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Petitioner: (1) Zaheer-ud-Din Babar and another (2)Sabir Hussain and another (3) Waris Baig (4) Waris Baig VS Respondent: (1) The State (2) Zaheer-ud-Din Babar and another
Court Name: Lahore High Court Judge(s): Raja Shahid Mehmood Abbasi, Abdul Sami Khan Title:(1) Zaheer-ud-Din Babar and another (2)Sabir Hussain and another (3)
Waris Baig (4) Waris Baig vs (1) The State (2) Zaheer-ud-Din Babar and another Case No.:(1) Criminal Appeal No.349 of 2010 (2) Criminal Appeal No.473 of 2010 (3) Criminal Appeal No. 511 of 2010 (4) Criminal Revision No.184 of 2010 (5) Murder Reference No. 50 of 2010 Date of Judgment:2016-01-24 Reported As: 2016 LHC 2304 Result: Appeal Dismissed Judgment Abdul Sami Khan, J:- Through this single judgment, we intend to decide Criminal Appeal No.349 of 2010 filed by Zaheer-ud- Din Babar and Dawood Baig, Criminal Appeal No.473 of 2010 filed by Sabir Hussain and Irshad Ali appellants against their conviction and sentences, Criminal Appeal No. 511 of 2010 filed by Waris Baig appellant (complainant) against the acquittal of Shehnaz Begum, Farah Sabir , Waqar Ali, Mazhar Baig and Ansar Ali respondents, Criminal Revision No. 184 of 2010 filed by Waris Baig petitioner (complainant) for enhancement of sentence and Reference sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to Zaheer-ud-Din Babar and Dawood Baig appellants, numbered as Murder Reference No.50 of 2010. All these matters have arisen out of one and the same judgment dated 31.05.2010, passed by learned Additional Sessions Judge, Jhelum, in case FIR No.132/2008 dated 03.08.2008 under Sections 302, 324, 337 A(I), 337 A(II), 337 F(I), 337 F(III), 337 F(V), 337 L(I), 337 A (II), 452, 148, 149 PPC, Police Station Mangla Cantt, District Jhelum, whereby Zaheer-ud-Din Babar , Dawood Baig, Sabir Huss ain and Irshad Ali appellants were convicted and sentenced as under:- Zaheer-ud-Din Babar appellant:- Under Section 302 (b) PPC read with Section 34 PPC to death for the murder of Mst. Azra with direction to pay compensation of Rs.1,00,000/- (Rupees one hundred thousand only) as envisaged under Section 544-A Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo 06- months S.I. Under Section 302(b) PPC read with Section 34 PPC for the murder of Mazhar Hussain to undergo Life Imprisonment with direction to pay compensation of Rs.50,000/- (fifty thousand only) as envisaged under section 544-A Cr.P.C. to the legal heirs of deceased and in default thereof to further undergo 06-months S.I.
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Under Section 324 PPC read with Section 34 PPC for attempt to commit murder (Qatl-e-Amad) of Asghar Ali as 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01 month S.I. Under Section 324 PPC read with Section 34 PPC for causing injury to Ali Raza in attempt to Qatl-e-Amd for 10 years R.I. alonwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01 months S.I. Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to murder (Qatl-e-Amd) as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01-months S.I. for causing firearm injury to W aris Baig. Under section 452 PPC read with Section 34 PPC for two years R.I. alongwith fine of Rs.5,000/- or in default of payment of fine to further undergo S.I. for one month. Dawood Baig appellant:- Under Section 302 (b) PPC read with Section 34 PPC to Death for the murder of Mazhar Hussain with fine Rs.1,00,000/- as compensation to the legal heirs of said deceased or in default of payment of compensation to further undergo S.I. for six months. Under Section 302(b) PPD read with Section 34 PPC for imprisonment for life for the murder of Mst. Azra deceased alongwith Rs.50,000/- (fifty thousand only) as compensation to her legal heirs or in default of payment of compensation to further undergo 06 months S.I. Under Section 324 PPC read with Section 34 PPC for attempt to murder (Qatl-e-Amd) of Asghar Ali as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01-month S.I. Under Section 324 PPC read with Section 34 PPC for causing injury to Ali Raza in attempt to Qatl-e-Amd by way of awarding punishment as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01 months S.I. Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to commit murder (Qatl- e-Amd) of Waris Baig as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01-month S.I. or in default of payment of fine to further undergo S.I. for one month. Sabir Hussain appellant:- Under Section 302(b) read with Section 34 PPC by way of awarding sentence of Imprisonment for Life for the murder of Mazhar Hussain with fine of Rs.50,000/- as compensation to the legal heirs of said deceased or in default of payment of compensation to further undergo SI for six months. Under Section 302(b) read with Section 34 PPC by way of awarding the sentence of imprisonment for life for the murder of Mst. Azra with fine of Rs.50,000/- as compe nsation to her legal heirs or in default of payment of compensation to further undergo S.I. for six months. Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to commit murder (Qatl- e-Amd) of Asghar Ali as 05 years S.I. alongwith payment of fine Rs.5000/- or in default of payment of fine to further undergo 01-months S.I Under Section 324 PPC read with Section 34 PPC for causing injury to Ali Raza in attempt to commit his Qatl-e-Amd by way of awarding the punishment as 05 years R.I. alongwith payment of fine Rs.5,000/- or in default of payment of fine to further undergo 01 months S.I. Under Section 324 PPC read with Section 34 PPC by way of awarding punishment for attempt to commit murder (Qatl-e- Amd) of Waris Baig as 05 years R.I. alongwith payment of fine Rs.5000/- or in default of payment of fine to further undergo 01 months S.I Under Section 452 PPC read with Section 34 PPC sentenced to two years R.I. alongwit h fine of Rs.5,000/- or in default of payment of fine to further undergo S.I. for one month. Irshad Ali appellant:- Under Section 302(b) PPC read with Section 34 PPC by way of awarding the sentence of imprisonment for Life for the murder of Mazhar Hussain with fine of Rs.50,000/- as compensation to the legal heirs of said deceased or in default of payment of compensation further undergo SI for six months.
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Under Section 302(b) PPC read with Section 34 PPC by way of awarding the senten ce to imprisonment for life for the murder of Azra deceased alongwith Rs.50000/- as compensation to her legal heirs or in default of payment of compensation to further undergo six months S.I. Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to commit murder (Qatl- e-Amd) of Asghar Ali as 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01 months S.I. Under Section 324 PPC read with Section 34 PPC for causing injury to Ali Raza in attempt to commit Qatl-eAmd by way of awarding the punishment as 05 years R.I. alongwith payment of fine Rs.5000/- or in default of payment of fine to further undergo 01 months S.I. Under Section 324 PPC read with Section 34 PPC by way of awarding the punishment for attempt to commit murder (Qatl- e-Amd) of Waris Baig as 10 years R.I. alongwith payment of fine Rs.10,000/- or in default of payment of fine to further undergo 01 months S.I. Under Section 452 PPC read with Section 34 PPC sentenced to two years R.I. alongwit h fine of Rs.5,000/- or in default of payment of fine to further undergo S.I. for one month. All the accused persons/appellants were extended benefit provided under section 382-B Cr.P.C. and all the sentences awarded to the appellants/convicts shall run concurrently . 2. The prosecution' s case unfolded in the FIR (Ex.PJJJ) got lodged by Waris Baig complainant (PW-16) is that he was present in the house of his uncle namely Asghar Hussain alongwith Asghar Hussain, Ali Raza, Mst.Razia Begum, Khyzar Husain and Jahangir Khan when at about 9.00 p.m. Sabir Husain armed with hatchet, Zaheer-ud-Din armed with 12 bore gun, Dawood Baig armed with 12 bore gun, Irshad Ali armed with 30 bore pistol, Waqar Ali armed with 30 bore pistol, Mazhar Baig armed with Danda, Ansar Qureshi armed with Danda, Mst. Shahnaz Begum empty handed, Mst. Farah empty handed alongwith three unknown persons in furtherance of their common object reached in front of gate of Asghar Hussain' s house. Sabar Hussain, Mst. Shehnaz Begum and Mst. Farah raised lalkara that they will teach them a lesson for pelting stones on the women and entered into the house. Zaheer-ud-Din accused made two consecutive fires shots with 12 bore gun which hit Asghar Hussain on his both legs and different parts of his body . Irshad Ali accused made three consecutive fires from his pistol on Ali Asgh ar which hit him on his head and shoulder who fell down after sustaining serious injuries. Then Zaheer-ud-Din Babar accused made a straight fire with his 12 bore gun on Ali Raza which hit him on the knee of left leg. Then Zaheer-ud-Din made a fire shot with his gun 12 bore which hit Mst. Razia Begum on her head, left thigh and fingers of left foot. When the complainant tried to lift Asghar Hussain, Irshad Ali accused made fire at him with 30 bore pistol which pierced through his right foot. The accused dragged and took the injured persons in the street and on the alarm Mst. Munawar Bibi, Arif Baig, Mst.Azra Bibi and Muhammad Ali reached at the spot. Whereupon Irshad Ali accused fired from his pistol 30 bore on Mst. Munawar Bibi which hit on her back. Then Zaheer-ud-Din Babar accused made two consecutive fires with 12 bore gun on Arif Baig father of the complainant which hit him on his both legs, then Dawood Baig accused made two consecutive straights fires on Muhammad Ali which hit him on his right leg and right knee, then Zaheer-ud-D in Babar accused made a fire with 12 bore gun on Mst.Azra Bibi which hit her on her right knee. Meanwhile Mudassar Hussain, Javed Khan, Mst. Fouzia Jehangir , Mst.T ahmina Mughal, Mst. Mussarat Shaheen, Mst. Safia Begum, Mst. Zohra Kalsoom and Mst. Maimoona Mughal also reached at the spot and Zaheer-ud-Din Babar , Dawood Baig, Irshad Ali and Waqar Ali accused persons made fires on them with their respective weapons who also sustained injuries. Mazhar Baig, Ansar Qureshi and three unknown persons also inflicted Danda blows on the injured persons. Meanwhile Mazhar Hussain who came in the street from the side of the house of Mansoor Ali Qureshi and asked the accused as to why they have committed such a brutal act, whereupon Sabar Hussain raised lalkara that this persons should not go alive. Then Dawood Baig made a straight fire from 12 bore gun which hit him on front of his belly who fell down, Sabar Hussain inflicted a hatchet blow on him which hit him on right side of his head. The accused while firing and raising lalkara fled away from the spot. The complainant also came to know that Mst. Nasreen Akhtar and Mst. Andaleeb also had sustained injures due to the firing of the accused. Motive behind the occurrence was that two days before the occurrence, an altercation took place which resulted into stone pelting between the women folk of both the sides on dispute of drain course and the complainant and Asghar Hussain cursed the women folks of the accused side and due to that grudge the accused with their common object made a
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murderous assault on the complainant party . Mazhar Hussain succumbed to the injuries on the way to hospital and later on injured Azra Bibi also succumbed to the injuries. 3. After registration of FIR, investigation of the case was conducted by Muhammad Bashir S.I. (PW-24) and after completion of the same, report under section 173 Cr.P.C. was accordingly submitted in the learned trial Court for initiation of regular trial. On commencement of trial, after observing legal formalities as provided under the Code of Criminal Procedure, 1898, learned trial Court framed charge against the accused under Sections 302, 452, 324, 148, 149 PPC on 26.10.2009 to which they pleaded not guilty and claimed a trial. 4. To substantiate its version at the trial, the prosecution produced as many as twenty six witnesses during trial before the learned trial Court. Ocular account was furnished by Waris Baig complainant (PW.16), Asghar Hussain (PW.19), Ali Raza (PW.20. Muhammad Bashir S.I. (PW-24) is the investigating officer. He testified about the investigation conducted by him. The medical evidence was furnished by Dr. Khalid Radiologist (PW.1), Dr. Anjum Riaz (PW.2) who on 3.08.2008 medically examined Asghar Hussain, Ali Raza, Muhammad Ali, and Mudassar Hussain. Dr. Zubair Khurshid (PW.8) medically examined Mst. Nasreen Akhtar . Dr. Adeela Kanwal (PW.9) medically examined Mst. Azra, Mst. Zohra, Mst. Razia Begum, Mst. Mehemona Azmat, Mst. Musarat Shaheen, Mst. Munawar Begum, Mst. Fouzia Jahangir and after the death of Mst. Azra Bibi she conducted post mortem on the dead body of Mst. Azra Bibi deceas ed. Dr. Fiaz Ahmad Malik (PW.11) medically examined Waris Baig, Muhammad Arif, Javed Iqbal. Dr. Fouzia Bajwa (PW.17) medically examined Mst.T ahmina Bibi on 03.08.2008. Dr. Hassan Ali (PW.18) conducted the post mortem on the dead body of Mazhar Hussain on 3.08.2008. Rest of the prosecution witnesses are more or less formal in nature. After tendering in evidence the report of Chemical Examiner (Ex.PFFFF), report of Serologist (Ex.PFFFF/1), report of Chemical Examiner (Ex.PGGGG), report of Serologist (Ex.PGGGG/1) and that of the Forensic Science Laboratory (Ex.PHHHH), the prosecution closed its evidence. 5. The appellants in their statements recorded under Section 342 Cr.P.C. professed their innocence and pleaded false implication in the case. Neither they opted to get record their statements under Section 340(2) Cr.P.C. in disproof of allegations leveled by the prosecution against them, nor they produced any defence evidence. 6. At the end of trial, after thrashing entire evidence and evaluating the arguments advanced by learned counsel for the parties in support of their respective versions, learned trial Court proceeded to convict and sentence Zaheer-ud-Din Babar , Dawood Baig, Sabir Ali and Irshad Ali appellants as mentioned in paragraph No.1 of this judgment, whereas Mazhar Baig, Ansar Ali, Waqar Ali, Mst.Shehnaz Begum, Mst. Farah Sabir co-accused were acquitted of the charge by the learned trial Court and the co-accused Faisal Mehmood, Nadeem Abbas and Muhammad Sohail were acquitted on the basis of compromise. 7. Learned counsel for the appellants, in support of their appeals, submits that the appellants are absolutely innocent and they have been involved in this case with malafide intention and ulterior motives; the complainant and the alleged eye witnesses were not present at the spot and they have been manufactured by the prosecution only to create eye witness account against the appellants in the murder of Mazhar Hussain and Azra Bibi deceased: there are material contradictions between the statements of eye witnesses recorded before the trial Court and the medical evidence; the motive set up in FIR has not been proved by the prosecution during trial, the complainant has effected compromise with three accused and also recorded his statement regarding compromise with said accused during trial; so he must suffer; adverting to appeal against acquittal and criminal revision for enhancement of sentences of the appellants, learned counsel submits that the prosecution has failed to prove its case beyond any shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence, so the appellants deserve clean acquittal and the appeal against acquittal as well as criminal revision deserve dismissal. 8. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes the submissions made by learned counsel for the appellants and submits that appellants while armed with deadly weapons construed unlawful assembly in prosecution of their common object launched murderous assault upon the complainant party , caused murder of two persons Mazhar Hussain and Mst. Azra Bibi deceased and also injured Waris Baig complainant, Asghar Hussain, Ali Raza, Muhammad Ali, Mudassar Hussain, Mst. Nasre en Akhtar . Mst. Zohra, Mst. Razia Begum, Mst. Mehemona Azmat, Mst. Musarat Shaheen, Mst. Munawar Begum, Mst. Fouzia Jahangir , Muhammad Arif, Javed Iqbal and Mst.T ahmina Bibi; the matter was reported to the police within shortest possible time, which excluded the element of deliberation and consultation; appellants are named in promptly lodged FIR with specific role and the roles
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attributed to them are borne out from medica l evidence; the eye witness account is consi stent against the appellants, that is duly corroborated by the medical evidence and apart from confidence inspiring evidence of the eye witnesses, there is strong corroborative evidence on the file of this case in the shape of weapons of offence recovered on the pointing out of appelalnts and the report of Forensic Science Laboratory suggests that the empties shown to have been recovered from the place of occurrence match with the shot gun recovered from appellants Dawood Baig and Zaheer-ud-Din Babar . Waris Baig complainant (PW-16), Asghar Ali (PW.19) and Ali Raza (PW.20) are injured witnesses and the injuries on their persons prove that they were present at the time of occurrence and inspite of lengthy cross-e xamination, the defence failed to demolish/dislodge their presence at the spot; the accused have not brought on record any material showing malafide or ulterior motive of the eye witnesses so as to establish that they have made false statements against the accused; the motive part of the prosecution case is also proved through the statements of eye witnesses and suggestion on complainant that the complainant party had abused women of accused party and for that reason the occurrences took place; the prosecution case stands proved from all corners against the appellants; substitution of the appellants for the real culprits is rare phenomena and it cannot be imagined that one can involve innocent persons in such a heinous offence by letting of the real culprits. While arguing on appeal against acquittal, learned counsel for the appellant/complainant contends that Mst. Shahnaz Begum, Mst. Farah Sabar , Waqar Ali, Mazhar Baig and Ansar Ali respondents are named in FIR with specific roles, which is clearly borne out from medical evidence, but the learned trial Court has acquitted them on conjectures and surmises, which practice adopted by the learned trial Court is absolutely against the norms of criminal justice and the commands of law; the prosecution has successfully proved its case against the appellants as well as the acquitted co- accused, so while maintaining the convic tion of Zaheer-ud-Din Babar , Dawood Baig, Sabir Hussain and Irshad Ali appellants, the sentences of imprisonment for life awarded by the learned trial court to Sabir Hussain and Irshad Ali appellants be enhanced to death penalty , murder reference be answered in affirmative and the amount of compensation imposed by the learned trial court on them be also enhanced. Similarly , Mst. Shehnaz Begum, Mst. Farha Sabar , Waqar Ali, Mazhar Baig and Ansar Ali respondents be also convicted and sentenced in accordance with law . 9. We have considered the arguments advanced by learned counsel for the appellants, learned Deputy Prosecutor General and learned counsel for the complainant and have also scrutinized the entire record with their valuable assistance. 10. According to the narrations of FIR (Ex.PJJJ), the occurrence took place at about 9.00 a.m. After the occurrence, Mazhar Hussain and Mst Azra Bibi deceased alongwith other injured PWs were being shifted to District Headquarter Hospital Jhelum but Mazhar Hussain succumbed to the injuries on the way to hospital. On receipt of information about the occurrence, Muhammad Bashir S.I. (PW-24) reached at DHQ Hospital, Jhelum, where he recorded statement under Section 154 Cr.P.C. (Ex.PMMM) of Waris Baig complainant (PW-16) on the same day at 01.00 p.m. and forwarded the same to Police Station Mangla Cantt District Jhelu m, situated at a distance of 13 kilometers from the place of occurrence. Resultantly , FIR (Ex.PJJJ) was chalked out at the police station at 01.40 p.m. Although there is a delay of about four hours and forty minutes in reporting the matter to the police, yet the fact remains that after the occurrence the deceased as well as injured persons were shifted to hospital by the complainant and his relatives as saving the lives of injured is always considered prime consideration, this definitely took considerable time. Moreso, keeping in view the distance between the place of occurrence, the Police Station and District Headquarter Hospital Jhelum, such delay is not so fatal to the case of the prosecution. 11. Before starting discussion over the ocular account, we feel appropriate to mention here that we have observed certain distinctive features in the case of prosecution against Zaheer-ud-Din Babar , Dawood Baig, Sabar Hussain and Irshad Ali appellants. As regards the case of Zaheer-ud-Din Babar is concerned, he was armed with 12 bore gun and made one fire shot at Mst. Azra Bibi deceased hitting her at right knee. He also caused firearm injury to Asghar Hussain (PW.19), Ali Raza (PW.20), Mst. Razia Bibi (given up PW), Arif Baig (given up PW). Similarly , Dawood Baig was armed with 12 bore gun and he made a fire shot at Mazhar Hussain deceased hitting on front of his belly and also caused firearm injury to Muhammad Ali (given up). Irshad Ali appellant was armed with pistol 30 bore and he caused firearm injury to Asghar Hussain injured (PW.19), Waris Baig complainant injured (PW.16) and Mst. Munawar Bibi injured (given up). We would, therefore, firstly like to discuss the case against Zaheer-ud-Din, Dawood Baig and Irshad Ali appellants. It has been observed by us that Waris Baig complainant while appearing before the learned trial Court as PW-16 leveled same allegations and elaborated the roles of Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants. His statement got full
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support from the deposition of Asghar Hussain injured (PW.19) and Ali Raza injured (PW.20) who remained unison with the complainant (PW-16) on all material aspects of the case to the extent of Zaheer-ud-Din Babar, Dawood Baig and Irshad Ali appellants. As far as the presence of these witnesses is concerned, they have successfully proved their presence at the place of occurrence and the defence could not shatter the same. Even otherwise, the presence of complainant Waris Baig (PW.16), Asghar Hussain (PW.19) and Ali Raza (PW.20) is also established from the injuries and questions put by the learned defence counsel during cross examination on them. During arguments, learned counsel for the appellants emphatically urged that Waris Baig complainant (PW-16), Asghar Hussain injured (PW.19) and Ali Raza injured (PW.20) are related with each other as well as with the deceased and as such they are interested witnesses. We have observed that Waris Baig complainant (PW.16) nephew of Asghar Hussain injured (PW.19) whereas Ali Raza injured (PW.20) is son of Asghar Hussain injured (PW.19), however , it is sell settled by now that relationship of witnesses inter-se or with the deceased, alone, cannot be made basis to disqualify them from being truthful witnesses. Similarly law is also settled on the point that mere relationship with the deceased does not make any witness interested, because such witness is neces sarily not the interested witness in true sense of the term and as such his statement cannot be disbelieved solely on the plea that he is related to the deceased because an interested witness is the person who has motive to falsely implicate the accused. Viewing the testimony of eye witnesses in the light of aforesaid criteria, we do not find their testimony as tainted or they had any motive to falsely implicate Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants nor the defence has been able to bring on record any previous enmity between these appellants and the eye witnesses for their false implication in this case. As already discussed above, Zaheer-ud-Din Babar , Dawood Baig and Irshad Ali appellants are named in FIR (Ex.PJJJ) and specific roles have been attributed to them therein. Admittedly it is a daytime occurrence and the parties are known to each other , so there is no chance of mistaken identity of the appellants at the time of occurrence. After thorough investigation…
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