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Petitioner: MUHAMMAD ATTIQUE BUTT and another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Mian Muhammad Najum-uz-Zaman, Kazim Ali Malik Title: MUHAMMAD ATTIQUE BUTT and another vs THE STATE Case No.: Criminal Appeal No,382 of 2007 Date of Judgment:2008-09-18 Reported As: 2009 YLR 507 Result: Order accordingly
JUDGMENT
JUDGMENT ' KAZIM ALI MALIK, J.---Muhammad Ateeq Butt, Muhammad Shahid Butt and Zeeshan Butt, appellants stand convicted and sentenced by the Anti-Terrorism Court No,1, Lahore in a case F.I.R. No,755 dated 14-8-2006 of Police Station Kot Lakhpat, Lahore on the charge of murder, attempted murder and terrorism vide separate judgments dated 7-3-2007 and 12-7-2007. Muhammad Ateeq Butt and Muhammad Shahid Butt, appellants faced joint trial at one time. Muhammad Ateeq Butt was convicted for having committed murder of Abaid Ullah under section 302/ 34, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997 (hereinafter to be called A.T.A.. Of 1997) and was sentenced to imprisonment for life. He was also directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased and fine Rs,10,000. Muhammad Shahid Butt was convicted under section 324, P.P.C. Read with section 7(c) of A.T.A. Of 1997 for causing injuries to Naeem Ullah P.W. And sentenced to imprisonment for 10 years and fine of Rs,10,000. Both of them were also convicted under section 7(h) of the A.T.A. Of 1997 and sentenced to five years each and fine of Rs,10,000 each. All the sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was also given to them. They challenged their conviction and sentence on facts and law through Criminal Appeal No, 382 of 2007 whereas Zeeshan Butt was tried separately on the aforesaid charge. At the conclusion of the trial he was convicted under section 7(c) of the A.T.A. Of 1997 for having caused fire-shot injuries to Naeem Ullah P.W. And Shahzad P.W. And sentenced to imprisonment for 15 years and fine of Rs,50,000. He was also convicted under section 324, P.P.C. And sentenced to imprisonment for ten years. He was also convicted under section 7(h) of A.T.A. Of 1997 and sentenced to imprisonment for five years and fine of Rs,20,000. The sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was also given to him vide judgment dated 12-7-2007, now
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under challenge at his instance by means of Criminal Appeal No,1266 of 2007. We find it convenient to dispose of these interconnected matters by this single judgment. 2. The occurrence took place on 14-8-2006 at 11-30 a.m. In the bazaar of Mohallah Rehmat Pur, Bostan Colony, Lahore 2 1/2 kilometers away from Police Station Kot Lakhpat, Lahore. Muhammad Shahzad Taj was the first informant who made written complaint, Exh.P.M. Before Munir Ahmad, Sub-Inspector the same day at 12-555 p.m. In the Emergency Ward, General Hospital, Lahore on the basis of which formal F.I.R. Exh.PM/1 was drawn up. Abaid Ullah (24) a brother of the complainant suffered death in this happening. Naeem Ullah, a brother of the deceased and a few passers by; namely, Shehzad, Ali Raza, Rehman, Shahid and Zahid sustained injuries out of whom only Naeem and Shehzad supported the complainant's version. Ali Raza entered the witness-box as P.W.11 and stated that at relevant time he also received fire shots and that he was not aware as to who fired at him. The aforementioned Rehman, Shahid and Zahid did not enter the witness-box at trial against Ateeq Butt and Muhammad Shahid, appellants. However, at trial against Zeeshan Butt appellant Muhammad Shahid, Ali Raza and Rehman, injured witnesses made statements that they were not aware as to who fired at them on the day of occurrence at relevant time. Out of the five named accused persons, only Majid Butt did not make himself available for investigation and trial. Till date he is at large. 3. The prosecution case set up in the F.I.R., in brief, is that on 14-8-2006 Muhammad Shahzad Taj, complainant along with his brothers Abaid Ullah (deceased), Naeem Ullah (injured witness) and maternal uncle Mushtaq Ahmad (witness) was on his way to the house of his maternal cousin located in Bostan Colony near Abid Market after having paid courtesy call to his sister and when they reached in the Bazaar Chowk of Bostan Colony at about 11-30 a.m. All of a sudden Abdul Rehman Butt (acquitted accused) threw a challenge upon which Majid Butt (absconder) fired with a Mouser striking Abaid Ullah, deceased in his chest. Thereafter Ateeq Butt, appellant fired with Mouser hitting Abaid Ullah on his right lower leg. On receipt of fire shots, Abaid Ullah breathed his last at the spot. Subsequent to this Shahid Butt, appellant fired with Mouser hitting Naeem Ullah, P.W. On his right thigh followed by a fire shot by Zeeshan Butt, appellant which landed on his left knee joint. Zeeshan Butt, appellant started firing on the complainant but he remained unhurt. A few passers by/shop keepers including Shehzad and Ali Raza P.Ws. Sustained fire-arm injuries. Apprehending danger to their lives the shop keepers fled leaving their shops open. ' Motive for the occurrence as disclosed in the F.I.R. Was that Zeeshan Butt, appellant and others had made murderous assault on one Muhammad Asif Hassan Bhatti for which a case F.I.R. No,537 of 2006 had been registered at Police Station Kot Lakhpat and the complainant party of this case had helped afore mentioned Asif Hassan for his medical treatment to the annoyance of Zeeshan Butt and others. 4. On 14-8-2006 Dr. Nadeem Ahmad conducted post-mortem examination on the dead body of Abaid Ullah and found the following injuries:-- (1-A) A fire-arm wound of entry 0.8 x 0.8 c.m. On lateral aspect of left arm, 19 c.m. Below shoulder tip and 9 c.m. Above the elbow joint. (1-B) Fire-arm wound of exit 1 x 0.8 c.m. On upper part of left arm on medial side 2 c.m. Below axila 24 c.m. Above left elbow joint. (1-C) A fire-arm re-entry wound 1.08 c.m. On upper part lateral side of left chest 2 c.m. Below exillary line. (1-D) Fire-arm wound of exit 0.5 x 0.5 c.m. On middle of the back 1 c.m. To right of posterior mid line, 17 c.m. Below the nap of neck. (2-A) Fire-arm wound of entry 1 x 1 c.m. On posterior medial part of right upper leg 3 c.m. Below knee joint.
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(2-B) Fire-arm wound of exit 1 x 1 c.m. On posterior lateral aspect of right leg 2 c.m. Below the knee joint. 'On dissection, middle lobe of right lung and upper lobe of left lung were found perforated. Stomach was empty and healthy. Bladder was semi full of urine. Injuries Nos.1-A to 1-D caused severe damage to the lungs and chest cavity leading to haemorrhage and shock. All the injuries were ante-mortem. Except injuries Nos.2-A and 2-B, the other injuries proved fatal to life. Probable duration between injuries and death was within few minutes to few hours and between injuries and postmortem examination was within 24 hours. Under his report Exh.PN, the post-mortem examiner certified that Abaid Ullah suffered death by violence. 5. On 14-8-2006 Dr. Muhammad Iqbal, P.W.4 medically examined Naeem Ullah (20) and noticed the following injuries on his person: (1) Fire-arm lacerated wound 0.5 x 0.5 c.m. On right lower thigh. (2) Fire-arm lacerated wound 1 x 1 c.m. On right lower thigh. (3) Fire-arm lacerated wound 1 x 1 c.m. On middle aside of left knee. ' On X-ray fracture of right femur with displacement under injuries Nos.1 and 2 was confirmed by the radiologist. ' On the same day at 11-55 a.m. The doctor medically examined Muhammad Shehzad (22) and found fire-arm lacerated wound 1 xl c.m. On left ankle joint. The doctor also examined Ali Raza, Rehman, Shahid and Zahid, injured witnesses. Since they did not utter a single word against the appellants, it would be a futile exercise to give the details of their injuries. 6. On 14-8-2006 Basharat Ali, Inspector (P. W.19) reached General Hospital, Lahore and prepared inquest report Exh.PJ and injury statement Exh.PU about the dead body of Abaid Ullah lying in the Emergency Ward. Thereafter he dispatched the dead body to the dead house for autopsy. The investigator collected medico legal reports of the above named injured witnesses from the medical examiner and then reached the spot and prepared rough site plan Exh.P.W. He secured blood from the spot under Memo. Exh.PK. Akram and Liaqat Masih, Police Constables joined investigation and produced .30 bore licensed pistol of Naeem Ullah, P.W. (P.4) loaded with six live bullets (P.5/1-6), which they found lying at the spot immediately after the occurrence. The loaded pistol; was taken into possession by the investigator by means of memo Exh.PC. On 10-9-2006 Shahid Butt and Ateeq Butt, appellants were arrested. On 16-9-2006 Abdul Rehman, acquitted accused was apprehended. On 24-9-2006 Ateeq Butt, appellant led to the recovery of pistol .30 bore (P.6) which was seized under memo. Exh.PL. After completion of necessary investigation, Abdul Rehman, Ateeq Butt and Shahid Butt were sent up for trial. We have already observed that Majid Butt and Zeeshan Butt went underground after the occurrence out of whom Zeeshan Butt, accused faced trial after his apprehension. 7. At the commencement of trial, Abdul Rehman, Muhammad Ateeq and Muhammad Shahid were charge sheeted under sections 148/149, P.P.C. For having formed an unlawful assembly which resulted in violence; under section 302, P.P.C. Read with section 7 A.T.A. Of 1997 for having committed the murder of Abaid Ullah in furtherance of common object of unlawful assembly; under section 324, P.P.C. Read with section 7(c), A.T.A. Of 1997 for having caused injuries to Naseem Ullah, Shehzad, Ali Raza and 4/5 unknown passers by in furtherance of common object and under section 7(h) of A.T.A. 1997 for having committed the above said offence which created sense of fear and insecurity in the locality/society. At the inception of trial against Zeeshan, appellant the learned trial Court framed the charge under sections 148/149, P.P.C; 302/149, P.P.C; sections 7(a) and 7(c) of A.T.A. Of 1997; Section 324 read with sections 149 and 337-F (iii)(vi) read with section 7 (h) of A.T.A. Of 1997. 8. The charge-sheets in the case in hand are not properly worded. Purpose of the charge is to tell the accused as precisely and concisely as possible, the nature of the offence for which he is
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charged and the A charge-sheet must convey to him with sufficient clearance and certainty as to what material prosecution intends to produce against him at trial. Although no prejudice was caused to the appellants due to defective charge sheets as admitted by the learned counsel for the appellants during the course of arguments, yet we find it appropriate to high-light the omissions/ defects/irregularities committed by the learned trial Court in framing the charge for future guidance. ' The learned trial Court framed charge under section 148 read with 149, P.P.C. For having committed the offence of rioting. Rioting is defined under section 146 which reads as under:-- "Whenever force or violence is used by an unlawful assembly, or by any member thereof in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting." It is manifest from a combined examination of sections 146/148 and 149, P.P.C. That while framing the charge under the penal provision of section 148, P.P.C. B there is no need to add section 149 ibid as section 146 itself makes liable each and every member of unlawful assembly for the offence of rioting. At the cost of repetition we may observe that under section 148, P.P.C. The common object of the unlawful assembly has been specified and, therefore, there was no occasion for the trial Court to add section 149 ibid while framing the charge of rioting. ' Section 302, P.P.C. And section 7 of the A.T.A. Of 1997 are distinct penal provisions of law and so are section 324, P.P.C. And section 7(c) of the A.T.A. Of 1997 falling under different penal enactments. Section 233, Cr.P.C. Requires that there shall be a separate charge for every distinct offence of which any person is accused. Therefore, framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence is the requirement of law. In this view of the matter, the learned trial Court should not have amalgamated offences falling under different and independent penal enactments i.e, Pakistan Penal Code, 1860 and Anti-Terrorism Act, 1997. ' The learned trial Court charge sheeted the appellants on the charge of murder and terrorism with an observation that they committed the offences in prosecution of common object of unlawful assembly, but without mentioning section 149, P.P.C. Dealing with vicarious liability of the accused persons. After coming to the conclusion on the basis of available material that the challaned accused were vicariously liable for the offences committed irrespective of their individual role, the learned trial Court was required to add section 149, P.P.C. With each distinct head of criminal liability. 9. The challaned accused persons denied the charge and claimed to be tried. Besides the post- mortem examiner, Medical Examiner, Investigator, and other formal witnesses, the prosecution got examined Muhammad Shahzad Taj, complainant, P.W.15; Naeem Ullah Taj, injured P.W.16; Mushtaq Ahmad, P.W. 17 and, Muhammad Shehzad, another injured P.W.18 who furnished ocular account of the incident. The former mentioned three witnesses also deposed about the motive. 10. When examined under section 342, Cr.P.C. The accused persons dismissed each and every piece of prosecution evidence put to them. In an answer to a question as to why this case against him, Ateeq Butt, appellant put forward his written counter version Exh.DC., in Urdu. We translate key lines of his version in English as under:-- "I am innocent. Before the occurrence the deceased quarrelled with my father over payment of price of breakfast. The deceased misbehaved my father. I forbade him. At the time of occurrence I was 14/15 years old. The doctors wrongly recorded my age as 17/18 years. Nothing incriminating was recovered from myself. I did not participate in the occurrence. The police misplaced crime empties collected from the spot in connivance with the complainant party, which resorted to firing." ' Muhammad Shahid Butt, appellant also pleaded innocence through his written defence version Exh. D.D . In Urdu, relevant portion of which is translated in English as under:--
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"I am innocent. Before the present occurrence my right leg had been fractured. I was not in a position to move during the days of occurrence. I learnt from the people later on that Abaid Ullah, deceased had quarrelled with Abdul Rehman, accused in connection with breakfast and the deceased called his brothers and assaulted Abdul Rehman, accused who was being taken away from his shop by the complainant party when firing started as a result of which two persons of the complainant party and a large number of passers by sustained injuries. I did not participate in the occurrence. I was falsely involved in this case due to relationship with the accused party. A false motive has been asserted on the advice of investigator." ' Abdul Rehman, accused put forward his counter version, Exh.DB, in Urdu, relevant lines of which are translated into English as under:-- "I am innocent. A little before the occurrence, Abaid Ullah, deceased purchased different items of breakfast from me and wanted to pay the price on cheaper rates. I refused to hand him over the sold items till full payment of price. Abaid Ullah, deceased sought the help of his brothers on cell phone who reached the spot on two vehicles and gave beating to me. They were removing me from the spot when my brother-in-law Majid reached at the spot. The complainant party started firing. Afore-mentioned Majid also returned fire in self-defence. In the cross firing, Naeem Ullah and Shehzad from the complainant side and a few shop keepers sustained injuries. My son Ateeq was not present at the spot at relevant time. A little before the first occurrence, he had reached my shop to fetch breakfast and forbade Abaid Ullah, deceased from quarrelling with me. The investigator and the complainant fabricated the motive. A licensed pistol of Naeem Ullah P.W. Which was used by him in the occurrence had been found lying at the spot." 11. A combined examination of the version and counter version would show that the date, time and place of occurrence are not in dispute. Likewise both the sides admitted during the course of investigation as well as at trial that Abaid Ullah suffered death in the occurrence while the afore mentioned injured P.Ws. Sustained injuries. Only the manner of incident is in dispute. The P.Ws. Deposed that on account of the motive set up in the F.I.R. The accused persons opened attack, killed the deceased and injured the witnesses. On the other hand the accused persons pleaded innocence by saying that there was no background of previous enmity, illwill or malice between the parties and that it was a sudden flare up which originated at the instance of Abaid Ullah, deceased who wanted to purchase different items of breakfast from the shop of Abdul Rehman, accused at cheaper rates. ' We, therefore, propose to examine, scrutinize and analyze the counter versions by placing them in juxta position in the light of evidence and attending circumstances of the case. 12. Although motive in a criminal case is not an essential ingredient of any offence, yet in the case in hand, we find it convenient to take up motive part of the incident first in order to resolve as to how the occurrence originated. ' The P.Ws. Claimed during the course of investigation as well as at trial that before the present occurrence Zeeshan Butt, appellant and others made murderous assault on Muhammad Asif son of Noor Hussain Bhatti for which a case F.I.R. No,537/2006 had been registered at Police Station Kot Lakhpat, Lahore and that the complainant party of this case helped the aforementioned Muhammad Asif in connection with his medical treatment to the annoyance of the appellants herein. Divorcing the above said alleged motive, there was no background of previous enmity or illwill or malice between both the sides. Muhammad Asif Hassan was the bone of contention as per prosecution case for whom the complainant's young brother suffered death and a few others sustained fire-arm injuries. Admittedly, Muhammad Asif afore-mentioned neither appeared before the investigation officer nor at trial to support the asserted motive. At trial against Zeeshan Butt, appellant an affidavit of Asif Hassan Exh.DB was placed on the file whereby he repudiated the
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alleged motive by stating that Shahzad Taj, complainant and his brothers were not even known to him and that they had not supported him in case F.I.R. No,537 of 2006 which ended in compromise. Asif Hassan also produced a photo static copy of his national identity card to establish his identity. When confronted with hostile version of Asif Hassan towards the asserted motive, learned counsel for the complainant and the learned Law Officer were possessed with no answer. Had the complainant and the deceased supported Asif Hassan in the above said case of attempted murder in which he suffered fire-arm injuries at the hands of Zeeshan Butt, appellant herein and for whom the complainant party allegedly lost their young brother, Asif Hassan would not have supported the appellants at trial with the contention that the complainant and the deceased were not even known to him. Excepting mere self assertion of the complainant that they supported Asif Hassan in his case of attempted murder, there is not an iota of evidence in support of the motive. Needless to add that self assertion cannot be treated as evidence. We, therefore, can safely conclude that the prosecution has completely failed to prove the asserted motive. 13. The complainant claimed that he along with Abaid Ullah (deceased), Naeem Ullah (injured witness) and Mushtaq Ahmad paid courtesy call to his sister on the day of occurrence in the morning and then left for the house of their maternal cousin located in Bostan Colony, Lahore when at 11-30 a.m. They were attacked in the Bazaar. Abaid Ullah suffered death at about 11-30 a.m. On post-mortem examination of his dead body the stomach was found empty. The medical evidence leaves no room for a doubt that by 11-30 a.m. The deceased had not eaten/taken food. Keeping in view the recognized and accepted standards of human behaviour and conduct it is not believable and acceptable that the deceased visited the house of his sister on the day of occurre-ce in the morning to pay her courtesy call and she opted not to serve breakfast or even to offer a cup of tea to him. This is a circumstance which leads this Court to conclusion that the P.Ws. Concealed something with regard to their presence at the spot at relevant time and attempted to introduce a story, which stands belicd by the medical evidence. 14. On the other hand the appellants put forward their counter version to the effect that the deceased reached the shop of Abdul Rehman, acquitted accused to fetch breakfast and indulged in quarrel over payment of purchased items and sought help of his brothers on cell phone who after reaching the spot resorted to firing. Without any fear of contradiction, we would say that the counter version is not receiving support from the evidence and the attending circumstances of the case. The accused persons who were allegedly E attacked by armed men did not receive even a scratch. Similarly there is no plausible explanation from the defence side as to how and why they were armed at relevant time. 15. Learned counsel for the appellants vehemently argued that immediately after registration of the case the defence version to the above effect had been introduced before the investigator as well as conveyed to the high ups through press. The learned counsel was of the view that the way the accused persons put forward their counter version promptly without wasting a single moment and prosecuted it vigorously before each and every forum, may be treated as evidence of their truthfulness. The mode and manner in which the accused persons introduced their counter version is sufficient to conclude that they did not lay their stance in an unadulterated manner. A combined examination of the documents adduced in defence during investigation as well as at trial would provide a basis to say that the accused were equipped with legal advice at investigation stage, otherwise they were not expected to defend their cause lawyerly before the investigator. 16. In the light of above discussion we are of the calculated view that both sides concealed and suppressed the actual mode and manner of the incident obviously with a motive to minimize their respective role in F the incident. The prosecution and the defence did not bring on record true, honest and straight forward versions before the trial Court. This state of affairs does not stand in
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the way of this Court to drew its independent inferences from the evidence and the material available on the file. 17. Presence of Naeem Ullah Taj (P.W.16), Muhammad Shehzad, (P.W.8) and Muhammad Shahzad Taj (P. W.15) on G the spot at relevant time has not been disputed. The former mentioned two P.Ws. Sustained fire-arm injuries in the incident. They deposed with one voice that Majid (absconder) fired with Mouser hitting Abaid Ullah, deceased in the chest. On postmortem examination the injury attributed to Majid, absconder proved fatal to life. The case of the absconder/principal accused is not before this Court. The P.Ws. Further deposed that Ateeq, appellant fired shot with his Mouser striking Abaid Ullah, deceased on right leg below the knee joint. The injury attributed to Ateeq, appellant did not contribute towards killing of Abaid Ullah. The learned counsel for the appellants took exception to testimonies of the eye-witnesses with the plea that they falsely implicated Ateeq Butt, appellant on account of previous enmity i.e, the motive set up in the F.I.R. However, learned counsel was left with no other option, but to admit that except the asserted motive no illwill or malice existed between the parties. We have already concluded in the preceding paragraph that the prosecution completoly failed to prove the asserted motive. Rather it was rebutted by Asif Hassan aforementioned. In this view of the matter, learned counsel for the appellants was not justified to term the eye-witnesses as inimical witnesses. 18. Learned counsel for the appellants also contended that the F.I.R. Was lodged with a considerable delay without any explanation, hence it would be presumed that the same was drawn up after consultation and due deliberation. This contention does not find support from…
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