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Petitioner: FARYAD HUSSAIN And Others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khalil-ur-Rehman Ramday, Sardar Muhammad Sarfraz Dogar Title: FARYAD HUSSAIN And Others vs THE STATE Case No.: Criminal Appeal No.137 and Murder Reference No.91, of 1988 Date of Judgment:1991-03-17 Reported As: 1991 P Cr. L J 1645 Result: Order accordingly
JUDGMENT
JUDGMENT SARDAR MUHAMMAD DOGAR, J.--- Faryad Hussain (31), his brother Majid alias Kala (22), Muhammad Ali alias Munnu (40) and his brother Rehmat (30) were tried by the Additional Sessions Judge, Lahore, alongwith Faqir Hussain alias Kala and Latif alias Nikka, for having murdered Maula Bakhsh and his son Muhammad Shafiq, on 18-4-1985 at 5-30 a.m. At their haveli, situated in haveli, Haq Nawaz at a distance of 1-1/2 kilometres from Police Station Shalimar, District Lahore. 2. Learned trial Judge vide judgment, dated 30-1-1988 convicted Faryad Hussain, Majid alias Kala, Muhammad Ali alias Munnu and Rehmat on two counts under section 302/34, P.P.C. And awarded sentences as follows:-- (i)For the murder of Maula Bakhsh All the four sentenced to death plus to pay a fine of Rs.30,000 each, in default whereof to suffer R.I. For 5 years each. (ii)For the murder of Muhammad Shafiq Muhammad Ali alias Munnu sentenced to death and Faryad Hussain, Majid and Rehmat sentenced to imprisonment for life plus a line of Rs.30,000 to each of the four. In default they have been ordered to undergo R.I. For 5 years each. Out of the fine, a sum of Rs two lacs, has been directed to be paid as compensation equally to the legal heirs of both the deceased. Faqir Hussain alias Kala and Latif alias Nikka, their co-accused, were acquitted vide same judgment. 2. Faryad Hussain and Majid alias Kala have filed Criminal Appeal No.1311 of 1988, while Muhammad Ali alias Munnu and Rehmat have filed Criminal Appeal No.138 of 1988. The complainant has filed
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revision petition wherein prayer has been made for enhancement of sentences of imprisonment for life, awarded to the three convicts for the murder of Muhammad Shafiq. Reference has also been made by the learned trial Judge for confirmation of sentences of death. As all the matters arise out of the same judgment, they are being disposed of together. 3. F.I.R. Exh. P.C. Was recorded by Muhammad Navid Iqbal, S.H.O. P.W.14 at 6-05 a.m. On 18-4-1985, on the statement of Saeed Anwar alias Bodi P.W.5. According to F.I.R. Haji Faryad Hussain had got a case registered against the complainant, his father Maula Bakhsh (deceased) and others for the murder of Zafar Iqbal, 6 months prior to the occurrence. The complainant, his deceased father and Jamil P.W. Brother of the complainant, were released on bail vide order of the High Court, dated 31-3-1985. They had returned to their residence in haveli Haq Nawaz 4-5 days prior to the occurrence. On the day of occurrence, Shafiq deceased was milking buffaloes at 5-30 a.m. While Maula Bakhsh deceased was sitting on a cot. The complainant and his brother Jamil were sitting on the roof of their haveli. Munnu (Muhammad Ali) son of Ditta armed with a gun, his brother Rehmat armed with a Khanjar, Faryad Hussain armed with a gun, Kala (Majid) armed with a carbine, accompanied by the acquitted accused Latif alias Nikka armed with a revolver and Faqir Hussain alias Kala armed with a carbine, came from the street, raising Lalkaras. They fired indiscriminately at Maula Bakhsh and Muhammad Shariq. Maula Bakhsh suffered injuries while sitting on the cot and fell thereon whereafter Rehmat gave him Khanjar blows. Shafiq ran towards the house for escape. The accused chased him to the door of the house and fired at him, as a result of which he fell inside the door of the house. Maula Bakhsh died on the spot. Muhammad Shafiq was removed to the hospital. The occurrence, apart from the complainant, was witnessed by Jamil, Mst. Hamida Bibi their mother and P.Ws. Lal Din, Muhammad Sharif, Abdul Ghafoor and Muhammad Yaqub. It is stated in the F.I.R. That the murders were committed for avenging the murder of War Iqbal. 4. The S.H.O. After reaching the spot, despatched the dead body of Maula Bakhsh for post-mortem examination after preparing injury statement Exh. P.P. And inquest report Exh. P.Q. During spot inspection he collected 9 empty cartridges P.5/1-9, 5 live cartridges P.6/1-5 from near the cot, on which the dead body of Maula Bakhsh was lying. He picked up 3 empties P.4/1-3 from near the Deorhi of the house of Maula Bakhsh. All the empties and live cartridges were taken into possession by him vide memo. Exh. P.D. Blood-stained earth was also collected by him from the Deorhi vide memo. Exh.P.E. The cot which was stained with blood, was taken into possession vide memo. Exh.P.E. On receiving information on 19-4-1985 about the expiry of Muhammad Shafiq, he went to the General Hospital, Lahore and despatched the dead body for post-mortem examination after preparing necessary papers. All the accused were arrested by him on 24-4-1985. Carbine P.11 got recovered by Majid alias Kala from an attache-case lying in his house on 1-5-1985, was taken into possession vide memo. Exh. P.K. Revolver P.8 got recovered by Latif alias Nikka was taken into possession vide memo. Exh. P.G. Blood-stained dagger P.9 got recovered by Faryad Hussain on the same day from his house, was taken into possession vide memo. Exh. P.H., while gun P.10 without small-butt, got recovered by him on the same day; was taken into possession vide memo. Exh. P.J. The challan was submitted to Court after completion of necessary investigation: 5.Statements of fourteen P.Ws. Were recorded at the trial. Positive reports Exhs. P.T. And P.U. From the office of the Chemical Examiner, Exhs. P.V and P.W. From the office of the Serologist, as well as report Exh. P.X from the office of Forensic Science Laboratory, were also tendered in evidence. 5. Dr. Anwar Saeed, who had medically examined Muhammad Shafiq at 5-50 a.m. On 18-4-1985 at the Mayo Hospital, Lahore appeared as P.W.10. He had noted a circular penetrating wound of entry having lacerated inverted margins 1 x 1 c.m. Going deep into the skull. It was placed on left parietal region of the skull. There was slight blackening around the margins. X-Ray of the skull was advised.
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The injury, which was opined to have been caused by a fire-grin, was stated to be fresh. During cross-examination, he stated that the injury could have been caused from a distance of more than 4 yards. 6. Dr. Zaheer Anjum Shirazi, who had performed autopsy on the dead bodies of Maula Bakhsh and Shafiq, could not be served as he was reported to have gone abroad. In this connection statement of Muhammad Salim process---server (constable) was recorded as C.W.1. Secondary evidence was allowed to be led in that regard. Muhammad Shah, record-keeper who had worked with Dr. Zaheer Anjum Shirazi, and was conversant with his handwriting and signatures, appeared as P.W.11 and proved the post-mortem reports Exh. P.N. Of Maula Bakhsh and P.O. Of Muhammad Shafiq. He stated that both the reports were in the hand of Dr. Zaheer Anjum Shirazi and bore his signatures. According to the post-mortem report of Maula Bakhsh, he was found to have suffered following injuries:-- (1)There was fire-arm entrance wound with abraded margins 4 c.m. x 4 c.m. At back of right axilla, 15 c.m. Below top of right shoulder. (2)Five fire-aria entrance wounds with abraded margins around each, measuring about 1 c.m x 0.75 c.m. In area of 14 c.m. x 4 c.m. On right lower chest and upper abdomen 7 c.m. Below- right nipple and 6 c.m. Towards right of midline. (3)Five fire-arm entrance wounds each measuring about 1 c.m. x 0.5 c.m. With collar of abrasion around in area of 10 c.m. x 2 c.m. On right lower lateral chest, 7 c.m. Info-lateral to right nipple and 18 c.m. Towards right of midline. (4)Stab wound 26 c.m. x 16 c.m. On left side of abdomen just lateral to the midline with loops of small intestine, large intestine and omentum protruding out. The stomach of the deceased was found containing 2 ounces of semi---digested food. Injuries Nos.1, 2 and 3 were opined to have been caused by a fire--arm, while injury No.4 was opined to have been caused by a sharp-edged weapon. Death was opined to have occurred due to the injuries to vital organs (liver, lung, heart and inferior vena cava). All the injuries collectively as well as individually, were opined to be sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was opined to be fifteen minutes while the time between death and post-mortem was opined to be about 24 hours. The same doctor had noted following injuries on the body of Muhammad Shafiq deceased:-- (1)Fire-arm entrance wound 1.25 c.m. Diameter, with collar of abrasion around and brain matter coming out on left squamous region of head 4 c.m. Above left ear. (2)Transverse surgical stitched wound 4 c.m. Long, with 4 stitches intact on front of lower neck. Injury No.1 was opined to have been caused by a fire-arm while the second injury was opined to have resulted by surgical intervention. The fire-arm injury was opined to be sufficient to cause death in the ordinary course of nature. Probable time between the injury and death was opined to be between 24 to 36 hours while the time between death and post-mortem was opined to be six hours. 7. The ocular account was deposed to by Saeed Anwar P.W.5, Muhammad Yaqub P.W.6 and Muhammad Sharif P.W.7. The remaining eye-witnesses, named in the F.I.R. Were given up as unnecessary. Saeed Anwar P.W.5 while repeating the facts given by him in the F.I.R. Also stated that Majid and Faryad Hussain were real brothers and so were Rehmat and Muhammad Ali. Both the sets are first real cousins. Sister of Faryad Hussain was married to Muhammad Ali. Latif and Faqir Hussain, according to him were friends of the other accused.
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During cross-examination, he stated that Faryad Hussain had lodged the F.I.R. For the murder of Zafar 1qbal and Latif was a witness of recovery in that case. He admitted that as a result of the trial in that case, his brother Khalil had been sentenced to death while he and Muhammad Jamil had been acquitted. He admitted that the haveli in which he alongwith his father and brothers was residing, was surrounded by inhabited houses. According to him, some of the accused had fired one shot each, some of them had fired two shots and some three. According to him the accused had fired at him and Muhammad Jamil also, but they escaped. The witness explained that in the F.I.R. He had only given the alias names of some of the accused as they were more known with those names. He admitted that Bashir and Boota brother and brother-in-law of Latif, son of Salhi not the accused) were murdered 20-25 years ago and a cross-case was registered about the said occurrence, under section 307, P.P.C. Against his father, uncle Lal Din P.W. And said Latif. He also admitted that he had got a case registered against the father of Faryad Hussain and others under section 336/506, P.P.C. In 1985 and a cross-case was registered against them at the instance of father of Faryad Hussain. According to him both the deceased and he had not taken breakfast before the occurrence. He admitted that the Municipal Corporation had made a rule that the cattle be kept in Harbans Pura Cattle Colony but the said rule was not being followed strictly by the cattle-owners. He added that they had gone to sleep the night following the occurrence at 10 or 10-30 p.m. According to him the buffaloes were being milked by Shafiq, Lal Din, Abdul Ghafoor, Muhammad Yaqub and Sharif. He stated that there were pellet marks on the wall of the house and he had shown the same to the Thanedar. He denied the suggestion that some unknown persons had committed the murders in the darkness of night and that neither he nor the other P.Ws. Had witnessed the occurrence. The suggestion that he was not residing in the haveli during the days of occurrence was denied by him. The suggestion put to him on behalf of one set of the accused that at the time of occurrence only the two deceased were awake while he alongwith Jamil P.W. Was asleep, was also denied by him. 8. Muhammad Yaqub P.W. While corroborating the statement made by P.W. Anwar Saeed about the actual occurrence, also added that the shot fired by Kala had struck Maula Bakhsh on the back and right shoulder while the shots fired by Munnu and Latif had hit Shafiq deceased. He also claimed to have witnessed the collection of empties, live cartridges, blood-stained earth and blood-stained cot including support of the gun, from the spot and of having attested the relevant memos. He gave the time of occurrence as 5-00 or 5-30 a.m. During cross-examination he admitted that he had been serving with Maula Bakhsh deceased since 4-5 years prior to the occurrence. He expressed inability to give the seats of the injuries resulting from the shots fired by, each accused at Maula Bakhsh. According to him there was no Chaddar or bedding on the cot on which Maula Bakhsh deceased was sitting. On confrontation with his statement Exh. D.A., he was not found to have stated therein that the shots fired by Latif and Munnu had hit Shafiq. According to him the pellets had struck the door and walls of the house where Muhammad Shafiq was fired at. He denied the suggestion that there were no cattle or milk- pots at the spot and that it was on that account that the shots had not struck them. He admitted that his parents were residing in Sheikhupura District. He denied the suggestion that neither he nor the other P.Ws. Had witnessed the occurrence. 9. Muhammad Sharif P.W.7 while corroborating the statements made by P.Ws.5 and 6, clarified that he had come from Sialkot to haveli Haq Nawaz at Lahore on coming to know the registration of murder case against his nephew Khalil etc., and was staying there since then. He also claimed to have witnessed the recovery of pistol at the pointing out of Latif alias Nikka, blood-stained dagger P.9 and gun P.10 at the instance of Faryad Hussain.
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During cross-examination he stated that his statement was recorded at the spot by the S.H.O. At 9- 00 a.m. According to him he was sleeping in the house and had come to the haveli at morning Azaan time i.e. 4-00/4-30 a.m. He denied the suggestion that there were no pellet marks on the door or walls of the house of Maula Bakhsh. He denied the suggestion that he had not witnessed the occurrence and had been called from Sialkot for appearing as a witness. 10. Muhammad Din P.W.8 who had witnessed the recovery of carbine P.11 at the instance of Majid alias Kala appeared as P.W.8 and deposed the same. He admitted that he was a real brother of Maula Bakhsh deceased, and that his house was 1-1/2 miles away from the house of Majid alias Kala appellant. He denied the suggestion that he had made a false statement. 11. Muhammad Anwar, A.S.I. Who was serving as M.H.C. In the year 1985, had kept the parcels pertaining to this case in the Malkhana and despatched the same to the offices of the Chemical Examiner and the Forensic Science Laboratory. Bashir Ahmad, Constable who had been entrusted sealed parcels on 24-4-1985 by the M.H.C. For onward transmission to the Chemical Examiner and F.C. Rehmat Ali who had been entrusted 3 parcels, pertaining to this case for onward transmission to the office of the Forensic Science Laboratory by the M.H.C. On 12-4-1985, appeared as P.W.12, P.13 and P.W.3 respectively. All of them verified the fact that so long the parcels had remained in their custody, none had tampered with them. 12. Muhammad Naveed Iqbal, S.H.O. Who had investigated the case after recording the F.I.R., had arrested the accused and effected recoveries from the spot as well as from some of the accused, while appearing as P.W.14, gave the details of the investigation. He corroborated the statement made by Muhammad Yaqub P.W. About the collection of blood-stained earth, empties and a support of the gun from the spot, the statement of Muhammad Din P.W.8 about the recovery of carbine P.11, at the instance of Majid alias Kala appellant, and the statement of Muhammad Sharif P.W.7 about the recovery of pistol at the pointing out of Latif (acquitted accused) as well as blood- stained dagger P.9 and gun P.10, at the instance of Faryad Hussain appellant. He clarified that the gun, which was recovered at the instance of Faryad Hussain appellant, was without a small butt (support). During cross-examination he admitted that an application had been submitted on his behalf through the Additional S.H.O. To the doctor to enquire whether Muhammad Shafiq was fit to make a statement or not but the statement could not be recorded as the doctor had opined in the negative. He gave out that Muhammad Ali and Rehmat Ali accused on arrest, had taken up the plea of innocence. He denied the suggestion that he had falsely challaned the accused on account of pressure of the complainant party. Statements of the remaining P.Ws. Are, more or less, of a formal nature. 13. Reports Exhs. P.T. And P.U. From the office of -the Chemical Examiner, Exhs. P.V. And P.W. From the office of the Serologist and Exh. P.X. From the office of the Forensic Science Laboratory were also tendered in evidence. According to reports from the offices of the Chemical Examiner and the Serologist, the articles received there including the Khanjar, were found stained with human blood. According to the report from the office of the Forensic Science Laboratory, 3 crime empties (C.3 to C.5) were found to have been fired from the carbine recovered from Majid alias Kala accused. However, none of the empties were found to have been fired from the gun said to have been recovered from Faryad Hussain appellant. 14. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case and pleaded innocence. They refused to make statements under section 340(2), Cr.P.C. And opted not to adduce any evidence in defence. Similar was the stand of their acquitted co-accused. 15. Learned counsel for the appellants after having taken us through the evidence, contended that all the eye-witnesses in this case were interested and inimical, in that, learned counsel pointed out that Saeed Anwar P.W.5 was son of Maula Bakhsh deceased and brother of Shafiq deceased, while
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Muhammad Sharif P.W.7 was brother of Maula Bakhsh and uncle of Shafiq and Muhammad Yaqub P.W.6 was a servant of Maula Bakhsh. While challenging the evidence of recoveries of empties and the support of the gun from the spot, the evidence of recoveries of gun and Khanjar at the instance of Faryad Hussain appellant and recovery of carbine at the instance of Majid, learned counsel urged that the same was deposed to, apart from the Investigating Officer, by the related and interested witnesses, and so no reliance can be placed on their testimony. Learned counsel particularly contended that Muhammad Yaqub and Muhammad Sharif who were eye-witnesses in the case, cannot corroborate their own testimony by deposing about the alleged recoveries. Learned counsel strenuously argued that the investigation in the case, does not appear to have been conducted in a fair manner and it appears that the Investigating Officer had, for mala ride, reasons mechanised to show the recovery of the support of gun from the spot, and the main body of the gun from Faryad Hussain appellant, after having seized the gun soon after the occurrence. Learned counsel pointed out that if the support of the gun had really been found lying at the spot, the empties found from the spot, or at least some of them would definitely have been found fired from the gun alleged to have been recovered from Faryad Hussain, as in that case it has to be granted that the gun, the support of which was found lying on the spot, was used in the commission of crime. Learned counsel contended that the only analogy which can be drawn in the circumstances, is that either Faryad Hussain was not there and nor had fired the gun, or the evidence of recovery of both the items, i.e. The gun and the support of the gun, was fake. 16. In the case of Muhammad Ali appellant, it was contended that as nothing had been recovered from him, maintenance of his conviction would be highly unsafe for the safe administration of justice, in view of the ocular account having been deposed to by the interested and inimical witnesses. 17. Learned counsel for the appellants did not challenge the motive part of the story. However, it was contended by them that motive in this case was double---edged and not of much consequence in assessing the intention of the appellants to commit the murder. 18. Learned counsel for the State/complainant defended the judgment of the trial Court and contended that as the occurrence had taken place in the haveli and near the house of the complainants, in the early hours of the morning, the inhabitants of the haveli and the house could only have been the natural witnesses. Learned counsel contended that the statements made by the eye--witnesses stand fully corroborated by the recoveries effected at the instance of the appellants as well as by the reports from the offices of the Chemical Examiner, Serologist and the Forensic Science Laboratory. Learned counsel submitted that the evidence of motive in this case was of a great significance as the grievance of the accused party was not only grave but of a recent origin also. Learned counsel for the complainant pertinently argued that the F.I.R. In this case had been lodged promptly soon after the occurrence. In support of the contention, he particularly referred to the statement of acquitted accused Faqir Hussain made while appearing as D.W.2 and the statement of Muhammad Ashiq D.W.1. 19. Faqir Hussain D.W. In the last paragraph of his statement had stated that he had gone to the police station at 5-45 a.m. (on the day of occurrence) and had met Muhammad Naveed Iqbal, S.I. And Munshi (Moharrir) of the police station and they had made him sit there informing that he had been named as an accused in the F.I.R. Muhammad Ashiq (husband of sister of Faqir Hussain acquitted accused) stated that on the day of occurrence Faqir Hussain had gone to the police station at 5-30 or 5-45 a.m. On learning about the murder of Maula Bakhsh and he was detained there, and later arrested.
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20. Before adjudicating the contentions raised by learned counsel for the parties, we would like to mention here that we had recorded the statements of Sh. Abdur Rashid, Inspector/Examiner Fire- arms and Alhaaj Muhammad Ashraf Malik, Director, Forensic Science Laboratory, Lahore who had prepared report. Exh. P.X., under their signatures, after examination of the weapons and the empties pertaining to this case, sent to the Forensic Science Laboratory for comparison, with the concurrence of learned counsel for the, parties. 21. Sh. Abdur Rashid, Inspector who appeared as C.W.1, stated that before examining gun NO-1760 (recovered from Faryad Hussain appellant) they had affixed the wooden support with the gun as the gun was to be complete only after the fixation of wooden support. He gave out that the metallic part of the wooden support bore the same number, i.e. 1760, as the number on the gun (said to have been recovered from Faryad Hussain). He stated that the support of the gun was still affixed with it. He displayed the separation of the support from the main gun and showed the numbers on both the parts. 22. Alhaaj Muhammad Ashraf Malik, Director Forensic Science Laboratory who appeared as C.W.2, stated that after chemical examination of the numbers on the wooden support of gun and the gun, with the application of chemicals, he found that both the parts bore No.231760. He stated that without the application of chemicals one could only read `1760' easily, (on both the parts) while figure `2' and `3' had become discernible after the application of chemicals. He observed that figures `2' and `3' appeared to be rubbed on both the parts. 23. After going through the evidence we have considered the contentions raised by learned counsel for the parties. The foremost question requiring consideration, in this case is, whether Saeed Anwar, Muhammad Yaqub and Muhammad Sharif eye-witnesses were present at the spot and had they witnessed the occurrence? 24. Saeed Anwar P.W. Is son of Maula Bakhsh and brother of Muhammad Shafiq. He was living with them in the same house and used to work and stay with them in the haveli. In fact the haveli and the house were adjacent. His presence at his own residence, therefore, cannot be termed to be unnatural. Muhammad Yaqub P.W. Was serving with Maula Bakhsh for about 3-4 years prior to the occurrence. It was during his service period that the family had gone deeply in enmity with the accused party. He had consistently continued serving Maula Bakhsh during the turmoil period…
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