Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: SHAHID ALIAS SHADA VS Respondent: STATE
1984 P Cr
1984 P Cr. L J 463
[Lahore]
Before Rustam S. Sidhwa, J
SHAHID alias SHADA AND 5 OTHERS-Appellants
Versus
THE STATE-Respondent
Criminal Appeals Nos, 150, 152, 165 and 223 of 1979 and Criminal Revision No. 1 Z6 of 1979, heard on 22nd September, 1981.
Penal Code (XLV of 1860)-
--- Ss. 302, 307, 149/148, 304 (I) 109 & 324-Material suppression and distortion of facts as well as addition of certain facts appearing in story put forth by prosecution-Attempt made to add or remove certain persons as assailants and that who has been truly added or removed is anybody's guess-Wound on head of accused found to have been caused more probably by a club or dang rather than a brickbat-Prosecution story, held, cannot be impliedly relied upon and difficult to pick and choose any person with any degree of eare and safety as assailant or perpetrator of crime-Accused given benefit of doubt and acquitted.-[Benefit of doubt].
Muhammad Akram Qureshi for Appellants.
Azmat Dad Khan for the State.
Nazeer Ahmad Shami for the Complainant,
Date of hearing: 22nd September, 1981.
JUDGMENT
Shakarullah, Shahid alias Shada, Waqar Shah, Aslam alias Secretary, Athar Shah and Khadim Hussain were tried by Sh. Ijaz Nisar, Sessions Judge, Lahore, under sections 302, 307, 149, 148, P. P. C. for the murder of Rashad Saleem deceased, attempt on the life of Shahid Pervez, P. W. and for rioting. The learned trial Judge, by his judgment dated 31st January, 1979, convicted Shakarullah accused under section 304-1/109, P. P. C. and sentenced him to five years' R. I. with a fine of Rs. 3,000 or in default to undergo further R. I. for one year, convicted Athar Shah accused under section 30.1-I, P. P. C. and sentenced him to ten years' R. I. with fine of Rs. 4,000 or in default to undergo further R. I. for one year and convicted Shahid alias Shada, Waqar Shah and Aslam alias Secretary accused under section 324, P. P. C. and sentenced them to three years' R. I. each with a fine of Rs. 2,000 each or in default to undergo further R. I. for one year each, but acquitted Khadim Hussain of all the charges. The four appeals (Cr. A. 150/79, Cr. A. 152/79, Cr. A. 165/79 and Cr. A. 223/79), filed by the convicts and the private revision (Cr. R. 126/79) filed by Wajid Saleem against the five, convicts and the acquitted accused for the imposition of death sentences on all of them, are ail now before me for disposal.
2: The prosecution case is that Shakarullah accused was living in a portion of the deceased's house as a tenant. He committed default in the payment of rent as a result of which Rashad Saleem deceased, his brothers and other family members filed an ejectment petition against him. The electricity to the house of Shakarullah accused was supplied through a common meter installed in the deohari of the com plainant party. During the pendency of the ejectment petition, he stopped payment of the electric dues to the complainant party. Con sequently, one day before the occurrence they disconnected his electric supply from the meter.
3. On the eventful day i.e. 28th June, 1977 at 5-15 p.m. Wajid Saleem P. W. 6, Shahid Pervaiz- P. W. 7, Muhammad Shafique P. W. 8, Aamar Rafique (not examined) and Rashad Saleem deceased were playing carom in the baithak of their house. Athar Shah accused knocked at the door of the baithak. Wajid Saleem P. W. went out and saw all the accused present there. Athar Shah accused inquired from Wajid Saleem as to why they had disconnected the electric supply of Shakarullah accused. Wajid Saleem P. W. told him that as Shakarullah accused had not paid the electricity dues to them for the last six months, therefore, his supply had been disconnected and if he cleared the dues it would be restored. Athar Shah, Shahid and Waqar Shah accused declared that they had not come for clearing the dues, but for getting the electricity restored: In the meantime, the deceased and other P. Ws. also came out of the baithak. Athar Shah accused tried to forcibly enter the deohari of the house of the deceased where the electric meter was installed, but the deceased stopped him. Shakarullah accused caught bold of the deceased by his arms from behind and asked his companions to teach a lesson to them for disconnecting the electric supply, whereupon Athar Shah accused inflicted a knife blow on the deceased hitting him in the abdomen. Waqar Shah and Shahid accused also attacked him with chhuris. Shahid Pervaiz P. W. stepped forward to rescue the deceased, but Khadim Hussain and Aslam accused attacked him with their knives on the left flank and left buttock. Wajid Saleem P. W. also tried to rescue his brothers. Waqar Shah -accused tried to attack him, but he escaped unhurt. Wajid Saleem P. W. picked up a brickbat from the spot and in self- defence pelted it towards Waqar Shah hitting him in the head. Thereafter the accused left that place issuing their threats and raising arms in the air. The occurrence was also witnessed by Iqbal and Siddique (given up P. Ws.) who were uncles of Wajid Saleem P. W. Abdul Khaliq's car was stopped and Rashid Saleem deceased and Shahid Pervaiz P. W. were rushed to the Mayo Hospital. Rashad Saleem breathed his last before any medical aid could be provided to him. Leaving the deceased with Shahid Pervaiz and Abdul Khaliq P. Ws., Wajid Saleem P. W. left for Police Station Old Anarkali where he lodged F. I. R. Exh. P. G. at 6.30 p.m. S. I. Muhammad Yousaf (since dead) who recorded the F. I. R., delivered a copy of the F. I. R. to Abdul Hamid Tahir Inspector P. W. 13, who immediately left for the hospital. On reaching there, the police officer, after preparing necessary papers, sent the dead body of Rashad Saleem deceased for post-mortem examination. He then proceeded to the spot and recovered blood-stained earth from the place of occurrence, vide memo. Exh. P. J.
4. Dr. Iqbal Tabassum examined Shahid Pervaiz P. W. at 6.10 p.m. and found two incised wounds on his left chest and one incised wound on his buttock, all of which sharp-edged injuries were later found to be simple.
5: The same day at 10.30 p.m. Waqar Shah, Athar Shah and Shahid accused were arrested by Abdul Hamid Tahir Inspector P. W. 13, but the arrest of the latter two was not formally shown in the Zimnis.
On 29th June, 1977 at 8.45 a. m. Dr. Tahir Anees P. W. 3 examined Waqar Shah accused and found a lacerated wound on his scalp, which blunt weapon simple injury was declared to have been inflicted within 12/18 hours of the examination. The same day at 12.00 noon the same doctor conducted the post-mortem examination on the dead body of Rashad Saleem deceased and found three stab wounds on various parts of the chest, one incised wound on the back of upper right forearm and two abrasions near the left eye and back of left hand. The stab wound near the lower chest was sufficient to cause death in the ordinary course of nature through bleeding and shock. The peritoneum, stomach, omentum and the small and large intestines were found cut at different places. Stomach contained about 180 c. c. of blood mixed with diet. Small and large intes tines contained diet. Bladder contained about 100 c. c. urine. Time bet ween injuries and death was thirty/sixty minutes and that between death and post-mortem examination about 12/24 hours.
7. On 30th June, 1977 Shakarullah, Shahid, Khadim, Athar and Aslam accused ~ were arrested by Abdul Hameed Tahir Inspector P. W. 13.
8. On 3rd July, 1977 Waqar Shah, Shahid and Athar Shah accused led to the recoveries of blood-stained chhuri P. 6. blood-stained chhuri P. 7 and blood-stained chaku P. 8, respectively, which were taken into posses sion by the police, vide memos. Exhs. P. J., P. K. and P. L. in the presence of Sami Ullah P. W. 10, Abdul Hameed Tahir Inspector. P. W. 13 and Munawar Ali (given up P. W.).
9. On 4th July, 1977 Aslam and Khadim Hussain accused led to the recoveries of blood-stained chakus P. 4 and P. 5 which were taken into possession by the police, vide memos. P. H. and P. V., respectively, which recoveries were witnessed by Gulzar Ahmad P. W. 9, Abdul Hameed Tahir, Inspector P. W. 13, Dilshad Ahmad (given up P. W.).
10. Blood-stained chakus P. 4, P. 5 and P. 8 and the blood-stained chhuris P. 6 and P. 7, recovered at the instance of Aslam, Khadim Hussain, Athar Shah, Waqar Shah and Shahid Shah accused were found to be stained with human blood by the Chemical Examiner and the Sero logist. After completing the necessary investigation, the challan against all the six accused was sent up for trial.
11. At the trial, all the accused denied the accusations levelled against them. Shakarallah accused explaining his involvement in the case made the following statement: -
"I was a tenant of Inayat father of the deceased since 1971. 1 was regularly tendering the rent. On 30th November, 1975 the said Inayat had expired and his legal heirs wanted to enhance the rent for which they pressed me and their demand not being genuine, I refused to enhance the rent. They refused to accept the rent at the previous rate I moved an application before the Senior Civil Judge, Lahore, for the deposit of rent in the Bank for which I was granted the per mission and since then I started depositing the rent in the State Bank 9f Pakistan regularly. The complainant party being aggrieved, filed an ejectment petition against me which was pending in the Court of Ch. Muhammad Aslam Rent Controller, Lahore. The complainant having knowledge that their case was weak and finding that my ejectment was not possible under the ordinary circumstances, got me falsely involved in this case so as to get me ejected from the premises in question. After my arrest, they forcibly occupied the house in question and also took away my belongings. My wife moved an application to Martial Law Authorities, Lahore. On their intervention in August 1977, part of my belongings were restored to my wife from the complainant and their family.
On the day of occurrence, I was present in the house of my second wife Mst. Rani at Paki Thathi, Qureshi Street, Lahore, wherefrom I was' arrested on 30th June, 1977.1 am a sick and old person and weak in health. I tender original receipts Exhs. DF/1, DF/2 to DF/12 showing the payment of the full rent by me in the State Bank of Pakistan in respect of the house on rent with me."
Athar Shah accused made the following statement in his defence
"I have been falsely implicated due to enmity. I produce my state ment iii writing giving out the details of my false implication in the case. I also produce certified copy Exh. D. G. of the statement of Arif Shah my real elder brother.
In the ejectment case filed by Rashida Begum, mother of the deceased, and others against Shakarullah co-accused. I also produce certified copy Exh. D. H. from Medico-Legal register of Inquiry Department of the Mayo Hospital from 24th February, 1977 to 29th October, 1977 about entry dated 28th June, 1977 of my accompanying Waqar Shah injured accused to the hospital. I also produce another certified copy Exh. D. J. of the Register C. O. D., Mayo Hospital, Lahore, incorporating entry of 28th June, 1977 to show that Waqar Shah co-accused had been taken to the hospital in an injured condition and treated at 5-10 p. m.
Shahid alias Shada accused explained his involvement in the case as under:
"I have been implicated due to the complainant party's enmity with my family and I produce a statement in writing setting forth the reasons of my false implication. I also produce certified copy Exh. D. K. of judgment dated 27th May, 1960 passed by Ch. Ali Muhammad, Magistrate, Section 30, Lahore, in the case titled "State v. Inayat Muhammad and others" under section 323/324, etc., P. P. C. wherein Inayat, father of the deceased, was one of the accused and Siddique and Iqbal given up P. Ws. of this case were tried with Inayat aforementioned. Munawar Khurshid, a given up P. W. of this case, was also one of the co-accused in the said case. Haji Muhammad Abdullah, my grandfather, was injured in the said case and my father. Muhammad Rafique, appeared as prosecu tion witness against Inayat and others. The said case ended in conviction of the accused and the sentence was maintained upto the High Court and the accused had to undergo the sentences."
Waqar Shah accused denied the prosecution allegations and stated that the police had initiated proceedings under section 107/150, Cr. P. C. on 13th March, 1978 against me and 18 other persons on the report of Mst. Rashida Begum, mother of the deceased. Explaining his injuries he made the following statement: -
"I was not injured during the' occurrence at the hands of Wajid Saleem P. W. as alleged by the prosecution nor was I present there at the relevant time. An hour earlier, Shahid accused was suddenly attacked by Rashad Saleem deceased with a weapon called kungfoo (a weapon used in the Judo Karatey). Shahid accused accepted by jumping aside while the kungfoo struck me in the head. The said weapon was round in- shape. I was imme diately rushed to the Mayo Hospital, Lahore, by Athar Shah accused for treatment. My arrival in the hospital is mentioned in Exh. D. H. and I was treated as mentioned in Exh. D. J. and was also referred for admission in the hospital in the West Surgical Ward on 28th June, 1977 at 5.10 p. m., but before my shifting to the said ward, I was arrested by the police from Casualty Outdoor Department, Exhs. D. H. and D. J. relate to my arrival and first aid treatment in the Mayo Hospital, Lahore.
Muhammad Aslam alias Secretary accused stated that the deceased and his family were inimically disposed towards Shahid co-accused, with whom he was on visiting terms. His name was substituted later on in place of Muhammad Aslam son of Hakim Noor Din, who was originally named in the F. 1. R.
Khadim Hussain accused explained his involvement in the case as under :-
`I submit typed written statement setting forth the reasons of my false implication. I also submit a certificate Exh. D. M. issued by Shahid Abbas my employer. I also submit a marriage invitation card from my maternal-uncle for participating in the Walima ceremony of my maternal-uncle Zakir Ali Khan, on the date of occurrence 1. e. 28th June, 1977. 1 was present in the house of my maternal-uncle in that connection when I was called by a person who was in possession of a chit from' my employer Shahid Abbas directing me to accompany him to the spot. Consequently I accompanied him to the site and when I was about to restore the electric supply, certain persons who were present there started quarrelling with one another, upon which I slipped away alongwith my instruments. On the same evening at 8.00 p. m. I was taken away by the police from the house of my maternal-uncle and was kept in Police Post Krisen Nagar for about two days and then 1 was put behind the bars on 30th June. 1977. The police asked me to become a witness in the case, but I refused, on which I was involved."
12. None of accused except Khadim Hussain examined any evidence in defence. Khadim Hussain accused examined Syed Shahid Abbas D. W. 1 and Muhammad Afzal Khan D. W. 2. Shahid Abbas D. W. 1 stated that he ran an electric shop at Sanda Road, National Town, Lahore. Khadim Hussain accused had been working as an Electrician with him for the last three years. On 28th June, 1977 at about 4.30 or 4.45 p. in. an unknown customer came to him for netting right his electric connection. He gave him a chit for contacting his servant Khadim Hussain .accused for the said purpose, at 29-Usman Road, Krishen Nagar, where he had gone for the installation of light at- a marriage party. At about 8-30 p.m. in the same night he learnt about the arrest of Khadim Hussain in the case. .
13. Muhammad Afzal Khan, Reference Incharge, Daily Imroze, Lahore, proved copy Exh. D. W. 2/A of the Imroze dated 29th June, 1977 incorporating a news at Exh. D. W. 2/B about the occurrence in question. In cross-examination he stated that he could not say anything about the correctness or otherwise of the report Exh. D. W. 2/B.
14. The learned trial Judge, relying upon the ocular account, the medical evidence and the recoveries, convicted and sentenced five persons tend acquitted one, as stated in para. I above.
15. The motive pressed in this case is not some incident anterior in point of time with the incident as promoting the appellants to commit the crime in instance, but an incident contemporaneous with the occur rence, namely, the desire of the appellants to get the electricity connec tion of one of their members restored, namely, of Shakarullah, appellant, who was a tenant of Wajid Salim and Shahid Pervaiz P. Ws. and whose electricity had been cut off a day or two earlier than the date of incident as Shakarullah appellant had not paid his electricity bills for the last six months. In these circumstances, motive as an antecedent incident, which prompted all the appellants to take part in the occurrence is not there. The case is one, which has to be decided on the basis of ocular testimony alone. At best Shakarullah, appellant, against whom Wajid Salim P. W. 6 and Shahi Pervaiz P. W. 7 etc., had filed a case of eviction, can be stated to W inimically inclined against the said witnesses and the deceased, but the animosity cannot be stretched any further.
16. The ocular account in this case is furnished by Wajid Salim p. W. 6, Shahid Pervaiz P. W. 7 and Shafiq P. W. 8. Wajid Salim P. W 6 and Shahid Pervaiz P. W. 7 are the brothers of the deceased, whereas Shafiq P. W. 8 is a first cousin of the deceased. Muhammad Siddique and Muhammad lqbal, paternal-uncles of the deceased, and one Amar Raza, A maternal-aunt's son of the deceased, were given up. According to the consistent testimony of the said three eye-witnesses, they with Rashad Salim deceased and Amir Raza (given up P. W.) were playing carom in the baithak of their house. Some, one knocked the door of baithak and Wajid Salim P. W. 6 went out and saw all the five appellants and the acquitted Accused present outside. Shakarullah, appellant, was tenant of Wajid Salim P. W. 6 and Shahid Pervaiz P. W. 7. He lived in the first storey of their house as their tenant. The entrance to the storey occupied by Shakarullah, appellant, Was situate facing Gali No. 10, whereas the entrance to the ground floor portion occupied by Wajid Salim P. W. 6 and Shahid Pervaiz P. W. 7 was in Gali No. 11. Athar Shah, appellant, inquired from Wajid Salim P. W. 6 as to why they had disconnected the electricity connection of Shakarullah, appellant. Wajid Salim P. W. 6 told him that Shakarullah, appellant, had not paid his electric bills to them for the last six months and if he was prepared to make the payment, they would restore the electric supply. On this, Athar Shah, Shahid and Waqar Shah, appellants, told that they had not come for the payment of the electric bills, but for getting the same restored. In the meantime, Shahid. Pervaiz P. W. 7, Rashad Salim deceased, Shafiq P. W. 8 and Amir Raza (given up P, W.) had come out from the baithak on hearing the sound of voices outside. Athar Shah, appellant, tried to forcibly enter the deohri where the electric meter was installed. Rashid Saleem deceased stopped him. Shakarullah, appellant, was empty-handed, Athar Shah and Aslam appellants, and Khadim Hussain, acquitted accused, carried knives, while Shahid and . Waqar Shah appellants, carried daggers resembling Chhuris. Shakarullah, appellant, caught hold of Rashad Salim deceased by his arms * from behind and asked his companions to teach the prosecution witness a lesson for disconnecting the electric supply. Athar Shah appellant inflicted a knife blow on the deceased, which hit him in the abdomen, followed by Waqar Shah and Shahid, appellants, who also inflicted injuries on the deceased, which hit him on his abdomen and left arm. Shahid P. W. 7 tried to rescue his brother, but Aslam, appellant, and Khadim Hussain acquitted accused, inflicted injuries on him on his left buttock and left flank. Wajid Salim P. W. 6 tried to rescue his brother, but Waqar Shah, appellant, tried to attack him, but he escaped unhurt, Wajid Salim P. W. 6 picked up a brickbat from the spot and in self-defence hurled it at Waqar Shah, appellant, hitting him on the head. The occurrence was still in progress, when. Muhammad Siddique and Muhammad lqbal, the uncles of Wajid Salim and Shahid Pervaiz P. Ws., were seen near the spot, who also saw the occurrence. The appellants and the acquitted accused then left the place issuing threats. In cross-examination Wajid Salim P. W. 6 admitted that they had disconnected the electric supply to the floor of Shakarullah, appellant, only a day before the occurrence, that the said action was taken without the permission of the Rent Con troller who was seized of their ejectment case against the said appellant and that he did not know if there was any condition about the payment of electricity dues by Shakarullah, appellant, in rent deed executed by him. He further admitted that he did not see the appellants and the acquitted accused carrying weapons when they came to the spot and that the incident arose after they had stopped the appellants and to acquitted accused from forcibly restoring the electric supply. He confirmed that the electricity meter was installed near the staircase in their deohri on the ground Boor near their entrance facing Gali No. 11. He admitted that he knew Athar Shah, appellant, from childhood, because he lived near his house, and also his elder brother, Azhar Shah. He admitted that Arif Shah, a brother of Athar Shah, appellant, had appeared as a witness for Shakarullah, appellant, in the ejectment proceedings filed by him against the said 'Shakarullah. He denied that Waqar Shah and Shahid appellants had passed near his house an hour before the occurrence, that his brother Rashid Salim deceased had attacked Shahid, appellant, with Kungfoo, that the said weapon had missed Shahid, appellant, who climbed over the wall of the house of Chaudhri Tufail, but struck Waqar Shah, appellant on his face, that Waqar Shah, appellant, fell down on receiving the injury and that Shahid, appellant, then went away, brought Athar Shah, appellant, and, with his help, removed Waqar Shah, appellant, to tee Hospital. In further cross-examination he denied that Muhammad Abdullah, grandfather of Shahid, appellant, had been beaten by Inayat (father of Rashid Salim deceased) and his brothers Muhammad Siddique and Muhammad lqbal (given up P. Ws.) and some other, that Shahid, appellant, and his father Rafique had appeared as P. Ws. Against the said accused, that Siddique and Inayat accused were sentenced under section 323/324, P. P. C. by the Magistrate, which sentence was upheld right through the High Court up to the Supreme Court. He further admitted that he had given the parentage of Aslam, appellant, as Haji Noor-ud-Din in the F. I. R., but he corrected the same in his supplementary statement. He denied the suggestion that he had falsely implicated Aslam appellant. He admitted that he knew him since two years prior to the occurrence. He also admitted that some newsmen had met him in the hospital on the day of occurrence, when he had narrated the incident to him and that a report was also published in the newspaper on the following day. On being shown the copy of the Daily Imroz newspaper dated 29th June, 1977, he stated that this news-item pertained to the occurrence in question. Shahid Pervaiz P. W. 7 in cross-examination stated that prior to the occurrence they had .no quarrel or dispute with Khadim Hussain, acquitted accused, nor he had visited his house, nor he had been on any terms with him. He further admitted the suggestion that Khadim Hussain, acquitted accused, was an electrician by profession and that he had never sided with Shakarullah, appellant, on any previous occasion. He also stated that he was given blows simultaneously with the deceased and that the deceased was given the first injury by Khadim Hussain, appellant, whereafter he and deceased were injured almost simultaneously. To further questioning, he denied the suggestion that he had implicated Khadim Hussain, acquitted accused, so that he could not come forward with the true version. He further admitted that Waqar Shah and Athar Shah, appellants, were related inter se, but had no relationship with the other appellants, that prior to the present occurrence all of them had never quarrelled with him or his brothers, nor sided with Shakarullah, appellant, in the ejectment petition filed by them and that it was not within his knowledge if they had ever joined with Shakarullah, appellant, in the commission of any offence prior to the incident. He denied the suggestion that an hour before the occurrence Rashid Saleem, deceased, bad injured Waqar Shah, appellant with the handle of kungfoo, which blow was actually aimed at Shahid, appellant, but had hit Waqar…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.