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Petitioner: SARWAR KHAN. VS Respondent: MUHAMMAD AYUB and another
Court Name: Lahore High Court Judge(s): Tariq Shamim, M. A. Zafar Title: SARWAR KHAN. vs MUHAMMAD AYUB and another Case No.:Criminal Appeals Nos.239, 284 of 2007, 51 of 2008, Criminal Revision No,131
JUDGMENT
Reported As: 2009 YLR 1938 Result: Order accordingly Judgment JUDGMENT ' TARIQ SHAMIM, J.---Appellant, Sarwar Khan son of Sultan Khan along with his co-accused Jahan Zeb, Aali Zeb, Sohail Sarwar and Sultan Khan, was tried in a private complaint case for offence under sections 302, 337-D, 324, 148 and 149, P.P.C., by the learned Sessions Judge, Rawalpindi, who, vide his judgment dated 12-7-2007 convicted and sentenced Sarwar Khan, appellant as under:-- Muhammad SarwarUnder section 302(b), P.P.C.Sentenced to death as Ta'zir for committing Qatl-e-Amd of Qamar Nawaz with a direction to pay a sum of Rs.1,00,000 as compensation to the legal heirs of the deceased and in default to undergo simple imprisonment for six months. Under section 302(b)/34, P.P.C.Imprisonment for life with a direction to pay a sum of Rs.50,000 as compensation to the legal heirs of Kamran Sarfraz deceased and in default to undergo simple imprisonment for six months. Under section 324/34, P.P.C.Rigorous imprisonment for five years along with a fine of Rs.50,000 and in default to undergo rigorous Imprisonment for six months. He was further directed to pay a sum of Rs.30,000 as compensation to Insar Asmat P.W. and in default to undergo simple imprisonment for six months. Under section 324/34, P.P.C.Rigorous imprisonment for two years along with a fine of Rs.10,000 and in default to undergo rigorous imprisonment for two months. He was further directed to pay a sum of Rs.10,000 as compensation to
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Muhammad Ayub injured and in default to undergo simple imprisonment for six months. Under section 324/34, P.P.C.Rigorous imprisonment for two years along with a fine of Rs.10,000 and in default to undergo rigorous imprisonment for two months. He was further directed to pay a sum of Rs.10,000 as compensation to Muhammad Islam injured and in default to undergo simple imprisonment for six months. Under section 337-D, P.P.C.Rigorous imprisonment for three years as Ta'zir and to pay Arsh Amount of Rs.1,70,610 (1/3of Diyat) causing injury Insar Asmat. For to All the sentences were ordered to concurrently. Run Benefit of section of section 382-B, Cr.P.C. was extended to the appellant. ' Sohail Sarwar, co-accused, was acquitted by the learned trial Court whereas Sultan Khan, co- accused, died and the case to his extent was abated. Since Jahan Zeb and Aali Zeb, co-accused, absented themselves from the learned trial Court, they were declared proclaimed offenders vide orders dated 27-2-2007 and 26-5-2007. Respectively and perpetual warrants of arrest were issued against them. 2. The facts of the case are that on 14-9-1991, Qamar Nawaz, the nephew of Muhammad Ayub, complainant, P.W.4, who was employed in Dandot Cement Factory, was to go back to his job and at about 8-00 a.m., the complainant along with Insar Asmat, Muhammad Islam and Muhammad Kamran Sarfraz, P.Ws, were preparing to leave for the Adda to see him off. As soon as they came out of their house, Sarwar Khan armed with a pistol, Jahan Zeb armed with a pistol, Aali Zeb armed with a. Chhurra, Sohail Sarwar armed with a knife and Sultan Khan empty handed arrived there on car bearing registration CH-3590 and after alighting from it, all of them raised Lalkara that they would teach them a lesson for the previous day's fight. The appellant Sarwar Khan fired the first shot which hit on the chest of Qamar Zaman, Jahan Zeb fired a shot from his pistol which hit Muhammad Kamran Sarfraz, the son of the complainant, on his chest, Sarwar Khan fired a second shot hitting Insar Asmat P.W.6 also on his chest and the second shot fired by Jahan Zeb caused an injury on the abdomen of Muhammad Islam P.W.5, the other son of the complainant. Thereafter, Aali Zeb inflicted two Chhurra blows on the left shoulder and back of Insar Asmat P.W. And Sohail Sarwar caused three injuries with his knife on left shoulder, calf and left flank of Muhammad Islam P.W.S. When the complainant stepped forward, he was injured by Aali Zeb who inflicted two Chhurra blows on his ribs. On their hue and cry Muhammad Khan and Hameed Ullah were attracted to the scene and witnessed the occurrence. All the accused managed to escape while raising Lalkaras. Qamar Nawaz and Kamran Sarfraz succumbed to the injuries at the spot and consequently the afore-said F.I.R. Was lodged. After completion of investigation the police declared Jahan Zeb and Sohail Sarwar innocent and submitted challan against Aali Zeb -and Sarwar Khan whereas Sultan Khan was got discharged by the police. Being aggrieved of the investigation of the police Muhammad Ayub, complainant, also filed a private complainant. Since the accused side was also injured in the occurrence and Sarwar Khan appellant applied to the police for registration of a cross version but the police did not entertain the same, he filed a writ petition in this Court for registration of a case against the complainant side in which a direction was issued to avail the alternate remedy by way of filing a private complaint, which he filed. The learned trial Court vide consolidated judgment in all the three cases i.e, the private complaint filed by complainant side, the State case and the private complaint filed by Muhammad Sarfraz, the son of the complainant, on his chest, Sarwar Khan fired a second shot hitting Insar Asmat P.W.6 also on his chest and the second shot fired by Jahan Zeb caused an injury on the abdomen of Muhammad Islam P.W.5, the other son of the complainant. Thereafter, Aali Zeb inflicted two Chhurra blows on the left shoulderrd
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and back of Insar Asmat P.W. And Sohail Sarwar caused three injuries with his knife on left shoulder, calf and left flank of Muhammad Islam P.W.5. When the complainant stepped forward, he was injured by Aali Zeb who inflicted two Chhurra blows on his ribs. On their hue and cry Muhammad Khan and Hameed Ullah were attracted to the scene and witnessed the occurrence. All the accused managed to escape while raising Lalkaras. Qamar Nawaz and Kamran Sarfraz succumbed to the injuries at the spot and consequently the afore-said F.I.R, was lodged. After completion of investigation the police declared Jahan Zeb and Sohail Sarwar innocent and . Submitted challan against Aali Zeb and Sarwar Khan whereas Sultan Khan was got discharged by the police. Being aggrieved of the investigation of the police Muhammad Ayub, complainant, also filed a private complainant. Since the accused side was also injured in the occurrence and Sarwar Khan appellant applied to the police for registration of a cross version but the police did n6t entertain the same, he filed a writ petition in this Court for registration of a case against the complainant side in which a direction was issued to avail the alternate remedy by way of filing a private complaint, which he filed. The learned trial Court vide consolidated judgment in all the three cases i.e, the private complaint filed by complainant side, the State case and the private complaint filed by Muhummad Sarwar appellant, convicted appellant Muhammad Sarwar under section 302(c) read with section I0O-A and B, P.P.C, and sentenced him to rigorous imprisonment for ten years along with fine of Rs,2,00,000. In default thereof he was to further undergo simple imprisonment for two years. Aali Zeb (P.O) was convicted under section 324 read with section 96, P.P.C, and sentenced to rigorous imprisonment for four years along with fine of Rs,20,000 and in default thereof to undergo simple imprisonment for one year. The private complaint filed by Sarwar Khan appellant was dismissed and accused in that case were acquitted. Both the parties challenged the decision of the trial Court before this Court and vide judgment dated 6-12-2006 this Court set aside the impugned judgment dated 30-10-1995 and, remanded the case to the trial Court with a direction to decide the challan case and complaint cases separately through separate judgments after hearing the parties. After the post remand proceedings, as stated earlier, accused Jahan Zeb and Aali Zeb were declared proclaimed offenders. 3. The prosecution in order to prove its case produced Khadim Lai Din, X-Ray Technician P.W.1, Muhammad Iqbal P.W.2, Azmat Mahmood P.W.3, Muhammad Ayub, complainant, P.W.4," Muhammad Islam P.W.5, Insar Asmat P.W.6, Hamid Ullah Khan P.W.7, Manzoor Ahmad, Surgeon, T.H.Q. Hospital, Gujar Khan P.W.8, Dr. Muhammad Nazir Awan, Senior Demonstrator Phamacology Department, Rawalpindi Medical College, Rawalpindi P.W.9, Qamar-ul-Islam, Pfead Constable, Reader to D.S.P. Headquarters, S.P. Office, Chakwal P.W.10, Mazhar Hussain Constable P.W.11, Tahir Mahmood P.W.12, Muhammad Sharif, Draftsman P.W.13 and Muhammad Iqbal Head Constable Police Station City Chakwal P.W.14. Muhammad Ayub, complainant, after tendering the reports of the Chemical Examiner (Exh.PDD, Exh.PEE, Exh.PFF) and that of the Serologist (Exh.PGG, Exh.PHH and Exh.PJJ) closed the prosecution case. 4. Thereafter the statement of the appellant was recorded under section 342, Cr.P.C. In answer to the question "why the P.Ws have deposed against you and why case registered against you?" Sarwar Khan, appellant, replied as under. "The P.Ws are very closely related inter se. I was residing at Rawalpindi and running the business of Overseas Employment Promoter under a valid licence from Government at Satellite Town. My sons Jahan Zaib and Aali Zaib were waiting for their F.A. And Matric results and Jahan Zaib was working with me in my office. I used to come to my village at some week ends to see my other family members in my village. As usual on 12-9-1991, I came to spend, my week end in the village and on that day unfortunately there was a quarrel between my son Soahil Sarwar and Kamran dec'eased who being elder in age gave beating to my said son. Sohail Sarwar brought this fact to the notice of my other son Aali Zaib and on 13-9-1991 both Sohail Sarwar and Aali Zaib in return gave beatings
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to Kamran Sarfraz and the beating caused pain to the right hand of Aali Zaib. The opposite party openly declared that they would take revenge from Aali Zaib of said beatings to Kamran Sarfraz and in the evening Kamran -Sarfraz and his brother Muhammad Islam came in front of our house called out my son Aali Zaib and Sohail Sarwar but we saved them by putting them inside the room Kamran Sarfraz and his brother went away openly extending threats that they will positively take revenge of beating of Aali Zaib. As a matter of routine I left for Rawalpindi on the morning of Saturday i.e, 14-9-1991 and took my son Aali Zaib with me so as to hush up the matter as we were closely related to the complainant party. Myself and Aali Zaib were going in my car CH-3590 on our routine passage i.e, the main street of the village and as we reached near the back side of house of Muhammad Ayyub complainant, all of a sudden from his Baithak five assailants Qamar Nawaz, Muhammad Islam, Insar Asmat, Muhammad Ayyub armed with lathis and Kamran Sarfraz armed with knife suddenly emerged from the ambush and came in front of the car, stopped us asking us to come down and as we locked the car from inside I could not save myself and my son by driving the car due to panic created in my mind while the said assailants inflicted lathis on the car, broke the left front door pane, forcibly took out Aali Zaib and started beating him while shouting to take him inside the house and take revenge by killing him. In the circumstances I compelled to load my licensed revolver which is always lying in my car for protection of life and my property (document/cash). In view of the imminent danger to our lives I came down from the car with revolver in left hand and while beseeching to the assailants to release my son fired in the air to scare them off but they also attacked and injured me and in the . State Of utterly confused and crippled mind under imminent danger to my life and that of my son Aali Zaib I used the revolver in exercise of right of self-defence hitting . The assailants Qamar Nawaz, Kamran Sarfraz, Insar Asmat and Muhammad Islam. The knife fell down from the hand of Kamran Sarfraz which was picked up by Aali Zaib and whosoever of \ assailants attacked and injured him, he used the said knife in self- defence on the concerned assailant. Aali 'Zaib threw the knife at the spot. I fired one further shot in the air and we both hardly managed to leave the spot in injured condition and straightaway went to the Police Station in the same clothes and while reporting the aggression launched upon us narrated the whole story to the police and also produced revolver and on the asking of police also submitted written application but the police only took the revolver and clothes but neither produced us for medical examination, nor registered our case and promised to do the needful after the spot inspection and after repeated requests we were both got medically examined on second day as the police was under the pressure of opposite party and despite positive direction .From the doctor to get us admitted in the hospital, the police took us away from there and put us in the lock up. I accordingly filed a Writ Petition No, 199 of 1992 in the Honouable High Court for registration of case against the culprits in which a direction was issued to avail the alternative remedy of filing of private complaint and accordingly I filed a complaint on the same facts against the said assailants and in the said complaint under sections 324, 148 and 149, P.P.C, after preliminary inquiry by the learned Senior Civil Judge, Chakwal all the said assailants were found aggressors and were summoned to face the trial and said complaint is also pending in this Court. The present case against us is absolutely false * and baseless in which not only the reality qua myself and Aali Zaib has been twisted but also my two other sons who were not even present at the time of occurrence namely Jahan Zaib who was at Rawalpindi and Sohail Sarwar who was in his class room and my aged father Sultan Khan who was at Chatal for Fateha Khawani were also named as accused and all of them were found innocent in all the successive investigations. As the false F.I.R, was got registered by Muhammad Ayub complainant and his witnesses did not explain the damage to the car and a large number of injuries inflicted upon myself and my son Aali Zaib throughout the investigation, therefore, he resorted to present complaint with mala fide intention to mislead the Court by making dishonest improvements. This case is false."
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' Muhammad Sarwar Khan, appellant, appeared as D.W: 1 whereas his co-accused Aali Zeb, Jahan Zeb and Sohail Sarwar appeared as D.W.2, D.W.15 and D.W.16 respectively and recorded their statements on oath under section 340(2), Cr.P.C. The appellant and his co-accused produced Noor Alam as D.W.3, Zamurd Khan as D.W.4, Dr. Ishtiaq Ahmad, Senior Medical Officer, D.H.Q., Hospital, Chakwal as D.W.5, Muhammad Akram Radio Grapher (X-Ray Technician), D.H.Q., Hospital, Chakwal as D.W.6, Khadim Lai Din, Radio Grapher (X-Ray Technician), D.H.Q., Hospital, Chakwal as D.W.7, Chan Pir Shah as D.W.8, Master Sher Dil as D.W.9, Muhammad Abbas as D.W. 10, Muhammad Farooq as D.W.11, Ch. Taj Muhammad Khan, Advocate as D.W. l2, Muhammad Saeed as D.W. 13 and Tauqir Hasnain as D.W. 14 in their defence. Samand Khan Constable appeared as C.W.1 and Mazhar Hussain Shah, Inspector/ S.H.O., Police Station Kahuta, District Rawalpindi appeared as C.W.2. 5. The learned trial Court at the conclusion of the trial convicted and sentenced the appellant as stated above and acquitted accused Sohail Sarwar whereas the complaint filed by Sarwar Khan appellant was dismissed and accused of the said complaint case were acquitted. As stated earlier, accused Jahan Zeb and Aali Zeb were declared proclaimed offenders. The appellant has challenged his conviction and sentence through Criminal Appeal No,239 of 2007 whereas the learned trial Court has sent Murder Reference No,396 of 2007 for confirmation or otherwise of death sentence awarded to Sarwar Khan, appellant. Sarwar Khan appellant filed Criminal Appeal No,284 of 2007 against the acquittal of the accused of his complaint case whereas Muhammad Ayub complaint filed Criminal Appeal No,51 of 2008 against acquittal of Sohail Sarwar and Criminal Revision No,131 of 2007 for enhancement of sentence awarded to Sarwar Khan appellant and also for enhancement of compensation. All these matters are being decided together through this single judgment. 6. After having heard the learned counsel for the appellant, the complainant and the learned Deputy Prosecutor-General we have noticed that instant case is of two versions, one put forth by the prosecution and the other urged by the accused side. According to the prosecution story as disclosed in the F.I.R., the nephew of Muhammad Ayub complainant P.W.4 namely Qamar Nawaz who was employed in Dandot Cement Factory, was to go back to his job on the day of occurrence and at about 8-00 a.m. The complainant along with Insar Asmat, Muhammad Islam and Muhammad Kamran Sarfraz were preparing to leave for the Adda to see him off. As soon as they came out of their house, Sarwar Khan armed with pistol, Jahan Zeb armed with pistol, Aali Zeb armed with Chhurra, Sohail Sarwar armed with knife and Sultan Khan empty handed arrived there on car bearing registration CH-3590 and after alighting from the car all of them raised Lalkara that they would teach them a lesson for the previous day's fight. The appellant Sarwar Khan fired the first shot which landed on the chest of Qamar Zaman deceased, Jahan Zeb fired a shot from his pistol which hit Muhammad Kamran Sarfraz; the son of the complainant on his chest, Sarwar Khan fired a second shot hitting Insar Asmat P.W.6 alsb on his chest and the other shot fired by Jahan Zeb caused an injury on the abdomen of Muhammad Islam P.W.5 the other son of the complainant. Thereafter, Aali Zeb inflicted two Chhurra blows on the left shoulder and back of Insar Asmat P.W. And Sohail Sarwar caused three injuries with his knife on left shoulder, calf and left flank of Muhammad Islam P. W. When the complainant stepped forward, he was injured by Aali Zeb who inflicted two Chhurra blows on his ribs. On their hue and cry Muhammad Khan and Hameed Ullah were attracted to the scene and witnessed the occurrence. All the accused managed to escape while raising Lalkaras. Qamar Nawaz and Kamran Sarfraz succumbed to the injuries at the spot. The murders, according to the prosecution story were committed by the accused in revenge to brawl which took place between Kamran Sarfraz on one side and Aali Zeb, Jahan Zeb and Sohail Sarwar on the other side while playing cricket. On the other hand, Sarwar Khan appellant in his statement under section 342, Cr.P.C. Disclosed the other version of the occurrence which according to him was that while he and his son Aali Zeb were proceeding in their car CH-3590 on the main
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street of the village in routine to go to Rawalpindi so as to avoid confrontation with the complainant side and as they reached near the house of Ayub complainant, five persons including Qamar Nawaz, Muhammad Islam, Insar Asmat and Muhammad Ayub armed with lathis and Kamran Sarfraz armed with a knife emerged from their house and after stopping their car asked them to step out. Being apprehensive, the appellant his son locked their car from inside whereupon the assailants started to damage the car and broke the left side windowpane. They forcibly dragged out Aali from the car and started to beat him. In an attempt to save his son the appellant loaded his revolver, which was normally lying in the car, and after stepping out fired in the air to scare the assailants. On being injured by the complainant side the appellant in self-defence as well as to save his son resorted to firing at the complainant party resulting in injuries to both the deceased and Insar Asmat and Muhammad Islam P.W.6 and P.W.5 respectively. In the process, the knife carried by Kamran Sarfraz deceased fell from his hand which was picked up by Aali accused and used in self-defence. Both of them left the place of occurrence in an injured condition and went straight to the police station to report the matter. Under pressure from the complainant side the police neither registered the case nor produced them for medical examination which was done on the second day of the occurrence. Subsequently, the appellant lodged a private complaint against the complainant side in which they were summoned by the trial Court to face the trial. 7. Now the question for determination is as to which of the two stories is correct and in order to do so we have to scrutinize the evidence, adduced by the prosecution as well as the defence, to come to a plausible conclusion.. 8. First we would like to take the evidence of motive which as per the F.I.R. Is two-fold. The first leg of the motive took place on 13-9-1991 which is one day prior to the occurrence wherein a quarrel ,took place between Kamran Sarfraz on one side and Aali Zeb, Jahan Zeb and Sohail Sarfraz on the other side while playing cricket and threats extended by Sultan Khan to the complainant side on account thereof. If is worth mentioning here that the afore-said accused persons are sons of the appellant and grandsons of the said Sultan Khan. The second limb of the motive relates to a longstanding strife between the parties although related to each other. Insofar as the first part of the motive is concerned, there is no witness of the same as the only person who was present at the relevant time was Kamran Sarfraz who had died in the occurrence. The complainant was not present at the time the squabble between the deceased and the accused took place. Although, at the trial the complainant introduced an improved version thereof by stating that in the evening of 13-9-1991 he along with his cousin Pervaiz went to the house of Sultan accused to have the matter settled amicably but instead Sultan extended threats to him. With the exception of the complainant who had made a statement to the said effect, there is no other evidence available on the record in respect thereof. The only other witness namely Pervaiz was not produced at the trial. As to the other part of the motive, i.e, strife on account of political rivalry, is concerned, it stands negated from the statement made by the complainant at the trial. In his cross-examination, he conceded that both the parties have strong affiliation with one and the same political party and that Sultan Khan accused and the complainant had been supporting the same candidate in the elections. Admittedly, the parties are closely related to each other. Thus, the second leg of the motive, as urged by the prosecution at the trial, also stands falsified. 9. Now coming to the ocular account of the occurrence furnished by the witnesses at the trial, it has been observed by us that the injuries suffered by the appellant and his son were suppressed by the complainant in the F.I.R. The damage caused to the car of the appellant has also not been mentioned by Ayub complainant therein. However, subsequently, the complainant to the extent of the damage caused to the car came out with a preposterous explanation that after the occurrence, when the accused tried to escape in the car, the women folk of the family pelted stones at them and on account thereof the car sustained some damage and the appellant and his
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son also suffered some injuries who, thereafter managed to escape leaving the car behind. As per the statement made by Mazhar Hussain Shah, SubInspector/Investigating Officer, he took into possession the car from the place of occurrence on the first day of his visit to the spot vide recovery memo. Exh.PAA. Further, according to this witness, contrary to the stand taken by the appellant of immediately proceeding to the Police Station for reporting the matter in blood stained clothes and with the weapon, he had arrested the appellant and others two days after the occurrence on 15-9-1991 and at the time of their arrest Sarwar appellant and Aali Zeb were wearing blood stained clothes which were taken into possession vide memo. Exh. CW-2/F. He also conceded in cross-examination that at the time of their arrest both the accused were found injured. It is inconceivable that the accused would be wearing blood stained clothes two days after the occurrence. On 15-9-1991, at about 8-15 p.m., Dr. Ishtiaq Ahmad D. W.5 :on docket issued by the police on 14-9-1991 examined the appellant and Aali Zeb and found nine and five injuries on their persons including some grievous injuries which according to the doctor could not…
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