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Petitioner: MUHAMMAD AZAM and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Nasira Iqbal, Bashir A. Mujahid Title: MUHAMMAD AZAM and others vs THE STATE Case No.: Criminal Appeals Nos. 25, 26, 27, 28 and Murder Reference No,6-T of 1998 Date of Judgment:2002-01-10 Reported As: 2002 YLR 252 Result: Order accordingly
JUDGMENT
JUDGMENT ' BASHIR A. MUJAHID, J.---Muhammad Azam (24) Ahmad Nawaz (37), Abdul Jabbar alias Bari (30), Noor Muhammad alias Noora (50), Muhammad Ashraf alias Ashri (29), Muhammad Nawaz alias Nazi (28), Muhammad Akbar (27),Muhammad. Aslam (31) and Muhammad Safdar (22) has challenged judgment dated 4-7-1998 passed by learned Judge, Special court under Terrorism Act. Bahawalpur whereby Muhammad Azam, Ahmad Nawaz, Abdul Jabbar, Noor Muhammad, Muhammad Ashraf, Muhammad Nawaz, Muhammad Aslam and Muhammad Safdar were convicted under section 302(b) 149, P.P.C. And sentenced to death on nine counts, except Muhammad Safdar who was sentenced to imprisonment for life, for commission of murder of nine persons namely, Allah Ditta. Mistri (27/28), Aurangzeb (25/26), Alamghir (19/20) Muhammad Shaban (28/29) Abid Hussain (27/28), Hamayim (20/21), Muhammad Yaqoob (35/36), Noor Ahmad (40/45) and Muhammad Qasim (34/35) both Constables. They were also fined to the tune of Rs,1 lac each on each count under section, 544-A, Cr.P.C. To be paid to the legal heirs of all the deceased persons in equal shares. They were further convicted under section 324/149, P.P.C. And sentenced to 10 years' R.I each and fine of Rs,20,000 each in default of payment of fine to undergo two years' R.I. They were further convicted under section 148/ 149, P.P.C. And sentencd to three years' R.I. Each. Under section 353/149 P.P.C. They were convicted and sentenced to two years' R.1 each. Under sections. 427/ 148/149, P.P.C. They were convicted and sentenced to two years' R.I. Each. All the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to the convicts. Through the same judgment, seven persons namely. Azhar Farid son of Nazar Muhammad,Mst. Sakina widow of Nazar Muhammad, Ghulam Farid son of Muhammad Yar,
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Muhammad Ali son of Nazar Ahmad, Noor Khan son of Sabir Ali, Irshad Shah son of Muhammad Ishaque and Muhammad Gulzar son of Khan Muhammad were acquitted of the charge. ' Briefly stated the facts of the case are that F.I.R. Exh.P.H.H was recorded at the. Police Station Hasilpur by Syed Jamat Ali Shah, Inspector S.H.O P.W.16 at 8-30 a.m. On 22-1-1996, on the statement of Muhammad Ali S.I. P.W.15 regarding the occurrence which took place at 7-20 a.m. On 22-1-1996 on the main road leading from Bahawalnagar to Bahawalpur at one . Furlong after crossing of Qatarian Check Post towards Hasilpur in revenue estate Chak No,12/F.W at a distance of 14 k.Ms. Towards east .Of Police Station, Hasilpur. ' Muhammad Ali, S.I. P.W.15 had alleged in the F.I.R. That on 22-1-1996 he along with Muhammad Akram, Head Constable, Muhammad Yaqoob, Muhammad Azhar, Noor Ahmad and Muhammad Latif, Constables took Aurangzeb, Alamgir, Hamayun and Allah Ditta accused of case F.I.R. No,38 of 1995 registered under section 302, P.P.C. From District Jail Bahawalnagar to be produced before Anti-Terrorist Court, Bahawalpur. Muhammad Shaban who was accused in case F.I.R. No,155/95, under section 392, P.P.C, was also taken by him for his transfer to Central Jail Bahawalpur. All these accused were taken in the Police Van bearing Registration No,5506/BNA driven by Abdul Ghaffar Constable Muhammad Nasir another Police Constable who had to bring mail to Bahawalpur also accompanied the complainant. The chains of accused were tightened with belts of Noor Ahmad, F.0 and Muhammad `Qasim, F.0 and Muhammad Azhar, F.0 was armed with SMG and Muhammad Yaqoob with rifle G.3. They also sat in the back portion of the van to guard of the accused. Muhammad Ali, S.I. (complainant) and Muhammad Akram, F.0 were sitting along with the driver in the front seat. When the van crossed the Katarian Check Post on Bahawalpur road and had covered one furlong distance ahead of Katarian Check Post within area of Chak No,12 F.W. At 7-20 a.m. a trolley loaded with sugarcane was standing on the road and all of a sudden, a Jeep emerged from behind the trolley and stopped in front of the Police Van and blocked the road. The driver of the Police Van applied the brakes when 10/12 persons armed with Kalashnikovs. Gun .12 bore, rifles and pistols who were hiding behind the trolley came in front of the van and opened fire and burst the front tyres of the van and took the police officials into custody who were sitting in front seat. Thereafter, they started firing towards the prisoners in the van from right left and back side. The accused namely, Aurangzeb, Alamghir, Hamayun. Abdullah Dita , Muhammad Yaqoob, Abid Hussain Muhammad Shaban, and two Constables Noor Ahmad and Muhammad Qasim who were sitting in the van were killed at the spot. Muhammad Akram, Head Constable, Muhammad Azhar, Nasir and Muhammad Yaqoob, Constables were injured. The accused raised 'Lalkara that they had taken the revenge of murelr of Mazhar Farid. It was further alleged by the complainant that the accused could be identified by him, Muhammad Akram, Constable, Abdul Ghaffar, driver and the injured constables, if they were brought before them. Meanwhile, Shah Sawar, Muhammad Niaz, Mansab Ali and Khadim Hussain relatives of the deceased were also coming behind in their car reached at the spot. They also witnessed the occurrence and saw the accused running from the place of occurrence in their jeep and Pajero and identified them. It was also alleged by the complainant that Shah Sawar and other P.Ws. Chased the accused and disclosed the names of the accused on return. ' After registration of the case Syed Jamat Ali Shah, Inspector P.W.16 arrived at the place of occurrence and took into possession 8 dead bodies of Aurangzeb, Hamayun, Alamghir, Allah Ditta, Muhammad Shaban, Noor Ahmad, Muhammad Qasim and Abid Hussain lying in Police Van and one dead body of Muhammad Yaqoob which was lying on back side of van. Shah Sawar, Mansab and Khadim Hussain, P.Ws. Were also present at the spot. He prepared the injury statement Exh.P.B/2 and inquest report Exh.P.B/3 of. Allah Ditta deceased injury statement Exh.P.C/2 and inquest report Exh.P.C/3 of Aurangzeb; injury statement Exh.P.D/2 and inquest report Exh.P.D/3 Alamghir, injury statement Exh.P.E/3 and inquest report Exh.P.E/4 of Muhammad Shaban and
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respectively of Abid Hussain Exh.P.F/2 and Exh.P.F/3 of Hamayun Exh.P.G/2 and Exh.P.G/3; of Noor Ahmad Exh.P.G/2 and Exh.P.G/3 of Muhammad Qasim Exh.P.H/2 and Exh.P.H/3 and that of Muhammad Yaqoob Exh.P.K/2 and Exh.P.K/3, and handed over the dead bodies to Allah Ditta for post-mortem examination. He recorded the statement of Shah Sawar, Khadim Hussain, Niaz and Mansab Ali, P.Ws. He collected the bloodstained with the help of cotton from Police Van through Exh.P.O and blood-stained earth from the spot where dead body of Muhammad Yaqoob was lying through Exh.P.O. He also took into possession the Police Van P.1 through Exh.P.L and 16 empties P.2/1- 16 of 44 rifle, 106 empties of .222 bore rifle P.3/1-106, 66 empties P.4/1-66 of Kalashnikov. 3 empties P.5/1-3 of .30 bore pistol, 30 empties P.611-30 of .12 bore gun vide memo. Exh.P.M. He also took into possession 6 handcuffs P.7/1-6, 5 fetters P.8/1-5, .2 Police belts P.9/1-2 all blood-stained through memo. Exh.P.N. All the recovery memos. Were attested by Javed Ali Shah, A.S.I. P.W.7 and Syed Jamat Ali Shah, 1.0/P.W.16. He on 24-1-1996 arrested Nazir alias. Guddu, who while in police custody led to the recovery 222 rifle P.10 and licence P.11 and pistol .30 bore P.12 and its licence P.13 which were taken into possession through memo. Exh.P.P. Nazir alias Guddu subsequently absconded and was declared P.O. During the trial. On the same day, he also arrested Gulzar, Mst. Sakina mother of Muhammad Azam accused, Rasheed Sukhera and Niaz Ahmad Bhandera. On 29-1-1996 he also arrested Noor Muhammad and Muhammad Ashraf. Noor Muhammad while in police custody on the same day led to the recovery of two pistols .30 bore P.64 and P.66 and 9 live bullets P.65/1-9 which were taken into possession . Vide memo. Exh.P.Y. Muhammad Ashraf also on the same day got recovered 222 rifle P.67 and 24 live bullets P.68/1-24 which were taken into possession vide memo. Exh.P.Z. Both the memos. Exh.P.Y and Exh.P.Z were attested by Pervez A.S.I. P.W.8 and Muhammad Mairaj, Head Constable. On 5-2-1996, he arrested Ahmad Nawaz Bhandera, Muhammad Azam and Muhammad Safdar accused. On 19-2-1996, Ahmad Nawaz while in police custody led to the recovery of gun .12 bore P.70 which was taken into possession through memo. Exh.P.BB. Muhammad Azam on the same day led to the recovery of rifle 222. Bore P.71 and magazine P.72 which were taken into possession vide memo. Exh.P.CC. On the same day Muhammad Safdar led to the recovery of rifle 222 bore P.73 and magazine P.74 which was taken into possession through Exh.P.DD. All the recovery memos. Were attested by Mansab Ali P. W;12 and Syed Jamat Ali Shah, P. W.16. On the same day Muhammad Safdar accused also led to the recovery of Suzuki Car P.78 which was taken into possession through memo. Exh.P.FF. On 28-2-1996, Javed Ali Shah, A.S.I. P.W.7 arrested Azhar Farid, Abdul Jabbar, Muhammad Ali and Noor Khan accused and produced them before Jamat Ali Shah, Investigating Officer. Abdul Jabbar while in police custody led to the recovery of rifle .44 bore P.75 which was taken into possession vide memo. Exh.P.EE. The empties and the other articles taken into possession from the place of occurrence were sent for their Chemical Examination and report of .Chemical Examiner was received vide memo. Exh.P.QQ and that of Forensic Science Laboratory Exh.P.SS and Serologist Exh.P.RR. Through report of F.S.L. Exh.P.SS crime empties C.1 to C.16 matched with rifle P.75 got recovered by Abdul Jabbar accused, while empties C.17 to C.33 were tallied with rifle P.71 got recovered by Muhammad Azam and C.64 to C.66 tallied with the rifle P.73 got recovered by Muhammad Safdar accused. Twelve empties of .12 bore gun tallied with gun P got recovered by Muhammad Nawaz accused. ' He arrested Muhammad Nawaz alias Nazi on 8-1-1997. Muhammad Akbar on 26-2-1997 and Muhammad Aslam on 28-2-1997 as they were declared proclaimed offender by the Court and substituted service was effected by Javed Ali Shah. .P.W.7 by affixing the warrants of arrest/proclamation on their residences through Exh.P.V, Exh.P.0 and Fxh.P.X. He recorded the statements of the prosecution witnesses, completed the investigation and submitted the challan. ' Charge was framed by the trial Court. The accused denied the charge and claimed trial. ' During the trial the prosecution examined as many as 18 witnesses to prove the guilt of the accused.
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' P.W.6 Dr. Rashid Masood on 22-1-1996 conducted the post-mortem examination on the dead body of Allah Ditta son of Muhammad Ali and found the following injuries on his person:- (1) Lacerated wound measuring about 2 c.m. x 1 c.m. x going deep x going deep with punched in margins and some burning present on edges of wound situated on the anterior aspect of right upper arm. This was wound of entry. (2) Lacerated wound measuring about 5 x 1 c.m. x going deep with punched out margins situated on lateral aspects of right arm. This wound was situated in the line of injury No,1 and this was wound of exit of injury No,1. (3) Lacerated wound measuring about 6 x 1 c.m x going deep with punched in margins situated on the lower part of right side of back (wound of entry). (4) Lacerated wound measuring about 2 x 1 c.m. Going deep with punched out margins situated on the anterior aspect of right side of chest. Just later to nipple. This was the wound of Exit of injury No,3. (5) Lacerated wound measuring about 6 c.m x 2 c.m x muscle deep set obliquely with burnt margins situated on left buttock. This was grazed wound. (6) Lacerated wound measuring about 2 x 1 c.m x going deep with punched in burnt margins situated on the lateral aspects on left knee joint. This was the wound of entry. (7) Lacerated wound measuring about 2 x 1 c.m.. Going deep with punched out margins situated on the anterior aspect of left knee joint. It was wound of exit of injury No,6. (8) Lacerated wound measuring about 10 x 7 c.m. Into going deep set vertically with burnt margins situated on the anterior aspects of right lower leg at its lower part. Both bones of tibea and fibula fractured. ' On the same day at 12-00 noon, he conducted the post-mortem examination on the dead body of Aurangzeb son of Muhammad Khan and found the following injuries on his person:- (1) Lacerated wound measuring about 1-1/4 x 1-'/, c.m. Into going deep with blanket burnt margins situated on lower 1/3rd part of lateral aspects of left upper arm. It was the wound of entry. Bullet taken out. (2) 3-Lacerated wound each measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the deltoid area of right arm. The right Humerus was fractured. It was the wound of entry. (3) 3-Lacerated wound measuring about 1 x 1 c.m. x going deep with punched in burnt margins situated on the postrolateral aspect of left side of lower part of chest. It was the wound of entry. (4) 3-Lacerated wound each measuring about 2 x 1 c.m. x going deep with punched our margins situated on the posterior aspect on the middle of the backing upper lumber region and chest in the line of injury No,3. It was the wound of exit injury No,3. ' On the same day he conducted the post-mortem examination on the dead body of Alamghir son of Muhammad Khan and found the following injuries on his person:- (1) Lacerated wound measuring about 1-1/4 x c.m. Into going deep with punched in burnt margins situated left side. It was wound of entry. (2) Lacerated wound measuring about 2 x 2 c.M. Into going deep with punched out margins situated on 1 the right side of neck. It was the wound of exit of injury No,1 (3) Lacerated wound measuring about 3 x 2 c.m. x muscle deep with going margins situated on the right shoulder (grazed wound) (4) Lacerated wound Measuring about 1-1/4 x 1 c.m. Into going deep with punched in burnt margins situated on postro lateral aspect of right side of chest. It was the wound of entry. (5) Lacerated wound measuring about 8 x 3 c.m into going deep with punched out margins situated on the middle of the upper part of chest. It was the wound of exit of injury No,4.,
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(6) Lacerated wound measuring about 1-1/2 x 1 c.m. Into going deep with punched in burnt margins situated on back of chest, close to the injury No,4 (7) Lacerated wound measuring about 2 x 2 c.m. Into going deep with punched out Margins situated on anterior aspect of chest medial to the right (wound of exit of injury No,6). (8) Lacerated wound measuring about 1 x 1 c.m into 1 x 1 c.m into going deep with punched burnt margins situated on the posterior aspect lower part of chest right side. It was wound of entry. (9) Lacerated wound measuring about 8 x 4 c.m into deep with punched out margins situated on the left of chest anterolaterally wound of exit of injury No,8. (10) Lacerated wound measuring about 2 x 1 c.Minto deep with punched in burnt margins situated on lower part of lateral aspect of left upper arm. It was the wound of entry. (11)Lacerated wound measuring about 4 x 2 c.m into deep with punched out margins situated on the poster() aspects of left elbow joint. Wound of exit of injury No,10.. (12)Two lacerated wounds measuring about 1 x 1 c.m into deep with punched in burnt margins situated anterial aspect of middle of tight forearm. It was wound of entry. (13)Lacerated wound measuring about 6 x 4 into deep with punched out margins situated on the postero aspects of middle of right forearm. This was wound of exist of injury No,12. (14)Lacerated wound measuring about 1-V2 x 1-V2 c.m into going deep with punched in margins situated on upper part of right thigh laterally. It was wound of entry. (15)Lacerated wound measuring about .3 x 2 .c.m x deep with punched out margins situated on the costero lateral aspect of right thigh. This was the wound of injury No,14. (16)Lacerated wound measuring about 8 x 3 c.m 'into going deep with burnt margins situated on right knee. It was the greased wound. (17)Lacerated wound measuring, about 1-V2 x 1-1/2 c.m into going deep with punched in burnt, margins situated on the inner side of left thigh at its upper part. This was the wound of entry. (18)Lacerated wound measuring about 4 x 2. c.m into going deep with punched out margins situated on the posterior medial part of left thigh.. It was the wound of exit of injury No,,17. ' Re on the same day at 2-30 p.m., also conducted the post-mortem examination on the dead body of Muhammad Shaban son of Shad Din and found the following injuries on his person:- (1) Lacerated wound measuring about 1-1/2 c.m x 1-V2 c.m. Into going deep with punched in burnt margins situated right scapula. It was wound of entry. (2) Lacerated wound measuring about 3 x 2 c.m into going deep with punched out margins situated on right side of chest below the medial end of right clavicle was the wound of exit of injury No,l. (3) Lacerated wound measuring about 1 x 1 c.m into going deep with punched in burnt margins situated on the lateral part of right cubitalfoss. It was wound of entry. (4) Lacerated ,wound measuring about 12 c.m x.6 can x bone deep with punched out margins situated on the lateral aspect of upper part of right forearm. Both bona were fractured. It was the exit wound of injury No,3. (5) Lacerated wound measuring about 3 x 1 c.Rn ifito bone deep situated on the posterior aspect of the right little finger. There was fracture in middle phalanx. ' On the same day at 4-00 p.m. He also conducted the post-mortem examination on the dead body of Abid Hussain son of Shatoon and found the following injuries on his person:-- Lacerated wound measuring about 8 x 2 c.m. Muscle deep with burnt margins situated on the right side of anterior aspect of chest below the right nipple4(grazed wound). (2) Lacerated wound measuring about 1-1/4 x 1-1/4 c.m. Going deep with punched in burnt margins situated on the postrolateral aspect of the lower part of right upper arm (wound of entry). (3) Lacerated wound measuring about 2 x 1 c.m going deep with punched out margins situated on inner side of the middle of right upper arm. It was a wound of exit of injury No,2.
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(4) 4-Lacerated wound measuring about each 1-1/4 x 1-1/4 c.m into going deep with punched in burnt margins situated on the posterial aspect of right side of chest (wound of entry). (5) 2- Lacerated wound measuring about 12 x 4 c.m. Into going deep and 10 x 3 c.m. x going deep situated in the left axilla with punched out margins. This is wound of exit of injury No,4. ' He on the same day, conducted the post-mortem examination on the dead body of Noor Ahrnad Constable and found the following injuries on the dead body:-- (1) Lacerated wound measuring 1-'/2 x 1-1/2 c.m into going deep with punched in ' burnt margins situated on the right scapular region. It was wound of entry. (2) Lacerated wound measuring about 6 x 4 c.m going with punched out margins situated on the lower part, of neck anteriorly above the nanubrium (wound of exit of injury No,3). (3) Lacerated wound measuring about 10 x. 2 c.m. x skin deep set vertically situated on the lateral aspect of upper of left thigh. The margins were burnt. (it was a grazed wound). ' On the same day, the same doctor conducted the post-mortem examination on the dead body of Muhammad Qasim. Constable and found following injuries on his person:- (1) Lacerated wound measuring about 8 x 6 c.m. x bone deep with punched out margins situated on the right side of posterial aspect of scalp. The brain matter was coming out and this was grazed -wound. (2) Lacerated wound measuring about 1-1/2 c.m. x going deep with punched out burnt margins situated on the upper part of the lateral aspect of right upper arm. This is wound of entry. (3) Lacerated wound measuring about 3 x 2 can. Going deep with punched out margins situated on the innal aspect of right upper arm. This is wound of exit of injury No .2 (4) Lacerated wound measuring about 1-1/2 x 1-1/2 c.m. Into going deep within punched in burnt margins situated on the middle right of the lateral aspect of the chest. This is the wound of entry. (5) Lacerated wound measuring about 2 x I/2 c.m. Into going deep with punched in burnt margins situated about 8 c.m. Below the injury No,4. This is the wound of entry. (6) Lacerated wound measuring about 8 x 4 c.m. x into going deep with .Punched out. Margins situated' on the right scapular region. This is the wound of injury No,4. (7) Bruise (raised place) on the middle of the back of chest, one bullet taken out from it after incision. This' was actually exit place of injury No,5. (8) Lacerated wound measuring about 1-1/2 x 1-1/2 c.m. Into going deep with punched in burnt margins situated on the aspect of middle of the right lower leg. This was wound of entry. (9) Lacerated wound measuring about 16 x c.m. Into bone exposed situated on the outer aspect of middle of the right lower leg. Both bones were fractured. It was wound of injury No,8. ' On. 23-1-1996 at 8-30 a.m, the same doctor conducted the post-mortem examination on the dead body of Hummayon son of Muhammad Khan and found the following injuries on his person:- (1) Lacerated wound measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the top of the scalp. It was wound of entry. (2) Lacerated wound measuring about 10 x 4 c.m. Into going deep with Punched out margins situated on the right side of the leg. It was exit wound of injury No,1 (3) There was bleeding from left ear. (4) Seven lacerated wound each measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the posterior aspect of right shoulder. It was wound of entry. (5) Two lacerated wound measuring about 1 x 1 c.m. x going deep into punched in burnt margins - situated on the lower part of left scapula. It was wound of entry. (6) Lacerated wound measuring about 3 x 1 c.m. Into skin deep situated on the middle of the lateral aspect of right thigh,. It was grazed wound. (7) 8-Lacerated wound measuring about each 1 x 1 c.m. Into going deep with punched, in burnt margins situated on the left buttock. It was wound of entry.
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(8) Lacerated wound measuring about 1-1/2 x 1-'1, c.m. Into going deep with punched in burnt margins situated on the upper part of inner aspect of left thigh. It was wound of entry. And one bullet taken out from the wound. (9) Lacerated wound measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the left thigh about 3 inches above the injury No,9, it was wound of entry. (10)Lacerated wound measuring about 2 x 2 c.m. Into going deep with punched out margins situated on the right side of chest near the nipple, (11)Lacerated wound measuring 4 x 2 c.m. Into going deep with punched out margins situated on the below and lateral to left nipple about six inches. The large intestine was coming out. It was wound of exit. (12)Lacerated wound measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the left side 4-inch lateral to the umbilicus. It was wound of entry. (13)Lacerated wound measuring about 1 x 1 c.m. Into going with burnt margins situated on the 2- inch below umbilicus. It was wound of entry. (14)Lacerated wound measuring about 1 x 1 c.m. Into deep with punched in burnt margins situated on the left lateral part of the abdomen. It was entry wound. (15)3-Lacerated wound each measuring about 1 x 1 t.;.m. Into deep with punched in burnt margins situated on the upper of left buttock lateral aspect it was wound of entry. (16)Lacerated wound measuring about 1-1/2 x 1-1/, c.m. Into going with punched in' burnt margins situated on the middle of the lateral aspect of left forearm. It was wound of entry. (17)Lacerated wound measuring about 6 x 2 c.m. Into going deep with punched out margins situated on the medial aspect of left forearm to the -.Opposite to the injury No,17, There was fracture of both radius and ulna. (18)2-Lacerated wound in measuring about 1 x 1 c.m. Into going deep with punched in burnt margins one is situated on the dorsum of left hand and left -irist. It was wound of entry. (19)2-Lacerated wound each measuring about 2 x c.m. Into going deep with punched but margins situated opposite to the corresponding to the entry wound. ' On the same day at 10-00 a.m. He conducted the post-mortem examination of the dead body of Muhammad Yaqoob son of Noor Muhammad and found the following injuries:- (1) Lacerated wound measuring about 1 x 1 c.m. Into going deep with punched in burnt margins situated on the…
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