in front of left ear, middle part on the left temporal area. 3.a) A firearm wound of entry 2 cm x 2 cm, it was 10 cm from right ear on top of right side of the head with blackening and burning. 3.b) A firearm wound of exit 2 cm x 1 cm, it was 5 cm from left ear on left side of the head. Skull was fractured in to many pieces.
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4.a) A firearm wound of entry 1 cm x 1 cm, it was 6 cm from midline and 13 cm from right nipple on right hypochondrium. 4.b) A firearm wound of exit 2 cm x 1 cm, it was 6 cm from left nipple and 15 cm from midline on left side of the chest." ' After conducting the postmortem examination, the doctor rendered the following opinion:-- "In my opinion injuries Nos.1, 2 and 3 were fatal, inflicted by firearm, severely damaged the brain tissue, which lead to neurogenic shock and death. Thus the stated injuries Nos.1, 2 and 3 individually and collectively were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours." ' On the same day P.W.8 also conducted postmortem examination upon the dead body of Shehzad deceased and observed following injuries on his person:- "1.a) A firearm wound of entry 1 cm x 1 cm just in front of upper part of right ear on right temporal area with blackening and burning. 1.b) A firearm wound of exit 2 cm x 1 cm, it is 3 cm back to the left ear on left back of head. 2.a) A firearm wound of entry, 1 cm x 1/2 cm, it is 4 cm above the left eye-brow on left front of forehead. Skull is badly fractured. 2.b) A firearm wound of exit 1 cm x 1 cm, it is 14 cm from left ear oft left side of back of the head." ' After the postmortem examination, the doctor opined as under:-- "In my opinion, in this case death occurred due to injuries Nos.1 and 2, inflicted by firearm, badly damaged the brain tissue, which lead to neurogenic shock and death. Thus the stated injuries Nos.1 and 2 individually and collectively were sufficient to cause death in ordinary course of nature. All the injuries were ante-mortem. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours." ' Dr. Javed lqbal (P.W.8) had further conducted postmortem examination upon the dead body of Muzammal deceased and observed following injuries on his person:-- "1.a) A firearm wound of entry 1 cm x 1 cm, it is just in front of left ear with blackening and burning. 1.b) A firearm wound of exit 1 cm x 1 cm, it is 3 cm from right eye and 4 cm in front of right ear on right temporal area. 2.a) A firearm wound of entry 1 cm x 1/2 cm just on inner angle of right eye with blackening and burning around it. 2.b) A firearm wound of exit 1 cm x 1 cm, it is 7 cm from left ear root of the left back of the head. 3.a) A firearm wound of entry 1 cm x 1 cm, it was 5 cm from midline and 7 cm from umbilicus at left hypochondrium. 3.b) A firearm wound of exit 2 cm x 1 cm, it was 10 cm from midline at same level on right hypochondrium. ' After conducting the postmortem examination, the doctor rendered the following opinion:- "In my opinion, in this case death was occurred due to injuries Nos.1 and 2, inflicted by firearm, which severely damaged the brain tissue and lead to neurogenic shock and death. The stated injuries were ante-mortem and injuries Nos.1 and 2 individually and collectively were sufficient to cause death in ordinary course of nature. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours." ' On the same day, the doctor conducted postmortem examination upon the dead body of Naveed deceased and observed following injuries on his person:-
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"1.a) A firearm wound of entry 1 cm x 1 cm, it was 4 cm from left eye;brow and 5 cm from left ear on left temporal area with blackening and burning. Left eye was also black due to the injury. 1.b) A firearm wound of exit 1 cm x 1 cm, it was 5 cm back and above to the right ear on left back of the head. 2) A firearm wound of entry 2 cm x 1 cm, it was 2 cm from root of right thumb on right half of the palm and exit wound 2 cm x 1/2 cm in between the index and middle finger of same hand." ' After the postmortem examination, the doctor opined as under:-- "In my opinion, death in this case occurred due to injuries No.1, inflicted by firearm, which severely damaged the brain tissue and lead to neurogenic shock and death. Both the stated injuries were ante-mortem. Injury No.1 was sufficient to cause death in ordinary course of nature. ' Probable time that elapsed between injuries and death was immediate and between death and postmortem was about 12 hours." '…
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