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Petitioner: Intikhab Ameer and 3 others VS Respondent: State and another
Court Name: Lahore High Court Judge(s): Sadaqat Ali Khan, Sadiq Mahmud Khurram Title: Intikhab Ameer and 3 others vs State and another Case No.: Crl. A. No. 141-J and M.R. No. 83 of 2017 Date of Judgment:2020-09-28 Reported As: 2021 YLR 1031, PLJ 2021 Cr.C. (Lahore) 26 Result: Appeal dismissed
JUDGMENT
JUDGMENT Sadiq Mahmud Khurram, J.--The appellants namely Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah were tried by the learned Additional Sessions Judge, Rawalpindi in case FIR No. 509 of 2013 dated 9.8.2013 registered at Police Station Saddar Barooni, District Rawalpindi in respect of offences under Sections 302, 324, 337- F(v), 337-L(2), 337-D, 147, 148 and 149, PPC for committing the Qatl-i-Amd of Qalab Abbas Shah son of Syed Khair Hussain (deceased). The learned trial Court vide judgment dated 22.12.2016, convicted Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah (convicts) and sentenced them as infra: Intikhab Ameer son of Fayyaz Hussain Shah. i) Death under Section 302(b), PPC as Tazir for committing Qatl-i-Amd of Qalab Abbas Shah son of Sved Khair Hussain (deceased) and directed to pay Rs. 100,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was further directed to undergo six months of simple imprisonment. The convict was ordered to be hanged by his neck till dead. ii) Rigorous Imprisonment for ten years under Section 324, PPC and directed to pay fine of Rs. 20,000/- and in default thereof to further undergo simple imprisonment for two months. iii) Rigorous Imprisonment for five years under Section 337- F(v), PPC and directed to pay Daman of Rs. 10,000/- and in default thereof to remain in jail till its realization (for causing injuries to Jabir Hussain Shah (PW -9). iv) Rigorous Imprisonment for one year under Section 337- F(i), PPC and directed to pay Daman of Rs. 5,000/-and in default thereof to remain in jail till its realization (for causing injuries to Syed Aoun Abbas (PW -7). v) Rigorous Imprisonment for one year under Section 148, PPC.
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Gulshan alias Moon son of Fayyaz Hussain Shah. i) Imprisonment for life under Section 302(b ), PPC as Tazir for committing Qatl-i-Amd of Qalab Abbas Shah son of Syed Khair Hussain (deceased) and direc ted to pay Rs. 100,000/-as compensation under Section 544-A, Cr.P.C. to the legal heirs of the deceased, in case of default thereof, the convict was' further directed to undergo six months of simple imprisonment. ii) Rigorous Imprisonment for ten years under Section 324, PPC and directed to pay fine of Rs. 20,000/-and in default thereof to further undergo simple imprisonment for two months. iii) Rigorous Imprisonment for one year under Section 148, PPC Fazal Ameer son of Fayyaz Hussain Shah. i) Rigorous Imprisonment for ten years under Section 324/149, PPC and directed to pay fine of Rs. 20,000/-and in default thereof to further undergo simple imprisonment for two months. ii) Rigorous Imprisonment for one year unde r Section 337-F(i), PPC on three counts and directed to pay Daman of Rs. 5,000/-to each injured and in default thereof to remain in jail till its realization (for causing injuries to Sved Aoun Abbas (PW -7), Syed Mubasher Abbas (PW -8) and Syed Jabir Hussain Shah (PW -9). iii) Rigorous Imprisonment for one year under Section 148, PPC Fayyaz Hussain Shah son of Inayat Hussain Shah. i) Rigorous' Imprisonment for ten years under Section 324/149, PPC and directed to pay fine of Rs. 20,000/-and in default thereof to further undergo simple imprisonment for two months. ii) Rigorous, Imprisonment for one year unde r Section 337- F(i), PPC on three counts and directed to pay Daman of Rs. 5,0001-to each injured and in default thereof to remain in Jail till its realization (for causing injuries to Syed Aoun Abbas (PW -7), Syed Mubasher Abbas (PW -8) and Syed Jabir Hussain Shah (PW -9). iii) Rigorous Imprisonment for one year under Section 148, PPC All the sentences were ordered to run concurrently and the benefit provided unde r Section 382-B of the Code of Criminal Procedure, 1898. was also extended to the convicts by the learned trial Court. 2. Feeling aggrieved, Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah (convicts) lodged Criminal appeal No. 141-J of 2017 against their conviction and sentences through jail. The learned trial Court submitted Murder Reference No. 83 of 2017 under Section 374, Cr.P.C.. seeking confirmation or otherwise of the sentence of death awarded to the appellant Intikhab Ameer son of Fayyaz Hussain Shah. We intend to dispose of the Criminal Appeal 141-J of 2017 and Murder Reference No. 83 of 2017 through this single judgment. 3. Precisely the facts necessary , as divulged in the statement of Syed Qalab Hussain Shah (PW -10) are as under:. "2 years prior to the occurrence marriage of Mst. Tahira was solemnized with Intikhab Ameer and out of this wedlock they were blessed with a daughter Amama Ameer who on 09.08.2013 i.e. fateful day was of the age of 11/2 years. 20/22 days prior to the occurrence due to rift Intikhab Ameer ousted my niece Tahira from his house and she was living in the house of her parents. The minor was retained by Intikhab Ameer accused. We have tried for reconciliation and rehabilitation but our efforts were failed. On 09.08.2013 it was Eid-ul-Fitar day I alongwith my brother Najaf Hussain Shah went to the house of my brother Qalab Abbas Shah for Eid visitation my brothers Qalab Abbas, Jabir Husain alongwith our nephew Aoun Abbas and Mobasher Abbas were present there. In the meantime, Mst. Tahira came there and asked us that today is Eid day and she is living7 ithout her daughter since last 25 days and requested for arranging visitation with her daughter . Mobasher Abbas went to the house of Intikhab Ameer to take minor and made request for handing over the minor for visitation. At that time Fayyaz Husain, Gulshan Intikhab Abbas, Fazal Ameer and Ahmed Ali were present there. They flared up and started beating Mobasher Abbas. He ran therefro m to rescue his life. On hearing the noise I alongwith my brother Qalab Abbas, Jabir Husain. Najaf Hussain and nephew Aoun Abbas came: out of the house, we saw the accused Intikhab Ameer and Gulshan.were armed with Chhuries whereas; Fazal Ameer , and Fayyaz Husain were armed with pistols and Ahmed Ali was armed with Danda were present there. Gulshan Ameer and Intikhab Ameer inflicted injuries with Chhuries to Qalab Abbas. The accused Fazal Ameer and Fayyaz Husain with their pistols made firing and resultantly my nephew Aoun Abbas, Mobasher Abbas and my brother Jabir Husain were injured by receiving the
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fire-arm injuries. In the meantime the accused Intikhab inflicted injury to Jabir Hussain and Aoun Abbas with his chhury on their abdomen area. The accused Ahmed Ali inflicted injury with Danda on the head of Mobasher Abbas. After receiving the injures they fell down on the earth and were shifted to hospital. My brother Qalab Abbas succumbed to the injures when we were on way. The local police after receiving the information of occurrence reached BBH hospital.1 narrated whole the facts to the police. My statement was recorded and my signatures were procured thereupon. The contents of Ex PF, were read over to me and I put my signatures thereupon which are Ex PF11. As my brother was succumbed to the injures, his dead body was shifted from BBH hospital to DHQ hospital Rawalpindi for conducting post-mortem." 4. After the formal investigation of the case report under Section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial Court wherein the appellants namely Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah son of Inayat Hussain Shah were sent to face trial. The learned trial Court framed the <charge against the accused on 07.05.2015, to which the appellants pleaded not guilty and claimed trial. 5. The prosecution in order to prove its case, got recorded statements of as many as twenty one witnesses. The ocular account of the case was furnished by Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). Muhammad Tahir, ASI (PW-2) stated that on 09.08.2013 he got the witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8) and Syed Jabir Hussain Shah (PW-9) examined by the Medical Officer and also received their 'blood stained clothes which were taken into possession by the Investigating Officer through recovery memo. (Exh.PD ). Muhammad Banaras (PW-3) and Syed Tanvir Hussain Shah (PW-11) identified the dead body of the deceased. AmirAli 5715/C (PW-4) stated that on 09.08.2013 he escorted the dead body of the deceased for its post-mortem examination and received the last worn clothes of the deceased which were taken into possession by the Investigating Officer through recovery memo. (Exh.PE). Hakim Ali, ASI (PW-5) stated that on 09.08.2013 he received two sealed parcels said to contain blood stained cotton and fifteen empties which on 13.08.2013 he handed over to Babar Shakeel 301/C (PW-6) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore and on '21.08.2013 he received two . sealed parcels said to contain a Chhuri and a pistol 30-bore which he, on 25.08.2 013, handed over to Babar Shakeel 8301/C (PW-6) for their onward transmission to the office of Punjab Forensic Science Agency , Lahore and on 02.09.2013 he received two sealed parcels said to contain a Chhuri and a pistol 30-bore which on 10.09.2013 he handed over to Faheem 6076/C for their onward transmission to the office of Punjab Forensic Science Agency , Lahore. Khurram Shahzad draftsman (PW-12) prepared the scaled site-plan of the place of occurrence (Exh.PR). Pervaiz Akhtar , SI (PW-17) recorded the formal. FIR (Exh.P AC). Hasnain Ali 2369/C (PW-18) stated that on 09.04.2014 he was handed over a proclamation regarding the co-accused of the appellants namely Ahmad Ali Shah (Proclaimed Offender). Arshad Azeem 3554/C (PW-20) stated that on 23.11.2013 he was handed over non- bailable warrants of arrest regarding the co-accused of the appellants namely Ahmad Ali Shah (Proclaimed Offender); Raja Abdul Rasheed Inspector (PW-21) stated that he prepared the report under Section 173 of the Code of Criminal Procedure, 1898 regarding the co-accused of, the appell ants namely Ahmad Ali Shah (Proclaimed Offender). Safdar Hussain, SI (PW-13) investigated the case from 8.9.2013 till 09.12.2013 and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. Tariq Mahmood, SI (PW-14) investigated the case from 09.08.2013 till 05.09.2013, arrested the appellants in this case and detailed the facts of the investigation as conducted by him in his statement before the learned trial Court. 6. The prosecution also got Dr. Muhammad Ijaz (PW-16) examined, who on 09.08.2013 was posted at Benazir Bhutto Hospital, Rawalpindi and on the same day at about 11.30 a.m medically examined Syed Mubasher Abbas son of Qalab Abbas Shah (PW -8) and observed as under: "Stated that on 9.8.2013 at 11.30 a.m. injured Mubasher was son of Syed Khair . Hussain Shah was brought in COD for medical examination. I examined him at 1 1.45 a.m. Following injuries were noted:- Injured was fully conscious. 1. A lacerated wound 3x1 cm on po.ster ior aspect of head, bone was exposed. X-Ray skull AP lateral view was advised.
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2. A wound of entry .5x.5 cm 8 cm below the right knee joint on front no blackening. Corresponding hole present on signed and handed over to police. 3. A wound of exit .7 5x.5cm.10 cm above right knee. 4. A wound of entry .5x.5 cm on the dorsal aspect on right thumb. 5. Wound of exit.5x75 on medial aspect of right hand. Injured was referred to surgical unit for treatment and expert opinion. X-ray right hand AP view and X-ray right lower leg AP lateral view was advised. Injuries were kept under observation and duration of injuries within one hour . Injury No. 1 was declared due to blunt weapon and Shujjah-e-Damiah. Injuries No. 2, 3, 4 and 5 were fire-arm.X- ray report shows fracture of right metacarpal. Injuries 4 and 5 were declared as Jarh Jafia. Clothes and copy of MLR were handed over to Muhammad Tahir ASI. Application for conducting medical examination Mobasher Abbas EX-PY is also signed by me. My signatures on Ex PY are EX-PY -1. I conducted the medical examination on Mobasher . MLR EX- PAJ of Mobasher Shah is the correct carbon copy of original MLR. My signatures thereupon are Ex.PAJI1. Application EXP AB regarding opinion for recording of statement of injured Syed Mobasher Shah, Aoan Abbas, Jabir Shah is also signed by me. My signatures on EX-P AB are EX-P ABI 1. I referred the injured to surgical Unit for expert opinion. My referring application for Mobasher is EX-P AK and signed by me." On the same day Dr. Muhammad Ijaz (PW-16) had medically examined Syed Jabir Hussain Shah son of Khair Hussain (PW -9) at 1 1.50 a.m and observed as under: "Following injuries were noted:- 1. An incised wound 3x1 cm on abdomen, 2 cm left lateral to umbilicus, depth not probed, corresponding cut marks were present on the kameez and signed. 2. An entry wound of fire-arm 1x1 cm on anterior aspect of right middle leg with external deformity , blackening positive, corresponding hole present on Shalwar . X-ray right lower leg AP lateral view was advised. 3. A wound of entry 075x 075 on lateral aspect 3 cm above left knee joint. Blackening positive. Corresponding cut was preset on Shalwar . 4. A wound of exit 3x1 cm below left knee joint on posterior aspect. X-ray left knee advised. 5. A wound of entry 1 cm on posterior aspect of left leg middle. 6. A wound exist 1.5x1.5 cm below wound of (5cm below the wound of 5) Corresponding hole present on Shalwar and handed over to police. Injuries were kept under observation. Injury No.1 stab. Injury No. 2, 3, 4, 5, 6 were fire-arm. All injuries occurred within one hour . Injuries were declared. According to radiologist report, there is fracture of Tibia and fibula in injury No. 2. Injury No. 2 declared as Ghair Jafiah Hashima. Injury No. 1 declared as Ghair Jaifa. Injuries No. 3, 4, 5 and 6 were fire-arm. Opinion is attached with the report of Radiologist. After examining the injured, I handed aver clothes, copy of MLC, X-ray form to Muhammad T ahir ASI. Application submitted by Tariq Mahmood SI for conducting medical examination on Jabir Shah is EX-PZ which is also signed by me as EX- PZI1. MLR of Jabir Shah EX-P AL is the correct carbon copy of original MLR which is in my hand writing and bears my signatures. My signatures thereupon are EX-P AL/I." On the same day Dr. Muhammad Ijaz (PW-16) had medically examined Syed Aoun Abbas son of Qalab Abbas Shah (PW -7) at about 12.00 noon and observed as under: "Following injuries were noted: 1. An incised wound 1.5x1 cm just lateral aspect of pubic symphysis ommentin protrobing. 2. An entry wound 1x1 cm at the level of Lumber 3 on left side on back corresponding hole was present on cloth. 3. Superficial wound 1.5x1.5 cm on left cubitle fosa, probably due to bullet. 4. An entry wound lx1 cm 3 cm below right knee joint. A wound of exit 1.5 x 1 cm 10 cm below Wound No. 4. The prosecution also got examined Dr. Muha mmad Ashraf (PW-15) who on 09.08.20 13 conducted the post-mortem examination of the deceased namely Qalab Abbas Shah son of Syed Khair Hussain. Dr. Muhammad Ashraf (PW- 15), after post-mortem examination, observed as under:- "On examination, following injuries were noted, on the dead body:-
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1. an incised wound lying obliquely measuring 4x1 cm on the anterior surfice right side of abdomen 22 cm below right nipple, deep into cavity . 2. An incised wound 3x1 cm just close to umblicous on the right side, deep into cavity . 3. An incised wound lying horizontally 8x2 cm on the front of chest and it is bone expose 9 cm below the sternoclavicular fossae. 4. An incised wound 3x1 cm on the left front of the chest just below left nipple and it is lying vertically deep into cavity . 5. An incised wound 3x1 cm on the anterior surface of left side of abdomen 14 cm below the nipple and it is deep into the cavity . 6. An incised wound 2 x 0.5 cm muscle deep on the left deltoid region. 7. An incised wound 3x1 cm bone not exposed on the right paerital region of skull, 9 cm above the right ear pinna. 8. An incised wound 2x1 cm bone not exposed on the right occipital region of skull. 9. An incised wound 3x1 cm bone not exposed on the mid of vault of skull. ................................................................................................................................... In my opinion the deceased died due to the injuries No. 1, 2, 4 and 5 caused by sharp edged weapon, ante mortem in nature causing extensive damage to vital chest cavity organs i.e. lungs and pulmonary vessels and abdominal cavity organs i.e. intestines which lead to perfused bleeding, shocked and ultimately death. Such type of injuries are sufficient to cause death in ordinary course of nature. The other injuries also contributed in causing death due to haemmarage. The probable time between injuries and death was half an hour and probable time between post-mortem and death was within 4 to 12 hours." The prosecution also got examined Dr. Muhammad Nawaz Khokhar (PW-1), who on 16.08.2013 conducted the radiological examination of Syed Aoun Abbas (PW-7) and Syed Jabir Hussain Shah (PW-9) and on 09.08.2013 conducted the radiological examination of Syed Mubasher Abbas (PW -8) and exposed the X-rays films. 7. On 18.05.2016 the learned DDPP gave up prosecution witnesses namely Najaf Hussain and Tajammal Hussain as being unnecessary . On 27.10.2016, the learned ADPP closed the prosecution evidence after tendering the report of Punjab Forensic Science Agency , Lahore (Exh.P AP) regarding the analysis of knife recovered from the appellant namely Gulshan alias Moon, the report of Punjab Forensic Science Agen cy, Lahore (Exh.P AQ) regarding the analysis of knife recovered from the appellant namely Intikhab Ameer , the report of Punjab Forensic Science Agency , Lahore regarding the blood stained cotton (Exh.P AR) and the report of Punjab Forensic Science Agency , Lahore (Exh.P AS) regarding the analysis of the pistol recovered from the appellant Fazal Ameer and the empties. 8. After the closure of prosecution evidence, the learned trial Court examined the appellants namely Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and Fayyaz Hussain Shah. son of Inayat Hussain Shah under section 342 Cr.P.C. and in answer to question why this case against you and 'why the PWs have deposed against you, the appellants replied that on the day of occurrence the complainant party trespassed into their house and apprehending danger to their lives, the appellant namely Fayyaz Hussain Shah and one Raza Hussain Shah acted to save their lives which resulted in the injuries to the deceased as well as the prosecution witnesses. The appellants namely Intikhab Ameer son of Fayyaz Hussain Shah, Gulshan alias Moon son of Fayyaz Hussain Shah, Fazal Ameer son of Fayyaz Hussain Shah and F,ayyaz Hussain Shah son of Inayat Hussain Shah opted not to get themselves examined under section 340(2) Cr .P.C however got Ghulam Mustafa (DW -1), examined in their defence. 9. On the conclusion of the trial, the learned trial Court convicted and sentence d the appellants as referred to above. 10. The contention of the learned counsel for the appellants precisely is that whole case is fabricated and false; that the prosecution remained unable to prove the facts in 'issue,and did not produce any unimpeachable, admissible and relevant evidence. Learned counsel for the appellants in support of this appeal, further contends that the story of the prosecution mentioned in the F.I.R., on the face of it, is highly improbable and the reason assigned by the complainant and the eye-witnesses for being present at the place of occurrence is without any
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justification. He further contended that the statements of Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10) were not worthy of reliance. The learned counsel for the appellants further submitted that the recoveries were full of procedural defects, of no legal worth and value and result of fake proceedings. The learned counsel for the appellants has also argued that the appellants acted in exercise their right of private defence of their person and had not committed any offence. He finally submitted that the prosecution has totally failed to prove the case against the accused beyond the shadow of doubt. 11. On the other hand, learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond shadow of doubt by producing independent witnesses. Learned counsels further argued that the deceased died as a result of injuries suffered at the hands of the appellant. They further contended that the medical evidence also corroborated the statements of Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). They further argued that the recoveries from the appellants also corroborated the ocular account. They contended that there was no occasion for the prosec ution witnesses, who were related to the deceased, to substitute the real offender with the innocent in this case. Lastly , they prayed for the rejection of, appeal. 12. We have heard the learned counsel for the appellants, the learned Deputy Prosecutor General along with the learned counsel for the complainant and with their assistance perused the record and evidence recorded during the trial. 13. The whole prosecution case revolves around the statements of Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain. Shah (PW-10). These witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10) were related to each other as well as the appellant namely Intikhab Ameer . Their relationship with the deceased is also on record. The deceased namely Qalab Abbas Shah son of Syed Khair Hussain was the father of Syed Mubasher Abbas (PW-8) and brother of Syed Aoun Abbas (PW-7), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). The deceased namely Qalab Abbas Shah son of Syed Khair Hussain was the father-in-law of the appellant namely Intikhab Ameer . It is also a fact that the appellants namely Fazal Ameer and Gulshan alias Moon are brothers of the appellant namely Intikhab Ameer , whereas the appellant namely Fayyaz Hussain Shah is the father of the appellant namely Intikhab Ameer . To establish the ocular account of the occurrence, the prosecution produced Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10) who all had explained their presence at the place of occurrence categorically and their presence is even otherwise admitted by the appellants. The presence of the witnesses namely Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW9) and Syed Qalab Hussain Shah (PW-10) at the place of occurrence was quite probable and natural, especially when Syed Aoun Abbas (PW-7), Syed Mubasher Abbas (PW-8), and Syed Jabir Hussain Shah (PW-9) had stamp of injuries on their persons. The occurrence in the present case took place just outside the house of the deceased namely Qalab Abbas Shah and of the witnesses namely Syed Aoun Abbas (PW7), Syed Mubasher Abbas (PW-8), Syed Jabir Hussain Shah (PW-9) and Syed Qalab Hussain Shah (PW-10). During the course of investigation, Tariq Mehmood, SI (PW-14), the Investigating Officer of the case, also collected the blood stained cotton from the place of occurrence and took the same into possession through recovery memo. (Exh.PG). The report of the Punjab Forensic Science Agency , Lahore (Exh.P AR) establishes that the said blood taken from the place of occurrence was of human origin. The place of occurrence was further established by the rough site-plan (Exh.P AC) as prepared by Tariq Mahmood, SI (PW-14) and the scaled site-plan of the place…
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