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Petitioner: JAVAID ALI and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khawaja Muhammad Sharif, M. A. Shahid Siddiqui Title: JAVAID ALI and others vs THE STATE Case No.:Criminal Appeals Nos.151, 19, 108, 148 of 1999 and Murder Reference No.529
JUDGMENT
Reported As: 2007 YLR 2013 Result: Order accordingly Judgment JUDGMENT ' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No.151 of 1999 filed by Javaid Ali son of Nazar Muhammad, Ajlees Ahmad and Mushtaq Ahmad, Criminal Appeal No.108 of 1999 filed by Javed Iqbal, Tariq and Saghar alias Gulzar, all sons of Sanaullah, and Criminal Appeal No,19 of 1999 filed by Kafayat Ullah appellants. They were convicted and sentenced by learned Additional Sessions Judge, Gujranwala vide judgment dated 14-1-1999 as under: ' Saghir, Javed sons of Nazar Muhammad, Mushtaq and Ajlees ' Death on four counts and a fine of Rs.10,000 in default one year's R.I. Under sections 302/149, P.P.C. ' Javed Iqbal, Tariq and Kafayat Ullah ' Imprisonment for life on four counts with a fine of Rs.10,000 in default one year's R.I. Under sections 302/ 149, P.P.C. ' All the above named seven accused were also convicted under sections 379/149, P.P.C. And sentenced to two years' R.I. ' They were also convicted under sections 447/149, P.P.C. And sentenced to R.I. For three months each. ' Similarly, the seven accused were convicted under section 148, P.P.C. And sentenced to R.I. For two years. ' All the above named seven accused were directed to pay compensation to the tune of Rs.10,000 each to legal heirs of the deceased.
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' The benefit of section 382-B, Cr.P.C. Was extended in favour of Javed. Iqbal, Tariq and Kafayat Ullah. The sentences recorded against them were ordered to run concurrently. ' Murder Reference No.529 of 1991 for confirmation or otherwise of death sentence of Saghir, Javed sons of Nazar Muhammad, Mushtaq and Ajlees convict-appellants along with Criminal Appeal No.148 of 1999, Criminal Revision No.321 of 1999 as also Criminal Revision No.395 of 2005 shall also be disposed of through this single judgment. 2. Before proceeding with this matter further, we may state here brief resume of the case. After registration of the case, completion of the investigation, the learned Judge Punjab Special Court tried 21 accused for Speedy Trials No.IX, Gujranwala and the judgment was pronounced on 30-12- 1987. The F.I.R. In this case was registered against 21 persons nominated by Muhammad Anwar complainant. The police during the investigation of this case got discharged 9 accused named in the F.I.R. And instead challaned 11 persons not named in the F.I.R. And in this way, submitted challan against 23 persons, one of them Basharat Ali died before the said trial. The learned Judge at Gujranwala framed charge against 22 persons on 12-12-1987 and recorded the statements of 7 P.Ws. When the statement of Muhammad Yaqoob P.W.7 was being recorded, an application was filed by the complainant to summon 9 accused, got discharged by the police. Since these 9 accused were named by Muhammad Yaqoob eye-witnesses, therefore, they were summoned and after framing the charge against them recorded the remaining evidence and decided the case vide judgment dated 30-12-1987. 3. The matter went up in appeal and the High Court remanded the case to the trial Court vide judgment dated 23-7-1988, by which the trial Court was directed to recall and record the statements of P.W.1 to P.W.7, in the presence of accused summoned at the latter stage, giving them chance of cross-examination and defence evidence. The case was later on transferred to the Court of Judge Punjab Special Court for Speedy Trial No.1 at Lahore, with the same direction. The statements of above 7 witnesses were recorded. Accused were asked whether they wanted to add anything in their previous statements recorded under section 342, Cr.P.C. But they added nothing to it. Therefore, through judgment dated 19-1-1989, the case was decided by Khawaja Mahmood Ahmad, the then Judge for Speedy Trial No.1 at Lahore. Accused persons and the State/complainant went in appeal and this Court vide judgment dated 21-6-1993 passed Y in Criminal Appeal No.27 of 1989 set aside the conviction and sentence and remanded the case, which on remand was taken up by Khawaja Mahmood Ahmad, Judge Special Court for Speedy Trials to record statements of all the accused under section 342 as also under section 340(2), Cr.P.C. And proceed with the matter. 4. The trial Judge recorded statements of the accused and defence evidence, arguments were heard but in the meanwhile the Special Courts were abolished. The case was then entrusted to Sessions Judge Sialkot who in turn forwarded the same to Additional Sessions Judge Daska where charge was framed and fresh trial started. The complainant moved a transfer application to the trial Court, which was sent to this Court and finally the case was transferred to learned Additional Sessions Judge Gujranwala. During the trial Mehfooz Ahmad, Javaid Iqbal, Zulfiqar Ali, Shehbaz Ahmad, and Arshad did not appear before the Court, proceedings under sections 87/88, Cr.P.C. Were initiated against them and they were declared proclaimed offenders. It is also worth mentioning that after the registration of this case and pending trial, Munir, Zafar, Muhammad Anwar, Basharat and Muhammad Yousaf died. 5. During trial Muhammad Yaqoob an eye-witness of the occurrence filed Writ Petition No.8440 of 1998 before this Court with the grievance that the direction earlier given in Criminal Appeal No.27 of 1989 as also in Criminal Miscellaneous No.1548-M of 1993 has not been complied with and instead de novo trial has been started. This Court vide judgment dated 30-9-1998 observed that the direction given in Criminal Appeal No.27 of 1989 be complied with in letter and spirit. Thereafter the
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learned trial Court proceeded to decide the case vide judgment dated 14-1-1999, hence, this appeal. 6.. Occurrence in this case had taken place at 8-30 a.m. On 2-7-1985 within the' revenue estate of Mitranwali which is at a distance of 8 miles from Police Station Daska, District Sialkot while the matter was reported to the police by Muhammad Anwar at 1-00 p.m. On the same day and the formal F. I. R. Exh.P.W. Was recorded by Muhammad Khan S.-I./S.H.O. 7. Briefly stated the facts of the case as disclosed in the F.I.R. Exh.P.W. Are that Muhammad Anwar complainant (since dead) was present along with his brothers . Muhammad Sharif, Muhammad Rafique, Ghulam Rasool, Liaqat Ali, Muhammad Yaqoob sons of Allah Ditta, Mst. Bashiran Begum widow of Muhammad Rafique, Mst. Bashiran Begum wife of Muhammad Anwar, Zulfiqar Ali, Akbar All and Khan Muhammad at his Dera known as Dera Akbar Ali on 2-7-1985 at about 8-30 a.m.,when accused (1) Munir Ahmad (since dead) armed with rifle 7 MM, (2) Javaid Iqbal armed with hatchet, (3) Tariq armed with rifle 7 MM, (4) Gulzar Ahmad alias Sagheer armed with hatchet, (5) Muhammad Arshad armed with hatchet (all sons of Sana Ullah), (6) Mehfooz Ahmad armed with hatchet (P.0), (7) Kafayat Ullah armed with gun .12 bore (both sons of Muhammad Aslam) (8) Irshad Ahmad armed with .12 bore gun, (9) Ghulam Rasool armed with Sota;- (both sons of IChushi Muhammad), (10) Nazar Muhammad, (11) Latif (both sons of Taj Din) armed with Sotas, (12) Mushtaq Ahmad armed with carbine, (13) Muhammad Rafique armed with Sota (both sons of Taj Din), (14) Zafar Ahmad son of Ghulam Qadir (since dead) armed with. Rifle 7 MM, (15) Nafees Ahmad son of Muhammad Ashraf armed with .12 bore gun, (16) Muhammad Aslam son of Ghulam Nabi armed with Sota, (17) Imtiaz alias Bholo son of Mushtaq armed with Sota (18) Ajlees Ahmad son of Muhammad Ashraf armed with carbine, (19) Nazar Muhammad son of Fateh Ali armed with Sota, (20) Javaid Ali son of Nazar Muhammad armed with hatchet and (21) Muhammad Yousaf son of Muhammad Afzal armed with revolver (since dead) reached at the Dera. They all raised Lalkara and encircled the Dera. All of a sudden Munir Ahmad accused (since dead) made a fire shot with 7 MM rifle which landed on the right cheek of Muhammad Sharif (deceased). Then Zafar Ahmad accused (since dead) fired a shot with 7 MM rifle hitting Muhammad Sharif (deceased in this case) on the left side of his chin. The fire-shot made by Kafayat Ullah accused with .12 bore gun landed on the legs of Muhammad Sharif and he fell down. Thereafter Tariq accused fired a shot with .7 MM gun which hit on the right upper arm of Muhammad Rafique (deceased in this case). Accused Nafees Ahmad fired a shot with his .12 bore gun landing on the left ear of aforesaid Rafique and he too fell down. Now it was the turn of Muhammad Yousaf accused (since dead) who fired a shot with his revolver hitting on the right hand and finger of Ghulam Rasool (deceased in this case). Irshad Ahmad accused also fired a shot with his .12 bore gun hitting on right upper arm of aforesaid Ghulam Rasool. He also fell down. Now Mushtaq Ahmad accused fired a shot with his .12 bore carbine, which hit Khan Muhammad (deceased in this case) on his forehead. Ajlees accused issued three shots from his carbine, which hit on the legs of aforesaid Khan Muhammad and he also fell down, According to F.I.R. Javaid Iqbal accused inflicted a hatchet blow on the head of Muhammad Sharif deceased when he was lying on the ground. According to the complainant Gulzar alias Sagheer gave a hatchet blow on the left cheek of Muhammad Sharif deceased. Similarly Ghulam Rasool accused gave a Sota blow on the left side of buttocks of Muhammad Sharif deceased. Accused Nazar Muhammad attacked with Sota on the backside of Muhammad Shard. Arshad accused inflicted hatchet blow on the head of Muhammad Rafique (deceased in this case). Similarly, Javed son of Nazar Muhammad accused inflicted hatchet blow on the head of Muhammad Rafique. ' It was also alleged in the F.I.R. That Nazar Muhammad son of Taj Din caused Sota blow on the buttocks of Ghulam Rasool. Thereafter, Ghulam Rasool, Nazar Muhammad, Latif, Rafique all sons of Taj Din, Aslam Bholu and Nazar sons of Fateh Ali caused injuries with Sotas on the persons of
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Muhammad Sharif, Muhammad Rafique, Ghulam Rasool and Khan Muhammad. As a result of the injuries, Muhammad Rafique and Muhammad Sharif died at the spot while Ghulam Rasool and Khan Muhammad expired in the hospital. ' The motive alleged was that one Muhammad Sharif son of Muhammad Ghani sold, out 15 Acres of land in favour of Irshad etc. Akbar son of Muhammad Sadiq through his attorney Muhammad Yaqoob filed a suit for pre-emption. The suit was decided in favour of Akbar Ali. The complainant party through legal process got possession of the said land and the accused party bore a grudge against them due to success of Muhammad Yagoob. According to complainant, all the accused in furtherance of their common object committed the murder of Muhammad Sharif, Muhammad Rafique, Ghulam Rasool and Khan Muhammad. 8. Sub-Inspector Muhammad Khan (P.W.15) took over the investigation. He after recording of the F.I.R., proceeded to the hospital, moved an application, to the Medical Officer to the effect whether the injured were fit to make a statement but the answer was in the negative; from the hospital, the Investigator went to the place of occurrence, prepared inquest report Exh.PX of Muhammad Khan and that of Muhammad Sharif Exh.PY; he also prepared injury statements Exh.PX.1 and Exh.PY/1 respectively; he then inspected the spot in the presence of the witnesses; from there he took into possession the blood-stained earth from four different places vide memos. Exh.PR, Exh.PS, Exh.PT and Exh.PU; on receipt of information about the death of Ghulam Rasool in the hospital, the Sub- Inspector left for Civil Hosptial, Daska; prepared inquest report Exh.PZ, injury statement Exh.PZ/1 and started for the search of the accused. It was on 5-7-1985 that Khan Muhammad died in the hospital. His inquest report is Exh.PAA and injury statement Exh.PAA/1. Site plans with scale are Exh.PJ and Exh.PJ/1. Thereafter the investigation was conducted by Rai Muhammad Abdullah, Inspector (P.W.16). On 21-7-1985, he arrested Munir Ahmad, Javed, Iqbal, Saghir, Mahfooz and Zafar accused. During the course of interrogation, on 2-8-1985, Javed accused got recovered blood- stained hatchet P.6 from his haveli, which was taken into possession vide memo. Exh.PO. On the same day, Saghir accused led to the recovery of hatchet P.10 which was secured vide memo. Exh.PP. Similarly, on the same day, Mahfooz, accused got recovered hatchet P.11, which was secured vide memo. Exh.PQ. On 5-8-1985, Zafar, accused got recovered broken rifle P.12 which was secured vide memo.. Exh.P. Then on 8-8-1985, the investigator arrested Anwar, Basharat, Zulfiqar and Javed. Accused Anwar was also got medically examined. The accused during the course of investigation got recovered rifle P.13 which was secured vide memo. Exh.PCC. On the same day on the pointation of Muhammad Anwar accused got recovered Suzuki Pickup, which was taken into possession, vide memo. Exh.PDD. 7 and 8 (both real brothers) respectively furnished the ocular account. Dr. Mumtaz Ahmad Bhatti P.W.1 and Dr. Gui Nawaz P.W.2 examined the injured and also conducted post- mortem examination on the dead bodies of the deceased. The learned District Attorney tendered in evidence report of the Chemical Examiner (Exh.PEE, Exh.PEE/1), reports of the Serologist (Exh.PFF and Exh.PGG) and closed the case of prosecution. The accused in their statements under section 342, Cr.P.C. Pleaded false implication. After conclusion of the trial, (1) Nafees Ahmad, (2) Nazar Muhammad son of Fateh Ali, (3) Nazar son of Taj Din, (4) Muhammad Rafique, (5) Muhammad Latif, (6) Imtiaz alias Bholu, (7) Muhammad Aslam, (8) Irshad Ahmad and (9) Ghulam Rasool were acquitted while the above said seven appellants were convicted and sentenced as stated above. ' Sardar Muhammad Latif Khosa, Advocate for appellants who represents Ajlees Ahmad and Javed son of Nazar Muhammad, appellants 1 and 2 in Criminal Appeal No.151 of 1999 submits that both the appellants were found innocent during the course of investigation rather were got discharged by the police and against the said order of discharge, Criminal Miscellaneous No.236/Q of 1986 was filed before the High Court by Muhammad Anwar, complainant against Muhammad Yousaf and Nafees Ahmad accused and the petition before this Court was disposed of with the observation to file a private Complaint, if so advised but the learned trial Court also summoned Ajlees and Javed
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convict appellants along with seven others after recording statements of seven prosecution witnesses. ' Further submits that no recovery was effected from both the appellants. It is contended that according to F.I.R., Ajlees appellant was armed with a carbine and the shots fired by him hit on the leg of Khan Muhammad deceased but doctor P.W.l in cross-examination stated that the injuries on the person of the deceased Khan Muhammad on his leg being injuries 26, 27 and 28 were with bullet, learned counsel has also drawn our attention to page 35 of the paper book to submit that there were in all five injuries on the person of Muhammad Rafique (deceased) and that according to doctor who conducted postmortem examination on the dead body of deceased, Injuries Nos.l and 2 were individually and collectively were sufficient to cause death in the ordinary course of nature. ' Learned counsel submits that Arshad, convict appellant who was PO was arrested later on, tried and after conviction and sentence was sentenced to imprisonment for life for the same type of injury which was attributed to Javed son of Nazar Muhammad, convict appellant and he has filed Criminal Appeal No.395 of 2005. At this stage, Mr. S.M. Nazim, learned counsel for the complainant submits that notice for enhancement of sentence has been issue to Arshad, convict appellant. ' Coming to motive part of the case, learned counsel submits that both the appellants were not concerned with the motive; neither they were party to the preemption suit nor they were occupiers of the land. According to learned counsel, the appellants were falsely implicated being near relatives of Irshad son of Khushi Muhammad but said Irshad has been acquitted by the trial Court and appeal against his acquittal is pending and was ordered to be heard along with the appeals of convict appellants. Next submits that acquitted Irshad Ahmad had already handed over possession of the questioned land to the complainant party and in the proceedings of warrant of possession, Irshad son of Khushi Muhammad was present at the time of Dakhl and he had sworn an affidavit to the effect that he had not filed any appeal nor had obtained stay order. According to learned counsel, Irshad acquitted accused and his relations had no grudge or grouse against the complainant party and that in fact the occurrence had taken place in Khasra Nos. 115 and 116 and at the time of occurrence, the possession was with Munir appellant and that this was the motive which came to light during the course of investigation. Adds that defence of Munir and others appellants was that in fact the complainant party while armed with different weapons came at the spot in order to take forcible possession of Khasra Nos.ll5 and 116, so this occurrence took place. It is submitted that there are two sets of accused, one Munir and his relations including those 11 challaned by the police though not named in the F.I.R. And from one of the accused namely Anwar who got recovered gun vide memo. Exh.PCC belonging to Ghulam Rasool deceased and other Irshad and his relatives but they had no grudge so there was no question of their taking part in the occurrence. ' It is argued with vehemence that eye-witnesses namely Muhammad Yaqoob and Liaqat Ali, P.Ws. 7 and 8 were not present. According to learned counsel, Muhammad Yaqoob whose father had purchased, five acres of land and he was pursuing the suit for pre-emption for 11 years, so had Muhammad Yaqoob eyewitness been present at the time of occurrence, he should have been the main target of the assailants. Further argues that ' when there are 21 accused, some are armed with fire-arms, some with hatchets, it was very difficult rather impossible for the eyewitnesses to have stated as to whose fire or blow either with Sota or hatchet, landed on which specific part of the victims. Adds that according to record the dead bodies of Khan Muhammad, Ghulam Rasool and Muhammad Rafique deceased were found in the chari crop which was on man's height so it was not possible for the eye-witnesses to have witnessed the occurrence and give a video camera photography of the incident. It is argued that F.I.R. Was recorded after due deliberation and consultation, as such it cannot be treated'as a
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sacrosanct document. Elaborating his argument, learned counsel submits that Zulfiqar Ali, P.W.5 have stated before trial Court that F.I.R. Was recorded at the spot although according to whole case of the prosecution F.I.R. Was recorded at the police station. ' It is maintained that on the same set of ' evidence nine co-accused of the appellants, named in the F.I.R. And assigned specific roles, have been acquitted by the trial Court and there is no independent rather no corroboration to maintain conviction and sentence against the appellants. ' Concluding his submissions, learned counsel for the appellants submits that prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal. ' Mr. Muhammad Anees Khatana, Advocate representing Muhammad Arshad, respondent in Criminal Revision No.395 of 2005 to whom notice for enhancement of sentence has been issued and he has not filed any appeal against his conviction and sentence, submits that the appellant was found innocent during the course of investigation, no recovery was effected, he was not arrested by the police and he went away to Karachi and was arrested on 11-5-1991 and after conclusion of the trial, was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life vide judgment dated 7-3-2005. In this view of the matter, according to learned counsel, the respondent Arshad had remained in jail for 15 years and 10 months and there is expectancy of life and if at this stage, his sentence is enhanced from imprisonment for life to death, it would amount to double jeopardy which is not warranted by law., ' Learned counsel also submits that there is conflict between ocular account and the medical evidence qua the convict respondent Arshad inasmuch as according to F.I.R., Javed son of Nazar Muhammad, Arshad, present respondent and Mahfooz, singe acquitted, gave one injury each on the head of the deceased Muhammad Sharif but in fact there were two injuries with sharp edged weapon existing on the dead body. ' Syed Talib Haider Rizvi, Advocate representing Mushtaq appellant in Criminal Appeal No. 151 of 1999 as also Kafayat Ullah appellant in Criminal Appeal No. 19 of 1999 submits that Kafayat Ullah after having served out his full term of sentence, that is, Imprisonment for life, has been released from jail. ' So far as Mushtaq, convict appellant is concerned, it is submitted that according to F.I.R., the convict was while armed with a carbine fired a shot which hit on the forehead of Khan Muhammad, deceased. Learned counsel submits that his whole arguments hinge on a single sentence and that is if there is exaggeration even if in the statement of an injured eye-witness but there is some doubt with regard to veracity of such a statement, then for the safe administration of criminal justice, it is proper to insist on independent corroboration. For this proposition of law, he has relied upon PLD 1960 SC 387, PLD 1977 SC 413 and 1992 ,SCMR 96. According to learned Counsel, from the evidence on record, it is established that independent corroboration to the statements of the eye- witnesses namely P.Ws. 7 and 8 respectively is lacking in the instant case as the eye-witnesses are interested and inimical towards the appellants. ' Mr. S.M. Nazim, Advocate for the complainant assisted by Mr. S.D. Qureshi, Advocate for the State submits that Muhammad Yaqoob P.W.7 (complainant) is the person who transported Ghulam Rasool (deceased) in an injured condition to the hospital" and the name of P.W.7 finds mention in the relevant column of the MLR and also in the statement of the doctor who medically examined the injured. It being so, according to learned counsel, the presence of Muhammad Yaqoob (P.W.7) at the place of occurrence cannot by any stretch of imagination be denied. It is submitted that though both the eye-witnesses P.W.7 and 8 are real brothers inter se but they had no enmity or ill- will against the appellants. Learned counsel submits that it is wrong to get the impression that the dead bodies of the deceased were lying in chari crop which was a man's height. To support this argument, learned counsel has drawn our attention to page 78 of the paper book and also statement of Muhammad Yaqoob P.W.7 to submit that charri crop was of 2" height. Reference has
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also been made to page 100 of the paper book to submit that x in fact the field where the charri crop was of man's height was the place, from where the eye-witnesses witnessed the occurrence. ' With regard to motive part of the case, learned counsel has taken us to pages 289 and 292 of the paper book to submit that a perusal of Exh.PV/1 and Exh.PV/2 sufficiently shows that for all intents and purposes, the complainant party had taken the possession of the land as a result of preemption decree in their favour. A reference was also made to page 358 of the paper book which is an affidavit sworn by Irshad Ahmad accused (since acquitted) to the effect that appeal filed by him has been dismissed and neither he intends to file an appeal nor any appeal is pending. ' So far as Criminal Revision No.395 of 2005 in which notice was issued for enhancement of sentence to the respondent Arshad is concerned, learned counsel submits that fatal injury on the forehead of Khan Muhammad deceased was attributed to him and the reasons given by the trial Court for lesser penalty are alien to law and are not cogent one. According to learned counsel, Arshad respondent remained absconder for more than six years and was arrested in the year 1991 so nonrecovery of any incriminating article from him was natural. It is submitted that if the sentence of Arshad respondent .Is not enhanced, it would.Amount to giving him the premium of his misdeeds. ' While coming to the submission made by the defence counsel that at this stage when Arshad has already served out more than 15 years incarceration, to award him the sentence of death would amount to double jeopardy, learned counsel for the complainant has relied upon PLD 2006 SC 365. ' Both the…
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