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Petitioner: ABDUS SATTAR and anothers VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Shahid Hameed Dar, Mazhar Iqbal Sidhu Title: ABDUS SATTAR and anothers vs The STATE Case No.:Criminal Appeals Nos.2320, 2338 and Capital Sentence Reference No,65-T
JUDGMENT
Reported As: 2014 YLR 1814 Result: Appeal accepted Judgment JUDGMENT ' MAZHAR IQBAL SIDHU, J.--- Abdus Sattar and Kafayat Ullah Khan appellants in two different appeals, as mentioned above, have impugned the punishing judgment of learned Special Judge, Anti-Terrorism Court, Sargodha dated 17-9-2010 whereby they along with their co-accused Sher Khan and Muhammad Aslam Khan (since been acquitted) were tried in a case registered vide F.I.R. No,273 dated 3-6-2009 registered under sections 302/324/353/186/34, P.P.C. Read with an offence section 7 of the Anti-Terrorism Act, 1997 at Police Station, City Mianwali and punished as follows:-- Under section 302(b) read with section 34, P.P.C.Sentence of death each as Ta'zir for committing Qatl-e-Amd of Muhammad Ramzan, Inspector and to pay compensation to the tune of Rs.2,00,000 each to the legal heirs of deceased and in default whereof to further undergo simple imprisonment for six months each. Under section 324 read with section 34 of P.P.C.Rigorous imprisonment for ten years each for attempting Qatl-e-Amd of Hameedullah, HC, Aftab Iqbal, C # 1481 and Khurram Aziz, C # 304 and to pay fine to the tune of Rs.50,000 each and in default whereof to further undergo simple imprisonment for six months each. Under section 353/34 of the P.P.C.Rigorous imprisonment for two years each and to pay fine to the tune of Rs.50,000 each and in default whereof to further undergo simple imprisonment for three months each. Under section 7 (a) of the Anti-Terrorism Act, 1997Sentence of death each and to pay fine to the tune of Rs.2,00,000 each and in default whereof to further undergo simple imprisonment for six
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read with section 34 of the P.P.C.months each. Under section 21(L) of the Anti-Terrorism Act, 1997 read with section 34 of the P,P.C.Rigorous imprisonment for five years each and to pay fine to the tune of Rs.20,000 each and in default whereof to further undergo simple imprisonment for three months each. ' whereas capital sentence reference has been sent by the learned trial Court under section 374, Cr.P.C. For confirmation of death sentence or otherwise of the appellants/ death convicts. All the matters are being disposed of through instant single judgment. 2. Complainant Khurram Aziz, 304-C (P.W.2) got recorded his statement/ complaint Exh-PE at 1-30 p.m. On 3-6-2009 at Civil Hospital, Mianwali on the basis of which formal F.I.R. Exh-PE/1 was chalked out. 3. Facts in brief disclosed by complainant Khurram Aziz, 304-C (P.W.2) in complaint Exh-PE are that he was driver of official vehicle No, MIB-3818. On 2-6-2009 at 7-00 p.m., he alon gwith Hameedullah HC-27, Aftab 1481-C armed with rifles SMG and Muhammad Ramzan, Inspector (deceased), Police Station, Sadar, Mianwali was returning after patrolling in the area of Police Station, Saddar, Mianwali. When they reached Gulberg, Chowk, Mianwali, they saw with the help of street-lights that a motorcycle without registration number emerged which was being driven by Abdul Sattar (appellant) armed with Kalashnikov whereas Kafayatullah (appellant) armed with rifle .222 bore was sitting behind him. Muhammad Ramzan, Inspector signaled the appellants to stop but they did not comply with. Thenceforth Muhammad Ramzan, Inspector along with aforementioned police posse chased them and made them to halt at Watta Khel Chowk at about 12:15 midnight. The appellants who were previously known to P.Ws., Khurram Aziz, Hameedullah and Aftab Iqbal alighted from the motorcycle. Muhammad Ramzan, Inspector asked them to show the licenses of the weapons to which they replied that as who was he to ask for the license and Kafayatullah appellant fired through his .222 bore rifle which hit Muhammad Ramzan, Inspector on his right and left thighs whereas Abdul Sattar appellant made fire shot with his Kalashnikov, which landed on the chest of Muhammad Ramzan, Inspector who fell on the ground. The police officials present there also fired on the appellants after taking position but the appellants took flight towards city on the said motorcycles. The complainant and P.Ws. Escorted Muhammad Ramzan to Civil Hospital, Mianwali who succumbed to the injuries there. Afterwards Muhammad Iqbal 125-C claimed to have witnessed the occurrence and stated that Muhammad Aslam and Sher Khan (acquitted co- accused) were also present at the place of occurrence while armed with pistols and they extended threats at the place of occurrence that he who interfered would be killed. Saeed Muhammad and Muhammad Khan also got recorded their statements under section 161, Cr.P.C. Wherein the appellants were implicated by way of evidence of extra-judicial confession. 4. The investigation in this case was conducted by Saifullah, S.I., who appeared as P.W.21. He deposed that during the night between 2/3-6-2009 at about midnight on receipt of wireless message from control on behalf of Khurram Aziz, complainant/ driver Constable No, 304, he proceeded to DHQ, Hospital Mianwali and on reaching there, he recorded statement Exh-PE of Khurram Aziz complainant, read it out to him who signed the same in token of its correctness, sent the same along with his endorsement to Police Station, City Mianwali from the Hospital through Muhammad Ashraf Constable No, 611, on the basis of which case was registered at police station by A.S.-I. Muhammad Ramzan, took up the investigation of this case, prepared injury statement Exh-PC, inquest report Exh-PD in respect of dead body of Muhammad Ramzan, Inspector deceased, which was lying in the said hospital, handed over the dead body to Muhammad Aslam Constable No, 79 for postmortem examination, proceeded to the place of occurrence i,e, Watta Khel Chowk, inspected the place of occurrence on the pointing out of Khuram Aziz, complainant
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and P.Ws. And prepared rough site plan Exh-PZ, inspected the spot in the presence of Abdul Ghaffar, A.S.-I. And Lateefullah, Constable No, 614, collected blood imbrued earth from the place where Inspector Muhammad Rmazan was injured, made it into a sealed parcel through memo Ehx-PJ, collected nine crime empties of .222 bore (P-12/1-9) from the place of firing and made the same into separate sealed parcel through memo Exh-PK, collected five crime empties (P-13/1-5) from the place of firing, made the same into separate sealed parcel through recovery memo Exh- PL, also collected six crime empties of Kalashnikov from the place where from Hameedullah and Aftab Iqbal P.Ws. Have allegedly made firing and made them into separate sealed parcel through memo Exh-PM attested by the P.Ws., on the same day Muhammad Aslam 79-C produced before him last worn clothes and other articles of uniform of Muhammad Ramzan, Inspector/deceased, Shirt P-6, Trouser P-7, Banyan P-8 all blood imbrued, Waste Belt P-9, Cap P-10, pairs of chappal P- 11/12 and a sealed phial sent by the Medical Officer, took all these articles into possession through memo Exh-PI attested by the P.Ws., also recorded the statements of P.Ws. i,e, Hameedulalh HC, Aftab Iqbal constable, Mohammad Aslam Constable, Abdul Ghaffar, A.S.-I. And Lateefullah Constable under section 161 Cr.P.C, Muhammad Ashraf constable brought to him formal F.I.R. After registration of the case, searched for the accused but could not find them. He accompanied Sher Muhammad constable photographer to the place of occurrence on 4-6-2009 where he took photographs, Muhammad Shafique Draftsman inspected the place of occurrence on 4-6-2009 and took rough notes. On 5-6-2009 Sher Muhammad Constable Photographer produced before him photographs (P-1/1-7), took the same into possession through memo Exh-PG attested by the P.Ws., recorded their statements, Muhammad Shafique Photographer produced before him scaled site plan Exh-PF and Exh-PF/1, recorded the statement of Sher Rasool, MHC and Hameddullah, Constable No, 114 on 9-6-2009 regarding the custody and dispatch of parcels of blood imbrued earth. Submitted application Exh-PAA to the court for obtaining warrants of arrest against Abdul Sattar and Kafayatullah accused from the court on 18-6-2009 and entrusted the same to Zafarullah, A.S.-I. For execution. Proclamations were issued from the court on his application Exh-PBB and the same were also marked to Zafarullah, A.S.-I. For execution, recorded the statement of Zafarullah, A.S.-I. Regarding the warrants and proclamation on 26-6-2009 and recorded the statements of P.Ws. ' On 4-9-2009 Muhammad Iqbal Constable No, 125 appeared before him and he recorded his statement under section 161, Cr.P.C. As an eye-witness in which he nominated Sher Khan and Muhammad Aslam accused. On 6-9-2009 Mahmood Khan and Saee Muhammad P.Ws. Appeared before him and he recorded their statements under section 161, Cr.P.C. He obtained warrants of arrest against Muhammad Aslam and Sher Khan accused from the court of learned Illaqa Magistrate, Mianwali on 7-9-2009. On the same day, he arrested Muhammad Aslam accused in this case, obtained physical remand of Muhammad Aslam accused. On 18-9-2009 Muhammad Aslam accused while in police custody led to the recovery of motorcycle YAMAHA 6697-MIA without any documents from his house in village Shahbazkhel, secured the motorcycle through memo Exh- PR in the presence of Hafeezullah Constable No, 1153 and Muhammad Ashraf Constable No, 611, who attested the memo, prepared rough site plan Exh-PR/1 of the place of said recovery, recorded the statements of the P.Ws. Regarding the said recovery, Muhammad Aslam accused while in police custody on his disclosure and pointing out, on 20-9-2009 got recovered .30-bore pistol (P-22) along with four bullets (P-23/1-4) from his house at Shahbazkhel through recovery memo Exh-PS attested by the P.Ws., made the pistol into a sealed parcel and recorded the statements of the said witnesses, prepared site plan of the place of recovery Exh-PS/1. On 26-9-2009 he submitted application Exh-PCC for the arrest of Sher Khan accused and accordingly warrants were issued against him which he marked to A.S.-I. Zafarullah for execution, recoded the statements of Sultan
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Khan, ASI/ Moharrar and Rehmatullah constable regarding parcel of pistol recovered from Muhammad Aslam accused, recorded the statement of A.S.-I., Zafarullah on 20-10-2009. ' He arrested Kafayatullah appellant in this case on 22-10-2009 and at the time of his arrest an amount of Rs,835 and Photostat copy of his ID Card were recovered from him on his personal search, obtained his physical remand and interrogated him. On 29-10-2009 Kafayatullah appellant led to the recovery of .222-rifle (P-15), ten bullets (P-16/1-10) and license for the said rifle (P-17) from his residence in Shahbazkhel, made the rifle into a sealed parcel and took the same into possession along with bullets and license through memo Exh-PN attested by the P.Ws., recorded their statements, prepared rough site plan Exh-PN/1 of the place of said recovery. He arrested Abdul Sattar appellant in this case on 11-11-2009 and obtained his physical remand. At the time of arrest, he took into possession Motorcycle 8485-MID (P-24) along with its Registration Book (P- 24/1-1), Rs,780, photocopy of ID card on his personal search, secured these articles through recovery memo Exh-PO attested by P.Ws. On 22-11-2009 Abdul Sattar appellant on his disclosure and pointing out got recovered Kalashnikov (P-18) along with 20-bullets (P-19/1-20) from his house through recovery memo Exh-PP attested by the P.Ws., recorded their statements, recorded the statement of Zahid Iqbal, A.S.-I./Moharrar and Muhammad Aslam constable regarding the parcels. He arrested. Sher Khan accused on 19-1-2010 and obtained his physical remand. On 24-1-2010 Sher Khan accused while in his custody on his disclosure and pointing out got recovered .30-bore pistol (P-20) along with five bullets (P-21/1-5) from his house, secured these articles through memo ExhPQ and made the same into separate parcel, the said memo was attested by the P.Ws. After completion of investigation, he got the accused challaned through the SHO. 5. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellants to which they pleaded nonculpabilis and claimed trial. Thereafter the prosecution was asked to lead its evidence in order to prove its case. The prosecution produced 21 prosecution witnesses. 6. Learned PP renounced P.Ws. Namely Aftab Iqbal, C-1481, Lateefulalh, C-614, Hafizullah, C-1153, Muhammad Ayyaz, C-858, Muhammad Khan, Ameer Ahmad Khan, A.S.-I., Muhammad Yaqoob, A.S.-I., Mushtaq Ahmad, A.S.-I., Amanullah Joya, S.I. As being de-trop and by tendering in evidence the report of Chemical Examiner Exh-PD, report of Serologist Exh-PEE and reports of Forensic Science Laboratory three in number Exh-PFF/103 PP closed the prosecution evidence. 7. The medical evidence was adduced through the statement of Dr. Muhammad Rafique, SMO (P.W.1) who on 3-6-2009 at 12:30 midnight medically examined Muhammad Ramzan, who was in an injured condition having been brought by the police. Patient was received in emergency, semiconscious, disoriented BP was not recordable and pulse was very feeble. Patient looked pale and was in police uniform. Blood imbrued clothes were present on the patient and observed infra:- INJURIES ' A firearm wound of entryl/2 x 1/2 cm on the lateral aspect of middle one third of left thigh. (1) A firearm wound of exit 1 x 1 cm on the medial aspect of left thigh middle and third. (2) A firearm wound of re-entry 2 x 2 cm on the medial aspect of middle one third of right thigh. (3) A firearm wound of entry 1/2 x 1/2 cm in front of left chest, 8cm from left nipple. (4) A firearm wound lx1 cm in front of abdomen, 5cm from the umbilicus and 8'0 clock position. ' Duration of injuries was within ten minutes. All the injuries were caused by firearm. Exh-PQ was the correct carbon copy of MLR prepared and signed by him. The injured died of the injuries in the hospital and thereafter he conducted postmortem examination on the dead body on receipt of injury statement and inquest report. ' The particulars of the dead body were the same as recorded by him in the MLR. The dead body was identified by Aftab Iqbal, FC-1481 and Hameedullah, HC-27 and had been brought by Muhammad Aslam, FC-79. Symptoms for the death of injured were severely bleeding, irritable and blood was given to the injured and was shifted to operation theatre but he expired before surgery.
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' The dead body was clad in police uniform. It was a middle aged man, eyes and mouth were closed. Postmortem staining was present while rigor mortis had not yet set in. All the clothes were blood imbrued, having corresponding holes on the clothes. He found the injuries on the dead body which were the same as described him above in the MLR. OPINION ' In his opinion, death in this case had been caused by haemorrhage and shock due to injuries to femoral vessels of left thigh as a result of injury No,1 which. Had damaged muscles of both thighs and femoral vessels of left thigh. Injury No, 2 was exit wound while injury No, 3 was wound of re- entry of injury No, 1, which added the severity. This injury was dangerous and grievous in nature and it was sufficient to cause death in ordinary course of nature. Injury No, 4 did not perorate the chest and abdomen but passed below the skin and made its exit as injury No,5. All the injuries were ante- mortem and had been caused by firearm. ' Probable times that elapsed between injuries and death was within one hour and that between death and postmortem examination was within two hours. He had conducted the postmortem examination at 02:45 am. ' After the postmortem examination, he handed over the stitched dead body along with its clothes, postmortem report, police papers a sealed phial to Muhammad Aslam Constable No, 79. The said sealed phial contained foreign body. Exh-PB was the correct carbon copy of postmortem report prepared and signed by him. ExhPB/1 was correct diagram prepared and signed by him". 8. Afterwards the statements of the appellants under sections 342, Cr.P.C. Were recorded, in which they denied and controverted all the allegations levelled against them by the prosecution and professed their innocence. However, they opted to adduce evidence in their defence but not to appear as their own witness under section 340(2), Cr.P.C. 9. Appellant Kafayatullah Khan in reply to the question why this case against you and why the P.Ws. Have deposed against you answered as follows:-- "My enemies have involved me and my brother Muhammad Aslam in this case falsely. All the P.Ws. Are inimical towards us on the asking of our opponents so they have deposed against us falsely. We are innocent". 10. Appellant Abdul Sattar in reply to the question "why this case against you and why the P.Ws. Have deposed against you" answered as follows:-- "In fact deceased was killed by unknown persons in the darkness of night and nobody was there to witness the occurrence. I have been falsely enroped in this case on the asking of my enemies. All the P.Ws. Are police officials and they are interested in my conviction, therefore, they have deposed against me falsely". 11. Kafayatullah appellant tendered in defence copies of application submitted before learned Sessions Judge Mianwali Exh-DD along with order Exh-DD/1, application filed before learned Illaqa Magistrate Mianwali Exh-DE along with orders Exh-DE/1, application submitted before learned Illaqa Magistrate Mianwali Exh-DG along with orders Exh-DF/1, application submitted before learned Sessions Judge, Mianwali Exh-DG along with order Exh-DG/1, applications submitted before Additional Commissioner Consolidation Exh-DH, Exh-DI respectively and F.I.R. No,35 dated 4-2-2004 Police Station City Mianwali as Exh-DJ. He also produced in his defence copy of order of learned trial Court Mark-A and copy of application submitted before learned Additional Commissioner consolidation Mark-B. 12. Appellant Abdul Sattar produced in his defence attested copy of application submitted by Hakim Khan father of Abdul Sattar accused before learned Sessions Judge, Mianwali Exh-DK along with orders Exh-DK/1 attested copy of application submitted before the learned trial court along with orders dated 1-3-2010 as Exh-DL, Exh-DL/1 and photocopy of Registration Book of Motorcycle
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No,MID-5485 issued by Motor Registration Authority, Mianwali as Mark-C and closed his defence evidence. 13. Upon conclusion of the trial, the appellants were convicted and sentenced as mentioned op-cit by the learned trial Court whereas their co--accused Sher Khan and Muhammad Aslam Khan were acquitted of the charges imputed against them. Hence, the appeal as well as murder reference. 14. To seek acquittal, learned counsel for the appellants has argued that the occurrence took place on 3-6-2009 at 12-15 midnight and the matter was reported on the same night at 1-45 a.m. Visibly in some haste but it being a night occurrence, the prosecution has not established the source of illumination at the place of occurrence in order to recognize the culprits and normally the night is selected by the culprits to hide their identity; obviously the appellants were nominated in the F.I.R. With specific roles but nevertheless duty remains on the prosecution to prove the source of light at the time of occurrence Which has not been fulfilled, as according to the prosecution's case, at the time of occurrence street-lights were omitting lights at the time of occurrence but according to the learned counsel for the appellants up to 12-00 midnight as per schedule there was outage of electricity and the time of, occurrence has been stretched by the prosecution after 12-00 midnight in order to prove that electricity light was sufficiently available there but at the same time, the incident had commenced at 11-45 p.m., the same allegedly culminated at 12-15. a.m., even in this situation, the backdrop remains in the prosecution's case that neither any electric bulb was taken into possession during the investigation nor any person of the electric department was examined as witness to establish that at the time of occurrence at the place of occurrence, the street-lights were accurately working and if the factum of light does not seem to have been proved, then the identity of the culprits at the time of occurrence remains doubtful especially when the prosecution added more to the F.I.R. By involving subsequently two more accused persons namely Sher Khan and Muhammad Akram who have been acquitted by the learned trial Court by the same judgment and against the said acquittal, no appeal has been preferred either by the State or by the legal heirs of the deceased. Learned counsel adds that when the prosecution remains in a dubious position that the incident has committed by two persons or four persons, then obviously acquittal of two accused persons involved latter to the registration of the case would definitely cause serious defect in the veracity of the prosecution case which led the court to draw a conclusion that either the appellants did not participate in the occurrence or the P.Ws. Were not present at the place of occurrence, it remains paramount upon the prosecution to prove the identity of the culprits during an incident in order to establish its case but in the instant case the prosecution has miserably failed to do so. ' It has been argued that the motive mentioned in the F.I.R. Seemingly is irrational and the prosecution has not been able to prove for the reasons that when both the appellants were being intercepted when they were riding on a motorcycle, being driven by Abdus Sattar, appellant whereas Kafayatullah, appellant was there as a pillion having a firearm weapon, which subsequently was found to be licensed one, when were asked to explain about it by complainant Khurram Aziz (P.W.7) and others who were returning after having a santrigo along with Muhammad Ramzan, Inspector/S.H.O., Police Station, City, District Mianwali but the appellants did not obey the direction and then they were chased, thereafter the alleged occurrence took place. Learned counsel has submitted that apparently the motive set up in the F.I.R. Appears to be repellant to the senses and for this petty motive, it is not convincible to murder Muhammad Ramzan, Inspector. ' As to recoveries, learned counsel submits that the rifle .222 bore, which was subsequently recovered on the physical remand of Kafayatullah appellant on 29-10-2009 through memo Exh. PN, the same was the licensed one as the copy of the license was also taken into possession; vividly there was no harm by the appellants to tell the complainant party that it was licensed one or even then it could have been shown for its inspection because no act or omission was being
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perpetrated by both of them making them punishable under the law for the time being enforced whereas the false recovery has been planted upon Abdus Sattar through memo Exh-PP to strengthen the prosecution case. Learned counsel has seriously questioned the presence _ of the eye-witnesses at the relevant time through a detailed arguments i,e, Khurram Aziz, Constable No, 304 (complainant) examined as P. W .2 , Hameedullah, HC No, 27 (P.W.3) that neither during the investigation nor before the learned trial Court any documentary evidence was produced to establish that the deceased along with company of the eyewitnesses was on 'santrigo on woeful night and on returning, the unfortunate incident took place; when Muhammad Ramzan deceased being an injured was brought to the hospital, examined by P.W.1, Dr. Muhammad Shafique by preparing a Medico-legal Report Exh-PA does not bear either the name of any accompanying person or signed by any of the eyewitnesses having received it and being the first document of the prosecution case obviously mark the presence of the eyewitnesses at the spot. Adding to the arguments, learned counsel has submitted that before registration of the case, two wireless messages were also imparted by a caller as proved through the statement of Saifulah, S.I. (P.W.21) but in the opening of his statement, he has categorically stated that on the receipt of a wireless message from the control on behalf of Khurram Aziz, the complainant/driver-Constable No,304 (P.W.2) arrived at hospital where Muhammad Ramzan, Inspector/deceased was present and in his cross-examination, he has admitted that wireless book log is maintained at Mianwali, according to first wireless message received at wireless station located in the Police Line, Mianwali was that S.H.O., Saddar Minawali had been fried at by one suspicious person and it was also correct that second message was conveyed that he…
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