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Petitioner: MUHAMMAD RAFIQUE and anothers VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad Sarfraz Dogar, Sh. Riaz Ahmad Title: MUHAMMAD RAFIQUE and anothers vs THE STATE Case No.: Criminal Appeal No, 106 and Murder Reference No, 35 of 1984/BWP Date of Judgment:1988-06-05 Reported As: 1989 P Cr. L J 43 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' RIAZ AHMAD, J.-- The appellants Muhammad Rafique and Muhammad Mazhar both real brothers sons of Baqar Ali were tried along with the acquitted accused namely Nazar Muhammad son of Baqar Ali, Ghulam Nabi and Hashmat Ali sons of Muhammad Sharif by the Sessions Judge, Bahawalnagar on charges under sections 148, 302, 307, 452 and 149, P.P.C. For having formed themselves into an unlawful assembly, armed with deadly weapons and for having committed the murder of Ahmad Yar (deceased) by trespassing into the house of deceased and for having caused murderous assault on four counts i,e, to have caused injuries to Muhammad Akram, Khurshid Ahmad, Jehangir and Aslam. 2. Vide judgment, dated 31-10-1984, the learned Sessions Judge, Bahawalnagar, acquitted Nazar Muhammad, Ghulam Nabi and Hashmat Ali, co-accused but found the appellants Muhammad Rafique and Muhammad Mazhar guilty on all the charges and accordingly, the appellants were convicted and sentenced to death and to pay a fine of Rs,5,000 or in default thereof to suffer rigorous imprisonment for one year each. Both the appellants were further directed to pay Rs,5,000 as compensation to the heirs of Ahmad Yar (deceased) or in default thereof to suffer rigorous imprisonment for a term of six months each. On the charge under section 452, P.P.C. Each of the appellants was sentenced to suffer a term of three years' R.I. And to pay a fine of Rs,5,00 each or in default thereof to suffer rigorous imprisonment for one month each. For having committed the murderous assault on Muhammad Akram P.W., each of the appellants was sentenced to suffer rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof, to suffer further rigorous imprisonment for a term of six months. Each of the appellants was directed to pay Rs,1,000 as compensation to Muhammad Akram P.W.Or in default thereof to suffer
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rigorous imprisonment for a term of six months each. Similarly, for having caused injuries to Khurshid Ahmad P.W., each of the appellants was sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer six months R.I. Each of the appellants was directed to pay Rs,1,000 as compensation to Khurshid Ahmad, P.W. Or in default thereof to suffer rigorous imprisonment for a term of six months. For causing injuries to Jehangir P.W., each of the appellants was sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer six months' R.I. Each of the appellants was directed to pay Rs,1,000 as compensation to Jehangir P.W. Or in default thereof, to suffer rigorous imprisonment for a term of six months. On the fourth count, for having caused injuries to Muhammad Aslam P.W., each of the appellants was sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs,1,000 or in default thereof to suffer six months' R.I. Each of the appellants was directed to pay Rs,1,000 as compensation to Muhammad Aslam P.W. Or in default thereof, to suffer rigorous imprisonment for a term of six months. These convictions were recorded under section 307, P.P.C. Read with section 34 of the Pakistan Penal Code. 3. Aggrieved by their convictions, the appellants assail the same through Criminal Appeal No, 106 of 1984 (BWP) while Criminal Appeal No, 3 of 1985 has been filed by the State challenging the acquittal of Nazar Muhammad, Ghulam Nabi and Hashmat Ali acquitted co-accused. The case has also been referred to us under section 374, Cr.P.C. This judgment shall dispose of both the aforesaid appeals as well as the reference. 4. The occurrence resulting into the death of Ahmad Yar (deceased) and the receipt of injuries by Muhammad Akram, Khurshid Ahmad, Jehangir and Muhammad Aslam took place on 20-7-1983 at 8-15 p.m. In the Dera of Ahmad Yar (deceased) in village Dadu Mamunka situated at a distance of 11-1/2 kilometers from Police Station Donga Bonga. 5. The occurrence was reported by Muhammad Afzal P.W.14, son of deceased, at the police station through a written application Exh.P.R. On the basis of which the F.I.R. Was drawn at 10 p.m. By Muhammad Alamgir, Head Constable, P.W.13. 6. The prosecution case as stated in the aforesaid F.I.R. Was that on the fateful evening at about 8- 15 p.m., the complainant Muhammad Afzal, his deceased father Ahmad Yar, his brother Muhammad Akram P.W. 16 alongwith their Munshi Ghulam Rasool, tractor Driver Khurshid Ahmad P.W.15, Jehangir and Muhammad Aslam were present in the Dera of the deceased and were watching the television. Suddenly, they heard a Lalkara from the southern side of the Dera. The complainant turned around and saw at his back, Nazar Muhammad armed with a .12 bore gun, Muhammad Mazhar armed with a rifle, Muhammad Rafique armed with a rifle, Ghulam Nabi armed with a .12 bore gun, Hashmat Ali armed with a .12 bore gun and Allah Yar armed with a rifle had appeared in the Dera. Nazar Muhammad at once fired a shot on the father of the complainant, Ahmad Yar (deceased) followed by a second shot fired by Ghulam Nabi and the third fired by Allah Yar hitting the deceased. On the receipt of these shots, the deceased Ahmad Yar who was sitting on a Pirhi fell down. The remaining accused also indulged into firing at the complainant and other inmates on account of which, Muhammad Akram, P.W., the brother of the complainant, Khurshid Ahmad, tractor driver, Jehangir and Muhammad Aslam were seriously injured. The complainant rushed and took the shelter behind a tractor. All the accused while firing escaped towards the northern side of the Dera. The complainant further alleged in the F.I.R. That he and the witnesses had identified all the assailants in the light of electric bulb. 7. The motive for the commission of crime as stated was that Allah Yar Mamunka is the stepbrother of the deceased, father of the complainant, and 9/10 years before, the real brothers of Allah Yar Mamunka namely Abdul Sattar and Abdul Ghaffar (stepbrothers of the deceased Ahmad Yar) were murdered. According to the complainant, his deceased father Ahmad Yar and his uncle were
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suspected of the said murders. As against Nazar Muhammad, Muhammad Mazhar and Muhammad Rafique, it was stated by the complainant that in exchange of the marriage of his uncle, his real sister had been betrothed with Muhammad Mazhar. Similarly, the marriage of Muhammad Rafiq accused had to take place with the daughter of Bahadar Ali in exchange of which the daughter of Baqar Ali father of the appellants was betrothed to Maqsood Ahmad son of Bahadar Ali. According to the complainant, the arrangements of these marriages were upset because his father Ahmad Yar (deceased) refused to give the hand of his daughter in marriage to Muhammad Mazhar and settled her marriage with Maqsood Ahmad son of Bahadar Ali, as a result of this disengagement, Bahadar Ali also refused to give the hand of his daughter to Muhammad Rafique accused and settled her marriage with Muhammad Akram P.W., the real brother of the complainant. As against Ghulam Nabi and Hashmat Ali, it was stated by the complainant that there was long-standing enmity between them and both sides had got cases registered against each other. In the recent past, the areas of the complainant and Hashmat Ali and Ghulam Nabi were tagged with each other to become one constituency for the election, while in the past election, the complainant side and Hashmat All and Ghulam Nabi had fought with each other, on account of which, the deceased father of the complainant and Ghulam Nabi entered into serious tug of political and legal battle to defeat each other. It was further stated by the complainant that on account of the background narrated above, all the accused by forming themselves into an unlawful assembly armed with deadly weapons had launched the attack. 8. On 21-7-1983 at 7 a.m., P.W. 3 Dr. Manzoorul Haq, Medical Officer, Civil Hospital, Haroon Abad, conducted the post-mortem examination on the dead body of Haji Ahmad Yar deceased and the following injuries were noticed:- (1) Two punctured wounds of entrance of pellets 1-1/4 c.m. 1 c.m. And 1 x 1 c.m. Adjoining each other on back of right elbow joint with a single wound of exit 4 c.m. x 2 c.m. On back of right forearm 3 c.m. Below the wound of entrance. (2) One punctured pellet wound of entrance 1 c.m. x 1 c.m. On back of right elbow joint 2-1/4 c.m. Above wound of entrance No,1 with wound of exit 1-1/4 x 1 c.m. On front of right forearm 12 c.m. Below bend of elbow. (3) Two lacerated wounds 8 c.m. x 4 c.m. And 7 c.m. x 3 c.m. x skin deep on outer aspect and back of right forearm 2 c.m. Below elbow-joint. Wounds were separated by a tag of skin only. (4) One abrasion mark 1-1/2 x 1-1/2 c.m. x superficial skin deep on back of right upper arm 3 c.m. Above elbow joint. (5) One punctured pellet wound of entrance 3/4 x 3/4 c.m. On back of right forearm 3 c.m. Above wrist joint with wound of exit 1-1/4 c.m. x 1 c.m. On front of right forearm 2 c.m. Above wrist joint. (6) One punctured pellet wound of entrance 1 c.m. x 3/4 c.m. On back of right forearm 2 c.m. Above wrist joint with wound of exit. 2 c.m. x 1 c.m. Just above wound of exit No,5. Complete fracture of both radius and ulna bone was present. (7) Three punctured wounds of pellets entrance 1 x 1 c.m. Each on front of left forearm 7 c.m., 9 c.m. And 13 c.m. Above wrist joint with wounds of exit 1-1/4 c.m. x 1 c.m., 1 c.m. x 1 c.m. And 1-1/4 c.m. x 1 c.m. On back of left forearm 8 c.m., 8 c.m. And 13 c.m. Above wrist joint respectively. (8) One punctured pellet wound of entrance 1-1/4 c.m. x 1 c.m. On front of right thigh 12 c.m. Above knee joint wound of exit 2 c.m. x 1 c.m. Of front of right thigh 13 c.m. Above knee joint and 4 c.m. Medial to the wound of entrance. (9) One lacerated wound 3 c.m. x 1 c.m. On front of right thigh 9 c.m. Above knee joint. (10) One punctured pellet wound of entrance 1 c.m. x 3/4 c.m. On inner aspect of left thigh 6 c.m. Above knee joint with wound of exit 1-1/4 c.m. x 1 c.m. On outer aspect of left thigh 2 c.m. Above knee joint.
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(11) One punctured wound of entrance 1 c.m. x 1 c.m. x thigh deep on inner aspect of left knee joint. Pellet was removed from the deeper tissues lying over the bone. (12) One abrasion mark 1 c.m. x 1/2 c.m. x superficial skin deep on inner aspect of left thigh 10 c.m. Above injury No, 11. (13) One punctured wound of entrance of pellet 1-1/2 c.m. x 1 c.m. On inner aspect of left thigh 5 c.m. Above injury No, 12. Pellet was removed from sub-cutaneous tissues on back of left knee joint. (14) One lacerated wound 3 c.m. x 2-1/4 c.m. On inner aspect of terminal phalanx of left big toe (15) Eight punctured pellet wounds of entrance 1 c.m. x 3/4 c.m. Each on back of right lumber region and upper part of buttock in an area of 8 c.m. x 7 c.m. With wounds of exit 1-1/4 c.m. x 1 c.m., 1-1/2 c.m. x 1 c.m., 1-1/2 c.m. x 1 c.m., 1-1/4 c.m. x 1 c.m., 1-1/2 c.m. x 1 c.m., 1-1/2 c.m. x 1 c.m. On outer part of the buttock on right side of lower abdomen in an area of 26 c.m. x 3 c.m. Two pellets were removed from fatty tissues of right side of abdomen 10 c.m., 13 c.m. Above umbilicus. (16) Three abrasion marks 3 c.m. x 1 c.m. x superficial skin deep each on right side of abdomen 16 cm., 13 c.m. And 8 c.m. Above and lateral to umbilicus respectively. (17) Seven punctured wounds of pellet entrances 1-1/4 c.m. x 3/4 c.m. Each x chest deep on back side of right chest in an area of 8 c.m. x 6 c.m., 12 c.m. Below tip of shoulder with three wounds of exit 1-1/2 c.m. x 3/4 c.m. Each on left side of chest in an area of 8 c.m. x 4 c.m., 10 c.m. Below left axilla. One pellet was removed from sub-cutaneous tissues of left chest 13 c.m. Below left nipple. One pellet was removed from within the left chest cavity. One pellet was removed from sub- cutaneous tissues of left chest 10 c.m. Below and lateral to left nipple. 9. Both pleurae and both lungs were punctured at various places. In the opinion of the doctor, the death had occurred due to severe internal and external haemorrhage caused by injuries Nos. 1, 2, 5 to 11, 13, 15 and 17 which were sufficient to cause death in the ordinary course of nature collectively. Injury No, 17, individually, was sufficient to cause death in the ordinary course of nature. All the injuries were opined to have been caused with fire-arms. Eight pellets were also recovered from the dead body. 10. On 21-7-1983 at 12-30 a.m., P.W.1 Dr. Muhammad Ismail, Medical Officer, Rural Health Centre, Donga Bonga, conducted the medico-legal examination of Jehangir son of Suleman and the following injuries were noticed on his person:- (1) Multiple small rounded fire-arm wounds margins inverted and lacerated. No blackening or scorching was present around the wound in diameter 1/4 cm. Superficial skin deep on the right back of the trunk at the lumber region in the area of 17 x 10 c.m. (2) Multiple small rounded fire-arm wounds. Margins inverted and lacerated. No blackening or scorching was present around the wounds in diameter 1/4 c.m. In the front of the right forearm 6 c.m. Above the wrist in the area of 7 x 5 c.m. Both the injuries were declared as simple;. 11. On the same day at 12-45 a.m. The said doctor examined Muhammad Aslam P.W. And noted the following injury on his person:- "An oblique lacerated fire-arm wound. Margins irregular. 4-1/2 x 3 x 21/2 c.m. On the line between the neck and the shoulder (right side) at the middle. No blackening or scorching was present around the wound." 12. On the same day at 1-10 a.m., the said doctor also examined Muhammad Akram P.W. And the following injuries were noticed on his person:- (1) (b) An oblique fire-arm wound 2-1/2 c.m. x 2 c,m. On the outer side of the left leg 7 c.m. Above ankle. Margins were lacerated and inverted. No blackening or scorching around the wound was present. This was a wound of entrance. Another fire-arm wound of irregular shape. Margins were everted
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and lacerated. No blackening or scorching was present. This was a wound of exit, on the inner side of the left leg 3 c.m. Above the ankle. (2) A lacerated irregular shape fire-arm wound 3 x 2 c.m. x skin deep on the posterior aspect of right toe. (3) A lacerated irregular in shape fire-arm wound on the posterior aspect adjoining the right toe. (4) Five small rounded fire-arm wounds about 1/4 c.m. Superficial skin deep. No blackening or scorching was present around the wound. This wound was on the inner front aspect of right leg 2 c.m. Above ankle in the area of 15 x 8 c.m. The margins were inverted. Injury No, 1 had caused fracture of tibia and fabula and, therefore, the said injury was declared as grievous. 13. Khurshid Ahmad, injured, was also examined the same day at 1-20 a.m. By the said doctor and the following injuries were noticed:- (1) An oblique lacerated fire-arm wound 8 x 4 c.m. On the outer frontal aspect of the left thigh 3-1/2 c.m. Above the knee. Margins were inverted. No blackening or scorching was present around the wound. This was a wound of entrance, (2) (1) A lacerated fire-arm wound irregular in shape. Margins were inverted 9-1/2 x 6-1/2 c.m. On the inner back of the left thigh 2 c.m. Above the popliteal fossa. No blackening or scorching was present around the wound. This was a wound of exit. An oblique lacerated fire-arm wound 3 c.m. x 1 c.m. On the outer side of the left leg at the middle. Margins were inverted. No blackening or scorching was present around the wound. This was a wound of entrance. (4) A lacerated fire-arm wound irregular in shape 8 x 4 c.m. At the inner back of left leg 2 c.m. Below popliteal fossa. This was a wound of exit. (5) An oblique lacerated fire-arm wound 3 x 2.c.m. On the back of left chest 18 c.m. Below tip of shoulder. This was a wound of entrance. Margins were inverted. (6) A lacerated fire-arm wound irregular in shape 9 x 7 c.m. On the left side of chest below wdlla. Margins everted. This was a wound of exit. ' All the injuries were caused by fire-arm. Injuries Nos. 1 and 2 were declared grievous and the rest as simple. Under injuries Nos. 1 and 2, left thigh had been fractured. 14. After having recorded the F.I.R., Muhammad Alamgir, Head Constable, P.W.13, reached the place of occurrence and inspected the spot. During inspection, he recovered blood-stained earth, a Chappal P.8, a broken Pirhi P.9, three wads P.10/1-3 and a pellet. All these articles were taken into possession vide memo. Exh.P.H. Attested by P.W.7 Ghulam Muhammad and Alam All (not produced) besides Muhammad Alamgir Head Constable, P.W.13. The complainant Muhammad Afzal P.W.14 also produced before Muhammad Alamgir Head Constable P.W.13, ten .12 bore crime empties, three empties of 7 mm rifle and two empties of .303 rifle. The same were taken into possession vide memo. Exh.P.J. Attested by P.W.7 Ghulam Muhammad and Alam All (not produced) besides Muhammad Alamgir Head Constable, P.W.13. 15. On 23-8-1983, P.W.2 Muhammad Amir Khan Niazi, Inspector/S.H.O., Police Station City Bahawalnagar, arrested the appellants Muhammad Rafique and Muhammad Mazhar. 16. On 31-8-1983, P.W.12 Syed Imdad Hussain Shah, S.I./S.H.O., Police Station Donga Bonga, on return from leave took over the investigation of the case. On 1-9-1983, Muhammad Mazhar, appellant, while in custody led the police and got recovered rifle P.7 which was buried in a heap of sand in village Dholiwal. It was taken into possession alongwith two live rounds P.7/1-2, vide memo. Exh.P.O. Attested by Aslam Pervez Constable P.W.10 and Munshi Ghulam Rasool (not produced) besides the Investigating Officer Imdad Hussain Shah, S.I., P.W. 12. On 6-9-1983, appellant Muhammad Rafique while in custody led the police and got recovered a .303 rifle P.6 buried in a heap of sand in village Ramzan Shah, the same was taken into possession
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vide memo. Exh.P.N. Attested by P.W.9 Shah Muhammad and Munshi Ghulam Rasool (not produced) besides the Investigating Officer. On 7-9-1983, Imdad Hussain Shah, S.I. P.W.12 arrested Ghulam Nabi, Hashmat All and Nazar Muhammad acquitted accused. 17. On 9-9-1983, Nazar Muhammad acquitted accused requested his father Baqar Ali to produce licensed gun P.3 which was taken into possession vide memo. Exh.P.K. Attested by Mian Muhammad Sharif P.W.8 and Mian Muhammad Yar (not produced) besides the Investigating Officer. On 16-9-1983, Ghulam Nabi acquitted accused requested his real brother Ghulam All to produce his licensed gun P.4 and the same was taken into possession vide memo. Exh.P.L. Attested by Mian Muhammad Sharif P.W.8 and Mian Muhammad Yar (not produced) besides the Investigating Officer. On 20-9-1983, Hashmat All acquitted accused while in custody led the police and got recovered gun P.5 which he had hidden in his Kotha in the cotton crop in village Qaziabad, the said gun was taken into possession vide memo. Exh.P.M. Attested by Mian Muhammad Sharif P.W.8 and Mian Muhammad (not produced) besides the Investigating Officer. 18. The crime empties lying at the spot and handed over by the complainant to Muhammad Alamgir, Head Constable P.W.13 during inspection of the place of occurrence were sent to the Forensic Science Laboratory on 1.4-10-1983 but the parcel was returned on the next date and on 16th of October, 1983, it was brought back. Parcel was re-sent and was delivered to the Forensic Science Laboratory on 24-10-1984. The parcel containing the fire-arm weapons was dispatched to the Forensic Science Laboratory on 1-11-1983 and was actually delivered on 2-11-1983. According to the report of the Forensic Science Laboratory, the crime empties of .303 bore were found wedded with the .303 rifle which was got recovered by Muhammad Rafique appellant. The 7 mm crime empties were found wedded with the 7 mm rifle which was got recovered by Muhammad Mazhar appellant. Similarly, two crime empties of .12 bore were found wedded with the .12 bore gun which was got recovered from Nazar Muhammad. Another two empties of .12 bore were found wedded with the gun of Nazar Muhammad accused. 19. Towards the discharge of onus, to prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Muhammad Afzal, complainant P.W.14, son of the deceased Ahmad Yar, Khurshid Ahmad P.W.15, the tractor driver of the complainant and Muhammad Akram P.W.16 a real brother of the complainant and son of the deceased. The other injured eyewitnesses namely Muhammad Aslam and Jehangir and Munshi Ghulam Rasool were given up by the prosecution as unnecessary. In addition to the ocular testimony, the prosecution also placed reliance upon the recovery of the weapons of offence and the empties as well as the report of the Forensic Science Laboratory to corroborate its case. Prosecution also pressed into service, the medical evidence as well as the evidence as to the motive. 20. When examined under section 342, Cr.P.C., the appellants Muhammad Rafique and. Muhammad Mazhar and their acquitted brother Nazar Muhammad son of Baqar Ali made similar statements. They denied the charges and gave the following account as an explanation to the evidence adduced against them by the prosecution. Muhammad fvfazhar appellant made the following statement:- "I am innocent. Mst. Shamim Akhtar daughter of Ahmad Yar deceased had been engaged to Maqsood son of Bahadar Ali. She was never engaged to me, Mst. Maqbool Elahi daughter of Bahadar All had been engaged to Shah Muhammad my brother and Mst. Zubaida younger daughter of Bahadar Ali was engaged to my elder brother Ata Ullah. Muhammad Afzal complainant had been engaged to Mst. Amna my younger sister. Muhammad Afzal was a man of bad character. This fact came to our notice later on. Mst. Sughran lodged a case of rape against him. He was arrested. Exh.D.F. Copy of the F.I.R. Of that case has been tendered in evidence by my brother Muhammad Rafique. My father broke the engagement of Mst. Amna with Muhammad Afzal complainant. Our relations became strained with Muhammad Afzal complainant. Allah Yar
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consanguine brother of Ahmad Yar had a grudge against A hmad Yar because the latter had murdered his two real brothers. He was not on speaking terms with him. Our relations with Allah Yar were normal but Ahmad Yar asked us to sever relations with Allah Yar but we refused to oblige him, therefore, our relations became strained with Ahmad Yar. Muhammad Afzal complainant nursed a grudge against us, therefore, he implicated me, Rafique and Nazar Muhammad my brothers falsely in this case." 21. The other acquitted accused Ghulam Nabi and Hashmat Ali, both real brothers sons of Muhammad Sharif also denied the charge against them. Ghulam Nabi made the following statement:- "I am innocent. Mazhar, Nazar and Rafique are not my friends rather they opposed me in the elections and supported Ahmad 'Vat deceased. In the election of 1979 four candidates namely Ahmad Yar deceased Muhammad Yousaf, myself and Khuda Bakhsh contested the elections individually. There were two seats in this constituency and two candidates securing the highest votes were to be elected. I secured the highest votes. Before the local council elections of 1983 Ahmad Yar deceased submitted an application to A.C., Bahawalnagar on 19-51983 and requested that his ward be separated from Qaziwala because the deceased was afraid of my popularity. The attested copy of which is Exh.D.G. Upon this request of the deceased, the A.C., Bahawainagar separated the ward of Dadu Mamunka from Qaziwala. Afterwards, D.C. Bahawalaagar formed two separate units of elections. If I had political fear from deceased, I would have been satisfied with the orders of A.C. Bahawalnagar. In the local council elections of 1983, my nomination papers were filed against Muhammad Yar, the brother of the deceased but same were rejected because I was behind the bars in this false case against me. After rejection of my nomination papers, the said Muhammad Yar, uncle of Muhammad Afzal was elected unopposed due to my false involvement in this case. I was P.W. In the rape case lodged by Mst. Sughran against Muhammad Afzal complainant. I tender in evidence the copy of the challan Exh.D.L. The licensed gun of my brother was secured by the police on the following day of occurrence and empties were prepared by police. I never absconded after the occurrence and I have been appearing before the Investigating Officers during investigation of this case. I and my brother offered oath of any respectable of their choice about our innocence to the complainant party…
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