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Petitioner: Aman Ullah Shah and another VS Respondent: The State and another
Court Name: Lahore High Court Judge(s): Sardar Ahmad Naeem, Sardar Muhammad Sarfraz Dogar Title: Aman Ullah Shah and another vs The State and another Case No.:Criminal Appeal No. 56573, Criminal Revision No. 56778 and Murder
JUDGMENT
Reported As: 2023 YLR 1865 Result: Order accordingly Judgment JUDGMENT SARDAR AHMED NAEEM, J.---Aman Ullah Shah and Naseer Ullah Shah appellants along with Akram Shah, Imran Shah, Muhammad Shah, Ahmed Ali Shah, Mansha Shah, Dildar Shah, Muhammad Shah, Akbar Shah, Shahzad alias Kala, Javed Shah, Fayyaz Shah and Panah Ullah Shah co-accused (since acquitted) were tried by the learned Addl. Sessions Judge, Samundari, District Faisalabad, in case FIR No.465/2008 dated 06.09.2008 for offences under Sections 302/324/337-U/ 337-F(v)/ 337-A(i) / 337-A(ii) / 337-F(i)/ 337-L(2)/148/149, P.P.C. registered at Police Station Sadar, Samundri, District Faisalabad. At the conclusion of the trial, vide judgment dated 18.07.2019, the learned trial Court acquitted Imran Shah, Muhammad Shah, Ahmed Ali Shah, Mansha Shah, Dildar Shah, Akbar Shah, Akram Shah, Nisar Shah, Shahzad alias Kala, Javed Shah, Fayyaz Shah and Panah Ullah Shah co-accused. Whereas, convicted and sentenced the appellants Aman Ullah Shah and Naseer Ullah Shah as under:- Aman Ullah Shah: Under Section 302(b), P. P. C: Death as tazir sentence with compensation of Rs.2,00,000/-, to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C., in default thereof, to further undergo six months S.I. Naseer Ullah Shah: (i) Under Section 324, P.P.C.: Seven years R.I. along with fine of Rs.10,000/-. In case of non-payment of fine, to undergo one month S.I. He was also directed to pay a sum of Rs.20,000/- as Daman to Muhammad Shafi as the said injury was established as Jurh Ghayr Jaifah Hashimah under Section 337-F(v), P.P.C.
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(ii) Under Section 324, P. P. C: Seven years R.I. along with fine of Rs.10,000/-. In case of non payment of fine, to undergo one month S.I. He was also directed to pay four twentieth of Diyat for the Financial year 2008-2009, which was Rs.11026801/- vide Notification No. F. 8(3)IF, IV. 191-536 dated 01.07.2008 as Arsh. (iii) Under Section 324, P. P. C: Seven years R.I. along with fine of Rs.10,000/-. In case of non- payment of fine, to undergo one month S.I. He was also directed to pay four twentieth of Diyat for the Financial year 2008-2009, which was Rs.11026801/- vide Notification No. F. 8(3)IF, IV. 191- 536 dated 01.07.2008 as Arsh. (iv) Under Section 324, P.P.C: Seven years R.I. along with fine of Rs.10,000/-. In case of non payment of fine, to undergo one month S.I. He was also directed to pay Rs. 5,000/- as Daman to Mst. Abida Naseem as the said injury was established as Shujjah Khafifah under Section 337-A(i), P.P.C. (v) Under Section 324, P.P.C.: Seven years R.I. with fine of Rs.10,000/-. In case of non payment of fine, to undergo one month S.I. He was also directed to pay Rs.25,000/- as Daman to Muhammad Yaseen as the said injury established as Jurah Ghayr Jaifaiah Munaqqlian under Section 337-F(vi), P.P.C. and he will also pay one third of Diyat for the Financial year 2008-2009, which is Rs.11026801/- vide Notification No.F.8(3)IF, IV. 191-536 dated 01.07.2008, as Arsh, as the said injury was also established as Jurah Jaifah under Section 337-D, P.P.C. Benefit of Section 382-B Cr.P.C. was also given to the convict Naseer Ullah Shah and all the above said sentences were ordered to run concurrently. He was also directed to remain in jail as simple imprisonment till the payment of Arsh and Daman to the above mentioned injured persons. 2. Aman Ullah Shah and Naseer Ullah Shah appellants filed Crl. Appeal No.56573/2019 against conviction and sentences awarded to them by the learned trial Court whereas Amjad Ali complainant filed Crl. Revision No.56778/2019 for enhancement of sentence awarded to Naseer Ullah Shah accused. Murder Reference No.203 of 2019 is also before us for confirmation or otherwise of the death sentence awarded to the appellant Aman Ullah Shah. Through this single judgment, we propose to decide all these above mentioned matters. 3. The prosecution story, in brief, as narrated in the FIR lodged by Amjad Ali complainant was that on 06.09.2008 at about 3.30 p.m., Aman Ullah Shah and Naseer Ullah appellants along with their co-accused while armed with deadly weapons and sotas came at the spot. Aman Ullah. Shah appellant fired at Arshad Ali injured hitting his chest, who after receiving fire shot fell down on the ground. Naseer Ullah appellant fired at Muhammad Shafi, Zaheer Abbas, Bashir Ahmad, Abida Naseem and Muhammad Yaseen injured. The other co-accused inflicted sota blows hitting Parveen Akhtar and Ishaq. The accused persons while raising lalkaras fled away from the spot. The injured persons were removed to the hospital and Arshad All injured succumbed to the injuries. Hence the present FIR. 4. After usual investigation, charge was framed by the learned trial Court against the accused persons to which, they pleaded not guilty and claimed trial, hence the prosecution evidence was invited. 5. The prosecution, in order to prove its case, produced as many as nineteen witnesses. 6. Muhammad Iqbal S.I. (P.W.1) deposed that on 06.09.2008, Amjad Ali complainant appeared before him and got recorded his statement. He recorded his formal police proceedings Ex.PA and sent the same for registration of case to the police station. 7. Subah Sadiq (P.W.4) was witness of identification of the dead body of Arshad Ali, deceased. 8. Muhammad Younis Constable (P.W.6) escorted the dead body of Arshad Ali, deceased. 9. Akbar Ali Nizami Draftsman (P.W.7) visited the place of occurrence and prepared scaled site plan Ex.PD. 10. Dr. Samia Liaqat Ali Rana Women Medical Officer (P.W.8) conducted medical examination of Mst. Abida injured and found following injuries on her person:-
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1. A firearm entrance wound 0.75 cm x 0.75 x deep going (DNP) on right side of the head 6 cm above from right ear. The injury was kept under observation. Probable duration between injury and examination was about 3 hours. After receipt of Radiologist report, the injury was declared Shajja Khafifah. Ex.PE was the correct carbon copy of her medico legal report and Ex.PE1 on the back was her opinion after the receipt of report of Radiologist. On the same day, she also examined Mst. Parveen and found following injuries on her person:- 1. A lacerated wound 0.4 cm x 0.4 cm bone not exposed on left side of head, 6 cm above from the left ear. Advised X-Ray 2. Swelling 4 cm x 5 cm on back mid of the head. 3. Contused swelling 4 cm x 3 cm on back of thumb of left land. All the injuries were kept under observation. The probable duration between injures and examination was within three to four hours. After receipt of report of Radiologist from DHQ hospital Faisalabad injuries No.1 and 2 were declared as Shajja Khafifah. Injury No.3 was declared miscellaneous. Injury No.1 caused by blunt weapon. Ex.PF was correct carbon copy of her medico legal certificate whereas Ex.PF/1 was her opinion upon back side of Ex.PF after receipt of the Radiologist. Doctor Shahid Nadeem Medical Officer (P.W.9) conducted medical examination of Muhammad Ishaq and observed following injuries on his person:- Injuries: 1- A lacerated wound 4 Cm x 1 Cm with bone exposed on the left side of head, close to front hair margin with bleeding round about. 2- Contused swelling 5 Cm x 1 Cm on the back of right shoulder. 3- Contusion 1 x 0.5 Cm on the right upper back of chest. The patient was conscious. BP and pulse was normal. Injury No.1 was kept under observation and X-Ray skull was advised. Injuries Nos. 2 and 3 declared as under section 337L2, P.P.C. Probable duration of injuries was about one hour. After receipt of report No.2379 dated 11.09.2008 of Radiologist, no bone injury seen in skull vault, so Injury No.1 (KUO) was declared as Shajja Madiah. On the same day at 4.00 p.m. he examined Muhammad Yaseen injured and found following injuries:- Injuries: 1. A multiple firearm wound of entry with inverted margins, 5 in numbers, four of them, 1 Can x 1 Cm and 5th one 1.5 Cm x 1 Cm on the front of left shoulder, deep going up to injury No.1(b) which is a firearm wound of exit 1 Cm x 1 Cm on the inner side of left shoulder and again entering in the upper outer left chest cavity measuring 0.75 Cm x 0.75 Cm. with massive bleeding round about with corresponding injury holes on blood stained Qameez. The patient was conscious but in shock. General physical condition was very serious. Injury No.01 was kept under observation clinically and radiologically and X-Ray left shoulder and chest was advised. Probable duration of injury was about half to one hour. The kind of weapon was firearm. On the receipt of report of Radiologist DHQ Hospital, Faisalabad vide No.3399 dated 13.9.2008 of X- Ray left shoulder, multiple radiopaque metallic foreign body seen in soft tissue around the left shoulder joint comminuted fracture left humerous proximal part along with dislocation of left shoulder joint seen. On the same day, he also examined Muhammad Shafi injured and found following injuries on his person: Injuries: 1. Three firearm wounds of entry each 1 Cm x 1 Cm on the outer side of left, foot with inverted margins burnt deep going upto injury No.1(b) which are three firearm wounds of exit each
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measuring 1.25 Cm x 1 Cm with everted margins on the inner side of left foot with massive bleedings round about. The patient was conscious. B/P and Pulse was normal. Injury No.1 was kept under observation and X-Ray of left foot was advised. Probable duration of injury was about half to one hour. The kind of weapon used was firearm. On the receipt of report No.2380 dated 1I.O9.2008 of Radiologist 'DHQ hospital Faisalabad, multiple radiopaque metallic foreign bodies seen in soft tissues of left foot. On the same day, he examined Zaheer Abbas injured and found following injury:- 1. A firearm wound of entry 1.5 cm x 1 cm with missing of third lower incisor tooth and upper right first incisor with their bleedings sockets. Injury No.1 was kept under observation and was referred to Dental Surgeon for assessment of nature of injury and X-Ray of face was also advised. The patient was conscious. B.P and pulse was normal. Probable duration of injury was about one hour. The kind of weapon used, the possibility of suffering Injury No.1 by firearm was there. On 17.09.2008, on the receipt of report of Radiologist, DHQ Hospital Faisalabad vide No.2395 dated 12.09.2008, no injury seen in facial bones according to the report of Dental Surgeon dated 16.09.2008. The injury was due to external blow or trauma, so, injury No.1 kept under observation was declared under Section 337-U, P.P.C. was declared under Section 337-U, P.P.C. The reports of Dental Surgeon and Radiologist were handed over to the party in original Ex.PK and Ex.PK/1 were correct carbon copies of MLC 901/08 and its pictorial diagram. On the same day, he examined Bashir Ahmad injured and found following injury: Injury:- 1.A lacerated wound .75 Cm. x 5 Cm on the inner middle inner upper lip with partial fracture of left upper left incisor and trimming of the second left upper incisor and lower right first incisor and left first incisor are also shaky. The patient was conscious and B.P. pulse was normal. Injury No.1 was KUO and was referred to Dental Surgeon for assessm ent of nature of injury and X-Ray face was also advised. Probable duration of injury was two to three hours. The kind of weapon used was possibility of suffering injury No.1 by firearm we as there. On the same day, he also examined Amjad and observed following injuries:- Injuries: 1. Contused swelling 2 Cm x 2 Cm on the left top of head. 2. Abrasion 2 Cm x 1 Cm on the outer front of left upper arm. 3. Contused swelling 4 Cm x 2 Cm on the back of left upper arm just above the elbow. 4 Contusion 2 Cm x. 5 Cm on the back of left upper forearm. 5. Two abrasions .3 Cm x .1 Cm each with contused swelling 2 Cm x 2 Cm on the back base of left little finger. 6. Contused swelling 2 Cm x 2 Cm on the back of right forearm. 7. Two abrasions .5 Cm x .5 Cm each on the front of left thigh. The patient was conscious, B.P and pulse was normal, B/P pulse was normal. Injury No.1 was declared as Shaja Khafifah. Injuries Nos. 2, 3, 4 and 6 were declared under section 337-L, P.P.C., injury No.7 was declared Jurh Ghyar Jaifah Damiyah. Injury No.5 was KUO and X-Ray of left hand was advised. Probable duration of injury was two to three hours. The kind of weapon used was blunt. Doctor Muhammad Saleem, Radiologist (P.W.10) deposed that on 13.09.2008 Muhammad Yaseen came to him for X-Ray at DHQ Hospital, Faisalabad and following X-Rays done and their report was written as under:- 1. X-Ray left shoulder: Multiple radioopaque metallic foreign bodies seen in soft tissues around left shoulder joint. Comminuted fracture left humorous proximal part along with dislocation of
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left shoulder joint. 2. X-Ray Chest. Fracture 5th rib seen interiorly and posteriorly on left side chest ribcage. Multiple radiopaque metallic foreign bodies seen in soft tissues left side chest wall. Fluid seen in left plural cavity also. Surgical emphysema seen in left side chest wall. Chip fractures left scapula seen. On 11.09.2008 Muhammad Shaft son of Khewa, P.S. Saddar, Samundari came to Radiology department DHQ hospital, Faisalabad for X-Rays. His X-Rays were done and the report was written as under:- 1- X-Ray left foot---Multiple radiopaque metallic foreign bodies seen in soft tissue of left foot. Fracture of medical cuneiform, first, second, third and fourth metatarsal bone comminuted fracture and proximal flanges of first, fourth and fifth toe fractures also seen. 11. Amjad Ali (P.W.13) was complainant of the case. He supported the prosecution version as mentioned in the FIR. Zaheer Abbas (P.W.14) was injured-eye-witness of the occurrence. He supported the statement of the complainant. 12. Muhammad Afzaal S.I. (P.W.15) investigated the case. Muhammad Shahbaz ASI (P.W.16) stated that on 06.09.2008, he received complaint Ex.PA/1 sent by Muhammad Iqbal, S.I. for registration of the case, on the basis of which he formally chalked out FIR Ex.PW without any addition or omission on his part. 13. Bashir Ahmad (P.W.17) was also injured witness of the occurrence. He supported the prosecution version. He was also witness of recovery of .12 bore gun effected from Aman Ullah Shah appellant which was taken into possession vide Memo. Ex.PT. He was also witness of recovery of sota effected from Naseer Ullah appellant, taken into possession vide Memo. Ex.PU. 14. Muhammad Ishaq (P.W.18) was another injured witness of the occurrence. He corroborated the statement of the complainant. Rest of the PWs were of formal nature, therefore, need not to be discussed. 15. The prosecution while giving up Mst. Abida Naseem, Mst. Parveen, Nazir Ahmad, Muhammad Sardar, Muhammad Ishaq, Muhammad Yaseen and Muhammad Shafi being unnecessary, tendered report of Chemical Examiner Ex.PX, report of Serologist Ex.PV and Forensic Science Laboratory, closed its case. 16. After close of prosecution case statements of appellants were recorded under section 342, Cr.P.C. They pleaded innocence and denied the prosecution allegations. Aman Ullah Shah appellant in reply to the question "why this case against you and why the PWs deposed against you, answered as under:-- "It is a false case. The story has been concocted and fabricated on the behest of Ismail Bhatti and PW Subhan Sadiq Bhatti. The complainant party waylaid and initiated trouble. They injured my father Muhammad Shah and Muhammad Akram my cousin (tayazad). It was my first plea that I was sleeping in my house, there was noise that my father has been murdered and I came out with a gun. On seeing me, Amjad All complainant fired at me thrice with pistol but I luckily escaped. A large crowd had already gathered there, sonic of whom were armed with fire arms and firing was also taken place. I fired with my gun to scare off the assailants of my father. Many persons appeared in support of my plea during entire investigation. During entire investigation police did not probe into the facts of my first plea as required by law and my lawful responsibilities. The I.O. never wrote in his case diaries or opined that my first plea was false. It was one sided, partial and dishonest investigation under the influence of Ismail Bhatti, etc. The village population was sharply divided between Bhattis and Syeds. During investigation, section 109 P.P.C. was deleted and as many as nine accused out of 14 nominated in the FIR were found innocent. Their names are:-
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Amjad Ali Shah, Mansha Shah, Dildar Shah, Akbar Shah, Nisar Shah, Shehzad alias Kala Shah, Japed Shah, Fiaz Shah and Pannah Ali Shah. Although all of us are innocent. The prosecution with dishonest intention and malifides suppressed the injuries of Muhammad Shah and Akram Shah in league with the I.O. Naseer Ullah Shah appellant adopted the statement of Aman Ullah Shah appellant and claimed to be innocent. 17. The appellants produced Muhammad Afzal H.C. (D.W.1) and Muhammad Shah as D.W.2. in their defence evidence. However, did not appear as their own witnesses under section 340(2), Cr.P.C. 18. Learned counsel for the appellants submitted that the occurrence took place on a thorough fare but no independent witness was cited by the prosecution; that the best evidence in this case has been withheld, thus, necessary inference under Article 129(g) of the Qanun-i-Shahadat, 1984 must be raised; that conduct of the witnesses at the crime scene was unnatural; that the postmortem examination was conducted with the lapse of 18-24 hours, which suggests consultation and deliberation; that the prosecution evidence was not in line with the medical evidence; that the motive was not proved; that prosecution evidence was replete with discrepancies/contradictions; that the recovered weapon was found in working order and as such, inconsequential; that majority of the co-. accused of the appellants were acquitted on the same set of evidence and as no independent corroboration was forthcoming on record, thus, conviction of the appellants cannot be sustained. Concluding his arguments, learned counsel for the appellants -added that prosecution miserably failed to prove its case against the appellant beyond reasonable shadow of doubt and every doubt even slightest is always resolved in favour of the accused, thus, the appellants be acquitted in this case. 19. Conversely, learned Deputy Prosecutor General assisted by the learned counsel for the complainant controverted the submissions put forth by the learned counsel for the appellants. It was argued that it was a daylight occurrence, the parties were residing in the same village, known to each other and there was no question of mistaken identity; that the witnesses have attributed specific roles to the appellants, supported by the medical evidence as well as the recovery; that the motive was also proved and the discrepancies hinted at by the learned counsel for the appellants are negligible and do not adversely affect the case of prosecution in any manner; that the prosecution story is also corroborated by the medical evidence; that the prosecution has proved its case against the appellants to the hilt, therefore, the appeal is liable to be dismissed. It may be mentioned that earlier this case was decided by the learned trial Court vide judgment dated 29.8.2013. The appellants filed Criminal Appeal No.293-3 of 2013. Whereas, the complainant filed Crl. Revision No.773- 2013 and the learned trial Court submitted Murder Reference No.279-2013. All the above cases were decided by the Hon'ble Lahore High Court vide judgment dated 16.4.2019 and the matter was remanded to the learned trial Court to re-write the judgment. After remand, the judgment was re-written by the learned trial Court, vide judgment dated 18.7.2019, whereby the appellants were held guilty, convicted and sentenced as mentioned above. 20. We have given anxious considerations to the arguments advanced by the learned counsel for the parties and have perused the record. 21. During this occurrence, Arshad Ali, the deceased lost his life. Whereas, Shafi, Zaheer Abbas, Bashir Ahmad, Abida Nasreen, Perveen Akhtar, Nazir Ahmad and Ishaq sustained injuries. 22. The occurrence took place on 06.9.2008 at about 3:30 p.m in front of shop owned/run by the complainant within the area of Chak No.463-GB. It was seven miles away from the police station. The incident was reported at 4:45 p.m. The complainant Amjad Ali entered in the witness box as PW.13, injured witness Zaheer Abbas was examined as PW.14. He also supported the version of the complainant.
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23. The gist of the prosecution story was that on the day and time of occurrence, the complainant was sitting in his shop along with Muhammad Aslam and Muhammad Arshad. The accused including Akram Shah son of Manzoor Shah, Imran son of Sultan Shah (since acquitted) and the appellant Naseer Ullah Shah passed their shop and ridiculed them. The brother of the complainant, Muhammad Aslam forbade them, which culminated into altercation and the said accused left the crime scene by extending threats of teaching the complainant party a lesson. Meanwhile, Zaheer Abbas (PW.14) came to the shop of the complainant to purchase the grocery. Meanwhile, all the accused nominated in the FIR, while armed with their respective weapons emerged at the crime scene. We would not go into details regarding attribution and respective roles of the acquitted co- accused. However, the appellants, both, were armed with .12 bore guns. A fire shot of Aman Ullah hit the chest of the deceased. Whereas, fire shot attributed to Naseer Ullah Shah hit the injured Zaheer Abbas (PW.14). On hearing alarm, Perveen Akhtar, Abida Nasreen, Muhammad Yaseen, Muhammad Shafi, Bashir Ahmad, Muhammad Ishaq PWs attracted to the spot. Then Naseer Ullah Shah appellant fired which hit Muhammad Shafi, Bashir Ahmad, Abida Nasreen, Muhammad Yaseen, Perveen Akhtar and Muhammad Ishaq. At this stage, it would be appropriate to mention that none of the injured was examined during trial except Zaheer Abbas, Bashir Ahmad and Muhammad Ishaq PWs. All the private witnesses were closely related inter-se/the deceased. The complainant was real brother of the deceased. Muhammad Ishaq, Abida Nasreen were his chacha zad and Zaheer Abbas PW was his close friend. Whereas, Bashir Ahmad PW was chacha of the complainant. Perveen Akhtar was mother and Nazeer Ahmad was father of the deceased. 24. The motive behind the occurrence was that a few moments prior to the occurrence, the accused including Naseer Ullah Shah, Akram and Imran ridiculed the complainant party which resulted into altercation between the accused and Muhammad Aslam and then, on return from their house all the accused enacted the above episode. 25. As mentioned above, the occurrence took place in front of shop run by the complainant. The injury sustained by the deceased was assigned to Aman Ullah Shah, appellant. Whereas, Naseer Ullah Shah was saddled with the responsibility of causing fire arm injuries to the injured PWs. The complainant and Zaheer Abbas PWs claimed to have witnessed this occurrence. The record divulged that Muhammad Arshad deceased after sustaining firearm injury fell down and then lifted/shifted by the complainant and others to a rickshaw of Fazal Jatt resident of the same village but he was not interrogated during the investigation. The complainant admitted during the cross- examination that while shifting the deceased to rickshaw/hospital, his clothes got blood stains but neither produced his blood stained clothes nor taken into possession by the Investigating Officer. The witnesses were at variance regarding salient features of the case. For example, the complainant stated that only 5/6 fires were made by the accused party. Whereas, Zaheer Ababs (PW.14) deposed that the accused fired about hundred shots. The complainant gone on to state that at the time of occurrence, he along with the deceased and Muhammad Aslam was standing in front of the shop but no specific point is suggested by the scaled site plan Exh.PD. Akbar Ali Nizami, appeared as PW.7. His statement revealed that the place of occurrence was surrounded by a Chowk. He was unable to specify the direction of the arrival of the accused and leaving the crime scene. He admitted that had the said injured PWs told him, he could have shown the same in his site plan and whatever the witnesses told him, he incorporated those facts without addition or omission in his notes recorded on Exh.PD and Exh.PD/I but this fact is not confirmed by Zaheer Abbas (PW.14) who had shown his ignorance about arrival of PW.7 at the place of…
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