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Petitioner: ABDUL RAZZAQ and anothers VS Respondent: The STATE
Court Name: Lahore High Court Judge(s): Malik Shahzad Ahmad Khan, Manzoor Ahmad Malik Title: ABDUL RAZZAQ and anothers vs The STATE Case No.: Criminal Appeals Nos. 970, 972 and Murder Reference No.550 of 2006 Date of Judgment:2012-01-24 Reported As: 2013 YLR 788 Result: Appeals accepted
JUDGMENT
JUDGMENT ' MALIK SHAHZAD AHMAD KHAN, J.---Abdul Razzaq and Haider Ali alias Babar appellants were tried in case F.I.R. No.353 of 2005, dated 31-8-2005, registered at Police Station Mustafabad, District Kasur, in respect of offences under sections, 302/460 of P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 30-5-2006 has convicted and sentenced the appellants as under:- ' Abdul Razzaq ' Under section 302(b), P.P.C. As Ta'zir to 'Death' on three counts for committing Qatl-e-amd of Muhammad Ali, Nazir Ahmad and Shafaqat Ali deceased. ' Under section 460 of P.P.C. To imprisonment for life on three counts for committing lurking house- trespass into the house of the complainant. He was also directed to pay a fine of Rs.50,000 on three counts or in default to suffer two years' R.I. On three counts. ' The sentence awarded under section 460, P.P.C. Shall nth concurrently and benefit of section 382- B of, Cr.P.C. Was also extended. ' Haider All alias Babar ' Under section 102(b), P.P.C. As Ta'zir to 'Death' on three counts for committing Qatl-e-Amd of Muhammad Ali, Nazir Ahmad and Shafaqat Ali deceased. ' Under section 460 of P.P.C. To 'imprisonment for life on three counts for committing house lurking trespass into the house of the complainant. He was also directed to pay a fine of Rs.50,000 on three counts or, in default to suffer two years' R.I. On three counts. ' The sentence awarded under section 460, P.P.C. Shall run concurrently and benefit of section 382- B of Cr.P.C. Was also extended.
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' It is pertinent to mention here that co-accused of the appellants namely, Muhammad Raza was murdered in a police encounter, whereas, co-accused Intizar Ahmad and Muhammad Abbas were declared as proclaimed offenders. 2. Feeling aggrieved, Abdul Razzaq appellant has challenged his convictions and sentences through Criminal Appeal No.970 of 2006, and Haider Ali alias Babar has preferred Criminal Appeal No. 972 of 2006 whereas the learned trial Court has transmitted Murder Reference No. 550 of 2006 for confirmation or otherwise of the Death sentences of Abdul Razzaq and Haider Ali alias Babar appellants. We propose to d4ose of all these matters by this single judgment as these have arisen out of the same judgment dated 30-5-2006 passed by the learned Additional Sessions Judge, Kasur. 3. Brief facts of the case as disclosed by the complainant Sharafat All (P.W.16) in F.I.R. (Exh.PA), are that he along with his father Haji Nazir Ahmad, Muhammad All and Shafaqat brothers and his other family members were sleeping in the courtyard of their house. On the intervening night of 30/31-8- 2005, at about 1-30 a.m. (night), suddenly they heard the din of firing, upon which they woke up and saw that three persons having muffled their faces were grappling with his father Haji Nazir Ahmad, and brothers Muhammad Ali and Shafaqat. Muhammad Ali and Haji Nazir Ahmad caught hold of one of the accused, meanwhile, the other accused started firing, which hit his father and brothers who fell down on the ground after sustaining injuries. His father Haji Nazir Ahmad sustained injuries on his right shoulder and back, and his biother. Muhammad Ali sustained injuries -on his abdomen, whereas, his brother, Shafaqat received injuries on his belly and right side of his chest. In the meantime, womenfolk of the family also woke up. On raising hue and cry the neighbourers were attracted to the spot. Muhammad Ali and Haji Nazir Ahmad succumbed to the injuries at Lahore General Hospital, Lahore, whereas, Shafaqat succumbed to the injuries at. Lahore General Hospital, Lahore after seventeen days. The complainant Sharafat Ali (P.W.16), later on, through his , Supplementary statement (Exh. DB) recorded on the same day i.e., 31-8-2005, added two more unknown accused (the appellants) in this case. According to his statement, at the time of occurrence apart from the above-mentioned three unknown accused, two unknown accused (the appellants) were also present inside the house of occurrence near the stairs. Mst. Najma Bibi (P.W.15) on 31-8-2005, also got her statement recorded under section 161 of Cr.P.C. (Exh.DA) wherein she stated that apart from three above-mentioned unknown accused, two other unknown accused (the appellants) were also present and standing near the stairs of the house at the time of occurrence. No active role was attributed to the said accused (the appellants) in the supplementary statement of the complainant (Exh.DB). Similarly, Mst. Najma Bibi (P.W.15) assigned no active role to the above-mentioned two unknown accused (the appellants) in her statement (Exh.DA). (P.W.18) Ghulam Hussain conducted the investigation of this case. He stated that on 31-8- 2005, on receipt in formation about the occurrence, he along with police officials reached at Lahore General, Hospital, Lahore. Nazir Hussain Opal, Inspector S.H.O., who was present in the hospital handed over him the charge for conducting the investigation of this case. The said Inspector S.H.O. Also handed over to him' the death certificates of the deceased Muhammad Ali (Exh.PQ) and of Nazir deceased (Exh.PT/1). He also received the dead bodies of the said deceased persons. He prepared the application for postmortem examination on the dead body of deceased Muhammad Ali (Exh.PU). He also prepared Inquest Report (Exh.PV). He then prepared the application (Exh.P.W.) for autopsy on the dead body of Nazir Ahmad and his Inquest Report (Exh.PX). He collected blood- stained earth from the place, where Muhammad Ali (deceased) had fallen after receiving injury through recovery memo (Exh.PD); whereafter, he collected blood-stained earth from the place, where Nazir (deceased) received injury through recovery memo (Exh.PC). He also secured torn shirt (P.5) of black colour belonging to the accused, a diary, empties of .44 bore six in numbers (P.2/1-6), five empties of .30 bore pistol (P.3/1-5), three live bullets of .44 bore (P.4/1-3), vide recovery memo
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(Exh.PE). He took 'Dhoti' of deceased Muhammad Ali (P.7) vide recovery memo (Exh.PF). He also took into possession the last worn clothes of deceased Nazir vide recovery memo (Exh.PG). On 1-9-2005, he summoned the draftsman, who prepared the scaled site plan of the place of occurrence (Exh.PH/ 1). He submitted two applications (Exh.PZ) and (Exh.PAA) before the M.O. LGH, Lahore, regarding the fitness of the injured Shafaqat to make statement, however, in the meanwhile, he received information that Shafaqat injured succumbed to the injuries at LGH, Lahore, therefore, he took the dead body of Shafaqat deceased into possession and drafted application (Exh.PBB) for autopsy. He prepared the Inquest Report (Exh.PCC), and received the death certificate of deceased Shafaqat (Exh. PDD). On 21-9-2005, the accused Abdul Razzaq and Haider Ali, who were allegedly present at Sarhali road for commission of dacoity, were arrested by the police, and a case F.I.R. No.377 of 2005 under sections 399/ 402 of P.P.C., was registered against them at Police Station Mustafabad. During the investigation of said case, the appellants allegedly made disclosure regarding their involvement in the instant case. They were sent to Jail. Identification parade was conducted on 28-9-2005 in the jail premises under the supervision of learned Special Magistrate, Kasur, Tariq Karim Khokhar (P.W.17) and the prosecution witnesses namely, Mst. Najma Bibi (P.W.15), Sharafat Ali (P.W.16), Shaukat Ali and Master Sardar Nusrat (given up P.Ws.) allegedly identified the appellants. After identification parade, both the appellants were formally arrested in this case on 21-9-2005. The appellant Abdul Razzaq, on 4-10-2005, allegedly got recovered pistol (P.9) from his house, which was taken into possession vide recovery memo (Exh.PN). The appellant Haider Ali, on 4-10-2005, allegedly made a disclosure regarding rifle 44 bore, and led the police party to his house and got recovered the rifle (P.10), which was taken into possession vide recovery memo (Exh.PO). He (Ghulam Hussain S.I. P.W.18) prepared rough site plan (Exh.P0/1) of the place of recovery (P.1). On 3-10-2005, he moved an application for obtaining non-bailable warrant of arrest of accused Raza, Intiazar and Abbas, (Exh.PHH), which was allowed and he got issued warrants of arrest (Exh.PHH/1), (Exh.PHH/2) and (Exh.PHH/3). On 10-10-2005, he moved an application for obtaining proclamation in respect of the said three accused, which is (Exh.PJJ), whereas, the proclamations are (Exh. PJJ/1), (Ex. RH /2), and (Exh. PJJ/3). 4. After completion of investigation, the challan was submitted before the trial Court. The appellants were charge-sheeted on 26-5-2006, to which, they pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 18 P.Ws. The complainant Sharafat Ali (P.W.16) and Mst. Najma Bibi (P.W.15) furnished ocular account of the occurrence. ' The medical evidence in this case has been furnished by Dr. Adnan Hakim (P.W.9) who conducted the post mortem examination on 31-8-2005 at 10-30 a.m. On the dead bodies of Muhammad All and Haji Nazir Ahmad deceased. Dr. Zulfiqar Ahmad (P.W.10), on 17-9-2005 at '12:00 noon, also conducted the post mortem examination on the dead body of Shafaqat Ali deceased. ' Abdul Sattar (P.W.12) was the recovery witness' who stated that on 4-10-2005 Abdul Razzaq got recovered .30 bore pistol P-9 vide recovery memo Exh. PN. Similarly on the said date Haider Ali alias Babar appellant also got recovered rifle 44 bore P-10 vide memo Exh. PO. 5. The statements of the appellants under section, 342 of Cr.P.C. Were recorded. They refuted the allegations levelled against them and professed their innocence. While answering to a question "Why this case against you and why the P.Ws have deposed against you" they replied as under:-- ' Abdul Razzaq "The P.Ws. Are closely related to each other and to the deceased. They have falsely deposed against me at the instance of police. I have not committed this offence. Raza Saga who had been killed in a police encounter was cousin of Ashfaque lumberdar, who resides at Haveli Malvwayyan Wali, where my residence is also situated. In the previous local bodies elections, Maqsood Bhatti had contested election for the seat of Nazim against Tayyab Shah and we have supported in the said election to Tayyab Shah whereas, Ashfaque lumberdar was supporter of Maqsood Bhatti, who
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used his car in the elections. I had opened the dera for convincing the campaign for elections with my other friends and family. According to my information, the police had raided at the houses of Ashfaque lumberdar to arrest him, on the next day of the occurrence, Ashfaque lumberdar was not present at home, police took family members of Ashfaque lumberdar and kept them at a secret place for 7/8 days and after about 8 days the police had taken a huge illegal gratification from Ashfaque lumberdar and had released. Ashfaque's relatives as they had grudge with us, they had persuaded the police that we should be involved in this case and police had made us as scapegoat. I am innocent." ' The appellant Haider Ali alias Babar also denied -the allegations of the prosecution levelled against him and claimed his innocence, in his statement recorded under section 342 of Cr.P.C. In answer to the question, why this case against you and why the P.Ws. Have deposed against you, the appellant Haider Ali alias Babar replied as under:-- "The P.Ws. Are closely related to each other and to the deceased. They have falsely deposed against me at the instance of police. I have not committed this offence. Raza Saga who had been killed in a police encounter was cousin of Ashfaque lumberdar, who resides at Haveli Malvwayyan Wali, where my residence is also situated. In the previous local bodies elections, Maqsood Bhatti had contested election for the seat of Nazim against Tayyab Shah and we have supported in the said election to Tayyab Shah whereas, Ashfaque lumberdar was supporter of Maqsood Bhatti, who used his car in the elections. I had opened the dera for convincing the campaign for elections with my other friends and family, According to my information, the police had raided at the houses of Ashfaque lumberdar to arrest him, on the next very day of the occurrence, Ashfaque lumberdar was not present at home, police took family members of Ashfaque lumberdar and kept them at a secret place for 7/8 days and after about 8 days the police had taken a huge illegal gratification from Ashfaque lumberdar and had released Ashfaque's relatives as they had grudge with us, they had persuaded the police that we should be involved in this case and police had made us as scapegoat. I am innocent. In fact I was appearing in supplementary matriculation examination under Roll No.48318. I produce my original Roll No. Slip as Mark A. I also produce my result card Mark B". 6. The appellants opted not to make statements under section 340(2) of Cr.P.C., and both the appellants produced Zulfiqar Ali as (DW-1) and Ghulam Nabi as (DW-2) in their defence. ' The- learned trial Court vide its judgment dated 30-5-2006, found Abdul Razzaq and Haider Ali alias Babar guilty and convicted and sentenced them as mentioned and detailed above. 7. The learned counsel for both the appellants, in support of both these appeals, contends that there is considerable delay in reporting the matter to the police; that as per statement of the complainant Sharafat Ali (P.W.16), this occurrence took place on the intervening night of 30/31-8- 2005, at about 1-30 ,a:m. (night) in his house, when he was present there, whereas, his statement was recorded at 3-15 a.m., while, the distance of Police Station, Mustfabad, from the place of occurrence was hardly two furlongs and this fact shows that the F.I.R. Was not promptly lodged; that in the FIR., it was the case of the complainant that three persons with muffled faces entered in his house and they grappled with his father Hail Nazir Ahmad and brothers Muhammad Ali and Shafaqat and due to grappling, their mufflers were removed and he identified them and it has further been stated by the complainant in his statement before the police that those three persons fired at his father and brothers; that neither any description of the assailants nor the kind of weapons used in the incident, was mentioned in the F.I.R.; that no source of the light was mentioned in the F.I.R.; that in his supplementary statement, the complainant has stated that in fact there were five persons, who entered his house and three grappled with the deceased Haji Nazir Ahmad, Muhammad Ali and Shafaqat, whereas, the remaining two were standing near the stairs, but even in the supplementary statement, no role has been assigned to those two persons, who were
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allegedly standing near the stairs, and it was also not mentioned that they were carrying any weapons with them; that during the trial, the complainant identified the appellants as those two persons, who were standing near the stairs, and also levelled allegation that they too resorted to firing, which resulted into the death of the deceased persons, namely, Haji Nazir Ahmad (father), Muhammad Ali and Shafaqat (brothers); that the complainant was duly confronted with his previous statement recorded under section 154 of the Code of Criminal Procedure and his supplementary statement (Exh.DB), and these material improvements were brought on the record; that the name of other eyewitness, namely, Mst. Najma Bibi (P.W.15) is not mentioned in the F.I.R. (Exh.PA), and had she been present at the spot, her name would have been mentioned by the complainant in the F.I.R.; that the Inquest Report of the deceased Shafaqat was prepared on 17-9- 2005, and in the column of "Mukhtasir Halaat Waqiat" (brief history of the case), the fact. Mentioned in the F.I.R. Had been reproduced, wherein it is clearly mentioned that three persons entered the house of the complainant, whereas, it is not mentioned that those were in fact five persons; that although Mst. Najma Bibi (P.W.15) claimed in her Statement recorded by the police (Exh.DA), that five persons were present in the house at the time of incident, but she had not stated that two persons, who were standing near the stairs also resorted to firing, however, while appearing before the Court, she stated so and she was duly confronted with her previous statement and this improvement was also brought on the record; that site plan (Exh.PH) of the place of occurrence was prepared on 2-9-2005 by Muhammad Nasrullah (P.W.8), on the pointation eyewitnesses, and in the said site plan, the firing has been shown only from Point-D, that is the place, where three unknown accused were allegedly standing and where the occurrence was shown to have taken place and no firing has been shown from Points-M and N, where both the appellants were allegedly standing and similarly the empties were also recovered from Point-D and no empty was recovered from Points-M and N; that since no description of the assailants was mentioned in the F.I.R. And similarly the appellants were not identified with any role during the identification parade, therefore, their alleged identification carries no value in the eyes of law. The learned counsel for the appellants further contends that there is conflict between ocular and medical account. As per F.I.R., the complainant has stated that his father Haji Nazir Ahmad (deceased) received injuries on his right shoulder and on the back, whereas, as per post-mortem report, there is only one fire-arm injury on the person of Haji Nazir Ahmad (deceased) i.e. On the buttock and made an exit from the shoulder of the deceased; that in the F.I.R., it is the case of the complainant that Shafaqat (deceased) received injuries on his abdomen, upper part of his chest, whereas, according to the post-mortem report, there is only one fire-arm injury on the person of Shafaqat (deceased), which is on the abdomen. As far as deceased Muhammad Ali is concerned according to the F.I.R., he received injuries on his abdomen, whereas, according to his post-mortem report, he received injuries on his back; that as far as recovery of fire arm weapons i.e. .30 bore pistol (P.9) allegedly from the possession of Abdul Razzaq appellant and Rifle .44 bore (P.10) allegedly on the pointation of Haider Ali alias Babar appellant and positive report of FSL (Ex.POO) is concerned, the learned counsel for the appellants contends that it is a corroborative piece of evidence and relevant only if the primary evidence inspires confidence and merely on the basis of recovery and positive report of FSL, conviction of the appellants and that too on capital charge cannot sustain; that the appellants were arrested on 6-9-2005, the date when the empties were sent to the FSL and in the record, their arrest has wrongly been shown as 21-9-2005; that even otherwise, the alleged recoveries are against the provisions of section 103 of the Code of Criminal Procedure, as no person from the locality was associated in the recovery proceedings, therefore. Both the above- mentioned appeals may be accepted and the appellants may be acquitted from this case. 8. On the other hand, learned Deputy Prosecutor-General, for the State, assisted by the learned counsel for the complainant, opposes these appeals on the grounds that the witnesses of ocular
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account have absolutely no enmity to falsely depose against the appellants; that there is no delay in reporting the matter to the police; that two persons died at the spot, whereas, one was seriously injured and the complainant had given first priority to provide medical aid to the said injured, and took him to the hospital, where police recorded his statement at 3-15 a.m. (night) and as such there was no delay in lodging the F.I.R.; that the supplementary statement of the complainant Sharafat Ali (PW.16) was recorded just after one hour of the occurrence and even in the statement of Mst. Najma Bibi (P.W.15). It is clearly mentioned that in fact five persons entered in the house; that the appellants were correctly identified in the identification parade conducted under the supervision of Special Magistrate Tariq Karim Khokhar (P.W.17), by Sharafat Ali (P.W. 16) and Mst. Najma Bibi (P.W.15); that there is no conflict between the ocular account and medical evidence as it is the case of both the witnesses that three deceased received fire arm injuries, and the minor contradictions regarding location of injuries is not material in such likes cases; that the empties were recovered from the spot on 2-9-2005, and the same were sent to the FSL on 6-9-2005. Whereas, the appellants were arrested on 21-9-2005, and the report of FSL (Exh.POO) is positive; that there is no violation of the provisions of section 103 of the Code of Criminal Procedure; that the eye-witnesses, who have witnessed the occurrence, have no animus against the appellants, to falsely implicate them in the instant case; that both the eye-witnesses are inmate of the house, where this unfortunate incident took place and, as such, are natural witnesses of the occurrence; that the prosecution proved its case against the appellants beyond the shadow of any doubt, therefore, both these appeals be dismissed. 9. We have heard the arguments of the learned counsel for the parties, and have gone through the evidence available on record with their able assistance. 10. The occurrence in this case as. Per F.I.R. (Exh.PA) took place on the intervening night of 30/31-8- 2005, at 1-30 a.m., inside the house of the complainant, situated at Ward No.2, Mustafa Abad, Kasur. The matter was reported to the' police by the complainant Sharafat Ali (P.W.16) at 3-15 a.m. (night) at General Hospital, Lahore, and, the formal F.I.R. (Exh.PA) was chalked out on 31-8-2005, at 4-00 a.m. (morning). The distance between the place of occurrence and Police Station, Mustafabad, is two furlongs. The complainant Sharafat Ali (P.W.16) took the injured Haji Nazir Ahmad, Muhammad Ali and Shafaqat to the General Hospital, Lahore, therefore, keeping in view the above-mentioned circumstances, we hold that the F.I.R. Was promptly lodged and there is no delay in lodging the same. 11. The prosecution in order to prove the ocular account has produced Mst. Najma Bibi (P.W.15) and the complainant Sharafat Ali (P.W.16). We have noted that the above-mentioned prosecution witnesses have made improvements in their statements to the extent of involvement of the appellants in this case. The complainant Sharafat Ali (P.W.16) has stated in the F.I.R. (Exh.PA) that three persons, with muffled faces, entered his house and they grappled with his father Haji Nazir Ahmad, and brothers Muhammad Ali and Shafaqat. The role of making fire shots were also attributed to the said three accused. It was also the case of the complainant that during the grappling, the mufflers of the accused were removed, and he identified them. It was further stated by the complainant Sharafat Ali (P.W.16) that the fire shot made by the above-mentioned three accused landed on the right shoulder and back of his father Haji Nazir Ahmad (deceased), on the belly and right side of the chest of his brother Shafaqat (deceased) and on the belly of Muhammad Ali (deceased). The complainant, later on, through- his supplementary statement (Exh.DB) recorded on 31-8-2005 added two more unknown accused (the appellants), in this case. It was alleged by the complainant Sharafat Ali (P.W.16) in his supplementary statement (Exh.DB) and by Mst. Najma Bibi (P.W.I5) in her statement recorded under section 161 of Cr.P.C. (Exh.DA) that apart from three above-mentioned unknown accused, two other unknown accused (the appellants) were also present and standing near the stairs of the house at the time of occurrence. No active
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role was attributed to the said accused (the A appellants) in the supplementary statement of the complainant (Exh.DB). Similarly, Mst. Najma Bibi (P.W.15) assigned no active role to the above- mentioned two unknown accused (the- appellants) in her statement (Exh.DA). The complainant Sharafat All (P.W.16) and Mst. Najma Bibi (P.W.15) while making their statements' before the learned trial Court made further improvements in their statements qua the role of the appellants and they assigned the role of firing to all, the five accused. The complainant Sharafat Ali (P.W.16) admitted during his cross-examination that in his statement (Exh.PA/1) he had mentioned only three accused, who participated in the occurrence. He has further…
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