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Petitioner: ZAKA ULLAHand others VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Abdul Sami Khan, Sardar Tariq Masood Title: ZAKA ULLAHand others vs The STATE Case No.:Criminal Appeals Nos.101 of 2009, 94-J of 2013 and Murder Reference No,140
JUDGMENT
Reported As: 2015 YLR 1977 Result: Order accordingly Judgment JUDGMENT ' ABDUL SAMI KHAN, J.---Through these appeals under section 410, Cr.P.C. Zaka Ullah, Musthaq alias Mustafa, Ahmad Ali, Asif Ali, Imtiaz and Ahmad Yar alias Ami appellants have called in question the judgment dated 24-1-2009 handed down by the learned Additional Sessions Judge, Faisalabad wherein appellants Zaka Ullah, Mushtaq alias Mustafa, Ahmad Ali, Asif Ali and Ahmad Yar alias Ami were convicted and sentenced to death under section 302(b)/149, P.P.C., on three counts, for committing the murder of Shah Nawaz alias Gudoo, Muhammad Arshad and Liaquat Ali, while Imtiaz appellant was convicted and sentenced to life imprisonment under, sections 302(b)/149, P.P.C. All the appellants were directed to pay compensation of Rs,100,000 (Rupees one hundred thousand only) each to the legal heirs of the deceased Shah Nawaz alias Gudoo, Muhammad Arshad and Liaquat Ali under section 544-A Cr.P.C. Failing which they shall undergo simple imprisonment for six months each. The appellants were also convicted under section 148, P.P.C. For making rioting and sentenced to undergo rigorous imprisonment for three years each with fine of Rs,10,000 (Rupees ten thousand only) each. In default of payment thereof they shall further undergo simple imprisonment for three months each and under sections 324/149, P.P.C. For causing injuries upon the person of Seet-ulHaq, injured P.W. And sentenced to rigorous imprisonment for ten years each with fine of Rs,50,000 (Rupees fifty thousand only) each. In default of payment thereof they shall further undergo simple imprisonment for three months each. ' The sentences awarded to convict Imtiaz were ordered to run concurrently. Benefit of section 382- B Cr.P.C. Was extended in favour of the appellant Imtiaz.
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2. The appellants have filed these appeals against their convictions and sentences whereas the learned trial court has sent a Reference under section 374, Cr.P.C. For confirmation or otherwise of the death sentence passed against Zaka Ullah, Mushtaq alias Mustafa, Ahmad Ali, Asif Ali and Ahmad Yar which has been numbered as Murder Reference No,140 of 2009. We propose to decide all these matters together through this single judgment. 3. The first information report (Exh.PA/1) of the occurrence which took place on 25-7-2005 was registered on the statement (Exh.PA) of Saif Ullah, which was recorded by Muhammad Ashraf, Inspector/SHO Police Station D-Type Colony, Faisalabad. Brief facts of the case, as disclosed by Saif Ullah, complainant (P.W.11) in FIR (Ex-PA/1) are as under:-- "The (complainant) was resident of Chak No,237/RB and was a cultivator. On 25-7-2005, he along with Zahoor Ahmad, Imtiaz and Rustam boarded in car LZC-6976 and Muhammad Arshad, Shah Nawaz, Liaqat Ali and Seet-ul-Haq boarded in another car No,FDZ-4113 were coming to appear in the Court of Mr. Musharaf Hassan Samra, Additional Sessions Judge, Faisalabad in case FIR No,364/2004 under section 302, P.P.C., registered at Police Station Saddar, Faisalabad. The car of Muhammad Arshad was ahead whereas the car of the complainant was behind. When at 09:45 a.m. The complainant party reached near D-Type Bridge, two cars overtook the car of complainant. One car was of green colour bearing No,FDY7626, which was being driven by Ahmad Yar and Ali Zar, Zaka Ullah and Ahmad All accused were sitting in the car along with him, while second car was having black colour and was without number plates. Qasim accused was driving the second car and Akbar, Imtiaz, Asif and Mustafa were sitting in the car along with him. All these accused were equipped with Kalashnikovs. The accused stopped their cars in front of car of Arshad etc. Alighted from their cars and resorted to firing with their Kalashnikovs. Akbar inflicted fire shots injuries at Shah Nawaz who was sitting on driving seat. Asif inflicted fire shots injuries at Arshad who was sitting behind the driver. Ali Zar inflicted fire shots injuries at Liaqat, who was sitting in front seat. Imtiaz inflicted fire shots injuries at Seet-ul-Haq who was sitting behind Liaqat. Mustafa inflicted fire shots injuries at Shah Nawaz, Zaka Ullah inflicted fire shots injuries at Arshad, Qasim inflicted fire shots injuries at Liaqat, Ahmad Ali inflicted fire shots injuries at Seet-ul-Haq. Ahmad Yar inflicted fire shots injuries to Arshad and Ahmad Ali inflicted fire shots injuries to Liaqat. The complainant and P.Ws. Boarded in second car had stopped their car and hide behind the footpath and witnessed the occurrence. The accused resorted to indiscriminate firing and went away while boarding in their cars. The complainant and his companions went to the injured and saw that Muhammad Arshad, Shah Nawaz and Liaqat Ali had succumbed to the injuries, while Seet-ul-Haq was seriously injured who was shifted to the hospital. The occurrence was committed at the instance and abetment of Muhammad A fzal and Maqbool Hussain (acquitted co-accused). ' The motive behind the occurrence, as stated by the complainant in the FIR (Exh.PY/1) was previous murder enmity between the parties." 4. After registration of the FIR, the investigation of the case was conducted by Muhammad Arshad Had Inspector (CW-1), Zafar Ullah Cheema SI (P.W.17) and Sajjad Ali, Inspector (P.W.18) and after completion of investigation, the report under section 173, Cr .P.C. Was submitted in the learned trial Court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants under sections 302/324/148/149, P.P.C. On 22-4-2008, to which they pleaded not guilty and claimed trial. 5. In order to substantiate its version at trial, the prosecution produced eighteen witnesses before the learned trial Court. Saif Ullah complainant (P.W .10) , Seet-ulHaq alias Abdul Haq injured (P.W.11) and Imtiaz Ahmad eye-witness (P.W.12) are the witnesses of ocular account. Abid (P. W.15) is the witness of recovery of Kalashnikov from the possession of Ahmad Yar alias Ahmi appellant. Muhammad Arshad Harl Inspector, Zafar Ullah Cheema, SI and Sajjad Ali, Inspector are the
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Investigating Officers of the case. The statements of Zafar Ullah Cheema, SI and Sajjad Ali, Inspector were recorded by the learned trial Court as P.W.17 and P.W.18, while Muhammad Arshad Harl Inspector was summoned by the learned trial Court as a court witness and his statement was recorded as CW-1. 6. Dr.Altaf Pervaiz Qasim (P.W.4) on 26-7-2005 had conducted postmortem examination on the dead body of Shah Nawaz son of Ghulam Ahmad and found the following injuries:- "I-A. A fire arm wound of inlet 02 cm x 02 cm with inverted margins on right cheeck, above the angle of mandible and 04 cm in front of right ear. The right mandible bone fractured, the projectile traversed through mandible, maxilla and base of skull, crushed the brain matter and made exit through left side of head. The skull bones were shattered and brain matter was lying outside the cranial cavity. Upper jaw, teeth were fractured. The left eyeball was lying out of orbit and right eyeball was crushed. 1-B. A fire arm wound of exit 15 cm x 13 cm with everted margins, irregular in shape over the left side of head above the left ear. The bone of skull including left parietal, temporal, frontal and occipital were fractured into multiple pieces. 2-A A fire arm wound of inlet 1-1/2 x 1-1/2 cm with inverted margins on right parietal area of head at 06 cm above the right ear. The underlying bones of skull badly fractured into pieces and projectile made exit through left parietal and occipital area of head. 2-B A fire arm wound of exit 12 cm x 11 cm with irregular and everted margins on left parietal area of head, brain matter was lying outside through the wound. 3. A fire arm wound of inlet 3 cm x 3 cm with inverted margins on back of head middle part, causing fracture of occipital bone, shattered the brain matter and one deshaped metallic projectile found impacted in the scalp of frontal area, which is sealed and handed over to the police. 4-A Five firearm wounds of inlet over the back outer aspect of right shoulder, just above the axilla, each of size 1-1/2 cm x 1-1/2 cm involving the total area of 11 cm x 09 cm with inverted and irregular margins, surrounded by tattooing covering the back, outer and front of right shoulder. Corresponding holes were present on Qameez and Bunyan. The metallic projectiles injured the skin, muscles, bones of right side of shoulder, injured the intercostals spaces, pleurae, right lung along with pulmonary vessels traversed through and through the chest cavity injured the heart, aorta, perforated the left lung, fractured the 4th and 5th ribs of left side, fractured the thoracic vertebrae and made exit over back of left chest as injury No,4-B. Corresponding holes present on clothes. 4-B Five, fire arm wounds of exit over the back of left chest and shoulder with irregular and everted margins of different sizes, involving total area of 12 x 11 cm. Corresponding holes present on clothes. 5. A grazing fire arm wound 5 cm x 2 cm over the top of right shoulder, obliquely directed from outside to the medial size, the superficial skin is injured and no bony lesion observed." 7. One metallic projectile was recovered from the scalp and according to the opinion of the doctor, injuries Nos. 1 to 4 caused severe haemorrhage and shock, which resulted in the death of Shah Nawaz. All injuries were ante-mortem in nature and were caused by firearm weapon. Probable time that elapsed between injuries and death was immediate and between death and postmortem was 12 to 14 hours. The post mortem report of Shah Nawaz deceased is Exh.PM. 8. Similarly on the same day, Dr.Altaf Pervaiz Qasim (P.W.4) had conducted postmortem examination on the dead body of Liaqat Ali son of Noor Muhammad and found the following injuries:-- "1-A. A fire arm wound of inlet 1-1/2 cm x 1-1/2 cm with inverted margins on right cheeck, above the angle of mandible and 4 cm in front of right ear. The right mandible bone fractured, the projectile traversed through mandible, maxilla and base of skull, crushed the brain matter and made exit
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through left side of head. The skull bones were shattered and brain matter was lying outside the cranial cavity. Upper jaw, teeth were fractured. One deshaped projectile found in the skull cavity. 1-B. A fire arm wound of exit 09 cm x 05 cm with everted margins, irregular in shape over the left side of head, 04 cm above the left ear. The bones of skull including left parietal, temporal, frontal and occipital were fractured into multiple pieces. 2-A. A fire arm wound of inlet 1-1/2 X 1-1/2 cm with inverted margins on right check, 3 cm below the injury No, 1-A, the projectile traversed through the maxilla nasal bone, base of skull, brain matter and made exit on back of left side of head through left parietal and occipital area. 2-B A fire arm wound of exit 7 cm x 6 cm with irregular and everted margins on left side of back of head, brain matter was lying outside through the wound. 3-A A fire arm wound of inlet 4 cm x 3 cm with inverted margins on front of right side of head above the right eyebrow, causing fracture of frontal bone, shattered the brain matter and made exit on left parietal area of head. 3-B A fire arm wound of exit 7 x 5 cm with everted margins irregular in shape on the left parietal area of head with multiple fragments of bones. 4-A A fire area wound of inlet 2 x 2, cm with inverted margins on the left cheeck near the angle of mandible, directed inwards and upwards made exit through right temporal area of head. 4-B A fire arm wound of exit 6 x 4 cm with everted margins irregular in shape on the right temporal area of head, with multiple fragments of bones. 5-A. Five firearms wound of inlet with inverted margins over the back of right shoulder involving an area of 12 x 11 cm each of size 1-1/2 x 1-1/2 cm, the projectiles traversed through the scapular area injured the right chest and made exit on front of right chest near axilla. One metallic projectile removed from right lung. Corresponding holes present on clothes. 5-B. Four firearm wounds of exit on the front of right chest near right axilla involving total area of 9 x 9 cm margins of the wounds were everted. Corresponding holes present on clothes. 6-A Four fire arm wounds of inlet with inverted margins on the back of right elbow joint involving an area of 11 x 10 cm causing fracture of Humerus, Radius and ulna made exit on front elbow. 6-B. Four fire arm wounds of exit on the front of right elbow joint, with fracture of underlying bones. Corresponding holes present on clothes. 7-A firearm wound of inlet 2 x 1-1/2 cm oval in shape with inverted margins on front of right chest, just above the right nipple, directed medially, traversed through the pleurae, perforated right lung, aorta, heart, left lung and found impacted in the soft tissues of left pectoral area. 8. A fire arm wound of inlet 1-1/2 x 1-1/2 cm, circular in shape with inverted margins on the back of right abdomen at 05 cm away from the vertebral column, directed inward and forwards injured the posterior abdominal wall, peritoneum and found impacted in the liver, diaphragm was also injured. Corresponding holes present on clothes. 9. A fire arm wound of inlet 1-1/2 x 1-1/2 cm, circular in shape with inverted margins on the back of right chest, below the scapula, the projectile traversed through the right scapula, intercostals space, injured the right lung and found in the lung tissue. Corresponding holes present on clothes. 10. A fire arm wound of inlet 1-1/2 x 1-1/2 cm, circular in shape with inverted margins on the back of left chest, near the vertebral column but the outer layer of skin was injured only. No bony lesion seen. 11. A grazing firearm wound of size 9 x 2 cm transverse in direction on front of neck lowest part just above the sternal notch. 12. A grazing fire arm wound of size 4 x 2 cm transverse in direction on front of left chest, over the nipple up to the anterior axillary fold. 13. A grazing fire arm wound of size 6 x 1-1/2 cm transverse in direction on back of left chest, lowest part, over the vertebral column. Corresponding holes present on clothes Note: Two metallic
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projectiles (bullets) and three deshaped metallic projectiles recovered from the dead body and handed over to police. 14. On examining the Cranium and skull were injured as already stated whereas membranes and brain matter were shattered. On examining the chest cavity all the organs were found injured whereas heart was shattered. 15. On examining the abdominal cavity, the walls, peritoneum, diaphragm, liver were found injured whereas rest of the organs were found healthy. One metallic projectile was found in the liver tissues." 9. The death in this case was occurred due to extensive brain damage and hemorrhage and shock resulting from injuries Nos. 1 to 10 inflicted by firearm, which were ante-mortem and sufficient to cause the death in ordinary course of nature collectively as well as individually. Injuries Nos. 11, 12 and 13 were also ante mortem and grazing fire arm wounds. The time between the death and post mortem examination was 12 to 24 hours. 10. Similarly on the same day at 9.30 a.m., Dr. Altaf Pervaiz Qasim (P.W.4) had also conducted postmortem examination on the dead body of Muhammad Arshad son of Ahmad Ali and found the following injuries:-- A fire arm wound of inlet 2 cm x 2 cm with inverted margins on the back of left chest at 03 cm away from vertebral line. The projectile injured the skin, blood vessels and muscles on the back of chest, entered the chest cavity through intercostals space, injured the pleura perforated left lung and one piece of metallic projectile found impacted in the trachea. 2-A. A fire arm wound of inlet 1-1/2 x 2 cm with inverted margins on the back of left arm (elbow) causing the fracture of left humerus, radius and ulna bones injured the left brachial artery. 2-B A firearm wound of exit 6 x 4 cm with everted margins over left elbow joint. There were multiple pieces of fractured bones directed outside through the wound. (corresponding holes present on the clothes). 3. A firearm wound complex 8 x 5 cm with irregular margins on the back of left chest. The metallic projectile injured the skim, muscles, blood vessels and penetrated the back of chest, damage pleura, left lung and made exit through the same wound complex. One piece of metallic projectile found in skin. (Tattooing in an area of 9 x 8 cm surrounded the wound). 4. A firearm wound complex 6 x 4 cm with irregular margins on the back of right chest. The metallic projectile injured the skin, muscles, blood vessels and made exit through the same wound complex without causing any bony lesion. (Corresponding holes present on the clothes). 5-A A firearm wound of inlet 2 x 1 cm oval in shape on the outer aspect of left leg upper part directed inward and made exit to medial side of left leg, causing fracture of tibia and fibula bones and anterior tibial artery was ruptured. (Corresponding holes present on Shalwar). 5-B A firearm wound of exit 6 cm x 4 cm with everted margins on medial side of left leg middle part. 6-A. A fire arm wound of inlet 2 cm x 1 cm oval in shape on the outer aspect of left leg middle part directed inward and made exit to medial side of left leg lower part causing fracture of bone and injured the blood vessels. 6-B. A fire arm wound of exit 5 cm x 3 cm with everted margins on the medial side of left lower part at 11 cm above left ankle joint (Corresponding holes present on Shalwar). 11. According to the opinion of the doctor, the death in this case was occurred due to haemorrhagic shock resulting from injuries Nos. 1 to 6 inflicted by fire-arm which were ante-mortem. The time between injuries and death was immediate whereas between the death and post-mortem examination was 12 to 24 hours. 12. Dr. Fayyaz Ahmad (P.W.6) had examined Seet-ul-Haq, injured P.W. On the same day at 10.25 am and found following injuries on his body:--
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1-A A firearm wound of entry 3 cm x 1 cm on inner side of front side pf right leg lower part. 1-B A firearm wound of exit 01 cm x 1 cm on inner and back side of right leg lower part. 2. A firearm wound of entry 1-1/2 x 1 cm on outer side of left thigh upper part. ' Corresponding holes were present on Shalwar which was blood stained. ' No burning or blackening were present on Shalwar and on the body of the patient/injured 3. An abrasion 1/5 cm x 1/5 cm on middle part of lower lip. 13. According to the opinion or the doctor injury No, 3 fell under Shajjah Khafifa whereas injuries Nos. 1 and 2 were by firearm. Injury No, 3 was by blunt means. The doctor had found the injuries as fresh at the time of arrival of injured victim before him. 14. After tendering in evidence the reports of Serologist Exh.PYA, Exh.PYB, Exh.PYC, Exh.PYD and Exh.PYE and that of Chemical Examiner Lahore Exh.PYF, Exh.PYG and Exh.PYH, the prosecution closed its evidence. 15. The appellants in their statements recorded under section 342, Cr.P.C. Professed their innocence and pleaded their false implication in this case. In reply to a question, "why this case against you and why the P. Ws. Deposed against you" appellant Zaka Ullah stated as under:-- "The P. Ws. Are interested and inimical towards me and my other family members. They are interested inter se and belong to one group. I and my parents and brothers except Muhammad Afzal co-accused are permanently residing for the last 2/2-1/2 years before the instant occurrence at Kaluwal district Gujranwala and that 1 cultivate agricultural land and also keeping buffaloes there. On the alleged day of occurrence i,e, 25-7-2005 I remained in my Haveli at Kaluwal Gujranwala from 8-AM to 4-PM in the company of co-villagers namely Ghulam Ali son of Allah Ditta, Younis Butt son of Muhammad Yousaf, Muhammad Boota son of Noor Muhammad, Abdul Rehman son of Sadiq Bashir, Ahmad, Shabbir and Abdul Hafeez. The prosecution story is false and I have been involved in this case due to enmity. The FIR was registered by the police after deliberations and consultations and with the connivance of the complainant party and it is totally a false story to the extent of my participation and that of my co-accused because I learnt after the registration of this case that first information report of this case was conveyed by one Ahmad Haseeb to police Rescue-15 stating therein that four persons boarding on Toyota Corolla Car black colour bearing number of Islamabad had fired on a Corey Car and the persons sitting in the Corey Car received injuries at the relevant place and relevant date 25-7-2005 and time 9.45 a.m. And one of the prosecution witnesses was present there at the time of occurrence but the concerned police suppressed this fact malafidely and with the connivance of the complainant party. During the investigation nothing was recovered from me. I am innocent and also was declared as such by the 1.0s during the investigation. I and my co-accused have been involved in this case by the complainant party. ' In reply to similar question, appellant Mushtaq alias Mustafa stated as under:-- "The P. Ws. Are interested and inimical towards me and my co-accused and they are related inter se and belong to one group. On the alleged day of occurrence i,e, 25-7-2005 I remained present at the dera of Muhammad Hayat of my village i,e, early morning to discuss the Elections of concerned Union Council in the company of Talib Hussain, Amir Ali, Nawaz and Muhammad Hayat and at about 12:30 noon I heard about the instant occurrence while I was still present along with above said persons at the said dera. It is further stated that prior to the instant occurrence the complainant party got a false case registered at Police Station Dijkot vide FIR No,277/05 under sections 302/109 against me and others in which I was declared innocent by the I.O. And due to this grudge as well as the previous enmity, the complainant party again has involved me in this case falsely. Otherwise 1 am innocent and was also declared as such by the I.O. During the investigation of instant case. Nothing was recovered from me and I was found to be present at the time and place of occurrence rather I was found present at the above said dera for the whole day i,e, from
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early morning to 12 noon. I learnt after the registration of this case that first information report of this case was conveyed by one Ahmad Haseeb to police Rescue-15 stating therein that four persons boarding on Toyota Corolla Car black colour bearing number of Islamabad had fired on a Corey Car and the persons sitting in the Corey Car received injuries at the relevant place and relevant date 25-7-2005 and time 9.45 a.m. And one of the prosecution witnesses was present there at the time of occurrence but the concerned police suppressed this fact malafidely and with the connivance of the complainant party. During the investigation nothing was recovered from me. I am innocent and also was declared as such by the 1.0s during the investigation. 1 and my co- accused have been involved in this case by the complainant party." ' In reply to similar question, appellant Ahmad Ali stated as under:- "The P. Ws. Are interested and inimical towards me and my co-accused and they are related inter se and belong to one group. On the day of occurrence my Phophi Zad Zainab had died and guests were coming and going for her condolence and I remained for condolence along with Ahmad Ali, Shahadat, Noor and Sharif my co-villagers in the Baithak from morning till evening on the day of occurrence. Nothing was recovered from me and 1 was not found to be present at the time and place of occurrence rather I was found present at my village from early morning to 12- noon. I learnt after the registration of this case that first information report of this case was conveyed by one Ahmad Haseeb to police Rescue-15 stating therein that four persons boarding on Toyota Corolla Car black colour bearing number of Islamabad had fired on a Corey Car and the persons sitting in the Corey Car received injuries at the relevant place and relevant date 25-7- 2005 and time 9.45 a.m. And one of the prosecution witnesses, was present there at the time of occurrence but the concerned police suppressed this fact malafidely and with the connivance of the complainant party. During the investigation nothing was recovered from me. I am innocent and also was declared as such by the I.Os during the investigation. 1 and my co-accused have been involved in this case by the complainant party." ' In reply to…
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