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Petitioner: Sheikh SHAHID SHAFIQ VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Iftikhar Hussain Chaudhry, Sh. Abdul Rashid Title: Sheikh SHAHID SHAFIQ vs THE STATE Case No.: Criminal Appeal No. 249-J and Murder Reference No.606 of 2000 Date of Judgment:2003-12-15 Reported As: 2004 YLR 1891 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' ABDUR RASHID, J.-Sh. Shahid Shafique son of Sh. Muhammad Shafique caste Sheikh, resident of Satiana Road, Faisalabad (appellant) had been tried by learned Additional Sessions Judge, Sialkot in case F.I.R. Bi, 213 dated 17-7-1996 under sections 302, 324, 449/34, P.P.C. Registered at Police Station, Kotwali, Sialkot, who vide judgment dated 7-10-2000 had convicted the appellant under section 302, P.P.C. And sentenced him to death subject to confirmation by the Lahore High Court , to pay a sum of Rs.25,000 as compensation to the legal heirs of the deceased in default in the payment of which to further undergo 6 months R.I.- and also convicted him under sections 324 and 449, P.P.C. And sentenced him to 7 years' R.I. In each. Both the said sentences were ordered to run concurrently in case the death sentence was not confirmed. 2. Feeling aggrieved by the said conviction and sentence the appellant has filed this Criminal Appeal No.2494 of 2000 whereas Murder Reference No.606 of 2000 has been received for confirmation of death penalty. Both the murder reference and the Criminal Appeal are being jointly disposed of by this order. 3. Briefly stated the facts of the prosecution case as couched in the F.I.R. Exh.P.A lodged by Sh. Iftikhar Hussain complainant are that his father Sh. Altaf Hussain carried on cloth business at Gujranwala whereas after completion of his education he was residing at Sialkot. Sh. Shafique Saithi father of the 'appellant' resident of Satiana Road, Faisalabad was "Tayazad" of the complainant with whom the complainant's family had severed their bonds. Some time prior to the occurrence said Sh. Shafique Saithi came to the house of the complainant and proposed for the hand of Mst. Sumaira Altaf sister of complainant for marriage with his son Shahid Shafique (appellant) and the said proposal was scouted by the complainant's parents to which the
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appellant and his father took summer at and considered it as their insult and started extending life threats to the complainant's family. Father of the complainant then tent Sh. Muhammad Athar maternal uncle of the complainant to the appellant's father with the message that he would not agree to give the hand of Mst. Sumaira Altaf in marriage to his son (appellant) and that they should stop extending threats. On 17-7-1996 at about 7-00 a.m. Iftikhar Hussain complainant alongwith his mother Bushra Begum, his brothers Tahir Hussain, Sh. Bilal Hussain and maternal uncle Sh. Muhammad Athar were present in their house; a bell at the Outer door of their house rang. Sh Tahir Hussain had gone to open the gate and he found Sh. Shahid Shafique (appellant) alongwith his cousin Ghulam Khalil residents of Satiana Road, Faisalabad, standing there and they expressed the desire to meet the complainant's' mother and entered the house. When Mst. Bushra Bibi came out in the Veranda the appellant took out his pistol and fired at her hitting her on the back of left ear. The complainant and the P.Ws. Rushed to rescue her upon which Shahid Shafique made a second fire shot at Tahir Hussain hitting him on the right Sid of neck and his co-accused Ghulam Khalil then took out his pistol and fired at Sh. Athar maternal uncle of the complainant hitting him in front of his belly and right flank. Thereafter the appellant and his co-accused made good their escape raising Lalkaras. Mst. Bushra Begum died at the spot. The accused had committed the occurrence because of their grouse against refusal of giving the hand of Mst. Sumaira Altaf in marriage with the appellant. Tahir Hussain and Sh. Akhtar Hussain were removed to the hospital by Sh. Bilal Hussain, P.W., while complainant remained present with the dead body at his house. 4. Javaid Aslam, S.-I., S.H.O., Police Station, Kotwali upon receiving an information about the occurrence reached the house of the complainant at about 8-30 a.m. The complainant got recorded his statement Exh.P.A. Which was read over to him and he signed the same in token of its correctness. The complainant Exh. P.A. Was sent to the Police Station, Kotwali through Shahbaz Ahmad, Constable No.278 for registration of the case and Zia Ullah; Head Constable recorded formal F.I.R.. Exh.P.A./1 on the basis of the same. 5. Javaid Aslant, S.-I. Prepared the inquest report Exh.P.F. And injury statement Exh.P.G. Of Mst. Bushra Begum and entrusted the dead body to Muhammad Arif and Muhammad Afzal, Constables for post-mortem examination. He carried out spot inspection. He took . Into possession blood- stained earth vide memo. Exh.P.M. He recorded the statement of the injured P. Ws. In the hospital. 6. On 17-7-1996 Lady Dr. Rahat Firdaus Medical Officer performed postmortem examination on the dead body of Mst. Bushra Begum wife of Sh. Altaf aged 55 years and she found the following injuries on her person:- (1) Black coloured circular 1 c.m x 1 c.m. Wound present behind the right ear. ' On dissection it was observed that injury No.1 was the entrance wound. The bullet after injuring facia, had fractured the mastroid process of the right side and injured the carotid vessels and trachea and had been lodged in the soft tissue below the mandible in front of neck. There was no exit wound. The bullet was recovered from the soft tissue of the neck. All other organs were found to be healthy. ' In the opinion of the Medical Officer the injury No.1 which had been caused by fire-arm was ante mortem. It had caused cut in the treachea and damaged the great vessels of the neck leading to haemorrhage and shock resulting in death. It was sufficient to cause death in the ordinary course of nature. The death had occurred instantaneously as a result of injury No.1 and the time between death and post-mortem examination was about 6 to 10 hours. 7. After the post-mortem examination the last-worn clothes of the deceased, a sealed bottle containing bullet and other police papers were given to the police. Exh-.P.E. Is the correct carbon copy of the post-mortem examination and Exh.P.E./1 is the pictorial ,diagram depicting location of the injury which are in the handwriting of the Medical Officer and bear his signatures.
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8. On 17-7-1996 at 8-00 a.m. Dr. Maqsood Siddique Chaudhry, Medical Officer, medically examined Sh. Tahir Hussain P.W. Vide Exh.P.J. And found one lacerated circular wound 1 c.m. In diameter on the right side of neck. The wound had burnt and torn margins. On the same day the Medical Officer, Dr. Maqsood Sadiq Chaudhry also examined Athar Hussain, P.W. Vide Medico-legal Report, Exh.P.K. And found the following injuries on his person:-- (1) A lacerated circular wound 3/4 c.m. In diameter in the apigaster area of the abdomen. Margins of the wound were torn and burnt. (2) A lacerated circular wound 3/4 c.m. In diameter and depth not probed on the right lateral borders of abdomen in upper part. Margins of the wound were torn and burnt. 9. On 19-7-1996 Javed Aslam, S.-I./ S.H.O. Directed Masood Ahmad Bhatti, Draftsman to prepare the scaled site-plan of the place of occurrence who on the pointation of the P.Ws. Prepared site-plan Exh.P.H. And its copy Exh.P.H./1. The Sub-Inspector/S.H.O. Gave his notes in red ink and signed the same. 10. On 27-7-1996 Javed Aslam, S.-I., S.H.O. Arrested Ghulam Khalil the co-accused. The appellant had absconded and could not be arrested. The warrant of his arrest Exh.P.N. Were obtained which were marked to Liaqat Ali, Constable for execution on 1-8-1996. The proclamation Exh.P.O. Was issued by the Illaqa Magistrate which was marked to Liaqat Ali, Constable for execution 6-8-1996. The appellant was got declared P.O. And challan against him was submitted under section 512, Cr.P.C. On 4-9-1996. 11. On 23-8-1998 on spy information Muhammad Faiz, A.S.-I. Of Police Station, Saddar Sialkot arrested the appellant from Katchery Road near Railway-gate and sent him up for trial. 12. The appellant had been charged under sections 302, 324/34 and section 449, P.P.C. Which was read over and explained in the language which he understood and he pleaded not guilty and claimed to be tried. 13. The prosecution produced Sh. Iftikhar Hussain complainant P.W.1, Sh. Tahir Hussain (eye- witness), P.W.2, Sh. Muhammad Athar (eye-witness), P.W.3, Muhammad Afzal P.W.4, Muhammad Iqbal, P.W.5, Shahbaz Javaid P.W.6, Dr. Rahit Firdaus P.W.7, Zia Ullah P.W.8, Muhammad Arshad, A.S.-I., P.W.9, Sharif Masih P.W.10, Liaqat Ali, P.W.11, Masood Ahmad Bhatti, P.W.12, Rana Ehsan Elahi P.W.13, Muhammad Faiz, A.S.-I., P.W.14, Liaqat Ali P.W.15 and Javaid Aslam S.-I., P.W.16. In support of its case. The learned A.D.A. Gave up the remaining P.Ws. And tendered in evidence report of Chemical Examiner Exh.P.Q., report of Serologist Exh.P.R. And that of Forensic Science Laboratory Exh.P.S. And closed the prosecution case. 14. The statement of the appellant under section 342, Cr.P.C. Was recorded and all the incriminating prosecution evidence was put to him which he refuted and stated that the complainant party was closely related to him. He had developed affection with Sumaira Altaf daughter of Sh. Altaf and entered into a love marriage without the blessing of her parents to, much of their annoyance. The complainant party" had got a sum of Rs.8,00,000 on loan for business which they neither returned in principal nor paid its profit and on his demand from the complainant party for payment of the said amount it, turned inimical; that he had a dispute with the complainant party on the said issue and they had promised to pay Rs.5,00,000 to him and is deputed Ghulam Khalil convict co- accused lo collect this amount from the complainant party at their house. In the meantime the complainant party had hatched a conspiracy to falsely implicate him and Ghulam Khalil ill a robbery case. On entering into their house the complainant party wantca to overpower Ghulam Khalil with pistol A fight ensued between them in which they sustained bullet injuries; that the complainant party had only sum noned Ghulam Khalil through him on the pretext of the aforesaid payment. He was at Rawalpindi on the day and time of occurrence. The complainant party falsely implicated, him and got --him declared. P.O. By fabricating evidence. He surrendered before the
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police on coming to know about his false implication. The defence version furnished him. Before Faiz Ahmad, A.S.-I., P. W at the time of his arrest was an integral part of his statement in defence. He also submitted a written statement Exh.D.A., which was in his handwriting and bore his signature ; which he also placed on record to be read as integral part of his Jefence version. Hi; opted to produce defence evidence and then also opted to appear on oath as his witness= under section 340(2), Cr.P.C. In disproof of the prosecution allegations. He. Produced Arshad Mehmood Asim D.W.l, Muhammad Shafique D.W.2, Munawar Hussain D.W.3, Naseer Haider D.W.4, Kamran Zafar D.W.5, Muhammad Faiz A.S.-I., D.W.6 and himself appeared as D.W.7. 15. Upon conclusion of the trial the appellant had been convicted and sentenced as mentioned above. Feeling aggrieved by which he has filed this appeal. 16. It has been mainly argued on behalf of the appellant that he had given loan of Rs.5,00,000 to Sh. Altaf Hussain father of the complainant in the year 1991 regarding which an agreement Exh.D.B. Was recorded and that subsequently he had given in the year 1995 another loan of Rs.3,00,000 to Sh. Iftikhar Hussain complainant regarding which receipt Exh.P.C. Was executed and .Both the said documents have been validly proved on the file and that the appellant had developed affection for Mst. Sumaira Altaf and had contracted love marriage with her against the wishes of her parents which annoyed the complainant party and that when the appellant demanded the return of his loan amount from the coirr lainant party then to deprive tne appellant Jf his loan amount and also to sever his relationship with Mst. Sumaira Altaf the complainant party invited the appellant to visit their house on 17-7-1996 to receive the payment of Rs.5,00,000 and that the appellant had sent his cousin and trusted friend Ghulam Khalil to receive the sak. Amount and there ccor ling to the planned conspiracy the zom A tinant party took out pistol and tried to o 'erpower him to involve him in a rabbcry case and that Ghulam Khalil had resisted their plan and in the scuffle three fire shots had been fired accidentally hitting Mst. Bushra, Tahir Hussain and Athar Hussain and thereafter' the said Ghulam Khalil escaped from the complainant's house and that the appellant had been falsely implicated in the case on account of the complainant party's animus against the appellant for his secret love marriage with Sumaira Altaf and as well as his demand for return of the loan amount. It has been argued that the appellant had produced reliable evidence to support the factum that he had contracted marriage with Sumaira Altaf who had been living with him as his wife at Faisalabad and that the prosecution version about the refusal of marriage proposal of Sumaira Altaf with the appellant being motive for the occurrence was unfounded. It has also been argued that the appellant soon after his arrest had consistently' put forth his defence version before every competent authority and that the P.Ws. Are related inter se and as well as with the deceased and are inimical to the appellant and that no independent person from the area has been produced in support of the prosecution case. It is further argued that at the time of the alleged occurrence the appellant was at Rawalpindi with his uncle Sh. Shafique, D.W.4, and he has been implicated in his case on account of malice and enmity. 17. The appellant has produced defence evidence in this case and himself appeared as D.W.7, on oath in disproof of the prosecution allegations and took up the plea that he was not present at the place of occurrence and was present at Rawalpindi and that the occurrence had resulted during the scuffle between Ghulam Khalil convict co-accused and the injured P.Ws. When the former had gone to the house of the complainant party on his bidding to receive part of the loan amount. He stated that after the occurrence he came to know that Mst. Bushra deceased, her brother named Athar Hussain and her son Tahir Hussain had received injuries. The husband of Mst. Bushra Begum namely Sh. Altaf is the real uncle of his father. Prior to the occurrence he had good relations with the complainant party. He had lent a sum of Rs.8,00,000 on loan to Sh. Altaf and on his demand for return of the loan amount the complainant developed enmity with him. Receipt Exh.D.C. Was got recorded by Iftikhar Hussain son of Sh. Altaf Hussain and the latter also executed lqrarnama Exh.D.B.
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In his favour. He due to good relations with the complainant party used to visit their house and during that period he developed love with Sumaria Altaf daughter of Sh. Altaf. On 1-5-1993 he performed 'Shari Nikah' with Mst. Sumaira which was not got registered and after nikah he alongwith Mst. Sumaira resided in Faisalabad from December 1994 to May, 1995. The parents of Mst. Sumaira took ill of her nikah with him and got annoyed. Mst. Sumaira also obtained N. I . C . No.244666-7584-2. Showing herself to be his wife and he produced its copy as Mark-I. This N.I.C. Was issued from Faisalabad. He further stated that Ghulam Khalil the convict accused is the son of his real uncle and prior to the occurrence he used to live at Rawalpindi with his maternal uncle Sh. Shafique. About 2-1/2 months prior to the occurrence in the presence of Arshad Mahmood, D.W., Sh. Altaf promised to pay loan amount to him in two months. On 16-7-1996, he went to the house of Shafique D.W. Alongwith Ghulam Khalil and he told Ghulam Khalil to go to the house of his parent- in-law and get whatever amount they gave. Ghulam Khalil on the same day at about 7-00 p.m. Left for Sialkot. On 17-7-1996 Ghulam Khalil returned to Rawalpindi and met him at about 8-00 p.m. And informed him that when he went to the house of Sh. Altaf Hussain, Athar and Tahir met him at the gate of the house and after shaking hands took him inside the house and when he reached the veranda, Mst. Bushra Begum, Tahir and Athar tried to overpower him and they were armed with pistols. Ghulam Khalil further told him that he tried to snatch the pistol from Athar and during the said struggle the pistol went off and all the said three person namely Mst. Bushra Begum, Athar and Tahir received injuries and thereafter he having rescued himself from them succeeded in escaping from the spot. He further stated that he had no knowledge that he had been got declared as P.O. In the present case and that he came to know in June, 1998 through Naseer Haider D.W. That the police intended to arrest him in the instant case. He then himself surrendered before the police of Police Station, Kotwali in August, 1998. During investigation he got recorded his defence version before Muhammad Faiz A.S.-I. And Sabir Hussain Chatha, S.H.O. 18. Arshad Mehmood D.W.1 narrated about the appellant having married Mst. Sumaira Altaf on 1-5- 1993 and then he also witnessed Iqrarnama Exh.D.B. Allegedly executed by Sh. Altaf Hussain at Faisalabad on 7-11-1991 for the loan amount of Rs.5,00,000 in favour of the appellant and he alp witnessed the receipt for loan amount of Rs.3,00,000 allegedly executed by Iftikhar Hussain P.W. On 10-1-1995. He also narrated about the appellants going to the house of Mst. Bushra Begum 2-1/2 months prior to the occurrence to make demand for return of the loan amount to which the deceased responded that she was not in a position to pay the amount. 19. Muhammad Shafique who is real maternal uncle of the appellant while appearing as D.W.2 stated that the appellant had contracted love marriage with Mst. Sumaira against the wishes of her parents which annoyed them and that the father of Mst. Sumaira had borrowed Rs.8,00,000 from the appellant for business and the said amount was not returned to the appellant which was a cause of rift between the appellant and the parents of Mst. Sumaira. Ghulam Khalil the convict co-accused, a cousin of the appellant, was his worker. On 16;7-1996 he met the appellant at Rawalpindi where the latter had been doing business for the last two years prior to 16-6-1996 and the appellant told Ghulam Khalil to contact Sh. Altaf at Sialkot and collect some amount from him who then left for Sialkot and then returned to Rawalpindi on the next day at about 8-00 p.m. And intimated to the appellant in his presence what had transpired at the house of the complainant party. 20. Munawar Hussain while appearing as D.W.3 stated that the appellant alongwith his wife Mst. Sumaira had resided in Fatehabad in Peoples Colony, Faisalabad for about 5/6 months and they were his neighbours and thereafter the appellant left with his wife for Lahore. 21. Naseer Haider while appearing as D.W.4 stated that on 17-7-1996 he went to the house of Sh. Altaf Hussain to give him the message and there he learnt that some dacoity had taken place and he had seen Mst. Bushra Begum; Athar and the brother of Bushra Begum having scuffle with
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Ghulam Khalil who was armed with a pistol whereas Mst. Bushra Begum and her brother and son were empty-handed. During the scuffle the fires went off and the said three persons got injured. The occurrence was witnessed by 15/20' persons from the vicinity. Ghulam Khalil thereafter ran away. 22. Kamran Zafar, a cousin as well as brother-in-law of the appellant, while appearing as. P.W.5 witnessed the Exh.D.C. a receipt of a sum of Rs.3,00,000 allegedly executed by Sh. Iftikhar Hussain and then he also stated that on 16-6-1996 Ghulam Khalil convict co-acused came to Rawalpindi at the house of Shafique D.W. And met the appellant who told him to go to Sialkot to receive his money from Sh. Altaf and on 17-7-1996 said Ghulam Khalil returned to Rawalpindi and met the appellant at 8-00 p.m. And informed that Sheikh Altaf Hussain instead of making the payment had whipped out pistols at him and due to the scuffle the pistol went off and the fire shots had hit Mst. Bushra Begum, her brother Sh. Athar and son Sh. Tahir Hussain. Ghulam Khalil after narrating about the incident left the house and that on 17-7-1996 the appellant was present at Rawalpindi. 23. Muhammad Faiz, A.S.-I. While appearing as D.W. 6 produced on the file case Diary No.22 dated 29-8-1998 and case Diary No.23 dated 30-8-1998 having recorded and signed by Sabir Hussain Chatha, S.-I./S.H.O., Police Station, Kotwali. 24. From the defence evidence of D.W.1 to D.W. 6 statement on oath of the appellant as D.W.7, statement under section 342, Cr.P.C. Alongwith written statement Exh.D.A. Of the appellant and his first version recorded by Muhammad Faiz, A.S.-I., the defence version for discussion and analysis can be divide I Lit the following parts:-- (1) Giving of loan of Rs.,00,0C9 by the appellant to Sh. Altaf 1;kiss- in fathe- of Sumaira Altaf o 7-11- 199! Vide Exh.D.B. a,.,1 giving of loan of Rs.3,00 000 by the appellant to Sh. Iftikhar Hussain brother of Sumaira on 10-1-1995, vide Exh.D.C. (2) The love marriage of the appellant with Sumaira Altaf and their living as husband and wife. (3) Demand by the appellant of his loan amount from the complainant party. (4) Conspiracy hatched by the complainant side against the appellant to get rid of the loan amount and also to sever his ties with Sumaira Altaf. (5) Call by the complainant side to the appellant for part payment of the loan amount; the appellant's deputing Ghulam Khalil, his cousin, to go to Sialkot on 17-7-1996 to receive the part payment. (6) Return of Ghulam Khalil to Rawalpindi at the house of Shafique maternal uncle of the appellant and narration of the event that took place at the house of Sh. Altaf Hussain at Sialkot. (7) Conduct of the appellant after the occurrence. 25. The appellant claims to have given a loan amount of Rs.5,00,000 to Sh. Altaf Hussain on 7-11- 1991 at Faisalabad vide Exh.D.B. Which was allegedly witnessed by Arshad Mehmood Asim D.W.1 and one Azhar Ali. He also claims to have given a loan amc.Int of Rs.3,00,000 to Sh. Iftikhar Huse complainant, brother of Sumaira vidt on 10-1-1995 which was alh i.e 7 witnessed by Arshad Mehmood Asim and Kamran Zafar D.W.5. Thus in all the appellant gave Rs.8,00,000 to the family of Sh. Altaf Hussain as loan for business in the year 1991 and 1995 and at that time the said amount was considerably huge in value. The appellant had not produced any material on the record to show that he had the said amount with him or to show his financial capability to loan the said amount. Arshad Mehmood Asim D.W.1 stated in his cross-examination that the appellant had his independent business apart from his father and that he had a rented shop in cloth market Faisalabad and that the appellant had started his independent business 2/3 years prior to the marriage of his sister which he had attended in the year 1991. Only a person having huge business could lend the said amount as loan. The appellant was neither an income-tax assessee or payee and no proof to that effect has been brought on the file. D.W.1 further stated that the appellant hired a house consisting of 2/3 rooms in Peoples Colony, Faisalabad where he lived with his wife
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Mst. Sumaira and thereafter he shifted to Lahore and it is also in the evidence that 2 years prior to the occurrence the appellant shifted his residence to Rawalpindi and resided with his uncle Shafique D.W.2. The appellant had no shop or office and he simply used to purchase cloth and sell to retailers. If the appella-it had a business of the volume at Faisalabad which enabled him to dole out Rs.8,00,00' to Sh. Altaf Hussain then it was unlikely that he would be living in a house consisting of 2/3 rooms in a Mohallah and then would be giving up his business at Faisalabad and he would shift to Lahore and thereafter would shift to Rawalpindi and then put himself at the mercy of his maternal uncle. Sh. Altaf Hussain had been living abroad for a number of years and it has been admitted by Naseer Haider D.W.4 that he had been in Kuwait and his financial position was very strong, thus firstly, the appellant had no financial position to dole out Rs.8,00,000 as loan to Sh. Altaf Hussain and secondly, there was no need for the latter to receive any loan amount from the appellant. 26. The appellant allegedly gave Rs.5,00,000 to Sh. Altaf in the year 1991 vide Exh.D.B. And did not receive any amount in principal or in profit from him. It is unlikely that…
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