Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: UHAMMAD ILYAS and 4 others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Rustam Ali Malik, Zafar Pasha Ch. Title: UHAMMAD ILYAS and 4 others vs THE STATE Case No.: Criminal Appeals Nos. 1043, 98-J, 917 and Murder Reference No,24-T of 1998 Date of Judgment:2002-03-11 Reported As: 2002 YLR 345 Result: Order accordingly
JUDGMENT
JUDGMENT ' RUSTAM ALI MALIK, J.---Through this judgment we intend to dispose of Murder Reference No, 242-T of 1998 as well as Criminal Appeal No, 1043 of 1998, Criminal Appeal No, 984 of 1998, Criminal Appeal No, 917 of 1998 and Criminal Appeal No, 163-J of 1998. 2. The brief facts of the case are that the formal F.I.R. No, 189 of 1998 (Exit P J/1) was registered in Police Station Jaranwala, District Faisalabad on 9-2-1998 at 7-55 a.m. On the basis of the statement Exh.P.J of Hidayat Ali son of Muhammad Mukhtar, complainant (P.W. 14). According to the F.I.R., on 8-2-1998, around 8/9-00 p.m., the complainant along with his father Muhammad Mukhtar and brother Sadiq Ali was present in his house while his brother Muhammad Mushtaq was present in the adjacent room and Mst. Hanifan wife of Sa21q Ali and Mst. Hanifan, ' wife of the complainant were also awoke when around 8/9-00 p.m., four armed persons who were seen by the complainant in the light of the lantern and who could be identified by him, emerged. When Sadiq Ali and Muhammad Mukhtar (the brother and father respectively of the complainant) came out of the room, one of the culprits fired at Sadiq Ali. The complainant as well as Muhammad Mukhtar and Muhammad Mushtaq and the aforesaid ladies caught hold of him and thereupon the said culprit called his companions who fired and injured Muhammad Mushtaq. The said culprits then fired at Sadiq Ali and Muhammad Mushtaq and got rescued their companion from them. The culprits gave butt blows to the complainant and Muhammad Mukhtar. Thereafter, they fled away while tiring and taking along with their guns .12 bore. When the P.Ws. Attended to Muhammad Mushtaq and Sadiq Ali (brothers of the complainant), it was found that they had expired. The complainant alleged that all the four culprits who were equipped with firearms, as aforesaid, had trespassed (in their house) and had killed his brothers Sadiq Ali and Muhammad Mushtaq,
---
## Page 2
deceased. They i,e, the culprits had been seen while running away by Inayat Ali and Muhammad Ashfaq P- Ws. As well. Thereafter, the complainant reported the matter to the police. 3. P.W.16 Barkhurdar Ahmed, Inspector/S.H.O. Had recorded the statement of Hidayat Ali, complainant Exh.P.J. At Jhaal Bootey Wali. After the completion of investigation, challan was submitted in the Court. As many as 8 accused namely Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo, Arshad alias Neela, Muhammad Ashraf alias Papu, Waris Ali, Niaz AE alias Najia and Mushtaq alias Makha were formally charged by the learned Special Judge, Anti-Terrorism Court (Punjab), Faisalabad Division, Faisalabad on 28-7-1998. 4. The first charge against Ilyas, Akhtar, Maajid alias Maujoo and Arshad accused was that on 8-2- 198 at 8/9-00 p.m., in the area of Chak No,117 GB, Police Station Jaranwala, they being armed with deadly weapons had trespassed into the house of Hidayat Ali complainant to commit Qatl-eAmd of Muhammad Mushtaq and Sadiq Ali, deceased and had thus committed the offence under section 449, P.P.C. The second charge against the said four accused persons was that after trespassing into the house of Hidayat Ali complainant, had attempted to commit robbery and had thus committed an offence under section 393, P.P.C. The third charge against these four accused was that all four of them in furtherance of their common intention had caused the death of Muhammad Mushtaq and Sadiq Ali, deceased and thereby they had committed an offence under section 302/34, P. P.0 . 5. The fourth charge was against Muhammad Ashraf alias Pappu, Waris Ali, Niaz Hussain and Mushtaq alias Makha, accused Nos. 5 to 8 and which was to the effect that they had abetted their co-accused i,e, Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela (accused, Nos. 1 to 4) and in consequence thereof, they had committed Qatl-e-Amd of Muhammad Mushtaq, and Sadiq Ali, deceased and thereby had committed the offence under section 109 read with section 302, P.P.C. The fifth charge was against, accused Nos. .5 to 8 regarding abetment under section 109 read with section 393, P.P.C. 6. The 6th charge was against accused Nos. 1 to 4 i,e, Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela accused and which was to the effect that they had displayed lethal weapons and had made indiscriminate firing, causing harassment and terror in the locality at large and thereby they had committed an act of terrorism which is an offence punishable under section 7 of the Anti-Terrorism Act, 1997. 7. All the eight accused pleaded not guilty and claimed trial. The prosecution was called upon to produce its evidence. 8. The prosecution examined, as many as 16 P. Ws. In this case, besides producing some documentary evidence including reports of Chemical Examiner Exh.P.D.D and Exit. P. E .E, reports of Serologist Exh . P . F. F and Exh.P.G.G. And report of Forensic Science Laboratory Exh.P.H.H. The statements of the accused were recorded under section 342, Cr.P.C. And on the conclusion of trial the learned trial Court heard the arguments and convicted all the eight accused. 9. Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela accused Nos.1 to 4 were convicted under sections 302/34, P.P.C. And were awarded punishment of death as Taazir on each count. They were also directed to pay a fme of Rs,50,000 each and in default of payment of fine to undergo R.I. For six years. They were also convicted under section 449, P.P.C. And awarded imprisonment for life for committing criminal house-trespass to commit dacoity. They were also directed to pay a fine of Rs,10,000 each and in default of payment of fine to further undergo R.I. For six years. Accused Nos.1 to 4 were also convicted under section 393, P.P.C. For attempting to commit dacoity and were awarded R.I. For seven years each and to pay a fine of Rs, 10,000 each and in default of payment of fine to further undergo R.I. For two years. 10. The learned trial Court also convicted them i,e, Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela accused guilty for the offence under section 7 of the Anti-Terrorism Act,
---
## Page 3
1997 and awarded death sentence on each count and to pay a fme of Rs, 50,000 each and in default of payment of fine to undergo R.I. For six years. Accused, Nos. 5 to 8 i,e, Muhammad Ashraf alias Pappu Waris Ali, Niaz Hussain and Mushtaq alias Makha were convicted for the offence under section 109 read with section 302, P.P.C. And awarded imprisonment for life. All four of them Were also awarded R.I. For two years each under section 109 read with section 393, P.P.C. 11. For confirmation of sentence of death awarded to the accused Nos. 1 to 4 i,e, Muhammad Ilyas, Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela, the learned trial Court sent a reference to this Court. Muhammad Ilyas, Muhammad Ashraf alias Pappu, Niaz Hussain alias Naja, Mushtaq Ilyas. Makha and Maajid alias Majoo filed Criminal Appeal No, 1043 of 1998 against the impugned judgment, Akhtar Ali accused filed a separate appeal (i,e, Criminal Appeal No, 917 of 1998). Arshad alias Neela filed an appeal against the impugned judgment through Superintendent Jail and which is Criminal Appeal No, 98-J of 1998. Similarly Waris Ali accused also filed an appeal through Superintendent Jail and which is Criminal Appeal No, 163-J of 1998. Through this judgment all the said appeals and the Murder Reference No, 242-T of 1998 sent by the learned trial Court are being disposed of. 12. So far as the prosecution evidence is concerned, it has already been stated that the prosecution had examined in this case as many as 16 P.Ws. 13. The investigation in this case had been conducted by P.W. 16 Barkhurdar Ahmed, Inspector/S.H.O. Of Police. Station Jaranwala who had recorded the statement of Hidayat Ali complainant as Exh.P.J. On the basis of which the formal F.I.R. Exh.P.J/1 had been registered. He had prepared the injury statement Exh.P.H and inquest report Exh.P. 1 of Sadiq Ali, deceased as well as the injury statement Exh.P.E and inquest report Exh.P.F of Muhammad Mushtaq, deceased. He had prepared the rough site plan Exh.D.C. And had sent' the dead bodies for post-mortem examination. He completed other formalities as well, such as collection of blood-stained earth and other articles i,e, cartridges, empties, lantern, last-worn clothes of the deceased., arrest and interrogation of the accused, recovery of weapons of offence. He made efforts to arrest Arshad alias Neela accused who was then absconding and obtained his warrants of arrest and proclamation. He recorded the statements of all the P.Ws. After completion of investigation, the accused were challaned by him. 14. The medical evidence in this case was furnished by P.W. 4 Doctor A.R. Tahir, Medical. Officer, Tehsil Headquarters Hospital, Chiniot. He had conducted the post-mortem examination of the dead bodies of both the deceased persons on 9-2-1998. According to him he had found the following injuries on the dead body of Muhammad Mushtaq son of Mukhtar Ahmad:-- (1) A lacerated wound of fire-arm (entry) with black margins 1-V2 c.m. x 1 c.m. x chest cavity deep on left side of front of the chest. (2) A lacerated wound of entry of firearm 3-V2 c.m. x 2 c.m. x bone deep on lateral side of left upper arm. There was fracture of left humerous bone. (3) A lacerated wound of entry of firearm injury 8 c.m. x 2 c.m. x chest cavity deep just near the left arm-pit. (ii) The cranium and spinal card were healthy. (iii) Thorax.---The walls were damaged at the sides of injury, pleura was damaged, right and left lungs were ruptured, blood vessels were ruptured in left arm-pit. Rest of the organs of thorax were healthy. (iv) Abdomen.---The stomach contained semi-digested food and the small intestine contained paste like material. The urinary bladder was full of urine. The rest of the organs of the abdomen were healthy. (v) Mussles, bones and joints As already mentioned. 5 Pellets were recovered from chest and left upper arm.
---
## Page 4
' In his opinion injuries Nos.1 and 3 were anti-mortem and fatal which led to haemorrhage and shock and caused death in the ordinary course of nature. He described the same as fire-arm injuries. Exh.P.D. Is the carbon copy of the original post-mortem report while Exh.P.D/1 is the pictorial diagram showing the seats of injuries. According to him, the death had occurred at 7-00 a.m. On 9-2-1998 while the post-mortem examination was conducted on the same day at 1-30 p.m. 15. On the same day i,e, 9-2-1998 around 2-30 p.m., P.W. 4 had also conducted the post-mortem examination of the dead body of Sadiq Ali deceased son of Mukhtar Ahmed. He had found the following injuries:-- (1) A fire-arm lacerated wound 7 c.m. x brain deep, right eye, orbit and upper part of cheek (were damaged). ' A lacerated fire-arm entry wound 4 c.m. x 3 c.m. x bone deep on the upper part of back of right forearm. A lacerated wound of fire-arm (exit wound) 13 c.m. x 5 c.m. x bone deep on the front of right elbow-joint. (II) Cranium and spinal card.---The skull was fractured and the brain was damaged. 7 pallets were recovered from the skull. (III)Throax.---All the organs of thorax were healthy and heart was empty. (IV)Abdomen.---The stomach contained undigested food material and the small intestine contained paste like material. The bladder was half filled with urine. The rest of the organs of abdomen were healthy. (V) Mussles, Bones and Joints. ---As already mentioned. ' In this opinion Injury No, 1 was sufficient to cause haemorrhage, brain damage and shock and which could surely lead to death in the ordinary course of nature. According to him the probable time that elapsed between injury and death was immediate and that between death and postmortem examination was within about 8 hours. Exh.P.G is the carbon copy of original post- mortem report while Exh.P.G/1 and Exh.P.G/2 are the pictorial diagrams showing the seats of injuries. 16. P.W.1 is Zafar Ali, Constable No,2626 of Police Station Jaranwala who had taken the dead body of Sadiq Ali, deceased for post-mortem examination to the Civil Hospital, Jaranwala and had then brought it back along with last-worn clothes of the deceased. P.W.2 Allah Ditta, Head Constable No, 2640 was entrusted bailable warrants of arrest of Arshad alias Neela and which is Exh.P.B. The proclamation Exh.P.C. Had also been affixed by him and he had recorded a report in that respect which is Exh.P.0 /1. P.W. 3 Anwar Hussain had identified the dead bodies of Sadiq Ali and Muhammad Mushtaq, deceased at the time of post-mortem examination. P.W.5 Muhammad Rafique, A.S.-I. Had recorded the formal F.I.R. Exh.P.J/1 on the receipt of complaint Exh.P.J. P.W. 6 Abdul Ghafoor, Constable No, 2854 had escorted the dead body of Muhammad Mushtaq, deceased to the mortuary at THQ Hospital, Jaranwala an 9-2-1998. After the post-mortem examination he had handed over the last-worn clothes of the said deceased to the Investigating Officer which he had taken into possession vide memo. Exh.P.K. He had also handed over to the Investigating Officer the post-mortem report of the deceased. ' P.W. 7 is Muhammad Aslam, Head Constable No,419 who stated that on 10-12-1998, the S.H.O. Had handed over to him two sealed parcels containing bloodstained earth for safe custody in Maal Khana and for onward transmission to the office of Chemical Examiner. On the same day the S.H.O. Had handed over to him a sealed parcel alleged to have contained 3 empties for safe custody and for onward transmission to the office of Fire-arm Expert. On 19-2-1998, he had handed over the aforesaid three parcels to Muhammad Iqbal, Constable No, 270 for onward transmission to the office of Chemical Examiner and Fire-arms Expert. On 21-21998 the S.H.O. Had given to him two sealed parcels alleged to have contained clothes and three sealed parcels alleged to contain guns for safe custody in Maal Khana and for their onward transmission. On 24-2-1998 he had handed over the said sealed parcels to Muhammad Iqbal, Constable for taking them to the office of
---
## Page 5
Chemical Examiner and Firearms Expert. P.W. 8 Noor Elahi was a witness to the recovery of lantern from the spot which is Exh.P.6 and also the three empties cartridges. Lantern had been taken into possession by the Investigating Officer vide memo. Exh.P.L and three empties aforesaid vide memo. Exh.P.M. According to him, the police had taken into possession nine live cartridges Exh.P.8/1-9 vide recovery memo. Exh.P.N. And that the police had taken into possession a bag Exh.P.9, Jacket Exh.P.10, Shirt, Exh.P.-11 and Shalwar Exh.P.-12 vide memo. Exh.P.O. The blood-stained earth had been taken into possession by the police from the place of murder of Muhammad Mushtaq and Sadiq Ali, deceased vide memos. Exh.H.P.P and Exh. P Q. 17. P.W. 8 Noor Elahi deposed that on 21-2-1998 he had again joined police investigation and that he and Abdul Majeed were present near the Dera of Abdul Majeed and that all the eight accused came to the bridge from the side of Chak No, 74-GB and that they were going on the eastern bank of the Sem Nala around 10-00 a.m: when the police party reached there. He deposed that they told the police party that the accused had just passed froze there. The police took them along and chased the accused and that Arshad accused threw away his gun .12 bore. Exh.P.13, alive cartridges Exh.P.14 and blood-stained Chaddar Exh.P.15 and ran away; that the police took the same into possession vide memo. Exh.P.R. Thereafter the police arrested Ashraf accused Who was holding the gun Exh.P.16 and which was taken into possession by the police along with two live cartridges from the pocket of his right side and which are Exh.P.17/1-2. A live cartridge was also extracted from the barrel of the gun Exh.P.18 and which were taken into possession vide memo. Exh.P.S. Thereafter Akhtar Ali accused was arrested and .30 bore pistol Exh.P.19 was recovered from him along with three live bullets Exh.P.2/1-3 which were all taken into possession vide memo. Exh.P.T. He deposed that the police also took into possession blood-stained Shalwar Exh.P.21 and bloodstained Shirt Exh.P.22 vide memo. Exh.P.U. He stated that Waris Ali accused got recovered a .30 box pistol Exh.P.23 from a heap of Sarkanda (reed bushes) lying outside his house near the outer door. He also got recovered three live bullets Exh.P.24/1-3 which were taken into possession vide memo. Exh.P.B. Thereafter, Maajid accused got recovered a .30-bore mauser Exh.P.25 which was taken into possession vide memo., Exh.P.W. Then Ilyas got recovered a .12 bore gun Exh.P.26 from the Sem Nala which was taken into possession vide memo. Exh.P.K. Thereafter the Dera of Akhtar accused which was locked was raided. Akhtar All accused dug a place near the door of the Dera and took out a key which he !Landed over to the police. Then the police opened the door and thereupon the said accused got recovered gun Exh.P.27 from underneath the bed. The police took into possession a lock and key Exh.P.28 and Exh.P.29 and also a gun Exh.P.27 vide ntem o. Exh.P.Y. P.W.-8 stated that he had signed all these memos. Along with Abdul Majeed P.W. 18. P. W.9 is Aurangzeb Draftsman who on the pointing out of the P.Ws. And on the direction of the police had inspected the place of occurrence and had prepared the site plan Exh. P. Z and Exh .P. Z/1. 19. Concerning the allegation of abetment, the prosecution examined P.W. 10 Fazal Ahmed who stated that about six months ago, around 5-30 p.m., he along with Ahmed Ali P.W. Was coming to Faisalabad from Chak No, 117 G.B. And when they reached near Murghi Klima More in the area of Chak No, 74 GB, they saw Ilyas, Maajid, Akhtar, Ashraf, Niaz and Mushtaq accused. They got up on seeing them and were seen having firearms with them. Mushtaq handed over .30 bore double- barrel gun to Ilyas. Ashraf have single-barrel, gun to Neela. They were talking with each other. Ashraf, Niaz and Mushtaq said that they had gathered by chance and that something should be done and Arshad said that the programme chalked out' by Akhtar and Waris should be acted upon.. P.W. 10 stated that they went back on the second day around 9 or 10-00 a.m. When the occurrence had taken place and the police had already gone with the dead bodies and the people were talking with each other. They told them about that what they had heard. This witness again stated that they had told the police about the aforesaid fact. Shaukat All P.W. 11 deposed that he
---
## Page 6
along with. Imtiaz, Arif and Muhammad Shafi was going from Satiana Road to Chak No, 117-GB via Chak No, 77-GB at 6-00 p.m. About six months ago. When they reached the Pul of Sem Nahar, they saw Muhammad Ilyas armed with .12 bore gun, Arshad alias Neela armed with single-barrel .12- bore gun, Akhtar armed with single-barrel .12 bore gun, Maajid and Waris armed with .30 bore pistols. They were consulting with each other about the commission of dacoity. Then they i,e, P.Ws. And his companions proceeded to their Chak. On the following morning they came to know about the occurrence. They reached the place of occurrence around 10-00 a.m., when the police was already present there. He stated that the police had already come to know about the names of the accused, and that they had also told the police about, the names of the accused. 20. The eye-witness account in this case is furnished by. P.W.12 Mst. Hanifan widow of Sadiq Ali, deceased, P.W. 13 Muhammad. Ashraf and P.W. 14 Hidayat Ali. P.W.12 stated that Sadiq Ali deceased was her husband while Muhammad Mushtaq deceased was a younger brother of her husband. About six months ago, around 8/9-00 p.m. She along with her husband Sadiq Ali deceased and Hidayat Ali complainant, Mukhtar Ahmed and Mst.Hanifan wife of Hidayat Ali was sitting in their residential room and discussing their household affairs. The door was open and a hurricane lamp was hanging on the door when four persons came there. She named them as Ilyas, Akhtar, Arshad alias Neela and Maajid. She stated that Ilyas was armed, with a .12-bore double-barrel gun, Akhtar and Arshad with single-barrel .12 bore guns and Maajid with a .30-bore pistol. She deposed that all of them aimed their firearms at them, there atened them and asked them to hand over to them ornaments or money, etc, otherwise they would be killed. Her husband Sadiq Ali advanced and enquired as to what money (they were talking about) and thereupon Ilyas accused fired with his gun hitting his right eye. When they intervened, Akhtar accused fired, hitting Sadiq Ali deceased on his right arm. They captured Ilyas accused. In the adjoining room Muhammad Mushtaq, Inayat and Ashraf were present. They ran towards them on hearing the reports of gun-tires and Muhammad Mushtaq caught Ilyas accused. Then Arshad alias Neela accused fired at Muhammad Mushtaq hitting on his left arm and chest. Muhammad Mushtaq fell down on the ground. They caught hold of Arshad alias Neela, but in order to rescue him the other accused gave them numerous blows with the butts. She had received butt blows on her head (which she described as brain) and stated that she was not feeling normal. The accused ran away after firing. She stated that the act of the accused had created terror in the Illaqa, so much so that their three small children proceeded to the house of their maternal grand-parents and since then they have been residing there. She stated that as two murders had been committed in their house, they had lost their senses and did not feel normal. P.W. 12 is supported by P.W. 13 Muhammad Ashraf as also P.W. 14 Hidayat Ali who deposed almost on the same lines. 21. P.W. 15 Muhammad Iqbal, Constable No, 2702 deposed that on 19-2-1998 Muhammad Aslam, Moharrir Head Constalbe No, 419 had handed over to him. Two sealed parcels said to contain bloodstained earth and one sealed parcel said to contain empty cartridges for onward transmission to the office of Chemical Examiner and to the office of Forensic Science Laboratory, Lahore. On 21-2-1998 he deposited the two sealed parcels containing blood-stained earth in the office of Chemical Examiner, Lahore and the sealed parcels said to contain empties cartridges in the Forensic Science Laboratory. He stated that on 24-2-1998 Muhammad Aslam, Moharrir/HC had handed over to him two sealed parcels said to contain clothes and three sealed parcels said to contain .12 -bore guns. On the same day he deposited the aforesaid two sealed parcels said to contain clothes in the office of Chemical Examiner and three sealed parcels said to contain .12 bore guns in the office of Forensic Science Laboratory, Lahore. 22. On the conclusion of the prosecution evidence the statements of the accused under section 342, Cr.P.C. Were recorded. Muhammad Ilyas accused in his statement under section 342, Cr.P.C. Denied all the incriminating circumstances. In answer to question No, 6 he denied that the gun P.26
---
## Page 7
had been got recovered by him and which tallied with one of the empties recovered from the place of occurrence as per report of Forensic Science Laboratory, Exh.P.H.H. And claimed that it was a fabricated document. In answer to question No,9 he stated that in fact the culprits could not be identified by the complainant party and that they in connivance with Investigating Officer had cooked up this false case and that the P.Ws. Are related inter se and had deposed falsely. Akhtar Ali, Maajid alias Maujoo and Arshad alias Neela accused made similar statements. So far as accused Nos.5 to 8 are concerned, they also denied all the incriminating circumstances . However, none of the accused made statement on oath under section 340(2), Cr.P.C. Nor any of them produced any evidence in defence. 23. After conclusion of the trial- the learned trial Court convicted all the eight accused and sentenced them as. Aforesaid. 24. Learned counsel for Ilyas, Akhtar Ali, Maajid and Arshad alias Neela, accused/appellants have argued that the complainant Hidayat Ali has himself disowned the F.I.R. And as such it is a case without an F.I.R. It was pointed out that none of the accused was specifically named in the F.I.R. They have argued that AkInar accused lived there in the same village, close to the house of the deceased, then how is it that his name was not mentioned in the F.I.R. But the complainant and other P. Ws. While appearing before the Court i,e, P.W. 12, P.W. 13 and P.W. 14 specifically named the accused and which is clearly .An improvement. The learned counsel for the appellants argued that if the eye-witnesses were…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.