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Petitioner: NASEEM AKHTAR alias AKBARI BEGUM and another VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Hasnat Ahmad Khan Title: NASEEM AKHTAR alias AKBARI BEGUM and another vs THE STATE Case No.:Criminal Appeals Nos.757, 753, 754 of 2004 and Criminal Revision No.42 of
JUDGMENT
Reported As: 2007 YLR 2627 Result: Order accordingly Judgment JUDGMENT HASNAT AHMAD KHAN, J.- Through this single judgment I intend to dispose of Criminal Appeal No.757 of 2004 filed by Mst. Naseem Akhtar alias Akbari Begum and Tafazul Hussain appellants, Criminal Appeal No 753 of 2004 filed, by Mst. Noor Bhari appellant, Criminal Appeal No. 754 of 2004 filed by Mahboob alias Pappu, Abdul Ghafoor and Khalil Ahmad appellants and Criminal Revision No. 42 of 2005 titled by Mst. Noor Bhari, petitioner as all these matters are stemming from one and the same judgment dated 29-11-2004 passed by the learned Additional Sessions Judge-II, Muzaffergarh Vide the said judgment the State case registered vide F.I.R. No.56 of 2003 dated 13-2- 2003 registered at Police Station, Rohilanwali in respect of offences under sections 302/324/ 34, P,P.C. Lodged at. The instance of Hakim Ali (since dead) as well as complaint case under sections 452/337-L(ii)/337-A(ii)/ 337-F(v)/148/l49, P.P.C. Filed by Tafazal Hussain were disposed of together. 2. In the State case Tafazal Hussain, Muhammad Akram, Mst. Naseem Akhtar alias Akbari Begum. And Wajid-ur-Rahman were tried by the said Court while in the complaint case Atta Ullah, Mahboob alias Papu, Abdul Ghafoor, Khalil Ahmad and Mst.. Noor Bhari were tried under the above- mentioned sections. 3 . At the conclusion of the trial in the State case Muhammad Akram and Wajid- ur-Rehman were acquitted of the charge while Tafazal Hussain appellant of Criminal Appeal No.757 of 2004 was found guilty under section 302(b), P.P.C. And was sentenced to suffer imprisonment for life whereas Mst. Naseem Akhtar alias Akbari Begum appellant was acquitted of the charge under section 302/34, P.P.C. She was however, convicted under section 337-A(iv), P.P.C. For giving injuries to Mst. Noor Bhari and sentenced to suffer three years' R.l. She was also directed to pay Arsh equal to 15%
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of Diyat. 4. In the complaint case filed by Tafazal Hussain complainant, Mst. Noor Bhari had been convicted under section 337-F(i), P.P.C, for causing injuries on the person of Mst. Naseem Akhtar alias Mst. Akbari Begum and sentenced to suffer one year R.l. She was also directed to pay Rs.20,000 to Mst. Akbari Begum. In the same Case, Khalil, Mahboob and Abdnl Ghafoor were convicted under section 337-F(i), P.P.C. For causing injuries on the person of Muhammad Akram and each one of them was sentenced to one year R.l. Khalil and Mahboob were further directed to pay Rs.25,000 each as Daman. All the three said accused were also convicted under section 337-L(ii), P.P.C. And sentenced to two years' R.l. Each. Khalil and Mahboob accused were further directed to pay Rs.5,000 each as Daman. All the three accused were further convicted under section 337-A(i)/337- E(a) and 337-L(ii) P.P.C. For causing, injuries on the person of Tafazal Hussain and sentenced to suffer two years' R.l. Each under section 337-A(i) P.P.C. Mahboob and Khalil accused were directed also to pay Rs.5000 as Daman each. All three of them were also sentenced under section 337-E(a), P.P.C. (though wrongly) to suffer one year's RI. Each. Mahboob and Khalil were directed to pay Rs. 5,000 each as Daman. (The trial Court should have sentenced under section 337-F(i) and not under section 337-E(a), P.P.C). All three of them were further sentenced under section 337-L(ii) for two years' R.l. Each. All the sentences were directed to run concurrently and benefit of the provisions of section 382-B, Cr.P.C. Was also granted to them. Atta Ullah co-accused was however, acquitted of the charge 5. Brief facts of the prosecution story as narrated in the complaint filed by Tafazal Hussain are that on 13-2-2003 at about 9-00 a.m. He along with his mother, namely, Mst. Naseem Akhtar alias Akbari Begum, Muhammad Akram and Wajid-ur- Rehman was present in his house where Hakim Ali accused (now deceased) armed ' with .12 bore gun, Irshad alias Taidi (now deceased) armed with Hatchet, Atta Ullah armed with .12 bore gun, Mehboob alias Papu, Khalil Ahmad alias Khilli, Naeem and Joora all four armed with Sotas, Abdul Ghafoor armed with pistol .30 bore, Mst. Ghafooran, Mst. Noor Bhari and Hanif alias Hanifa, armed with iron rods after making aerial firing extended threats to vacate the house as well as dire consequences, trespassed into the house and committed murderous assault on the complainant party. Hanif gave iron rod blow hitting Wajid-ur-Rehman on his right wrist and right 'knee. Mst. Ghafooran and Mst. Noor Bharri attacked Mst. Akbari with their iron rods and hit on various parts of her body. Mehboob, Khalil and Naeem accused attacked upon Muhammad Akram and injured him with- Sotas. The complainant tried to intercept upon which Irshad alias Taidi, Mahboob alias Papu, Khalil alias Khilli, Naeem and Joora attacked upon him. Irshad alias Taidi gave hatchet blows on his head, palm of left hand and again on left side of his head. The complainant and Irshad accused statedly grappled with each other upon which Hakim Ali accused fired a shot upon the complainant but the same hit Irshad alias Taidi who succumbed at the spot. Thereafter the accused ran away from the spot making aerial firing. It was further alleged in the complaint that during this occurrence, Mst. Noor Bharri also got injuries. Motive for the occurrence as narrated in the complaint was that Hakim Ali accused was having a dispute with Tafazal Hussain complainant over the house and wanted to take forcible possession of the same due to which the occurrence took place. 6. In the State case, brief facts- of the prosecution story and the background leading to the present occurrence as unfolded through the F.I.R. (Exh..P.N.) lodged by Hakim Ali Complainant was that he along with his daughter, namely, Mst. Ghafooran Bibi lived in the house situated in Qasba Rohailanwali. A few days prior to the present occurrence, his said daughter went to the house of her in-laws situated in Taranda Meer Khan. In her absence, Tafazul Hussain along with Wajid Ali and Mst. Naseem Akhtar alias Akbari broke out the lock of the house forcibly and took over the possession. The complainant brought the matter into the notice of Muhammad Asghar, Ex- Chairman who settled the dispute and fixed Rs.25,000 as sale price of the disputed house which
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were to be paid by Tafazul Hassan and Wajid Ali on 13-2-2003, On the day of occurrence at 9-00 a.m: the complainant along with his sop Irshad alias Taidi, Rana Ghafoor and Khalil Ahmad went to the house of Tafazul Hussain. Tafazul Hussain and Wajid Ali accused were standing near the disputed house. Irshad alias Taidi knocked at the door upon which Mst: Naseem Akhtar alias Akbari armed with Sota and Tafazal Hussain armed with carbine came in front of the door and dragged Irshad alias Taidi inside the compound of the house. The complainant party raised hue and cry and saw Wajid Ali, Police Constable, armed with .12 bore gun and Muhammad Akram armed with .30 bore pistol. In their view, Wajid Ali accused started firing in the air whereas Tafazal Hussain accused made straight fire hitting Irshad on left side of his neck near the chest. Wajid Ali accused made second fire shot also hitting Irshad on the left side of his neck near the chest. Mst. Naseem Akhtar also gave sota blow on the back side of his head. In the meanwhile Mst. Noor Bharri wife of. The complainant also reached there upon which Muhammad Akram accused fired a shot with his pistol hitting Mst. Noor Bharri on her left arm. Mst. Akbari accused gave a sota blow landing on the back side of her head. Irshad Ahinad alias Taidi succumbed to his injuries at the spot. Hence the F.I.R. 7. On the other hand, Tafazul Hussain one of the accused nominated in the F.I.R. Instituted a complaint before the learned Illaqa Magistrate who after recording the preliminary evidence summoned all the accused mentioned therein to face trial under sections 452/337-L(ii)/337-A(ii)/ . 337-F(v)/148/149, P.P.C. As the State case was pending before the Court of a learned Addl. Sessions Judge, Muzaffergarh, the complaint case was also sent to the said Court for trial. In response to the summons issued by the learned trial Court, Atta Ullah, Mahboob alias Papu, Abdul Ghafoor, Khalil Ahmad and Mst. Noor Bhari put up their appearance while accused Naeem, Jhoora, Mst. Ghafooran, Hanif alias Hanifa were declared as proclaimed offenders and proceedings under section 512, Cr.P.C. Were initiated against them and their cases were separated. During pendency of the trial, Hakim Ali accused (complainant of the State case) died. During the trial, Tafazal , Hussain complainant filed an application for the commencement of the complaint case prior to the State case which was accepted and the trial in the complaint case was initiated. 8. At the trial of the complaint case Tafazul Hussain, Wajid-ur-Rehman, Muhammad Akram and Mst. Akbari appeared as P.Ws. 1 to 4 respectively to furnish the ocular account. Dr. Hafiz ur Rehman Radiologist who had made X-Rays of Muhammad Akram, Wajid-ur-Rehman, Tafazal Hussain P.Ws. Appeared as P.W.5. The doctor deposed that according to the X-ray report No.59 (Exh.P.B.) of skull, Muhammad Akram had no bony injury. As per his X-Ray Report bearing No.60 (Exh.P.C.) of right knee of Wajid-ur-Rehman P.W., no bony injury was seen. The doctor further deposed that Tafazul Hussain was X-Rayed vide No.61 (Exh.P.D.) and no injury was seen in his nasal bone or skull vault. However, X-Rays of left hand showed fracture of shaft of second meta carpal bone and fracture of tip of terminal phalanx of index finger. Lady Dr. Salma Bano Ghauri who had medically examined Mst. Naseem Akhtar alias Akbari Begum appeared as P.W.6. According to the said Doctor Mst. Akbari had . Suffered the following injuries (1) Swelling measuring 5 x 6 c.m. On right side of the skull. X-ray was advised to confirm any sign of fracture. (2) A swelling measuring 8 x 10 c.m. On left upper arm. (3) A bruise measuring 6x8 c.m. On left side of back. (4) A contusion 10 x 8 c.m. On right buttock. Tafazul Hussain, Muhammad Akram and Wajid-ur-Rehman injured P.Ws. Were medically examined by Dr. Muhammad Saddiq Shah on 14-2-2003 vide medico legal reports bearing Nos.55-S, 56-S and 57.-S of 2003 respectively. However, the said doctor died before he could be examined at the trial. Therefore; Dr. Fiaz Ahmad Hashmi C.M.O. Who had worked with said Dr. Muhammad Saddiq Shah appeared as P.W.7 to verify his hand writing and signatures over the above- mentioned
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medico legal reports (Exhs.P.F. P.G. And P.H. Respectively) prepared by him. 9. All the accused of the complaint case, i.e. Mst. Noor Bharri, Mahboob alias Papu, Khalil Ahmad alias Khilli, Atta Ullah and Abdul Ghafoor were examined under section 342, Cr.P.C. In answer to question No. 10, Mst. Noor Bhari accused replied as under:- "Tafazul Hussain etc. Had forcibly occupied the house belonging to mV husband Hakim Ali which was in possession of Mst. Ghafooran who had shifted to Tgranda Mir Khan. This matter was placed before Ch. Muhammad Asghar Kamboh Ex-Chairman who decided that a sum of Rs.25,000 should be paid by Tafazul Hussain etc. To Hakim Ali on 13-2-2003. Hakim Ali along with Irshad alias Taidi, Rana Ghayyur, Khalil Ahmad went to Tafazul- Hussain for getting the amount of Rs.25,000. When Irshad alias Taidi knocked the door Mst. Naseem alias Akbari Begum armed with sota and Tafazul Hussain armed with gun dragged Irshad deceased inside the house. In my view Tafazul Hussain fired directly on the person of Irshad alias Taidi which hit on his neck over the chest. Mst. Akbari had also given a sota blow on the back of head of Irsahd alias Taidi. I also reached the place of occurrence, laid over Irshad alias Taidi, my son, then Muhammad Akram and Mst. Naseem alias Akbari Begum injured me. The complaint filed by Tafazul Hussain is a defence against the case registered against them vide F.I.R. No. 56' of 2003 dated 13-2-2003 under sections 302/324 of P.P.C." The other co-accused adopted the stand taken by Mst. Noor Bhari. None of the accused, however, elected to make statement on Oath under section 340(2), Cr.P.C. 10. In the State case, the prosecution produced nine witnesses in all out of which Mst. Noor Bhari, Khalil Ahmad and Abdul Ghafoor (P.Ws. 1 to 3) furnished the ocular account. Dr.. Muhammad Sadiq Surrani furnished medical evidence and Allah Diwaya S.I. Who had investigated the case appeared as P.W.8. Rest of the P.Ws. Are formal in nature. Dr. Muhammad Saddiq Surrani (P.W.6) had conducted post-mortem examination on the dead body of Irshad deceased on 13-2-2003 at 11-00 a.m. And found the following injury on his body:- "A lacerated wound 9x ,6 c.m. In between the supra and infra clavicular fossa, fracturing the left clavical going deep. Margins of the wound were burnt." 26 Pallets with a plastic wad were recovered from the wound near body of second thoracic vertebrae. In the opinion of the doctor the death was result of shock and excessive bleeding which had occurred due to rupturing of major blood vessels on the left side of neck which was sufficient to cause death in the ordinary course of nature. The injury was ante-mortem and was caused by fire- arm. Probable time during the injury and death was immediate while between death and post- mortem was within two hours. On the same day, at the same time, the said doctor had also medically examined Mst. Noor Bhari and found the following injuries on her person:- (1) A penetrating wound circular in shape 1 x 1 c.m. On the darso ulnal aspect of left fore arm just above the middle part, crepitus felt advised X-ray. Blood was oozing from the wound. (2) An abrasion with bruise and swelling 2x3 c.m. On dorum and top of skull. Both the injuries along with kind of weapon were kept under observation. On receipt of X-ray, fracture of upper part of shoft of Ulna was found. Therefore, the injury was declared as Jurrah Ghair Jaifa Hashma. Since no evidence of opaque or metallic delisty foreign body shadow was seen, therefore, kind of weapon was declared as pointing blunt weapon. Duration between injuries and medico legal examination was within two hours. 11. During the trial, the complainant also submitted an application to summon Muhammad Asghar Kamboh as court witness as he had not been cited in the calendar of witnesses in the report under section 173, Cr.P.C. The said application was allowed and resultantly the said witness appeared as C.W.l. 12. After closure of 'the prosecution evidence in the State case, all, the accused were examined
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under section 342, Cr.P.C. While responding to Question No. 16 as to why the case against him, Tafazul Hussain accused replied as under:~ "My father Nemat Ali (since dead) was the elder brother of Hakim Ali complainant who died in my childhood. My father and my uncle Hakim Ali were joint agricultural land as well as other property. After the death of my father Hakim Ali taken into possession all the property owned by my father. After the death of my father, my mother Mst. Akbari Begum joined the police department and when I grown up, I also join the police department as driver. My mother contracted second marriage with Waj id-ur-Rehman. My father before my birth constructed a house in Qasba Rohailanwali and after his death, we were residing in that house. We made an application before the Tehsildar regarding the partition of joint holding property against Hakim Ali, which was accepted and warrant for possession was issued but the same were not complied with due to the intervention of Hakim Ali. The revenue staff through D.D.O. (R), Muzaffargarh took the police aid. On 13-2-2003, at about 9-00 a.m. I along with Akbari Begum, my mother, Muhammad Akram, my maternal uncle and Wajid-ur- Rehman, my stepfather were sitting in our house and were busy in taking meal. All of sudden, Hakim Ali Armed with double barrel .12 bore gun, Mehboob armed with Sota, Abdul Ghafoor armed with pistol .30 bore, Khalil, Naeem, Jhoora armed with sotas, Mst.Ghafooran, Mst. Noor Bharri and Hanif armed with iron rods after making aerial firing entered into our house and asked us to vacate the house and also extended threats for dire consequences. They made murderous assault upon us. Hanif attacked upon . Wajid-ur- Rehman with iron rod which hit him on his right wrist and right knee, Mst. Ghafooran and Mst. Noor Bhari attacked upon my: mother Mst. Akbari Begum with iron rod and injured her. Mehboob, Khalil and Naeem attacked upon Muhammad Akram with sotas and injured him. When I tried to save my mother, then Irshad alias Taidi, Mehboob, Khalil, Naeem and Joora attacked upon me. Irshad alias Taidi made, hatchet blow on my head and I raised my left hand in the air to save my head and the same blow hit my left palm of hand. Irshad alias Taidi made second blow with his hatchet and the same blow landed on left side of my head: Then I and Irshad alias Taidi grappled with each other. In the meanwhile Hakim Ali made fire shot with his gun upon me but the same fire hit instead of me to Irshad alias Taidi who succumbed at the, spot. Mehboob, Khalil, Naeem and Joora also injured me. Then all of them after making aerial firing left the spot along with their respective weapons. Hakim Ali etc. Are vagabonds/ and nefarious type persons, with their common object attacked upon us and committed murderous assault uponus. After the occurrence, I reported the matter to local police but the police collided with the complainant party and did not register our case but however, registered a murder case falsely against us and after conducting false investigation challaned us. I along with my co-accused appeared before the Investigating Officer of our own and we were medically examined. The investigation of this case was conducted by Allah Diwaya S.-I. Saddiq Hussain, S.-I./S.H.O. And Muhammad Tufail Watto D.S.P. And all of. Them have declared that the complainant party attacked upon us and in this regard Saddiq Hussain S.-I./S.H.O. Prepared report under section 173, Cr.P.C. Irshad alias Taidi was succumbed at the spot by the firing of his own father Hakim Ali which was proved by us in the connected complaint case by producing P.W.l, P.W.2 and P.W.3. During cross- examination Mst. Noor Bharri admitted that her son Irshad alias Taidi succumbed to his injuries by the hands of Hakim Ali, her husband." The other accused attributed their involvement in the case to the enmity with the complainant party. 13. After conclusion of the trial both the parties were found guilty and convicted and sentenced as mentioned above. 14. Ch. Faqir Muhammad, Advocate, learned counsel for Tafazul Hussain and Mst. Nasim Akhtar
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appellants has contended that in fact it was the complainant party of the State case who had trespassed into their house and had caused injuries to Tafazul Hussain, Mst. Akbari Begum, Muhammad Akram and Wajid-ur- Rehman and during the said process Irshad deceased received a gun shot of Hakim Ali which proved fatal; that the defence version is more probable than the prosecution version because according to the prosecution's own version, at least five persons had visited the house of Tafazul Hussain to receive an amount of Rs.25,000 which according to the arbitrator was payable to them but the said version does not appeal to reason because for that purpose there was no need of going so many persons to the house of Tafazal Hussain; that admittedly there was dispute between the parties regarding the landed property as well as the house which was in possession of Tafazal Hussain; that admittedly the occurrence had taken place within the boundary wall of the house of Tafazal Hussain which shows that Irshad Hussain deceased and his allies were in fact aggressors; that the injuries suffered by Tafazul Hussain, his mother Mst. Akbari Begum, Muhammad Akram and Wajid-ur- Rehman were totally suppressed by the prosecution; that the investigation was dishonest and the Investigating Officer, intentionally withheld the medico legal reports pertaining to the accused side which were produced during recording of the evidence of the Investigating Officer after taking out said medico legal certificates from the police file; that in the F.I.R. It was alleged that Tafazal Hussain had fired with carbine while during investigation a single barrel gun was shown to have been recovered from him; that quite amazingly six empties of cartridges matched with a double barrel gun which clearly shows the mala fides of the Investigating Officer. On the basis of the said contentions, learned counsel for the said appellants has prayed for clean acquittal of the appellants. Lastly he has contended that though the appellants had not specifically taken the plea of self- defence but it is settled law that plea of self-defence, even if not specifically taken can be gleaned from the prosecution evidence and circumstances of the case can be considered. In support of his contention, he had relied upon Masha! Khan v. The State PLD 1988 SC 25; Khalid Zaman v. The State 1992 PCr.LJ 2289; Ghulam Hussain v. The State PLD 1972 Lahore 153; Wary am and 3 others v. The State PLD 1975 Lahore 152; Shahid Mumtaz and others v. The State 1996 PCr.LJ 1722 and Noor Khan v. The State 1996 PCr.LJ 790. 15. Conversely, the learned counsel appearing on behalf of Mst. Noor Bharri who is widow of the complainant of the State case has strenuously opposed the appeal filed by Tafazul Hussain and Mst. Naseem Akhtar alias Mst. Akbari Begum. He has contended that the prosecution had proved its case against both the appellants beyond shadow of doubt through the ocular as well as documentary evidence; that the defence plea is a cook and bull story; that none of the accused/appellants had received any injury at the time of occurrence and the medico legal certificates were .Fabricated after the occurrence by inflicting self- suffered injuries; that the prosecution story got due support from the evidence of Muhammad Asghar who had appeared as C.W.l. He has placed reliance upon the cases of Gullan and others v. The' State 1982 SCMR 1239; Muhammad Dilber alias Muhammad Boota and 2 others v. The State 2002 SCMR 142.5 and Farid v. The State PLD 2002 SC 553. On the dint of the said submissions he has prayed for dismissal of the appeal filed by Tafazul Hussain and Mst. Naseem Akhtar alias Akbari Begum. While supporting Criminal Revision No.42 of 2005 the learned counsel has. Argued that Tafazul Hussain respondent did not deserve leniency and he should be awarded death penalty. In support of Criminal Appeals Nos.753 and 754 of 2004 filed by Mst. Noor Bhari and Mehboob alias Papu, Abdul Ghafoor and Khalil Ahmad appellants respectively, learned counsel for the appellants has contended that the injuries allegedly received by Tafazul Hussain, Mst. Akbari Begum, Muhammad Akram and Wajid-ur- Rehman being self suffered, the apjpellants are entitled to be acquitted. . 16. I have heard both the parties in extenso and have gone through the record. 17. First of all, I would like to deal with the appeal filed by Mst. Naseem Akhtar alias Mst. Akbari Begum and Tafazal Hussain appellants.
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18. At the very outset, it has been observed that it is a case of two versions; one advanced by the prosecution (Mst. Noor Bharri etc.) and the other by the defence (Tafazul Hussain- etc.). The case being of two versions, the Court has to see as to which of the two versions is more probable. 19. Tafazul Hussain appellant was nephew of Hakim Ali complainant i.e. Son of his real elder brother meaning thereby that Irshad alias Taidi deceased was his first cousin and Mst. Noor Bharri was his aunt (Chachi). Wajid-ur-Rehman, P.W. Was step father and Muhammad Akram P.W. Is real maternal uncle of Tafazul Hussain appellant. Therefore, admittedly the parties are closely related inter se. Hakim Ali complainant had alleged in the F.I.R. That Irshad deceased had been dragged into the house by Tafazul Hussain etc. While in the compliant Tafazul Hussain had averred that Irshad etc. Had come to their house and had attacked upon them. Thus the place of occurrence being the house of Tafazul Hussain is also admitted by both the parties. Similarly both the parties were immediately medically examined after the occurrence. Therefore, time of occurrence is also admitted. Likewise both the parties . Had admitted that bone of contention leading to the present occurrence was the house which was, admittedly in possession of Tafazul Hussain etc. At the time of occurrence. Thus the motive is also admitted. 20. According to the prosecution story as narrated in the F.I.R. Mst. Naseem Akhtar etc. Appellants had forcibly…
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