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Petitioner: MUHAMMAD NAEEM alias GOGI and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad Sarfraz Dogar, Muhammad Amir Malik Title: MUHAMMAD NAEEM alias GOGI and others vs THE STATE Case No.: Criminal Appeal No,268 and Murder Reference No,99 of 1986 Date of Judgment:1989-11-06 Reported As: 1990 P Cr. L J 1607 Result: Order accordingly
JUDGMENT
JUDGMENT ' SARDAR MUHAMMAD DOGAR, J.--- Muhammad Naeem alias Gogi, aged 19/20 years, Muhammad Farooq alias Kala, aged 23 years and Moulvi Muhammad Zafar Iqbal, aged 27 years, were tried by Sessions Judge, Lahore, under section 302/307/149/148, P.P.C. Alongwith Muhammad Naeem alias Naji, aged 15 years, Muhammad Bashir, aged 78 years, Zubair Iqbal, aged 18 years, Muhammad Khalid, aged 20/21 years and Muhammad Aslam aged 25 years, for having murdered Muhammad Aslam alias Kala, Muhammad Ashraf alias Sahab and Zulfiqar alias Pomi (their own companion) and for having launched murderous assault on P.Ws. Yusuf Khan, Liaqat Ali, Munir Hussain Shah, Muhammad Anwar and Javid Ahmad. The learned trial Judge vide judgment dated 23-4-1986 convicted Muhammad Naeem alias Gogi, Muhammad Farooq alias Kala and Muhammad Zafar Iqbal under section 302/34, P.P.C., on three counts under section 307/34, P.P.C., on five counts and under section 148, P.P.C. And awarded sentences as follows:-- ' Under section 302, P.P.C. To death on three counts, plus to pay a line of Rs,5,000 on each count, in default whereof to undergo R.I. For one year. They have also been directed to pay a sum of Rs,30,000 each, as compensation to the heirs of Muhammad Aslam and Muhammad Ashraf deceased. ' Under section 307/34, P.P.C. To seven years' R.I. Each on each count. ' Under section 148, P.P.C. To one year's R.I. ' The sentences of imprisonment have been ordered to run concurrently. The remaining five accused were acquitted vide the same judgment. 2. The convicts have filed appeal. The learned Sessions Judge has made reference for confirmation of death sentences. The appeal filed by the State against the acquitted accused has also been
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admitted to a regular hearing and the same is also before us. ' As all the matters arise from the same judgment, they are being disposed of by a consolidated judgment. 3. It may be mentioned at the very outset that one Muhammad Yousaf, who was named in the F.I.R. As one of the accused was arrested and challaned but he later escaped and is reported to have died prior to the trial in some police encounter. ' Dera of Muhammad Ashraf (deceased) on the Ganda Nala, Gulshane Ravi Scheme, Multan Road, at a distance of 3 k.m. From Police Station Nawankot, Lahore. 5. F.I.R. (Exh.P.A./1) was registered at the police station at 11-55 p.m. On the same day by Attaullah, A.S.I. (P.W.1), on receipt of the statement (Exh.P.A.) of Yusuf Khan (P.W.13), recorded by Muhammad Aslam, A.S.I. (P.W.17), at 11-35 p.m., on the same day, in the Emergency Ward, Mayo Hospital, Lahore. ' According to F.I.R. The complainant alongwith Muhammad Ashraf alias Sahib, Muhammad Aslam alias Kala (both deceased) Liaqat Ali (P.W.14), Munir Hussain Shah (P.W.15) and given up P.W. Javid were sitting on cots outside the Dera of Muhammad Ashraf (deceased). Suddenly, Gogi (Naeem), armed with a sten-gun, Naji (Nasim) armed with a rifle, Yousaf (since dead) armed with a stengun, Kala (Muhammad Farooq) armed with a rifle, Bashir Kannianwala, Khalid and Babu (Zubair) armed with revolvers, Zulfiqar (died during occurrence) Moulvi Zafar Iqbal and Muhammad Aslam, armed with carbines, came there from the side of Morr Samanabad. They were identified under the light of the bulb burning outside the Dera. They opened immediate indiscriminate firing on the complainant and others, as a result of which the complainant, Muhammad Ashraf, Muhammad Aslam (both deceased), Liaqat Ali, Munir Hussain Shah and Javid suffered injuries. Zulfiqar, one of the accused, also suffered injuries due to their own firing. They tried to lift him away but they could not do so on account of the noise raised by the complainant party. ' Motive for the occurrence was that 3/4 months prior to the occurrence, the accused had quarrelled with Muhammad Ashraf, as a result of which cases under section 307, P.P.C. Were registered and they were pending trial. Security proceedings under section 107/151, Cr.P.C. Inter se the parties were also pending. ' After the occurrence and before recording of the statement (Exh.P.A.), the injured were removed to the hospital. 6. After Muhammad Aslam, A.S.I. (P.W.17) had despatched Exh.PA. To the police station for registration of F.I.R., he came to know about Zulfiqar (accused) having died. He examined the dead body and after preparing inquest report (Exh.P.Z.), sent the dead body for post-mortem examination. After midnight in the early morning of 1-5-1984, he went to the spot. During spot inspection he collected blood-stained earth from the places, sealed the same into a parcel and took into possession vide memo. Exh.P.T. He picked up six empties P.5/1-6 of .12 bore, six empties (P.8/1-6) of 7 mm, nine empties (P.7/1-9) of sten-gun and seven empties (P.7/1-7) of .32 bore. All the empties were sealed into a sealed parcel and were taken into possession vide memo. Exh.P.U. Munir Shah P.W. Produced his blood-stained Kurta (P.9) and Lacha (P.10). They were taken into possession vide memo. Exh.P.V. Kurta (P.11), Tehmand (P.12) of Liaqat P.W., shirt (P.13), Shalwar (P.14) of Yousaf Khan P.W., Kurta (P.15), Bunyan (P.16) of Anwar P.W., all stained with blood produced by Safarish All P.W. Were taken into possession vide memo. Exhs.P.W., P.K. And P.Y. Respectively. ' On coming to know of the expiry of Muhammad Ashraf, he reached Mayo Hospital and prepared inquest report (Exh.P.AA.). The dead body was sent for post-mortem. ' Bashir, Zubair Iqbal and Muhammad Aslam acquitted accused were arrested by him on 3-5-1984. ' On coming to know about the death of Muhammad Aslam on 10-5-1984, in General Hospital, he reached there and despatched the dead body for postmortem examination, after preparing inquest report (Exh.P.BB.).
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' He applied to the Ilaqa Magistrate for issuance of warrants of arrest of Naeem alias Gogi, Naseem alias Naji, Yousaf alias Achhi, Farooq alias Kala, Maulvi Zafar Butt and Khalid accused persons vide application (Exh.P.CC.) on 26-5-1984. The warrants of arrest were issued vide order, dated 28-5- 1984. The investigation was handed over by him to Rehmatullah Inspector on 29-5-1984. 7. Mukhtar Hussain S.I. (P.W.11) was also connected with the investigation of this case. He got transferred Naeem alias Gogi and Yousaf alias Achhi from Police Station Sadar Sheikhupura, where they were under arrest in another case and effected their arrest in this case on 15-6-1984. Yousaf (since dead) got recovered sten-gun (P.2) from the Baithak of his house on 30-6-1984. On the same day Zafar Butt (Maulvi Zafar) also got recovered carbine (P.3) along with four live cartridges (P.3) and four live cartridges (P.4/1-4) from his house. The same were taken into possession vide memo. Exh.P.S. 8. Rehmatullah Niazi, S.H.O. (P.W.19) partly investigated the case. Naeem alias Gogi led to the recovery of sten-gun (P.1) alongwith magazine lying in a brief case in his house by opening the lock of the same by operating numbers on 21-6-1984. They were taken into possession vide memo. Exh.P.Q. ' After completion of necessary investigation, challan was submitted to Court. 9. Statements of 22 P.Ws. Were recorded at the trial. Positive reports (Exhs.P.NN and P.00) from the Chemical Examiner and the Serologist were tendered in evidence. Report (Exh.P.PP) from the office of the Forensic Science Laboratory was also submitted in evidence. In addition, copy of F.I.R. No,487, dated 18-11-1983 (Exh.P.KK) and copy of F.I.R. No,492, dated 2-12-1983 (Exh.P.RR) were also tendered in evidence. 10. Dr. Khalid Jamil Akhtar, who had medically examined Muhammad Ashraf (deceased) and Muhammad Aslam (deceased) whilst alive and P.Ws. Yousaf Khan, Liaqat Ali, Munir Hussain Shah and Muhammad Anwar, and given up P.W. Javid Ahmad on 30-4-1984, from 9-45 to 10-30 p.m., appeared as P.W.7 and stated about having noted two lacerated punctured wounds on the person of Muhammad Ashraf, four lacerated punctured wounds and one lacerated wound, on the person of Zulfiqar, one lacerated wound on the person of Muhammad Aslam; two lacerated wounds, one of which was an exit wound, on Javid Ahmad P.W. (given up), one lacerated wound on Liaqat Ali P.W. Two lacerated punctured wounds on Muhammad Anwar P.W., two injuries (lacerated wounds) on Muhammad Yousaf Khan P.W., and two lacerated wounds on Muhammad Munir, one of which was an exit wound. ' The injuries on all the persons were opined to have been caused by firearm. The duration was opined to be fresh. During cross-examination, he stated that all the patients were produced before him turn by turn and they were accompanied by private persons. 11. Dr. Zaheer Anjum Sherazi (P.W.6) had performed autopsy on the dead body of Muhammad Ashraf at 12-30 p.m. On 1-5-1984. He had noted eight wounds on the body of the deceased. Four of which, i,e, 3 to 6 were opined to have resulted due to surgical intervention, while the rest were opined to have been caused by fire-arm. ' Death was opined to have occurred due to shock and haemorrhage. Probable time between death and post-mortem was opined to be 12 hours. Time between injuries and death was also opined to be the same. ' He had performed autopsy on the dead body of Zulfiqar also on 1-5-1984 at 1-30 p.m. He had noted six fire-arm injuries on his body. ' Death, according to him, had resulted due to injuries to vital organs (lung and heart), resulting in haemorrhage and shock. Probable time between injuries and death was opined to be six hours while time between death and postmortem was opined to be within 18 hours. ' The same doctor had performed autopsy on the dead body of Muhammad Aslam on 10-5-1984 at 1 p.m. He had noted three injuries on the body of the deceased.
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' Death was opined to have resulted due to head injury, leading to intracranial hemorrhage and damage to brain. Probable time between injuries and death was opined to be 8 to 10 hours while time between death and post-mortem was opined to be 12 to 24 hours. ' During cross-examination, he stated that he had not found any bullet under injuries 2 and 8, on the body of Muhammad Ashraf deceased. He expressed inability to say whether the said injuries on Muhammad Ashraf would have resulted from pellet or bullet. However, he ruled out the possibility of infliction of those injuries by any weapon other than fire-arm. He expressed inability to say as to through which injury or injuries, the bullet had entered the stomach of Muhammad Ashraf. In answer to another question, he stated that injuries to Muhammad Zulfiqar deceased would have been caused from near distance. He did not rule out the possibility of all the six injuries on the body of Zulfiqar having been the result of one shot. According to him, charring would occur from a maximum distance of four feet while blackening can occur up to the range of ten feet. 12. Dr. Rasheed Hussain Sherazi (P.W.21) stated about condition, nature of injuries and their impact on Muhammad Aslam deceased while admitted to the General Hospital, before death. 13. The ocular account was deposed to by Yusuf Khan (P.W.13), Liaqat Ali (P.W.14), Munir Hussain Shah (P.W.15) and Muhammad Anwar (P.W.16). ' Yusuf Khan while repeating the facts given by him in the F.I.R. Made a significant improvement. In that he stated about Muhammad Anwar P.W. Also having suffered injuries during the occurrence. While stating motive mentioned in the F.I.R., he specifically stated that 4/5 months prior to the occurrence, Muhammad Ashraf deceased and Naeem alias Gogi had quarrelled, as a result of which a case was registered against him and Ashraf deceased from their side while a case was registered against Yousaf alias Achhi and Naeem alias Gogi on the other side. He stated that both of them could not be arrested in that case due to their absconsion. He also stated about having been shifted to Mayo Hospital and of having been medically examined prior to his making statement (Exh.P.A.) to the police at 11-30 p.m. On 30-4-1984. He gave out that as a result of the injuries his knee joint had stiffened and he was unable to walk. During cross-examination he admitted that Bashir accused had civil litigation with Ashraf deceased about the demolishing of the shops by Muhammad Bashir. According to him, Muhammad Aslam was seen by him once or twice before the incident. Although he expressed ignorance about the pendency of the case under section 307, P.P.C., between the deceased and the above-named accused for lack of memory and of the security proceedings having been taken between them and Muhammad Ashraf deceased but he was found to have given these facts in the statement under section 161, Cr.P.C. He admitted that he was named as an accused in a case registered at the instance of one Muhammad Afzal under section 307, P.P.C. On 10-1-1986 and of having been allowed bail in that case by the Additional Sessions Judge, on account of a compromise having been effected with said Muhammad Afzal. He gave out that he was a witness against Nacem alias Gogi in case under section 307, P.P.C. Alongwith Muhammad Anwar, which was lodged by Abbas Ali brother of Shafarish Ali P.W. He stated that he had seen the accused persons after he was hit and fallen on the ground. He clarified that he had failed to mention the name of Muhammad Anwar P.W. Having suffered injuries in the occurrence, on account of pain due to injuries. 14. Liaqat Ali (P.W.14) corroborated the statement made by P.W.13 in so far as it pertained to the actual occurrence. During cross-examination, he adlnitted that Shafarish Ali P.W. Was his brother, while Ashraf deceased was his maternal-uncle's son. According to him, the accused were standing in a line when they had fired at them. He stated that the accused were at a distance of 4 feet when he was hit by their firing. He admitted that he was married to the sister of one Muhammad Tufail, who was married to the sister of Ashraf deceased. He gave out that Anwar P.W. Was his maternal- uncle's son. He admitted that Ashraf deceased had filed a suit against Muhammad Bashir and L.M.C. He conceded that application for issuance of injunction moved by Ashraf deceased in that
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suit had been dismissed by the Civil Judge. Aslam according to him, was known to him since over a month before the occurrence. 15. Munir Hussain Shah (P.W.15) also corroborated the statement made by P.W.13. He stated that two criminal cases were pending between the parties, in one of them Naeem alias. Gogi (appellant) had accused Ashraf deceased as culprit while in the other Naeem alias Gogi has been named as accused. He also claimed having witnessed the collection of blood-stained earth from the spot and collection of six empties of revolver (P.5/1-6), seven empties of revolver (P.6/17), nine empties of sten-gun (P.7/1-9) and six empties of .7 mm (P.8/1-6) and of having attested the relevant memos in that regard. During cross-examination, he stated that he had been moving about in the hospital after medical examination and had seen the Investigating Officer present there. He proclaimed to be an employee of Post and Telegraph Department. He stated that while in Lahore he used to go and sit at the Dera of Muhammad Ashraf deceased off and on. He stated that he had seen the accused for the first time when he had fallen down after receiving injuries. According to him, the culprits were not standing in the line, but were scattered at the time of firing. 16. Muhammad Anwar (P.W.16) also corroborated the statement made by P.W.13. He stated that he had got a case registered against the father of Naeem alias Gogi, Ayub, Yousaf alias Achhi and Pervaiz, brother of Moulvi Zafar under section 302, P.P.C. He expressed ignorance about the case having been cancelled. He was not found to have stated in his statement before the police about Zulfiqar deceased-accused having suffered injuries during the occurrence. In answer to a question, he stated, 'I saw the accused persons and their companions for the first time when I was hit'. He admitted that he and Ashraf deceased had instituted a suit against Bashir accused and Lahore Municipal Corporation, for an injunction restraining them from demolishing their shops. He conceded that they had withdrawn that suit and had filed a fresh suit. He did not deny the investigation of the case having been carried out apart from the local police by Mr. Humayun Raza, A.S.P. And Ch. Sultan, S.P. ' All the eye-witnesses denied the suggestion that Aslam and Ashraf had died during the encounter which took place between Zulfiqar deceased in this case and Yousaf Khan (who is reported to have died after escape in this case in some police encounter) and that they had also suffered injuries during the same encounter. They denied to be members of the gang alongwith Ashraf deceased and Aslam deceased, purpose and purport of which was to collect Goonda tax. They did not deny of Muhammad Afzal having got a case registered against them but the date of registration of the case was given as 10-1-1986, i,e, one and half years after the present occurrence. 17. Muhammad Aslam, A.S.I., who had recorded the statement (Exh.P.A.) of Yousaf Khan in the Mayo Hospital, after obtaining opinion from the doctor about his fitness to make the statement, had visited the spot and collected bloodstained earth as well as empties of different types of weapons, had taken into possession blood-stained clothes of the persons who were medically examined by the doctor after occurrence on 30-4-1984, including the three deceased, had prepared inquest reports and despatched the dead bodies for post-mortem examination appeared as P.W.17 and deposed those facts. He also stated having applied to the Ilaqa Magistrate for warrants of arrest of Naeem alias Gogi, Naseem alias Naji, Yousaf alias Achhi; Farooq alias Kala, Moulvi Zafar Butt and Khalid, vide application (Exh.P.CC). He admitted of having instructed Inam Ali Shah, Draftsman (P.W.3) for preparing the site plan, but admitted that he had not recorded any note on the site plans (Exhs.P.C. And P.C/1) prepared by Inam Ali Shah. He claimed to have reached Mayo Hospital while the doctor was still examining the injured persons of this case. He admitted that he had scored off F.I.R. No, written on the inquest report (Exh.P.Z.), after writing the same on that. He conceded that Bashir, Zubair and Aslam, on appearance before him, had pleaded innocence in their first version.
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18. Safarish Ali, who had produced blood-stained clothes of P.Ws. Yousaf, Anwar and Liaqat before the Investigating Officer, appeared as P.W.18. During cross-examination, he stated that he had not noticed police during his presence in the hospital. He gave the time of his departure from the hospital as 12-30 p.m. Or 1 a.m. 19. Rehmatullah Niazi, Inspector/S.H.O. (P.W.19) stated that Naeem alias Gogi had led to his house on 21-6-1984 during interrogation and had got recovered sten-gun (P.1) along with magazine from a brief-case lying there. The brief-case, according to him, was opened by Gogi by operating numbers. He gave out that he had submitted the report under section 173, Cr.P.C. On 13-9-1984, wherein he had made prayer for discharge of Muhammad Aslam, Muhammad Bashir, Zubair Iqbal and Khalid Bashir. According to him, the Magistrate had not passed the order of discharge. He also stated that Yousaf (died before the trial), Naseem, Naeem and Farooq were challenged vide the same report. During cross-examination, he stated that Muhammad Bashir, Zubair Iqbal, Khalid Bashir and Muhammad Aslam had pleaded innocence before him and had produced witnesses in defence. He gave out that Hymayun Raza, A.S.P. And Ch. Sultan, S.P. Had also investigated the case and reached the same conclusion about four accused whom he had declared innocent. During cross-examination he conceded that there were no notes by any of the Investigating Officers on the site plans (Exhs.P.C. And P.C./1). After examining the police file, he stated that carbine had been recovered from Zafar Butt. He stated that revolver was recovered from Farooq alias Kala. According to him, Zafar, Nasim, Farooq and Yousaf were present when Naeem alias Gogi accused had offered to lead to the recovery of sten-gun after interrogation. He stated that he had taken two of the accused from Police Station Nawankot and the other three were sent for from Police Station Old Anarkali. According to him, Moulvi Zafar had also pleaded having not participated in the occurrence, but he (Moulvi Zafar) had not told him that he was under treatment of Prof. Ehsanullah. He denied the suggestion of having planted the stcn-gun. 20. Mukhtar Hussain, A.S.I. (P.W.11) stated that he had effected the arrest of Naeem and Yousaf on 15-6-1984 after having got them transferred from police lock-up of Police Station Sadar Sheikhupura, to Lahore on 14-6-1984. According to him, Yousaf had led to the recovery of sten-gun (P.2) on 21-6-1984 while Zafar had led to the recovery of carbine (P.3) on the same day. He denied the suggestion of having planted the recoveries. 21. Ismail (P.W.10), claimed to have witnessed the recovery of sten-gun (P.1) at the instance of Naeem, recovery of sten-gun (P.2) at the instance of Yousaf and recovery of carbine (P.3) alongwith four cartridges at the instance of Zafar Butt. During cross-examination, he stated that only three persons were in the custody of the police when he was summoned to join investigation while sitting at a hotel. He stated that Farooq was not one of them. He denied the suggestion that he was ordinarily resident of Faisalabad District. He failed to give the number of the house in which he was residing in Lahore. He denied that he was an associate of Yousaf son of Karamulla in dealing of illicit opium. 22. Muhammad Ashraf, Constable, who had carried the parcels containing empties and blood- stained earth to the offices of Ballistic Expert and the Chemical Examiner appeared as P.W.5 and deposed those facts. While Abdur Razzaq, who had taken the parcels pertaining to the weapons of offence appeared as P.W.9 and deposed about the deposit of the weapons in the office of the Ballistic Expert. 23. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Naeem alias Gogi and Moulvi Zafar Iqbal denied of having led to the recovery of weapons of offence. 24. The respondents in the appeal filed by the State also denied the prosecution case as a whole and pleaded innocence. Khalid and Zubair produced some certificates and testimonials in proof of their being students. Zafar Iqbal appellant produced in defence Tauseef Raza, Dispenser (D.W.1)
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and Syed Zulfiqar Ali, Junior Clerk Services Hospital, Lahore as D.W.2, to prove that he was admitted in the hospital on the day of occurrence. 25. Learned counsel for the appellants after having taken us through the evidence, contended that the F.I.R. Was not recorded as claimed by the prosecution and instead appeared to have been recorded after consultations and deliberations, that the ocular account in this case has been furnished by interested and inimical witnesses and so convictions on capital charges cannot be maintained without strong corroboration, which is not coming forth in this case, particularly, in view of the fact that the evidence of recoveries of empties from the spot as well as recoveries of weapons of offence, had been deposed to by unreliable witnesses. In that, learned counsel laid stress that the witnesses examined by the prosecution on both the counts, i,e, recoveries from the spot and recoveries from the accused, had made widely discrepant statements. Learned counsel particularly pointed out that Munir Hussain Shah P.W. Being injured could not have been at the spot to witness the recoveries. Learned counsel contended that the evidence of absconsion also cannot lend corroboration, in view of the fact that all of them (accused) had been arrested prior to the date fixed for their appearance in the proclamation. Learned counsel contended that the observations of the trial Judge that failure of Zafar Iqbal accused to prove his alibi recoiled on the plea of innocence was absolutely an erroneous view. 26. Learned counsel for the State/complainant on the other hand contended that the prosecution has succeeded in proving the case against the appellants as well as the acquitted accused. Both of them particularly stressed that all the eyewitnesses being injured, their presence at the spot cannot be doubted. According to them, the ocular account stands corroborated by evidence of recoveries effected from some…
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