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Petitioner: SAJJAD HUSSAIN SHAH and another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sardar Muhammad Sarfraz Dogar, Gulbaz Khan Title: SAJJAD HUSSAIN SHAH and another vs THE STATE Case No.:Criminal Appeal No, 1378, Murder Reference No, 276 of 1980 and Revision
JUDGMENT
Reported As: 1984 MLD 1520 Result: Death sentence not confirmed Judgment JUDGMENT ' SARDAR MUHAMMAD DOG AR, J.--Sajjad Hussain Shah (32) and Mulazim Hussain Shah (40) sons of Zulfiqar Ali Shah, were tried for the murder of Ghulam Shabbir and for murderous assault on Mst. Zubeda, by Sessions Judge, Jhang. Sajjad Hussain Shah has been held guilty for having murdered Ghulam Shabbir and Mulazim Hussain Shah has been held guilty for having launched a murderous assault on Mst. Zubeda. They have been convicted under sections 302 and 307, P.P.0 respectively, Sajjad Hussain Shah has been sentenced to death and to pay a fine of Rs,2,000 in default where of to undergo six months' R.I. Half of the fine on realization has been directed to be paid as compensation to the heirs of the deceased. Mulazim Hussain Shah has been sentenced to undergo two years' W.I. and a fine of Rs,1,000 in default to suffer six months' R.I. The judgment is dated 6-12- 1980. The learned Sessions Judge has made reference for confirmation of death sentence of Sajjad Hussain Shah. The convicts have filed appeal. Sakhi Shah, complainant, has filed Criminal Revision No,152 of 1981, praying for enhancement of sentence of fine imposed on Sajjad Hussain Shah and for awarding adequate compensation. Enhancement of sentence of Mulazim Hussain Shah to that of life imprisonment has also been prayed for. As all the matters arise from the one judgment, they are being disposed of by one judgment. 2. Sakhi Shah, complainant, was sitting in the house of Muntazir Mehdi (P.W.7) on 3-10-1979 along with Ghulam Shabbir deceased. Mst. Zubeda, wife of Muntazir Shah was also present. At about 11 a.m,both the appellants, brothers of Mst. Zubeda, entered the house. Soon thereafter, they asked Mst. Zubeda to accompany them to their house. Mst. Zubeda and Ghulam Shabbir did not agree and turned down the demand. Hearing noise, Abdul Majid P.W.10, Akbar Shah P.W.11 and Sarfraz
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given up (P.W.) entered the Haveli. Both the appellants proclaimed that they will not be spared alive. Whereafter, Sajjad Hussain brought out .303 bore carbine from the fold of his Chadar (Dub) and Mulazim Hussain Shah brought out .12 bore carbine from the fold of his Chadar (Dub). At this, Ghulam Shabbir got up for running, Sajjad Hussain Shah fired a shot from his carbine which hit Ghulam Shabbir on the back and he fell down. Mulazim Hussain fired a shot from his carbine at Mst. Zubeda and the pellets struck her abdomen, chest and arms, she also fell down. Ghulam Shabbir died at the spot. The attempt of the appellants to run away was foiled. Mulazim Hussain was caught hold of by Sakhi Shah (P.W.9) and Abdul Majid (P.W.10). Sajjad Hussain was caught hold of by Akbar Shah (P.W.11) and Sarfraz (given up P.W.). Carbines from both of them were also snatched. Mulazim Hussain had also received injuries when he was being caught. The driver of the car, who had given his name as Dost Muhammad son of Allah Ditta was also taken into custody alongwith the car. Leaving the appellants and Dost Muhammad in the custody of Abdul Majid, Akbar Shah and Sarfraz P.Ws. at the spot, Sakhi Shah proceeded to Police Station Shorkot, where F I R (Ex.PL) was registered on his statement at 2 p.m. on the same day by Ghulam Muhammad, S.I./S.H.0.(P.W.12). 4/5 months prior to the occurrence, ljaz Hussain Shah, a brother of the appellants, had abducted Mst. Najma, wife of Muntazir Shah. The complainant Ghulam Shabbir deceased accompanied by Syed Irshad Hussain Shah had gone to the Chak of the appellants and demanded return of Mst. Najma. Zulfiyar All Shah, father of the appellants, told them that his sons ljaz Hussain, Mulazim Hussain and Sajjad Hussain have refused to return the abductee, but as he does not want to earn the enmity with Beradari he would in turn marry his daughter Mst. Zubeda with Muntazir Shah. A month thereafter, Zulfigar All Shah brought his daughter Mst. Zubeda to Chah Wallan Dakhli Jails Bharwana and Nikah of Mst. Zubeda was performed with Muntazir Shah. The appellants, who are brothers of Mst. Zubeda, felt annoyed and had sent a message that they will not permit their sister to live there. According to the prosecution this was the motive for the occurrence. 3. The Sub Inspector after recording the F.I.R. reached the spot. He prepared the inquest report and despatched the dead body of Ghulam Shabbir for post-mortem examination. Mst. Zubeda was sent to the hospital for medical examination and treatment. ' The two appellants were produced before the Sub-Inspector. He arrested both of them. Five live cartridges of .303 bore (P.11/1-5) were recovered from the person of Sajjad Hussain on search. They were taken into possession vide memo. Exh.P.X. .12 bore live cartridge (P.8) was recovered on personal search of Mulazim Hussain appellant, which was taken into possession vide memo. Ex.P.S. Wrist watch (P.9) was removed from the person of Sajjad Hussain appellant and was taken into possession vide memo Ex.PT. Blood-stained shirt (P.12) worn by Mulazim Hussain was removed from his person and taken into possession vide memo. Exh.P.Y. Memos, Exhs. P.S. and P.Y. were attested by Akbar Shah (P.W.11) Ghulam Muhammad, S.I. (P.W.12) and Sarfraz (given up P.W), Memos. Exhs. PS and PT were attested by Sakhi Shah (P.W.9), Abdul Majid (P.W.10) and Ghulam Muhammad S.I. (P.W.12). ' Akbar Shah PW produced carbine (P.10), .303 bore, belonging to SajjAd Hussain, which was taken into possession vide memo. Exh.PV. Carbine (P.7) of .12 bore belonging to Mulazim Husain was produced by Abdul Majid P.W. and the same was taken into possession vide memo. Exh. P.R. ' Crime empty of .303 bore (P.5) which was found lying at the spot was taken into possession vide memo. Exh.P0. after sealing the same into a parcel. Crime empty (P.6) of .12 bore was taken into possession from the spot vide memo. Exh.P.Q., after sealing the same into a parcel. ' Blood-stained earth was taken into possession from two places, i.e, the place where Ghulam Shabbir was murdered and the place where Mst. Zubeda was injured. ' Memos. Exhs, PQ and PR were attested by Sakhi Shah (P.W.9), Abdul Majid (P.W.10) and Ghulam Muhammad, S.I. (P.W.12), Memo, Exh.PV was attested by Akbar Shah (P.W.11), Ghulam Muhammad, SI. (P.W.12) and Sarfraz (given up P.W.).
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' Taxi car No,IRB 201 was also taken into possession by the Sub-Inspector vide memo. Exh.P.U, which was attested by Sakhi Shah (P.W. 9)Abdul Majid (P.W. 10) and Ghulam Muhammad, S.1. (P.W.12). ' All the recoveries and memos are dated 3-10-1979. ' On the same day Muntazir Shah (P.W. 7) had produced Nikahnama (Exii.PK) of his marriage with Mst. Zubeda, which was taken into possession vide memo. Exh.PK/1. ' The SI/Investigating Officer at the time of arrest of Mulazim Hussain had prepared his injury statement and had got him medically examined from Dr. Muhammad Latif (P.W.6) on 4-10-1979. 4. Dr.Muhammad Latif (P.W.6) had medically examined Mulazim Hussain appellant on 4-10-1979 at the request of SALO/Investigating Officer. He had noted a seabed abrasion 1.5 x .5 cm on the left eye brow, a contusion 4x5 cm on the outer part of the left upper eye-lid, an abraded swelling 4x1 cm on the left parietal region of head and an abrasion 1 x .5 cm on the right occipital region of head. The appellant had also made complaint of pains on the back of left thigh. ' All the injuries were declared simple and were opined to have been caused between 18/20 houRs, 5. The same doctor had performed the autopsy on the dead body of Ghulam Shabbir. He noted the following injuries on his body: (1) A lacerated wound of entrance measuring 1.5 x 1.5 c.m. on the back of left chest, near the inner border of scapula, ten c.m lateral from the midline, wound was going through the chest cavity and a lacerated wound of exit measuring 5 x 2 c.m. on the left aide and in front of chest near the midline about 5 c. m. below the inner end of the clavical. The margins of the wound of entrance were blackened and inverted and the margins of the wound of exit were everted. The exit wound was about 3 c.m. higher than the wound of entrance. ' According to his opinion the deceased had died because of shock and haemorrhage, resulting from the above injury, which was opined to have been caused by a fire-arm. 6. Mst. Zubeda was medically examined by Lady Dr.Azra Khatun (P.W.1) at 7.20 p.m. on 3-10-1979. She had noted six lacerated wounds of entry on outer and lower part of right chest, on right flank, on the back and outer back part of the forearm, just below the left elbow-joint and on the right flank about 5 cm above right iliac bone. Margins of all these wounds were found blackned. He had noted an exit wound on the upper part of left forearm with averted margins. ' Five of the injuries including four on the chest and one on the right .flank were declared grievous and dangerous to life. The injuries were opined to have been caused by a fire-arm. 7. At the trial the prosecution in all examined 12 witnesses, Sarfraz, one of the eye-witnesses, was given up as unnecessary while Mst. Zubeda, the injured witness, was given up as having been won over. Report of the Chemical Examiner (Exh.P.D.D.), report of the Serologist (Exh.P.E.E) and report (Exh.PFF) of the Fire Arms Expert, were also tendered in evidence. According to the Fire Arms Expert, crime empty of .303 bore was found to have been fired from the carbine (P.10) and crime empty of .12 bore was found to have been fired from the carbine (P.7). 8. Both the appellants during their statements under section 342, Cr.P.C. admitted that Ijaz Hussain Shah, their stepbrother had abducted Mst. Najma, wife of Muntazir Shah, the fact of Sakhi Shah and Chiltern Shabbir deceased having demanded return of the abductee from their father is also admitted. Both have admitted that their father had offered to marry Mst. Zubeda, their sister, with Muntazir Shah in order to avoid enmity with Beradari and as a result the marriage had taken place. They have denied that they had opposed the marriage. Mulazim Hussain stated that both of them had accompanied their father when he had taken Mst. Zubeda for marriage with Muntazir Mehdi Shah. Sajjad Hussain appellant denied the allegation of prosecution of having gone to the house of Muntazir Mehdi Shah and of having fired at the deceased. Mulazim Hussain, however, has admitted that he had gone to the house his sister. He has given his own version of the occurrence as inder:- ' In fact as stated above we had married Mst. Zubeda with Muntazir Mehdi willingly but the latter did not allow her to go to her parent's house (Urdu record of his statement) on the pretext that she was
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married to him in lieu of his abducted wife Mst. Najma. On the day of occurrence I alone went to the house of Muntazir Mehdi P.W. The deceased was present in the house. When my sister started with me the deceased seriously objected to it and went into his Kotha and brought out a carbine. He wanted to fire at my sister Mst. Zubeda but I caught hold of him which resulted into a scuffle between me and the deceased. The deceased caused me injuries on my head with the butt end of his carbine and got him freed from me. Before the deceased could free himself from me my sister came near to save me but the deceased after getting himself free fired at her and caused her injuries. After marking the first fire the deceased reloaded his carbine to make the second fire but I fired from my pistol at the deceased in order to save myself and my sister. There was none else at that time in the house. I went to my house and reported at the P.S. with my brother i.e, the co- accused but was falsely implicated in this case alongwith my brother by the police at the instance of the complainant side. I was medically examined for my injuries on the day I appeared before the police . " ' Both of them have denied of having been caught on the spot and of carbines and live cartridges having been recovered from them. Mulazim Hussain admitted removal of shirt (P.12) from his person, but has stated that it was taken into possession by the Sub-Inspector on 4-10-1979 on his appearance before the S.I. at the Police Station. ' Mulazim Hussain had examined in defence Mst. Zubeda, his sister, as D.W.1. 9. The precis of the statement of Dr. Muhammad Latif (P.W.6), who had performed the autopsy on the dead body of Ghulam Shabbir and had examined Mulazim Hussain appellant has been noted above. A gist of the evidence of Lady Dr.Azra Khatun (P.W.1), who had medically examined Mst. Zubeda has also been noted above. 10. Muntazir Mehdi Shah (PW.7), husband of Mst. Zubeda, had deposed about the motive for the occurrence. He has stated that ljaz Hussain Shah, consanguine brother of the appellants, had abducted his wife Mst. Najma and when they had contacted the father of the appellants, he had told them that the appellants and ljaz Hussain Shah are opposed to return of Mst. Najma, but he would not like to create enmity and so married his daughter Mst.Zubeda with him. The marriage, according to him, was performed in his village where father of the appellants had brought his daughter Mst. Zubeda as the appellants and their third brother was opposed to the marriage. In cross-examination he has stated that after the marriage the appellants had not come to see their sister in his house nor he and his wife Mst. Zubeda had visited their house after the marriage till the occurrence. About Abdul Majid P.W he has stated that he was cultivating the land of Haji Haq Nawaz of his village in neighbourhood of his land. He has denied the suggestion that Mst. Zubeda was married to him with the consent of the appellants. His statement regarding motive is corroborated by Sakhi Shah complainant (P.W.9) who was one of those persons who had approached Zulfiqar Ali Shah, father of the appellants for return of Mst. Najma and Zulfiqar Ali Shah had promised in his presence of marrying Mst. Zubeda with Muntazir Mehdi to avoid creation of enmity because of abduction of Mst. Najma. He has denied the suggestion that Mat. Zubeda was married to Muntazir Mehdi with the consent of the appellants. 11. Eye-witness account has been narrated by Sakhi Shah (P.W.9), Abdul Majid (P.W.10) and Ghulam Akbar Shah (P.W.11). All three of them have stated that both the accused had given Lalkara that they' will not allow them (deceased and Mst. Zubeda) to live alive. Thereafter Sajjad Hussain Shah had fired a shot on the deceased with .303 bore carbine which had hit the deceased when he had tried to run away and that Mulazim Hussain Shah had fired a shot with .12 bore carbine on Mst. Zubeda, as a result of which she received injuries on her chest, abdomen and arms. They have stated that Ghulam Shabbir died on the spot and that the attempt of the appellants to run away from the" spot was foiled as Mulazim Hussain Shah was overpowered by Abdul Majid and Sakhi Shah while Sajjad Hussain was overpowered by Ghulam Akbar Shah and Sarfraz. It is stated that
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the carbines were snatched from both of them and Dost Muhammad Driver of the car was alco taken into custody. They have also stated about the carbines having been brought out by the appellants from their respective Dubs, at the time of raising Lalkara. It has also been stated by them that on the arrival of the Sub-Inspector, the appellants and the weapons were produced before him. ' These three witnesses have distinctly stated about the articles, i.e, weapons of offence, two crime empties, live cartridges having been recovered on personal search of appellant's wrist watch of Sajjad Hussain, blood-stained shirt of Mulazim Hussain, having been taken into possession by the Investigating Officer by various memos. The details of the recoveries effected in their presence and the memos attested by each of them have been noted in Para 3 above. 12. Sakhi Shah before narrating the actual occurrence have also stated about the appellants having entered the house of Muntazir Mehdi Shah at about 11 a.m. and having demanded that Mst. Zubeda should accompany them to their house. He has further stated that the deceased and Mst. Zubeda had refused to comply with the wishes of the appellants. According to him, he had gone to the house of Muntazir Mehdi on the day of occurrence on the request of the latter that he should come on that day to accompany him to purchase a buffalo from the cattle-fair. In cross- examination he had stated that his house was at a distance of two acres from the place of occurrence. ' Abdul Majid (P.W.10) has stated that he had entered the Haveli after hearing noise when he was ploughing the field at a distance of two Kanals from the place of occurrence. He admitted in cross- examination that his residence was at a distance of one square from the place of occurrence. ' House of Ghulam Akbar Shah (P.W.11) was at a distance of one acre from the place of occurrence. ' Sakhi Shah had denied the suggestion that his house was situated at Chah Nur Shah. Abdul Majid P.W. has denied the suggestion that he was residing at Ludhowana. According to him, he had started cultivation with Haq Nawaz of the village of occurrence and had taken the residence there. Ghulam Akbar Shah PW has stated that he had built a house in the land of Sipras, who has also given him a small piece of land for sowing fodder for his buffalo. He has denied the suggestion that he was not residing in the village at the time of occurrence. Ghulam Muhammad (P.W.12) has corroborated the statements of the witnesses regarding the arrest of the appellants at the spot and of the recoveries effected therefrom. He has stated that he had sent Mulazim Hussain appellant same day for medical examination late in the night but the doctor had not examined him as it was late in the night and so he was sent on the following day. The doctor has, however,refused statement of the SA that he had refused to examine Mulazim Hussain for having been produced in the late hours of the night. 13. Met, Zubeda, wife of Muntazir Mehdi Shah, sister of the appellants, who was given up by the prosecution as having been won over, hos appeared as D.W.1. She has supported the prosecution version regarding abduction of Mat, Najma and of her marriage at the command of her father with Muntazir Mehdi Shah. She has, however, stated that her brothers had not opposed the marriage. About the actual occurrence she has supported the plea taken by her brother Mulazim Hussain. 19. We have not been impressed by the argument of the learned counsel for the appellants that the prosecution have failed to prove the' motive for the occurrence. It is not denied even by the appellants that their brother had abducted Mst. Najma, wife of Muntazir Mehdi Shah and that their father had fulfilled the promise of marrying his daughter Mst.Zubeda with Muntazir Mehdi for having not been able to return Mst. Najma because of the refusal of his sons. The fact is also not disputed that marriage of Mst. Zubeda with Muntazir Mehdi was not performed in her father's house or village. Nikahnama (Exh.P.K) is documentary proof of the fact. Surely this was something unusual that a father had taken the girl to the house of the bridegroom for her marriage. This obviously would have been done because of opposition by her brotheRs, If the claim of the appellants that
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they had joined the marriage had any truth, the marriage would not have been performed in such an unusual manner. ' The contention that the appellants had gone to bring their sister according to usual custom has no merit. There is enough evidence on record to hold that the marriage had taken place against the wishes of the appellants and that they had made a declaration that they will not permit their sister to live with Muntazir Mehdi Shah. Moreover, going armed with unlicensed firearm cannot be termed a usual way. ' Learned counsel for the appellants argued that none of the three eye-witnesses had seen the occurrence and so their statements cannot be relied upon. He contended that Sakhi Shah (P.W.9) had not deposed in the F I R about having seen the empties at the place of occurrence, his explanation of injuries suffered by Mulazim Hussain appellant, was inconsistent, that the distance from which, according to him, shot was fired at Mst. Zubeda, is contradicted by the medical account, as there was blackening around the entry wounds, which could not have occurred if the shot had been fired from the distance stated by him, that his statement, that he had gone to the house of Muntazir Mehdi on latter's asking for accompanying him to the cattle fair for purchasing a buffaloes stand contradicted by the statement of Muntazir Mehdi Shah, who has stated that he had gone a day before the occurrence to attend to a marriage of some Baluch disciple to a different village and had come back to his house about 15 minutes after the occurrence,, and that being related, he has made a false statement. 15. We have examined these contentions in the context of the statement made by Sakhi Shah P.W. The witness had clearly stated in the F.I.R. that Mulazim Hussain had received injuries when he was being over powered. The fact of his having stated at the trial that nobody particularly had caused him injuries does not diminish the value of his statement because the injuries obviously would have been suffered by Mulazim Hussain during the process of overpowering by two persons and as a result of resistence by him. None of the injuries was grievous and the dimensions were not such as would show that the injuries might have been caused with any amount of venum. ' The contention that the statement of the witness be discarded for the omission of not having mentioned the presence of empties at the spot, also does not seem weighty, as the witness might not have considered this fact of much importance in view of the fact that the assailants had been caught at the spot alongwith weapons which had also been snatched and handed over to other PWs. All these facts have been mentioned in the F.I.R. We do not think that Muntazir Mehdi's statement, in any way, contradicts the statements of Sakhi Shah. Sakhi Shah has not stated that Muntazir had asked him oh, that day, to accompany him. In fact, it has not been particularised as to when Muhtazir Mehdi had asked him. The fact of Muntazir Mehdi having come at wbout the hour of the day when Sakhi Shah was in his house, show5 that he had come in accordance with the programme chalked out by him with Sakhi Muhammad. ' The contention that the statement of this witness be discarded merely on the ground of his being related, also does not seem to be weighty as the witness was not inimical to the appellants in any manner. There was no dispute between the witness and the appellants except the unhappy incident of their brother having abducted the wife of Muntazir Mehdi Shah, but for that they had been compensated by father of the appellants. ' The contention of the learned counsel that admission of Abdul MOW P.W. ,that he did not own any land in the village of occurrence, his name nol appearing in the Khasra Girdawari of the land jointly cultivated with Hag Nawaz and the fact of his admission that he did not know the Khasra Numbers which were under his cultivation, makes the statement of this witness shaky, particularly, in view of that fact that he was one of the witnesses of Nikah of Mot. Zubeda with Muntazir Mehdi Shah, which shows that he was a party men of the complainant party, has been examined by us.
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' Abdul Majid P.W. admittedly is an independent witness. What to speak of any relationship with the complainants, he did not belong even to their Beradari. His having attested the Nikahnama cannot be taken to mean that he was a partyman of the complainants. The Nikahnama bears the signatures of the father of the appellants as well. Be has stated reasons for having shifted to this village and having started joint cultivation of the land of Haq Nawaz, with him. We find weight in the reasonings advanced by the trial Court that the landlords, for reasons, have developed the practice of, not allowing tenant's name to appear in the Khasra Girdawari. In fact, new tenants also do not insist on inclusion of their names in the Khasra Girdawaris for Year of the landlords refusal to allow them to cultivate the land. Of course, in cases of old tenancies where rights are involved the people insist that their names be included in the Khasra Girdawaris. In this case, the witness had taken up cultivation recently and he could not have claimed any right under the tenancy laws. He might have felt satisfied for having been allowed the cultivation of land to…
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