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Petitioner: Master NAZEER AHMAD and 2 otherss VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Farrukh Mehmood Title: Master NAZEER AHMAD and 2 otherss vs THE STATE Case No.: Criminal Appeal No,40 of 2004 Date of Judgment:2006-03-29 Reported As: 2006 YLR 2133 Result: Order accordingly
JUDGMENT
JUDGMENT ' MUHAMMAD FARRUKH MAHMUD, J.---Master Nazeer Ahmad, Muhammad Younas, Shaukat Ali son of Barkat Ali, Muhammad Boota, Shafaqat Ali alias Shaukat Ali., Abdul Rauf, Shaukat Ali son of Muhammad Hussain and Abdul Ghaffar were booked in case F.I.R. No,590 of 2001 registered at Police Station, Saddar Rahim Yar Khan for offences under sections 302/324/337-F(v)/148/149, P.P.C. For causing murder of Mst. Bashiran and injuries to Muhammad Hafeez, complainant/P.W.1 and Liaqat Ali/P.W.3, Abdul Ghaffar, accused absconded and was declared proclaimed offender, while rest of the accused were sent up to face trial. 2. Vide judgment dated 26-1-2004, Mr. Muhammad Rashid Qamar, learned Additional Sessions Judge, Rahim Yar Khan, while acquitting co-accused Muhammad Boota, Shafaqat Ali son of Abdul Ghaffar and Abdul Rauf convicted and sentenced Master Nazeer Ahmad, Muhammad Younas, Shaukat Ali son of Barkat Ali and Shaukat Ali son of Muhammad Hussain, appellants as under:-- (a) Master Nazeer Ahmad (i) For offence under section 302(b), P.P.C. To imprisonment for life plus payment of compensation of Rupees fifty thousands to legal heirs of the deceased, in default whereof to further undergo R.I. For six months; and (ii) For offence under section 324, P.P.C. For causing injuries to Muhammad Hafeez, P.W.1, to undergo R.I. For ten years. ' Both the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was given to the convict. (b) Shaukat Ali son of Barkat Ali
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(i) For offence under section 302 (c), P.P.C. To imprisonment for life plus payment of compensation of Rupees Fifty Thousands to the legal heirs of the deceased and in default thereof to further suffer R.I. For six months; and (ii) For offence under section 324, P.P.C. To undergo R.I. For ten years for causing injuries to Muhammad Hafeez/P.W.1. Both the sentences were to run concurrently. Benefit of section 382-B, Cr.P.C. Was extended to the convict. (c) Muhammad Younas son of Nawab Din For offence under section 324, P.P.C. To undergo R.I. For five years for causing injuries to Muhammad Hafeez/P.W.1. (d) Shaukat Ali son of Muhammad Hussain For offence under section 324, P.P.C. To suffer R.I. For five years for causing injuries to Muhammad Hafeez/P .W. 1. 3. Aggrieved by their above said convictions and sentences, Master Nazeer Ahmad, Muhammad Younas and Shaukat Ali son of Muhammad Hussain have brought Criminal Appeal No,40 of 2004, while Shaukat Ali son of Barkat Ali has filed Criminal Appeal No,70 of 2004, whereas Muhammad Hafeez/ complainant has preferred Criminal Appeal No,20 of 2004 against the aforesaid convicts/appellants for enhancement of their sentence. I propose to decide all these matters through this consolidated judgment. 4. Muhammad Hafeez, complainant, had also filed Criminal Appeal, No,60 of 2004 against the acquitted co-accused, which was dismissed as having been withdrawn vide order dated 11-3-2004 and is no more in the field. 5. Habib-ur-Rehman, S.-I./P.W.18 along with Zaheer Ahmad and Muhammad Arshad, Constables reached Civil Hospital, Rahim Yar Khan, at 11-20 a.m. After receiving information of the incident. There, he recorded statement Exh.P.A. Of Muhammad Hafeez, P.W.1. On the basis of the above noted statement Muhammad Draz, A.S.-I./P.W.14 registered F.I.R. No,590, Exh.P.A./1 at Police Station Saddar, Rahim Yar Khan. On the same date at 11-40 p.m. For offences under sections 324/148/149, P.P.C. Mst. Bashiran, who had received injuries during occurrence, died on 8-11-2001 and offence under section 302, P.P.C. Was added. 6. The occurrence took place near a Soling Road situated in Chak No,126/P, which was at a distance of 15 Kms from the Police Station. After recording statement of Muhammad Hafeez and sending the same to the Police Station for registration of case Habib-ur-Rehman, S.-I./P.W.18 proceeded to the place of occurrence and prepared rough site-plan Exh.P.L. He also recorded the statements of prosecution witnesses under section 161, Cr.P.C. However, neither he secured any blood-stained earth from the spot nor he could find any empty at the place of occurrence. 7. According to prosecution case, Muhammad Hafeez, P.W.1, lived in the eastern side of Chak No,126/P. Master Nazeer Ahmad and Muhammad Younas also lived in the same Chak. One plot owned by the complainant was lying vacant on the western side of the Solling Road. Plot was in front of the houses of the above noted accused. On the fateful day at 6-30 a.m. Shafaqat Ali, P.W.2 (step-son of the complainant) went to the house of Ch. Manzoor Ahmad, Lambardar. After some time, the complainant heard alarm raised by Shafaqat Ali, thus, he along with his wife Mst. Bashiran, deceased, Liaqat Ali, P.W.3 and Ahmad Ali, P.W.4 (step-sons of the complainant) reached the spot and saw that Master Nazeer Ahmad, Muhammad Younas, Abdul Ghaffar, Shaukat Ali son of Barkat Ali, Shaukat Ali son of Muhammad Hussain, Muhammad Boota son of Nawab Din, Shafaqat Ali son of Abdul Ghaffar and Abdul Rauf were throwing earth on both sides of the road with Kassies, while Abdul Ghaffar was lifting earth from the plot of complainant. When Shafaqat Ali stopped the accused from lifting earth, all the accused gave beating to him. The complainant party tried to rescue Shafaqat Ali, whereupon Master Nazeer Ahmad, Muhammad Younas, Shaukat Ali son of Muhammad Hussain, and Shaukat Ali son of Barkat Ali after extending threats to the
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complainant and his wife with dire consequences left to their houses and returned after equipping themselves with pistols. Master Nazeer Ahmad fired twice, which hit on the abdomen of Mst. Bashiran at the same place. After receipt of injuries Mst. Bashiran fell on the ground. Thereafter Mst. Bashiran's real son Shaukat Ali son of Barkat Ali caused fire at her which hit on buttock. Master Nazeer Ahmad also effectively fired at Muhammad Hafeez, complainant, which hit on the right side of abdomen. Muhammad Younas and Shaukat Ali son of Muhammad Hussain also fired at the complainant, which hit on the back of wrist joint of right hand of the complainant respectively. The fire caused by Shaukat Ali son of Barkat Ali hit on the left thumb of the complainant. The rest of the accused gave Sota blows on Shafaqat Ali, Liaqat Ali and Ahmad Ali. While the witnesses were approaching towards the scene of occurrence, the accused fled away from the spot along with their respective weapons. 8. Habib-ur-Rehman, S.-I./P.W.18, arrested Muhammad Younas on 28-10-2001. During investigation nothing was recovered from him and he was declared innocent. Shaukat Ali son of Barkat Ali appellant, who had received injuries and was examined on 27-10-2001 by the Medical Officer, was formally arrested on 17-11-2001 by P.W.18. On the same date, he led to the recovery of .30 bore pistol P.5 and its licence. The articles were taken into possession vide memo. Exh.P.K. Prepared by Habib- urRehman, S.-I. And attested by Qurban Hussain, P.W.16 and Mujahid Hussain, Constables. However, Master Nazeer Ahmad and Shaukat Ali son of Muhammad Hussain were not arrested by the police throughout, as according to findings of the Investigation Officers both of them were innocent. But both these appellants were summoned by the learned trial Court, after taking cognizance of the case. 9. In order to prove its case, the prosecution produced 19 witnesses in support of its case. Muhammad Hafeez P.W.1 (husband of Mst. Bashiran, deceased), Shafaqat Ali, P.W.2, Liaqat Ali P.W.3 and Ahmad Ali P.W.4 sons of Mst. Bashiran, deceased from her earlier husband), furnished the ocular account. P.Ws.2, 3 and 4 are real brothers of Shaukat Ali son of Barkat Ali, appellant. The witnesses also stated about the motive behind the occurrence. Their statements are in accordance with story given in the F.I.R. ' Dr. Masood Jahangir P.W.8 stated that he had examined Muhammad Hafeez, P.W.1 on 27-10-2001 (date of occurrence) at 10-00 a.m. He observed four fire-arm injuries on the person of Muhammad Hafeez, which had been caused within five hours of the examination. Injury No,1 was on the abdomen, Injury No,2 was its exit wound, injury No,3 was on the base of left thumb, while injury No,4 was on the left wrist joint, which was an exit wound. On the same date and time, he also examined Liaqat Ali son of Barkat Ali, P.W.3 and observed three injuries on his person, which were caused by blunt weapon. Injury No,1 was on the head, Injury No,2 was on the left forearm, while Injury No,3 was on the left leg. After receipt of X-rays report Injury No,1 was declared Shujja Khafifah, Injury No,2 was declared Ghayr Jaifah Damiah, while Injury No,3 attracted the provisions of section 337-L(ii), P.P.C. During cross-examination the Doctor admitted that on the same date Shaukat Ali son of Barkat Ali, appellant was produced before him by a constable for medical examination and he had examined him. He found eight injuries on the person of Shaukat Ali son of Barkat Ali, appellant. Injury No,1 was a lacerated wound on the right side of head. Injury No,2 was a lacerated wound on the medical side of right leg. Injury No,3 was a lacerated wound on the back of right leg. It was an exit wound of Injury No,2. Injuries Nos. 4, 5, 7 and 8 were caused by a blunt weapon and were on the right forearm, right shoulder, left forearm, right wrist joint and left leg respectively. During cross-examination (conducted by Mr. Muhammad Shahid Khan, Advocate) he stated that on query of police he had opined that the injuries on the person of Shaukat Ali were self-suffered. He explained that he expressed his opinion to the extent of injuries Nos.2 and 3 and had stated that possibility of there being self-suffered could not be ruled out. He further stated that there was blackening on Injury No,2, which was caused from a distance of about one foot. He further elaborated that he had
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expressed only about the possibility of this injury having been self-suffered and this being caused by inimical hand could not be ruled out. He admitted that he had given no such opinion when he examined Shaukat Ali son of Barkat Ali on 27-10-2001 and also gave no opinion of infliction of injury by friendly hands on 7-11-2001 on the query of police. His opinion is available on record as Exh.D.A. ' Dr. Saima Zulfiqar, P.W.13, firstly examined Mst. Bashiran, deceased on 27-10-2001 at 10-50 a.m., while she was being treated in Emergency Room. At the time of examination, her blood pressure was nil and pulse improbable. Surprisingly the learned trial Court did not ask the Doctor to place on record medico-legal report prepared on the date of occurrence and narrate the injuries. The Doctor only deposed about the details of post-mortem examination. However, the medico-legal report of initial examination of Mst. Bashiran is available on record as Exh.P.J. In the interest of justice it is necessary to reproduce the observations of the Doctor, below:-- "Lady is in semi-conscious stage and weak thready pulse, and hypotension. (1) Lacerated wound of .5 x .5. c.m. On left buttock just in mid KUO. (2) Two lacerated wounds of about .5 x .5 c.m. Just on right iliac fossa on right side of abdomen. .4 c.m. Apart KUO. (3) Lacerated wound of .3 c.m. Below right anterior superior iliac supine. ' X-rays of all the injuries was advised." ' The Doctor, who perhaps was not well-versed as to how to prepare the medico-legal report and had not gone through any medical jurisprudence on that regard, as she did not mention the nature of injuries, weapon of offence used and the probable time elapsed between examination and receipt of injuries. She has also not mentioned the time of examination and also left columns, relating the number and date of police docket, date and time of admission in Hospital and date of discharge, blank. The Doctor conducted post-mortem examination on the dead body of Mst. Bashiran on 8-11-2001. She observed (1) one healed wound of fire-arm injury of .5 x .5 c.m. On the left buttock just mid (corresponds to injury No,1 mentioned in medico-legal report Exh.P.J.), (2) lacerated wound in healing phase of .5 x .5 c.m. On right iliac fossa .5 c.m. From umbilicus (fire-arm exit wound and this wound was not described in Exh.P.J.), (3) lacerated wound of .5 x .5 c.m. In healing phase .3 c.m. Below right anterior superior iliac supine (fire-arm entry wound and corresponds to injury No,3 mentioned in Exh.P.J.), and (4) lacerated wound in healing phase of .5 x .5 c.m. On right iliac fossa .4 c.m. Below injury No,2 (fire-arm exit wound). According to her opinion, Mst. Bashiran lost her life due to fire-arm injuries within 13/14 days of its causation and post- mortem examination was conducted within 4/6 hours after her death. ' Rana Muhammad Ashraf, S.H.O./ P.W.9 stated that he partially investigated the case and except Shaukat Ali son of Barkat Ali rest of the accused were innocent. Akmal Rasool Nadir, Inspector/ P.W.10 submitted about the submission of supplementary Challan. Muhammad Nawaz, A.S.-I. Stated about formal registration of the case. Qurban Hussain, Constable/P.W.16 stated about the recovery of pistol and licence at the instances of Shaukat Ali son of Barkat Ali, appellant. ' Habib-ur-Rehman, S. -I. /P . W . 18 stated about drafting of complaint Exh.P.A. And initial investigation of the case. He also stated about arrest of some of the accused and according to his opinion Muhammad Younas, accused was innocent. Tahir Masood, D.S.P./P.W.19 also stated about partial investigation of the case. According to his opinion, Muhammad Younas and Shaukat Ali son of Muhammad Hussain were found innocent, while rest of the accused involved in the case. During cross-examination he stated that it was only Shaukat Ali son of Barkat Ali, accused, who was armed with weapon and had opened attack. According to him, the other accused were present at the place of occurrence but they used bricks and sticks. The rest of the witnesses are formal in nature and need not be discussed. 10. In their statements recorded under section 342, Cr.P.C. The appellants claimed to be innocent. Master Nazeer Ahmad, appellant in answer to Question No,10 stated that he was a retired teacher
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and that he had a background of politician and long standing politically based enmity existed between him and the complainant's family. He further stated that he and his family supported Peoples Party while the complainant and his family supported Muslim League. He further explained that Muhammad Younas and Shaukat Ali son of Muhammad Hussain, accused were his cousins while Abdul Rauf, accused was his son. Similarly Shafaqat Ali son of Abdul Ghaffar, accused and Muhammad Boota son of Nawab Din were also related to him. The first was his Bhanja while the latter was his cousin. ' Shaukat Ali son of Barkat Ali, appellant, who is real son of the deceased, gave detailed answer in reply to question No,12, which is defence plea and is being reproduced hereunder:-- "The complainant Muhammad Hafeez was keeping my mother Mst. Bashiran Bibi without Nikah and committing sexual intercourse "Zina" without Nikah. Mst. Bashiran Bibi was legally wedded wife of my father Barkat Ali. In this regard my father Barkat Ali was also got registered the case against Muhammad Hafeez complainant and Mst. Bashiran Bibi under section 16 of Zina Ordinance, 1979 vide F.I.R. No,657 of 1999. In this matter, I had taken the side of my father and not accepted the illegal act of Muhammad Hafeez complainant and my mother Mst. Bashiran Bibi due to this reason, the complainant Muhammad Hafeez .Made the life miserable of my father Barkat Ali and myself, because complainant is powerful and influential person, who has complete hold in Chak No,126/P and we are weak persons, we cannot face the complainant. The complainant party had to act in accordance with their own wishes in the Chak. If anybody does not accept the complainant version, he used to terrorize him. Prior to the occurrence, I was also abducted by the complainant etc. And tortured, whereafter case was also registered against them under section 342, P.P.C. Vide F.I.R. No,436 of 1999 due to this reason, the complainant involved me falsely in this case. In fact, the occurrence took place between complainant party and Master Nazeer Ahmad etc. I have no concern with the motive behind the occurrence and no relationship with other co-accused i.e, Master Nazir Ahmad etc. Complainant had joined the sons of Barkat Ali namely Shafaqat Ali, Liaqat Ali and Ahmad Ali with him, giving them greed of land, so P.Ws. Are inimical with me. They made poppet in the hand of the complainant." ' The crux of his defence plea is that he was not present at the time of occurrence and was roped in this case due to existing enmity over marriage of his mother of Mst. Bashiran with Muhammad Hafeez, complainant despite the fact that Mst. .3ashiran was not divorced by his father Barkat Ali and that Muhammad Hafeez, complainant was real nephew (Bhanja) of Barkat Ali, his father. ' None of the accused, appeared as witness in their defence under section 340(2), Cr.P.C. However, they produced 12 witnesses in their defence during trial. Syed Nazir Hussain Shah, D.S.P.1D.W.4, Muhammad Iqbal; Inspector Range Crimes/D.W.11 and Sultan Ahmad, Inspector/D.W.12 stated in defence of Master Nazir Ahmad, Shaukat All son of Muhammad Hussain and Muhammad Younas, appellants. Bashir Ahmad, D.W.9 stated about the longstanding political rivalry between the complainant party and Master Nazir Ahmad. Muhammad Siddiq D.W.10 stated that he had joined the investigation of the case and that he was an eye-witness. According to him, Master Nazir Ahmad remained present in his Ehata of his house at the time of occurrence and did not participate in the fight. Note: When the facts of this case were being dictated in open Court in presence of learned counsel for the parties, Malik Dost Muhammad Awan, Advocate (Learned counsel for the complainant), who had previously interfered many a time, had insisted that this portion of statement of Muhammad Saddiq D.W.10 should be added, which is being reproduced "Master Nazeer Ahmad, accused, to my information, which I have gained from other persons had only participated in the fight to the extent of separating Shafaqat v. Shafaqat". According to the learned counsel for the complainant, this belies the earlier statement of this P.W. That Master Nazeer Ahmad remained in his Ehata. The rest of the defence witnesses have not given any specific evidence and need not be discussed.
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11. Sardar Ahmad Khan, learned counsel for Master Nazeer Ahmad, Muhammad Younas and Shaukat Ali son of Muhammad Hussain, appellants in Criminal Appeal No,40 of 2004 has argued that it is a case of two versions, one given by the prosecution and the other by the team of the Investigating Officers; that according to Investigating Officers only Shaukat Ali son of Barkat Ali was equipped with fire-arm and he had used the same during occurrence; that in case of two versions, the motive gets prime importance, in the instant case nothing is on record to show that Master Nazeer Ahmad had any animus against Mst. Bashiran, deceased; the learned counsel has referred to the statement of P.W.2 Shafaqat Ali, wherein it was stated that prior to this occurrence no enmity or rivalry existed between Master Nazeer Ahmad and his relatives and the complainant party; that P.Ws. Have thrown a very large net and their statements are not supported by the medical evidence, on that point he has explained that Muhammad Younas and Shaukat Ali son of Muhammad Hussain were involved in this case on the basis of injuries, which were exit wounds; that Shafaqat Ali and Ahmad Ali P.Ws., who allegedly received injuries at the hands of the accused, were not examined by any Doctor, which belies the allegations; that the P.Ws. Have been disbelieved to the extent of Muhammad Boota, Shafaqat Ali alias Shaukat Ali and Abdul Rauf acquitted co-accused and how their statements can be believed against the appellants without strong independent corroboratory evidence, which was lacking in this case; that P.W.1 received two injuries and the remaining two injuries were though exit wounds yet two persons were involved in this case on the basis of these exist wounds; that similarly according to prosecution Mst. Bashiran received three injuries at the hands of the accused yet according to postmortem examination report Mst. Bashiran received only two injuries and the remaining two were exit wounds; that according to prosecution eight accused were armed with sticks and Kassies yet they did not cause any injury to the complainant, Mst. Bashiran or any other P.Ws. During occurrence; that in case the accused caused injuries to the complainant party, then there was no need to go back to the house and collect pistol and the injuries could easily be caused by the sticks and Kassies, as the complainant was allegedly empty-handed; that injuries on the person of Shaukat Ali son of Barkat Ali, appellant, which are proved by the record, have been suppressed by all the P.Ws., which has caused further dent in their creditability; that the appellants were found innocent by almost every Investigating Officer, thus, it could not be said that it was mere opinion of the police officer and this fact can be considered as the Investigating Officers were produced during trial, both, by the prosecution as well as by the defence; and that the medical evidence only describes the injuries, which caused death but it does not lead to the killer. ' Mr. Muhammad Shahid Khan, Advocate/learned counsel for Shaukat Ali son of Barkat Ali, appellant, who had advanced his arguments on 28-11-2005 and is not present today, submitted that no motive has been alleged against Shaukat Ali in the F.I.R.; that P.W.1 had married with mother of the appellant in the existence of her earlier marriage and case was registered against P.W.1; that according to him, very strong enmity existed between the appellant and the complainant, as the appellant refused to accept the fact that his mother and his other brothers were living with Muhammad Hafeez, although his father Barkat Ali had not divorced Mst. Bashiran; that there was no occasion for the appellant to participate in the occurrence on the fateful day, as he was not related to the rest of accused and was not present during first part of the occurrence wheh altercation took place over lifting of earth between the complainant party and Master Nazeer Ahmad; that P.Ws. Had contradicted each other on material points. According to him P.Ws.1 and 2 stated that the accused brought pistol from the house of Muhammad Younas, while according to P.W.3, pistol was brought from the house of Abdul Ghaffar; that on the fateful day occurrence took place only between Master Nazeer Ahmad and his relatives of the complainant, he has referred to the statement of D.S.P./P.W.19 and stated that some of the women folk of Master Nazeer Ahmad,
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appellant also received injuries during the occurrence; that recovery of pistol did not enhance the prosecution case, as neither any empty was recovered from the spot nor the recovered pistol was sent to the Forensic Science Laboratory; and that there was no evidence of motive and consequential recovery against the appellant, who was falsely implicated in this case due to his enmity with Muhammad Hafeez. 12. Malik Dost Muhammad Awan, one of learned counsel for the complainant has argued that motive was not disputed, he referred to the tenor of cross-examination; that time of occurrence and place of occurrence is not disputed; that presence of eye-witnesses is also not disputed as they had received injuries during the occurrence and this fact was supported by the medical evidence; that the statement of injured P.W. Muhammad Hafeez was recorded soon after occurrence while he was admitted in the hospital and this ruled out the element of fabrication; that acquittal of some of the accused was not reflected upon the case of present appellants, as rest of the accused were acquitted while acting on the principle of safe administration of justice and there was no serious allegation levelled against them; that in this part of the world the principle of sifting the grain from chaff is applicable and in this case the statements of eye-witnesses are fully supported by the medical evidence; that it was long settled that opinion of the police was not binding upon the Courts; that in any case the opinion of the Investigating Officers could not be termed as eye-witnesses of the case; that the Investigating Officers had dishonestly stated that Master Nazeer Ahmad and…
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