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Petitioner: MUNIR HUSSAIN and 3 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Rustam Ali Malik, Ali Nawaz Chohan Title: MUNIR HUSSAIN and 3 others vs THE STATE Case No.:Criminal Appeal No,l9-T, Criminal Revision No,26, Criminal Miscellaneous
JUDGMENT
Reported As: 2002 YLR 660 Result: Order accordingly Judgment JUDGMENT ' ALI NAWAZ CHOWHAN, J.---This judgment shall dispose of Criminal Appeal No,19-T, Criminal Revision No,26, Criminal Miscellaneous No,8-Q, and Murder Reference No,65-T of 2001. These arise because of the judgment dated 6-1-2001 handed down by Mr. Hussain Aziz Bhatti, Judge Special Court Anti-Terrorism No,1, Rawalpindi Division. 2. The appellants, Ahmad Din alias Nikku, Muhammad Waseem, Muhammad Gulzar and Muhammad Munir, have been convicted under section 302/34, P.P.C. For having murdered Mushtaq, Razzaq and Gulfraz alias Laftain and each one of them has been sentenced to death and fine of Rs,2,00,000 payable to the legal heirs of the deceased as compensation or in lieu thereof to undergo six months' rigorous imprisonment each. Ahmad Din alias Nikku and Muhammad Waseem appellants were also convicted under section 324 read with section 34, P.P.C. For launching murderous assault on Ishtiaq P.W. And were sentenced to 10 years' rigorous imprisonment each. Ahmad Din alias Nikku appellant was further convicted under section 324, P.P.C. For attempt to commit murderous assault on Liaqat P.W. And was sentenced to 10 years' rigorous imprisonment. He was also convicted under section 337A(i), P.P.C. For causing hurt to Liaqat P.W. And was sentenced to 2 years' rigorous imprisonment Ahmad Din alias Nikku and Muhammad Waseem appellants were additionally convicted under section 337-F(v), P.P.C. For causing injuries to Ishtiaq P.W. And were sentenced to 5 years' rigorous imprisonment. Ahmad Din alias Nikku, Muhammad Waseem, Muhammad Gulzar and Muhammad Munir appellants were also convicted under section 7 of the Anti-Terrorism Act, 1997 and were sentenced to death. All the appellants were given benefit of section 382-B, Cr.P.C. All the sentences were ordered to run concurrently. Murder Reference was
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also sent to this Court under section 374, Cr.P.C. For confirmation of death sentences of the appellants. 3. According to Liaqat Ali (P.W.1) who is an injured P.W. In this case and who lodged the complaint Exh.P.A: "On 4-4-1999, at about 10-30 a.m. In the area of village Kauntrili, near Kim Darbarwali, I along with my father Mushtaq, uncle Razzaq, uncle Laftain alias Gulfraz, brother Ishtiaq, Muhammad Asif and Mistri Saleem, after digging the foundation, were erecting the wall; at that time, saw Ahmad Din alias Nikku armed with double barrel gun. Waseem armed with single barrel gun, Gulzar armed with single barrel gun and Munir armed with 222 rifle, standing on the roof of Abdul Haq's house; Gulzar and Nikku made the Lalkara directing us to stop work, my father replied that 'we are erecting the wall on our land; on this, Nikki], made Lalkara that nobody should be spared and Nikku fired which hit my f they Mushtaq, Waseem fired the respective weapon which hit my uncle Razzaq, Gulzar fired with his respective weapon, which hit my uncle Laftain on left shoulder, unir fired with his respective weapons, which also hit my uncle Laftain, on right side of his chest, all the 3 injured fell down and died at the spot. Asif, to save his life, went behind the wall; I and Ishtiaq I my brother went towards the father when Nikku and Waseem fired together which hit my brother Ishtiaq; Gulzar fired which hit Mistri Saleem on left knee; again Nikku fired which hit me inside the left upper arm; again Munir fired 7/8 shots, but luckily hit nobody. After the firing, the accused managed to escape towards houses making the firing. On the ring the noise and fire shots, many women and men gathered at the place of occurrence including dies Majeed and Haji Inayat, with the help of aforementioned Haji Majeed and Haji Inayat, the dead b dies were taken to Civil Hospital. The motive behind the occurrence was that accused wanted tne passage om our land and my father was not willing to do so. Due to this, the accused persons has committed the murders and injured us." 4. The complainant was supporte by Ishtiaq (P.W.2) another injured P.W. And Asif Hussain (P.W.3). According to whom he had escaped the onslaught having t en shelter at the time of the occurrence. H is also a witness of recovery of blood-sta ned earth from three spots where each of the deceased fell (Exhs.P.B, P.0 and P.D). He is also a witness of the recovery of bl od-stained earth where Ishtiaq was injured as well as the place where Mistri Muhammad Saleem had fallen after receiving injuries (Exhs.P.E and P.F). However, Mistri Saleem has not appeared as a witness of the occurrence. May be because he did not like to involve himself in this case being an outsider. 5. Muhammad Saeed Inspector (P.W.20) was posted as S.H.O. Police Station Sadar, Jhelum. He received information about the occurrence and went to the DHQ Hospital Jhelum where he recorded the statement of the complainant Liaqat Ali. He then prepared ins injury statement Exh.P.E.E as well as the injury statement of Ishtiaq P.W. And Saleem Khan (Exhs.P.F.F and P.G.G) and sent them for their medico-legal examination. Whereafter he prepared the inquest report of the deceased Razzaq (Exh.P.H.H) and his injury statement Exh.P.H.H/2, the inquest report of Mushtaq Exl- i.P.J.J and his injury statement Exh.P.J.J/2 as well as the inquest report of the deceased Gulfraz alias Laftain Exh. P K K and his injury statement Exh.P.K.K/2. He deputed Mushtaq Hussain constable P.W. And Ansar Mehmood, constable P.W. To take these dead bodies to the mortuary and sent the complaint for the registration of the case. He later received medico-legal report and blood-stained clothes of Liaqat Ali injured delivered to him by Muhammad Arif vide. Memo. Exh.P.L as well as of Ishtiaq Ahmad and Saleem Khan vide memos. Exhs.P.K.L and P.J. He recorded the statements of Ishtiaq Ahmad and Saleem Khan injured in the hospital. 6. Subsequently, this Inspector went to the spot and prepared the rough site-plan Exh.P.L.L. He secured the blood-stained earth from the places where the deceased had received injuries and made these into sealed parcels (Exhs.P.B, P.0 and P.D) as well as place where Ishtiaq and Saleem received injuries (Exhs.P.E and P.F). There he also found blood-stained adzes and two towels
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belonging to Mistri Saleem (Exh.P.2, P.3 and P.1/1-2) which he took into possession vide memo. Exh.P.G. At the spot he found. 11 empty cartridges P.4 /1-11 of .12 bore gun recovered vide memo. Exh.P.H, 8 empties of .222 bore rifle P.5/1-8 were also recovered vide memo. Exh.P.I. 7. Later Ansar Mehmood and Muhammad Usman constables handed over to him the last worn clothes of the three deceased which he took into possession vide memo. Exhs.P.A.A, P.O and P.M. He also received the sealed parcel containing lead bullet (P.12) from the Doctor which he took into possession vide memo. Exh.P.N. He recorded the statements of Ansar Mehmood, Muhammad Usman' constables and Abdul. Majeed and Inayat Hussain P.Ws. He then searched for the accused who were not available and deposited the case property with the Moharrir. 8. On 6-4-1999, he took the draftsman to the place of occurrence and got prepared the site-plan Exh.P.M along with its photocopies Exhs.P.M/1 and P.M/2 while scribing his own notes in the red ink. 9. On 21-4-1999, he arrested Munir Hussain accused and got recovered a .222 rifle used in the commission of the offence vide memo. Exh.P.D.D. This happened on 27-4-1999. Along with the rifle (P.23), five live bullets P.24/1-5 and magazine P.25 were also recovered. Ghulam Abbas and Sabir Hussain P.Ws. Witnessed the recoveries. The rifle was sent to Moharrir for safe custody. He then procured warrants of arrest of the other three appellants Ahmad Din, Waseem and Gulzar which could not be executed because of their abscondence and later applied for issuance of proclamation against them. On 13-5-1999, when he received the final results of the injuries of Liaqat Ali, Ishtiaq and Saleem which had been kept under observation, he made relevant additions in the offence in the F.I.R. And submitted an incomplete challan while taking action under section 512, Cr.P.C. Against absconding accused. 10. On 21-5-1999, Manzoor Hussain and Fazal Hussain P.Ws. Appeared and stated before him about the involvement of Muhammad Din the acquitted accused in the conspiracy for the commission of the present occurrence. He, therefore, took action against him under section 109, P.P.C. And submitted the supplementary challan. 11. Subsequently, Ch. Mehdi Khan (P.W.21) took over the investigation. On 20-8-1999 he arrested the appellants Ahmad Din alias Nikku, Muhammad Waseem and Muhammad Gulzar when they were handed over to him by the Immigration Department on their return from abroad. He effected recovery of .12 bore double barrel gun from the house of Ahmad Din (P.17) which was taken into possession vide memo. Exh.P.Q in the presence of Muhammad Banaras and Muhammad Rafique P.Ws. Muhammad Guitar led to the recovery of .12 bore gun (P.16) which was taken into possession vide memo. Exh.P.P in the presence of Sarfraz rid Zulfiqar P.Ws. While Waseem on the same day also led to the recovery of .12 bore gun from his house (P.22) which was taken into possession vide memo. Exh.P.C.C. This recovery was witnessed by Muhammad Sarwar and Razak P. Ws. He handed over the recovered case properties to the Moharrir for safe custody in the Maalkhana and submitted incomplete challan against these appellants. 12.1. Masood Iqbal Medical Officer DHQ Hospital Jhelum (P.W.10) had conducted the autopsy on the dead bodies the three deceased in his case. Releve excerpts from his testimony are reproduce below in extenso. 12.2. In respect of Razak deceased relevant portion of his testimony is follows: "Following injures were found on the dead body:- (1) Lacerated wound 3/4 x 3/4" c.m. In forehead, right side (entry wound), blackening at edges present, crushing multiple bones and brain mattr wound reached to posterior . Of cranium from where a metall c particle recovered. (2) Lacerated wound 3/4 x 3/4" at left o mid of neck at back, edges inverted (wound of entry), blackening edges present. (3)Lacerated wound 1" x 1" in front of neck, at left side, everted edges (exit wound). (4) Lacerated wound 1" x 3/4" c.m., at left shoulder joint.
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' It traversed forward till lower part of left clavicle from where a metali particle recovered. Cranium and spinal cord: ' Scalp, skull and vertebrae; Fracture of frontal, right parietal, right temporal and occipital bones present. One metalic particle recovered from occipital portion of skull.. Brai matter and membrance cnishe , spinal cord not opened. ' Thorax: ' Thoraic cavity contained blood, blood vessels of left side of neck crushed. Rest of the organs were found healthy. ' Abdomen: ' Mouth and pharynx contained clotted blood; stomach contained semi digested food particles, small intestines contained gases and chyme, large intestines contained gases and faecal matter; bladder contained 50 cc of urine. Rest of organs healthy. ' According to the Doctor, all the injuries were anti-mortem in nature, caused by fire-arm weapon and the death was due to Injuries Nos.1, 2 and 3, which had damaged vital organs. Time between injuries and death was immediate. Exh.P.0 is the post-mortem examination report and Exh.P.U/1 is the pictorial representation of the Doctor. 12.3. Regarding the deceased Mushtaq Hussain relevant portion of the testimony is as follows:- "I found the following injuries on the dead body. (1) 1 x 1 c.m. Lacerated wound, behind left ear, making fractures of occipital bone, then base of skull reaches inside of right ear, from where a metal body was recovered. (2) 3/4 x 3/4 c.m. Lacerated wound, at left cheek goes to oral cavity damaging tongue , upper teeth and upper lip goes out at chin. (3) 3/4 x 1/2 c.m. Lacerated wound, 5 c.m. Left in back of left eye, goes out via left eye, damaging eye ball, in fracture of nasal bones. (4)3/4 x 1/2 c.m. Lacerated wound (entry wound) at tip of left shoulder joint. It pierced and reached at base of left clavicle from where a metalic particle recovered. (5) 1/2 x 1/2 c.m. Lacerated wound left fore-arm on lateral side. It went through and through, on upper part of medial side of left fore-arm. Cranium and spinal cord: ' Fractures of occipital bones and base of skull; membrance and brain matter crushed, spinal cord was not opened. ' Thorax ' Lungs have mettled appearance, heart contains no blood; rest of organs appear healthy. ' Abdomen: ' Mouth and pharynx contained clotted blood, orval cavity damaged. Stomach contained semi- digested food material; Small intestines contained gases and chyme. Large intestines contained gases and faecal matter. Bladder contained 30 cc of urine. Rest appear healthy: ' It was opined by the Doctor that alt the injuries were caused by fire-arm and were anti-mortem in nature. Death was due to Injuries Nos. 1 and 3 with attribution of other injuries, causing damage to vital organs. Time between injuries and death was immediate. His post-mortem report is Exh.P. V and Exh P V/1 is pictorial representation. 12.4. Regarding the deceased Gulfraz alias Laftain relevant portion of the testimony of the Doctor is as follows: "Following injuries were found: (1) 1/2 x 1/2 c.m. Lacerated wound, just below and left of right nipple; it traversed crushing heart and left lung making fracture of left 5th rib, then goes out. (2) 3/4 x 3/4 c.m. Lacerated wound at anterior axillary fold goes back crushing blood vessels exits at left scapular region.
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(3) 1 x 1 c.m. Lacerated wound anteriorly at left arm and goes out at left arm posteriorly. Cranium and spinal cord: ' Scalps and skull intact, vertabrae not opened. Brain and membrance were healthy, spinal cord not opened. ' Thorax ' Thoracic cavity full of blood, fracture of 5th left rib, plaeura congested, left lung perforated, pericardium and heart both crushed, no blood in it. Left axillary blood vessel crushed. Rest all healthy. ' Abdomen: ' Stomach contained semi digested food material. Small intestines contained gases and chyme; large intestines contained faecal matter. Bladder contained about 30 cc of urine. Rest of all appear healthy. ' According to the Doctor, all the injuries were caused by fire-arm. Death was due to Injuries Nos. 1 and 2 and these were antimortem in nature. Probable time between death and injuries was immediate. Exh.P.W is his post-mortem examination report and Exh.P.W/1 is his pictorial representation. 13. Dr. Shahid Maroof (P.W.11) of the DHQ Hospital Jhelum had examined Liaqat Ali injured P.W. And found the following injury on his person: "1. A fire-arm wound of entry on left upper arm, near left axilla, on the medial surface, measuring I c.m. x 1/2 c.m., corresponding hole on the Shirt present, marked, signed and handed over to police." ' X-Ray was advised. Report of the Radiologist showed that there was no bony lesion and his injury was declared simple in nature. Exh.P.X is his M.L.R. 14. The Doctor also examined Ishtiaq P.W. And found the following injuries on his person: "(1)Fire-arm wound of entry on right lower chest, 12 c.m. Below the nipple, measuring 1/2 c.m. 1/2 c.m. Lateral side, blackening and tatooing. (2) Fire-arm wound of entry on left lower chest lateral side, 9 c.m. Away from the nipple, measuring 1/2 c.m. x 1/2 c.m., no blackening and tatooing. (3) Fire-arm wound of entry on the medial side of fore-arm, measuring 1/2 c.m. x 1/2 c.m. In the middle portion, no blackening and tatooing. (4) Fire-arm wound of entry on the frontal surface of right fore-arm, about 4 c.m. Away and, belo to Injury No,3. No blackening and tatooing present." ' X-Ray was advised. According to the r port of the Radiologist, fracture was of mid haft of rignt radious and ulna, with me allic density. A foreign body fragment was se n in the X-Ray. Subsequently, according to the report of Surgical Specialist Rawalpindi dated 12-5-1999, Ishtiaq was operated for fire-arm injury and the following findings were given in the report: "That through and through tear in the liver. (2) Rent in the left dome of diaphragm. (3) Chest intubation left side of chest. ' Injuries Nos. 1 and 2 were declared as Jura Jaifa and Injuries Nos. 3 and 4 were declared . As Jura Ghair Jaifa Hashma caused by firearm. Exh.P.Y is his medico-legal report. 15. Fire-arm injuries were also suffered by Saleem Khan P.W. These were 7 in number including clinical fracture of the left lower leg. Exh.P.Z is the medico-legal report pertaining to him. 16. Dr. Khalid Javed (P.W.9) who is a Radiologist, came to support his X-Ray report Exh.P.R /1 regarding the injuries of Liaqat Ali, Exh.P.S/1-2 regarding the injuries of Saleem Khan and Exh.P.T/1-4 regarding injuries of Ishtiaq P.W. 17. Amongst the formal witnesses, Muhammad Arif (P.W.4) had taken the injured P.Ws., Saleem Khan, Liaqat Ali and Ishtiaq for their medical examination at the Hospital on 4-4-1999. Muhammad Usman (P.W.5) had escorted tne dead bodies of Razak and Gulfraz and had received the case
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properties from the Doctor which he handed over to the Investigating Officer vide memo. P.O. Abdul Majeed (P.W.6) had identified the three dead bodies. 18. Muhammad Akram (P.W.12) took three parcels of gun on 3-9-1999 to the office of the Forensic Science Laboratory Lahore which he delivered there intact. Muhammad Ansar (P.W.13) had escorted the dead body of Mushtaq to the mortuary. He received the case property after post- mortem examination and delivered this to the Investigating Officer on the same day that is 4-4- 1999 vide memo. Exhs.P.A.A and P.B.B. Talib Hussain constable (P.W.18) had taken three sealed parcels containing blood-stained earth and two parcels of empties for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory at Lahore which he deposited there intact. The parcels of empties were returned with an objection. Therefore, he deposited the parcels again on 15-4-1999. On 29-4-1999, he took the parcel of 222 rifle from Moharrir and deposited it at the Forensic Science Laboratory Lahore. Muhammad Saleem (P.W.19) had formally recorded the F.I.R. Exh.P.A/1 verbatim against the complainant Exh. P . A . 19. Sarfraz Ahmad (P.W.7) had witnessed the recovery of gun P.16 got recovered from Gulzar appellant vide memo. Exh.P.P. Muhammad Banaras (P.W.8) is a witness of recovery of .12 bore double barrel gun P.17 from the house of Ahmad Din on 29-8-1999 which was taken into possession vide memo. Exh.P.Q. Muhammad Sarwar (P.W.16) is a witness of the recovery of .12 bore gun 222 from the appellant Waseem which was taken into possession vide memo. Exh.P.C.C. Sabir Hussain (P.W.17) is a witness of the recovery of rifle 222 bore 'which was got recovered on 27-4-1999 by Munir Hussain, alongwith 5 live bullets P.24/1-5 and magazine P.25, which were taken into possession vide memo. Exh .P.D.D 20. In their statements under section 342, Cr.P.C. Case of the appellants except Ahmad Din was of denial. However, to the question if he had to say anything in his defence, Ahmad Din stated as follows: "I am innocent. I along with my family members owned plot in Khasra No,384, Chah Darbar Wala, which is also known as Khoo Khangawala before Khasra No,395. Khasra No,395 is owned by large numbers of persons including the deceased persons. The deceased persons are Gujar by caste, who are predominant tribe in this village and also in the adjoining villages. Where Jat by Caste are only few houses of the Jats in the village. The members of the National Assembly and Provincial Aisembly during the days of occurrence were Gujar by caste. The deceased persons along with injured P.Ws. In order to forcibly occupied our plot and started constructing a wall to which I intended on the ground that it was intended to be constructed on my plot. On my objection the deceased persons were collected at the spot. The deceased persons and their parties started firing. In order to save my life and honour of female of my family I also fired large numbers of persons and the injured P.Ws. Received injuries in the melee. I then falsely challaned in this case. None of the other accused, were present at the time of occurrence:" 21. None of the appellants appeared as their own witnesses nor did they produce evidence in defence., 22. Since a question arose before the trial Court with respect to the ownership of the fields where the occurrence had taken place, the learned trial Court appointed Malik Ghazanfar Awan Tehsildar Jhelum (C.W 2) for going to the spot and verifying the factual position at the spot. When he appeared as witness, he stated that the site-plan Exh.P.M.M was correct and was in accordance with the Revenue Record. His report is Exh.C.W.2/A which is in his hand while its pictorial representation is Exh.C.W.2/B, where with the help of yell w marker he has shown the place where the foundation had been dug by the complainant side. 23. Incidentally it may be mentioned t at Muhammad Idrees (C.W.1) was entrusted with warrants against the appellants Ahmad Din, Waseem and Gulzar which could ills be executed and later a
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copy of the proclamation against the said appellants was pasted by in on the door of their house in the village other copies elsewhere as required under law. 24. Although the appellants were charged for having caused injuries to Saleem P.W. But it appears that at the time of announcing of the judgment, this aspect of case was lost sight of by the learned trial Court and there is no appeal filed by this d to in this connection. 25. Learned counsel for the appellants begun his arguments by stating that no evidence has come on record with respect to the charge under section 7 of the Anti-Terrorism Act, 1997. That even under the provisions of section 302, P . P. C . , the learned trial Court could not have fined the appellants as there is no provision for fine under these provisions any more. That the provisions of section 544-A, Cr.P.C. Had never been invoked by the learned trial Court for such compensation. That anyway this wa a case between two private parties without any serious risk to public or section of the public and having taken place in the field although not far away from the Abadi was not aimed to disrupting civil life although this was a triple murder case but it arose on account of a dispute over the land and was a case falling purely under the provisions of Pakistan Penal Code. Therefore, it was not covered under the definition of Terrorism under section 6 of the Anti-Terrorism Act, 1997. As the contentions of learned counsel for the appellants had weight and have not been rebutted, we, therefore, are of the view that the charge under section 7 of the Anti-Terrorism Act has not been properly discussed by the learned trial Court nor is it established as such and we agree with the learned counsel for the appellants in this connection and the appellants are, therefore, acquitted of the charge. Under section 7 of the Anti-Terrorism Act, 1997. 26. With respect to the sentencing of fine, we also feel that this is not provided by law and, therefore, we set aside the order of the learned trial Court in this connection at the very outset. 27. It was the contention of learned counsel for the appellants that the witnesses of recoveries were closely related to the complainant side and were inimically, deposed against the appellants. But learned counsel for the appellants was unable to establish any such enmity showing the desire of the recovery witnesses to falsely prosecute the appellants in this case. They are related to the complainant party but this should not be the basis for discarding their testimony. 28. We also find that the weapons of offence which were recovered from the appellants, were found wedded with the empties recovered and the reports of the Forensic Science Laboratory borne on the file are Exhs.P.T.T and PUU which are in the positive and support the prosecutions case. Mere allegation ' about the enmity is never sufficient and the accusation are to the supported with strong evidence otherwise, such-like allegations would be easy to make and there will be no end to it. The cross-examination against these recovery witnesses has not brought forth anything cogent which may convince us that they were the subborred witnesses and had not witnessed the recoveries and had come forth because of their deep-rooted enmity against the appellants with the aspiration of prosecuting and punishing them. We feel that the recoveries were genuine although belated. In the case of the appellants Ahmad Din Gulzar and Waseem, it was so as they had absconded and the recoveries could only be effected on their arrest. 29. A lot was said…
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