Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MUHAMMAD GHALIB and others VS Respondent: The STATE and others
Court Name: Lahore High Court Judge(s): Shahid Hameed Dar, Rauf Ahmad Shaikh Title: MUHAMMAD GHALIB and others vs The STATE and others Case No.:Criminal Appeal No,79, Criminal Revision No,112 and Murder Reference
JUDGMENT
Reported As: 2013 P Cr. L J 412 Result: Appeal Dismissed Judgment JUDGMENT ' SHAHID HAMEED DAR, J.---The appellants Muhammad Ghalib, Nasir Mahmood, Muhammad Hanif and Waheed Ahmad have been convicted by the learned Additional Sessions Judge, Islamabad for the charge of murder of Liaqat and Shaukat deceased and attempting on the life of Wajid Abbasi, (P.W.9). The appellants were sentenced as under:-- Muhammad Ghalib and Waheed Ahmad. Under section 302(b)/34, P.P.C. ' Death on two counts to the each appellant, with order to pay Rs,1,00,000 each, as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C., in default thereof to undergo six months' S.I. Each. ' Under section 324/34, P.P.C. 10 years' R.I to the each appellant, with fine of Rs,50,000 each, in default thereof to undergo three months' S.I each. ' Muhammad Ghalib appellant was also convicted under section 337F(iii), P.P.C. And sentenced to three years' R.I. With payment of Rs,5,000 as Daman. Nasir Mahmood and Muhammad Hanif appellants. ' Under section 302(b)/34, P.P.C. ' Life imprisonment on two counts each with order to pay Rs,50,000 each as compensation to the legal heirs of the deceased, under section 544-A, Cr.P.C., and in default thereof to undergo three months' imprisonment each. ' Under section 324/34, P.P.C.
---
## Page 2
10 years' R.I. Each with fine of Rs,25,000 each, and in default thereof to undergo imprisonment for three months' S.I. Each. ' Muhammad Hanif appellant was also convicted under section 337-D, P.P.C. And sentenced to 10 years' R.I. With payment of Rs,1,00,000 as Arsh, being 1/3rd of Diyat amount. ' All the sentences of imprisonment were ordered to run concurrently with benefit of section 382-B, Cr.P.C. ' Through the same judgment the co-accused of the appellants namely, Arshad, Azhar, Sajid and Talib were acquitted of the charge. 2. The convicts have filed Criminal Appeal No,79 of 2004 against their conviction/sentence, besides, there is a usual reference under section 374, Cr.P.C. Against Muhammad Ghalib and Waheed Ahmad appellants, for the confirmation of their sentence of death, on two counts, transmitted by the learned trial Court. Rafaqat alias Bagga complainant (P.W.8) has also filed Criminal Revision No,112 of 2004 against Muhammad Hanif, respondent No,1 and Nasir Mahmood, respondent No,2 for enhancement of their sentence to death. This judgment will dispose of the above said appeal, revision and the reference. 3. The appellants along with their acquitted co-accused were tried in the Court of learned Additional Sessions Judge, Islamabad for Committing qatl-e-amd of Shaukat and Liaqat and for attempting on the life of Wajid Abbasi, P.W.9 at 9-00 p.m on 26-7-2002, in the area of Noorpur Shahan, Bari Imam, falling within the jurisdiction of Police Station, Secretariat, District Islamabad. The statement Exh.P.W. Got recorded by Muhammad Rafaqat alias Bagga, complainant (P.W.8.) formed the basis for the registration of formal F.I.R. Exh.PA. 4. The prosecution story, as stated by the complainant in his complaint Exh.P.W. Is that he was not on speaking terms with Ghalib alias Guddi (appellant) for 3/4 years due to a petty quarrel between them; they exchanged hot words in early hours of the day on 26-7-2002 in the bazaar of Bari Imam and the matter was patched up; he was present at the shop of Miskeen, situated in Adda, at about 8-00 p.m, the same day, the accused Ghalib alias Guddi (appellant), armed with chhuri, Talib (since acquitted) armed with danda, Kala (since acquitted) armed with danda, Waheed (appellant) armed with hatchet and pistol .30 bore, Sajid (since acquitted) armed with .12 bore gun, Pappu armed with chhuri, Nasir (appellant) armed with chhuri and Azhar (since acquitted) armed with a knuckle duster came there and beat him, the people present at the spot intervened and rescued him; his family members, later on, learnt about the brawl; his brothers Shaukat and Eiaqat (deceased) along with Wajid Abbasi (P.W.9) also reached there, consoled him and intended to lodge a complaint with Aurangzeb, the brother of Ghalib; they all came to the shop of Aurangzeb and complained of the excesses committed by his brothers with the request that he should check their unruly behaviour; thereafter, they moved towards their house, Liaqat, Shaukat and Wajid were ahead of the complainant, who was a little behind; when they reached near the house of Riaz, they were all at once, ambushed by the above named accused at 9-00 p.m.; they pounced upon Shaukat, Liaqat and Wajid and caused them severe injuries by means of their respective weapons; they also made firing and ran away; in the meanwhile, Muhammad Fayyaz P.W. (not produced) and Mahmood alias Mooda P.W. (not produced) and Javed P.W. (not produced) reached their and witnessed the occurrence; the complainant and his companions shifted the injured to Poly Clinic Hospital in a Suzuki Pickup. But Shaukat and Liaqat succumbed to the injuries on the way to the hospital. 5. The complainant (P. W.8) got recorded his statement Exh.P.W. Before Arshad Ali SI, P.W.10 at 11-10 p.m on 26-7-2002 at Poly Clinic Hospital, which was sent to the Police Station, Secretariat, District Islamabad by P.W.10, for registration of formal F.I.R. (Exh.PA), through Mushtaq 5847/C. 6. Arshad Ali SI/I.O., P.W.10, examined the dead bodies of Shaukat Ali and Liaqat deceased and prepared inquest reports Exh.PY, Exh.PX and also drafted applications Exh.PBB and Exh.PCC
---
## Page 3
respectively for. Postmortem examination of both the dead bodies. He prepared injury statement Exh.PZ of the injured Wajid and wrote down a memo of identification Exh.PAA of both the deceased. Thereafter, he reached the place of occurrence, caused its inspection and drafted visual site plan Exh.PDD about it. He took into possession blood-stained earth from two spots vide memo Exh.PH and rendered it into two separate sealed parcels. He returned to the PIMS and shifted the dead bodies of the deceased to DHQ Hospital, Rawalpindi for postmortem examination. He, after the autopsy of the dead bodies, took into possession the last worn blood-stained clothes of the deceased vide memo Exh.PM. He arrested Muhammad Ghalib (appellant), Muhammad Talib (acquitted co-accused), Nasir Mehmood (appellant) and Sajid Mehmood, (acquitted co-accused) on 28-7-2002. Muhammad Ghalib appellant got recovered chhuri P-6, vide memo Exh.PJ, attested by Tariq Mahmood, P.W.3 and Talib Mahmood P.W. (not produced), Talib appellant led to the recovery of a danda P-7 vide memo Exh.PK and Nasir Mahmood appellant got recovered chhuri P- 8 vide memo Exh.PL attested by the above said P.Ws. The I.O. Prepared the site plans qua the places of the recovery of the aforesaid weapons Exh.PEE. He also arrested Arshad Mahmood (since acquitted), Azhar Mahmood (since acquitted), Muhammad Hanif (appellant) and Waheed Ahmad (appellant), Muhammad Haneef accused led to the recovery of chhuri P-1 vide memo Exh.PC attested by Haji Ghaffar, P.W.2 and Maula Dad P.W. (not produced). Sajid Mahmood accused (since acquitted) got recovered .12 bore gun P-2 vide memo Exh.PD, attested by Haji Ghaffar P.W.2 and Muhammad Nazakat P.W. (not produced). Waheed Ahmad (appellant) got recovered hatchet P-3 and a pistol P-4 vide separate memo of recovery Exh. PE and Exh.PF, both attested by Haji Ghaffar P.W.2 and Muhammad Nazakat P.W. (not produced). Azhar Mahmood accused (since acquitted) led to the recovery of a knuckle duster P-5 vide memo Exh.PG attested by Haji Ghaffar, P.W.2 and Maula Dad P.W. (not produced). The I.O/P.W.10 also prepared the site plans qua the places of the recovery of the above said weapons. 7. The medical evidence was presented by Dr. Muhammad Arshad C.M.0, Federal Services Hospital, Islamabad, P.W.6, who conducted postmortem examination of both the dead bodies at DHQ Hospital, Rawalpindi, one after the other. Firstly, he performed autopsy on the dead body of Muhammad Liaqat at 1-00 p.m., on 27-7-2002, vide post mortem examination report Exh. PR, bearing his signature Exh.PR/1 and found the following injuries thereon:-- (1) An incised stab wound on the right temple just in front of the upper border of the right ear pinna, measuring, 3 c.m x 1 c.m, cutting the under lying bone. The brain matter was coming out through the wound, right ear was plugged. (2) An incised stab wound, bone deep, measuring 3 c.m x 1 c.m on the upper border of the right shoulder. (3) An incised stab wound measuring 1.5 c.m x c.m on the front of right shoulder just medial to the axillary fold. (4) An incised stab wound measuring 1.5 c.m. x .8 c.m. On right front chest, 1 inch below the nipple. (5) An incised stab wound measuring 3 c.m x 1 c.m on the lateral surface of the right chest, 9 c.m lateral to the nipple., (6) An incised stab wound measuring 2 c.m x .8 c.m on posterior of the right chest at the level of posterior axillary line. (7) A penetrating wound measuring 8 c.m diameter on the right side of the abdomen, 6 inches lateral to the umbilicus. ' The cause of death recorded by the Medical Officer was due to the damage to the brain and right lung. All the injuries were ante-mortem and except injury No,7, caused by sharp-edged weapon. The injury No,7 was guessed as a blunt weapon injury. ' The probable time elapsed, as noticed by this P.W., between injury and death was 'immediate' and between death and postmortem examination, within 30 hours.
---
## Page 4
' The dead body of Muhammad Shaukat deceased was dissected at 11-40 a.m. On the same day by the same Medical Officer, P.W.6, vide post mortem examination report Exh.PS with his signature Exh.PS/1, who found the following injuries on the dead body:-- (1) An incised wound on the anterior surface of the left mid arm, muscle deep measuring 3 c.m x 1 c.m, 16 c.m below the shoulder and 19 c.m above elbow. (2) An incised stab wound on right upper front part of the chest, measuring 1.5 cm x 1 c.m, one inch medial to the axillary fold. (3) An incised stab wound on the right abdomen, measuring 4 c.m x 2 c.m, above and lateral to the umbilicus (7 c.m). (4) A long transversely placed incised wound on the lower back chest 10 c.m in length, bone deep, on the left end with tale on the right, 16 c.m above the iliac crest. (5) A bruise measuring 11 c.m x 2 c.m on back of right shoulder. (6) An abrasion measuring 2 c.m x nail head on the forehead, just right to the mid. ' The cause of death recorded by the Medical Officer was the haemothorax and haemorrhage due to damage to the right sub-clavian vessels, upper lobe of the right lung and the liver. All injuries were ante mortem and caused by sharp-edged weapon(s) except injury Nos.5 and 6 which were caused by the blunt weapon. ' The probable time elapsed, as noticed. By this P.W., between injury and death was 'an hour' and between death and postmortem examination, within 30 hours. ' Dr. Rana Muhammad Mobeen C.M.O Poly Clinic Islamabad, P.W.7, though examined the dead bodies of both the deceased on 26-7-2002 and noticed their external injuries vide OPD Tickets Exh.PT and Exh.PU, but he did not perform the autopsy, therefore, the description of the injuries on both the corpses, deposed about by this witness might not be important to be reproduced, as, the testimony of Dr. Muhammad Arshad, C.M.O, P.W.6 entails all such details. He, P.W.7, however, conducted medical examination of Wajid Abbasi injured, P.W.9, at 9-55 p.m. Vide MLR Exh.PV and found the following injuries on his person:- (1) Transverse incised/cut wound over right side of neck, skin deep with haematoma. (2) Incised/cut wound over right side of scalp, skin deep with sharp skin edges. (3) Cut wound. Over lower abdomen through which loops of small intestine protruded out with perforation on it. (4) Cut wound over abdomen in midline just above umbilicus. ' The patient was operated by the. Surgeons of General Surgery Department who found Jejunum perforation, 2 to 3 tears in mesentery of small intestine and Serosal tear. Three centimeters of jejunum resected and end-to-end anastomosi done. ' The above said injuries were declared as Jurh Jaifah (337-D, P.P.C.) Ghayr Jaifah Badiah (337-Fii, P.P.C.) and Ghayr Jaifah Damiyah (337-Fi, P.P.C.) and were found to be caused by sharp-edged weapon. 8. The prosecution, after indictment of the appellants-accused and their acquitted co-accused, produced JO witnesses before the learned trial Court, in toto to establish the charge against the accused. Muhammad Rafaqat, P.W.8 and Wajid Abbasi, P.W.9 furnished the ocular account. ' The, medical evidence was tendered by Dr. Muhammad Arshad, C.M.O. P.W.6, who performed autopsy on, both the dead bodies vide Postmortem Examination Report Exh.PR and Exh.PS. Dr. Rana Muhammad Mobeen C.M.O. P.W.7, also externally examined the injuries of both the deceased vide OPD tickets Exh, PT, Exh. PU and medically examined Wajid Abbas: (P.W.9) vide MLR Exh.PV. The evidence of recovery of the crime weapons was furnished by Haji Ghaffar, P.W.2, Tariq Mahmood P.W.3 and Arshad Ali SI/I O., P. W.10 who completed, the investigation and submitted a report under section 173, Cr.P.C. Before the learned trial Court. The I.O. Got prepared scaled site plan Exh. PQ,
---
## Page 5
Exh.PQ/1 and Exh.PQ/2 in triplicate, by Muhammad Akram draftsman, P.W.5 in the scale of I inch equal to 20 feet. The rest of the prosecution evidence is, more or less, formal. 9. In his statement under section 342, Cr.P.C., Muhammad Ghalib, the appellant-accused, denied and controverted the prosecution case and advanced a specific plea of exercise of right of self- defence, while recording his reply to the question, "Why this case against you and why the P. Ws. Have deposed against you" as follows:-- "All the private witnesses are related to the deceased persons and remaining witnesses arc police officials who are public servants. No independent witness of the area deposed against me. The prosecution witnesses are interested and inimical towards me therefore, they supported the false story of the prosecution against me. On the day of the occurrence actually, Liaqat, Shoukat and Wajid trespass to my house after coming almost a distance of one kilometer. They gave injuries to me and my wife and mother-in-law due to the earlier altercation between me and Rafaqat alias Baga. I by exercising my right of private defence took out a chhuri from my kitchen and gave few blows to the assailants. After receiving injuries they ran back towards the street,. Liaqat and Shoukat fell down near the house of Najmul Hassan and Zarwaiz whereas Wajid fled, away from the said place. Both the injured remained in lying condition at the said place for 30 minutes and subsequently died. I being injured along with other injured family members went to the Poly Clinic Hospital for treatment where I was arrested. I also lodged complaint of the attack of the complainant party in my house but police did not lodge report against the complainant party. The police with the connivance of the complainant party, registered a case against me and my other innocent relatives in this case. During the attack of complainant party at my residence Talab my brother after hearing my hue and cry came to the scene of the occurrence and tried to rescue myself and save my family members who also saw the occurrence but the complainant party and police also subsequently made accused of this case. The complainant party for the purpose to save their skin regarding their aggression upon me and my family members changed the venue of the occurrence and concocted a story that occurrence was taken place near the house of Riaz." ' Nasir Mahmood, Muhammad Haneef and Waheed Ahmad appellants-accused however, denied and rebutted the allegations of fact against them and professed their innocence, in their separately recorded statements under section 342, Cr.P.C., while recording reply to the above said question in the following words:- "I have been falsely implicated in this case due to my relationship with Ghalib accused, at the time of occurrence I was not present at the spot and did not participate in the occurrence, the police subsequently arrested me in this case and false recoveries were planted upon me. I am innocent and may be acquitted from this case." ' The appellants did not produce any defence evidence nor they opted to appear as their own witness to repel the charges against them under section 340(2), Cr.P.C. 10. The learned trial Court on appraisement of the evidence, available on the record held the appellants guilty, convicted and sentenced them in the aforementioned terms, through the judgment under appeal. The co-accused of the appellants, namely Muhammad Talib, Azhar Mahmood, Sajid Mahmood, and Arshad IVIahmood, however, were acquitted through the same judgment. 11. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance. 12. Muhammad Rafaqat alias Bagga, complainant, P.W.8 is the real brother of both the deceased. Wajid Abbasi, P.W.9, is the real maternal uncle of the deceased. Muhammad Fayyaz P.W. (not produced) is the maternal cousin (khalazad) of the deceased. Mahmood alias Mooda P.W. (not produced) is the husband of the real sister of the deceased and Javed Iqbal P.W. (not produced) is the paternal cousin (chachazad) of the deceased. It has been admitted by the complainant P.W.8
---
## Page 6
in his evidence that all the prosecution witnesses including himself are close relatives inter se as well as, of the deceased. 13. The learned counsel for the appellants has argued that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt and thus they are entitled to be acquitted by this court; the eye-witnesses produced by the prosecution were closely related to the deceased, interested and inimical to the appellants who, maliciously had suppressed the real facts of the case; the F.I.R. Is an ante dated and ante timed document which has been fabricated by the prosecution with false timings shown on it, to pose it as a promptly lodged document; the motive setup by the prosecution had remained far from being proved so the prosecution has to face its consequences; the recovery of chhuries P-6, P-8 and P-1 have been planted upon Muhammad Ghalib, Nasir Mahmood and Muhammad Haneef appellants, whereas, a hatchet P-3 and pistol P-4 have been planted upon Waheed Ahmad appellant with fictitious proceedings, to substantiate, an otherwise unproven prosecution's case; the medical evidence is inconsistent with the ocular account, furnished by the inimical and biased witnesses; the complainant party had committed aggression against the appellants by causing severe injuries to the appellants in an unprovocative attack at the residential house of Muhammad Ghalib appellant; the co-appellants of Muhammad Ghalib appellant had not taken part in the incident and it was he alone who had retaliated in self- defence to fend off the aggression launched by the deceased; impugned judgment/has been passed in arbitrary, perverse and capricious manner which may be set aside and the appellants may be acquitted of the charge. 14. As against the submissions of learned counsel for the appellants, the learned Deputy Prosecutor-General appearing for the State and the learned counsel for the complainant have submitted in agreement that the prosecution had fully established the guilt of the appellants beyond reasonable doubt through trustworthy ocular account, corroborative medical evidence, the evidence of the recovery of weapons of offence from all the appellants and the evidence of motive; the appellants and their co-accused had committed a barbaric act, by taking the life of two innocent persons and almost, killed the third one during the occurrence; the appellants Nasir Mahmood and Muhammad Haneef should have been awarded the capital punishment like their co-appellants in absence of any extenuating circumstance, being vicariously liable for the murder of. Shaukat and Liaqat deceased, hence, the revision petition filed by the complainant for enhancement of sentence may be accepted and the instant appeal of the appellants may be dismissed. 15. The prosecution case hinges upon the ocular account furnished by an injured witness P.W.9 and Muhammad Rafaqat P.W.8, the evidence of motive, the medical evidence presented by Dr. Muhammad Arshad C.M.O., P.W.6 and Dr. Rana Muhammad Mobeen, C.M.O., P.W.7 along with the evidence of recovery of the crime weapons, chhuri P-6, vide memo Exh.PJ, hatchet P-3 vide memo Exh.PE, pistol P-4 vide memo Exh.PF, chhuri P-8 vide memo Exh.PL and chhuri P-1 vide memo Exh.PC, at the instance of Muhammad Ghalib, Waheed Ahmad, Nasir Mahmood and Muhammad Haneef appellants-accused, respectively. 16. After having heard the learned counsel for the parties and going through the record we straightaway find that Muhammad Ghalib appellant has advanced a specific defence plea, as regard to the prosecution case and in his statement under section 342, Cr.P.C. He has contended that he along with his wife and mother-in-law had been badly injured by Liaqat (deceased), Shaukat (deceased) and Wajid (P.W.9). Who being armed, had, attacked him, at his residential house, after covering a distance of about 1 kilometer. We further noticed that despite having raised the specific defence plea, he has neither appeared, in his defence, under section 340(2), Cr.P.C. Not he has adduced, any, defence evidence. The requirement of Article 121, Qanun-e-Shahadat appears to have been ignored and overlooked by the defence during the course of the trial. The
---
## Page 7
unfortunate incident was reported to the police promptly, within two hours and ten minutes by Muhammad Rafaqat alias Bagga complainant P.W.B. We have also gathered that on the basis of the same evidence, four co-accused of the appellants have been let off by the learned trial Court so in this background we have to see whether or not the ocular account, gets the complete corroboration from the other attending circumstances and whether the ocular account in its present form is trustworthy and unimpeachable? In these circumstances we have to deal with each bit of the evidence available on the record so as to plumb the depth of the real facts of this case. 17. As far as the motivating factor in the instant case is concerned we have noticed that it relates to the tense and strained relations between Muhammad Rafaqat alias Bagga, P.W.8 and Ghalib alias Guddi, C appellant spanning over a period of 4/5 years which led to an exchange of hot words between them in the early hours of the fateful day but due to the intervention of the people around, the matter was, for the time being, resolved. The trail of this tension-full tale did not come to an end as the complainant, who sat at the shop of one Miskeen, situated in the Adda, at about 8-00 p.m., he, in the backdrop of the animosity, was attacked and thrashed by the appellants, joined by their acquitted co-accused, who took part in the violent drill being armed with different weapons. To his good-luck, the people present at the spot again intervened and rescued him. This piece of the motive incident, when known by the family members of the complainant, P.W.8, prompted his real brothers Shaukat, Liaqat and his maternal nephew Wajid Abbasi to reach the point of trouble and they consoled and solaced him but decided that the unruly behaviour and conduct of Ghalib be reported to his brother Aurangzeb who incidentally was their close relative (behnoi) and ran a shop not far off from the house of the appellants-accused. The residential house of Talib accused (since acquitted) was situated close to the shop of Aurangzeb. There was close relationship between the parties as Liaqat deceased was married with the real sister of Ghalib accused-appellant and as discussed above, the real sister of Liaqat deceased was married with Aurangzeb. Muhammad Rafaqat alias Bagga P.W.8 has contended in his testimony that the relations between the two families had become strained due to many complications involving the inter se marriages between the two families. The hostility between the complainant and Ghalib appellant in fact sparked off due to aforesaid reasons which got compounded because of repeated clashes between them. The strained, but close relationship between the two families had been admitted by both the sides. When we come to the statements under section 342, Cr.P.C. Of the appellants, they have frankly admitted that a quarrel had taken place in the early hours of the day on 26-7-2002, between the deceased and the complainant and all of them have replied in affirmative while answering question No,2,…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.