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Petitioner: Khanvaja AZHAR HUSSAIN VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Rafique Tarar, Dr. Javed Iqbal Title: Khanvaja AZHAR HUSSAIN vs THE STATE Case No.:Criminal Appeal No. 501 and Murder Reference No. 136 of 1975 Criminal
JUDGMENT
Reported As: PLD 1976 Lahore 729 Result: Order accordingly Judgment JUDGMENT JAVID IQaAL, J.-Khawaja Azhar Hussain son of Khawaja Mazhar Hussain, aged 24 years, Manzoor Ashraf, son of Fazal Elahi, aged 42 years the course of same incident) came in a Taxi to the house of Mst. Razia P. W. While standing in the street Khawaja Azhar Hussain appellant called Ilfst. Nargis deceased and asked her to come down and to go back with him. But on her refusal to go with him, he started hurling abuses at her. Shortly thereafter Khawaja Azhar Hussain appellant and his two companions drove away. Later on, on the same evening at about 6-1.5 p.m. Khawaja Azhar Hussain appellant arrived at the house of the complaisant party along with the other appellants and the acquitted co-accused as well as his uncle Mahmud deceased. They all came upstairs where the members of the complainant party including Mst. Nargis deceased were sitting, and they resorted to shooting at them. Thus, the motive for the commission of crime was that the appellant and his companions came to punish Mst. Nargis deceased for having left him and also her relatives for siding with her. In the course of shooting, on the complainant side for persons were injured and three were killed, whereas on the accused side one person was killed and three had sustained injuries. On the complainant side the injured and the deceased had all sustained mostly fire-arm injuries. On the accused side two persons bad received fire-arm injuries and the other two had sustained blunt weapon injuries. On the accused side, as it has been pointed out earlier. Mahmud was killed whereas Muhammad Aslam appellant and Allah Bakhsh and Babar acquitted co-accused were injured.
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4. The prosecution has produced six eye-witnesses of the occurrence, namely, Muhammad Hafeez (P. W. 12), injured brother of Mst. Razia P. W. And maternal uncle of Mst. Nargis deceased, Mst. Yasmin (P. W. 13), injured daughter of Mst. Razia P. W. And step-sister of Mst. Nargis deceased, Mst. Saeeda (P. W. 14), injured daughter of Mst. Razia P. W. And real sister of Mst. Nargis deceased, Moazzam (P. W. 15), injured son of Mst. Razia P. W. And step-brother of Mst. Nargis deceased, Azam (P. W. 16), son of Mst. Razia P. W. And step-brother of Mst. Nargis deceased, and Mst. Razia (P. W. 17), mother of Mst. Nargis deceased as well as the first informant in this case. The other witnesses who saw the culminating part of the occurrence, were Allah Ditta (P. W. 11), Mahmud and Fayyaz (both not produced). The Police Officials who came to the spot and witnessed the end of the shooting were Muhammad Aslam F. C. (P. W. 4), Mian Khan F. C. (P. W. 6), Muhammad Sharif A. S. I. (P. W. 7), Muhammad Siddiq A. S. I. (P, W. 20) and Muhammad Yaqub S. 1. (P. W. 21). 5. Muhammad Aslam appellant as well as Allah Bakhsh and Babar acquitted co-accused were arrested on the spot by Muhammad Yaqub S. 1. (P. W. 21). The three of them were injured. Khawaja Azhar Hussain appellant was arrested on 13th of January 1972, by Mubammad Aslam Jaura, Inspector, C. I. A. (P. W. 1). Muhammad Amin acquitted co-accused was arrested on the 22nd of January 1972, by Qamar Zaman S. I. (P. W. 18). Manzoor Ashraf appellant was arrested by Kafayat Hussain Shah, Inspector Police (P. W. 19) on the 6th of January 1972. Most of the recoveries in this case were made from the spot and no relevant recovery had been effected from any of the appellants or acquitted co--accused. Manzoor Ashraf appellant as well as Allah Bakbsh and Babar acquit--ted co-accused were stated to be empty-handed whereas all others came armed with pistols/revolvers and Sten-gun Revolver P. 20 was picked up from near the dead body of Mahmud (of the accused side) with for crime empties in its chambers and two live bullets. It was said to have been used by Mahmud deceased and was taken into possession vide memo. Exh. P. O. Revolver P. 23 was recovered from the water tank in the house where the occurrence took place along with six crime empties in its chambers at the instance of Muhammad Aslam appellant and it was taken into possession vide memo. Exh. P. Q. Sten-gun P. 28 stated to have been used by Khawaja Azhar Hussain appellant was picked up from the heap of fodder inside the house where the occurrence took place and was taken into possession vide memo. Exh. P. T. Pistol P. 29 was produced by Mahmud (given up P. W.) along with two crime empties in its chambers and it was taken into posseesion vide memo. Exh. P. V. Service revolver P. 32 was produced by Muhammad Siddiq A. S. I. (P. W. 20) with two crime empties in its chambers and it was taken into possession vide memo. Exh. P. X. Thirty crime empties P. 26/1-30 were picked up from different places in the house of complainant party along with sixteen lead bullets P. 27/1-16 and taken into possession vide memo. Exh. P. S. All these recoveries were effected on the 5th of January 1972, and the recovery memos. Were attested by Allah Ditta (P. W. I1), Mahmud (not produced) and Muhammad Yaqub S. I. (P. W. 21). One 410 bore crime empty was picked up from the spot and produced by Razzaq F. C. This was taken into possession vide memo. Exh. P. YY., dated the 5th of January 1972. The attesting witnesses are Razzaq F. C., Isbaq (both not produced) and Kaffiayat Hussain Shah, Inspector, Police (P. W. 19). Muhammad Amin acquitted co-accused was stated to be armed with a pistol but nothing was recovered so as to connect him with the commission of crime. There were no other relevant recoveries besides the ones detailed above. Anwar-ul-Haq Bajwa, (P. W. 15), Fire-arms Expert who examined the recovered fire-arms as well as crime empties has submitted his reports which are Exh. P. W. 5/C and Exh. P. W. 5/H. In his opinion revolver P. 23 recovered at the instance of Muhammad Aslam appellant matched with crime empties C. 1, C. 2, C. 3, C. 5, C. 6, C. 11 to C. 15. Revolver P. 20 stated to be used by Mahmud deceased matched with 9 crime empties picked up from the spot, Sten-gun P. 28 stated to have been used by Khawaja Azbar Hussain appellant matched with crime empties of 9 m.m. C. 21 to C. 40.
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6. In their statements before the trial Court the appellants and the acquitted co-accused denied having participated in the occurrence. They disowned recoveries and stated that they had been falsely implicated due to enmity. Khawaja Azhar Hussain appellant stated that he was married to Mst. Nargis deceased and he produces Nikahnama Exh. D. L. He further stated that Mst. Razia P. W. Had sent for Mst. Nargis deceased to her house on the pretext that she was seriously ill. Mst. Nargis deceased was one of the good dancers of film industry and was the only source of income to her family. Her family, therefore, was aggrieved on account of her marriage to Khawaja Azhar Hussain appellant and the consequential financial loss to them. There was a person by the name of Fareed Gul who had already paid Mst. Razia P. W. a large amount of money for taking away Mst. Nargis deceased. On account of the sudden disappearance of Mst. Nargis deceased from the house of Khawaja Azhar Hussain appellant, his uncle Mahmud deceased went to the house of Mst. Razia P. W. To enquire about her. On seeing Mahmud deceased, Mst. Nargis deceased was relieved. She picked up her pet bitch in order to leave the place along with Mahmud deceased. On this Fareed Gul who was present there armed with a Sten-gun and some other persons who were also there opened fire at them. Mahmud deceased fired back at them and thus, the occurrence took place as a result of cross--firing between Mahmud deceased on one side and the members of the complainant party as well as Fareed Gul on the other. According to Khawaja Azbar Hussain appellant he was not present at the spot at the time of occurrence. Manzoor Ashraf appellant who was Music Director stated that since he had acted as a go-between in establishing the relationship between Mst. Nargis deceased and Khawaja Azhar Hussain appellant, Mst. Razia P. W. Had falsely implicated him in this case although be too was not present at the time of occurrence. Muhammad Aslam appellant stated that he was a tailor by profession and used to stitch clothes for Mst. Nargis deceased. He stated that on the fateful day he had gone to the house of complainant party for delivering clothes to Mst. Nargis deceased when Mahmud deceased and two other persons arrived there. They had an argument with Maqsood deceased and Muhammad Hefeez (P. W. 12). Maqsood deceased and Muhammad Hafeez P. W. Who were respectively armed with Sten-gun and Pistol fired, and in the exchange of fire, he himself sustained a bullet injury. He further stated that the police wanted to make him a witness of the occurrence, but when he refused, they falsely implicated him in this case. In other words he admitted his presence at the scene of crime but denied having participated in it. Muhammad Amin acquitted co-accused stated that he lived under the premises of Khawaja Azhar Hussain appellant on McLeod Road. Lahore. Mst. Razia P. W. Used to visit him there for conveying her messages to Mst. Nargis deceased. He had refused to oblige her and on that account there was bad blood between them. He further stated that on the day of occurrence he was not in Lahore but had gone to Karachi. He led evidence in proof of his alibi which has been accepted by the trial Court. Allah Baksh acquitted co-accused stated that he had gone to Heera Mandi on the fateful day to enjoy dancing. A crowd had assembled at the Chowk. The police arrived there and started beating the members of the public and in the course of the same he too received a beating at the hands of the police. He threatened to lodge a complaint and had gone to the hospital to get himself medically examined when he was arrested there by the police and falsely implicated in this case. Thus, he disclaimed any connection with the accused party. Babar acquitted co-accused stated that the police rounded up all the friends of Khawaja Azar Hussain appellant in order to implicate them in this case. He was arrested from his house, was beaten up by the police and falsely implicated in this case. He further stated that his marriage was fixed for 9-1-1972 and he produced an Invitation Card to that effect before the police. In other words
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he denied having been present at the scene of crime and disowned any connection with the occurrence. It may be noted that Allah Bakhsh and Babar acquitted co-accused had sustained blunt weapon injuries in the course of occurrence. The prosecution has not stated as to how these two persons had sustained injuries. But according to their own statements they received injuries as a result of police beating. According to the prosecution Allah Bakhsh and Babar acquitted co-accused were empty-handed. Anyway, they were both arrested on the spot along with Muhammad Aslam appellant. 7. In the F. I. R. The occurrence is reported to have taken place in the following manner: Mst. Razia (P. W. 17) stated that she lived in Shahi Mohallah. Mst. Nargis deceased her daughter worked as a dancer in films. Khawaja Azhar Hussain appellant resident of McLeod Road, Lahore, was a film producer who knew her daughter. Seven/eight months prior to the occurrence he established a relationship with h:r through the assistance of Manzoor Ashraf appellant Music Director. A month prior to the occurrence Ma. Nargis deceased went away to live with him in his house. On the day of occurrence Mst. Nargis deceased sent a message to her and called her to the house of Khawaja Azhar Hussain appellant. When she arrived there Mst. Nargis deceased told her that she was very unhappy and was being confined in the house by Khawaja Azhar Hussain appellant. At that time Khawaja Azhar Hussain appellant was not present in the house. Therefore, at about 2-00 p.m. She brought her daughter to her own house. Thereafter at about 3-00 p.m. Khawaja Azhar Hussain appellant along with Mahmud deceased and Muhammad Amin acquitted co-accused came to her house in a taxi. Khawaja Azhar Hussain appellant from the street asked Mst. Nargis deceased to come down. On her refusal, he started giving abases to them. However, shortly thereafter they left. But at about 6-15 p.m. While Mst. Razia P. W. Was present in her house along with Mst. Nargis deceased, Mst. Saeeda (P. W. 14), Mst. Yasmin (P. W. 13), Muhammad Hafeez (P. W. 12), Maqsood deceased, Gulab Din deceased, Azam (P. W. 16), aged 11 years, Moazzam (P. W. 15), aged 9 years and Nadeem, aged 4 years, Khawaja Azhar Hussain appellant armed with a Sten-gun, Mahmud deceased armed with a pistol, Muhammad Amin acquitted co-accused armed with a pistol, Muhammad Aslam appellant armed with a pistol, Allah Bakhsh, Babar acquitted co-accused and Manzoor Ashraf appellant empty handed climbed upstairs into the room where the members of the complainant party were watching T. V. As soon as he entered, Khawaja Azhar Hussain appellant raised a lalkara to Mst. Nargis deceased to the effect that he would teach her a lesson by taking her life for returning to her mother's house without his permission. Thereafter he. Mahmud deceased and Muhammad Amin acquitted co-accused pointed their Sten-gun and pistols towards them. The members of the complainant party in order to save their lives and out of fear started running here and there. In the meantime. Khawaja Azhar Hussain appellant and his companions opened fire indiscriminately at them through their Sten-gun and pistols, and their empty-handed companions went on raising lalkaras that they all should be finished. jUst. Razir P. W. In order to save her life found refuge in the store room of the house. For some time firing went on along with hue and cry of the victims. Then from the upper storey came the announcement of the police that they should put down their weapons. Thereafter also she heard exchange of firing. However, sometime thereafter the firing stopped and she came out. She saw the Police, Mahmud (not produced), Allah Ditta (P. W. 11) and Fayyaz (not produced) present in the room while Mst. Nargia, Mst. Saeeda P. W., Mst. Yasmin P. W., Muhammad Hafeez P. W., Maqsood, Gulab Din, and Moazzam and Azam P. Ws. Lying injured due to firing at different places in the house. Mahmud deceased was lying near the stairs of the eastern door and Muhammad Aslam appellant as well as Allah Bakhsh and Babar acquitted co-accused were apprehended by the police on the spot who had also sustained injuries. Khawaja Azhar Hussain. Manzoor Ashraf appellants and Muhammad
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Amin acquitted co-accused had managed to escape before the arrival of the police. As a result of their firing even her pet bitch had died on the spot. 8. Dr. Burhan Ahmad Khan (P. W. 22) conducted post-mortem examination on the dead body of Mst. Nargis at 3-00 p.m. On the 6th of January 1972, and found on her person 8 fire-arm wounds on the left chin, right mammary gland right inguinal region, left and right thighs, left big toe, right shin and right leg. Out of them 6 were wounds of entry, one on the left chin had blackening indicating that the shot was fired from a close range. In his opinion the injuries had been caused by fire-arm except one which consisted of abrasions. Injuries on the left chin and right mammary gland proved fatal as they were individually sufficient to cause death in the ordinary course of nature. The cause of death was haemorrhage and shock, due to damage to the brain and liver. At about 4-00 p.m. On the same day he conducted post-mortem examination on the dead body of Mahmud (of the accused party) and found on bis person 4 fire-arm wounds, out of which one had blackening and charring. These injuries were located on left thigh; penis, left fore-arm, right hand and right knee. In his opinion all the injuries had been caused by fire-arm and the injury on left thigh and penis was sufficient to cause death in the ordinary course of nature. Death resulted from this injury as well as haemorrhage and shock. On the 7th of January 1972, at 11-30 a.m. He conducted post-mortem examination on the dead body of Maqsood and found on his person one fire-arm wound of entry on the back bone, and lacerated wound with burning of margins on left thigh. These injuries had been caused by fire-arm and one had burning of margins indicating that he was fired at from a close range. Injury to back bone led to haemorrhage and shock as well as damage to intestines. In the opinion of the doctor this injury was sufficient to cause death in the ordinary course of nature. On the same day at 12-30 p.m. He conducted post-mortem examination on the dead body of Gulab Din and found on his person 8 fire-arm wounds, out of which 6 were wounds of entry. One of the wounds had burning of margins. These wounds were lo.Ated below the left nipple and umbilicus, abdomen, left thigh, right knee joint, left toe and right chest. The last injury was a common exit wound of three injuries. All the injuries had been inflicted with fire-arm. Injury on the chest proved fatal and it resulted in shock and haemorrhage as well as damage to right lung. Dr. Muhammad Rafiq Choudhary (P. W. 23) medically examined Allah Bakhsh acquitted co- accused on the 5th of January 1972, at 9-12 p.m. And found on his person 6 bruised swellings. The injuries had been caused by blunt weapon and they were subsequently declared as simple. On the same day at 9-20 p.m. He medically examined Muhammad Aslam appellant and found on his person 3 fire-arm lacerated wounds on the chest and right upper arm. These injuries had been caused by fire-arm but were subsequently declared as simple. On the same day at 11-12 p.m. He medically examined Babar acquitted co-accused and found on his person bruised swellings and abrasions 8 in number. These injuries had been caused by blunt weapon. All of them were declared as simple except one i.e. Swelling on the left fact which was declared grievous. Dr. Mukhtar Ahmad (P. W. 24) examined the carcase of bitch on the 6th of January 1972. It had two fire-arm wounds on the shoulder which led to its death. Dr. Nazar Ahmad (P. W. 26) medically examined at 6-50 p.m. On the 5th of January 1972, Moazzam (P. W. 15), aged 8 years and found on his person one fire-arm injury and two blunt weapon injuries, on the left thigh and forehead. Injury on the forehead was declared dangerous. On the same day he medically examined Mst. Yasmin (P. W. 13) at 6-52 p.m. And found on her person one fire-arm wound on the head. The injury was subsequently declared as simple. On the same day he medically examined Mst. Saeeda (P. W. 14) at 7-00 p.m. And found on her persan two fire-arm wounds on the right leg. One of them was later declared as grievous.
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On the same day he medically examined Muhammad Hafecz (P. W. 12) at 7-10 p.m. And found on his' person two fire-arm wounds and three blunt weapon injuries out of which one was declared grievous. The fire-arm wounds were on the right hand and left chest. The right hand fire-arm injury had blackening. This doctor on the same day had medically examined Maqsood deceased while he was still alive and found on his person two fire-arm injuries on the back bone and left thigh. Both the injuries were caused by fire-arm and the patient was in a state of serious shock. He had also operated on him but the patient died. On the same day he had also medically examined Gulab Din deceased while he was stilt alive and found on his person 8 wounds out of which, with the exception of one, all had bren caused by fire arm whereas in respect of one he did not express any definite opinion. This patient also subsequently died. 9. We have heard learned counsel for the appellants and perused the record with their assistance. Mr. M. Anwar, learned counsel for Khawaja Azhar Hussain appellant argued that the fawily of Mst. Nargis deceased including Mst. Razia P. W. Was highly inimical towards Khawaja Azhar Hussain appellant for the simple reason that he had taken away Mst. Nargis deceased and had married her thereby causing a financial loss to her mother and other members of her family. It was, therefore, submitted that the eye-witnesses in this case who were all interested and hostile had a motive to falsely, implicate Khawaja Azhar Hussain appellant. In this background it was argued that the testimony of the eye-witnesses in this case including those who were injured in the course of occurrence should be considered with abundant caution particularly in respect of Khawaja Azhar Hussain appellant and that it must not be accepted unless and until it was corroborated by independent evidence or some strong circumstance connecting him with the commission ' of crime. It was argued that in the present case the eye-witnesses had stated that Khawaja Azhar Hussain appellant came to the scene of crime armed with a Sten-gun along with others and opened fire at the complainant party. It was submitted that the Sten-gun in question had not been recovered from Khawaja Azhar Hussain appellant. On the contrary, it was picked up from the house where the occurrence had taken place as the assailant/assailants had abandoned the same and had left it behind. It was further argued that according to the Fire-arms Expert some of the crime empties picked up from the spot were found to have been fired from that Sten gun. The reasoning of learned counsel is that although the opinion of the Fire-arms Expert in this case was not free from doubt as it was disclosed in his cross-examination that he had in some earlier cases given false opinions, in the instant case the ,recovery of the Sten-gun from the spot or its matching with some crime empties would not amount to sufficient corroboration of the tainted ocular testimony for it only established that in the occurrence the Sten-gun recovered from the spot had been used for the commission of crime and that there was nothing else on the record except the tainted ocular testimony, to connect Khawaja Azhar Hussain appellant with the said Sten-gun and its use in the course of the occurrence. The theory of learned counsel is that Khawaja Azhar Hussain appellant was not present at the time of occurrence. It was submitted that he had married Mst. Nargis deceased and was happily living with her. Mst. Nargis deceased was called by Mst. Razia P. W. To her house on the pretext that she was seriously ill. Thereupon, Mst. Nargis deceased went to the house of her mother and was detained there by Mst. Razia P. W. Who wanted her to discontinue her relationship with Khawaja Azar Hussain appellant. It was argued that the prosecution version to the effect that Mst. Nargis deceased sent a message to Mst. Razia P. W. And had called her to the house of Khawaja Azhar Hussain appellant and that thereafter Mst. Nargis deceased had gone with her to the house of Mst. Razia P. VV., was not supported by any independent corroborative evidence. Similarly, it was submitted that the version to the effect that at about 3-00 p:m. On that day Khawaja Azhar Hussain appellant in the company of Muhammad Amin acquitted co-accused
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and Mahmud deceased went to the house of Mst. Razia P. W. In a taxi and from the street ordered Mst. Nargis deceased to come down and to return with him and that on her refusal he hurled abuses at her and drove away, was also not supported by any independent corroborative evidence. According to learned counsel this incident did not take place at all. It was argued that on learning that Mst. Nargis deceased had gone to the house of Mst. Razia P. W., Mahmud deceased uncle of Khawaja Azhar Hussain appellant went to the spot in order to bring back Mst. Nargis deceased, and that since he was going to Heera Mandi and suspected that he might be offered resistence, he went there armed poss,,bly with a pistol/revolver . Or even a Sten-gun. According to learned counsel when Mahmud deceased arrived there and wanted to bring back Mst. Nargis deceased who was the wife of Khawaja Azhar Hussain appellant, resistence was offered possibly by the complainant side which led to the exchange of fire resulting in the present occurrence. The argument of learned counsel is that since the complainant side had motive to falsely implicate Khawaja Azhar Hussain appellant who was mainly responsible for depriving the complainant party of the financial advantage of Mst. Nargis deceased, they roped him in this case although he had not gone along with Mahmud deceased to get his wife back. It was further argued that Mst. Razia P. W. Who regarded Khawaja Azhar Hussain appellant as her arch enemy could have not been an eye-witness in this case. The reasoning of learned counsel is based on the proposition…
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