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Petitioner: MUHAMMAD AFZAL and 3 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Ijaz Ahmad Chaudhry, Muhammad Farrukh Mehmood Title: MUHAMMAD AFZAL and 3 others vs THE STATE Case No.: Criminal Appeals Nos.1800, 2023 and Murder Reference No,655 of 2000 Date of Judgment:2006-09-14 Reported As: 2007 YLR 111 Result: Order accordingly
JUDGMENT
JUDGMENT ' IJAZ AHMAD CHAUDHRY, J.---This judgment will dispose of Criminal Appeal No,1800 of 2000 filed by Muhammad Afzal, Muhammad Ashraf, Muhammad Khalid and Muhammad Iftikhar appellants against their convictions and sentences and Criminal Appeal No,2023 of 2000 filed by the complainant Muhammad Iftikhar Ahmad against the acquittal of Ghulam Mustafa alias Duli, Muhammad Anwar, Khadim Hussain, Muhammad Saleem alias Cheema and Habib Ahmad along with Murder Reference No,655 of 2000 sent by the learned trial Court under section 374, Cr.P.C. For the confirmation of death sentences as all these matters have arisen from the same judgment dated 22-112000 passed by the learned Sessions Judge, Toba Tek Singh through which he has convicted the above said four appellants under section 302(b), P.P.C. For committing Qatl-e-Amd of Zahoor, Mst. Zubaida, Ijaz Ahmad and Sarwar deceased respectively and sentenced them on individual count to death with compensation of Rs,1,00,000 each payable to the legal heirs of the respective deceased or in default of payment thereof to further undergo R.I. For six months each. Anwar alias Maji co-accused was convicted under section 324, P.P.C. For causing injuries to Mst. Shahida P.W. And sentenced to seven years' R.I. With a fine of Rs,50,000 or in default of payment thereof to undergo R.I. For six months each. The fine if recovered half of the same was to be paid to Mst. Shaida injured P.W. Mustafa and Khadim co-accused were also found guilty under section 324, P.P.C. For causing injuries to Mst. Tasneem P.W. And sentenced to seven years R.I. Each with a fine of Rs,50,000 each or in default of payment thereof to undergo R.I. For six months each. The fine if recovered half of the same was to be paid to Mst. Tasneem injured P.W. As compensation. All the above said appellants along with co-accused were also convicted under section 440, P.P.C. And
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sentenced to two years' R.I. Each with a fine of Rs,5,000 each or in default of payment thereof they have to undergo R.I. For six months. 2. The occurrence in the present case according to the prosecution had taken place on 28-9-1993 at 7-30 a.m. Within the area of Chak No,277/JB, 5 kilometers away from Police Station, Nawan Lahore, District Toba Tek Singh and the statement (Exh.P.G) of the complainant Muhammad Iftikhar Ahmad (P.W.14) was recorded under section 154, Cr.P.C. By Inspector/S.H.O. (P.W.26) on the same day at 9-00 a.m. While present at Chak No,279/JB Darapur on the basis of which formal F.I.R. (Exh.P.G. /1) was recorded at the Police Station by Muhammad Saleem, Moharrar/Constable (P.W.4) at 9-50 a.m. 3. The brief facts as narrated in the F.I.R. (Exh.P.G/1) by the complainant Iftikhar Ahmad are that on the fateful day he along with Ijaz Ahmad his brother (Lambardar), Zahoor Ahmad, Muhammad Sarwar, Zubaida Begum, Mst. Shahida his wife, and Mst. Tasneem was sitting in the house and they were busy in talking with each other. In the meanwhile Muhammad Ashraf appellant armed with rifle, Muhammad Afzal appellant armed with rifle, Muhammad Khalid appellant, Khadim Hussain co-accused, Iftikhar Ahmad appellant armed with .12 bore guns, Saleem alias Seema co-accused Mustafa alias Duli co-accused armed with .12 bore guns, Habib co-accused armed with gun .12 bot Khan Muhammad alias Khani armed with gun, Majha armed with .222 rifle and Tariq armed with .12 bore gun came at the spot while raising Lalkaras. Muhammad Ashraf appellant raised a Lalkara that the complainant/victims should not be escaped. Muhammad Afzal appellant fired with rifle which hit on the backside of Zahoor Ahmad. Muhammad Ashraf appellant fired with rifle which hit on the front of forehead of Zubaida Begum. Muhammad Khan co-accused fired with gun at Ijaz Ahmad, which hit on his right buttock. Habib co-accused fired with gun which hit on the left buttock of Ijaz Ahmad, Khalid appellant fired with his gun which hit on the front of chest of Ijaz, Khan alias Khani made the fires one after the other at Ijaz Ahmad which hit on different parts of the his body. As soon as Muhammad Sarwar, Mst. Shahida Bibi and Mst. Tasneem stepped forward, Iftikhar appellant fired at Muhammad Sarwar which hit on different parts of his body. Majha fired with rifle at Mst. Shahida which hit on her chest, Khadim Hussain and Mustafa fired with their guns which hit on the foot and shoulder of Mst. Tanseem. Muhammad Afzal appellant fired with rifle which hit on the abdomen of Muhammad Sarwar. On hue and cry and report of firing Muhammad Ali and Muhammad Asif residents of the, village arrived there and witnessed the occurrence who beseeched the accused and rescued the complainant party. The accused also broke the house hold articles of the complainant and went away while raising Lalkaras and firing. During the occurrence the complainant party also made the firing in their defence and some of the accused were also injured. When the complainant attended Ijaz Ahmad, Zahoor Ahmad and Mst. Zubaida Begum, they had succumbed to the injuries by fire-arms. Sarwar also died later on while Mst. Tasneem (P.W.15) and -Mst. Shahida Bibi (P.W.16) were injured. 4. The motive behind the occurrence was alleged that the accused had injured Nazir Ahmad alias Faqir Muhammad one day before the occurrence and Ijaz Ahmad, Lambardar brother of the complainant was rendering the assistance to him, which gave annoyance to the accused, resulting into this occurrence. 5. After the registration of the case Shahryar Inspector (P.W.26) went to the spot and inspected the three dead-bodies lying there. He prepared the injury statement Exh.PAK and inquest report Exh.PAL of Zahoor deceased, injury statement Exh.PAM and inquest report Exh.PAN of Mst. Zubaida Bibi deceased and the injury statement Exh.PAO and inquest report Exh.PAP of Ijaz deceased. He deputed three Constables namely, Muhammad Sharif, Gulzar Ahmad and Asghar Ali to escort the dead bodies of Zahoor Ahmad, Mst. Zubaida Bibi and Ijaz deceased respectively. He also deputed Gulzar Ahmad, Constable to escort the earth, made into a sealed parcel and took into possession vide recovery memo. Exh.P.T. From the place where the dead body of Ijaz Ahmad deceased was
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lying. He secured blood-stained earth, made into sealed parcel and took into possession vide recovery memo. Exh.P.Q. From the place where Sarwar deceased sustained injuries. He also secured blood-stained earth, made into a sealed parcels and took into possession vide recovery memo. Exh.P.V. He recovered 14 crime empties of .12 bore gun and took into possession vide recovery memo. Exh.P.J. He also took into possession six crime empties of .7 MM and took into possession vide recovery memo. Exh.PK. He further took into possession seven crime empties of .222 bore rifle and took into possession vide recovery memo. Exh.P.L. He also took into possession two broken chairs P.10/1-2, one steel chair P.11, damaged plastic tray P.12 , damaged four steel plates P.13/1-4, one steel donga damaged P.14, another plastic tray damaged P.15 vide recovery memo. Exh.P.R. He drafted rough site-plan of the place of occurrence Exh.PAQ. He recorded the statements of the P.Ws. Thereafter he visited Gojra Hospital where after the postmortem examination on the dead body of Zahoor Ahmad deceased, Muhammad Sharif, Constable handed over to him the last-worn clothes blood-stained Bunyan P.1 and. Dhoti P.2 which he took into possession vide recovery memo. Exh.P.F. Similarly after the post-mortem of Mst. Zubaida Bibi, Gulzar Ahmad Constable produced before him the last-worn clothes Qameez P.23, Shalwar P.24 and Dopatta P.25 all stained with blood which he took into possession vide recovery memo. Exh.PAJ. In the same way after the postmortem examination of the dead body of Ijaz, Akhtar Ali Constable handed over to him last-worn clothes Qameez. P.21, Bunyan P.22 and Shalwar P.20 which he took into possession vide recovery memo. Exh.PAT. On the same day he visited DHQ Hospital Faisalabad where Sarwar deceased while in an injured condition was admitted. He submitted, an application Exh.PAR but the doctor opined that he was not fit to make a statement. On 30-9-1993 he again visited the said hospital and submitted an application Exh.PAS for the same purpose. The doctor again opined that he was not fit to make statement till that time. On 1-10-1993 he again visited the same hospital and submitted an application Exh.PAT and the doctor opined that he was fit to make a statement. He, therefore, recorded his statement under section 161, Cr.P.C. (Exh.PAU). On 2-10-1993 he received an information about the death of said Muhammad Sarwar in the hospital. He again visited the said hospital where injury statement Exh.PAC and inquest report Exh.PAD of Muhammad Sarwar were drafted by him. He deputed Nabi Ahmad Constable to escort the dead body of Muhammad Sarwar deceased to the mortuary. The said Nabi Ahmad after the post-mortem examination handed over to him the last-worn clothes Dhoti P.16 of Sarwar deceased which he took into possession vide recovery memo. Exh.P.W. And he also recorded his statement. On 3-10-1993 he led Kazim Hussain Gilani Draftsman to the spot who took the rough notes on the basis whereof he drafted site-plan Exh.PH/Exh.PH/1, which he handed over to him on 7-10-1993. On 4-10-1993 he arrested Muhammad Afzal appellant in the case. On 20-10-1993 he arrested Khadim co-accused, Iftikhar appellant, Ghulam Mustafa, Anwar and Saleem co-accused. On 29-10-1993 Saleem co accused while in police custody led to the recovery of gun double barrel P.17 from his house which he took into possession vide recovery memo. Exh.PX/1. He also obtained non-bailable warrants of Tariq, Khalid, Habib, Khan Muhammad and Ashraf appellant and deputed Ghulam Rasool for the execution. He also obtained proclamation against the said accused and deputed said Ghulam Rasool Constable for execution. Talat Mahmood S.-I. (P.W.28) also investigated the case, arrested some of the accused and effected recovery of alleged crime weapons from them. 6. After the completion of the investigation report under section 173, Cr.P.C. Was submitted in the Court. Then copies of the documents required under section 265-C, Cr.P.C. Were supplied to the appellants and their co-accused, the charge was framed which was denied by them and they claimed to be tried. The prosecution in order to prove its case produced as many as 28 witnesses. The medical evidence had been furnished through the statements of Dr. Iqbal Rashid (P. W. 10) , Dr. Muhammad Anwar (P.W .18), Dr. Muhammad Yousaf (P.W.19), Dr. Aftab Ahmad (P.W.20) and Dr. Bahsir Ahmad (P.W.24) while the ocular account had been provided by Iftikhar Ahmad (P.W.14), Mst.
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Tasneem Ijaz (P.W.15), Mst. Shahida Bibi (P.W.16) who were injured during the incident, and Mubarik Ali (P.W.17). The investigation had been conducted by Shahryar Inspector/S.H.O. (P.W.26) and Shaukat Ali Shah, Inspector (P.W.27). The remaining witnesses are of formal nature and need not to discuss here. 7. After the close of the prosecution evidence all the accused in their statements under section 342, Cr.P.C. Denied the allegations and professed their innocence. However, Muhammad Ashraf and Muhammad Afzal appellants had admitted their presence at the spot and specific plea of self- defence had been raised by the said appellants. To a question that why this case against you and why the P.Ws. Have deposed against you?" Muhammad Afzal appellant made the reply, which is reproduced as under:-- ' "A day before the present occurrence an altercation took place between I and Ali Ahmad father of Aqif P.W. Ijaz Ahmad was closely related to Ali Ahmad and he threatened dire consequences for the same. We had a dera in Square No,37 Killa No,15 and our cattle are kept there day and night. We keep watch during the night also. During the night before the occurrence I and my brother Ashraf kept watch over the cattle and for the purpose of safety we were having a .12 bore gun with us. In the morning of the day of occurrence we milked the buffaloes and started for our home carrying the bucket of milk and the gun. The place of occurrence falls on our way from our field to our house. As we reached near we saw Ijaz Ahmad, Aqif with .7 MM rifle and his brothers Asif with .12 bore gun present there. They started firing. My sister Kalsoom came forward to entreat Ijaz Lambardar to spare us. Sarwar abused her, Asif gave her a butt blow and she fell down. Ashraf .Received fire-arm injures from the shots of the said complainant party. We were living helpless and the assailants were threateningly coming closer to us. I made two SG shots aiming the anybody. However, Ijaz received injury on his back from a shot fired from his own side. We were removed in a serious condition to General Hospital, Gojra. We were medically examined but the Medical Officer referred us to Allied Hospital, Faisalabad. The complainant party is very influential. They gathered Mehr Muhammad Sadiq of Chak No,333/JB Member Zila Council, Arshad of Chak No,278/JB and a number of other influential Arians and with mutual consultation made out this false version against me and other accused." ' Muhammad Ashraf appellant also relied upon the said reply of his brother Muhammad Afzal. The appellants did not opt to make statement under sections 340(2), Cr.P.C. And also denied to produce any defence evidence. 8. The learned trial Court after hearing the arguments of both the parties had passed the impugned judgment of conviction and sentence as detailed in para.1 ante. Hence all these matters before this Court. 9. Learned counsel for the appellants contends that the occurrence in the present case had taken place in the year 1993 and since then the appellants are behind the bars; that it was a case of two versions and 11 person were named as accused to be armed with fire-arms and the two appellants namely Muhammad Afzal and Muhammad Ashraf along with Mst. Kalsoom had also received injuries during the incident from the side of the complainant and the appellants had acted in self- defence; that only seven injuries in total had been received by the complainant party and on the other hand both the appellants Afzal and Ashraf had received five fire-arm injuries and if 11 persons had participated in the incident as alleged by the complainant party, the number of the injuries received by the complainant party would have been much more; that there was burning on the injuries of Muhammad Afzal which means that he had received the injuries from a close range and if the incident had taken place in the manner narrated by the prosecution, nobody would dare to cause the injuries to Afzal from such a close range; that Afzal had received the injuries from two type of weapons; that the Investigating Officer had conducted the investigation in a dishonest manner in spite of the fact that the complainant claimed that he also fired in self-defence, but he
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did not ask the complainant party for the supply of the weapon allegedly used by them and did not send the same to the office of Forensic Science Laboratory to ascertain whether any empty recovered from the spot had been tired from the said weapon or not; that the Investigating Officer had tried to suppress the true facts and had not conducted the investigation in an impartial manner; that the eye-witnesses had not spoken the whole truth; that according to the F.I.R. The incident had taken place in the courtyard of the house but at the trial the venue was changed to a thoroughfare in front of the house; that the injuries on the persons of the accused has not been sufficiently explained by the prosecution witnesses, who had magnified the role of the accused and minimized their role; that the medical evidence was also in contradiction with the ocular account, as per prosecution case Muhammad Sarwar was fired at by Afzal appellant on his abdomen, but no injury was found on the abdomen of Sarwar; that Iftikhar Ahmad appellant was alleged to have fired repeatedly hitting on the different parts of the body of Sardar, but no injury with firearm was found except Injury No,1, which was on the lower part of the chest; that Khadim Hussain and Mustafa according to the prosecution had fired at Mst. Tasneem but she received two injuries only and Injury No,1 was kept under observation and the weapon used for causing the same was not declared while Injury' No,2 was caused with blunt weapon; that Khan Muhammad was attributed repeated shots on the person of Ijaz hitting on different parts of his body and Muhammad Khalid appellant was also attributed injuries on the lower buttock of Ijaz while Habib was alleged to have caused injury on the left buttock, but number of injuries attributed to the three accused did not commensurate with the injuries observed by the doctor at the time of postmortem examination of Ijaz deceased; that the co-accused who were also attributed injuries on the person of the deceased and the injured P.Ws. Have already been acquitted and the appellants could not be convicted on the basis of the same evidence which has been disbelieved regarding the other accused unless there was corroborative piece of evidence to distinguish their case; that true facts had been suppressed by the prosecution and if both the versions are put in juxtaposition it would be found that the story of the defence was more nearer to the truth; and lastly that the case of the appellants at the most is not fit for maintaining the death sentences and their sentences may be reduced. 10. Learned counsel for the complainant and the State on the other hand have opposed this appeal on the ground that every case has its own circumstances; that the appellants had come along with the acquitted accused in the shape of group and they had a motive to commit the murder of the deceased and launching of an attack on the complainant party; that the occurrence had taken place near the house of the complainant party and the accused had no justification for entering in the house of the complainant and made firing at the deceased and the injured P.Ws.; that four persons had been murdered and two were injured and the motive was also proved beyond any shadow of doubt that a day before one Nazir had been injured by the accused and Ijaz being Lambardar had provided help to the injured person to get registered the case against the appellants and close relatives of the witnesses in the said case against the accused had been murdered; that the whole family had been attacked and the minor contradictions in the statements of the witnesses are not sufficient to discard the evidence. 11. We have heard the arguments of the learned counsel for the parties and also perused the record with due care and caution. 12. The occurrence in the present case was alleged to have taken place at 7-30 a.m. While the matter was reported to the police at 9-00 a.m. At a place other than the police station. Such F.I.Rs, are seen with doubt that whether those had been registered at the given time or not. As such whether the F.I.R. Was got lodged with promptitude has to be seen with the other facts and circumstances of the case.
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13. To prove the ocular account, the prosecution examined Iftikhar Ahmad complainant (P.W.14), Mst. Tasneem Ijaz (P.W.15), Shahida Bibi (P.W.16) and Mubarik Ali (P.W.17). P.W.14 was brother of Ijaz Ahmad deceased, P.W.15 was widow of Ijaz Ahmad deceased, P.W.16 is wife of the complainant and P.W.17 was also collateral of Ijaz Ahmad deceased. As such all the P.Ws. Were closely related inter se and with the deceased. It is settled A law that mere close relationship of the witnesses is not sufficient to declare them interested witnesses and discard their evidence unless it is proved that they had enmity to falsely implicate the accused. In the present case no previous enmity existed between the parties. P.Ws. 15 and 16 were injured during the occurrence while P.Ws. 14 and 17 were also residents of the same locality. As such the presence of the P.Ws. At the spot was free from doubt. However, in the facts and circumstances of the case, mere presence of the P.Ws. At the spot and witnessing the occurrence is not sufficient to prove that they had also made true account of the occurrence as in the present case two appellants, namely, Muhammad Ashraf and Muhammad Afzal besides their sister Mst. Kalsoom had also received injuries, which, were not sufficiently explained by the prosecution. So great care and caution is required to appreciate the prosecution evidence and reach a just conclusion. 14. First of all we have noticed that according to the prosecution version narrated in the F.I.R. The occurrence had taken place inside the house of the complainant, but at the trial while appearing as P.W.14 the complainant had changed the venue of the incident while saying that after the accused party arrived and raised a Lalkara that the complainant party should not be spared, they went out of the house due to fear but the accused encircled them in the adjacent chowk. It is also notable that according to the Investigating Officer when he visited the spot after the recording of the statement of the complainant he had found the dead-bodies lying in the courtyard of the house as claimed by the complainant in his statement under section 154, Cr.P.C. According to the inquest reports the dead-bodies were also shown lying in the courtyard and according to the Investigating Officer the blood-stained earth was also collected from the courtyard of the house of the complainant, but it seems that subsequently the venue of the incident during the investigation had been changed as in the rough site-plan too the dead bodies were shown lying in the courtyard but in the site-plan got prepared from the Draftsman on the pointing out of the witnesses and direction of the police incident was shown to have taken place on a thoroughfare outside the house of the complainant party and none of the deceased or the injured P.Ws. Were claimed to have been fired at inside the house. So there was contradiction in the stand of the prosecution regarding the most important fact that as to where the incident hid taken place and no sanctity can be attached to the F.I.R. That it was got lodged with promptitude. 15. According to the prosecution version, eleven accused including the four appellants had participated in the incident and specific injuries had been attributed to the appellants as well as the acquitted accused, namely, Muhammad Tariq, Khadim Hussain, Ghulam Mustafa, Muhammad Saleem, Muhammad Anwar and Habib Ahmad, but the medical evidence is not found in line with the ocular account regarding the number of the injuries attributed to each of the accused. According to the eye-witnesses Muhammad Afzal appellant had fired at Sarwar hitting on his abdomen and Iftikhar Ahmad appellant had also fired at Sarwar hitting on the different parts of his body. Muhammad Saleern and Muhammad Tariq co-accused were also alleged to have fired at Sarwar deceased as per statement of P.W.14 and P.W. 15 in the courtyard though it had not been mentioned in the statements got recorded under sections 154 and 161, Cr.P.C. We have noticed that Muhammad Sarwar in injured condition had been medically examined on 28-9-1993 by Dr. Muhammad Anwar (P.W.18) and he found Injury No, 1 a fire-arm would of entry with inverted margins 1 c.m. x 1/2 c.m. On front of left chest lower part 10 c.m. Below left nipple and with a fire-arm wound of exit with everted margins 1 c.m. x 1 c.m. On the back of left abdomen. Injuries Nos.2 and 3 were abrasions on back of right thumb and left foot. So the medical evidence has contradicted the
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stand of the eye-witnesses that Muhammad Sarwar deceased was firstly fired at by Iftikhar Ahmad appellant on the different parts of his body as no such injuries were observed by the doctor. Muhammad Sarwar was also alleged to have fired at by Saleern and Tariq co accused, but no such fire-arm injuries had been found on his body. Only fire-arm injury found on the lower chest of Muhammad Sarwar could be as a result of firing from Afzal though the witnesses stated that the said injury was on the abdomen of Sarwar deceased but it was on . The lower part of left chest. So it cannot be said that the said injury was only attributable to Muhammad Afzal as Muhammad Sarwar was alleged to have been fired at by Iftikhar, Saleern and Tariq besides Muhammad Afzal. Moroever, Shahida Bibi (P.W.16) in his examination- in-chief had attributed injury on the chest of Muhammad Sarwar deceased to…
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