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Petitioner: MUHAMMAD ALI and otherss VS Respondent: THE STATE and others
Court Name: Lahore High Court Judge(s): Asif Saeed Khan Khosa, Mian Muhammad Najum-uz-Zaman Title: MUHAMMAD ALI and otherss vs THE STATE and others Case No.:Criminal Appeals Nos.1368 of 1999, 900, 923 of 2002, Criminal Revision
JUDGMENT
Reported As: PLD 2004 Lahore 554 Result: Order accordingly Judgment JUDGMENT ASIF SAEED KHAN KHOSA, J.---Muhammad Ali, Jehangir, Munir Ahmad, Ijaz Ahmad, Nadeem alias Nannha, Ashfaq Ahmad, Naseer Ahmad and Azeem Ali appellants were convicted and sentenced for various offences vide judgment dated 26-11-1999 handed down by the learned Judge, Anti- Terrorism Court, Faisalabad and the details of their convictions and sentences are as follows:-- (i) All the above mentioned eight appellants were convicted for an offence under section 148, P.P.C. And were sentenced to rigorous imprisonment for three years each. (ii) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. For the murder of Mst. Naziran Begum deceased and on account of waiver of his right of Qisas by one of her heirs namely Inayat Ali they were all sentenced to imprisonment for life each as Ta'zir and were ordered to pay a sum of Rs,50,000 each to the remaining heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each. (iii) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. For the murder of Ijaz Ali deceased and on account of waiver of his right of Qisas by one of his heirs namely Inayat Ali they were all sentenced to imprisonment for life each as Ta'zir and were ordered to pay a sum of Rs,50,000 each to the remaining heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each. (iv) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. For the murder of Mumtaz Ahmad deceased and on account of waiver of his right of Qisas by
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one of his heirs namely Inayat Ali they were all sentenced to imprisonment for life each as Ta'zir and were ordered to pay a sum of Rs,50,000 each to the remaining heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each. (v) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. Each for the murder of Lal Din Khan deceased and Muhammad Ali and Jehangir appellants were sentenced to imprisonment for life each as Ta'zir whereas the other six appellants were sentenced to death each as Ta'zir. All the appellants were ordered to pay a sum of Rs,50,000 each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each. (vi) All of them were convicted for an offence under section 302(b), P.P.C. Read with section 149, P.P.C. Each for the murder of Muhammad Sharif deceased and Muhammad Ali and Jehangir appellants were sentenced to imprisonment for life each as Ta'zir whereas the other six appellants were sentenced to death each as Ta'zir. All the appellants were ordered to pay a sum of Rs,50,000 each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for seven years each. As Ashfaq Ahmad appellant had been convicted for the murder of his father namely Muhammad Sharif deceased therefore, he was held to be disentitled to receive any compensation. (vii) All of them were convicted for an offence under section 324, P.P.C. Read with section 149, PPC each for launching murderous assault upon Muhammad Aamer injured PW and were sentenced to rigorous imprisonment for ten years each and to pay a fine of Rs,25,000 each or in default of payment thereof to undergo further rigorous imprisonment for three years each. (viii) All of them were convicted for an offence under section 337-F(v), P.P.C. Read with section 149, P.P.C. Each for causing injuries caused to Muhammad Aamer injured PW and were sentenced to rigorous imprisonment for five years each as Ta'zir and to pay a sum of Rs,25,000 each to Muhammad Aamer injured P.W. By way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo rigorous imprisonment for one and a half years each. (ix) All of them were convicted for an offence under section 324, PPC read with section 149, PPC each for launching a murderous assault upon Mushtaq Ahmad (PW11) and were sentenced to rigorous imprisonment for ten years each and to pay a fine of Rs,25,000 each or in default of payment thereof to undergo further rigorous imprisonment for three years each. (x) All of them were convicted for an offence under section 7 of the Anti-Terrorism Act, 1997 and Muhammad Ali and Jehangir appellants .Were sentenced to imprisonment for life each and the remaining appellants were sentenced to death each and to pay a fine of Rs,50,000 each or in default of payment thereof to undergo rigorous imprisonment for seven years each. (xi) The benefit under section 382-B, Cr.P.C. Was extended to all the appellants and the sentences of imprisonment passed against them were ordered to run concurrently. All the above mentioned appellants have challenged their convictions and sentences before this Court through Criminal Appeal No,1368 of 1999 and Irshad Ahmad complainant has filed Criminal Revision No,1032 of 2002 before this Court seeking enhancement of the sentence passed by the learned trial Court against Muhammad Ali appellant which have been heard by us alongwith Murder Reference No,.501-T of 1999. A co-accused of the above mentioned appellants namely Muhammad Akram had become a Proclaimed Offender and after his arrest he too was tried by the same learned trial Court and vide judgment dated 24-5-2002 he was convicted and sentenced as follows:-- (i) He was convicted for an offence under section 302 (b), P.P.C. For the murder of Ijaz Ahmad deceased and was sentenced to death as Ta'zir and was ordered to pay a sum of Rs,20,000 to the
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heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months. (ii) He was convicted on three counts of section 302(b), P.P.C. Read with section 149, P.P.C. For the murders of Mst. Naziran Begum, Mumtaz Ahmad and Lal Din Khan deceased and was sentenced to imprisonment for life on all the three counts and was ordered to pay a sum of Rs,20,000 on each count to the respective heirs of the said three deceased by way of compensation under section 544-A, Cr.P.C. (iii) He was convicted for an offence under section 7 of the Anti-Terrorism Act, 1997 and was sentenced to death and to pay a fine of Rs,50,000 or in default of payment thereof to undergo simple imprisonment for seven years. (iv) He was convicted for an offence under section 337-F(v), P.P.C. Read with section 149, P.P.C. And was sentenced to rigorous imprisonment for five years and to pay Daman of Rs,10,000 to Muhammad Aamer injured P.W. Or in default of payment thereof to remain in jail till realization of the same. In case of realization of the amount of Daman the said amount was ordered to be paid to Muhammad Aamer injured P.W. (v) He was convicted for an offence under section 337-L(2), P.P.C. Read with section 149, P.P.C. For causing an injury to Mushtaq Ahmad (P.W.11) and was sentenced to rigorous imprisonment for one year and to pay a sum of Rs,3,000 to the said injured victim as Arsh or in default of payment thereof to be kept in jail till its realization. The amount of Arsh, in case of its realization, was ordered to be paid to Mushtaq Ahmad (P.W.11). (vi) He was convicted for an offence under section 148, P.P.C. And was sentenced to rigorous imprisonment for two years. (vii) The benefit under section 382-B, Cr.P.C. Was extended to him and all the sentences of imprisonment passed against him were ordered to run concurrently. Muhammad Akram appellant has challenged his convictions and sentences before this Court through Criminal Appeal No, 900 of 2002 whereas the State has filed Criminal Appeal No, 923 of 2002 seeking conviction and sentence of Muhammad Akram appellant on the count pertaining to the murder of Muhammad Sharif deceased. We have heard both these appeals alongwith Murder Reference No, 63-T of 2002. We propose to decide all the above mentioned appeals, revision petition and the connected Murder References together through the present consolidated judgment. 2. The prosecution's case unfunded in the F.I.R. Was that IrshadAhmad Shad complainant was a resident of Chak No,135/GB situated within the area of Police Station Tirkhani, District Faisalabad and was an agriculturist by profession. Ijaz Ahmad and Mumtaz Ahmad deceased sons of Inayat Ali were his nephews whereas Muhammad Ali appellant was the paternal uncle of Ijaz Ahmad and Mumtaz Ahmad deceased. About 30/35 years ago Muhammad Ali appellant and Ijaz Ahmad and Mumtaz Ahmad deceased had constructed a Dhari in Killa No, 1 of Square No, 42 and they used to tether their cattle at the said Dhari together. Apart from that four and a half acres of land of Muhammad Ali appellant had been taken on rent by Ijaz Ahmad and Mumtaz Ahmad deceased who used to cultivate the same. In the year 1998 Muhammad Ali appellant retook the possession of his land from Ijaz Ahmad and Mumtaz Ahmad deceased and about one week prior to the present occurrence Muhammad Ali appellant demanded that Ijaz Ahmad and Mumtaz Ahmad should pay a sum of Rs,1,000 to him by way of arrears of rent but Ijaz Ahmad and Mumtaz Ahmad deceased maintained that they had paid the entire rent to Muhammad Ali appellant and nothing was outstanding in that regard. Three days prior to the present occurrence Muhammad Ali appellant told Ijaz Ahmad and Mumtaz Ahmad deceased that the land underneath the above mentioned Dhari also belonged to him and, therefore, they should remove their cattle fromthere. The dispute about tethering of the cattle at the said Dhari was taken to Lal Din Khan deceased, a brother of the
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complainant, for decision and he decided that Ijaz Ahmad and Mumtaz Ahmad deceased should keep on tethering their cattle at the said Dhari till the latter construct a new Dhari of their own for tethering their cattle. Muhammad Ali appellant accepted the said decision of Lal Din Khan deceased but when the brother of Muhammad Ali appellant namely Jehangir appellant and Muhammad Ali appellant's nephews namely Ashfaq Ahmad and Naseer Ahmad appellants, etc. Came to know of that decision they objected to the same and maintained that Lal Din Khan had no capacity to decide the matter and his decision in that regard was not acceptable to them. At about 10-00 a.m. On 20-9-1998 Irshad Ahmad complainant summoned Muhammad Ali, Jehangir, and Ishfaque Ahmad appellants, etc. And tried to pacify them so that they did not quarrel with Ijaz Ahmad and Mumtaz Ahmad deceased on that score. At about 4-00 p.m. On the same day Irshad Ahmad complainant and his brother Mushtaq Ahmad (P.W.11) were present in their own house when they received an information that nine persons including Muhammad Ali, Jehangir and Ashfaq Ahmad appellants, etc were proceeding to the disputed Dhari after making preparation for a fight. Thereafter Irshad Ahmad complainant and his brother Mushtaq Ahmad (P.W.11) also proceeded towards the Dhari and saw Ashfaq Ahmad appellant armed with a carbine, Naseer Ahmad, Munir Ahmad, Azeem Ali, Jehangir, Muhammad Ali, Nadeem alias Nannha, Ijaz Ahmad and Muhammad Akram appellants armed with hatchets going towards the said Dhari for fighting with Ijaz Ahmad and Mumtaz Ahmad deceased. By that time Mst. Naziran Begum, a sister of the complainant and the mother of Ijaz Ahmad and Mumtaz Ahmad deceased, had already reached the said Dhari upon receipt of information about the preparation made by the accused party. Irshad Ahmad complainant, Mushtaq Ahmad (P.W.11), Muhammad Razzaq and Shahzad Hassan PWs followed the accused party to the relevant Dhari. When they reached one Bigha short of that Dhari they saw that the complainant's sister namely Mst. Naziran Begum deceased was present at the Dhari and she had required her sons namely Ijaz Ahmad and Mumtaz Ahmad deceased to run away from there and they had hidden themselves in the nearby sugarcane field. In the meanwhile the accused party also reached the spot and Muhammad Ali appellant raised a Lalkara demanding that Mst. Naziran Begum deceased should hand over her sons namely Ijaz Ahmad and Mumtaz Ahmad deceased to the accused party. Muhammad Ali appellant also proclaimed that the accused party would teach a lesson to the complainant party fornot. Vacating possession of the Dhari.Thereafter Ashfaq Ahmad appellant fired a shot from his carbine hitting Mst. Naziran Begum deceased on the left side of her abdomen which shot crossed her body and made an exit from the opposite side. Upon receipt of that injury Mst.Naziran Begum deceased fell on the ground whereupon Jehangir appellant gave a hatchet blow to her on the back of her right shoulder. Munir Ahmad appellant then gave a hatchet blow to Mst. Naziran Begum deceased on the right side of her neck and Naseer Ahmad appellant gave a hatchet blow to her on the outer side of her right arm. Muhammad Ali appellant then gave a hatchet blow to the fallen Mst. Naziran Begum deceased hitting her on her head above her right ear. Jehangir appellant then gave a hatchet blow on Mst. Naziran Begum deceased's head hitting near her left ear. Thereafter Nadeem alias Nannha and Jehangir appellants caught hold of the legs of the fallen Mst. Naziran Begum deceased and started dragging her. Upon seeing the said treatment of their mother by the accused party Ijaz Ahmad and Mumtaz Ahmad deceased came out of the sugarcane field and tried to rescue their mother but Muhammad Ali appellant gave a hatchet blow on the left side of Ijaz Ahmad deceased's neck. Muhammad Akram appellant then gave a hatchet blow on the left clavicle bone of Ijaz Ahmad deceased and thereafter Ashfaq Ahmad appellant gave two successive hatchet blows to Ijaz Ahmad deceased which hit him near his neck. Upon receipt of those injuries Ijaz Ahmad deceased fell on the ground and in his fallen condition he was given a hatchet blow by Ijaz Ahmad appellant hitting him on the back of his right hand. Azeem All appellant gave a hatchet blew on the right side of the head of Mumtaz Ahmad deceased and
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upon receipt of that injury Mumtaz Ahmad deceased also fell on the ground. Naseer Ahmad appellant then dragged Mumtaz Ahmad deceased by catching hold of the latter's legs. Upon receipt of an information about that incident the complainant's brother namely Lal Din Khan deceased came to the spot alongwith his minor son namely Muhammad Aamer, aged about 6/7 years, in order to separate the parties but Azeem Ali appellant gave a hatchet blow on the forehead of Lal Din Khan deceased. Ashfaq Ahmad appellant also gave a hatchet blow on the left elbow of Lal Din Khan deceased whereupon the latter fell down and in that fallen condition Naseer Ahmad appellant gave a hatchet blow on the neck of Lal Din Khan deceased. Nadeem alias Nannha appellant then gave a hatchet blow on the left side of the chest of Lal Din Khan deceased. Upon seeing all that the minor son of Lal Din Khan deceased namely Muhammad Aamer started crying and then he was given a hatchet blow by Naseer Ahmad appellant on the left side of his head. Azeem Ali appellant then gave a hatchet blow on the back of the head of Muhammad Aamer minor. Ashfaq Ahmad appellant also gave a hatchet blow on the head of the said minor. Upon receipt of those injuries Muhammad Aamer minor also fell down. After witnessing the said occurrence the complainant's brother namely Mushtaq Ahmad (PW11) reached the spot and implored the accused party to desist from injuring the complainant party but Ashfaq Ahmad appellant shouted that Mushtaq Ahmad should also not be spared. Upon that Mushtaq Ahinad ran fromthe spot but he was followed by Ashfaq Ahmad appellant and was fired at by him. A pallet of the shot fired by Ashfaq Ahmad appellant hit the left lower leg of Mushtaq Ahmad (P.W.11). Due to fear Irshad Ahmad complainant, his son namely Shahzad Hassan P.W. And Muhammad Razzaq, P.W. Did not go near the accused party but witnessed the entire occurrence from its beginning to the end. When the accused persons became sure about the deaths of their victims they left the spot while firing in the air. The complainant and others then went near the injured persons and found Lal Din Khan, Ijaz Ahmad, Mumtaz Ahmad and Mst. Naziran Begum to have succumbed to their injuries and died at the spot whereas Muhammad Aamer minor had received serious injuries and he was immediately dispatched to Civil Hospital, Samundari for medical treatment. After some time of the said incident the complainant came to know that the dead body of Muhammad Sharif, father of Ashfaq Ahmad appellant, was laying in the sugarcane field of Muzammal Hussain which field was situated four Killas away from the disputed Dhari. According to the complainant Muhammad Sharif deceased had also been murdered by the accused party. The motive set up in the FIR was that the above mentioned deceased had been done to death by the accused party so as to forcibly dispossess the complainant party from the disputed Dhari. Leaving the deadbodies in the care of Muhammad Razzaq and Shahzad Hassan P.Ws. Irshad Ahmad complainant proceeded to report the matter to the police but he met a police officer on his way and made a statement before him at 4-40 p.m. On the same day, i,e, 20-9-1998 in respect of the said incident. On the basis of that statement of Irshad Ahmad complainant formal F.I.R. No,224 was registered at Police Station Tirkhani, District Faisalabad at 5-40 p.m. On 20-9-1998 for offences under sections 148/302/324/149, P.P.C. 3. The investigation of this case was conducted by Mukhtar Ahmad, DSP (P.W.17), Mumtaz Khan, D.S.P. (P.W.18), Muhammad Zafar, S.H.O. (P.W.20), Ch. Masood Ahmad, DSP (P.W.21) and Ghulam Sarwar, S.-I. (P.W.23). All these Investigating Officers had investigated this case at different stages and during the investigation the deadbodies were got subjected to post-mortem examination, the injured witnesses were got medically examined, the accused persons were arrested on different occasions and recoveries were effected from most of them on different dates. Upon completion of the investigation a challan was submitted before the learned trial Court whereafter the appellants in Criminal Appeal No, 1368 of 1999 and the appellant in Criminal Appeal No,900 of 2002 were separately tried at different times. All the appellants had pleaded not guilty to the charge framed against them by the learned trial Court and had claimed a trial. During the two trials twenty-three
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prosecution witnesses had been produced before the learned trial Court in the case subject- matter of Criminal AppealNo,1368 of 1999 and sixteen prosecution witnesses were produced in the case subject-matter of Criminal Appeal No, 900 of 2002. In their statements recorded under section 342, Cr.P.C. All the appellants had denied and controverted all the allegations of fact levelled against them by the prosecution and had professed their innocence. However, none of them had opted to make a statement on oath under section 340(2), Cr.P.C. The appellants in Criminal Appeal No,1368 of 1999 had, however, produced Muhammad Afzal as DW1 in support of their version of the incident. At the conclusion of the two trials the learned trial Court found all the appellants in both the, said appeals to be guilty vide judgments dated 26-11-1999 and 24-5-2002 respectively and all the said appellants were convicted and sentenced for various offences as mentioned and detailed above. Hence, the present appeals, revision petition and the connected Murder References before this Court. 4. We have heard the learned counsel for the parties for many days and at great length, have gone through the record of this case with their assistance and have attended to each and every aspect of this case from every possible angle presented and demonstrated before us. Although very lengthy arguments have been addressed before us by the learned counsel for all the parties yet for the purposes of brevity it may be mentioned here that according to the learned counsel for the convicts-appellants the prosecution had failed to prove its case against the convicts-appellants beyond reasonable doubt as the eye-witnesses produced by the prosecution were closely related to the deceased, their statements were replete with serious contradictions, they had failed to receive independent corroboration from the recoveries and had also failed to receive support from the medical evidence. According to the learned counsel for the convicts-appellants the prosecution had failed to satisfactorily explain the murder of Muhammad Sharif deceased; the convicts-appellants had acted in exercise of their right of private defence; and at any rate even according to the prosecution's own case the case in hand was one of a free fight and of individual liability of different culprits. They have gone on to maintain that the case in hand did not in/blue any terrorist activity and also that the convicts-appellants did not deserve capital punishment. As against that the learned counsel for the complainant as well as the learned counsel for the State have maintained that the prosecution had succeeded in establishing the convicts-appellants' guilt to the hilt and the circumstances of this case were such that the sentences passed against the convicts-appellants by the learned trial Court do not warrant any interference by this Court. They have further maintained that Muhammad Sharif deceased had been done to death by the convicts-appellants themselves in order to conceal their aggression against the complainant party and to give this case a twist so as to advance a plea of exercise of right of private defence. They havealso argued that the brutality shown by the convicts-appellants does not call for any sympathy from this Court in the matter of sentence. They have also prayed that the acquittal of Muhammad Akram appellant from the charge pertaining the murder of Muhammad Sharif deceased ought to be reversed by this Court and the sentence of Muhammad Ali appellant may be suitably enhanced. 5. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been noticed by us that the parties to this case are closely related to each other inasmuch as Muhammad Sharif deceased was the real father of Ashfaq Ahmad appellant and was an elder brother of the husband of Mst. Naziran Begum deceased besides being a brother-in-law of Lal Din Khan deceased. Inayat Ali, the husband of Mst. Naziran Bibi deceased and father of Ijaz Ahmad and Mumtaz Ahmad deceased, is a real brother of Muhammad Ali appellant, Jehangir appellant and one Nazir and all these four brothers are paternal uncles of Ashfaq Ahmad appellant. Lal Din Khan deceased was a brother-in-law of Muhammad Ali appellant and Jehangir appellant besides being a brother-in-law of the above
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mentioned Inayat Ali and Nazir. Nadeem alias Nannha appellant and Azeem Ali appellant are brothers and are sons of Jehangir appellant. Naseer Ahmad appellant and Munir Ahmad appellant are real brothers and are sons of Nazir who is a paternal uncle of Ashfaq Ahmad appellant. Muhammad Akram appellant is a servant of Ashfaq Ahmad appellant. Ijaz Ahmad appellant is a son-in-law of the above mentioned Nazir and a brother-in-law of Naseer Ahmad and Munir Ahmad appellants. It has been admitted before us at all hands that the complainant party of this case is the descendent of one Sardar Khan and the accused party of this case is the descendent of one Ahmad Khan and the said Sardar Khan and Ahmad Khan were real brothers. Irshad Ahmad complainant and Mushtaq Ahmad (P.W.11) are real brothers and Mst. Naziran Begum deceased was their sister. Irshad Ahmad complainant and Mushtaq Ahmad (P.W.11) are maternal uncles of Ijaz Ahmad deceased and Mumtaz Ahmad deceased. Aamer, an injured victim in this case, is a son of Lal Din Khan deceased. It is not disputed that the closely related members of the complainant party and the accused party had been living in the same village throughout their lives and prior to the present occurrence no untoward incident of any serious proportion had ever taken place between them. Even according to the F.I.R. Itself the parties to this case were…
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